Vol. 85 Wednesday, No. 88 May 6, 2020

Pages 26835–27104

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 88

Wednesday, May 6, 2020

Antitrust Division Environmental Protection Agency NOTICES PROPOSED RULES Changes under the National Cooperative Research and Air Quality State Implementation Plans; Approvals and Production Act: Promulgations: CHEDE–8, 26988 Maryland; 1997 8-Hour Ozone NAAQS Limited National Spectrum Consortium, 26988–26989 Maintenance Plan for the Kent and Queen Anne’s Undersea Technology Innovation Consortium, 26989 Counties Area, 26907–26911 Hazardous and Solid Waste Management System: Centers for Disease Control and Prevention Indiana; Authorization of Revisions, 26911–26914 NOTICES NOTICES Meetings: Clean Air Act Operating Permit Program: Advisory Board on Radiation and Worker Health, Petition for Objection to State Operating Permit for the National Institute for Occupational Safety and U.S. Department of Energy—Hanford Operations, Health, 26979–26980 Benton County, WA, 26975–26976 Federal Aviation Administration Civil Rights Commission RULES NOTICES Airworthiness Directives: Meetings: Bombardier, Inc. Airplanes, 26842–26844 North Dakota Advisory Committee, 26923 Amendment of the Class D and Class E Airspace: Meridian, MS, 26846–26847 Coast Guard Revocation and Amendment of Class E Airspace: PROPOSED RULES Williston, ND, 26845–26846 Special Local Regulation: PROPOSED RULES Choptank River, Hambrooks Bay, Cambridge, MD, 26903– Airworthiness Directives: 26906 Airbus SAS Airplanes, 26896–26898 General Electric Company Turbofan Engines, 26891– Commerce Department 26893 See Foreign-Trade Zones Board The Boeing Company Airplanes, 26888–26891, 26893– See International Trade Administration 26896 See National Oceanic and Atmospheric Administration Amendment of Class D and E Airspace: St. Louis, MO, 26898–26900 Comptroller of the Currency Amendment of Class E Airspace: RULES Sedalia, MO, 26901–26902 Liquidity Coverage Ratio Rule: Treatment of Certain Emergency Facilities, 26835–26842 Federal Communications Commission RULES Copyright Royalty Board Internet Protocol Captioned Telephone Service Modernization and Reform: PROPOSED RULES Internet Protocol Captioned Telephone Service Procedural Regulations of the Copyright Royalty Board Improvements and Program Management, 26857– Requiring Electronic Filing of Claims, 26906–26907 26858 NOTICES Defense Department Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 26976–26978 Federal Acquisition Regulations: Applicability of Inflation Adjustments of Acquisition- Federal Deposit Insurance Corporation Related Thresholds, 27088–27097 RULES Federal Acquisition Circular 2020–06; Introduction, Liquidity Coverage Ratio Rule: 27086 Treatment of Certain Emergency Facilities, 26835–26842 Federal Acquisition Circular 2020–06; Small Entity Compliance Guide, 27102–27103 Federal Energy Regulatory Commission Revocation of Executive Order on Nondisplacement of NOTICES Qualified Workers, 27087–27088 Application: Tax on Certain Foreign Procurement, 27098–27101 PSEG Fossil, LLC; Jersey Central Power and Light Co.; Technical Amendments, 27101–27102 and Yards Creek Energy, LLC, 26973 Combined Filings, 26970–26974 Energy Department Filing: See Federal Energy Regulatory Commission Locke Lord, LLP, 26970 NOTICES Initial Market-Based Rate Filings Including Requests for Agency Information Collection Activities; Proposals, Blanket Section 204 Authorizations: Submissions, and Approvals, 26969–26970 Johanna Energy Center, LLC, 26974–26975

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Western Spirit Transmission, LLC, 26975 Internal Revenue Service Petition for Declaratory Order: RULES Rockies Express Pipeline, LLC, 26971–26972 Definitions and Reporting Requirements for Shareholders of Passive Foreign Investment Companies; Correcting Federal Maritime Commission Amendment, 26848 NOTICES Agreements Filed, 26978 International Trade Administration Order: NOTICES COVID–19 Impact on Cruise Industry, 26978–26979 Antidumping and Countervailing Duty Administrative Reviews, 26931–26938 Federal Motor Carrier Safety Administration Antidumping or Countervailing Duty Investigations, Orders, NOTICES or Reviews: Crash Preventability Determination Program, 27017–27022 Certain Crystalline Silicon Photovoltaic Products from the People’s Republic of China, 26929–26930 Crystalline Silicon Photovoltaic Products from the Federal Reserve System People’s Republic of China and Taiwan, 26938– RULES 26939 Liquidity Coverage Ratio Rule: Large Diameter Welded Pipe from Greece, 26924–26926 Treatment of Certain Emergency Facilities, 26835–26842 Large Diameter Welded Pipe from India, 26930–26931 Polyethylene Terephthalate Film, Sheet and Strip from Food and Drug Administration the People’s Republic of China and the United Arab PROPOSED RULES Emirates, 26927–26928 Filing of Food Additive Petition (Animal Use): Tow-Behind Lawn Groomers and Certain Parts Thereof Biomin GmbH, 26902 from the People’s Republic of China, 26928–26929 Subsidy Programs Provided by Countries Exporting Foreign-Trade Zones Board Softwood Lumber and Softwood Lumber Products to NOTICES the United States, 26924 Proposed Production Activity: Amgen Manufacturing, Ltd., (Pharmaceuticals), Juncos, International Trade Commission PR; Foreign-Trade Zone 7, San Juan, PR, 26923– NOTICES 26924 Investigations; Determinations, Modifications, and Rulings, Reorganization under Alternative Site Framework: etc.: Foreign-Trade Zone 139, Sierra Vista, AZ; Correction, Certain Infotainment Systems, Components Thereof, and 26924 Automobiles Containing the Same, 26987–26988

General Services Administration Justice Department RULES See Antitrust Division Federal Acquisition Regulations: Applicability of Inflation Adjustments of Acquisition- Labor Department Related Thresholds, 27088–27097 NOTICES Federal Acquisition Circular 2020–06; Introduction, Agency Information Collection Activities; Proposals, 27086 Submissions, and Approvals: Federal Acquisition Circular 2020–06; Small Entity Student Safety Assessment of Job Corps Centers, 26989– Compliance Guide, 27102–27103 26990 Revocation of Executive Order on Nondisplacement of Qualified Workers, 27087–27088 Land Management Bureau Tax on Certain Foreign Procurement, 27098–27101 Technical Amendments, 27101–27102 NOTICES Environmental Assessments; Availability, etc.: Coyote Creek Mining Co.: Lease-by-Application NDM Health and Human Services Department 110277, Mercer County, ND, Public Hearing, See Centers for Disease Control and Prevention Maximum Economic Recovery, Fair Market Value, See Food and Drug Administration 26985–26986 See National Institutes of Health Direct Sale of the Reversionary Interest on the Miles Community College Patent and Draft Resource Homeland Security Department Management Plan Amendment to the 2015 Miles City See Coast Guard Field Office Resource Management Plan, Montana, See U.S. Citizenship and Immigration Services 26986–26987

Indian Affairs Bureau Library of Congress PROPOSED RULES See Copyright Royalty Board Procedures for Federal Acknowledgment of Alaska Native Entities, 26902–26903 Maritime Administration NOTICES Interior Department Requests for Administrative Waivers of the Coastwise Trade See Indian Affairs Bureau Laws: See Land Management Bureau Vessel STELLAR (Jetboat), 27023

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National Aeronautics and Space Administration Postal Regulatory Commission RULES NOTICES Federal Acquisition Regulations: New Postal Product, 26990 Applicability of Inflation Adjustments of Acquisition- Related Thresholds, 27088–27097 Securities and Exchange Commission Federal Acquisition Circular 2020–06; Introduction, NOTICES 27086 Meetings: Federal Acquisition Circular 2020–06; Small Entity Investor Advisory Committee, 26998 Compliance Guide, 27102–27103 Self-Regulatory Organizations; Proposed Rule Changes: Revocation of Executive Order on Nondisplacement of Cboe BZX Exchange, Inc., 27002–27004, 27008–27011 Qualified Workers, 27087–27088 Cboe EDGX Exchange, Inc., 26991–26998 Tax on Certain Foreign Procurement, 27098–27101 Cboe Exchange, Inc., 26998–27002, 27004–27008 Technical Amendments, 27101–27102 State Department National Archives and Records Administration RULES RULES International Traffic in Arms Regulations: Facilities, Locations, Hours, and Public Use, 26848–26857 Temporary Reduction in Certain Registration Fees, 26847–26848 National Highway Traffic Safety Administration NOTICES Surface Transportation Board Petition for Decision of Inconsequential Noncompliance: RULES Mercedes-Benz USA, LLC, 27024–27025 Demurrage Billing Requirements, 26858–26865 Policy Statement on Demurrage and Accessorial Rules and National Institutes of Health Charges, 26866–26874 NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Demurrage Billing Requirements, 26915–26922 Submissions, and Approvals: Office of Minority Health Research Coordination Trade Representative, Office of United States Research Training and Mentor Programs Applications NOTICES (National Institute of Diabetes and Digestive and Extension of Particular Exclusions Granted under the 200 Kidney Diseases), 26980–26981 Billion Dollar Action: Meetings: China’s Acts, Policies, and Practices Related to Center for Scientific Review, 26982–26984 Technology Transfer, Intellectual Property, and National Center for Advancing Translational Sciences, Innovation, 27011–27017 26984 National Institute of Allergy and Infectious Diseases, Transportation Department 26982–26983 National Institute of Diabetes and Digestive and Kidney See Federal Aviation Administration Diseases, 26982 See Federal Motor Carrier Safety Administration National Institute on Aging, 26981–26982 See Maritime Administration See National Highway Traffic Safety Administration National Oceanic and Atmospheric Administration RULES Treasury Department Fisheries of the Northeastern United States: See Comptroller of the Currency Magnuson-Stevens Act Provisions; Atlantic Herring See Internal Revenue Service Fishery; Framework Adjustment 6 and the 2019– 2021 Atlantic Herring Fishery Specifications, 26874– U.S. Citizenship and Immigration Services 26887 NOTICES Taking and Importing Marine Mammals: Agency Information Collection Activities; Proposals, Taking Marine Mammals Incidental to Southeast Submissions, and Approvals: Fisheries Science Center Fisheries Research, 27028– Sponsor Deeming and Agency Reimbursement, 26984– 27083 26985 NOTICES Determination of Overfishing or an Overfished Condition, 26940 Separate Parts In This Issue Meetings: Atlantic Highly Migratory Species Advisory Panel, 26939 Part II Requests for Nominations: Science Advisory Board, 26939–26940 Commerce Department, National Oceanic and Atmospheric Takes of Marine Mammals Incidental to Specified Administration, 27028–27083 Activities: Chevron Richmond Refinery Long Wharf Maintenance Part III and Efficiency Project in San Francisco Bay, CA, Defense Department, 27086–27103 26962–26969 General Services Administration, 27086–27103 Marine Site Characterization Surveys off of National Aeronautics and Space Administration, 27086– Massachusetts, Rhode Island, Connecticut, and New 27103 York, 26940–26962

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Reader Aids To subscribe to the Federal Register Table of Contents Consult the Reader Aids section at the end of this issue for electronic mailing list, go to https://public.govdelivery.com/ phone numbers, online resources, finding aids, and notice accounts/USGPOOFR/subscriber/new, enter your e-mail of recently enacted public laws. address, then follow the instructions to join, leave, or 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.

12 CFR 648...... 26874 50...... 26835 249...... 26835 329...... 26835 14 CFR 39...... 26842 71 (2 documents) ...... 26845, 26846 Proposed Rules: 39 (4 documents) ...... 26888, 26891, 26893, 26896 71 (2 documents) ...... 26898, 26901 21 CFR Proposed Rules: 573...... 26902 22 CFR 122...... 26847 25 CFR Proposed Rules: 82...... 26902 26 CFR 1...... 26848 33 CFR Proposed Rules: 100...... 26903 36 CFR 1253...... 26848 1280...... 26848 37 CFR Proposed Rules: 360...... 26906 40 CFR Proposed Rules: 52...... 26907 271...... 26911 47 CFR 64...... 26857 48 CFR Ch. 1 (2 documents) ...... 27086, 27102 1 (3 documents) ...... 27087, 27088, 27098 2...... 27087 4...... 27101 5...... 27088 8...... 27088 9...... 27088 12 (2 documents) ...... 27088, 27098 13...... 27088 15...... 27088 19 (2 documents) ...... 27088, 27101 22...... 27087, 27088 25 (3 documents) ...... 27088, 27098, 27101 29...... 27098 30...... 27088 50...... 27088 52 (4 documents) ...... 27087, 27088, 27098, 27101 49 CFR 1333 (2 documents) ...... 26858, 26866 Proposed Rules: Ch. X...... 26915 50 CFR 219...... 27028

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Rules and Regulations Federal Register Vol. 85, No. 88

Wednesday, May 6, 2020

This section of the FEDERAL REGISTER Deposit Insurance Corporation (together, • Hand Delivery/Courier: 400 7th contains regulatory documents having general the agencies) are adopting this interim Street SW, suite 3E–218, Washington, applicability and legal effect, most of which final rule to require banking DC 20219. are keyed to and codified in the Code of organizations to neutralize the effect • Fax: (571) 465–4326. Federal Regulations, which is published under under the LCR rule of participating in Instructions: You must include 50 titles pursuant to 44 U.S.C. 1510. the MMLF and the PPPLF. ‘‘OCC’’ as the agency name and ‘‘Docket The Code of Federal Regulations is sold by DATES: The interim final rule is effective ID OCC–2020–0019’’ in your comment. the Superintendent of Documents. May 6, 2020. Comments on the interim In general, the OCC will enter all final rule must be received no later than comments received into the docket and June 5, 2020. publish the comments on the DEPARTMENT OF THE TREASURY ADDRESSES: Regulations.gov website without OCC: Commenters are encouraged to change, including any business or Office of the Comptroller of the personal information provided such as Currency submit comments through the Federal eRulemaking Portal or email, if possible. name and address information, email addresses, or phone numbers. 12 CFR Part 50 Please use the title ‘‘Liquidity Coverage Ratio Rule: Treatment of Emergency Comments received, including [Docket No. OCC–2020–0019] FRB Secured Lending Facilities’’ to attachments and other supporting materials, are part of the public record RIN 1557–AE92 facilitate the organization and distribution of the comments. You may and subject to public disclosure. Do not FEDERAL RESERVE SYSTEM submit comments by any of the include any information in your following methods: comment or supporting materials that 12 CFR Part 249 • Federal eRulemaking Portal— you consider confidential or Regulations.gov Classic or inappropriate for public disclosure. [Regulations WW; Docket No. R–1717] Regulations.gov Beta: Regulations.gov You may review comments and other RIN 7100–AF90 Classic: Go to https:// related materials that pertain to this www.regulations.gov/. Enter ‘‘Docket ID rulemaking action by any of the FEDERAL DEPOSIT INSURANCE OCC–2020–0019’’ in the Search Box and following methods: CORPORATION click ‘‘Search.’’ Click on ‘‘Comment • Viewing Comments Electronically— Now’’ to submit public comments. For Regulations.gov Classic or 12 CFR Part 329 help with submitting effective Regulations.gov Beta: Regulations.gov comments please click on ‘‘View Classic: Go to https:// RIN 3064–AF51 Commenter’s Checklist.’’ Click on the www.regulations.gov/. Enter ‘‘Docket ID Liquidity Coverage Ratio Rule: ‘‘Help’’ tab on the Regulations.gov home OCC–2020–0019’’ in the Search box and Treatment of Certain Emergency page to get information on using click ‘‘Search.’’ Click on ‘‘Open Docket Facilities Regulations.gov, including instructions Folder’’ on the right side of the screen. for submitting public comments. Comments and supporting materials can AGENCY: Office of the Comptroller of the Regulations.gov Beta: Go to https:// be viewed and filtered by clicking on Currency (OCC), Board of Governors of beta.regulations.gov/ or click ‘‘Visit ‘‘View all documents and comments in the Federal Reserve System (Board), and New Regulations.gov Site’’ from the this docket’’ and then using the filtering Federal Deposit Insurance Corporation Regulations.gov Classic homepage. tools on the left side of the screen. Click (FDIC). Enter ‘‘Docket ID OCC–2020–0019’’ in on the ‘‘Help’’ tab on the ACTION: Interim final rule; request for the Search Box and click ‘‘Search.’’ Regulations.gov home page to get comment. Public comments can be submitted via information on using Regulations.gov. the ‘‘Comment’’ box below the The docket may be viewed after the SUMMARY: To provide liquidity to the displayed document information or by close of the comment period in the same money market sector, small business clicking on the document title and then manner as during the comment period. lenders, and the broader credit markets clicking the ‘‘Comment’’ box on the top- Regulations.gov Beta: Go to https:// in order to stabilize the financial left side of the screen. For help with beta.regulations.gov/ or click ‘‘Visit system, the Board of Governors of the submitting effective comments please New Regulations.gov Site’’ from the Federal Reserve System (Board) click on ‘‘Commenter’s Checklist.’’ For Regulations.gov Classic homepage. authorized the establishment of the assistance with the Regulations.gov Beta Enter ‘‘Docket ID OCC–2020–0019’’ in Money Market Mutual Fund Liquidity site, please call (877) 378–5457 (toll the Search Box and click ‘‘Search.’’ Facility (MMLF) and the Paycheck free) or (703) 454–9859 Monday–Friday, Click on the ‘‘Comments’’ tab. Protection Program Liquidity Facility 9 a.m.–5 p.m. ET or email regulations@ Comments can be viewed and filtered (PPPLF), pursuant to section 13(3) of the erulemakinghelpdesk.com. by clicking on the ‘‘Sort By’’ drop-down Federal Reserve Act. To facilitate use of • Email: regs.comments@ on the right side of the screen or the these Federal Reserve facilities, and to occ.treas.gov. ‘‘Refine Results’’ options on the left side ensure that the effects of their use are • Mail: Chief Counsel’s Office, of the screen. Supporting materials can consistent and predictable under the Attention: Comment Processing, Office be viewed by clicking on the Liquidity Coverage Ratio (LCR) rule, the of the Comptroller of the Currency, 400 ‘‘Documents’’ tab and filtered by Office of the Comptroller of the 7th Street SW, suite 3E–218, clicking on the ‘‘Sort By’’ drop-down on Currency, the Board, and the Federal Washington, DC 20219. the right side of the screen or the

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‘‘Refine Results’’ options on the left side (202) 649–6360; or Henry Barkhausen, F. Use of Plain Language of the screen.’’ For assistance with the Counsel, or Daniel Perez, Senior G. OCC Unfunded Mandates Reform Act of Regulations.gov Beta site, please call Attorney, Chief Counsel’s Office, (202) 1995 Determination (877) 378–5457 (toll free) or (703) 454– 649–5490, for persons who are deaf or I. Background 9859 Monday–Friday, 9 a.m.–5 p.m. ET hearing impaired, TTY, (202) 649–5597, The containment measures adopted in or email regulations@ Office of the Comptroller of the response to the public health concerns erulemakinghelpdesk.com. Currency, 400 7th Street SW, have slowed economic activity in many The docket may be viewed after the Washington, DC 20219. countries, including the United States. Board: Anna Lee Hewko, Associate close of the comment period in the same Financial conditions have tightened Director, (202) 530–6360, Constance manner as during the comment period. markedly, sudden disruptions in Board: You may submit comments, Horsley, Deputy Associate Director, financial markets have put increasing identified by Docket No. R–1717; RIN (202) 452–5239, Kathryn Ballintine, liquidity pressure on money market 7100–AF90, by any of the following Manager, (202) 452–2555, Kevin Littler, mutual funds, and the cost of credit has methods: Lead Financial Institution Policy • risen for most borrowers. Given these Agency website: http:// Analyst, (202) 475–6677, Cecily Boggs, liquidity pressures, money market www.federalreserve.gov. Follow the Senior Financial Institution Policy mutual funds have been faced with instructions for submitting comments at Analyst II, (202) 530–6209, Michael redemption requests from clients with http://www.federalreserve.gov/ Ofori-Kuragu, Senior Financial immediate cash needs and may need to generalinfo/foia/ProposedRegs.cfm. Institution Policy Analyst II, (202) 475– sell a significant number of assets to • Email: regs.comments@ 6623, or Christopher Powell, Senior meet such requests, which could further federalreserve.gov. Include docket and Financial Institution Policy Analyst II, increase market pressures. Small RIN numbers in the subject line of the (202) 452–3442, Division of Supervision businesses also are facing severe message. and Regulation; Benjamin McDonough, liquidity constraints, as millions of • Fax: (202) 452–3819 or (202) 452– Assistant General Counsel, (202) 452– Americans have been ordered to stay 3102. 2036, Steve Bowne, Senior Counsel, home, severely reducing their ability to • Mail: Ann E. Misback, Secretary, (202) 452–3900, Jason Shafer, Senior engage in normal commerce, and Board of Governors of the Federal Counsel, (202) 728–5811, Laura Bain, revenue streams for many small Reserve System, 20th Street and Counsel, (202) 736–5546, or Jeffery businesses have collapsed. This has Constitution Avenue NW, Washington, Zhang, Attorney, (202) 736–1968, Legal forced many small businesses to close DC 20551. Division, Board of Governors of the temporarily or furlough employees. All public comments will be made Federal Reserve System, 20th Street and Continued access to financing will be available on the Board’s website at Constitution Avenue NW, Washington, crucial for small businesses to weather http://www.federalreserve.gov/ DC 20551. Users of Telecommunication economic disruptions caused by the generalinfo/foia/ProposedRegs.cfm as Device for Deaf (TDD) only, call (202) containment measures adopted in submitted, unless modified for technical 263–4869. response to the public health concerns reasons or to remove personally FDIC: Bobby R. Bean, Associate and, ultimately, to help restore identifiable information at the Director, [email protected]; Irina Leonova, economic activity. commenter’s request. Accordingly, Acting Chief, Capital Markets Strategies In order to prevent the disruption in comments will not be edited to remove Section, [email protected]; Eric the money markets from destabilizing any identifying or contact information. Schatten, Senior Policy Analyst, the financial system, the Board of For security reasons, the Board requires [email protected]; Andrew Governors of the Federal Reserve that visitors make an appointment to Carayiannis, Senior Policy Analyst, System (Board), with the approval of the inspect comments. You may do so by [email protected]; capitalmarkets@ Secretary of the Treasury, authorized calling (202) 452–3684. fdic.gov; Capital Markets Branch, the Federal Reserve Bank of Boston to FDIC: You may submit comments, Division of Risk Management establish the Money Market Mutual identified by RIN 3064–AF51, by any of Supervision, (202) 898–6888; or Fund Liquidity Facility (MMLF), the following methods: Suzanne Dawley, Counsel, sudawley@ pursuant to section 13(3) of the Federal • Agency website: https:// fdic.gov; Gregory Feder, Counsel, Reserve Act.1 Under the MMLF, the www.fdic.gov/regulations/laws/federal. [email protected]; Andrew B. Williams II, Federal Reserve Bank of Boston extends Follow instructions for submitting Counsel, [email protected]; non-recourse loans to eligible borrowers comments on the Agency website. Supervision and Legislation Branch, to purchase assets from money market • Email: [email protected]. Legal Division, Federal Deposit mutual funds (MMFs). Assets purchased Include ‘‘RIN 3064–AF51’’ on the Insurance Corporation, 550 17th Street from MMFs are posted as collateral to subject line of the message. NW, Washington, DC 20429. For the the Federal Reserve Bank of Boston • Mail: Robert E. Feldman, Executive hearing impaired only, (MMLF collateral). Eligible borrowers Secretary, Attention: Comments/RIN Telecommunication Device for the Deaf under the MMLF include certain 3064–AF51, Federal Deposit Insurance (TDD), (800) 925–4618. banking organizations subject to the Corporation, 550 17th Street NW, SUPPLEMENTARY INFORMATION: Liquidity Coverage Ratio (LCR) rule Washington, DC 20429. (covered companies) issued by the • Hand Delivered/Courier: Comments Table of Contents Office of the Comptroller of the may be hand-delivered to the guard I. Background Currency (OCC), the Board, and the station at the rear of the 550 17th Street II. The Interim Final Rule Federal Deposit Insurance Corporation NW, building (located on F Street) on III. Administrative Law Matters (FDIC) (together, the agencies).2 MMLF business days between 7:00 a.m. and A. Administrative Procedure Act collateral generally comprises securities 5:00 p.m. B. Congressional Review Act C. Paperwork Reduction Act 1 12 U.S.C. 343(3). FOR FURTHER INFORMATION CONTACT: D. Regulatory Flexibility Act 2 The applicability of the LCR rule is described in OCC: James Weinberger, Technical E. Riegle Community Development and § __.1 of the rule. See 12 CFR 50.1 (OCC); 12 CFR Expert, Treasury & Market Risk Policy, Regulatory Improvement Act of 1994 249.1 (Board); and 12 CFR 329.1 (FDIC).

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and other assets with the same maturity II. The Interim Final Rule Under the terms of the MMLF and date as the MMLF non-recourse loan. PPPLF, covered companies use the A. LCR Treatment of MMLF and PPPLF value of cash received from posted or In order to provide liquidity to small Funding business lenders and the broader credit pledged assets to repay the MMLF or The agencies’ LCR rule requires markets, and to help stabilize the PPPLF loan, respectively, and in no case covered companies to calculate and is the maturity of the collateral shorter financial system, the Board, with the maintain an amount of high-quality than the maturity of the advance. In approval of the Secretary of the liquid assets (HQLA) sufficient to cover addition, because the advance from the Treasury, authorized each of the Federal their total net cash outflows over a 30- Federal Reserve Bank is non-recourse, Reserve Banks to extend credit under day stress period. A covered company’s the banking organization is not exposed the Paycheck Protection Program LCR is the ratio of its HQLA amount to credit or market risk from the Liquidity Facility (PPPLF), pursuant to (LCR numerator) divided by its total net collateral securing the MMLF or PPPLF section 13(3) of the Federal Reserve cash outflows (LCR denominator). The loan that could otherwise affect the Act.3 Under the PPPLF, each of the total net cash outflow amount is banking organization’s ability to settle Federal Reserve Banks extends non- calculated as the difference between the loan. For these reasons, the agencies recourse loans to institutions that are outflow and inflow amounts, which are believe that it is appropriate to provide eligible to make Paycheck Protection determined by applying a standardized predictable and consistent treatment for Program (PPP) covered loans,4 including set of outflow and inflow rates to the participation in the MMLF and PPPLF depository institutions subject to the cash flows of various assets and by neutralizing the effects of agencies’ LCR rule. Under the PPPLF, liabilities, together with off-balance participation in the MMLF and the only PPP covered loans that are sheet items, as specified in §§ __.32 and PPPLF on covered companies’ LCRs. guaranteed by the SBA under the PPP __.33 of the LCR rule.6 Absent this interim final rule, the with respect to both principal and Absent the interim final rule, under agencies believe that the treatment of interest and that are originated by an the LCR rule, covered companies would covered companies’ transactions with eligible institution may be pledged as be required to recognize outflows for the MMLF and PPPLF under the LCR collateral to the Federal Reserve Banks MMLF and PPPLF loans with a rule would not be consistent across (PPPLF collateral). The maturity date of remaining maturity of 30 days or less transactions or facilities and would not the extension of credit under the PPPLF and inflows for certain assets securing accurately reflect the liquidity risk the MMLF and PPPLF loans. As a result, equals the maturity date of the PPP associated with funding exposures a covered company’s participation in loans pledged to secure the extension of through these facilities. the MMLF or PPPLF could affect its credit.5 Specifically, the interim final rule total net cash outflows, which could adds a new definition to § __.3 and a To facilitate the use of the MMLF and potentially result in an inconsistent, new § __.34 to the LCR rule. In § __.3, PPPLF, the agencies are adopting this unpredictable, and more volatile the new definition ‘‘Covered Federal interim final rule, which requires calculation of LCR requirements across Reserve Facility Funding’’ means a non- covered companies to neutralize the covered companies. recourse loan that is extended as part of LCR effects of the advances made by Under the LCR rule, secured loans the Money Market Mutual Fund each facility and the exposures securing from a Federal Reserve facility with a Liquidity Facility or Paycheck such facility advances. remaining maturity of 30 calendar days Protection Program Liquidity Facility or less are categorized as secured authorized by the Board of Governors of funding transactions with a sovereign the Federal Reserve System pursuant to 3 12 U.S.C. 343(3). entity and assigned an outflow rate that 4 Congress created the PPP as part of the section 13(3) of the Federal Reserve Act. varies based on the collateral securing The new § __.34 requires Covered Coronavirus Aid, Relief, and Economic Security Act the loan.7 In addition, the LCR rule (CARES Act) and in recognition of the exigent Federal Reserve Facility Funding and circumstances faced by small businesses. PPP assigns inflow rates to collateral the assets securing such funding to be covered loans are fully guaranteed as to principal generally based on the asset and excluded from the calculation of a and accrued interest by the Small Business counterparty type.8 As a result of the covered company’s total net cash Administration (SBA) and also afford borrower applicable inflow and outflow rates in outflow amount as calculated under forgiveness up to the principal amount of the PPP the LCR rule, MMLF and PPPLF § __.30 of the LCR rule, notwithstanding covered loan, if the proceeds of the PPP covered transactions could receive a non-neutral any other section of the LCR rule. loan are used for certain expenses. Under the PPP, liquidity risk treatment. Moreover, after eligible borrowers generally include businesses Except as described below, this new with fewer than 500 employees or that are these loans are extended and upon their section excludes advances made by a otherwise considered to be small by the SBA. The maturity, the associated inflows and Federal Reserve Bank under the MMLF SBA reimburses PPP lenders for any amount of a outflows could unnecessarily contribute or the PPPLF from being assigned an PPP covered loan that is forgiven. PPP lenders are to volatility in LCRs. outflow rate under § __.32 of the LCR not held liable for any representations made by PPP rule, and any collateral securing such an borrowers in connection with a borrower’s request 6 __ Section .30 of the LCR rule also requires a advance from being assigned an inflow for PPP covered loan forgiveness. For more covered company, as applicable, to include in its __ information on the Paycheck Protection Program, total net cash outflow amount a maturity mismatch rate under § .33 of the LCR rule. While see https://www.sba.gov/funding-programs/loans/ add-on, which is calculated as the difference (if this treatment would neutralize the coronavirus-relief-options/paycheck-protection- greater than zero) between the covered company’s effect of the use of the facilities on a program-ppp. largest net cumulative maturity outflow amount for any of the 30 calendar days following the covered company’s LCR for the duration 5 The maturity date of the PPPLF’s loan will be calculation date and the net day 30 cumulative of the facility, banking organizations accelerated if the underlying PPP loan goes into maturity outflow amount. See 12 CFR 50.30 (OCC); should be mindful of the need, where default and the eligible borrower sells the PPP Loan 12 CFR 249.30 (Board); and 12 CFR 329.30 (FDIC). applicable, to replace maturing Covered to the Small Business Administration (SBA) to 7 See 12 CFR 50.32(j)(1)(i)–(iii) (OCC); 12 CFR Federal Reserve Facility Funding with realize the SBA guarantee. The maturity date of the 249.32(j)(1)(i)–(iii) (Board); and 12 CFR PPPLF’s loan also will be accelerated to the extent 329.32(j)(1)(i)–(iii) (FDIC). appropriate alternative sources in of any PPP loan forgiveness reimbursement 8 See 12 CFR 50.33 (OCC); 12 CFR 249.33 (Board); instances where exposures mature later received by the eligible borrower from the SBA. and 12 CFR 329.33 (FDIC). than such funding.

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This new § __.34 does not apply to the notice and the opportunity for public banking organizations may be restricted extent the covered company secures comment are not required with respect in their ability to use the MMLF and Covered Federal Reserve Facility to a rulemaking when an ‘‘agency for PPPLF due to potential effects on their Funding with securities, debt good cause finds (and incorporates the LCRs. The urgent funding pressures obligations, or other instruments issued finding and a brief statement of reasons facing small businesses and MMFs by the covered company or its therefor in the rules issued) that notice justify the adoption of this interim final consolidated entity. When a covered and public procedure thereon are rule as quickly as possible. For these company owns an instrument that it or impracticable, unnecessary, or contrary reasons, the agencies find that there is its consolidated entity issued, the to the public interest.’’ 11 good cause consistent with the public covered company will not record a The agencies believe that the public interest to issue the interim final rule payment upon the instrument’s interest is best served by implementing without advance notice and comment.12 maturity. The covered company would the interim final rule immediately upon The APA also requires a 30-day not receive a payment from outside the publication in the Federal Register. As delayed effective date, except for (1) consolidated covered company upon discussed above, the containment substantive rules that grant or recognize maturity or settlement of the collateral measures adopted in response to the an exemption or relieve a restriction; (2) that would be available to repay the public health concerns have slowed interpretative rules and statements of borrowing (Covered Federal Reserve economic activity in many countries, policy; or (3) as otherwise provided by Facility Funding), and, as a result, this including the United States. In the agency for good cause.13 For the arrangement presents liquidity risk due particular, these containment measures good cause described above, the interim to the asymmetric cash flows of the have acutely affected small businesses, final rule is exempt from the APA’s covered company because the covered MMFs, and financial markets generally. delayed effective date requirement.14 company would not have an inflow to Significantly tighter financial While the agencies believe that there offset its cash outflows.9 It would, conditions and the increased cost of is good cause to issue the interim final therefore, be inappropriate to neutralize credit for most borrowers have severely rule without advance notice and the impact of such a funding transaction affected small businesses. As millions of comment and with an immediate under the LCR rule. The agencies seek Americans have been ordered to stay effective date, the agencies are comment on this provision and all home, severely reducing their ability to interested in the views of the public and aspects of the interim final rule. engage in normal commerce, revenue request comment on all aspects of the Question 1: The agencies invite streams for many small businesses have interim final rule. collapsed. This has resulted in severe comment on the advantages and B. Congressional Review Act disadvantages of neutralizing the effects liquidity constraints at small businesses of participating in the MMLF and PPPLF and has forced many small businesses to For purposes of Congressional Review close temporarily or furlough in the LCR rule. Act (CRA), the Office of Management employees. Continued access to Question 2: How well does the and Budget (OMB) makes a financing will be crucial for small approach in the interim final rule determination as to whether a final rule businesses to weather economic 15 support the objectives of the facilities? constitutes a ‘‘major’’ rule. If a rule is disruptions caused by the containment Question 3: What are the advantages deemed a ‘‘major rule’’ by the OMB, the measures adopted in response to the and disadvantages of extending this CRA generally provides that the rule public health concerns and, ultimately, treatment to any other facilities created may not take effect until at least 60 days to help restore economic activity. following its publication.16 pursuant to section 13(3) of the Federal Additionally, sudden disruptions in Reserve Act in which covered company The CRA defines a ‘‘major rule’’ as financial markets have put increasing any rule that the Administrator of the exposures are pledged as collateral for liquidity pressure on MMFs. Given non-recourse, maturity-matched Office of Information and Regulatory these pressures, MMFs have been faced Affairs of the OMB finds has resulted in advances? with increased redemption requests Question 4: What are the advantages or is likely to result in (1) an annual from clients with immediate cash needs. effect on the economy of $100,000,000 and disadvantages of excluding from The MMFs may need to sell a significant or more; (2) a major increase in costs or this treatment Covered Federal Reserve number of assets to meet these prices for consumers, individual Facility Funding that is secured by redemption requests, which could industries, Federal, State, or local instruments issued by a covered further increase market pressures. government agencies or geographic company or any of its consolidated In order to provide liquidity to regions; or (3) significant adverse effects entities? banking organizations that lend to small on competition, employment, business and the broader credit markets, III. Administrative Law Matters investment, productivity, innovation, or and to prevent the disruption in the on the ability of United States-based A. Administrative Procedure Act money markets from destabilizing the enterprises to compete with foreign- financial system, the Board, with The agencies are issuing the interim based enterprises in domestic and approval of the Secretary of the final rule without prior notice and the export markets.17 Treasury, authorized each of the Federal opportunity for public comment and the For the same reasons set forth above, Reserve Banks to extend credit under delayed effective date ordinarily the agencies are adopting the interim the PPPLF and the Federal Reserve Bank prescribed by the Administrative final rule without the delayed effective 10 of Boston to establish the MMLF. This Procedure Act (APA). Pursuant to date generally prescribed under the interim final rule will provide certainty section 553(b)(B) of the APA, general CRA. The delayed effective date to covered companies regarding the 9 The covered company would not record a liquidity treatment of inflows and 12 5 U.S.C. 553(b)(B). payment to itself in the amount owed for the outflows related to these Federal 13 instrument issued by the covered company or its 5 U.S.C. 553(d). Reserve lending programs. In the 14 consolidated entity; this would be eliminated in the 5 U.S.C. 553(d)(1). process of consolidating the covered company’s absence of this interim final rule, 15 5 U.S.C. 801 et seq. financial statements. 16 5 U.S.C. 801(a)(3). 10 5 U.S.C. 553. 11 5 U.S.C. 553(b)(B). 17 5 U.S.C. 804(2).

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required by the CRA does not apply to being reviewed under authority management area and provide timely any rule for which an agency for good delegated by the OMB under the PRA. information on firm-specific liquidity cause finds (and incorporates the Comments are invited on the following: risks during periods of stress. Analyses finding and a brief statement of reasons a. Whether the collection of of systemic and idiosyncratic liquidity therefor in the rule issued) that notice information in the interim final rule is risk issues are then used to inform the and public procedure thereon are necessary for the proper performance of Board’s supervisory processes, impracticable, unnecessary, or contrary the Board’s functions, including including the preparation of analytical to the public interest.18 In light of whether the information has practical reports that detail funding current market uncertainty, the agencies utility; vulnerabilities. believe that delaying the effective date b. The accuracy of the Board’s Legal authorization and of the rule would be contrary to the estimate of the burden of the proposed confidentiality: The FR 2052a is public interest. information collection in the interim authorized pursuant to section 5 of the As required by the CRA, the agencies final rule, including the validity of the Bank Holding Company Act (12 U.S.C. will submit the interim final rule and methodology and assumptions used; 1844), section 8 of the International other appropriate reports to Congress c. Ways to enhance the quality, Banking Act (12 U.S.C. 3106), section and the Government Accountability utility, and clarity of the information to 165 of the Dodd-Frank Wall Street Office for review. be collected; Reform and Consumer Protection Act (Dodd-Frank Act) (12 U.S.C. 5365), and C. Paperwork Reduction Act d. Ways to minimize the burden of information collection on respondents, section 10 of the Home Owners’ Loan The Paperwork Reduction Act of 1995 including through the use of automated Act (12 U.S.C. 1467(a)) and is (PRA) states that no agency may collection techniques or other forms of mandatory. Section 5(c) of the Bank conduct or sponsor, nor is the information technology; and Holding Company Act authorizes the respondent required to respond to, an e. Estimates of capital or startup costs Board to require BHCs to submit reports information collection unless it displays and costs of operation, maintenance, to the Board regarding their financial a currently valid OMB control and purchase of services to provide condition. Section 8(a) of the number.19 This interim final rule does information. International Banking Act subjects FBOs not introduce any new information Comments must be submitted on or to the provisions of the Bank Holding collections or revise any existing before July 6, 2020. At the end of the Company Act. Section 165 of the Dodd- information collections pursuant to the comment period, the comments and Frank Act requires the Board to PRA for the OCC or the FDIC. Therefore, recommendations received will be establish prudential standards for no submissions will be made by the analyzed to determine the extent to certain BHCs and FBOs, which include OCC or the FDIC to OMB for review. which the Board should modify the liquidity requirements. Section 10(g) of The interim final rule does, however, information collection. the Home Owners’ Loan Act authorizes affect the Board’s current information the Board to collect reports from SLHCs. collection for the Complex Institution Approval Under OMB Delegated Financial institution information Liquidity Monitoring Report (FR 2052a; Authority of the Temporary Revision of, required by the FR 2052a is collected as OMB No. 7100–0361). The Board has and Proposal To Extend for Three Years, part of the Board’s supervisory process. reviewed the interim final rule pursuant With Revision, the Following Therefore, such information is entitled to authority delegated by OMB. Information Collection to confidential treatment under The Board has temporarily revised the Report title: Complex Institution Exemption 8 of the Freedom of reporting form and instructions for the Liquidity Monitoring Report. Information Act (FOIA) (5 U.S.C. FR 2052a to reflect the changes made in Agency form number: FR 2052a. 552(b)(8)). In addition, the institution this interim final rule. On June 15, 1984, OMB control number: 7100–0361. information provided by each OMB delegated to the Board authority Effective date: May 6, 2020. respondent would not be otherwise under the PRA to approve a temporary Frequency: Monthly, and each available to the public and its disclosure revision to a collection of information business day (daily). could cause substantial competitive without providing opportunity for Affected public: Businesses or other harm. Accordingly, it is entitled to public comment if the Board determines for-profit. confidential treatment under the that a change in an existing collection Respondents: U.S. bank holding authority of exemption 4 of the FOIA (5 must be instituted quickly and that companies (BHCs), U.S. savings and U.S.C. 552(b)(4)), which protects from public participation in the approval loan holding companies (SLHCs), and disclosure trade secrets and commercial process would defeat the purpose of the foreign banking organizations (FBOs) or financial information. collection or substantially interfere with with U.S. assets. Current actions: The Board has the Board’s ability to perform its Estimated number of respondents: temporarily revised the reporting form statutory obligation. Monthly, 26; daily, 16. and instructions of the FR 2052a to The Board’s delegated authority Estimated average hours per response: incorporate the interim final rule. requires that the Board, after Monthly, 120; daily, 220. Specifically, the Board has added: (1) temporarily approving a collection, Estimated annual burden hours: The sub-product value of ‘‘Covered solicit public comment on a proposal to 917,440. Federal Reserve Facility Funding’’ to the extend the temporary collection for a General description of report: The product O.S.6: Exceptional Central Bank period not to exceed three years. Board uses the FR 2052a to monitor the Operations and a corresponding Therefore, the Board is inviting overall liquidity profile of supervised instruction to exclude balances reported comment on a proposal to extend the FR institutions. These data provide detailed under this sub-product from the pre- 2052a for three years, with such information on the liquidity risks within existing sub-product of ‘‘Federal revisions. The Board invites public different business lines (e.g., financing Reserve Bank’’; (2) a sentence to the comment on the FR 2052a, which is of securities positions, prime brokerage ‘‘General Guidance’’ paragraphs under activities). In particular, these data serve the I.U: Inflows-Unsecured and I.S: 18 5 U.S.C. 808. as part of the Board’s supervisory Inflows-Secured headings: ‘‘Exclude 19 4 U.S.C. 3501–3521. surveillance program in its liquidity risk assets that secure Covered Federal

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Reserve Facility Funding’’; (3) a E. Riegle Community Development and paragraphing) make the regulation sentence to the definition of product Regulatory Improvement Act of 1994 easier to understand? If so, what I.O.6: Interest and Dividends Pursuant to section 302(a) of the changes to the format would make the Receivable: ‘‘Exclude interest and Riegle Community Development and regulation easier to understand? What dividends receivable on assets securing Regulatory Improvement Act else could we do to make the regulation Covered Federal Reserve Facility (RCDRIA),22 in determining the effective easier to understand? Funding’’; (4) a sentence to the date and administrative compliance G. OCC Unfunded Mandates Reform Act definition of product O.O.19: Interest requirements for new regulations that of 1995 Determination and Dividends Payable: ‘‘Exclude impose additional reporting, disclosure, interest payable on Covered Federal or other requirements on insured As a general matter, the Unfunded Reserve Facility Funding’’; and (5) a depository institutions (IDIs), each Mandates Reform Act of 1995 (UMRA), collateral class of ‘‘L–12’’ representing Federal banking agency must consider, 2 U.S.C. 1531 et seq., requires the loans guaranteed by U.S. Government consistent with the principle of safety preparation of a budgetary impact agencies. and soundness and the public interest, statement before promulgating a rule that includes a Federal mandate that The Board has determined that these any administrative burdens that such regulations would place on depository may result in the expenditure by State, temporary revisions to the FR 2052a local, and tribal governments, in the must be instituted quickly and that institutions, including small depository institutions, and customers of aggregate, or by the private sector, of public participation in the approval depository institutions, as well as the $100 million or more in any one year. process would defeat the purpose of the benefits of such regulations. In addition, However, the UMRA does not apply to collection of information, as delaying section 302(b) of the RCDRIA requires final rules for which a general notice of the revisions would interfere with the new regulations and amendments to proposed rulemaking was not Board’s ability to perform its statutory regulations that impose additional published.25 Therefore, because the duties and would cause public harm if reporting, disclosures, or other new OCC has found good cause to dispense firms were unable to take full advantage requirements on IDIs generally to take with notice and comment for the of the emergency relief provided by the effect on the first day of a calendar interim final rule, the OCC has not MMLF in response to significant quarter that begins on or after the date prepared an economic analysis of the financial industry disruptions from the on which the regulations are published rule under the UMRA. containment measures adopted in in final form, with certain exceptions, List of Subjects response to the public health concerns. including for good cause.23 For the In addition, the Board proposes to reasons described above, the agencies 12 CFR Part 50 extend the FR 2052a for three years with find good cause exists under section 302 Administrative practice and the revisions discussed above. of the RCDRIA to publish the interim procedure, Banks, Banking, Reporting final rule with an immediate effective and recordkeeping requirements, D. Regulatory Flexibility Act date. Savings associations. As such, the interim final rule will be The Regulatory Flexibility Act 12 CFR Part 249 20 effective immediately. Nevertheless, the (RFA) requires an agency to consider agencies seek comment on the RCDRIA. whether the rules it proposes will have Administrative practice and a significant economic impact on a F. Use of Plain Language procedure, Banks, Banking, Holding companies, Reporting and substantial number of small entities.21 Section 722 of the Gramm-Leach- recordkeeping requirements. The RFA applies only to rules for which Bliley Act 24 requires the Federal an agency publishes a general notice of banking agencies to use plain language 12 CFR Part 329 proposed rulemaking pursuant to 5 in all proposed and final rules Administrative practice and U.S.C. 553(b). As discussed previously, published after January 1, 2000. The procedure, Banks, Banking, Reporting consistent with section 553(b)(B) of the agencies have sought to present the and recordkeeping requirements. APA, the agencies have determined for interim final rule in a simple and good cause that general notice and straightforward manner. The agencies DEPARTMENT OF THE TREASURY opportunity for public comment is invite comments on whether there are Office of the Comptroller of the unnecessary, and therefore the agencies additional steps it could take to make Currency are not issuing a notice of proposed the rule easier to understand. For rulemaking. Accordingly, the agencies example: 12 CFR Chapter I have concluded that the RFA’s • Have we organized the material to Authority and Issuance requirements relating to initial and final suit your needs? If not, how could this For the reasons stated in the regulatory flexibility analysis do not material be better organized? • preamble, the Office of the Comptroller apply. Are the requirements in the regulation clearly stated? If not, how of the Currency amends part 50 of Nevertheless, the agencies seek could the regulation be more clearly chapter I of title 12, Code of Federal comment on whether, and the extent to stated? Regulations as follows: which, the interim final rule would • Does the regulation contain PART 50—LIQUIDITY RISK have a significant economic impact on language or jargon that is not clear? If MEASUREMENT STANDARDS a substantial number of small entities. so, which language requires clarification? ■ 1. The authority citation for part 50 20 5 U.S.C. 601 et seq. • Would a different format (grouping 21 continues to read as follows: Under regulations issued by the Small Business and order of sections, use of headings, Administration, a small entity includes a depository Authority: 12 U.S.C. 1 et seq., 93a, 481, institution, bank holding company, or savings and 1818, 1828, and 1462 et seq. loan holding company with total assets of $600 22 12 U.S.C. 4802(a). million or less and trust companies with total assets 23 12 U.S.C. 4802. of $41.5 million or less. See 13 CFR 121.201. 24 12 U.S.C. 4809. 25 See 2 U.S.C. 1532(a).

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■ 2. Amend § 50.3 by adding the PART 249—LIQUIDITY RISK PART 329—LIQUIDITY RISK definition of Covered Federal Reserve MEASUREMENT STANDARDS MEASUREMENT STANDARDS Facility Funding, in alphabetical order, (REGULATION WW) to read as follows: ■ 7. The authority citation for part 329 ■ 4. The authority citation for part 249 continues to read as follows: § 50.3 Definitions. continues to read as follows: Authority: 12 U.S.C. 1815, 1816, 1818, * * * * * Authority: 12 U.S.C. 248(a), 321–338a, 1819, 1828, 1831p–1, 5412. Covered Federal Reserve Facility 481–486, 1467a(g)(1), 1818, 1828, 1831p–1, ■ 8. Amend § 329.3 by redesignating 1831o–1, 1844(b), 5365, 5366, 5368; 12 footnotes 1 and 2 as footnotes 2 and 3 Funding means a non-recourse loan that U.S.C. 3101 et seq. is extended as part of the Money Market and adding the definition of Covered ■ 5. Amend § 249.3 by redesignating Mutual Fund Liquidity Facility or Federal Reserve Facility Funding, in footnotes 1 and 2 as footnotes 2 and 3 alphabetical order, to read as follows: Paycheck Protection Program Liquidity and adding the definition of Covered Facility authorized by the Board of Federal Reserve Facility Funding, in § 329.3 Definitions. Governors of the Federal Reserve alphabetical order, to read as follows: * * * * * System pursuant to section 13(3) of the Covered Federal Reserve Facility Federal Reserve Act.1 § 249.3 Definitions. Funding means a non-recourse loan that * * * * * * * * * * is extended as part of the Money Market Covered Federal Reserve Facility Mutual Fund Liquidity Facility or ■ 3. Add § 50.34 to read as follows: Funding means a non-recourse loan that Paycheck Protection Program Liquidity is extended as part of the Money Market § 50.34 Cash flows related to Covered Facility authorized by the Board of Mutual Fund Liquidity Facility or Federal Reserve Facility Funding. Governors of the Federal Reserve Paycheck Protection Program Liquidity System pursuant to section 13(3) of the (a) Treatment of Covered Federal Facility authorized by the Board Federal Reserve Act.1 Reserve Facility Funding. pursuant to section 13(3) of the Federal * * * * * Reserve Act.1 Notwithstanding any other section of ■ 9. Add § 329.34 to read as follows: this part and except as provided in * * * * * paragraph (b) of this section, outflow ■ 6. Add § 249.34 to read as follows: § 329.34 Cash flows related to Covered amounts and inflow amounts related to Federal Reserve Facility Funding. Covered Federal Reserve Facility § 249.34 Cash flows related to Covered (a) Treatment of Covered Federal Federal Reserve Facility Funding. Funding and the assets securing Reserve Facility Funding. (a) Treatment of Covered Federal Covered Federal Reserve Facility Notwithstanding any other section of Reserve Facility Funding. Funding are excluded from the this part and except as provided in Notwithstanding any other section of paragraph (b) of this section, outflow calculation of a national bank’s or this part and except as provided in Federal savings association’s total net amounts and inflow amounts related to paragraph (b) of this section, outflow Covered Federal Reserve Facility cash outflow amount calculated under amounts and inflow amounts related to Funding and the assets securing § 50.30. Covered Federal Reserve Facility Covered Federal Reserve Facility (b) Exception. To the extent the Funding and the assets securing Funding are excluded from the Covered Federal Reserve Facility Covered Federal Reserve Facility calculation of a FDIC-supervised Funding is secured by securities, debt Funding are excluded from the institution’s total net cash outflow obligations, or other instruments issued calculation of a Board-regulated amount calculated under § 329.30. by the national bank or Federal savings institution’s total net cash outflow (b) Exception. To the extent the association or one of its consolidated amount calculated under § 249.30. Covered Federal Reserve Facility (b) Exception. To the extent the subsidiaries, the Covered Federal Funding is secured by securities, debt Covered Federal Reserve Facility Reserve Facility Funding is not subject obligations, or other instruments issued Funding is secured by securities, debt to paragraph (a) of this section and this by the FDIC-supervised institution or obligations, or other instruments issued one of its consolidated subsidiaries, the outflow amount must be included in the by the Board-regulated institution or national bank’s or Federal savings Covered Federal Reserve Facility one of its consolidated subsidiaries, the Funding is not subject to paragraph (a) association’s total net cash outflow Covered Federal Reserve Facility amount calculated under § 50.30. of this section and this outflow amount Funding is not subject to paragraph (a) must be included in the FDIC- Board of Governors of the Federal of this section and this outflow amount supervised institution’s total net cash Reserve System must be included in the Board-regulated outflow amount calculated under institution’s total net cash outflow § 329.30. 12 CFR Chapter II amount calculated under § 249.30. Brian P. Brooks, Authority and Issuance Federal Deposit Insurance Corporation First Deputy Comptroller of the Currency. For the reasons stated in the 12 CFR Chapter III By order of the Board of Governors of the SUPPLEMENTARY INFORMATION, the Board Authority and Issuance Federal Reserve System. of Governors of the Federal Reserve For the reasons set forth in the joint Ann Misback, System amends 12 CFR chapter II as preamble, chapter III of title 12 of the Secretary of the Board. follows: Code of Federal Regulations is amended Federal Deposit Insurance Corporation. as follows: By order of the Board of Directors.

1 The Money Market Mutual Fund Liquidity 1 The Money Market Mutual Fund Liquidity 1 The Money Market Mutual Fund Liquidity Facility was authorized on March 18, 2020, and the Facility was authorized on March 18, 2020, and the Facility was authorized on March 18, 2020, and the Paycheck Protection Program Liquidity Facility was Paycheck Protection Program Liquidity Facility was Paycheck Protection Program Liquidity Facility was authorized on April 6, 2020. authorized on April 6, 2020. authorized on April 6, 2020.

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Dated at Washington, DC, on or about April 2200 South 216th St., Des Moines, WA. Series 900) airplanes; and all 30, 2020. For information on the availability of Bombardier, Inc., Model CL–600–2C11 Robert E. Feldman, this material at the FAA, call 206–231– (Regional Jet Series 550) airplanes. The Executive Secretary. 3195. It is also available on the internet NPRM published in the Federal [FR Doc. 2020–09716 Filed 5–5–20; 8:45 am] at https://www.regulations.gov by Register on February 18, 2020 (85 FR BILLING CODE 6210–01–P 4810–33–P; 6714–01–P searching for and locating Docket No. 8768). The NPRM was prompted by FAA–2020–0092. reports of fractured rudder primary feel unit shafts; a subsequent investigation Examining the AD Docket DEPARTMENT OF TRANSPORTATION determined that the fractures in the You may examine the AD docket on shafts are consistent with fatigue Federal Aviation Administration the internet at https:// damage. The NPRM proposed to require www.regulations.gov by searching for replacement of the rudder primary feel 14 CFR Part 39 and locating Docket No. FAA–2020– unit shaft. The FAA is issuing this AD 0092; or in person at Docket Operations to address fractures of the rudder [Docket No. FAA–2020–0092; Product between 9 a.m. and 5 p.m., Monday primary feel unit shaft, which could Identifier 2020–NM–001–AD; Amendment through Friday, except Federal holidays. result in a loss of feel in the yaw axis 39–19905; AD 2020–08–13] The AD docket contains this final rule, and thereby impact the controllability of RIN 2120–AA64 any comments received, and other the airplane. See the MCAI for information. The address for Docket additional background information. Airworthiness Directives; Bombardier, Operations is U.S. Department of Comments Inc. Airplanes Transportation, Docket Operations, M– 30, West Building Ground Floor, Room The FAA gave the public the AGENCY: Federal Aviation W12–140, 1200 New Jersey Avenue SE, opportunity to participate in developing Administration (FAA), Department of Washington, DC 20590. this final rule. The FAA has considered Transportation (DOT). FOR FURTHER INFORMATION CONTACT: the comments received. The Air Line ACTION: Final rule. Andrea Jimenez, Aerospace Engineer, Pilots Association, International (ALPA) Airframe and Mechanical Systems and Jacob Yepiz stated support for the SUMMARY: The FAA is adopting a new Section, FAA, New York ACO Branch, NPRM. airworthiness directive (AD) for certain 1600 Stewart Avenue, Suite 410, Bombardier, Inc., Model CL–600–2B19 Conclusion Westbury, NY 11590; telephone 516– (Regional Jet Series 100 & 440) 228–7330; fax 516–794–5531; email 9- The FAA reviewed the relevant data, airplanes, Model CL–600–2C10 [email protected]. considered the comments received, and (Regional Jet Series 700, 701 & 702) SUPPLEMENTARY INFORMATION: determined that air safety and the airplanes, Model CL–600–2D15 public interest require adopting this (Regional Jet Series 705) airplanes, and Discussion final rule as proposed, except for minor Model CL–600–2D24 (Regional Jet Transport Canada Civil Aviation editorial changes. The FAA has Series 900) airplanes; and all (TCCA), which is the aviation authority determined that these minor changes: Bombardier, Inc., Model CL–600–2C11 for Canada, has issued Canadian AD • Are consistent with the intent that (Regional Jet Series 550) airplanes. This CF–2019–42, dated November 8, 2019 was proposed in the NPRM for AD was prompted by reports of (also referred to as the Mandatory addressing the unsafe condition; and fractured rudder primary feel unit Continuing Airworthiness Information, • Do not add any additional burden shafts; a subsequent investigation or ‘‘the MCAI’’), to correct an unsafe upon the public than was already determined that the fractures in the condition for certain Bombardier, Inc., proposed in the NPRM. shafts are consistent with fatigue Model CL–600–2B19 (Regional Jet damage. This AD requires replacement Related Service Information Under 1 Series 100 & 440) airplanes, Model CL– of the rudder primary feel unit shaft. CFR Part 51 600–2C10 (Regional Jet Series 700, 701 The FAA is issuing this AD to address & 702) airplanes, Model CL–600–2D15 Bombardier has issued Service the unsafe condition on these products. (Regional Jet Series 705) airplanes, and Bulletin 601R–27–166, dated April 5, DATES: This AD is effective June 10, Model CL–600–2D24 (Regional Jet 2019; and Service Bulletin 670BA–27– 2020. Series 900) airplanes; and all 075, dated April 5, 2019. This service The Director of the Federal Register Bombardier, Inc., Model CL–600–2C11 information describes procedures for approved the incorporation by reference (Regional Jet Series 550) airplanes. You replacing the rudder primary feel unit of certain publications listed in this AD may examine the MCAI in the AD shaft that has part number 600–90251– as of June 10, 2020. docket on the internet at https:// 1 with a new shaft. These documents ADDRESSES: For service information www.regulations.gov by searching for are distinct since they apply to different identified in this final rule, contact and locating Docket No. FAA–2020– airplane models. This service Bombardier, Inc., 400 Coˆte-Vertu Road 0092. information is reasonably available West, Dorval, Que´bec H4S 1Y9, Canada; The FAA issued a notice of proposed because the interested parties have Widebody Customer Response Center rulemaking (NPRM) to amend 14 CFR access to it through their normal course North America toll-free telephone 1– part 39 by adding an AD that would of business or by the means identified 866–538–1247 or direct-dial telephone apply to certain Bombardier, Inc., Model in the ADDRESSES section. 1–514–855–2999; fax 514–855–7401; CL–600–2B19 (Regional Jet Series 100 & email [email protected]; 440) airplanes, Model CL–600–2C10 Costs of Compliance internet http://www.bombardier.com. (Regional Jet Series 700, 701 & 702) The FAA estimates that this AD You may view this service information airplanes, Model CL–600–2D15 affects 1,002 airplanes of U.S. registry. at the FAA, Airworthiness Products (Regional Jet Series 705) airplanes, and The FAA estimates the following costs Section, Operational Safety Branch, Model CL–600–2D24 (Regional Jet to comply with this AD:

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ESTIMATED COSTS FOR REQUIRED ACTIONS

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

18 work-hours × $85 per hour = $1,530 ...... $158 $1,688 $1,691,376

According to the manufacturer, some (1) Is not a ‘‘significant regulatory (S/Ns) 7003 through 7990 inclusive, and S/ or all of the costs of this AD may be action’’ under Executive Order 12866, Ns 8000 and subsequent. covered under warranty, thereby (2) Will not affect intrastate aviation (2) Model CL–600–2C10 (Regional Jet reducing the cost impact on affected in Alaska, and Series 700, 701 & 702) airplanes, S/Ns 10002 individuals. The FAA does not control (3) Will not have a significant through 10347 inclusive. warranty coverage for affected economic impact, positive or negative, (3) Model CL–600–2D15 (Regional Jet individuals. As a result, the FAA has on a substantial number of small entities Series 705) airplanes and Model CL–600– included all known costs in our cost under the criteria of the Regulatory 2D24 (Regional Jet Series 900) airplanes, S/ estimate. Flexibility Act. Ns 15001 through 15469 inclusive. (4) Model CL–600–2C11 (Regional Jet List of Subjects in 14 CFR Part 39 Authority for This Rulemaking Series 550) airplanes, all serial numbers. Title 49 of the United States Code Air transportation, Aircraft, Aviation (d) Subject specifies the FAA’s authority to issue safety, Incorporation by reference, rules on aviation safety. Subtitle I, Safety. Air Transport Association (ATA) of America Code 27, Flight controls. section 106, describes the authority of Adoption of the Amendment the FAA Administrator. Subtitle VII: (e) Reason Aviation Programs, describes in more Accordingly, under the authority detail the scope of the Agency’s delegated to me by the Administrator, This AD was prompted by reports of authority. the FAA amends 14 CFR part 39 as fractured rudder primary feel unit shafts; a The FAA is issuing this rulemaking follows: subsequent investigation determined that the under the authority described in fractures in the shafts are consistent with PART 39—AIRWORTHINESS Subtitle VII, Part A, Subpart III, Section fatigue damage. The FAA is issuing this AD DIRECTIVES 44701: ‘‘General requirements.’’ Under to address fractures of the rudder primary that section, Congress charges the FAA feel unit shaft, which could result in a loss ■ 1. The authority citation for part 39 of feel in the yaw axis and thereby impact the with promoting safe flight of civil continues to read as follows: aircraft in air commerce by prescribing controllability of the airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. regulations for practices, methods, and (f) Compliance procedures the Administrator finds § 39.13 [Amended] Comply with this AD within the necessary for safety in air commerce. ■ 2. The FAA amends § 39.13 by adding compliance times specified, unless already This regulation is within the scope of done. that authority because it addresses an the following new airworthiness unsafe condition that is likely to exist or directive (AD): (g) Replacement develop on products identified in this 2020–08–13 Bombardier, Inc.: Amendment Within the compliance times specified in rulemaking action. 39–19905; Docket No. FAA–2020–0092; figure (1) to paragraph (g) of this AD: Replace Product Identifier 2020–NM–001–AD. Regulatory Findings all rudder primary feel unit shafts that have (a) Effective Date part number (P/N) 600–90251–1 with a new This AD will not have federalism This AD is effective June 10, 2020. shaft, in accordance with the implications under Executive Order Accomplishment Instructions of the 13132. This AD will not have a (b) Affected ADs Bombardier Service Bulletin 601R–27–166, substantial direct effect on the States, on None. dated April 5, 2019; or Bombardier Service the relationship between the national (c) Applicability Bulletin 670BA–27–075, dated April 5, 2019; government and the States, or on the as applicable. For Model CL–600–2C11 This AD applies to Bombardier, Inc. distribution of power and airplanes, certificated in any category, as (Regional Jet Series 550) airplanes, do the responsibilities among the various specified in paragraphs (c)(1) through (4) of replacement in accordance with the levels of government. this AD. Accomplishment Instructions of Bombardier For the reasons discussed above, I (1) Model CL–600–2B19 (Regional Jet Service Bulletin 670BA–27–075, dated April certify that this AD: Series 100 & 440) airplanes, serial numbers 5, 2019.

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(h) Parts Installation Prohibition the DAO, the approval must include the 866–538–1247 or direct-dial telephone 1– As of the effective date of this AD, no DAO-authorized signature. 514–855–2999; fax 514–855–7401; email person may install a rudder primary feel unit (j) Related Information [email protected]; internet http:// shaft, P/N 600–90251–1, on any airplane. www.bombardier.com. (1) Refer to Mandatory Continuing (4) You may view this service information (i) Other FAA AD Provisions Airworthiness Information (MCAI) Canadian AD CF–2019–42, dated November 8, 2019, at the FAA, Airworthiness Products Section, The following provisions also apply to this for related information. This MCAI may be Operational Safety Branch, 2200 South 216th AD: found in the AD docket on the internet at St., Des Moines, WA. For information on the (1) Alternative Methods of Compliance https://www.regulations.gov by searching for availability of this material at the FAA, call (AMOCs): The Manager, New York ACO and locating Docket No. FAA–2020–0092. 206–231–3195. Branch, FAA, has the authority to approve (2) For more information about this AD, (5) You may view this service information AMOCs for this AD, if requested using the contact Andrea Jimenez, Aerospace Engineer, that is incorporated by reference at the procedures found in 14 CFR 39.19. In Airframe and Mechanical Systems Section, accordance with 14 CFR 39.19, send your National Archives and Records FAA, New York ACO Branch, 1600 Stewart Administration (NARA). For information on request to your principal inspector or local Avenue, Suite 410, Westbury, NY 11590; the availability of this material at NARA, Flight Standards District Office, as telephone 516–228–7330; fax 516–794–5531; appropriate. If sending information directly email [email protected]. email [email protected], or go to: https:// to the manager of the certification office, www.archives.gov/federal-register/cfr/ibr- send it to ATTN: Program Manager, (k) Material Incorporated by Reference locations.html. Continuing Operational Safety, FAA, New (1) The Director of the Federal Register Issued on April 20, 2020. York ACO Branch, 1600 Stewart Avenue, approved the incorporation by reference Suite 410, Westbury, NY 11590; telephone (IBR) of the service information listed in this Gaetano A. Sciortino, 516–228–7300; fax 516–794–5531. Before paragraph under 5 U.S.C. 552(a) and 1 CFR Deputy Director for Strategic Initiatives, using any approved AMOC, notify your part 51. Compliance & Airworthiness Division, appropriate principal inspector, or lacking a (2) You must use this service information Aircraft Certification Service. principal inspector, the manager of the local as applicable to do the actions required by [FR Doc. 2020–09663 Filed 5–5–20; 8:45 am] flight standards district office/certificate this AD, unless this AD specifies otherwise. holding district office. (i) Bombardier Service Bulletin 601R–27– BILLING CODE 4910–13–P (2) Contacting the Manufacturer: For any 166, dated April 5, 2019. requirement in this AD to obtain instructions (ii) Bombardier Service Bulletin 670BA– from a manufacturer, the instructions must 27–075, dated April 5, 2019. be accomplished using a method approved (3) For service information identified in by the Manager, New York ACO Branch, this AD, contact Bombardier, Inc., 400 Coˆte- FAA; or Transport Canada Civil Aviation Vertu Road West, Dorval, Que´bec H4S 1Y9, (TCCA); or Bombardier, Inc.’s TCCA Design Canada; Widebody Customer Response Approval Organization (DAO). If approved by Center North America toll-free telephone 1–

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DEPARTMENT OF TRANSPORTATION 216th Street, Des Moines, WA 98198; The Rule telephone (206) 231–3695. This amendment to Title 14 Code of Federal Aviation Administration SUPPLEMENTARY INFORMATION: Federal Regulations (14 CFR) part 71 revokes the Class E airspace at Sloulin 14 CFR Part 71 Authority for This Rulemaking Field International Airport at Williston The FAA’s authority to issue rules ND, due to the airport’s closure. [Docket No. FAA–2019–1061; Airspace regarding aviation safety is found in Docket No. 20–AGL–06] This action also amends Class E Title 49 of the United States Code. airspace at Williston Basin International RIN 2120–AA66 Subtitle I, Section 106 describes the Airport, Williston, ND. The action authority of the FAA Administrator. establishes Class E airspace, designated Subtitle VII, Aviation Programs, Revocation and Amendment of Class E at a surface area. This area is designed describes in more detail the scope of the Airspace; Williston, ND to provide controlled airspace for agency’s authority. This rulemaking is terminal operations where a control AGENCY: Federal Aviation promulgated under the authority tower is not in operation. This area is Administration (FAA), DOT. described in Subtitle VII, Part A, described as follows: That airspace ACTION: Subpart I, Section 40103. Under that Final rule. extending upward from the surface section, the FAA is charged with within a 4.2-mile radius of the airport, SUMMARY: This action revokes Class E prescribing regulations to assign the use and within 1.3 miles each side of the airspace at Sloulin Field International of airspace necessary to ensure the 135° bearing from the airport, extending Airport, Williston, ND, due to the safety of aircraft and the efficient use of airport’s closure. This action also airspace. This regulation is within the from the 4.2-mile radius to 4.7 miles amends Class E airspace at Williston southeast of the airport, and within 1.3 scope of that authority as it revokes the ° Basin International Airport, Williston, Class E airspace at Sloulin Field miles each side of the 339 bearing from ND. The action establishes Class E International Airport and amends the the airport, extending from the 4.2-mile airspace designated as a surface area. Class E airspace at Williston Basin radius to 4.7 miles north of the Additionally, this action amends Class E International Airport, Williston, ND, to Williston Basin International Airport. Additionally, this action amends the airspace extending upward from 700 ensure the safety and management of Class E airspace extending upward from feet above the surface by adding two Instrument Flight Rules (IFR) operations 700 feet above the surface by adding two extensions, one to the southeast and one at the airport. to the north of the airport. Further, this extensions to the current 6.7-mile radius action adds a Class E airspace area History of the airport. One to the southeast and extending upward from 1,200 feet above The FAA published a notice of one to the north of the airport. This area the surface. Lastly, this action proposed rulemaking in the Federal is designed to accommodate arriving implements an administrative Register (85 FR 12449; March 3, 2020) IFR aircraft descend below 1,500 feet correction to the Class E5 airspace legal for Docket No. FAA–2019–1061 to above the surface and departing IFR description’s text header by updating revoke airspace at Sloulin Field aircraft until reaching 1,200 feet above the airport’s geographic coordinate to International Airport and amend Class E the surface. The area is described as match the FAA’s aeronautical database. airspace at Williston Basin International follows: That airspace extending upward from 700 feet above the surface DATES: Effective 0901 UTC, July 16, Airport, Williston, ND. Interested within a 6.7-mile radius of the airport, 2020. The Director of the Federal parties were invited to participate in and within 3.6 miles each side of the Register approves this incorporation by this rulemaking effort by submitting 132° bearing from the airport, extending reference action under Title 1 Code of written comments on the proposal to the from the 6.7-mile radius to 11.4 miles Federal Regulations part 51, subject to FAA. One comment was received. southeast of the airport, and within 3.6 the annual revision of FAA Order The comment was not germane to the miles each side of the 340° bearing from 7400.11 and publication of conforming proposed airspace action for the the airport, extending from the 6.7-mile amendments. airports. Class E2 and E5 airspace designations radius to 11 miles north of the Williston ADDRESSES: FAA Order 7400.11D, are published in paragraphs 6002 and Basin International Airport. Airspace Designations and Reporting 6005, respectively, of FAA Order Further, this action adds Class E Points, and subsequent amendments can 7400.11D, dated August 8, 2019, and airspace extending upward from 1,200 be viewed online at https:// feet above the surface. This area is _ effective September 15, 2019, which is www.faa.gov//air traffic/publications/. incorporated by reference in 14 CFR designed to accommodate IFR aircraft For further information, you can contact 71.1. The Class E airspace designation transitioning to/from the terminal or en the Airspace Policy Group, Federal listed in this document will be route environments. The area is Aviation Administration, 800 published subsequently in the Order. described as follows: That airspace Independence Avenue SW, Washington, extending upward from 1,200 feet above DC 20591; telephone: (202) 267–8783. Availability and Summary of the surface within a 41-mile radius of The Order is also available for Documents for Incorporation by the Williston Basin International inspection at the National Archives and Reference Airport. Records Administration (NARA). For This document amends FAA Order Lastly, this action implements an information on the availability of FAA 7400.11D, Airspace Designations and administrative correction to the Class E5 Order 7400.11D at NARA, email Reporting Points, dated August 8, 2019, airspace legal description’s text header [email protected] or go to https:// and effective September 15, 2019. FAA by updating the airport’s geographic www.archives.gov/federal-register/cfr/ Order 7400.11D is publicly available as coordinate to match the FAA’s ibr-locations.html. listed in the ADDRESSES section of this aeronautical database. The coordinates FOR FURTHER INFORMATION CONTACT: document. FAA Order 7400.11D lists read: lat. 48°15′39″ N, long. 103°45′04″ Matthew Van Der Wal, Federal Aviation Class A, B, C, D, and E airspace areas, W. Administration, Western Service Center, air traffic service routes, and reporting FAA Order 7400.11, Airspace Operations Support Group, 2200 S points. Designations and Reporting Points, is

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published yearly and effective on Paragraph 6002 Class E Airspace Areas on January 30, 2020, amending the Class September 15. Designated as Surface Areas. D airspace at Joe Williams NOLF, * * * * * Meridian, MS; Key Field, Meridian, MS; Regulatory Notices and Analyses AGL ND E2 Williston, ND [Revoked] and NAS Meridian/McCain Field, The FAA has determined that this Meridian, MS; the Class E airspace area regulation only involves an established Williston, Sloulin Field International designated as an extension to Class D body of technical regulations for which Airport, ND (Lat. 48°10′41″ N, long. 103°38′32″ W) airspace at Key Field; and the Class E frequent and routine amendments are airspace extending upward from 700 necessary to keep them operationally AGL ND E2 Williston, ND [New] feet above the surface at Key Field, Joe current, is non-controversial, and Williston Basin International Airport, ND Williams NOLF, and NAS Meridian/ unlikely to result in adverse or negative (Lat. 48°15′39″ N, long. 103°45′04″ W) McCain Field. A cardinal direction was comments. It, therefore: (1) Is not a That airspace extending upward from the inadvertently omitted from the Class E ‘‘significant regulatory action’’ under surface within a 4.2-mile radius of the airspace extending upward from 700 Executive Order 12866; (2) is not a airport, and within 1.3 miles each side of the ° feet above the surface at Key Field. This ‘‘significant rule’’ under DOT 135 bearing from the airport, extending from action corrects that omission. Regulatory Policies and Procedures (44 the 4.2-mile radius to 4.7 miles southeast of DATES: Effective date 0901 UTC, May 21, FR 11034; February 26, 1979); and (3) the airport, and within 1.3 miles each side of ° 2020. The Director of the Federal does not warrant preparation of a the 339 bearing from the airport, extending from the 4.2-mile radius to 4.7 miles north Register approves this incorporation by regulatory evaluation as the anticipated of the Williston Basin International Airport. reference action under Title 1 Code of impact is so minimal. Since this is a Federal Regulations part 51, subject to routine matter that will only affect air Paragraph 6005 Class E Airspace Areas the annual revision of FAA Order traffic procedures and air navigation, it Extending Upward From 700 Feet or More 7400.11 and publication of conforming is certified that this rule, when Above the Surface of the Earth promulgated, would not have a * * * * * amendments. FOR FURTHER INFORMATION CONTACT: significant economic impact on a AGL ND E5 Williston, ND [Revoked] substantial number of small entities Jeffrey Claypool, Federal Aviation Sloulin Field International Airport, ND Administration, Operations Support under the criteria of the Regulatory (Lat. 48°10′41″ N, long. 103°38′32″ W) Flexibility Act. Group, Central Service Center, 10101 AGL ND E5 Williston, ND [Amended] Hillwood Parkway, Fort Worth, TX Environmental Review Williston Basin International Airport, ND 76177; telephone (817) 222–5711. The FAA has determined that this (Lat. 48°15′39″ N, long. 103°45′04″ W) SUPPLEMENTARY INFORMATION: action qualifies for categorical exclusion That airspace extending upward from 700 under the National Environmental feet above the surface within a 6.7-mile History Policy Act in accordance with FAA radius of the airport, and within 3.6 miles The FAA published a final rule in the Order 1050.1F, ‘‘Environmental each side of the 132° bearing from the airport, Federal Register (85 FR 5316; January Impacts: Policies and Procedures,’’ extending from the 6.7-mile radius to 11.4 20, 2020) for FR Doc. 2020–01568 paragraph 5–6.5a. This airspace action miles southeast of the airport, and within 3.6 miles each side of the 340° bearing from the amending the Class D airspace at Joe is not expected to cause any potentially airport, extending from the 6.7-mile radius to Williams NOLF, Meridian, MS; Key significant environmental impacts, and 11 miles north of the airport; and that Field, Meridian, MS; and NAS no extraordinary circumstances exist airspace extending upward from 1,200 feet Meridian/McCain Field, Meridian, MS; that warrant preparation of an above the surface within a 41-mile radius of the Class E airspace area designated as environmental assessment. the Williston Basin International Airport. an extension to Class D airspace at Key List of Subjects in 14 CFR Part 71 Issued in Seattle, Washington, on April 29, Field; and the Class E airspace 2020. extending upward from 700 feet above Airspace, Incorporation by reference, Shawn M. Kozica, the surface at Key Field, Joe Williams Navigation (air). Group Manager, Western Service Center, NOLF, and NAS Meridian/McCain Adoption of the Amendment Operations Support Group. Field. Subsequent to publication, the FAA identified that a cardinal direction In consideration of the foregoing, the [FR Doc. 2020–09591 Filed 5–5–20; 8:45 am] was inadvertently omitted from the Federal Aviation Administration BILLING CODE 4910–13–P Class E airspace extending upward from amends 14 CFR part 71 as follows: 700 feet above the surface at Key Field. PART 71—DESIGNATION OF CLASS A, DEPARTMENT OF TRANSPORTATION This action corrects that error. B, C, D, AND E AIRSPACE AREAS; AIR Class E airspace designations are TRAFFIC SERVICE ROUTES; AND Federal Aviation Administration published in paragraph 6005 of FAA REPORTING POINTS Order 7400.11D dated August 8, 2019, 14 CFR Part 71 and effective September 15, 2019, which ■ 1. The authority citation for 14 CFR [Docket No. FAA–2019–0598; Airspace is incorporated by reference in 14 CFR part 71 continues to read as follows: Docket No. 19–ASO–16] 71.1. The Class E airspace designations Authority: 49 U.S.C. 106(f), 106(g), 40103, listed in this document will be 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, RIN 2120–AA66 subsequently published in the Order. 1959–1963 Comp., p. 389. Amendment of the Class D and Class Correction to Final Rule § 71.1 [Amended] E Airspace; Meridian, MS Accordingly, pursuant to the ■ 2. The incorporation by reference in AGENCY: Federal Aviation authority delegated to me, Amendment 14 CFR 71.1 of FAA Order 7400.11D, Administration (FAA), DOT. of the Class D and Class E Airspace; Airspace Designations and Reporting ACTION: Final rule, correction. Meridian, MS, published in the Federal Points, dated August 8, 2019, and Register of January 30, 2020 (85 FR effective September 15, 2019, is SUMMARY: This action corrects a final 5318), FR Doc. 2019–01568, is corrected amended as follows: rule published in the Federal Register as follows:

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§ 71.1 [Amended] FOR FURTHER INFORMATION CONTACT: Neal applications. In such cases, the fee will ■ On page 5318, column 3, line 12, Kringel, Office of Defense Trade be 3 percent of the total value of all amend to read, ‘‘. . . miles east of the Controls Management, U.S. Department applications or $2,750, whichever is 009°. . .’’ of State, telephone (202) 663–1282, or greater. These measures were informed email [email protected]. by consultations with U.S. industry, in Issued in Fort Worth, Texas, on April 27, ATTN: Temporary Fee Reduction. particular the Defense Trade Advisory 2020. Group, as well as with DDTC’s Steven Phillips, SUPPLEMENTARY INFORMATION: This document serves to inform entities interagency partners in the Departments Acting Manager, Operations Support Group, of Defense and Commerce. This ATO Central Service Center. registered with the Directorate of Defense Trade Controls (DDTC) temporary reduction in fees shall apply [FR Doc. 2020–09479 Filed 5–5–20; 8:45 am] pursuant to ITAR §§ 122.1(a) and only through April 30, 2021, at which BILLING CODE 4910–13–P 129.3(a), of a temporary reduction in time fees for entities in Tiers I and II registration fees charged to entities in will return to the rates that were in Tier I and Tier II and new registrants. effect on April 1, 2020, unless otherwise DEPARTMENT OF STATE (For more information on DDTC extended by a subsequent notification in the Federal Register.1 22 CFR Part 122 registrations, please visit the ‘‘Conduct Business’’ page then select the Temporary Fee Reduction [Public Notice: 11103] ‘‘Registration’’ tab and the ‘‘Payment of For reasons stated above, the State RIN 1400–AF13 Registration’’ tab of the DDTC website). Department amends the fee payment ITAR § 122.1(a) provides that any schedule referenced in 22 CFR 122.3 International Traffic in Arms person who engages in the United States and posted on the DDTC website as Regulations: Temporary Reduction in in the business of manufacturing or follows: Certain Registration Fees exporting or temporarily importing ‘‘DDTC is temporarily reducing defense articles, or furnishing defense registration fees for DDTC registrants in AGENCY: Department of State. services, is required to register with Tier I and Tier II to $500 for ACTION: Temporary reduction in certain DDTC. ITAR § 129.3(a) further provides registrations whose original expiration fees. that, with limited exceptions, any date is between May 31, 2020 and April regulated person who engages in 30, 2021. Also, DDTC is reducing SUMMARY: The Department of State is brokering activities is required to registration fees to $500 for new making a temporary change in the Tier register with DDTC. ITAR § 122.3 applicants who submit their registration I and Tier II and new registrant payment provides that a person who is required application between May 1, 2020 and guidelines on the Directorate of Defense to register must do so on an annual basis April 30, 2021. All new registrants are Trade Controls (DDTC) website at by submitting a completed Statement of in Tier I in the first year. This will allow www.pmddtc.state.gov. These Registration (form DS–2032) and new registrants and existing registrants guidelines outline the registration fees payment of a fee following the payment in Tiers I and II, the majority of which charged to persons who engage in the guidelines available on the DDTC are small and medium-sized enterprises, United States in the business of website at www.pmddtc.state.gov. to receive a reduced registration fee over manufacturing, exporting, or What is the purpose of this change? the course of the coming year. The fee temporarily importing defense articles, structure for Tier III entities remains furnishing defense services, or who Given the extraordinary impact of the unchanged at this time. We anticipate engage in brokering activities pursuant COVID–19 pandemic on the national that this temporary reduction in fees for to the International Traffic in Arms economy and Defense Industrial Base, Tier I and Tier II and new registrants Regulations (ITAR). This temporary DDTC is temporarily reducing will save regulated industry over $20 change is in the interest of the security registration fees for DDTC registrants in million over the course of the coming and foreign policy of the United States. Tier I and Tier II to $500 for year. The temporary reduction in fees is Further, it is consistent with the March registrations whose original expiration warranted as a result of the exceptional 13, 2020 declaration by President date is between May 31, 2020 and April and undue economic hardship caused Trump of a National Emergency 30, 2021. Also, DDTC is reducing by the public health emergency caused Concerning the Novel Coronavirus registration fees to $500 for new by the COVID–19 pandemic.’’ Disease (COVID–19) Outbreak and is applicants who submit their registration ‘‘This temporary reduction in fees warranted due to the extraordinary application between May 1, 2020 and shall apply only through April 30, 2021, challenges to U.S. defense trade and the April 30, 2021. All new registrants are at which time fees for entities in Tiers health of the Defense Industrial Base as in Tier I in the first year. This will allow I and II will return to the rates that were a result of the exceptional and undue new registrants and existing registrants in effect on April 1, 2020 unless hardships and risks to safety caused by in Tiers I and II—including the many otherwise extended by a subsequent the public health emergency related to small to medium sized enterprises that notice in the Federal Register.’’ COVID–19. This temporary reduction in must register under these tiers—to Regulatory Findings certain fees is intended to help mitigate receive and plan for a reduced the economic impact of the COVID–19 registration fee over the course of the Administrative Procedure Act public health emergency on U.S. coming year. The fee structure for Tier The Department of State is of the Defense Industrial Base and takes into III entities remains unchanged at this opinion that controlling the import and account the operational requirements of time given the higher costs incurred by export of defense articles and defense DDTC that the fees fund. DDTC in processing the volume of services is a military or foreign affairs DATES: The temporary reduction in fees licenses and other relevant submissions function of the United States was effective May 1, 2020, and shall by entities in Tier III. Also, Tier III Government and rules implementing expire on April 30, 2021, unless already has a provision for a reduced fee modified by a subsequent notification in if the fee calculated above is greater 1 Proclamation 9994 of March 13, 2020, 85 FR the Federal Register. than 3 percent of the total value of all 15337 (Mar. 18, 2020).

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this function are exempt from significant but not an economically requirements for shareholders of PFICs section 553 (Rulemaking) and significant rule, under the criteria of to file Form 8621, ‘‘Information Return section 554 (Adjudications) of the Executive Order 12866, and is by a Shareholder of a Passive Foreign Administrative Procedure Act (APA) consistent with the provisions of Investment Company or Qualified pursuant to 5 U.S.C. 553(a)(1). Executive Order 13563. Electing Fund.’’ Regulatory Flexibility Act Executive Order 12988 DATES: These final regulations are effective on and after May 6, 2020, and Since the Department is of the The Department of State has reviewed are applicable on or after December 28, opinion that this rulemaking is exempt this rulemaking in light of sections 3(a) 2016. from the provisions of 5 U.S.C. 553, and 3(b)(2) of Executive Order 12988 to FOR FURTHER INFORMATION CONTACT: there is no requirement for an analysis eliminate ambiguity, minimize Martin V. Franks at (202) 317–5181 (not under the Regulatory Flexibility Act. litigation, establish clear legal a toll-free number). standards, and reduce burden. Unfunded Mandates Reform Act of 1995 SUPPLEMENTARY INFORMATION: Executive Order 13175 This rulemaking does not involve a Background mandate that will result in the The Department of State has expenditure by State, local, and tribal determined that this rulemaking will The final regulations (TD 9806) that governments, in the aggregate, or by the not have tribal implications, will not are the subject of this correction are private sector, of $100 million or more impose substantial direct compliance under sections 1291, 1298, 6038, and in any year and it will not significantly costs on Indian tribal governments, and 6046 of the Internal Revenue Code. or uniquely affect small governments. will not preempt tribal law. Need for correction Therefore, no actions were deemed Accordingly, the requirements of As published December 28, 2016 (81 necessary under the provisions of the Executive Order 13175 do not apply to FR 95459), the final regulations (TD Unfunded Mandates Reform Act of this rulemaking. 9806; FR Doc. 2016–30712) contained 1995. Paperwork Reduction Act errors that needs to be corrected. Small Business Regulatory Enforcement This rulemaking does not impose or List of Subjects in 26 CFR Part 1 Fairness Act of 1996 revise any information collections Income taxes, Reporting and The Department does not believe this subject to 44 U.S.C. Chapter 35. recordkeeping requirements. rulemaking is a major rule under the Executive Order 13771 criteria of 5 U.S.C. 804. Based on the Correction of Publication criteria of 5 U.S.C. 804(2), the This rulemaking is not subject to the Accordingly, 26 CFR part 1 is Department does not believe this requirements of E.O. 13771 since it corrected by making the following rulemaking will have an annual effect relates to a military or foreign affairs correcting amendment: on the economy of $100,000,000 or function of the United States. more. The Department estimates that Zachary A. Parker, PART 1—INCOME TAXES this rulemaking will result in the elimination of approximately Director, Office of Directives Management, ■ 1. The authority citation for part 1 is U.S. Department of State. $20,000,000 in registration fees that amended by removing the entry for otherwise would have been collected by [FR Doc. 2020–09748 Filed 5–5–20; 8:45 am] §§ 1.1291–1T, 1.1291–9, 1.1291–9T, and the Department. BILLING CODE 4710–25–P 1.1298–1T and the entry for § 1.6046–1T to read in part as follows: Executive Orders 12372 and 13132 DEPARTMENT OF THE TREASURY Authority: 26 U.S.C. 7805, unless This rulemaking does not have otherwise noted. sufficient federalism implications to * * * * * require consultations or warrant the Internal Revenue Service preparation of a federalism summary Martin V. Franks, 26 CFR Part 1 impact statement. The regulations Chief, Publications and Regulations Branch, implementing Executive Order 12372 [TD 9806] Legal Processing Division, Associate Chief regarding intergovernmental Counsel (Procedure and Administration). RIN 1545–BK66 consultation on Federal programs and [FR Doc. 2020–08113 Filed 5–5–20; 8:45 am] activities do not apply to this Definitions and Reporting BILLING CODE 4830–01–P rulemaking. Requirements for Shareholders of Executive Orders 12866 and 13563 Passive Foreign Investment Companies; Correcting Amendment NATIONAL ARCHIVES AND RECORDS Executive Orders 12866 and 13563 ADMINISTRATION direct agencies to assess all costs and AGENCY: Internal Revenue Service (IRS), benefits of available regulatory Treasury. 36 CFR Parts 1253 and 1280 alternatives and, if regulation is ACTION: Correcting amendment. necessary, to select regulatory [FDMS No. NARA–20–0005; NARA–2020– 024] approaches that maximize net benefits SUMMARY: This document contains (including potential economic, corrections to Treasury Decision 9806, RIN 3095–AC03 environmental, public health and safety which was published in the Federal effects, distributed impacts, and equity). Register on Wednesday, December 28, NARA Facilities, Locations, Hours, and Executive Order 13563 emphasizes the 2016. Treasury Decision 9806 contained Public Use importance of quantifying both costs final regulations that provided guidance AGENCY: National Archives and Records and benefits, of reducing costs, of on determining ownership of a passive Administration (NARA). harmonizing rules, and of promoting foreign investment company (PFIC) and ACTION: Direct final rule. flexibility. This rulemaking is a on certain annual reporting

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SUMMARY: We are updating our effective after 40 days for good cause as Review Under Executive Order 13132, regulation listing our facility addresses permitted by the Administrative Federalism, 64 FR 43255 (August 4, and contact information to reflect Procedure Act (5 U.S.C. 553(d)(3)). We 1999) changes to this information. We are also believe that a longer standard public Review under Executive Order 13132 revising our regulation on public use of comment period is unnecessary as this requires that agencies review NARA facilities to remove outdated rule makes only minor changes to our regulations for Federalism effects on the procedures, update in response to agency facility regulations and does not institutional interest of states and local organizational and technological change substantive requirements people governments, and, if the effects are changes, and streamline the provisions must follow. sufficiently substantial, prepare a for easier reading. We are also revising Federal assessment to assist senior both regulations for plain language Regulatory Analysis policy makers. This rulemaking will not purposes. Review Under Executive Order 12866, have any effects on state and local DATES: This rule is effective June 15, Regulatory Planning and Review, 58 FR governments within the meaning of the 2020, without further action, unless we 51735 (September 30, 1993), and Executive Order. Therefore, no receive actionable adverse comments by Executive Order 13563, Improving Federalism assessment is required. June 5, 2020. If we receive such Regulation and Regulation Review, 76 Review Under Executive Order 13771, comments, we will publish a FR 23821 (January 18, 2011) Reducing Regulation and Controlling withdrawal of the rule in the Federal Regulatory Costs, 82 FR 9339 (February Register. The Office of Management and Budget 3, 2017) (OMB) has reviewed this rulemaking ADDRESSES: You may submit comments, Review under E.O. 13771 seeks to and determined it is not ‘‘significant’’ identified by RIN 3095–AC03, by either reduce Federal regulations that impose under section 3(f) of Executive Order of the following methods: private expenditures in order to comply • Federal eRulemaking Portal: http:// 12866. It is not significant because it with them, and to control those costs in www.regulations.gov. Follow the site’s consists of administrative and minor any such regulations. OMB has instructions for submitting comments. revisions, involves agency organization reviewed this rulemaking and • Mail (for paper, flash drive, or CD– and management, does not change determined that it is exempt from E.O. ROM submissions. Include RIN 3095– substantive requirements, and imposes 13771 requirements. This rulemaking is AC03 on the submission): National no costs on the public. exempt because it involves agency Archives and Records Administration; Review Under the Regulatory Flexibility organization, management, or Regulation Comments Desk, Suite 4100; Act (5 U.S.C. 601, et seq.) personnel, modifies an existing rule, 8601 Adelphi Road; College Park, MD and does not involve regulatory costs 20740–6001. This review requires an agency to subject to the Executive Order. Instructions: All submissions must prepare an initial regulatory flexibility Review Under the Unfunded Mandates include NARA’s name and the analysis and publish it when the agency regulatory information number for this Reform Act (Sec. 202, Public Law 104– publishes the proposed rule. This 4; 2 U.S.C. 1532) rulemaking (RIN 3095–AC03). We may requirement does not apply if the publish any comments we receive Review under the Unfunded agency certifies that the rulemaking will without changes, including any Mandates Reform Act requires that not, if promulgated, have a significant personal information you include. agencies determine whether any Federal economic impact on a substantial mandate in the rulemaking may result FOR FURTHER INFORMATION CONTACT: number of small entities (5 U.S.C. 603). Kimberly Keravuori, Regulatory and in state, local, and tribal governments, We certify, after review and analysis, in the aggregate, or the private sector, External Policy Program Manager, by that this rulemaking will not have a email at regulation_comments@ expending $100 million in any one year. significant adverse economic impact on nara.gov, or by telephone at NARA certifies that this rulemaking small entities. 301.837.3151. does not contain a Federal mandate that may result in such an expenditure, and SUPPLEMENTARY INFORMATION: We are Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) this rulemaking is therefore not subject updating addresses and contact to this requirement. information for Presidential libraries, This rulemaking does not impose records centers, and archival research List of Subjects additional information collection facilities to reflect changes in requirements on the public that are 36 CFR Part 1253 operations, to add websites and email subject to the Paperwork Reduction Act. addresses and similar technology Archives and records, Federal changes, to update URLs, and similar However, 36 CFR 1280 continues to buildings and facilities, Presidential administrative changes. We are also include three associated information libraries. updating information about public use collections already approved by OMB: 36 CFR Part 1280 3095–0024, request to use Presidential of our facilities to better clarify Archives and records, Federal provisions, including the kinds of library spaces, 3095–0040, request to film, photograph, or videotape, and buildings and facilities, Presidential events for which the public may request libraries. use of our spaces and the difference 3095–0043, request to use NARA For the reasons stated in the between removal and banning if it spaces. Because we are removing several preamble, NARA revises 36 CFR parts becomes necessary to restrict a person’s sections of this regulation and 1253 and 1280 as follows: use. We are streamlining and clarifying reorganizing the provisions to be more ■ rules regarding behavior and removing streamlined, we are submitting a non- 1. Revise part 1253 to read as follows: substantive change request to OMB to outdated provisions regarding requests PART 1253—LOCATION OF NARA change the regulatory section numbers to use space for private events. These FACILITIES AND HOURS OF USE changes will affect all customers who do referred to in the information business with NARA. This rule is collections accordingly. Sec.

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1253.1 National Archives Building in (1) Herbert Hoover Library and Phone number: 800.410.8354 or Washington, DC. Museum. Location: 210 Parkside Drive; 805.577.4000. Website: https:// 1253.2 National Archives at College Park. West Branch, IA 52358. Mailing www.reaganlibrary.gov/. 1253.3 Presidential libraries and museums. address: P.O. Box 488; West Branch, IA (11) George Bush Library and 1253.4 Federal records centers (FRCs). 52358. Email address: hoover.library@ Museum. Location: 1000 George Bush 1253.5 Archival research rooms and Drive West; College Station, TX 77845. facilities outside Washington, DC. nara.gov. Phone number: 319.643.5301. 1253.6 Office of the Federal Register. Website: https://hoover.archives.gov/. Email address: [email protected]. 1253.7 Office of Government Information (2) Franklin D. Roosevelt Library and Phone number: 979.691.4000. Website: Services. Museum. Location: 4079 Albany Post https://www.bush41.org/. 1253.8 The Center for Legislative Archives. Road; Hyde Park, NY 12538–1999. (12) William J. Clinton Library and 1253.9 Notification process for changes in Email address: roosevelt.library@ Museum. Location: 1200 President hours. nara.gov. Phone number: Clinton Avenue; Little Rock, AR 72201. Authority: 44 U.S.C. 2104(a). 800.FDR.VISIT or 845.486.7770. Email address: [email protected]. Website: https://www.fdrlibrary.org/. Phone number: 501.374.4242. Website: § 1253.1 National Archives Building in (3) Harry S. Truman Library and https://www.clintonlibrary.gov/. Washington, DC. Museum. Location: 500 W U.S. Highway (13) George W. Bush Library and (a) The Museum and Rotunda. The 24; Independence, MO 64050–1798. Museum. Location: 2943 SMU entrance to the National Archives Email address: truman.library@ Boulevard; Dallas, TX 75205. Email Museum, including the Rotunda and nara.gov. Phone number: 800.833.1225 address: [email protected]. Charters of Freedom, is on Constitution or 816.268.8200. Website: https:// Phone number: 214.346.1650. Website: Avenue NW, between 7th and 9th www.trumanlibrary.gov/. https://georgewbushlibrary.smu.edu/. Streets. The Museum is open every day (4) Dwight D. Eisenhower Library and (14) Barack Obama Library. Location: except Thanksgiving and December 25. Museum. Location: 200 SE Fourth 2500 W Golf Road; Hoffman Estates, IL Last admission to the Museum is 30 Street; Abilene, KS 67410–2900. Email 60169–1114. Email address: minutes prior to closing. Admission to address: [email protected]. [email protected]. Phone the Museum is free, although you may Phone number: 877.RING.IKE or number: 847.252.5700. Website: https:// make advance reservations online for a 785.263.6700. Website: https:// www.obamalibrary.gov/. service charge. Information on hours www.eisenhowerlibrary.gov/. § 1253.4 Federal records centers (FRCs). and reservations is online at https:// (5) John Fitzgerald Kennedy Library The FRCs are storage facilities and do museum.archives.gov/visit. The phone and Museum. Location: Columbia Point; not operate public research rooms or Boston, MA 02125–3398. Email address: number for Museum information is have public hours. Contact information 202.357.5061. [email protected]. Phone for each Federal records center is online (b) Research. The research entrance is number: 866.JFK.1960 or 617.514.1600. at https://www.archives.gov/ located at 700 Pennsylvania Avenue Website: https://www.jfklibrary.org/. locations#frc and: NW. Research hours are online at (6) Lyndon Baines Johnson Library (a) Atlanta Federal Records Center. https://www.archives.gov/dc. The phone and Museum. Location: 2313 Red River Address: 4712 Southpark Boulevard; number for the National Archives Street; Austin, TX 78705–5702. Email Ellenwood, GA 30294. Phone number: Building is 866.272.6272. address: [email protected]. 404.736.2820. (c) The building’s address is 700 Phone number: 512.721.0200. Website: (b) Boston Federal Records Center. Pennsylvania Avenue NW; Washington, http://www.lbjlibrary.org/. Address: Frederick C. Murphy Federal DC 20408. (7) Richard Nixon Library and Center; 380 Trapelo Road; Waltham, MA Museum. Location: 18001 Yorba Linda § 1253.2 National Archives at College Park. 02452–6399. Phone number: Boulevard; Yorba Linda, CA 92886– 781.663.0130. The National Archives at College Park 3903. Phone number: 714.983.9120. (c) Chicago Federal Records Center. is located at 8601 Adelphi Road; College Email address: [email protected]. Address: 7358 South Pulaski Road; Park, MD 20740–6001. Hours for the Website: https://www.nixonlibrary.gov/ Chicago, IL 60629–5898. Phone number: building (including the Research Center) index.php. 773.948.9000. are online at https://www.archives.gov/ (8) Gerald R. Ford Library and (d) Dayton Federal Records Center. college-park. The phone number for the Museum. (i) Library: Location: 1000 Address: 3150 Springboro Road; building is 301.837.2000 and for the Beal Avenue; Ann Arbor, MI 48109– Moraine, OH 45439. Phone number: Research Center is 800.234.8861. 2114. Email address: ford.library@ 937.425.0600. nara.gov. Phone number: 734.205.0555. (e) Denver Federal Records Center. § 1253.3 Presidential libraries and (ii) Museum: Location: 303 Pearl museums. Address: 17101 Huron Street; Street NW; Grand Rapids, MI 49504– Broomfield, CO 80023–8909. Phone (a) The Presidential library museums 5353. Email address: ford.museum@ number: 303.604.4760. are open every day except nara.gov. Phone number: 616.254.0400. (f) Fort Worth Federal Records Center. Thanksgiving, December 25, and (iii) Website for both library and Address: 1400 John Burgess Drive; Fort January 1. museum: https:// Worth, TX 76140. Phone number: (b) Presidential library research hours www.fordlibrarymuseum.gov. 817.551.2000. vary by library, and research rooms are (9) Jimmy Carter Library and Museum. (g) Kansas City Federal Records not open on weekends or Federal Location: 441 Freedom Parkway; Center. Address: 8600 NE Underground holidays. The Barack Obama Atlanta, GA 30307–1498. Email address: Drive; Pillar 300–G; Kansas City, MO Presidential Library is not open to the [email protected]. Phone number: 64161. Phone number: 816.994.1700. public at this time. 404.865.7100. Website: https:// (h) Kingsridge Federal Records Center. (c) Contact information for each jimmycarterlibrary.gov/. Address: 8801 Kingsridge Drive; library and museum is online at https:// (10) Ronald Reagan Library and Miamisburg, OH 45458. Phone number: www.archives.gov/ Museum. Location: 40 Presidential 937.425.0690. locations#presidential-libraries and Drive; Simi Valley, CA 93065–0699. (i) Lee’s Summit Federal Records listed as follows: Email address: [email protected]. Center. Address: 200 Space Center

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Drive; Lee’s Summit, MO 64064–1182. Broomfield, CO 80023–8909. Email proposing to change public operating Phone number: 816.268.8100. address: [email protected]. hours for research rooms, exhibit areas, (j) Lenexa Federal Records Center. Phone number: 303.604.4740. and museums. Address: 17501 W 98th Street; Lenexa, (e) The National Archives at Fort (b) Proposed changes to operating KS 66219. Phone number: 913.563.7600. Worth. Address: 1400 John Burgess hours for research rooms, exhibit areas, (k) National Personnel Records Drive; Fort Worth, TX 76140. Email and museums must have a documented Center—Military Personnel Records. address: [email protected]. business need for the change. Address: 1 Archives Drive; St Louis, MO Phone number: 817.551.2051. (c) We notify people of the change in 63138. Phone number: 314.801.0582. (f) The National Archives at Kansas operating hours by: (l) National Personnel Records City. Address: 400 West Pershing Road; (1) Posting a notice on http:// Center—Civilian Personnel Records. Kansas City, MO 64108. Email address: www.archives.gov; Address: 1411 Boulder Boulevard; [email protected]. Phone (2) Posting notices in areas visible to Valmeyer, IL 62295. Phone number: number: 816–268–8000. the public in the affected research room, 618.935.3005. (g) The National Archives at New exhibit areas, or museum; (m) Philadelphia Federal Records York City. Address: Alexander Hamilton (3) Issuing a press release, email Center. Address: 14700 Townsend Road; U.S. Customs House; 1 Bowling Green, notification, or other means normally Philadelphia, PA 19154–1096. Phone Room 328; New York, NY 10004–1415. used by that unit to notify the public of number: 215.305.2000. Email: [email protected]. events at their location; and (n) Pittsfield Federal Records Center. Phone number: 212.401.1620. (4) Including justification for the Address: 10 Conte Drive; Pittsfield, MA (h) The National Archives at change in hours in these notices. 01201–8230. Phone number: Philadelphia. Address: 14700 (d) In the event that research rooms, 413.236.3609. Townsend Road; Philadelphia, PA exhibit areas, or museums must make an (o) Riverside Federal Records Center. 19154–1096. Email: emergency change to operating hours for Address: 23123 Cajalco Road; Perris, CA [email protected]. Phone reasons including, but not limited to, 92570–7298. Phone number: number: 215.305.2044. inclement weather, we will provide as 951.956.2000. (i) The National Archives at Riverside. much advance notice to the public as (p) San Bruno Federal Records Center. Address: 23123 Cajalco Road; Perris, CA possible. We will post emergency Address: Leo J. Ryan Building; 1000 92570–7298. Email: riverside.archives@ notifications online at http:// Commodore Drive; San Bruno, CA nara.gov. Phone number: 951.956.2000. www.archives.gov. 94066–2350. Phone number: (j) The National Archives at San ■ 2. Revise part 1280 to read as follows: 650.238.3500. Francisco. Address: Leo J. Ryan (q) Seattle Federal Records Center. Memorial Federal Building; 1000 PART 1280—USE OF NARA Address: 6125 Sand Point Way, NE; Commodore Drive; San Bruno, CA FACILITIES Seattle, WA 98115–7999. Phone 94066–2350. Email: sanbruno.archives@ Sec. number: 206.336.5115. nara.gov. Phone number: 650.238.3501. (r) Washington National Records (k) The National Archives at Seattle. Subpart A—Rules of Conduct on or in NARA Center. Address: 4205 Suitland Road; Address: 6125 Sand Point Way, NE; Property and Facilities Suitland, MD 20746–8001. Phone Seattle, WA 98115–7999. Email address: General Information number: 301.778.1600. [email protected]. Phone 1280.1 NARA facilities and applicable rules number: 206.336.5115. of conduct. § 1253.5 Archival research rooms and (l) The National Archives at St. Louis. 1280.2 Items subject to inspection. facilities outside Washington, DC. Address: 1 Archives Drive; St. Louis, 1280.4 Children under the age of 14. NARA’s research rooms outside MO 63138. Email address: stl.archives@ 1280.6 Service animals. Washington, DC, are closed on all nara.gov. Phone number: 314.801.0850. 1280.8 Driving on NARA property. Federal holidays. Hours and contact 1280.12 Additional rules. § 1253.6 Office of the Federal Register. information for each NARA archival Prohibited Activities Contact information and business research room are online at https:// 1280.14 Weapons and explosives. www.archives.gov/locations#research- hours for the Office of the Federal 1280.16 Illegal drugs and alcohol. facilities and contact information is as Register are online at https:// 1280.18 Gambling. follows: www.archives.gov/federal-register/ 1280.20 Smoking or using alternative (a) The National Archives at Atlanta. contact.htm and codified in 1 CFR 2.3. smoking devices. Address: 5780 Jonesboro Road; Morrow, 1280.22 Distributing or posting materials. GA 30260. Email address: § 1253.7 Office of Government Information 1280.24 Eating and drinking. Services. [email protected]. Phone 1280.26 Soliciting, vending, and debt number: 770.968.2100. The Office of Government Information collecting. (b) The National Archives at Boston. Services’ (OGIS) contact information 1280.28 Other prohibited behavior. 1280.30 Types of corrective action for Address: Frederick C. Murphy Federal and business hours are online at https:// www.archives.gov/ogis. prohibited behavior. Center; 380 Trapelo Road; Waltham, MA 1280.32 Appealing a ban from NARA 02452–6399. Email address: § 1253.8 The Center for Legislative facilities or property. [email protected]. Phone Archives. number: 781.663.0144 or toll-free Subpart B—Rules for Filming, The Center for Legislative Archives’ Photographing, or Videotaping on NARA 866.406.2379. contact information and business hours Property or in NARA Facilities (c) The National Archives at Chicago. are online at https://www.archives.gov/ Address: 7358 South Pulaski Road; 1280.40 Definitions. legislative. 1280.42 When the rules in this subpart Chicago, IL 60629–5898. Email address: apply. [email protected]. Phone § 1253.9 Notification process for changes 1280.44 Filming, photographing, or number: 773.948.9001. in hours. videotaping for commercial purposes. (d) The National Archives at Denver. (a) We follow the notification 1280.46 Filming, photographing, or Address: 17101 Huron Street; procedure in this section when videotaping for personal use.

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1280.48 Applying to film, photograph, or sidewalks, the statues facing property: The Office of the Federal videotape for news purposes. Constitution Avenue, and the other Register (OFR), the Office of 1280.50 What you may film, photograph, or grounds; the steps leading up from the Government Information Services videotape for news purposes. Constitution Avenue sidewalk and the (OGIS), and the Center for Legislative 1280.52 Rules for filming, photographing, or videotaping for news purposes. portico at the top of those steps; the Archives. general public’s entrance to the National (2) In addition to NARA rules Subpart C—Additional Rules for Using Archives Museum on Constitution outlined in this part 1280, you must Public Areas of NARA Property or Facilities Avenue (closer to 9th Street); and the comply with GPO’s rules for the use of 1280.60 Permitting use of public areas. Special Events entrance to the National its property when you are on or using 1280.62 General rules when using public Archives Museum on Constitution NARA facilities located on GPO areas. Avenue (closer to 7th Street). property (currently GPO Directive 1280.64 Requesting to use our public areas. (iii) The National Park Service 1280.66 How we handle requests to use 825.38A, Rules and Regulations public areas. controls the areas on the Pennsylvania Governing Buildings and Grounds). If a 1280.68 Fees for using public areas. Avenue side of the National Archives provision in this part 1280 conflicts 1280.70 Additional rules that apply to Building that are not NARA property. with a GPO provision, comply with the approved events. (2) Other NARA facilities. The GPO provision when on or using NARA following NARA facilities are also Subpart D—Additional Information for facilities on GPO property. Using Specific NARA Property or Facilities located on NARA property: The (e) NARA research room rules. If you National Archives at College Park, in are using records in a NARA research 1280.80 Public areas in the National College Park, MD; the Presidential Archives Building available for events. room in any NARA facility, you must 1280.82 When public areas in the National libraries and museums listed in 36 CFR also comply with the rules in 36 CFR Archives Building are available. 1253.3; and the National Archives at part 1254. If you violate a rule or 1280.84 Using the Rotunda. Atlanta in Morrow, Georgia, listed in 36 regulation in 36 CFR part 1254, you are 1280.86 National Archives at College Park CFR 1253.5(a). subject to the types of corrective action space available for events. (3) Leased NARA facilities. The set forth in that part, including 1280.88 When public areas in the National following NARA facilities are located on Archives at College Park are available. revocation of research privileges. private property leased by NARA: The (f) Violations. If you violate a rule or Authority: 44 U.S.C. 2102 notes, 2104(a), Atlanta Federal Records Center in regulation in this part you are subject to, 2112, 2903. Ellenwood, GA; the National Archives among other types of corrective action, at Riverside and the Riverside Federal removal and banning from the facility. Subpart A—Rules of Conduct on or in Records Center at Perris, CA; the NARA Property and Facilities (g) Closures. The Archivist of the National Archives at Fort Worth and the United States reserves the right to close General Information Fort Worth Federal Records Center at NARA facilities, including those located Fort Worth, TX; and the National on GSA and GPO property, at any time § 1280.1 NARA facilities and applicable Personnel Records Center—Civilian for security reasons, special events, or rules of conduct. Personnel Records in Valmeyer, IL. other NARA business needs. (a) NARA facilities. Some NARA These Federal records centers are listed facilities are located on property the in 36 CFR 1253.4 and archival facilities § 1280.2 Items subject to inspection. United States owns or that is otherwise are listed in 36 CFR 1253.5. We may, at our discretion, inspect under the control of the Archivist of the (c) GSA property. (1) The following packages, briefcases, and other United States (‘‘NARA property’’), other NARA facilities are located on GSA containers in the immediate possession facilities are leased by NARA directly property: All Federal records centers of employees, contractors, and other using authority delegated by the General listed at 36 CFR 1253.4, except the people arriving on, working at, visiting, Services Administration (GSA), and still Federal records centers listed in 36 CFR or departing from NARA property and others are located on property owned, 1280.1(b)(3), and all archival research facilities. 41 CFR 102–74, subpart C, leased by, or otherwise under GSA’s rooms and facilities listed at 36 CFR authorizes GSA to conduct similar control (‘‘GSA property’’), or owned and 1253.5, except the National Archives at inspections at NARA facilities on GSA under the control of the Government Atlanta and the archival facilities listed property. These inspection authorities Publishing Office (‘‘GPO property’’). in 36 CFR 1280.1(b)(3). are in addition to NARA’s research (b) NARA property. You must comply (2) You must comply with the room rules (see 36 CFR part 1254 and with the rules in this part when you are following rules when you are on or 36 CFR 1280.1(e)). on NARA property or using facilities using Federal records center or archival located on NARA property. research rooms and facilities located on § 1280.4 Children under the age of 14. (1) The National Archives Building. GSA property and those facilities listed We admit children under the age of 14 The National Archives Building in in 36 CFR 1280.1(b)(3): to NARA facilities only if they are Washington, DC, is NARA property and (i) GSA’s regulations, 41 CFR part accompanied by an adult who will NARA’s control includes: 102–74, subpart C, Conduct on Federal supervise them at all times. The director (i) The Pennsylvania Avenue NW, Property, and subpart D, Occasional Use of a NARA facility may authorize a entrance between 7th and 9th Streets, of Federal Buildings (if you are lower age limit for unaccompanied including the area within the retaining interested in using the public areas in a children to meet special circumstances walls on either side of the entrance, facility for an event); and (e.g., students who have been given inclusive of the statues, and the steps (ii) NARA’s regulations outlined in permission to conduct research without and ramps leading up to the entrance of this part 1280. If a provision in this part adult supervision). the building; conflicts with a GSA provision, comply (ii) On the 7th Street, 9th Street, and with the GSA provision when on or § 1280.6 Service animals. Constitution Avenue NW, sides of the using NARA facilities located on GSA We allow service animals on or in building, all property between the property. NARA property and facilities in any National Archives Building and the curb (d) GPO property. (1) The following area that the individual handling the line of the street, including the NARA facilities are located on GPO service animal is otherwise entitled to

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enter. A service animal is any dog § 1280.16 Illegal drugs and alcohol. not apply to displays or notices the individually trained to do work or (a) Except in cases where you are Government distributes as part of perform tasks for the benefit of an using the drug as prescribed for you as authorized activities or bulletin boards individual with a disability. You may a patient by a licensed physician, all employees use to post personal notices. not bring any other animals onto or into people entering in or on NARA facilities § 1280.24 Eating and drinking. NARA property and facilities, except for or property are prohibited from: official purposes. (1) Being under the influence, using You may eat and drink inside NARA or possessing any narcotic drugs, facilities only in designated areas. You § 1280.8 Driving on NARA property. hallucinogens, marijuana, barbiturates, may not eat or drink in any research When driving on NARA property, you or amphetamines; or rooms, records storage areas, or museum must obey speed limits, posted signs, (2) Operating a motor vehicle on the areas unless specifically authorized by and other traffic laws, and park only in property while under the influence of the Archivist or designee. Facility designated spaces. We reserve the right alcoholic beverages, narcotic drugs, directors may, by local rule, prohibit to tow, at the owner’s expense, any hallucinogens, marijuana, barbiturates, eating and drinking in designated vehicle that is parked illegally. If you or amphetamines. outdoor areas of NARA facilities or must leave your vehicle illegally parked (b) Except where the Archivist of the NARA property, as well (e.g., near due to an emergency, you must notify United States or his/her designee grants artifacts that are on display outdoors). the facility security guards as soon as an exemption in writing for the § 1280.26 Soliciting, vending, and debt possible. We may, at our discretion, appropriate official use of alcoholic collecting. deny any vehicle access to NARA beverages, all people entering in or on (a) On NARA property or in NARA property for public safety or security NARA property or facilities are reasons. facilities, you may not: prohibited from being under the (1) Solicit for personal, charitable, or § 1280.12 Additional rules. influence of or using alcoholic commercial causes; beverages. (a) All facilities. NARA facilities and (2) Sell any products; property may have additional posted § 1280.18 Gambling. (3) Display or distribute commercial rules that you must comply with. In (a) You may not participate in any advertising; or addition, you must, at all times while in type of gambling while on or in NARA (4) Collect private debts. a NARA facility or on NARA property, property or facilities. This includes: (b) The following activities are comply with official signs and with the (1) Participating in games for money exceptions to the prohibitions in directions of the guards and NARA staff. or other personal property; subsection (a): (b) Presidential libraries. You may be (2) Operating gambling devices; (1) Participating in national or local required to check all of your parcels and (3) Conducting a lottery or pool; or drives for welfare, health, or other funds luggage in areas designated by library (4) Selling or purchasing numbers that the Office of Personnel staff when visiting the museums or the tickets. Management authorizes or that NARA Presidential libraries. (b) This rule does not apply to approves (e.g., the Combined Federal (c) GSA and GPO property. Visitors to licensed blind operators of vending Campaign); NARA facilities that are located on GSA facilities who are selling chances for any (2) Employees collecting non- or GPO property must check for and lottery set forth in a state law and monetary items such as food, clothing, follow the rules that apply to the facility conducted by an agency of a state as or toys, as approved by the Archivist or they visit, as GSA and GPO may have authorized by section 2(a)(5) of the his/her designee; additional or different rules from the Randolph-Sheppard Act (20 U.S.C. 107, (3) Authorized employee rules in this Part. et seq.) organizations, including employee (d) NARA official shuttle bus. People affinity groups, soliciting for conducting research at or visiting the § 1280.20 Smoking or using alternative membership dues or other smoking devices. National Archives Building or the organizational support, as approved by National Archives at College Park may You may not smoke or use alternative the Archivist or his/her designee; and use NARA’s official shuttle to travel smoking devices (electronic or vapor) (4) Authorized charitable support between these buildings, if space is inside any NARA facility (including organizations, like the National available. those located on GSA or GPO property), Archives Foundation or a Presidential in courtyards on NARA property, or in library foundation (e.g., the museum Prohibited Activities any outdoor area within 25 feet of any store at the National Archives Building), conducting revenue-producing § 1280.14 Weapons and explosives. NARA facility air intake duct or doorway. Due to dangers that smoking activities. (a) Federal law prohibits individuals and smoking devices present to the § 1280.28 Other prohibited behavior. to possess firearms or other dangerous safety of occupants and the security of weapons in Federal facilities unless the archival holdings, we have a zero- We reserve the right to remove anyone person is specifically authorized to tolerance policy. You may smoke and from NARA facilities or property who possess such a weapon under 18 U.S.C. use alternative smoking devices only in is: 930. State-issued carry permits are not marked smoking areas outside certain (a) Stealing NARA property; valid in Federal facilities. Violators are NARA facilities. (b) Willfully damaging or destroying subject to fine and/or imprisonment for NARA property; a period up to five years. § 1280.22 Distributing or posting (c) Creating any hazard to people or (b) You are also prohibited from materials. things; bringing or possessing explosives, or You may not distribute or post (d) Throwing anything from or at a items intended for use in fabricating an handbills, fliers, pamphlets, or other NARA building; or climbing on statues, explosive or incendiary device, either materials on or in NARA property and fountains, gravesites, artwork, or other openly or concealed, on or in NARA facilities, except in spaces we designate items on display in outdoor areas, or property and facilities. for that purpose. This prohibition does any part of a NARA building;

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(e) Improperly disposing of rubbish; § 1280.32 Appealing a ban from NARA § 1280.44 Filming, photographing, or (f) Acting in a disorderly fashion; facilities or property. videotaping for commercial purposes. (g) Acting in a manner that creates a (a) Within 30 calendar days after you You are not permitted to film, loud or unusual noise or a nuisance; receive notice that you have been photograph, or videotape for banned from a NARA facility or commercial purposes on NARA (h) Acting in a manner that property or in NARA facilities. unreasonably obstructs the usual use of property, you may appeal the decision NARA facilities or property; in writing by mail to the Deputy § 1280.46 Filming, photographing, or (i) Acting in a manner that otherwise Archivist of the United States (address: videotaping for personal use. impedes or disrupts performance of National Archives and Records (a) You may film, photograph, or official duties by Government and Administration (ND); 8601 Adelphi videotape on NARA property outside a contract employees; Road; College Park, MD 20740–6001). In NARA facility so long as you do not the request, you must state the reasons (j) Acting in a manner that prevents impede vehicular or pedestrian traffic. for the appeal. (b) You may film, photograph, or the general public from obtaining videotape inside a NARA facility during NARA-provided services in a timely (b) The Deputy Archivist has 30 regular business hours in public areas, manner; calendar days after receiving the appeal to make a decision to rescind, modify, including research rooms and exhibition (k) Loitering; or or uphold the ban, and will notify you areas, under the following conditions: (l) Threatening directly (e.g., in- of the decision in writing. (1) You may not use a flash or other person communications or physical supplemental lighting; and (c) If the Deputy Archivist upholds gestures) or indirectly (e.g., via regular (2) You may not use a tripod or the ban, we will not consider another mail, email, or phone) any NARA similar equipment. appeal from you within one year from employee, visitor, volunteer, contractor, (c) However, you may not film, the date of your last request for other building occupants, facility, or photograph, or videotape in any of the reconsideration. After one year has property. exhibit areas of the National Archives passed, you may submit another appeal Building in Washington, DC, including § 1280.30 Types of corrective action for and the same process will apply. the Rotunda where the Declaration of prohibited behavior. Subpart B—Rules for Filming, Independence, the Constitution, and the (a) Individuals who violate the Photographing, or Videotaping on Bill of Rights are displayed. provisions of this part are subject to: NARA Property or in NARA Facilities § 1280.48 Applying to film, photograph, or (1) Being removed from the property videotape for news purposes. or facility (for up to seven calendar § 1280.40 Definitions. (a) If you wish to film, photograph, or days) and possible law enforcement (a) Filming, photographing, or videotape for news purposes at the notification; videotaping for commercial purposes. National Archives Building (as (2) Being banned from NARA Any filming, photographing, or delineated in § 1280.2(a)), the National property or facilities; videotaping to promote commercial Archives at College Park, or the (3) Arrest for trespass; and enterprises or commodities. Washington National Records Center, (4) Any other corrective action a law (b) News filming, photographing, or you must request permission from the or regulation prescribes. videotaping. Any filming, NARA Public Affairs Officer by email at (b) The Executive for Research photographing, or videotaping done by [email protected], by phone at Services, the Executive for Legislative a commercial or non-profit news 202.357.5300, or by mail at National Archives, Presidential Libraries, and organization that is intended for use in Archives and Records Administration; Museum Services, the Executive for a television or radio news broadcast, 700 Pennsylvania Avenue NW; Public Agency Services, or the Director of the newspaper, or periodical. Affairs Office; Washington, DC 20408– Security Management Division, may (c) Personal use filming, 0001. See also § 1280.42(b) for have the individual immediately photographing, or videotaping. Any additional permissions relating to the removed and temporarily denied further filming, photographing, or videotaping Washington National Records Center. access to the property or facility for up intended solely for personal or non- (b) If you wish to film, photograph, or to seven calendar days. commercial educational use that will videotape for news purposes at a (c) During this removal period, the not be commercially distributed. Presidential library or at an archival Executive for Business Support Services research room facility, you must contact renders a decision on whether the § 1280.42 When the rules in this subpart the director of the library (see 36 CFR apply. person should be banned from the 1253.3 for contact information) or specific facility from which they were (a) These rules apply to anyone who archival research room facility (see 36 removed, or all NARA property or is filming, photographing, or CFR 1253.5 for contact information) to facilities, for either a specific period of videotaping inside any NARA facility or request permission. (c) Your request for permission to time or permanently. If the Executive while on NARA property. film, photograph, or videotape for news decides to ban the person, they will (b) Filming, photographing, and purposes must contain the following issue a written decision and notify the videotaping on the grounds of any information (OMB control number affected NARA properties or facilities. NARA archival research room except 3095–0040): (d) Banning under this part includes the ones in Atlanta, GA, Fort Worth, TX, (1) The name of the organization you automatic revocation of research and Perris (Riverside), CA, or on the are working for; privileges, notwithstanding the time grounds surrounding the Washington (2) Areas you wish to film, periods set forth in 36 CFR 1254. National Records Center, are governed photograph, or videotape; Research privileges remain revoked by GSA regulations, 41 CFR part 101– (3) Documents, if any, you wish to until the ban is lifted, at which time the 20, Management of Buildings and film; person who was banned may submit an Grounds, and must be approved by a (4) The purpose of the project you are application for new privileges. GSA official. working on;

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(5) What you intend to do with the devices while filming, photographing, Subpart C—Additional Rules for Using film, photograph, or videotape; and or videotaping inside a NARA facility in Public Areas of NARA Property or (6) How long you will need to the Washington, DC, area without the Facilities complete your work on or in NARA prior permission of the NARA Public property or facilities. Affairs Officer. If the Public Affairs § 1280.60 Permitting use of public areas. (d) You must request permission at Officer approves your use of artificial (a) The primary use for NARA least two weeks in advance of your lighting in the Rotunda or other exhibit property and facilities, including those desired filming date. If you make a areas, we will use facsimiles in place of areas open to the public, is conducting request within a shorter time period, we the Declaration of Independence, the official NARA business. NARA’s official may not be able to accommodate your Constitution, the Bill of Rights, or other business includes educational and request. documents. If we approve your use of public programs and other activities we (e) If you would like to use NARA high intensity lighting, we will cover or conduct on our own or in conjunction equipment, you must also sign an replace with facsimiles all other with government organizations, the agreement, NA Form 11010, Waiver of exhibited documents that fall within the National Archives Foundation Liability (OMB control number 3095– boundaries of such illumination. You (‘‘Foundation’’) and Presidential library 0040). may not use any supplemental lighting foundations, or other private (f) This section does not apply to you devices at the Presidential libraries and organizations. NARA uses all of the if you have permission to use your own the archival research room facilities public areas of NARA property and microfilming equipment to film archival without permission from a NARA facilities in the course of conducting records and donated historical materials representative at that facility. official business. (b) We may permit, under the under the provisions of 36 CFR (b) While filming, photographing, or conditions described in this subpart, 1254.90–1254.110. You must follow the videotaping, you are liable for injuries Federal agencies, quasi-Federal procedures in 36 CFR part 1254 for to people or property that result from agencies, and state, local, and tribal permission to film archival records and your activities on or in NARA property government organizations to donated materials for research purposes and facilities. occasionally use certain public areas for or for microfilm publications. (c) At all times while on or in NARA official activities (‘‘government property and facilities, you must § 1280.50 What you may film, photograph, organization use’’). or videotape for news purposes. conduct your activities in accordance (c) We may also permit occasional, with all applicable regulations (a) We will permit you to film, non-official use of specified public areas contained in this part. for private group activities and events photograph, or videotape sections of the (d) Your filming, photographing, or interior or exterior of any NARA facility that relate to or further NARA’s videotaping activity may not impede archival, records, or other interests. The or property only for stories about: people who are entering or exiting any (1) NARA programs; authorities for such use are 44 U.S.C. NARA facility unless otherwise 2112(e) (for Presidential libraries) and (2) NARA exhibits; authorized by the facility’s director, or (3) NARA holdings; 44 U.S.C. 2903(b) (for other NARA by the NARA Public Affairs Officer for property and facilities). (4) NARA services; Washington, DC, area facilities. (5) A former President; (1) Examples of private use that relate (e) You must be accompanied by a (6) A researcher who has made or is to or further NARA’s archival, records, NARA staff member when filming, making use of NARA holdings or other interests include, but are not photographing, or videotaping the (provided that the researcher also limited to: Meetings and other business interior of any NARA facility. approves your request); or activities held by archival, historical, or (f) We will approve your request to do (7) Any other NARA-related activity other professional organizations with a press interviews of NARA personnel on approved by the appropriate NARA connection to NARA’s holdings or or in NARA property and facilities only representative. mission; activities or events that when such employees are being (b) We reserve the right to reject any promote research in, or use or interviewed in connection with official request that does not meet the criteria preservation of, NARA holdings; business. Interviews with staff and set forth in paragraphs (a) and (c) of this invitation-only screening of film or TV researchers may take place only in areas section or because of scheduling or premieres when NARA holdings have designated by the NARA Public Affairs staffing constraints. been used in the production or when Officer for Washington, DC, area (c) We will not grant you permission the screening otherwise promotes use of facilities, or by the appropriate NARA to film, photograph, or videotape if you NARA holdings (e.g., documentary film representative at other NARA facilities. intend to use the film, photographs, or premiere); and dinners, receptions, or (g) You may film and photograph videotape for commercial, partisan other private group events where the documents only in those areas which political, sectarian, or similar activities. connection to NARA is the location the NARA Public Affairs staff designates itself (e.g., The National Archives § 1280.52 Rules for filming, in the National Archives Building, the Building or a Presidential library) or the photographing, or videotaping for news National Archives at College Park, or the opportunity to view NARA exhibits. purposes. Washington National Records Center, or Private group events may include events The following conditions and in those areas designated as appropriate of a personal or social nature, such as restrictions apply to anyone that has by the staff liaison at other NARA weddings and wedding receptions, and been granted permission to film, facilities. school-sponsored activities. photograph, or videotape for news (h) We will limit your film and (2) Each NARA facility with public purposes under subpart B of this part: photography sessions to two hours. use space determines whether and what (a) We may limit or prohibit use of (i) You may not state or imply that kind of events of a personal nature the artificial light in connection with NARA approves of or will sponsor: facility can support, given the size and filming, photographing, or videotaping (1) Your activities or views; or configuration of available space, staff documents for news purposes. You may (2) The uses to which you put images availability, and other logistical factors. not use any supplemental lighting depicting any NARA facility. We also reserve the right to limit the

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number and size of personal § 1280.64 Requesting to use our public spaces under their rules rather than the celebrations, and to limit or prohibit areas. rules in this part 1280. activities as part of a private group event (a) This section provides a general (3) For events held in Presidential that pose a risk to the facility, property, description of the process that different library areas or spaces that are people, or our holdings. If you are NARA facilities use to review and considered NARA property, you will interested in holding a private group respond to requests to use their public need to submit a written, signed request event at a NARA facility, contact that areas. You should contact a facility to the library you wish to use (see 36 facility directly for more information. before submitting a formal request, to CFR 1253.3 for the address) and See 36 CFR part 1253 for facility listings check on availability and to obtain any complete NA Form 16011, Application and contact information. forms, procedures, or rules that are for Use of Space in Presidential (3) We may charge fees for private specific to that facility. Libraries. OMB control number 3095– group and government organization use (b) National Archives Building and 0024 covers this information collection. of these public areas and the services the National Archives at College Park. (d) Archival research facilities and related to such use. See § 1280.68. (1) If you are interested in hosting an Federal records centers (FRCs). (1) Most NARA, the Foundation, or Presidential official governmental event or meeting archival research facilities and the FRCs library foundations may collect the fees. at the National Archives Building, you do not have any public use areas or should contact NARA Special Events by spaces. § 1280.62 General rules when using public (2) If you wish to request use of public areas. phone at 202.357.5164 or by email at [email protected]. If you are areas at an archival research facility, In addition to the rules listed in interested in hosting a private group you must submit a written, signed subparts A and B of this part, the event at the National Archives Building, request to the director of the facility you following rules apply to all government you should contact the National wish to use (see 36 CFR 1253.5 for a list organization and private group use of Archives Foundation by phone at of addresses) at least 30 days before the NARA public areas: 202.357.5404, toll-free at 844.723.2155, proposed date of your event. GSA’s (a) You may not characterize your use or by email at events@ rules for requesting use of the facility of NARA property or facilities as an archivesfoundation.org. Additional will also apply if the facility is located endorsement by NARA of your information is in subpart D of this part on GSA property (see 41 CFR part 102– organization or its activities, or and online at https://www.archives.gov/ 74, subpart D, Occasional Use of Public otherwise suggest an official dc/host-an-event. Buildings). relationship between NARA and your (2) If you are interested in hosting an (3) Your request will need to include organization if such a relationship does event or meeting at the National such information as the name of your not exist. group and any other organization that is (b) You may not charge or collect Archives at College Park, you should contact NARA Special Events by phone participating, point-of-contact admission fees, or money for other information, the date and time you are purposes, at the event. at 301.837.1504 or by email at [email protected]. Additional requesting, number of attendees, type of (c) You may not use NARA property, event, description of the event, and facilities, or permission to use a NARA information is in subpart D of this part. (3) You will need to submit a written other information about the event to property or facility for any activities that enable us to determine whether we can involve: request at least 30 calendar days before the proposed date of your event. Your accommodate it. We may also request (1) Profit-making; additional information. OMB control (2) Advertising, promoting, or selling request will need to include such information as the name of your group number 3095–0043 covers this commercial enterprises, products, or information collection. services; and any other organization that is participating, point-of-contact (e) NARA facilities located on GPO (3) Partisan political activities; property. None of the NARA facilities (4) Sectarian or other similar information, the date and time you are requesting, number of attendees, type of that are located on GPO property have activities; or spaces available for public use. (5) Any use inconsistent with those event, description of the event, other authorized in this section. arrangements you would like to include, § 1280.66 How we handle requests to use (d) You may not use NARA property and other information about the event to public areas. or facilities if you or your organization enable us to determine whether we can (a) When you ask to use NARA or group engage in discriminatory accommodate it. We may also request property, we review your request to: practices proscribed by the Civil Rights additional information. OMB control (1) Ensure that it meets all of the Act of 1964, as amended. number 3095–0043 covers this provisions in this subpart and subpart D (e) You may not misrepresent your information collection. of this part; identity to the public or conduct any (c) Presidential libraries and (2) Determine if the public area you activities in a misleading or fraudulent museums. (1) You should contact the have requested is available on the date manner. Presidential library and museum where and time you have requested; (f) You must ensure that no you wish to hold your event (see contact (3) Evaluate whether the requested Government property is destroyed, information in 36 CFR 1253.3). space can accommodate your proposed displaced, or damaged during your use (2) Depending on what kind of event use; and of NARA public areas. You must take you want to host, you may be referred (4) Determine the fees and costs we prompt action to replace, return, restore, to the foundation that supports the will charge for the event. repair, or repay NARA for any damage library to make the event arrangements (b) When we have completed this caused to Government property during and to pay any event fees and costs that review, we will notify you of the your use of NARA facilities or property, apply. Some Presidential libraries are decision. We may ask for additional and the facility director may charge located at shared-use facilities where information before deciding whether or additional fees to recoup the cost of any their library foundations own certain not to approve your event. damage that occurs due to your use of areas and spaces used for private group (c) We reserve the right to review, the property or facility. events and operate those areas and reject, or require changes in any

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material, activity, or caterer you intend Subpart D—Additional Information for § 1280.86 National Archives at College to use for the event. Using Specific NARA Property or Park space available for events. Facilities You may ask to use the following § 1280.68 Fees for using public areas. areas: § 1280.80 Public areas in the National (a) We are authorized to charge fees Archives Building available for events. for occasional, non-official use of NARA TABLE 1 TO § 1280.86 public areas, as well as for services You may ask to use the following Area Capacity related to such use, including additional areas in the National Archives Building, Washington, DC: cleaning, security, and other staff Auditorium ...... 300 people. services. We will either exercise this Lecture rooms ...... 30 to 70 people (or authority directly, or through the TABLE 1 TO § 1280.80 up to 300 with all dividers removed). Foundation or an authorized Area Capacity Presidential library foundation or support organization. Rotunda Galleries ..... 250 people. § 1280.88 When public areas in the National Archives at College Park are (b) Federal and quasi-Federal William G. McGowan 290 people. Theater. available. agencies, and state, local, and tribal Archivist’s Reception 125 people. (a) Most areas are available for set-up governmental institutions using public Room. and use from 8:00 a.m. until 5:00 p.m., space for official government functions Presidential Con- 20 to 70 people. Monday through Friday, except on pay fees for the costs of room rental, ference Rooms. Federal holidays. A NARA staff member administrative fees, additional cleaning, must be present at all times when the security, and other staff services NARA § 1280.82 When public areas in the public area is in use. If the space and provides. National Archives Building are available. staff are available, we may approve (c) You will be informed in advance (a) Most public areas are available for requests for events held before or after and in writing of the total estimated cost set-up and use each day from 6 p.m. these hours and on weekends or Federal associated with using the public area of until 10:30 p.m. The areas are not holidays. interest. If we collect the fees directly, available for private events on Federal (b) Public areas at the National you will pay the National Archives holidays. A NARA representative must Archives at College Park are normally Trust Fund. If the Foundation collects be present at all times when non–NARA available for private events or the fees, you will pay the National groups use NARA spaces. government organization use during Archives Foundation. If a Presidential (b) Some public areas in the National normal business hours. library foundation collects the fees, they Archives Building may be available for David S. Ferriero, will inform you where to submit the private events or government Archivist of the United States. payment. organization use only before or after the [FR Doc. 2020–08755 Filed 5–5–20; 8:45 am] building closes to the public, while BILLING CODE 7515–01–P § 1280.70 Additional rules that apply to other public areas may be available for approved events. such use during normal business hours, (a) Once we approve your event, you subject to NARA’s official business FEDERAL COMMUNICATIONS must provide any support people you needs. COMMISSION need to register guests, distribute § 1280.84 Using the Rotunda. approved literature, name tags, and 47 CFR Part 64 other material. (a) We do not allow private group event activities (e.g., dinner/reception, [CG Docket No. 13–24 and 03–123; FCC (b) We must approve in advance any program) to be held in the Rotunda or 19–11; FRS 16659] item that you plan to distribute or the exhibit galleries in the National IP CTS Modernization and Reform; IP display during your use of NARA Archives Museum. We may, at our property or facilities, or any notice or CTS Improvements and Program discretion, allow attendees at private Management advertisement that refers, directly or group events to enter the Rotunda and indirectly, to NARA, the Foundation, a other Museum areas in conjunction with AGENCY: Federal Communications Presidential foundation or supporting their event to view the exhibits, but the Commission. organization, or the National Archives event activities themselves may not be ACTION: Final rule. Trust Fund, or incorporates any of held in those spaces. Pursuant to NARA’s logos or seals (see 36 CFR § 1280.46(c), event attendees may not SUMMARY: In this document, the Federal 1200.2). film, photograph, or videotape in the Communications Commission (Commission) removes paragraphs (c) We must approve in advance any Rotunda or other Museum areas, advising that compliance with rules vendor or caterer who will work in including group photographs or videos. amended in document FCC 19–11 was NARA facilities. You must comply with (b) We may, upon application, permit other Federal agencies, quasi–Federal not required until approval was all NARA requirements for the use of obtained from the Office of Management food and drink at your event. agencies, and state, local, and tribal governments to use the Rotunda for and Budget (OMB). (d) You may not allow or consume official functions, with NARA as a co- DATES: Effective Date: These rules are food or drink in areas where original sponsor. Governmental groups that use effective May 6, 2020. records or historical materials are the Rotunda for official functions must FOR FURTHER INFORMATION CONTACT: displayed. reimburse NARA for the cost of Michael Scott, Consumer and additional cleaning, security, and other Governmental Affairs Bureau, at (202) staff services, as for use of any other 418–1264, or email Michael.Scott@ public spaces. fcc.gov.

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SUPPLEMENTARY INFORMATION: In SURFACE TRANSPORTATION BOARD unduly detained beyond a specified document FCC 19–11, published at 84 period of time (i.e., ‘‘free time’’) for FR 8457, March 8, 2019, the 49 CFR Part 1333 loading and unloading. See Pa. R.R. v. Commission adopted §§ 64.611(k) and [Docket No. EP 759] Kittaning Iron & Steel Mfg. Co., 253 U.S. 64.615(c), which advised that 319, 323 (1920) (‘‘The purpose of compliance with §§ 64.611(j)(2) and Demurrage Billing Requirements demurrage charges is to promote car 64.615(a)(3) and (5), respectively, was efficiency by penalizing undue AGENCY: Surface Transportation Board. not required until OMB approval was detention of cars.’’); 49 CFR 1333.1; see ACTION: obtained. Sections 64.611(k) and Final rule. also 49 CFR pt. 1201, category 106. In the simplest demurrage case, a 64.615(c) also each state that the SUMMARY: The Surface Transportation Commission will publish a document in railroad assesses demurrage on the Board (STB or Board) adopts a final rule consignor (the shipper of the goods) for the Federal Register announcing the that requires Class I carriers to directly delays in loading cars at origin and on compliance date and revising the bill the shipper for demurrage when the the consignee (the receiver of the goods) paragraphs. In a document, published at shipper and warehouseman agree to that for delays in unloading cars and 85 FR 9392, February 19, 2020, the arrangement and so notify the rail returning them to the rail carrier at Commission announced OMB approval carrier. destination.3 for §§ 64.611(j)(2) and 64.615(a)(3) and DATES: This rule is effective on June 20, Demurrage, however, can also involve (5) and set the compliance date. The 2020. third-party intermediaries, commonly document also states it would remove ADDRESSES: Requests for information or known as warehousemen or terminal §§ 64.611(k) and 64.615(c) of the questions regarding this final rule operators, that accept freight cars for Commission’s rules. As the compliance should reference Docket No. EP 759, loading and unloading but have no date for §§ 64.611(j)(2) and 64.615(a)(3) and be submitted either via e-filing or in property interest in the freight being and (5) is established, §§ 64.611(k) and writing addressed to Chief, Section of transported.4 Warehousemen do not 64.615(c) are no longer necessary. Administration, Office of Proceedings, typically own the property being Accordingly, in this document the Surface Transportation Board, 395 E shipped (although, by accepting the Commission removes §§ 64.611(k) and Street SW, Washington, DC 20423–0001. cars, they can be in a position to facilitate or impede car supply). 64.615(c) from the Commission’s rules. FOR FURTHER INFORMATION CONTACT: In response to the NPRM, the Board Sarah Fancher at (202) 245–0355. List of Subjects in 47 CFR Part 64 received a significant number of Assistance for the hearing impaired is comments from stakeholders.5 This Individuals with disabilities, available through the Federal Relay Telecommunications, Service at (800) 877–8339. 3 As the Board noted in Demurrage Liability, EP Telecommunications relay services SUPPLEMENTARY INFORMATION: On 707, slip op. at 2 n.2, the Interstate Commerce Act, Federal Communications Commission. October 7, 2019, the Board issued a as amended by the ICC Termination Act of 1995 (ICCTA), Public Law 104–88, 109 Stat. 803 (1995), Cecilia Sigmund, notice of proposed rulemaking to does not define ‘‘consignor’’ or ‘‘consignee,’’ though propose changes to its existing both terms are commonly used in the demurrage Federal Register Liaison Officer. demurrage regulations to address context. Black’s Law Dictionary defines several issues regarding carriers’ ‘‘consignor’’ as ‘‘[o]ne who dispatches goods to Final Rules another on consignment,’’ and ‘‘consignee’’ ‘‘as demurrage billing practices. Demurrage [o]ne to whom goods are consigned.’’ Demurrage For the reasons discussed in the Billing Requirements (NPRM), EP 759 Liability, EP 707, slip op. at 2 n.2 (citing Black’s preamble, the Federal Communications (STB served Oct. 7, 2019).1 Demurrage Law Dictionary 327 (8th ed. 2004)). The Federal Commission amends 47 part 64 as is subject to Board regulation under 49 Bills of Lading Act defines these terms in a similar manner. Demurrage Liability, EP 707, slip op. at 2 follows: U.S.C. 10702, which requires railroads n.2 (citing 49 U.S.C. 80101(1) & (2)). For purposes to establish reasonable rates and of this decision, the term ‘‘shipper’’ will sometimes PART 64—MISCELLANEOUS RULES transportation-related rules and be used to refer to either consignors or consignees. RELATING TO COMMON CARRIERS practices, and under 49 U.S.C. 10746, 4 This decision uses the terms ‘‘warehousemen’’ and ‘‘third-party intermediaries’’ to refer to these which requires railroads to compute entities. ■ 1. The authority citation for part 64 demurrage charges, and establish rules 5 The Board received comments and replies from continues to read as follows: related to those charges, in a way that the following: American Chemistry Council; American Forest & Paper Association (AF&PA); Authority: 47 U.S.C. 154, 201, 202, 217, will fulfill the national needs related to freight car use and distribution and American Fuel & Petrochemical Manufacturers 218, 220, 222, 225, 226, 227, 228, 251(a), (AFPM); American Iron and Steel Institute; 2 251(e), 254(k), 262, 403(b)(2)(B), (c), 616, 620, maintenance of an adequate car supply. American Short Line and Regional Railroad 1401–1473, unless otherwise noted; sec. 503, Demurrage is a charge that serves Association (ASLRRA); ArcelorMittal USA LLC (AM); Association of American Railroads (AAR); Pub. L. 115–141, 132 Stat. 348. principally as an incentive to prevent undue car detention and thereby Barilla America, Inc. (Barilla); Canadian National Railway Company (CN); Canadian Pacific Railway § 64.611 [Amended] encourage the efficient use of rail cars Company (CP); Corn Refiners Association (CRA); in the rail network, while also providing CSX Transportation, Inc. (CSXT); Daniel R. Elliott; ■ 2. Amend § 64.611 by removing compensation to rail carriers for the Diversified CPC International, Inc. (CPC); Dow, Inc. paragraph (k). expense incurred when rail cars are (Dow); The Fertilizer Institute (TFI); Freight Rail Customer Alliance (FRCA); Industrial Minerals § 64.615 [Amended] Association—North America; The Institute of Scrap 1 The proposed rule was published in the Federal Recycling Industries, Inc. (ISRI); International ■ 3. Amend § 64.615 by removing Register, 84 FR 55109 (Oct. 15, 2019). Association of Refrigerated Warehouses (IARW); 2 In Demurrage Liability, EP 707, slip op. at 15– International Liquid Terminals Association (ILTA); paragraph (c). 16 (STB served Apr. 11, 2014), the Board clarified International Paper; International Warehouse [FR Doc. 2020–08252 Filed 5–5–20; 8:45 am] that private car storage is included in the definition Logistics Association; The Kansas City Southern of demurrage for purposes of the demurrage Railway Company (KCS); Kinder Morgan Terminals BILLING CODE 6712–01–P regulations established in that decision. The Board (Kinder Morgan); Lansdale Warehouse Company; uses the same definition of demurrage in this National Association of Chemical Distributors; The decision. Mosaic Company; National Coal Transportation

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decision adopts the proposed rule with has proposed a rule relating to the should bear responsibility for respect to requiring Class I carriers to identity of the party that should receive demurrage charges and, therefore, that directly bill the shipper for demurrage and be responsible for paying the they should be able to make agreements when the shipper and warehouseman demurrage bill when shipments are for payment of demurrage charges that agree to that arrangement and so notify handled by warehousemen. As reflect this determination. NPRM, EP the rail carrier, with the modifications explained in the NPRM, before 2014, 759, slip op. at 11. Allowing shippers discussed below.6 there was a split among the U.S. courts and warehousemen to reach direct- of appeals regarding who should bear billing agreements that impose liability Background liability for demurrage charges when a for demurrage charges on the party best This proceeding arises, in part, as a warehouseman that detains rail cars for positioned to mitigate the delays that result of the testimony and comments too long is designated as consignee in cause demurrage would promote the submitted in Oversight Hearing on the bill of lading, but asserts either that efficient use of rail assets, thereby Demurrage & Accessorial Charges, it did not know of its consignee status fulfilling the purpose of demurrage. Id. Docket No. EP 754. In that proceeding, or that it affirmatively asked the shipper Accordingly, the Board proposed a parties from a broad range of industries not to designate it as consignee. The requirement that Class I carriers send raised concerns about demurrage billing Board reviewed those court decisions, any demurrage bills related to practices, including issues with the determined that it needed to reexamine transportation involving a receipt of invoices containing its policies to assist in providing warehouseman to the shipper (without insufficient information. See NPRM, slip clarification, and instituted a requiring the warehouseman to op. at 5–6 (providing overview of proceeding in Demurrage Liability, guarantee payment), if the shipper and comments received in Docket No. EP Docket No. EP 707. As noted above, in warehouseman agree to that 754 related to the adequacy of a final rule issued in that docket, the arrangement and so notify the carrier. demurrage invoices). Warehousemen Board established that a person, Id. As discussed below, most shippers also raised concerns related to Class I including a warehouseman, receiving and warehousemen commenters either carriers’ billing practices as applied to rail cars for loading or unloading that support the Board’s direct-billing them following the Board’s adoption of detains the cars beyond the free time proposal or are neutral towards it, while the final rule in Demurrage Liability, EP provided in the rail carrier’s governing the six Class I railroads that filed 707 (STB served Apr. 11, 2014), codified tariff may be held liable for demurrage comments (and AAR) uniformly oppose at 49 CFR part 1333, which established if that person had actual notice, prior to the proposal, and ASLRRA supports the that a person receiving rail cars for rail car placement, of the demurrage proposed exclusion of Class II and Class loading or unloading that detains the tariff establishing such liability. III carriers from the proposal. In cars beyond the free time provided in Demurrage Liability, EP 707, slip op. at addition, Class I carriers, the rail carrier’s governing tariff may be 1, 17, 25. Under that final rule, the warehousemen, and shippers ask the held liable for demurrage if that person identification of a party in the bill of Board to clarify certain aspects of the had actual notice, prior to rail car lading no longer controls; as the Board proposal. placement, of the demurrage tariff explained, it was ‘‘adopting a conduct- Final Rule based approach to demurrage in lieu of establishing such liability. See NPRM, The Board now adopts a final rule one based on the bill of lading.’’ Id. at EP 759, slip op. at 6–8 (providing requiring Class I carriers to directly bill overview of comments received in 15. The Board explained that its rule the shipper for demurrage when the Docket No. EP 754 relating to was ‘‘based on the theory that shipper and warehouseman agree to that warehousemen). responsibility for demurrage should be arrangement and so notify the rail After carefully considering the placed on the party in the best position carrier. As discussed below, the final comments and testimony in Docket No. to expedite the loading or unloading of rule reflects modifications made in EP 754, the Board issued the NPRM in rail cars at origin or destination.’’ Id. at response to parties’ comments, this docket.7 As relevant here, the Board 8. following the Board’s review of the During the Docket No. EP 754 issues raised. The final rule is below. Association (NCTA); The National Industrial proceeding, warehousemen addressed As noted above, most shippers and Transportation League (NITL); North American the circumstances under which, in their warehousemen who commented on Freight Car Association; Norfolk Southern Railway view, a rail carrier should bill shippers Company (NSR); Peabody Energy Corporation direct billing are in favor of the proposal (Peabody); The Portland Cement Association; directly for demurrage without requiring or neutral towards it.9 Kinder Morgan Private Railcar Food and Beverage Association, Inc.; warehousemen to assume responsibility Quad, Inc.; Union Pacific Railroad Company (UP); for any charges left unpaid by the 9 See, e.g., Kinder Morgan Comments 1 (strongly Valley Distributing & Storage Company (Valley shipper. Pointing out that, in some supports the proposed rule); ILTA Comments 4 Distributing); Western Coal Traffic League and cases, shippers may be best positioned (stating that it supports the proposed rule even Seminole Electric Cooperative, Inc.; and Yvette though it believes that returning to the regulatory Longonje. to mitigate delays in returning cars, environment in existence before Demurrage 6 In the NPRM, the Board also proposed warehousemen asked that the Board Liability, EP 707, would be a better solution); IARW requirements for minimum information to be permit warehousemen and shippers to Comments 1 (strongly supports the proposed rule); included on or with Class I carriers’ demurrage determine between themselves which TFI Comments 4 (explaining that its primary invoices. Concurrently with this decision, the Board interest is in ensuring that the Board continue to is serving a supplemental notice of proposed party should receive and be responsible permit shippers and warehousemen to address 8 rulemaking to invite comments on certain for the demurrage bill. demurrage in their contracts); NITL Comments 11 modifications and additions to the proposed In the NPRM, the Board found that (stating that it has no concerns with the Board’s requirements. See Demurrage Billing Requirements, warehousemen and shippers are in the direct-billing proposal); AM Comments 2 (stating EP 759 (STB served Apr. 30, 2020). The proposal that it supports the proposal as long as shippers are pertaining to minimum information requirements, best position to determine which party not responsible for demurrage absent an agreement and the comments on that proposal, will be with the warehouseman); Valley Distributing addressed in a separate decision. Statement on Demurrage & Accessorial Rules & Comments 1 (supporting the direct-billing 7 The Board has also issued a final policy Charges, EP 757 (STB served Apr. 30, 2020). proposal); but see Peabody Comments 2 (stating that statement announcing principles the Board would 8 See Kinder Morgan Terminals Comments 3–4, it does not support the direct-billing proposal consider in evaluating the reasonableness of 19–20, May 8, 2019, Oversight Hearing on because it believes that the shipper should always demurrage and accessorial rules and charges. Policy Demurrage & Accessorial Charges, EP 754. Continued

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states that the direct-billing requirement shippers will accept demurrage liability. 131 S. Ct. 993 (2011)). Under the final is ‘‘very fair, as it is predicated upon (CSXT Comments 15; CN Comments rule adopted in this decision, where agreement by the shipper and terminal 15.) CSXT expresses concern that shippers and warehousemen jointly and would help end the gridlock that shippers might limit the circumstances notify their serving railroads that the has prevented reasonable discussion in which they will accept liability. shipper is the party to be billed, billing and resolution of individual disputes.’’ (CSXT Comments 15.) In this regard, CN arrangements would effectively proceed (Kinder Morgan Comments 7.) Kinder references Kinder Morgan’s third-party under the standard practices that Morgan argues that direct billing will complaint against some of its customers, prevailed for much of the industry allow for more efficient handling of which shows that Kinder Morgan’s before the final rule in Docket No. EP demurrage disputes and will help end shipper-customers declined to accept 707 was adopted. ILTA correctly notes ‘‘abusive practices by railroads with across-the-board responsibility for that it is inconsistent for the carriers, respect to the collection of demurrage demurrage liability, pointing instead to from a contractual privity standpoint, to charges.’’ (Id. at 1, 8.) Likewise, ILTA various exceptions that would place the prefer avoiding direct billing of shippers contends that direct billing will bring liability on Kinder Morgan. (CN with whom they are often signatories on greater clarity to the assessment and Comments 15.) CSXT further argues that the bill of lading in favor of holding collection of demurrage charges and carriers ‘‘will have no knowledge of the warehousemen, with whom they often will help ensure fair treatment of terms of the agreement’’ and therefore hold no contractual relationships, warehousemen. (ILTA Comments 1.) ‘‘will have no ability to understand or responsible for demurrage. Some commenters ask the Board to effectively enforce these contractual The intent in proposing the direct- clarify certain aspects of the provisions and no ability to adjudicate billing requirement at 49 CFR 1333.3(b) requirement to notify the carrier of the responsibility in situations where was not to require Class I carriers to agreement. (ILTA Comments 3; IARW receiver and shipper disagree as to analyze or enforce any specific Comments 1.) In addition, some fault.’’ (CSXT Comments 15.) 10 In order conditions of liability agreed upon by shippers and warehousemen argue that to ensure accountability to the carrier, the shipper and warehouseman. Rather, the rule should apply to Class II and CP urges the Board to require the in an agreement under the new direct- Class III carriers. (See, e.g., FRCA shipper to ‘‘expressly agree that it is billing rule, the shipper must agree to Comments 5.) liable to the railroad for demurrage on (1) receive the demurrage bill from the CN, CP, CSXT, KCS, and AAR (joined its assets even if such demurrage is due Class I carrier and (2) be liable to the by NSR and UP) oppose the Board’s to actions taken by the warehouseman Class I carrier for demurrage that direct-billing proposal. These or actions of its other shippers.’’ (CP accrues on all of the shipments received commenters argue that they lack privity Comments 9.) by the warehouseman from the shipper of contract to enforce direct-billing Kinder Morgan argues that such during the term of the agreement. agreements, (see CSXT Comments 15; preconditions by the carrier are not Warehousemen and shippers may see also CN Comments 15; CP necessary for direct-billing address the nuances of demurrage Comments 8–9; AAR Comments 6); that arrangements, which Kinder Morgan liability between themselves in their the notice requirement, as proposed in points out were common before the commercial relationships, as the Board the NPRM, is flawed, (CSXT Comments Docket No. EP 707 rule was adopted. has previously contemplated.11 14–15; KCS Comments 3; CP Comments (Kinder Morgan Reply 14–16.) ILTA However, Class I carriers would not be 8); that the direct-billing proposal is argues that Class I carriers’ concern responsible for billing in accordance inconsistent with 49 U.S.C. 10746, about not being parties to direct-billing with any specific liability conditions (CSXT Comments 12), and the final rule agreements ‘‘confounds both legal that the warehouseman and shipper in Demurrage Liability, EP 707, (CN obligations and common sense.’’ (ILTA may have agreed upon as between Comments 17–18; AAR Comments 4, 6); Reply 2.) themselves.12 Rather, to the extent the and that the direct-billing proposal The Board finds that the arguments by shipper believes that its commercial would only increase the difficulty and the Class I carriers and AAR are arrangement with the warehouseman complexity of demurrage disputes, (CP overstated. As the court cases preceding requires the warehouseman to Comments 7–9; CSXT Comments 15– Docket No. EP 707 indicated, the reimburse the shipper for demurrage it 16). shipper, rather than the warehouseman, has paid to the carrier, the Board The Board will adopt its direct-billing is often the signatory to the bill of lading expects the shipper and warehouseman proposal with the modifications and the one that actually has the privity to resolve this issue between discussed below. of contract with the railroad. Indeed, themselves. In doing so, the that was why some courts had held that, warehouseman would continue to have Class I Carriers’ Ability To Understand unless the warehouseman was aware an incentive to make efficient use of rail and Enforce Direct-Billing Agreements that it had been named as a party to the cars in the rail network, contrary to Many Class I carrier commenters and bill of lading, the shipper was the only carriers’ claims that, if the shipper AAR argue that the NPRM’s direct- party to which the railroad could send billing proposal is unworkable because the demurrage bill. See Demurrage 11 See Demurrage Liability, EP 707, slip op. at 9 carriers would be unable to understand Liability, EP 707, slip op. at 3–4 (citing (finding that its demurrage regulations ‘‘should or enforce nuanced and complex encourage warehousemen and shippers to address Norfolk S. Ry. v. Groves, 586 F.3d 1273, demurrage liability in their commercial agreements to which they are not 1275–76 (11th Cir. 2009), cert. denied, arrangements’’). parties. CSXT and CN explain that 12 Any suggestions of Class I carriers that they agreements between shippers and 10 See also AAR Comments 6 (arguing carriers will be unable to hold shippers liable for demurrage warehousemen can have substantially would have no privity of contract to enforce at all when they are not parties to the agreements different provisions regarding when agreements); CP Comments 8 (stating that ‘‘it is between shippers and warehousemen are unclear whether CP would have a cognizable legal unavailing. Under the direct-billing requirement, claim against a shipper with whom it is not in Class I carriers must seek demurrage from be invoiced, in part, to reduce the risk that carriers privity of contract’’); KCS Comments 2 (opposing shippers—just as they regularly did before the will bill two parties for the same delay); AFPM the Board’s direct-billing proposal because ‘‘issues Docket No. EP 707 rules were adopted—only when Comments 9 (expressing concerns that there could such as lack of privity of contract could prevent rail those shippers give notification that they have be miscommunication over which party is to carriers from collecting demurrage that is rightly agreed to be responsible for demurrage under receive the invoice). owed’’). § 1333.3(b).

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agrees to accept responsibility for originates or terminates on CP, but not Third, to address commenters’ demurrage, then the warehouseman both, and when CP is the delivering concerns that a delivering carrier may would not have any incentive to carrier, it may not have a relationship not always know the identity of the efficiently utilize rail cars. (See AAR with the shipper. (CP Comments 8.) shipper in the direct-billing agreement, Comments 5; CN Comments 17; CP Warehousemen commenters seek the Board will require that the notice Comments 3.) clarity about the form of the notice contain the shipper’s contact To clarify its intent in the regulations, contemplated by the NPRM. They argue information.16 This information is the Board will revise § 1333.3(b) to that it is not feasible for shippers and necessary, not only for interline carriers, specify that the Class I carrier must bill warehousemen to share their entire but also for all Class I carriers that seek the shipper for demurrage when a contracts with carriers because doing so to charge demurrage because Demurrage warehouseman ‘‘has reached an would expose confidential business Liability, EP 707, established that agreement with a shipper (or consignee) information. Accordingly, they ask the carriers must provide actual notice of that the shipper (or consignee) shall be Board to specify that the notice their demurrage tariffs prior to charging billed for demurrage’’ and so notifies the requirement may be satisfied by an demurrage.17 The Board will also 13 Class I carrier. Furthermore, the Board excerpt or redacted version of the require that the notice contain the date will add an additional sentence to agreement, a separate letter or an email upon which the Class I carrier is to clarify that, pursuant to this paragraph, between the parties, or a copy of begin billing the shipper for demurrage. ‘‘the shipper (or consignee) shall be standard terms and conditions for Recognizing that Class I carriers will liable to the Class I carrier for storage. (ILTA Comments 3; IARW need sufficient time to provide shippers demurrage but shall not be prohibited Comments 1.) with actual notice of the carriers’ from seeking payment from the third- Based on these comments, the Board demurrage tariffs and to update their party intermediary for demurrage will revise and clarify the notice billing systems to reflect new direct- charges for which the third-party requirements. First, to avoid the billing arrangements, this date shall be intermediary is responsible pursuant to possibility that one of the parties may no earlier than 20 days after the notice an agreement between the shipper (or subsequently disclaim the existence of is provided. consignee) and the third-party an agreement and the validity of the 14 For the reasons discussed above, the intermediary.’’ The full text of revised notice, the Board will require that the Board will revise 49 CFR 1333.3(b), § 1333.3(b) is set forth below. shipper and warehouseman jointly which is set forth in full in below, to notify the carrier of a direct-billing Notice of Direct-Billing Agreements state that Class I carriers must directly agreement.15 Class I carrier commenters seek bill a shipper for demurrage ‘‘after being Second, the Board clarifies that the clarification of the NPRM proposal to jointly notified of the agreement by the notice requirement does not expect that require Class I carriers to bill the shipper (or consignee) and third-party shippers and warehousemen share their shipper for demurrage charges ‘‘after intermediary.’’ The Board will also add contracts with Class I carriers. As being notified of the agreement by the a sentence clarifying that ‘‘[t]he joint discussed above, shippers that enter shipper, consignee, or third-party notice required by this paragraph may into direct-billing agreements must intermediary.’’ NPRM, EP 759, slip op. be provided in hard copy or electronic agree to be billed by Class I carriers for at 14. CSXT expresses concern that form, and must contain the contact demurrage and to accept responsibility because the proposed rule requires information for the shipper (or to the carrier for paying demurrage bills. notice by only one party, the consignee) who has agreed to be billed Of course, the recipient of the bill, counterparty would be able to disclaim (and liable to the Class I carrier) for whichever party it may be, has every the validity of the agreement to the demurrage and provide the date upon right to challenge the appropriateness of carrier. (CSXT Comments 14–15.) which the Class I carrier is to begin the bill with the carrier or with the Additionally, both KCS and CP express billing the shipper (or consignee) for Board. But any specific conditions concerns about the notice requirement demurrage (no earlier than 20 days after under which the shipper and as it relates to interlined traffic. KCS the notice is provided).’’ To address the warehouseman apportion ultimate states that, in some cases in which concern discussed above regarding responsibility are for the shipper and traffic is interlined for destination potential disagreements between warehouseman to address between delivery to the warehouseman, it does warehousemen and their customers themselves. If the shipper believes that not know the identity of the original about the existence of direct-billing it has been billed for demurrage for shipper. (KCS Comments 3.) CP likewise agreements, the Board will also modify which the warehouseman is responsible explains that much of its traffic § 1333.3(b) to require that a party to the under the terms of an agreement agreement notify not only the Class I 13 between the shipper and Peabody’s concern that the rule will make it carrier but also the other party to the more likely that two parties could be billed for the warehouseman, then the shipper may agreement that the agreement is no same demurrage, (see Peabody Comments 2), is seek reimbursement for those charges unfounded, as the new rule will require that when longer in force if and when from the warehouseman in accordance a shipper and warehouseman agree that the shipper appropriate.18 To provide further is to be billed for demurrage and convey such with their commercial arrangement and agreement to the railroad, the railroad will bill the applicable laws. However, the notice of 16 The Board contemplates that such contact shipper, as agreed. the billing agreement would be 14 This clarification is intended to help ensure information would typically include the shipper’s that shippers and warehousemen continue to have sufficient to provide the Class I carrier full name, mailing address, telephone number, and the ability to address demurrage in their contracts. with the information it needs in order email address. (See TFI Comments 4; CRA Comments 4–5.) It also to know where to send its demurrage 17 As shown below, this requirement is re- designated in the regulations as paragraph (a) of 49 addresses CP’s concern that the proposed rules bills. would ‘‘put the railroad in the middle’’ of a dispute CFR 1333.3. between the shipper and the warehouseman, which 18 With respect to the Class I carriers’ obligations CP alleges would be contrary to the provision in the 15 As discussed further in the Appendix below, for direct billing, a statement from one party that rail transportation policy that the Board should this joint notice may be given to the carrier by way the agreement has been terminated is sufficient to ‘‘provide for the expeditious handling and of a letter, such as the example provided in below. end the direct-billing requirement, regardless of any resolution of [disputes].’’ (See CP Comments 7–8 In addition, electronic signature of a joint notice disputes as to the sufficiency of the termination (citing 49 U.S.C. 10101(15)).) would be sufficient. See 15 U.S.C. 7001(a). Continued

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guidance on these notice requirements, in Demurrage Liability, EP 707. warehouseman. To harmonize § 1333.2 the Board has provided a sample letter However, the Board may modify its with the final rule, the Board will revise in the Appendix below that the rules as long as its actions are rational this section to be consistent with the warehouseman and shipper may use and fully explained.20 Here, these language in new § 1333.3(b). (but are not required to use) to notify the modifications comport with the spirit of Specifically, the Board will add a Class I carrier of their direct-billing Docket No. EP 707 (and with the other sentence stating that ‘‘a third-party agreement. actions the Board is currently pursuing intermediary may enter into contracts regarding demurrage) by advancing the with a shipper (or consignee) that the Direct-Billing Agreements in Relation to principle that demurrage should be shipper (or consignee) shall be billed for 49 U.S.C. 10746 assessed on a party that can alter its demurrage pursuant to § 1333.3(b).’’ To CSXT argues that a direct-billing behavior to help promote the efficient reflect the added sentence, the Board requirement is contrary to 49 U.S.C. use of rail assets. Below, the Board will update the section heading to ‘‘Who 10746 because ‘‘[f]orcing a railroad’s discusses the direct-billing rule as it May Charge Demurrage and Who May demurrage billing to be governed by relates to the current demurrage Enter into Contracts Pertaining to contracts to which that railroad is not a regulations at 49 CFR 1333.2 and 1333.3 Demurrage.’’ The full text of the revised party is directly inconsistent with and modifies 1333.2. section 1333.2 is set forth below. Congress’s instruction that railroads Furthermore, the Board does not find have the right to ‘compute demurrage 1. 49 CFR 1333.2 that payment guarantees from charges and establish rules related to CSXT and CN argue that a direct- warehousemen are necessary in direct- those charges’ in the first instance.’’ billing rule contradicts the language in billing agreements. After all, before (CSXT Comments 12.) However, 49 CFR 1333.2, which states that a 2014, railroads regularly billed shippers, requiring railroads to bill shippers ‘‘serving carrier and its customers rather than warehousemen, without instead of warehousemen for demurrage (including those to which it delivers rail holding warehousemen as guarantors.21 under specific circumstances does not cars at origin or destination) may enter Moreover, the Board rejects the view limit the railroads’ ability to compute into contracts pertaining to demurrage, that warehousemen should be demurrage and determine when it will but in the absence of such contracts, guarantors because they are the only apply. Indeed, as noted in Demurrage demurrage will be governed by the parties positioned to mitigate Liability, EP 707, slip op. at 3–4, the demurrage tariff of the serving carrier.’’ demurrage. As discussed in the NPRM, ICC, the Board, and the courts have all Based on this provision, CSXT and CN EP 759, slip op. at 3, warehousemen, by weighed in on whom the railroads could contend that the only contracts that can accepting rail cars, may be in a position charge for demurrage. These sorts of alter demurrage liability are those to to facilitate or impede car supply. actions are consistent with 49 U.S.C. which the serving carrier is a party. (CN However, in some cases, shippers may 10702, which authorizes the Board to Comments 13–14; CSXT Comments 12– be in a better position to affect car determine the reasonableness of 13.) Some of the Class I carriers indicate supply by, for example, modifying the railroad-established rates, rules, and that they would be willing to enter into frequency or volume with which they practices, and with 49 U.S.C. 1321(a), such contracts provided they maintain consign cars.22 The Board continues to which authorizes the Board to their ability to hold warehousemen find, as discussed in the NPRM, that ‘‘prescribe regulations in carrying out accountable when they deem it warehousemen and shippers are in the . . . subtitle IV.’’ 19 appropriate to do so. (CN Comments 19– best position to know which party can In establishing this final rule, the 20; CSXT Comments 12.) best promote the prompt handling of Board exercises its regulatory authority As noted, the Board may modify cars and hence which party should bear to ensure that carriers’ demurrage existing regulations as long as its actions responsibility for demurrage charges. practices allow shippers and are rational and adequately explained. 2. 49 CFR 1333.3 warehousemen, who are best positioned Here, the language of § 1333.2 relied on to determine which party between them by CN and CSXT permitting contracts In the NPRM, the Board stated that will typically be most able to promote between a ‘‘serving carrier and its while the ‘‘proposed rule would amend prompt movement of the cars, to make customers’’ does not prevent the Board the Board’s current regulations to agreements that reflect this from modifying the regulations to require Class I carriers to issue invoices determination. Allowing shippers and require direct billing to shippers in to shippers and to treat shippers as the warehousemen to reach direct-billing certain circumstances, and it provides ultimate guarantors of payment (when agreements that impose liability for no basis for a finding that payment the shipper and warehouseman agree to demurrage charges on the party best guarantees from warehousemen are that arrangement and have so notified positioned to mitigate the delays that necessary in direct-billing agreements. the rail carrier), . . . rail carriers are cause demurrage would promote the As before, under § 1333.2, a ‘‘serving already permitted to do so under the efficient use of rail assets, thereby carrier and its customers (including current rule,’’ which states that parties fulfilling the purpose of demurrage. those to which it delivers rail cars at 21 As Kinder Morgan points out, guarantees from Direct-Billing Agreements in Relation to origin or destination) may enter into warehousemen are unnecessary because ‘‘if the Demurrage Liability, EP 707 contracts pertaining to demurrage.’’ The railroads directly billed their shippers, at the final rule here merely adds another direction of the shipper and receiver as proposed Class I carrier commenters also argue option: A direct-billing arrangement by the Board, they would simply be engaging in that the direct-billing proposal arrangements that they have traditionally and between the shipper and customarily adopted and encouraged, without contradicts the regulations established issue, for many decades.’’ (Kinder Morgan Reply 20 See Nat’l Cable & Telecommc’ns Ass’n v. Brand 14–15.) under the terms of the specific agreement between X internet Servs., 545 U.S. 967, 981–82, 1001 (2005) 22 See, e.g., ILTA Comments 1, May 8, 2019, the shipper and warehouseman. (finding that an agency ‘‘is free within the limits of Oversight Hearing on Demurrage & Accessorial 19 See also H.R. Rep. No. 104–311, at 100 (1995); reasoned interpretation to change course if it Charges, EP 754; see also KCS Comments 3 H.R. Rep. No. 104–422, at 178 (1995) (Conf. Rep.) adequately justifies the change’’); Chevron, U.S.A., (acknowledging that ‘‘in some cases the (indicating that § 10746 ‘‘retains the agency’s Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, warehouseman or terminal operator is not the party authority over demurrage charges and related 863 (1984) (‘‘An initial agency interpretation is not that actually causes demurrage to accrue and that rules’’). instantly carved in stone.’’). responsibility lies with the shipper’’).

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who receive rail cars ‘‘may be held CSXT also contend that demurrage concludes that shippers that choose to liable for demurrage.’’ NPRM, EP 759, disputes can raise issues concerning enter into agreements with slip op. at 11 (quoting 49 CFR 1333.3). confidential shipper data. (CP warehousemen are capable of CN takes exception to the Board’s Comments 8; CSXT Comments 15–16.) determining, based on the facts and statement, contending that ‘‘the CSXT argues that shippers ‘‘will be in circumstances of their particular [NPRM’s] suggestions that a rail carrier a poor position to assess whether any situation, whether they are suited to is already permitted to issue direct bills demurrage charges are attributable to assess the factual issues associated with to shippers because they are ‘listed on railroad fault or to the receiver’s a demurrage dispute. If a particular the bill of lading’ has no support in the conduct (such as favoring one demurrage dispute between the carrier actual language of the Part 1333 customer’s traffic over others)’’ because and shipper involves information that is regulations,’’ which ‘‘effectively forbid ‘‘[i]nformation about incoming solely within the warehouseman’s bills to nonreceivers in the absence of shipments to other customers at that possession, the discovery of such an explicit agreement to that effect.’’ receiver facility will typically be information is best addressed in the (CN Comments 17; see also AAR protected by 49 U.S.C. 11904.’’ (CSXT context of the individual dispute.26 Comments 4, 6.) CN maintains that the Comments 15–16.) To account for To the extent carriers, shippers, and proposed rule cannot be reconciled with § 11904, CP requests that the Board warehousemen are having difficulty the Board’s prior decision to ‘‘ ‘place mandate that a warehouseman ‘‘obtain resolving demurrage disputes informally demurrage liability on the receiver of the consent of all its shippers for the or in another jurisdiction, the Board rail cars, regardless of their designation delivering railroad to disclose all strongly encourages them to avail in the bill of lading.’ ’’ (Id. at 17–18 shipment data associated with that themselves of the Board’s alternative (quoting Demurrage Liability, EP 707, receiving location necessary to allow the dispute resolution options (mediation, slip op. at 5).) shipper to audit the carrier’s invoicing.’’ arbitration,27 and the Rail Customer and The Board does not agree with CN’s (CP Comments 9.) CP also raises Public Assistance program 28). interpretation of the rule adopted in concerns about dispute resolution if it Docket No. EP 707. The Board pointed needs to pursue a shipper for demurrage Exclusion of Class II and III Carriers out in the NPRM (and in the proposed in an inconvenient forum or ‘‘in another In the NPRM, the Board explained policy statement in Docket No. EP 757) country altogether.’’ (Id. at 8.) CP states that it did not propose to require Class that § 1333.3 states, in permissive terms, that there ‘‘must be a clear path for II and Class III carriers to comply with that parties who receive rail cars ‘‘may formal resolution should the shipper the rule because it would be more costly be held liable for demurrage.’’ 23 In other refuse to pay due to delay or bunching for smaller carriers to do so and the words, § 1333.3 permits billing of that is not caused by the delivering rail demurrage issues raised by stakeholders warehousemen, but does not foreclose carrier.’’ (Id. at 9.) before the Board predominantly direct billing of shippers. None of this Apart from the fact that some pertained to Class I carriers. NPRM, EP prevents the Board from adopting, as it demurrage disputes may turn on 759, slip op. at 10–11. The Board does here, a final rule that explicitly information—such as the frequency and invited comment on the proposed requires shippers to be billed for volume of cars consigned—that is more exclusion of Class II and Class III demurrage under certain conditions. accessible to shippers than to carriers. Id. at 11. Furthermore, as discussed above, even if warehousemen, these claims ring Although some shippers find that that CN’s interpretation were accurate, hollow. Before 2014, direct billing of the demurrage issues most frequently which it is not, the Board is not shipper rather than the warehouseman involve Class I carriers, (see AFPM constrained from modifying regulations was common, and yet carriers were Comments 8; ISRI Comments 10), previously in effect, as long as its somehow able to resolve their highly several commenters express concerns actions are rational and adequately fact-specific demurrage disputes.24 about excluding Class II and Class III explained. Moreover, any information deficit an carriers,29 particularly those with larger, individual shipper may have vis-a`-vis Dispute Resolution the warehouseman—such as access to 26 CP makes an unwarranted request that the Some Class I carrier commenters information about incoming shipments Board mandate that warehousemen obtain consent, contend that the Board’s proposal from other customers at the presumably from multiple customers, to reveal would make demurrage disputes more what would otherwise be confidential shipper data warehouseman’s facility—would under § 11904. The Board and the courts are well- complex and difficult to resolve. CP presumably disadvantage the shipper suited to assist the parties in the resolution of argues that demurrage disputes rather than the railroad in a particular discovery disputes of this nature in individual cases frequently involve information that is dispute.25 Therefore, the Board through, for example, the use of third-party only within the warehouseman’s subpoenas and protective orders. 27 The Board notes that three of the Class I 24 possession, such as daily orders CP’s expressed concerns that carriers may be carriers have agreed to arbitrate certain demurrage submitted by the warehouseman, forced to pursue a shipper for demurrage in an disputes under the binding, voluntary program set inconvenient forum are unpersuasive given the long forth in 49 CFR part 1108. See UP Notice (June 21, pipeline information of other shippers, history of direct shipper billing before 2014. 2013), CSXT Notice (June 28, 2019), and CN Notice and information regarding cars arriving 25 As noted, some demurrage disputes may turn from other carriers (when the (July 1, 2019), Assessment of Mediation & on information that is more accessible to shippers Arbitration Procedures, EP 699. than to warehousemen, and warehousemen have warehouseman is served by more than 28 The Board’s Rail Customer and Public one carrier). (CP Comments 7.) CP and also argued that they cannot access relevant information because they do not have commercial Assistance (RCPA) office provides informal relationships with carriers. See, e.g., ILTA assistance to the public on a wide range of matters 23 CN cites to Demurrage Liability, EP 707, slip Comments 2, May 8, 2019, Oversight Hearing on within the Board’s expertise. The RCPA office can op. at 5, which states that the advance notice of Demurrage & Accessorial Charges, EP 754 (arguing be reached by telephone at 202–245–0238 or email proposed rulemaking in that proceeding ‘‘sought that the ‘‘the terminal—lacking a contractual at [email protected]. public input on whether the Board should consider relationship with the railroad—has no access to 29 (See FRCA Comments 5; AFPM Comments 8; a new rule that would place demurrage liability on information it would need to confirm or dispute Barilla Comments 3; CPC Comments 3.) It is unclear the receivers of rail cars, regardless of their charges’’). Because shippers and carriers, and whether some comments on this issue are intended designation in the bill of lading.’’ (See CN shippers and warehousemen, do have commercial to address exclusion of Class II and III carriers from Comments 17–18.) However, the Board ultimately relationships, the Board expects that direct-billing the minimum invoicing requirements aspect of the proposed and adopted permissive language in agreements could be drafted in such a way to rule, the direct-billing aspect, or both. For § 1333.3. reduce some information accessibility issues. Continued

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more sophisticated operations, (see to small carriers.30 The case-by-case circumscribed or mandated’’ by the FRCA Comments 5; AFPM Comments waiver approach suggested by some proposed rule. White Eagle Coop. v. 8). One commenter urges the inclusion shipper parties could be impractical and Conner, 553 F.3d 467, 480 (7th Cir. of Class II and Class III carriers for unduly burdensome for some small 2009). uniformity across the industry, (see ISRI carriers. Likewise, the Board declines to As discussed above, the final rule will Comments 10), and others fear that adopt AFPM’s proposal to make Class II apply only to Class I carriers. Class I carriers will seek to evade the carriers (but not Class III carriers) Accordingly, the Board again certifies rule by tasking Class II and Class III subject to the rule because, as noted under 5 U.S.C. 605(b) that this rule carriers with demurrage invoicing above, the record indicates most would not have a significant economic where possible, (see NITL Comments demurrage issues pertain to Class I impact on a substantial number of small 10; AF&PA Comments 10). carriers and the record does not justify entities as defined by the RFA.31 A copy Acknowledging that the new imposing the requirements on Class II of this decision will be served upon the requirements may be too burdensome carriers at this time. Nonetheless, the Chief Counsel for Advocacy, Office of for the smallest carriers, some Board continues to strongly encourage Advocacy, U.S. Small Business commenters suggest that the Board Class II and Class III carriers to comply Administration, Washington, DC 20416. apply the rule to all carriers and grant with the rule to the extent they are able Paperwork Reduction Act waivers on a case-by-case basis. (NITL to do so, but it will not make Comments 10; AF&PA Comments 10; compliance mandatory at this time. In this proceeding, the Board is AM Reply 5–6.) Others suggest that the modifying an existing collection of Conclusion Board exclude some or all Class III information that is currently approved carriers from the rule, but not Class II Consistent with this decision, the by the Office of Management and carriers. (AFPM Comments 8 (exclude Board adopts a final rule requiring Class Budget (OMB) under OMB Control No. all Class III carriers, but not Class II I carriers to directly bill the shipper for 2140–0021. In the NPRM, the Board carriers); FRCA Comments 5 (require demurrage without requiring the sought comments pursuant to the Class II carriers and Class III carriers warehouseman to act as a guarantor, Paperwork Reduction Act (PRA), 44 affiliated with large holding companies when the shipper and warehouseman U.S.C. 3501–3521, and OMB regulations to comply.)) agree to that arrangement and so notify at 5 CFR 1320.11, regarding: (1) Whether ASLRRA supports the Board’s the rail carrier, unless and until a party the collection of information, as proposal to exclude Class II and Class III to the agreement notifies both the Class modified, is necessary for the proper carriers, (see ASLRRA Comments 4), I carrier and the other party to the performance of the functions of the pointing out that shippers’ complaints agreement that the agreement is no Board, including whether the collection have been about Class I carriers and that longer in force. This rule is set out in has practical utility; (2) the accuracy of small carriers already ‘‘work closely full below and will be codified in the the Board’s burden estimates; (3) ways every day with their customers and if Code of Federal Regulations. to enhance the quality, utility, and clarity of the information collected; and there arises a question about invoices, Regulatory Flexibility Act services or anything else, the customer (4) ways to minimize the burden of the and small railroad resolve those issues The Regulatory Flexibility Act of 1980 collection of information on the in a timely manner directly between (RFA), 5 U.S.C. 601–612, generally respondents, including the use of them,’’ (see ASLRRA Reply 6–7). requires a description and analysis of automated collection techniques or ASLRRA questions the workability of new rules that would have a significant other forms of information technology, some commenters’ suggestion that Class economic impact on a substantial when appropriate. The Board received II and Class III carriers could file for number of small entities. In drafting a one comment, from CN, in response to individual waivers, which, it states, rule, an agency is required to: (1) Assess the Board’s PRA analysis in the NPRM would be an expensive and time- the effect that its regulation will have on regarding the requirement that railroads consuming process for small carriers small entities, (2) analyze effective directly bill the shipper for demurrage with limited resources. (ASLRRA Reply alternatives that may minimize a when the shipper and warehouseman 7.) Importantly, ASLRRA dismisses regulation’s impact, and (3) make the agree to that arrangement and so notify commenters’ concerns that Class I analysis available for public comment. the rail carrier.32 carriers would assign demurrage billing §§ 601–604. In its final rule, the agency to Class II and Class III carriers to avoid must either include a final regulatory 31 For the purpose of RFA analysis, the Board flexibility analysis, § 604(a), or certify defines a ‘‘small business’’ as only including those the rule, arguing that Class I carriers rail carriers classified as Class III carriers under 49 will not ‘‘want to cede the control of that the proposed rule would not have CFR 1201.1–1. See Small Entity Size Standards their operations or practices to others or a ‘‘significant impact on a substantial Under the Regulatory Flexibility Act, EP 719 (STB the compensation they receive for the number of small entities,’’ § 605(b). served June 30, 2016) (with Board Member Because the goal of the RFA is to reduce Begeman dissenting). Class III carriers have annual misuse of their rail assets.’’ (Id. at 8.) operating revenues of $20 million or less in 1991 In the NPRM, EP 759, slip op. at 10, the cost to small entities of complying dollars ($39,194,876 or less when adjusted for 11, the Board proposed to exclude Class with federal regulations, the RFA inflation using 2018 data). Class II carriers have requires an agency to perform a annual operating revenues of less than $250 million II and Class III carriers because the in 1991 dollars ($489,935,956 when adjusted for demurrage issues raised by stakeholders regulatory flexibility analysis of small inflation using 2018 data). The Board calculates the in Docket No. EP 754 predominantly entity impacts only when a rule directly revenue deflator factor annually and publishes the pertained to Class I carriers. The regulates those entities. In other words, railroad revenue thresholds on its website. 49 CFR comments have not changed the Board’s the impact must be a direct impact on 1201.1–1; Indexing the Annual Operating Revenues small entities ‘‘whose conduct is of R.Rs., EP 748 (STB served June 14, 2019). view on this issue, nor do they provide 32 In its initial comments, ASLRRA questions the any realistic basis for concluding that source of the estimated 677 burden hours in the Class I carriers will seek to avoid the 30 Should sufficient evidence be presented in the NPRM. This estimate comes from the existing future that Class I carriers are attempting to avoid collection for which the Board is seeking a rule by assigning their demurrage billing the rule by assigning their demurrage claims modification. In other words, the burden analysis processing to smaller connecting carriers, the Board in the Appendix of the NPRM included the burdens completeness, all potentially applicable comments can revisit this issue and propose any warranted for the existing portion of the collection being are addressed here. modifications to the rule. modified by this final rule.

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CN argues that it would take longer 3. A copy of this decision will be intermediary is responsible pursuant to than five minutes to permanently served upon the Chief Counsel for an agreement between the shipper (or implement direct billing to a terminal Advocacy, Office of Advocacy, U.S. consignee) and the third-party customer. CN argues that, if it were Small Business Administration. intermediary. The joint notice required required to change its billing for the 500 Decided: April 30, 2020. by this paragraph may be provided in terminals it serves in its U.S. network, By the Board, Board Members Begeman, hard copy or electronic form, and must then it ‘‘conservatively estimates that Fuchs, and Oberman. contain the contact information for the each large terminal of more than 5 Jeffrey Herzig, shipper (or consignee) who has agreed shippers would require 1 hour of Clearance Clerk. to be billed (and liable to the Class I processing time per month, every carrier) for demurrage and provide the month, and each small terminal would For the reasons set forth in the preamble, the Surface Transportation date upon which the Class I carrier is to require 30 minutes per month, plus begin billing the shipper (or consignee) additional time at start up were they to Board amends part 1333 of title 49, for demurrage (no earlier than 20 days opt for direct billing.’’ (CN Comments chapter X, of the Code of Federal after the notice is provided). With 21–22.) However, Class I carriers are Regulations as follows: only required to directly bill the shipper respect to Class I carriers’ obligations for PART 1333—DEMURRAGE LIABILITY for demurrage when the shipper and direct billing, a statement from one party that the agreement has been warehouseman agree to that ■ 1. Revise the authority citation for part terminated is sufficient to end the arrangement and so notify the rail 1333 to read as follows: carrier. The Board estimates that each direct-billing requirement, regardless of Class I railroad would receive Authority: 49 U.S.C. 1321, 10702, and any disputes as to the sufficiency of the 10746. approximately 60 of these agreements termination under the terms of the per year. The Board therefore disagrees ■ 2. Section 1333.2 is revised to read as specific agreement between the shipper with CN’s burden-hour and frequency follows: (or consignee) and third-party intermediary. estimates. Nevertheless, Board staff has § 1333.2 Who May Charge Demurrage and reviewed its burden-hour estimates to Who May Enter into Contracts Pertaining to Note: The following appendix will not prepare for such direct billing and, to Demurrage. appear in the Code of Federal Regulations. reflect the fact that the requests for A serving carrier and its customers direct billing could increase a carrier’s (including those to which it delivers rail Appendix workload, has increased its estimate cars at origin or destination) may enter Sample Letter from five minutes per agreement to one into contracts pertaining to demurrage. 33 hour per agreement. Additionally, a third-party intermediary [Date] No other railroads commented on the may enter into contracts with a shipper [Shipper’s (or Consignee’s) Name] Board’s estimates. (or consignee) that the shipper (or [Shipper’s (or Consignee’s) Mailing Address] This modification to an existing consignee) shall be billed for demurrage [Shipper’s (or Consignee’s) Phone Number] collection, along with CN’s comment pursuant to section 1333.3(b). However, [Shipper’s (or Consignee’s) Email Address] and the Board’s response, will be in the absence of such contracts, [Third-Party Intermediary’s Name] submitted to OMB for review as demurrage will be governed by the [Third-Party Intermediary’s Mailing Address] required under the PRA, 44 U.S.C. demurrage tariff of the serving carrier. [Third-Party Intermediary’s Phone Number] 3507(d), and 5 CFR 1320.11. ■ 3. In § 1333.3, redesignate the existing [Third-Party Intermediary’s Email Address] Congressional Review Act text as paragraph (a) and add paragraph Dear [Serving Class I Carrier]: (b) to read as follows: Pursuant to the Congressional Review [Shipper’s (or Consignee’s) Name] and [Third-Party Intermediary’s Name] have Act, 5 U.S.C. 801–808, the Office of § 1333.3 Who Is Subject to Demurrage. Information and Regulatory Affairs has reached an agreement that [Shipper’s (or (a) * * * Consignee’s) Name] shall be billed for designated this rule as non-major, as (b) If the rail cars are delivered to a demurrage as of [date], and that [Shipper’s defined by 5 U.S.C. 804(2). third-party intermediary that has (or Consignee’s) Name] shall be liable to List of Subjects in 49 CFR Part 1333 reached an agreement with a shipper (or [Serving Class I Carrier] for demurrage that consignee) that the shipper (or accrues on all of the shipments received by Penalties, Railroads. consignee) shall be billed for demurrage, [Third-Party Intermediary’s Name] from It is ordered: then the serving Class I carrier shall, [Shipper’s (or Consignee’s) Name] during the 1. The Board adopts the final rule as after being jointly notified of the term of the agreement. set forth below. Notice of the final rule agreement by the shipper (or consignee) Sincerely, will be published in the Federal and third-party intermediary, bill the lllllllllllllllllllll Register. shipper (or consignee) for demurrage Shipper’s (or Consignee’s) Name 2. This decision is effective on June charges without requiring the third- 20, 2020. party intermediary to act as a guarantor, lllllllllllllllllllll unless and until a party to the Shipper’s (or Consignee’s) Signature 33 The Board also clarifies that its burden agreement notifies both the serving lllllllllllllllllllll estimates are on a per agreement basis (see NRPM, Class I carrier and the other party to the Third-Party Intermediary’s Name EP 759, slip op. at 16), not on a per invoice basis agreement that the agreement is no lllllllllllllllllllll (see id. at 17, inadvertently referencing per invoice). CN suggests that, if only some terminal customers longer in force. Pursuant to this Third-Party Intermediary’s Signature agree to direct billing and so notify CN, it would paragraph, the shipper (or consignee) [FR Doc. 2020–09683 Filed 5–5–20; 8:45 am] be ‘‘required to devote significant staffing needs to shall be liable to the Class I carrier for BILLING CODE 4915–01–P creating and separating the bills.’’ (CN Comments demurrage but shall not be prohibited 22.) This general concern does not challenge the Board’s frequency estimate (60 agreements per Class from seeking payment from the third- I carrier), nor does it provide specific burden hours party intermediary for demurrage based on a more limited number of agreements. charges for which the third-party

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SURFACE TRANSPORTATION BOARD also 49 CFR pt. 1201, category 106.2 In response to the NPPS, the Board Accessorial charges are not specifically received 44 comments and 13 replies.6 49 CFR Part 1333 defined by statute or regulation but are After considering the comments generally understood to include charges received, along with the record in the [Docket No. EP 757] other than line-haul and demurrage Oversight Proceeding, the Board is Policy Statement on Demurrage and charges. See Revisions to Arbitration issuing this statement of Board policy. Accessorial Rules and Charges Procedures, EP 730, slip op. at 7–8 (STB Through this policy statement, the served Sept. 30, 2016). As discussed Board expects to facilitate more effective AGENCY: Surface Transportation Board. below, this policy statement pertains to private negotiations and problem ACTION: Statement of Board policy. accessorial charges that, like demurrage solving between rail carriers and charges, are designed or intended to shippers and receivers on issues SUMMARY: The Surface Transportation encourage the efficient use of rail assets. concerning demurrage and accessorial Board (STB or Board) is issuing this On October 7, 2019, the Board issued, rules and charges; to help prevent policy statement, following public for public comment, a notice of unnecessary future issues and related notice and comment, to provide the proposed statement of Board policy disputes from arising; and, when they public with information on principles providing information with respect to do arise, to help resolve them more the Board would consider in evaluating certain principles it would consider in efficiently and cost-effectively. The the reasonableness of demurrage and evaluating the reasonableness of Board is not, however, making any accessorial rules and charges. demurrage and accessorial rules and binding determinations by this policy DATES: This policy statement is effective charges. See Policy Statement on statement. Nor is the Board promoting on May 30, 2020. Demurrage & Accessorial Rules & complete uniformity across rail carriers’ demurrage and accessorial rules and FOR FURTHER INFORMATION CONTACT: Charges (NPPS), EP 757 (STB served Sarah Fancher at (202) 245–0355. Oct. 7, 2019).3 As described in the charges; the principles discussed in this policy statement recognize that there Assistance for the hearing impaired is NPPS, EP 757, slip op. at 2–3, that may be different ways to implement and available through the Federal Relay action arose, in part, as a result of the administer reasonable rules and charges. Service at (800) 877–8339. testimony and comments submitted in Oversight Hearing on Demurrage & SUPPLEMENTARY INFORMATION: Accessorial Charges (Oversight slip op. at 22–25 (Appendix listing the parties who Demurrage is subject to Board regulation provided comments or testimony in the under 49 U.S.C. 10702, which requires Proceeding), Docket No. EP 754. The proceeding). railroads to establish reasonable rates Board commenced the Oversight 6 The Board received comments and/or reply and transportation-related rules and Proceeding by notice served on April 8, comments from: The American Chemistry Council 2019 (April 2019 Notice), following (ACC); the American Forest & Paper Association practices, and under 49 U.S.C. 10746, (AF&PA); American Fuel & Petrochemical concerns expressed by users of the Manufacturers (AFPM); the American Iron and which requires railroads to compute 4 demurrage charges, and establish rules freight rail network (rail users) and Steel Institute (AISI); the American Short Line and Regional Railroad Association (ASLRRA); related to those charges, in a way that other stakeholders about recent changes to demurrage and accessorial tariffs ArcelorMittal USA LLC (AM); Archer Daniels will fulfill the national needs related to Midland Company; the Association of American administered by Class I carriers, which Railroads (AAR); Auriga Polymers, Inc. a wholly freight car use and distribution and 5 maintenance of an adequate car supply.1 the Board was actively monitoring. owned subsidiary of Indorama, NA, on behalf of Indorama Ventures affiliates (Auriga/Indorama); the Demurrage is a charge that serves 2 In Demurrage Liability (Demurrage Liability Automobile Carriers Conference; Barilla America, principally as an incentive to prevent Final Rule), EP 707, slip op. at 15–16 (STB served Inc. (Barilla); BNSF Railway Company (BNSF); undue car detention and thereby Apr. 11, 2014), the Board clarified that private car Canadian National Railway Company (CN); storage is included in the definition of demurrage Canadian Pacific Railway Company (CP); The encourage the efficient use of rail cars Chlorine Institute (CI); The Corn Refiners in the rail network, while also providing for purposes of the demurrage regulations established in that decision. The Board uses the Association (CRA); CSX Transportation, Inc. compensation to rail carriers for the same definition for purposes of this policy (CSXT); Diversified CPC International, Inc. expense incurred when rail cars are statement. (Diversified CPC); Dow, Inc. (Dow); The Fertilizer Institute (TFI); the Freight Rail Customer Alliance 3 Notice was published in the Federal Register, unduly detained beyond a specified (FRCA); Growth Energy; the Industrial Minerals 84 FR 54,717 (Oct. 10, 2019). period of time (i.e., ‘‘free time’’) for Association—North America (IMA–NA); the 4 loading and unloading. See Pa. R.R. v. As used in this policy statement, the term ‘‘rail Institute of Scrap Recycling Industries, Inc. (ISRI); users’’ broadly means any person or business that Kittaning Iron & Steel Mfg. Co., 253 U.S. International Paper; the International Warehouse receives rail cars for loading or unloading, Logistics Association (IWLA); The Kansas City 319, 323 (1920) (‘‘The purpose of regardless of whether that person or business has Southern Railway Company (KCS); Kinder Morgan demurrage charges is to promote car a property interest in the freight being transported. Terminals (Kinder Morgan); the National efficiency by penalizing undue This policy statement uses the terms Association of Chemical Distributors (NACD); the ‘‘warehousemen’’ or ‘‘third-party intermediaries’’ to detention of cars.’’); 49 CFR 1333.1; see National Coal Transportation Association (NCTA); refer more specifically to those entities with no the National Grain and Feed Association (NGFA) property interest in the freight. (supported by the Agricultural Retailers 1 The Board’s authority to regulate demurrage 5 The April 2019 Notice announced a public Association; the Pet Food Institute; the National includes, among other things, transportation under hearing, at which Class I carriers were directed to Oilseed Processors Association and the North the exemptions set forth in 49 CFR 1039.11 appear, and shippers, receivers, third-party logistics American Millers’ Association); The National (miscellaneous commodities exemptions) and providers, and other interested parties were invited Industrial Transportation League (NITL); the section 1039.14 (boxcar transportation exemptions). to participate. The notice also directed Class I National Mining Association; the North American The Board recently amended those regulations to carriers to provide specific information on their Freight Car Association (NAFCA); Omaha Public state more clearly that the exemptions do not apply demurrage and accessorial rules and charges; Power District (OPPD); Peabody Energy to the regulation of demurrage. It also revoked, in required all hearing participants to submit written Corporation; Plastic Express/PX Services (Plastic part, the class exemption for the rail transportation testimony (both in advance of the hearing); and Express); the Portland Cement Association (PCA); of certain agricultural commodities at 49 CFR permitted comments from interested parties who the Private Railcar Food and Beverage Association, 1039.10 so that the exemption does not apply to the did not appear. The Board received over 90 pre- Inc. (PRFBA); Union Pacific Railroad Company regulation of demurrage, making it consistent with hearing submissions; heard testimony over a two- (UP); and the Western Coal Traffic League and similar class exemptions covering non-intermodal day period from 12 panels composed of, Seminole Electric Cooperative, Inc. (WCTL/SEC). rail transportation. Exclusion of Demurrage collectively, over 50 participants; and received 36 Two comments were filed after the comment Regulation from Certain Class Exemptions post-hearing comments. That record, which is deadline of November 6, 2019. In the interest of a (Demurrage Exclusion Final Rule), EP 760 (STB detailed in the NPPS and summarized below, is more complete record, the late-filed comments are served Feb. 28, 2020). available in Docket No. EP 754. See NPPS, EP 757, accepted into the record.

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When adjudicating specific cases, the reasonable,9 and further, it is carriers established individualized Board will consider all facts and unreasonable to charge demurrage for demurrage programs in the post- arguments presented in such cases. delays attributable to the rail carrier. Staggers Act 12 era, they stopped The Board encourages all carriers, and See, e.g., R.R. Salvage & Restoration, breaking out demurrage charges into all shippers and receivers, to work Inc., NOR 42102 et al., slip op. at 4 (‘‘a incentivizing (punitive) and toward collaborative, mutually shipper is not required to compensate a compensatory (per diem) components. beneficial solutions to resolve disputes railroad for delay in returning the asset Cases involving disputed charges are no on matters such as those raised in the if the railroad and not the shipper is longer decided on that basis, and, in the Oversight Proceeding 7 and intends for responsible for the delay’’). The Board Oversight Proceeding, AAR eschewed a this policy statement to provide useful also reiterated its concerns about return to the former system.13 The guidance to all stakeholders. demurrage charges for delays that a compensatory function of demurrage is shipper or receiver did not cause. NPPS, achieved, along with its incentivizing Historical Overview and General EP 757, slip op. at 7 (citing Utah Cent. function, by permitting the delivering Principles Ry.—Pet. for Declaratory Order—Kenco carrier to retain the charges assessed for The NPPS, EP 757, slip op. at 4–7, Logistic Servs., LLC, FD 36131, slip op. a rail user’s undue detention of rail provides a detailed historical overview at 12 n.38 (STB served Mar. 20, 2019); assets. and summary of general principles Exemption of Demurrage from AAR also argues that ‘‘[t]he law is related to demurrage. The Board here Regulation, EP 462, slip op. at 4 (STB well settled that assessment of addresses some of the more general served Mar. 29, 1996)). The Board stated demurrage charges in no way depends comments raised by commenters before that where demurrage charges are upon a finding of shipper or consignee turning to comments about the specific imposed for circumstances beyond the fault.’’ (AAR Comments 6 (quoting issues addressed in the policy shipper’s or receiver’s reasonable Foreston Coal Int’l v. Balt. & Ohio R.R., statement. control, they do not accomplish their 349 I.C.C. 495, 500 (1975).) AAR’s Rail users generally support the purpose to incentivize behavior to argument, however, fails to take full proposed policy statement and endorse encourage efficiency—the stated account of the caselaw on this issue. As its key principles. Many rail carrier rationale for and objective of the rail an initial matter, AAR overlooks that commenters also either generally carriers’ demurrage rules and charges.10 each case stands on its own facts, as the support or do not take exception to the In its comments, AAR claims that the agency retains broad discretion to general principles discussed in the proposed policy statement ‘‘ignore[s] determine whether demurrage charges, proposed policy statement. In the compensation function of under all the circumstances of a particular, several Class I carriers voiced demurrage.’’ (AAR Comments 4.) But particular case (including fault), are support for two key principles: That the Board’s regulations and the NPPS reasonable under section 10702 and there may be different ways to recognize this dual role, see NPPS, EP comport with the statutory requirements implement and administer reasonable 757, slip op. at 2 (citing 49 CFR 1333.1), specified in section 10746.14 Also demurrage rules and practices, and that and the Board recognizes and reaffirms overlooked is the fact that, as AAR disputes pertaining to demurrage are here that carriers should be acknowledged in the Oversight best resolved on a case-specific basis compensated when a rail user unduly Proceeding, historically under that considers all pertinent facts. (See detains rail assets. As noted by one rail ‘‘straight’’ demurrage programs,15 ‘‘the BNSF Comments 2–3; CSXT Comments carrier in the Oversight Proceeding, 3; UP Comments 2; CN Reply Comments ‘‘Congress framed the purposes of equipment.’’ 1 I.C.C.2d at 933. ‘‘Unlike per diem 3.) AAR, however, raises objections, demurrage not in terms of cost recovery and allowances, the primary purpose of demurrage and storage charges is not to compensate the owner which are shared by some carriers, to . . ., but rather in terms of incentives.’’ CN Comments 8, June 6, 2019, Oversight of the car, but to enhance efficient car use by certain language in the proposed policy ensuring the prompt turnaround of equipment.’’ Id. statement related to compensation and Proceeding, EP 754. In other words, at 934. the imposition of demurrage charges for under the operative statutory 12 Staggers Rail Act of 1980, Public Law 96–448, delays beyond a rail user’s reasonable framework, demurrage rules and charges 94 Stat. 1895. must serve an incentivizing function. 13 See AAR Comments 8, June 6, 2019, Oversight control. (See AAR Comments 1–6; CSXT Proceeding, EP 754 (stating that ‘‘[a]fter Staggers, it Comments 1–2; CP Comments 15–16; And, as AAR itself recognized in the Oversight Proceeding, demurrage and was no longer necessary or appropriate to require KCS Comments 3, 5.) railroads to use uniform demurrage tariffs that storage charges have long been In its discussion of general principles, included prescribed terms, compensatory and considered ‘‘primarily a penalty to deter penalty elements, and regulated rates’’). the Board stated that the overarching undue car detention, and to a lesser 14 See, e.g., N. Am. Freight Car Ass’n v. BNSF Ry., purpose of demurrage is to incentivize extent, compensation to the railroad for NOR 42060 (Sub-No. 1), slip op. at 8 (STB served the efficient use of rail assets (both Jan. 26, 2007) (stating that Congress ‘‘gave the Board expenses incurred.’’ AAR Comments 4, equipment and track) by holding rail ‘broad discretion to conduct case-by-case fact- June 6, 2019, Oversight Proceeding, EP users accountable when their actions or specific inquiries to give meaning to [section 754 (quoting R.Rs. Per Diem, Mileage, 10702’s statutory] terms, which are not self- operations use those resources beyond a Demurrage & Storage—Agreement, 1 defining’ ’’ and explaining that ‘‘[t]his broad specified period of time. NPPS, EP 757, discretion is necessary to permit the Board to tailor I.C.C.2d 924, 933 (1985)).11 When slip op. at 6–7 (citing Kittaning, 253 U.S. its analysis to the evidence proffered and arguments at 323).8 That period of time must be asserted under a particular set of facts’’ (citing 9 See, e.g., Kittaning, 253 U.S. at 323 (‘‘[T]he Granite State Concrete Co. v. STB, 417 F.3d 85, 92 shipper or consignee . . . is entitled to detain the (1st Cir. 2005))); N. Am. Freight Car Ass’n v. STB, 7 For example, KCS reportedly forgave significant car a reasonable time . . . .’’); R.R. Salvage & 529 F.3d 1166, 1170–71 (DC Cir. 2008) (agency has demurrage bills because the shipper had agreed to Restoration, Inc.—Pet. for Declaratory Order— ‘‘wide discretion in formulating appropriate spend at least an equal amount to build capacity to Reasonableness of Demurrage Charges, NOR 42102 solutions’’ when dealing with complex matters store its own cars. KCS Comments 5, May 8, 2019, et al., slip op. at 4 (STB served July 20, 2010) (time within its expertise, including claims involving Oversight Proceeding, EP 754. period must be reasonable). statutory obligations under section 10702 and 8 Accord Increased Demurrage Charges, 1956, 300 10 See, e.g., citations infra note 23. section 10746 (citation omitted)). I.C.C. 577, 585 (1957) (‘‘The primary purpose of 11 As the Interstate Commerce Commission also 15 Historically, the detention of freight rail cars demurrage regulations is to promote equipment explained in that decision, ‘‘[d]emurrage and was governed by a uniform code of demurrage rules efficiency by penalizing the undue detention of storage charges are assessed by railroads against and charges, which offered shippers and receivers cars.’’ (citation omitted)). shippers or receivers for undue detention of Continued

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shipper or receiver was not assessed As noted above, rail users generally them to the railroad before demurrage demurrage if severe weather or other support the proposed policy statement, charges are assessed.21 The Board circumstances beyond their control and several agree with the Board that explained that free time, which prevent[ed] them from returning cars on the principles outlined in the NPPS railroads may set within reasonable time.’’ AAR Comments 5, June 6, 2019, would help prevent disputes from limits, helps temper adverse impacts to Oversight Proceeding, EP 754. AAR also arising, and, when they do arise, help rail users of delays arising from service overlooks more recent Board decisions, resolve them more efficiently and cost- variability, and plays a role in the credit discussed in the NPPS, EP 757, slip op. effectively.19 Some voiced concern that and debit rules and practices of many at 6–7, expressing concern about carriers would not voluntarily change rail carriers. NPPS, EP 757, slip op. at holding a rail user liable for demurrage certain rules and practices and called 8. attributable to delays beyond its for further prescriptive actions.20 Such The NPPS also explained that, until reasonable control. Several carriers prescriptive actions are not appropriate recently, rail carriers typically provided acknowledged at the oversight hearing for inclusion in a policy statement, and at least 24 hours of free time (or one various circumstances in which it the Board declines at this time to take credit day) to load rail cars and at least would not be appropriate to charge a further regulatory action beyond the 48 hours of free time (or two credit customer for delays the customer did actions taken in Demurrage Exclusion days) to unload cars.22 NPPS, EP 757, not cause,16 and UP and ASLRRA Final Rule, Docket No. EP 760, and the slip op. at 8 (citing Portland & W. R.R.— affirmatively state that demurrage actions under consideration in Pet. for Declaratory Order—RK Storage should not be charged to rail users for Demurrage Billing Requirements, Docket & Warehousing, Inc., FD 35406, slip op. delays beyond their reasonable No. EP 759. However, the Board will at 5 (STB served July 27, 2011).) Some control.17 remain open to argument that these Class I carriers use alternative rules and concerns and suggestions should be practices for private cars in which no In sum, the Board finds that AAR’s considered in future proceedings in credit days are given as a proxy for free arguments are misplaced, as there have assessing the reasonableness of time. NPPS, EP 757, slip op. at 8–9. been long-standing concerns about rail demurrage rules and charges and Recent reductions in free time users being held responsible for whether they comport with the implemented by several Class I carriers circumstances beyond their reasonable objectives specified in section 10746. were a major focal point of the Oversight control. The proposed policy statement Further, carriers are encouraged to Proceeding. At least one rail carrier properly focused on the foundational thoughtfully consider rail users’ reduced the number of credit days for questions that arise in determining concerns and suggestions—along with loading and unloading private cars, in whether demurrage rules and charges the principles discussed below—as some circumstances, from two to zero. are reasonable and designed to fulfill potential solutions that would promote Some other rail carriers reduced free national needs related to freight car use the goals of transparency, timeliness, time for unloading from 48 to 24 hours and distribution, and to maintenance of and mutual accountability stakeholders (or two credit days to one) for both an adequate car supply, under 49 U.S.C. broadly profess to embrace. private and railroad-owned cars. In its 10746.18 Free Time April 2019 Notice, the Board directed the Class I carriers to submit two alternative methods for computing demurrage: In the NPPS, EP 757, slip op. at 7–10, information on a list of specified Straight demurrage and average demurrage. Under the Board described the background and subjects, including all tariff changes the straight demurrage plan, which historically current issues surrounding free time— applied in the absence of any other arrangement since January 2016 pertaining to the with the rail carrier, charges were applied and the period of time allowed for a rail user amount of free time allowed for loading billed on individual cars at daily rates when cars to finish using rail assets and return and unloading rail cars and the were detained beyond the allowable free time. See reason(s) for the change. April 2019 NPPS, EP 757, slip op. at 4. The Board mentions 19 See, e.g., ACC Comments 3; ISRI Comments 8, straight demurrage programs here not to suggest a 12 (also noting that the policy statement Notice, EP 754, slip op. at 2–3. return to the former system but rather to give a more appropriately ‘‘provid[es] flexibility to account for Rail carriers that reduced free time complete account of the law and history on the differing factual circumstances inherent in the identified similar objectives and issue. receipt and shipment of goods by rail’’); Barilla rationales for doing so: to better align 16 See, e.g., UP Comments 10–11, 14, 23, June 6, Comments 2–3 (principles will ‘‘establish a 2019 (filing ID 247892), Oversight Proceeding, EP foundation for the railroads and their customers to the behavior of shippers and receivers 754; Hr’g Tr. 146:11 to 147:1, May 22, 2019, recognize one another as partners when addressing in order to promote network fluidity for Oversight Proceeding, EP 754 (CSXT agreeing that issues and potential [rule] changes in the future’’; the benefit of all rail users through demurrage should not be assessed where charges also noting that some rules discussed at the improved service reliability and penalize a shipper who is powerless to avoid or oversight hearing have since been removed); abate the detention); Hr’g Tr. 923:8 to 924:16, May AF&PA Comments 3 (principles in the policy reduced cycle times. These carriers 23, 2019, Oversight Proceeding, EP 754 (BNSF statement provide ‘‘provide valuable guidance for agreeing that ‘‘it’s not a strict liability standard in the future administration of demurrage and 21 As the Supreme Court has noted, ‘‘the duty of the law or in practice’’ and noting language in its accessorial charges’’); IMA–NA Comments 2 (same); loading and of unloading carload shipments rests tariffs excusing demurrage for force majeure events CI Comments 1 (policy statement ‘‘should assist in upon the shipper or consignee. To this end he is beyond the control of a shipper). resolving many of the problems with demurrage entitled to detain the car a reasonable time without 17 See UP Comments 3 (also endorsing same and accessorial rules and charges’’). any payment in addition to the published freight principle for accessorial charges); ASLRRA 20 Several parties state that the Board should rate.’’ Kittaning, 253 U.S. at 323. Comments 4. require railroads to comply with and incorporate 22 Tariff provisions typically define the amount of 18 In response to AAR’s assertion that a policy the policy statement into their tariffs. (See, e.g., free time provided in terms of 24-hour periods or statement cannot be used to change the law, (see Kinder Morgan Comments 2, 11–12; AISI ‘‘credit days,’’ which commonly begin to run at AAR Comments 5), the Board reiterates that this Comments 6–7; PCA Comments 3–4; WCTL/SEC 12:01 a.m. the day following actual or constructive policy statement articulates what the Board may Comments 5. See also AM Comments 5; NCTA placement (a status assigned when a rail car is consider in future decisions and does not constitute Comments 4–5; NGFA Comments 3, 21–22 (arguing available for delivery but cannot actually be placed a binding determination by the Board or seek to that the Board should adopt binding rules or final at the receiver’s destination because of a condition change the law. See NPPS, EP 757, slip op. at 3– guidelines and direct railroads to conform within attributable to the receiver such as lack of room on 4. The general principles and non-binding specified time); FRCA Comments 5 (arguing that the tracks in the receiver’s facility, see Savannah considerations discussed in a statement of Board ‘‘the Board should require carriers to certify that Port Terminal R.R.—Pet. for Declaratory Order— policy—particularly one that was published for their rules and practices comply with Board’s Certain Rates & Practices as Applied to Capital public comment—are well within the bounds of standards’’ and impose penalties if noncompliance Cargo, Inc., FD 34920, slip op. at 3 n.6 (STB served appropriate agency action. is demonstrated).) May 30, 2008)).

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stated that the reductions were made to changes. See NPPS, EP 757, slip op. at example, carrier-caused circumstances enable them to optimize network 11. give rise to a situation in which it is efficiencies and provide better, more Comments from rail users on the beyond the rail user’s reasonable control reliable service; that the changes were NPPS broadly reiterate these concerns to avoid charges, the overarching not made to generate revenue; and that and suggest that the Board should take purpose of demurrage is not fulfilled. their hope is that recent revenue more binding action.24 Comments from As stated in the NPPS, EP 757, slip increases generated from demurrage rail carriers on the NPPS were largely op. at 12, such circumstances might charges will be temporary as shippers silent about its discussion of free time. include, for example, charging and receivers adapt and respond CP states that its customers adapted to demurrage that accrues as a result of a because, in the words of one rail carrier, free-time reductions implemented in missed switch (both cars scheduled to ‘‘the intention is to improve service, not 2013 by adding track capacity, using CP be switched and incoming cars drive cost increases for our tools to better manage their pipeline, impacted by the missed switch); customers.’’ 23 Rail carriers’ post-hearing and adjusting labor schedules, and that charging demurrage for transit days to submissions largely reiterated these CP is moving more cars while move cars from constructive placement points and expressed willingness to demurrage charges have decreased. (CP in remote locations; or charging work with customers to help them align Comments 7.) UP states that it has demurrage that arises from bunched their behavior to better meet the worked collaboratively with customers deliveries substantially in excess of the reductions in free time. While the Board over the past year and that ‘‘the vast number of cars ordered until the rail recognizes that some changes and rail majority’’ have successfully adapted to user has had a reasonable opportunity to carrier outreach occurred following the a reduction in free time from 48 hours process the excess volume of incoming hearing, it is apparent that many issues to 24 hours. (UP Reply 2.) cars. Changes in historical practices on related to free time remain. Demurrage serves a valuable purpose which the rail user has long relied (e.g., In the Oversight Proceeding, to encourage the efficient use of rail regarding switching frequency or interested parties from many industries assets (both equipment and track) by delivery methods that deviate from prior expressed multiple concerns about the holding rail users accountable when arrangements made by the parties) may recent reductions in free time. Several their actions or operations use those also be taken into account.26 stated that they lacked the physical assets beyond a specified period of time. Lastly, the Board remains concerned capacity or capital needed to expand That period of time must be reasonable that, in some circumstances, such facilities to meet the reduced free-time and consistent with the overarching reductions in free time may jeopardize periods. Many reported that bunching or purpose of demurrage. The Board important goals of the nation’s rail otherwise unreliable service is a major continues to have serious concerns transportation policy by rendering obstacle to meeting the reduced free- about the adverse impacts of reductions freight rail service less likely to meet the time periods, and that the recent in free time to rail users, including the needs of the public and, if other modes reductions have made it more difficult potentially negative consequences of are even effectively an option for a rail and costly to deal with unreliable providing no credit days for private cars user, less competitive with other service because the free time that has if rail carriers do not have reasonable transportation modes.27 been eliminated had served as an rules and practices for dealing with, The Board recognizes that reductions important buffer against unpredictable among other things, variability in in free time might be justified if there railroad performance. Rail users that service and carrier-caused bunching, were evidence to show, by way of rely on private rail cars expressed and for ensuring that rail users have a example, that (1) advances in additional objections and concerns and reasonable opportunity to evaluate their technology or productivity have made noted that there has been a significant circumstances and order incoming cars compliance with the shorter time frames industry shift from rail carrier before demurrage begins to accrue. reasonably achievable; (2) service ownership of rail cars to private car Some of these reductions to free time or improvements resulting from more ownership since the enactment of credit days may make it more difficult efficient use of rail assets would section 10746. See NPPS, EP 757, slip for rail users to contend with variations facilitate the ability of shippers and op. at 9–10 (describing comments in rail service and therefore may not receivers to adjust to the reductions; (3) submitted in Docket No. EP 754). serve to incentivize their behavior to reductions are necessary to address Although rail carriers presented data in encourage the efficient use of rail systemic problems with inefficient the Oversight Proceeding, generally on a assets.25 In some circumstances, which behavior or practices by shippers or system-wide basis, reflecting recent would need to be examined in receivers; or (4) rail carriers have improvements in some metrics, they individual cases, such reductions may implemented tariff provisions or presented limited data on the extent to not be reasonable or consistent with rail program features—such as credits for which changes to their demurrage rules carriers’ statutory charge to compute and charges succeeded in reducing demurrage and establish related rules in 26 On the other hand, circumstances within a rail loading and unloading times, as a way that fulfills the national needs user’s reasonable control might include, for example, taking reasonable steps to: Ensure that its compared to the times prior to the specified in section 10746. Where, for facility is right-sized for its expected volume of incoming traffic when it receives reliable, 23 UP Comments 2, May 8, 2019, Oversight 24 See, e.g., TFI Comments 4–5; NITL Comments consistent service; manage its pipeline to mitigate Proceeding, EP 754; see generally id. at 1–2; UP 4–5; CRA Comments 5–6; AF&PA Comments 4–5; incoming car volumes that exceed its capacity; and Comments 3, June 6, 2019 (filing ID 247876), AISI Comments 7–8; Dow Comments 3–4; order and release cars in the manner specified by Oversight Proceeding, EP 754; Norfolk Southern Diversified CPC Comments 3; NGFA Comments 11– reasonable tariff requirements. Railway Company (NSR) Comments 2–3, May 8, 12; ISRI Comments 4–5; Joint Reply (ACC, CRA, 27 See 49 U.S.C. 10101 (stating, in pertinent part, 2019, Oversight Proceeding, EP 754; CSXT TFI, NITL) 8–9. ‘‘[i]n regulating the railroad industry, it is the policy Comments 3–5, May 8, 2019, Oversight Proceeding, 25 Parties are, of course, free to negotiate and enter of the United States Government . . . (4) to ensure EP 754. BNSF stated that it ‘‘puts a tremendous into contracts that provide for any period of free the development and continuation of a sound rail amount of energy and resources into the area of time (including zero credit days) to which the transportation system with effective competition demurrage and storage for the express purpose of parties agree. 49 CFR 1333.2; Demurrage Liability among rail carriers and with other modes, to meet collecting less demurrage revenue.’’ BNSF Final Rule, EP 707, slip op. at 25 (noting that the the needs of the public and the national defense; Comments 5, May 8, 2019, Oversight Proceeding, EP Board’s rules specifically allow parties to enter into . . . [and] (14) to encourage and promote energy 754. contracts pertaining to demurrage). conservation’’).

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bunching, service variabilities, and to contend with due to free-time points discussed above and in the NPPS certain capacity constraints—that place reductions,30 and often is not explaining that demurrage rules and the avoidance of demurrage charges sufficiently addressed in either carrier charges must be designed to incentivize within the reasonable control of the rail tariffs or the initial invoices.31 Some rail users’ behavior.35 Where rail user. commenters request the Board to carriers’ operating decisions or actions The Board also recognizes an elaborate on what it would consider result in bunched deliveries and important goal of demurrage in ‘‘reasonable rules and practices for demurrage charges that are not within incentivizing the behavior of rail users dealing with . . . variability in service the reasonable control of the rail user to 32 to encourage the efficient use of rail and carrier-caused bunching’’; two avoid, the overarching purpose of propose mechanisms keyed to trip-plan assets, which benefits rail carriers and demurrage is not fulfilled.36 When compliance; 33 and some state that users alike. Rail carriers and users have analyzing the appropriateness of a shared responsibility in this upstream bunching is an issue best demurrage charges, rail carriers should endeavor—rail carriers to implement resolved among the railroads consider these principles both when and administer reasonable rules and participating in the movement without charges designed to accomplish this involving the rail user.34 cars originate with the serving carrier goal, and rail users to recognize and Certain rail carriers and ASLRRA and when cars originate on an upstream accept responsibility for promoting express concerns about addressing carrier—as at least one carrier professes 37 efficiencies within their reasonable upstream bunching in the policy to do. The Board encourages all rail control. statement. CP argues that any attempt by carriers to take these considerations into Although the Board will not, as the Board to address upstream bunching account in their administration of certain commenters suggest, take more is contrary to law insofar as past demurrage rules and charges, binding action pertaining to free time,28 decisions have held rail users particularly in evaluating whether their it will closely scrutinize demurrage responsible for demurrage unless the automatic billing processes sufficiently rules and charges where free time has delivering carrier is at fault. (CP account for carrier-caused bunching been reduced, or where no credit days Comments 10 (citing Chrysler Corp. v. (especially for cars that originate on have been provided. The Board N.Y. Cent. R.R., 234 I.C.C. 755, 758 their network 38 or bunching attributable encourages all stakeholders to take the (1939).) In addition, these commenters to missed switches), and in resolving principles and considerations discussed note that because the delivering carrier bunching disputes. In any future above into account going forward. The may have no knowledge of or ability to proceeding, the Board expects to take control upstream events, it should not Board will do likewise in future these considerations into account as be forced to bear the costs of delays proceedings, along with all evidence well, along with any additional and argument the parties present. arising from off-line events. (CP Comments 10–12; KCS Comments 3 n.2; evidence and argument the parties may Bunching ASLRRA Reply 4–5.) choose to present. Bunching-related issues were The types of factual scenarios Accessorial Charges identified as a common problem by rail described by CP, KCS, and ASLRRA are users across a broad range of industries among the reasons why bunching Some commenters request that the in the Oversight Proceeding. Some rail should be addressed on a case-by-case Board clarify the definition of carriers in that proceeding stated that basis in order to permit the Board to accessorial charges for purposes of the they award credits for bunching in some properly consider all relevant policy statement,39 and ask that the instances but did not describe with circumstances pertaining to an policy statement include a more robust specificity how these credits are assessment of demurrage. Further, it is awarded or did not otherwise address the Board’s view that carriers should 35 The Board also notes that relief for upstream the concerns expressed by rail users. consider the actions of upstream carriers bunching was available under the former uniform See NPPS, EP 757, slip op. at 13–14 when administering their demurrage code for rail users that chose the straight demurrage rules and charges. CP’s claim that Board plan. See NPPS, EP 757, slip op. at 4–5 & n.13. (describing comments submitted in 36 As noted above, such circumstances might Docket No. EP 754). consideration of upstream bunching would be contrary to law overlooks the include, for example, charging demurrage that In response to the NPPS, rail users arises from bunched deliveries substantially in reiterate that bunching is a significant excess of the number of cars ordered until the rail carriers’ operating plans’’); NCTA Comments 6–7 user has had a reasonable opportunity to process problem that has increased following (stating that PSR has disrupted and undermined the excess volume of incoming cars. Other changes to rail carriers’ operating service and created problems such as bunched rail circumstances that could bear on an assessment of plans,29 has become even more difficult cars and insufficient locomotive availability). bunching include the considerations described in 30 See, e.g., AF&PA Comments 4–5 (stating that note 26, above. 28 See, e.g., TFI Comments 4–5; NITL Comments challenges of contending with free time reductions 37 UP reportedly employs ‘‘a case-by-case process 4–5; CRA Comments 5–6; AF&PA Comments 4–5; are aggravated by erratic service); TFI Comments 5 within which customers are credited for carrier- AISI Comments 7–8; Dow Comments 3–4; (same); NITL Comments 4 (same); CRA Comments caused bunching.’’ UP Comments 10, June 6, 2019 Diversified CPC Comments 3; NGFA Comments 11– 5–6 (same); Auriga/Indorama Comments 2 (same). (filing ID 247892), Oversight Proceeding, EP 754 12; ISRI Comments 4–5; Joint Reply (ACC, CRA, See also ACC Comments 2 (stating that free time is (explaining that UP ‘‘takes into account customer TFI, NITL) 8–9. necessary to account for carrier-caused bunching choices and actions, the actions of [UP’s] interline and service variability); Dow Comments 3–4 29 See, e.g., CRA Comments 7 (stating that partners, and [UP’s] own actions in determining (proposing minimum free time be keyed to service bunching has increased amid changes implemented whether a customer should be charged for variability). by some railroads, despite members’ best efforts to bunching-related demurrage’’ and reiterating that 31 spread out car deliveries, resulting in demurrage See, e.g., AISI Comments 8–9 (stating that ‘‘[UP] does not charge the customer for bunching charges that are not within their reasonable carriers’ tariffs and billing practices do not properly that is beyond the customer’s reasonable control’’). control); NGFA Comments 13 (stating that bunching address railcar bunching); PCA Comments 5 (stating 38 The Board recognizes that carriers may lack of empty return cars has increased due to that tariffs often fail to address bunching); Kinder information needed to take upstream bunching into ‘‘unilaterally imposed reductions in service Morgan Comments 9–10 (same). account in their initial invoices, but encourages frequency as an outgrowth of carriers’ 32 NAFCA Comments 7; see also OPPD Comments them to do so when resolving bunching-related implementation of the so-called precision schedule 5–6; WCTL/SEC Comments 5. disputes. The Board further encourages carriers to railroad [(PSR)] operating model’’); AFPM 33 AFPM Comments 9; NGFA Comments 12–13. seek to reconcile any costs incurred as a result of Comments 8 (stating that ‘‘[b]unched deliveries 34 ISRI Reply 5–6; Joint Reply (ACC, CRA, TFI, actions by the upstream carrier with that carrier. increased in frequency following changes to rail NITL) 4. 39 See NAFCA Comments 4; OPPD Comments 3.

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discussion of how its general principles concerns about overlapping charges, also express concerns about untimely apply to accessorial charges.40 which may arise even when one of the billing.46 As stated in the April 2019 Notice, EP charges might be considered reasonable. While the Board recognizes that some 754, slip op. at 2 n.1, and the NPPS, EP (ACC Comments 3.) The Board clarifies rail carriers may already employ billing 757, slip op. at 2 & n.3, accessorial that, when adjudicating specific cases, it and dispute resolution rules and charges are generally understood to would have significant concerns about practices consistent with the principles include anything other than line-haul or the reasonableness of a tariff provision discussed in this policy statement, the demurrage charges. Upon further that sought to impose an overlapping Board remains deeply troubled by these consideration, however, the Board notes charge intended to serve the same reports, which come from rail users in that many accessorial charges do not purpose as demurrage, or a charge a broad range of industries that are serve the same efficiency-enhancing arising from the assessment of highly dependent on rail service. If rail purpose as demurrage or implicate demurrage for congestion or delay that carrier rules and practices effectively issues raised in the Docket No. EP 754 is not within the reasonable control of preclude a rail user from determining Oversight Proceeding. 41 The Board the rail user to avoid.43 In an individual what occurred with respect to a therefore clarifies that, insofar as the proceeding, the Board remains open to particular demurrage charge, then the purpose of an accessorial charge is to evidence and argument that such a user would not be able to determine enhance the efficient use of rail assets charge could in some instance be whether it was responsible for the delay; in the same way as demurrage, the reasonable, but no such information was the responsible party would not be principles discussed in the policy presented in Docket No. EP 754 or in incentivized to modify its behavior; and statement would generally apply. The this proceeding. the demurrage charges would not Board further clarifies that references to achieve their purpose. Transparency, accessorial charges in the policy Invoicing and Dispute Resolution timeliness, and mutual accountability statement are intended to encompass In the Oversight Proceeding, the are important factors in the only such types of charges.42 Board heard repeatedly that demurrage establishment and administration of reasonable rules and charges for Overlapping Charges charges are difficult, time-consuming, 47 and costly to dispute and that invoices demurrage. Rail users should be able Many participants in the Oversight are often inaccurate or lack information to review and, if necessary, dispute Proceeding voiced concerns about needed to assess the validity of the charges without the need to engage a additional charges that had recently charges. Commenters also stated that, forensic accountant or expend ‘‘countless hours and extra overhead’’ to been instituted by two Class I carriers under some carriers’ rules and practices, research charges and seek to resolve for claimed customer-caused congestion charges must be disputed within limited disputes.48 or delay. See NPPS, EP 757, slip op. at time frames, while carriers are often 15 (describing comments submitted in As indicated in the NPPS, the Board slow to respond and disputes are often encourages all Class I carriers (and Class Docket No. EP 754 relating to a so-called denied. Some tariffs have imposed costs ‘‘congestion’’ charge imposed by NSR II and Class III carriers to the extent they or charges that serve as a deterrent to are capable of doing so), taking into and a ‘‘not prepared for service’’ charge pursuing a dispute or a formal claim. imposed by UP). account the principles discussed here, See NPPS, EP 757, slip op. at 16 to provide, at a minimum and on a car- As noted in the NPPS, both rail (describing comments submitted in carriers have since responded to these specific basis: The unique identifying Docket No. EP 754). Rail users reiterate information of each car; the waybill specific concerns. See NPPS, EP 757, these points in comments on the slip op. at 15 (noting announcements date; the status of each car as loaded or proposed policy statement,44 and in that NSR would discontinue the empty; the commodity being shipped; Demurrage Billing Requirements, Docket ‘‘congestion’’ charge and that UP had the identity of the shipper, consignee, No. EP 759, where the Board has clarified and limited the application of and/or care-of party; the origin station proposed to specify certain information the ‘‘not prepared for service’’ charge). and state of the shipment; the dates and that Class I carriers must provide on or The Board was encouraged by these times of actual placement, constructive with demurrage invoices to enable actions but nevertheless found it placement (if applicable), notification of recipients to, among other things, more important to provide forward-looking constructive placement (if applicable), readily verify the validity of the guidance indicating that it would have and release; and the number of credits demurrage charges.45 Two commenters concerns about such overlapping and debits issued for the shipment (if demurrage-type charges. See id. applicable).49 The Board also expects 43 The Board also notes that one commenter Commenters generally either broadly continues to express concerns about the supported or did not address the 46 See NCTA Comments 3–4 (reporting that ‘‘deadhead’’ charge assessed by UP. (See NGFA shippers have experienced delays up to six months Board’s proposed guidance. ACC, Reply 8–12.) Although not specifically addressed in in receiving demurrage bills and suggesting that ‘‘a however, argues that the discussion in the NPPS, it appears these charges could similarly three month or 90-day time frame limit would be the NPPS did not fully capture the raise issues related to overlapping charges or lack more appropriate’’); FRCA Comments 5 (requesting of control but, consistent with the guidance in this that carriers be required to make all invoice policy statement, such charges would need to be information available on a monthly basis to avoid 40 See NGFA Comments 6–7, 19; NAFCA examined on a case-by-case basis. the undisclosed accumulation of potential charges). Comments 5; OPPD Comments 3–4. 44 See, e.g., NACD Comments 4; OPPD Comments 47 These general principles are also important 41 For example, some types of accessorial charges 6–7; AFPM Comments 10–11; NGFA Comments 16– factors in assessing the reasonableness of rules and are imposed for services such as weighing rail cars 17; CRA Comments 8; NITL Comments 6–7. practices pertaining to the assessment of accessorial or requests for special trains. 45 Comments submitted by Class I carriers in charges. 42 Such charges would include, by way of Docket No. EP 759 generally state that a substantial 48 See International Paper Comments 4, May 7, example, the types of overlapping charges amount of information is already provided with the 2019, Oversight Proceeding, EP 754; accord discussed below. The Board notes that, based on the invoice or available through online platforms, while Packaging Corporation of America Comments 4–5, descriptions given by the rail carriers, many of the ASLRRA claims that small carriers lack the 7–8, May 8, 2019, Oversight Proceeding, EP 754 accessorial charges identified in the May 1, 2019 resources needed to provide detailed information to (describing process that is ‘‘hugely time and Class I data submissions in Docket No. EP 754 invoice recipients. Rail carriers largely did not resource consuming’’). would appear to meet this criterion, including the address, in either this docket or Docket No. EP 759, 49 In response to comments received in UP ‘‘deadhead’’ charge referenced by commenters other concerns voiced by rail users about the billing Demurrage Billing Requirements, Docket No. EP in both that docket and this proceeding. and dispute resolution process. Continued

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rail carriers to bill for demurrage only and outside the Board’s purview, for of the mechanisms already in place. The when the charges are accurate and aggrieved parties to resolve demurrage Board also expresses its commitment to warranted, consistent with the purpose and accessorial charge disputes in an resolve disputes brought before it in an of demurrage, and to send invoices on efficient, cost-effective manner. For expeditious manner. See 49 U.S.C. a regular and timely basis.50 example, three Class I carriers have 10101(2) (‘‘it is the policy of the United With respect to the dispute resolution agreed to arbitrate certain demurrage States government . . . to require fair process more broadly, several disputes under the binding, voluntary and expeditious regulatory decisions commenters request elaboration or program set forth in 49 CFR part 1108.53 when regulation is required’’). prescriptive action pertaining to the In addition, BNSF was commended by Credits Board’s initial guidance that shippers one commenter for including an and receivers should be given a arbitration provision in its tariffs, see A common concern voiced by rail reasonable time period to request NGFA Comments 28, May 8, 2019, users in the Oversight Proceeding is that further information and to dispute Oversight Proceeding, EP 754, and UP various limitations imposed by rail charges, and the rail carrier likewise reported that it has also agreed to carriers diminish the utility of credits as should respond within a reasonable arbitrate contested demurrage and a means of offsetting debits that are time period.51 The Board will not take accessorial charges using various incurred, while carriers’ charges (i.e., prescriptive action at this time. external programs, see UP Response to debits) do not ‘‘expire’’ until they are However, the Board emphasizes that the Data Request 3 (pdf page 8), May 1, paid. See NPPS, EP 757, slip op. at 18 time frames in question should be both 2019, Oversight Proceeding, EP 754 (describing comments submitted in reasonable and balanced. By way of (listing NGFA’s Rail Arbitration Rules Docket No. EP 754). In the NPPS, the example, the Board would have serious and AAR’s Interchange Rules).54 Board provided preliminary guidance as concerns about a process that imposed The Board commends rail carrier to how it would expect to evaluate a short deadline to dispute charges or a commitments to address disputes about credit rules and practices when process that placed no meaningful demurrage and accessorial rules and adjudicating specific cases. In response, restrictions on the time carriers can take charges through arbitration or other rail users reiterate the concerns about to respond. Similarly, the Board would streamlined dispute resolution credits and broadly endorse the Board’s have serious concerns about the procedures and strongly encourages all suggestion that its concerns would be reasonableness of costs or charges that rail carriers to commit to doing so.55 allayed if rail users were compensated could deter shippers and receivers from Likewise, the Board also strongly for the value of unused credits at the pursuing a disputed claim. Although the encourages rail users to make use of end of each month (rather than the Board remains open to argument and these procedures to resolve disputes credits expiring).57 Some rail users call evidence in individual proceedings, no that they are unable to resolve for further action or guidance from the apparent justification for imposing such informally, and to keep the Board Board.58 Some rail carriers state that costs or charges was provided in the apprised of their endeavors to do so.56 credits are intended to address specific record in the Oversight Proceeding or in The Board hopes that such problems associated with carrier-caused this proceeding. commitments by all stakeholders to delay, and that allowing customers to Finally, some commenters call for the make use of these procedures will make keep credits long after that delay would Board to establish more streamlined it unnecessary for the Board to revisit undermine the purpose of the credit, formal dispute resolution procedures.52 these issues. However, the Board encourage inefficient use of rail assets, The Board notes that a variety of formal remains open to doing so if stakeholders and create operational and accounting mechanisms already exist, both within encounter obstacles to the effective use complexities. (CSXT Comments 3–4; CP

759, the Board is serving today a supplemental 53 See UP Notice (June 21, 2013), CSXT Notice 57 See, e.g., AF&PA Comments 7–8; TFI notice inviting parties to comment on certain (June 28, 2019), and CN Notice (July 1, 2019), Comments 8–9; WCTL/SEC Comments 7–8; ISRI modifications and additions to the notice of Assessment of Mediation & Arbitration Procedures, Comments 7; NGFA Comments 18; ISRI Reply 7– proposed rulemaking’s proposal regarding EP 699. 8; Joint Reply (ACC, CRA, TFI, NITL) 7–8; WCTL/ information that Class I carriers would be required 54 The Board also notes that, in addition to SEC Reply 8. to provide on or with demurrage invoices to binding arbitration, parties can make use of the 58 See, e.g., AF&PA Comments 8 (arguing that the promote transparency and accountability. informal mediation process conducted by the Board should clarify that railroads must offer 50 The Board declines to discuss specific time Board’s Rail Customer and Public Assistance credits for delays beyond the control of the shipper periods but notes that it would have significant (RCPA) program or formal mediation under 49 CFR or receiver and should identify credits on the concerns if (absent extenuating circumstances) a part 1109 to attempt to negotiate an agreement invoice); Kinder Morgan Comments 10–11 carrier permitted demurrage or accessorial charges resolving some or all of the issues involved in a (asserting that credits that expire should be deemed to accrue over several months without invoicing the dispute. presumptively unreasonable unless the railroad customer. The Board also notes that, according to 55 The Board also encourages carriers to specify provides appropriate compensation); AISI information contained in the record in Docket No. their dispute resolution procedures in their tariffs, Comments 8 (same); ACC Comments 2 (stating that EP 754 and various demurrage cases, carriers often consistent with their broadly expressed the Board should adopt a policy calling for credits appear to bill on a monthly cycle. commitment to transparency in the Docket No. EP to be issued for cars delivered more than a specific 51 See, e.g., WCTL/SEC Comments 8 (asserting 754 Oversight Proceeding. time early or late from the original estimated time that carriers should be required to ‘‘respond 56 The Board notes that its RCPA program (202– of arrival); NGFA Comments 12–13 (stating that meaningfully’’ to disputed charges within 30 days); 245–0238; [email protected]) is available to assist with carriers should be required to make tariffs NGFA Comments 17 (requesting greater specificity; informal resolution of disputes. In addition, rail reciprocal and provide remuneration if rail cars are recommending a minimum of 30 days for rail user users have several avenues available to them to not placed in accordance with the trip plan within to request additional information and dispute an keep the Board apprised of demurrage-related the same amount of free time allowed by the erroneous charge); NAFCA Comments 8–9 problems that they encounter, such as the Railroad- carrier). (requesting greater specificity and more definitive Shipper Transportation Advisory Council, the The Board acknowledges rail users’ claims that Board position that carriers’ dispute resolution National Grain Car Council, and the Rail Energy providing such reciprocity may also promote more processes should be expedited); OPPD Comments 7 Transportation Advisory Committee, all of which efficient car supply, and that the shift in rail car (requesting greater specificity). meet regularly to provide guidance and advice to ownership from railroad-owned to private cars 52 AFPM Comments 14; PRFBA Comments 1; Board members on rail transportation issues and documented in the record of the Oversight NGFA Comments 3, 7–8, 21–22; see also NGFA areas of concern. The Board therefore finds it Proceeding, see NPPS, EP 757, slip op. at 9–10, Comments 17 (stating that tariffs should clearly unnecessary to establish an advisory committee or raises issues from the perspective of private car articulate the carrier’s dispute resolution process, task force on demurrage as proposed by some users. The Board remains open to argument and including whether it is willing to arbitrate disputes commenters. (See NGFA Comments 9–10; CRA evidence in future cases in which these issues may and if so, in which forum). Comments 10–11.) be raised.

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Comments 12–14 (also claiming that regulatory action related to credits at to evaluate, plan, and undertake any ‘‘allowing [rail users] to monetize such this time. The Board intends to evaluate feasible, reasonable actions to avoid or credits penalizes the carrier’’ and how credit rules and practices are mitigate new resulting charges. The ‘‘raises similar concerns as banked administered in determining the Board recognizes that a 20-day notice credits’’ about disincentivizing reasonableness of demurrage rules and period is statutorily prescribed for efficiency); UP Comments 5–6 n.7.) UP charges when adjudicating specific changes to common carrier rates and also states that its system is consistent cases, including, in particular, whether service terms. 49 U.S.C. 11101(c). with agency precedent that favorably the rail user has been afforded a However, in the Docket No. EP 754 discusses monthly reconciliation of reasonable opportunity to make use of Oversight Proceeding, rail carriers credits and debits and the expiration of the credits in question, before any themselves recognized that 20 days was unused credits, and suggests that the expiration date imposed by the rail not sufficient lead time in many cases, Board modify the policy statement to be carrier. The Board reiterates that it and noted that they generally provided consistent with that precedent. (UP would also take into account the between 45 and 60 days, periods that Comments 5 (citing Red Ash Coal Co. v. purpose and function of the credits in other commenters found were still Central R.R. of N.J., 37 I.C.C. 460, 462 question and that these concerns would insufficient. Rail carriers also described (1916).) be allayed if rail users were various other actions taken to help The Board remains troubled by the compensated for the value of unused shippers and receivers adapt, such as lack of reciprocity between demurrage credits at the end of each month (rather delayed billing and working with those credits and charges, particularly where than the credits expiring). The Board that needed more flexibility. See NPPS, the expiration date of a credit, in effect, remains open to argument and evidence EP 757, slip op. at 19. undermines the value of credits on all credit issues, including those The Board continues to encourage rail allocated for a problem or delay that involving reciprocity. carriers to take these and other initiatives to support all rail users facing was not within the reasonable control of Notice of Major Tariff Changes a rail user. The Board also recognizes the financial, operational, or other that credits issued for carrier-caused Some commenters in the Oversight challenges of adjusting to major tariff problems and delays serve a different Proceeding indicated that carriers changes, to thoughtfully consider the purpose than credits that function as a provided insufficient notice of major amount of advance notice that should be proxy for free time, and that different changes to demurrage and accessorial given, and to be especially cognizant of types of credits might have different tariff provisions, particularly with and accommodating to any unique application methods or expiration time respect to changes involving reductions obstacles a shipper or receiver may face frames. As stated in the NPPS, the Board in free time. Among other things, rail in adapting to demurrage and remains open to argument and evidence users commented that they were accessorial tariff changes. in future cases that involve these issues. suddenly forced to try to redesign, on short notice, operations and Demurrage Billing to Shippers Instead However, the Board disagrees with the of Warehousemen concerns raised by the rail carriers on infrastructure that had been designed this issue. The primary concern in the around a 48-hour free-time provision, In the Oversight Proceeding, several NPPS was ‘‘whether the shipper or and noted that rail carriers had many participants expressed concerns about receiver has been afforded a reasonable months to adjust their operations to the impact of demurrage on third-party opportunity to make use of the credits,’’ implement new operating plans but intermediaries who handle goods and, contrary to the claims of some often expected customers to comply shipped by rail but have no property carriers, (see CSXT Comments 3; CP with their new rules and practices in 45 interest in them (also commonly known Comments 13; UP Comments 6 n.7), the days. See NPPS, EP 757, slip op. at 19 as warehousemen, as noted above) Board did not suggest that credits (describing comments submitted in following the Board’s adoption of the should never expire. The Board’s Docket No. EP 754). Rail users reiterate final rule in Demurrage Liability, Docket concerns about this issue would be these points in this proceeding. Some No. EP 707 (codified at 49 CFR part allayed if rail users were compensated comments call for prescriptive guidance 1333). The NPPS addressed these issues that is not appropriate for inclusion in for the value of unused credits at the and noted that the Board had initiated a policy statement; 61 others either tend end of each month. Compensating rail a rulemaking on this subject. See NPPS, to support or do not address the users for the value of unused credits at EP 757, slip op. at 20–21. The Board principles discussed in the NPPS.62 UP the end of each month could hold rail refers stakeholders to the decision being states that it will continue to provide carriers more accountable for service issued concurrently herewith in customers with ‘‘reasonable notice of failures that undermine network Demurrage Billing Requirements, Docket accessorial and demurrage tariff changes efficiency and make rail users less likely No. 759, for further direction and but not less than 60 days’ notice.’’ (UP to incur future demurrage charges that guidance pertaining to this issue. 59 Comments 3.) could be offset by the credits; it would The Board reiterates the guidance it General Concluding Considerations also be consistent with the conventional provided in the NPPS. As a matter of The Board concludes by restating two calendar month-end accounting practice commercial fairness, and consistent fundamental principles that all rail 60 discussed in Red Ash. with the principles discussed in this carriers, and all shippers and receivers, The Board reiterates its initial policy statement, railroads should are encouraged to keep in mind. First, guidance and declines to take further provide sufficient notice of major demurrage rules and charges may be changes to demurrage and accessorial unreasonable when they do not serve to 59 Conversely, the Board notes that CP’s claim that monetizing credits would ‘‘raise[] similar tariffs to enable shippers and receivers incentivize the behavior of shippers and concerns as banked credits’’ about disincentivizing receivers to encourage the efficient use efficiency, (see CP Comments 14), is neither 61 See NGFA Comments 19; CRA Comments 10; of rail assets. In other words, charges explained nor persuasive as a matter of policy. AFPM Comments 12–13. generally should not be assessed in 60 The Board also notes that the Red Ash case 62 See, e.g., AF&PA Comments 8 (stating that it involved credits issued under an average demurrage ‘‘strongly agrees with the Board’s views’’); NITL circumstances beyond the shipper’s or plan to incentivize faster loading and unloading, Comments 8 (stating that it ‘‘strongly supports the receiver’s reasonable control. It follows, not credits issued for service failures. Board’s proposed principles’’). then, that revenue from demurrage

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charges should reflect reasonable Management Plan, including the 2019– partially approve, or disapprove financial incentives to advance the 2021 fishery specifications and framework adjustment measures overarching purpose of demurrage and management measures, as proposed by the Council based only on that revenue is not itself the purpose. recommended by the New England whether the measures are consistent Second, transparency, timeliness, and Fishery Management Council. This with the fishery management plan, plan mutual accountability by both rail action is intended to establish the amendment, the Magnuson-Stevens Act carriers and the shippers and receivers allowable 2020–2021 herring harvest and its National Standards, and other they serve are important factors in the levels and river herring and shad catch applicable law. Otherwise, NMFS must establishment and administration of caps, consistent with the Atlantic defer to the Council’s policy choices. reasonable demurrage and accessorial Herring Fishery Management Plan. The Under the regulations guiding the rules and charges. Just as this policy specifications and management herring specifications process, NMFS statement recognizes that there may be measures are necessary to meet must review the Council’s different ways to implement and conservation objectives while providing recommended specifications and administer reasonable rules and charges, sustainable levels of access to the publish notice proposing specifications, carriers are encouraged to recognize the fishery. clearly noting the reasons for any importance of working with rail users to DATES: Effective May 5, 2020. differences from the Council’s recommendations. NMFS must then develop reasonable solutions to unique ADDRESSES: Copies of this action, publish a notice approving, situations those shippers and receivers including the Environmental disapproving, or partially approving may face. Assessment and the Regulatory Impact these measures. NMFS is approving The Board expects to take all of the Review/Initial Regulatory Flexibility measures to implement Framework 6 as principles discussed in this policy Analysis (EA/RIR/IRFA) prepared in well as specifications and river herring/ statement into consideration, together support of this action, are available at: shad catch caps for the herring fishery, with all of the evidence and argument https://s3.amazonaws.com/nefmc.org/ consistent with the Council’s that is before it, in evaluating the Herring-FW6-DRAFT-final- recommendations. reasonableness of demurrage and submission.pdfr from Thomas A. Nies, A new stock assessment for herring accessorial rules and charges in future Executive Director, New England was completed in June 2018. The cases. Fishery Management Council, 50 Water assessment concluded that although Congressional Review Act. Pursuant Street, Mill 2, Newburyport, MA 01950. herring were not overfished and to the Congressional Review Act, 5 The supporting documents are also overfishing was not occurring in 2017, U.S.C. 801–808, the Office of accessible via the internet at: https:// poor recruitment would likely result in Information and Regulatory Affairs has www.regulations.gov. designated this policy statement as non- a substantial decline in herring biomass FOR FURTHER INFORMATION CONTACT: major, as defined by 5 U.S.C. 804(2). over the next several years. The stock Allison Murphy, Fishery Policy Analyst, assessment estimated that recruitment Decided: April 30, 2020. 978–281–9122. was at historic lows during the most By the Board, Board Members Begeman, SUPPLEMENTARY INFORMATION: recent five years (2013–2017), but Oberman, and Fuchs. projected that biomass could increase Background Jeffrey Herzig, after reaching a low in 2019 if Clearance Clerk. Regulations implementing the recruitment returns to average levels. [FR Doc. 2020–09682 Filed 5–5–20; 8:45 am] Atlantic Herring Fishery Management The final stock assessment summary BILLING CODE 4915–01–P Plan (FMP) for herring are located at 50 report is available on the Center’s CFR part 648, subpart K. Regulations at website (www.nefsc.noaa.gov/ § 648.200 require the Council to publications/). The Magnuson-Stevens recommend herring specifications for DEPARTMENT OF COMMERCE Act requires NMFS to notify the Council NMFS’ review and publish in the if a fishery has become overfished or is National Oceanic and Atmospheric Federal Register, including: The approaching the condition of being Administration overfishing limit (OFL); acceptable overfished. According to the Act, ‘‘a biological catch (ABC); annual catch fishery shall be classified as 50 CFR Part 648 limit (ACL); optimum yield (OY); approaching a condition of being domestic annual harvest; domestic overfished if, based on trends in fishing [Docket No. 200428–0122] annual processing; U.S. at-sea effort, fishery resource size, and other processing; border transfer; the sub-ACL RIN 0648–BJ13 appropriate factors, the Secretary for each management area, including estimates that the fishery will become Magnuson-Stevens Act Provisions; seasonal periods as specified at overfished within two years.’’ In Fisheries of the Northeastern United § 648.201(d) and modifications to sub- February 2019, we notified the Council States; Atlantic Herring Fishery; ACLs as specified at § 648.201(f); and that herring was approaching an Framework Adjustment 6 and the research set-aside (RSA) (up to 3 percent overfished condition. 2019–2021 Atlantic Herring Fishery of the sub-ACL from any management Based on the stock assessment and at Specifications area) for 3 years. These regulations also the request of the Council, we reduced allow the Council to recommend river the 2018 ACL in August 2018 (83 FR AGENCY: National Marine Fisheries herring and shad catch caps as part of 42450) (from 104,800 mt to 49,900 mt) Service (NMFS), National Oceanic and the specifications. and the 2019 ACL in February 2019 (84 Atmospheric Administration (NOAA), Under the Magnuson-Stevens Fishery FR 2760) (from 49,900 mt to 15,065 mt) Commerce. Conservation and Management Act, through inseason adjustments to prevent ACTION: Final rule. NMFS is required to publish proposed overfishing and lower the risk of the rules for comment after preliminarily stock becoming overfished. The ACL SUMMARY: We are approving regulations determining whether they are consistent reduction for 2018 ensured at least a 50- to implement Framework Adjustment 6 with applicable law. The Magnuson- percent probability of preventing to the Atlantic Herring Fishery Stevens Act permits NMFS to approve, overfishing, while the ACL reduction for

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2019 reflected the Council’s risk policy NMFS will develop herring provide for a sustainable herring fishery for herring and was consistent with the specifications in the summer/fall of and to be consistent with the Council’s new ABC control rule developed in 2020 for the 2021–2023 fishing years. harvest policy for herring. Amendment 8 to the Herring FMP. Because the Herring FMP requires Approved Specifications The Northeast Fisheries Science herring specifications for a period of 3 Center has updated its schedule for At its June 2019 meeting, the Council years, Framework 6 analyzes stock assessments, and will now hold recommended maintaining status quo maintaining the status quo 2019 herring assessments every 2 years, with catch limits for 2019 and reducing catch specifications that we implemented via the next scheduled for June 2020. limits for 2020 and 2021 (see Table 1). inseason adjustment in early 2019 and Accordingly, the Council and NMFS This rule approves herring new specifications for 2020 and 2021. now plan to develop specifications specifications for 2019–2021 consistent Because Framework 6 will be effective every 2 years for the upcoming 3-year with the Council’s recommendations. after the end of 2019, this rule focuses cycle. For example, the Council and These specifications are intended to on the 2020–2021 specifications.

TABLE 1—COMPARISON OF APPROVED ATLANTIC HERRING 2020–2021 SPECIFICATIONS (mt) TO 2019

2019 2020–2021

Overfishing Limit ...... 30,668 41,830—2020 69,064—2021 Acceptable Biological Catch ...... 21,266 16,131 Management Uncertainty ...... 6,200 4,560 Optimum Yield/Annual Catch Limit ...... * 15,065 * 11,571 Domestic Annual Harvest ...... 15,065 11,571 Border Transfer ...... 0 100 Domestic Annual Processing ...... 15,065 11,471 U.S. At-Sea Processing ...... 0 0 Area 1A Sub-ACL (28.9%) ...... * 4,354 * 3,344 Area 1B Sub-ACL (4.3%) ...... 647 498 Area 2 Sub-ACL (27.8%) ...... 4,188 3,217 Area 3 Sub-ACL (39%) ...... 5,876 4,513 Fixed Gear Set-Aside ...... 39 30 Research Set-Aside ...... (**) (**) * If New Brunswick weir landings are less than 2,942 mt through October 1, then 1,000 mt will be subtracted from the management uncertainty buffer and reallocated to the Area 1A sub-ACL and ACL. Thus, the Area 1A sub-ACL would increase to 4,344 mt, and the ACL would increase to 12,571 mt. ** 3 percent of each sub-ACL.

Several factors contributed to the Council to reconsider the 2021 ABC for weir landings are less than 4,000 mt Council’s ABC recommendations for the next specifications. through October 1. 2020–2021. The ABC is reduced from The ACL is reduced from ABC to Border transfer is a processing allocation available to Canadian dealers the OFL to account for scientific account for management uncertainty. that is included in, and does not reduce, uncertainty. The Council’s Scientific Currently, although the FMP allows for the domestic catch limits. The and Statistical Committee (SSC) and the consideration of other aspects of Council determined that a conservative Magnuson-Stevens Act provides for the management uncertainty (e.g., issuance of permits to Canadian vessels method of management, specifically one uncertainty around discard estimates of that accounts for scientific uncertainty, transporting U.S. harvested herring to herring caught in Federal and state Canada for sardine processing. The was essential due to the current status waters), the only source for management Council recommended and this rule of the herring stock and the uncertainty uncertainty that is applied to the 2020– approves 100 mt for border transfer for surrounding estimates of biomass and 2021 ABCs are landings in the New 2020 and 2021. The amount specified recruitment. Another consideration was Brunswick weir fishery. Because weir for border transfer has equaled 4,000 mt Amendment 8’s new control rule fishery landings can be highly variable, since 2000, but we reduced it to 0 mt harvest policy of reducing available fluctuating with effort and herring as part of the 2019 inseason adjustment. harvest to explicitly account for availability, the Council recommended a The Council recommended 100 mt for herring’s role as forage in the ecosystem. management uncertainty buffer of 4,560 border transfer in case there continues Subsequent to the Council’s mt, consistent with average landings in to be Canadian interest in transporting recommendations, in November 2019 the New Brunswick weir fishery over herring for sardine processing. we approved Amendment 8’s ABC the last 10 years (2009–2018). The The Council recommended and this control rule. For 2021, the SSC was resulting ACL for both 2020 and 2021 is rule approves maintaining status quo river herring/shad catch caps for 2020– uncomfortable with increasing the ABC 11,571 mt. The Council also 2021 (see Table 2). These catch caps based on the recent assessment’s recommended and this rule approves a were originally set for the fishery in the projection that recruitment would provision that if weir fishery landings increase from historical lows to average 2016–2018 specifications, and we are less than 2,942 mt through October maintained them in the inseason levels. Therefore, the SSC and Council 1, NMFS will subtract 1,000 mt from the recommended maintaining the 2020 adjustment for 2019. Catch is tracked management uncertainty buffer and against river herring/shad catch caps on ABC for 2021. The 2020 stock reallocate that 1,000 mt to the Area 1A trips landing more than 6,600 lb (3,000 assessment is expected to update sub-ACL and ACL. Previously, this kg) of herring. Once a catch cap is recruitment information and allow the provision is allowed if New Brunswick reached, the possession limit for herring

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vessels using that gear type and fishing the fishing year. These caps are river herring and shad catch, while in that area (or the corresponding catch intended to meet the original catch cap allowing the fleet to fully harvest the cap closure area) is reduced to 2,000 lb goals to provide a strong incentive for herring ACL. (907 kg) of herring for the remainder of the herring fleet to continue to reduce

TABLE 2—APPROVED RIVER HERRING/SHAD CATCH CAPS (mt) FOR 2020–2021

Southern New Gulf of Maine Cape Cod England/ Total Mid-Atlantic

Midwater Trawl ...... 76.7 32.4 129.6 238.7 Bottom Trawl ...... n/a n/a 122.3 122.3

The Council recommended status quo Final 2018 Fishery Accounting pound-for-pound reductions are methods to set all other herring required in 2020. Table 3 below specifications, including the On January 24, 2020, NMFS summarizes final catch by management management area sub-ACLs, fixed gear determined that there were no ACL area. set-aside, and research set-aside. overages in fishing year 2018 and no

TABLE 3—FINAL FISHING YEAR 2018 ACCOUNTING BY MANAGEMENT AREA

Herring catch Landed Discarded Total herring as a Management area Sub-ACL herring herring catch percentage (mt) (mt) (mt) (mt) of the sub-ACL

1A ...... 28,038 24,861 0 24,861 88.7 1B ...... 2,639 2,210 0 2,211 83.8 2 ...... 8,200 7,032 38 7,071 86.2 3 ...... 11,318 9,736 0 9,736 86

Total ...... 50,195 43,839 39 43,878 87.4

Given that this rule suspends relevant proxy), depending on what is the ACL for 2020 and 2021 (11,571 mt), carryover from fishing year 2019 into used in the stock assessment and and could have unintended 2020 and no ACL overages occurred in considered the best available science. consequences on the stock or fishery. fishing year 2018, the specifications The new definitions are consistent with For example, if carryover is harvested in summarized in Table 1 are approved many overfishing and overfished specific management areas early in the with no modification. definitions used in the region, as well as year, other areas that are typically fished parameters in the new ABC control rule later in the year may be constrained by Other Approved Measures developed in Amendment 8. the ACL such that the sub-ACLs in those This rule updates the ‘‘overfished’’ Previously, regulations at § 648.201 areas cannot be fully harvested. and ‘‘overfishing’’ definitions to make require carryover of up to 10 percent of Estimated 2019 year end catch is less them more consistent with the 2018 the unharvested catch in a herring than 85 percent of the ACL for 2019 herring stock assessment and definitions management area shall be added to that (15,574 mt), so there may also be a used for other stocks in the region, area’s sub-ACL for the fishing year substantial amount of unharvested catch consistent with Framework 6. The following when total catch is that would have otherwise been carried updated definitions are: determined. For example, total catch for over relative to the reduced ACL for The stock is considered overfished if 2018 would be determined in 2019. If 2021 (11,571 mt). Furthermore, given stock biomass is less than 1⁄2 the stock there was unharvested catch in 2018, the low estimate of herring biomass, biomass associated with the Maximum the unharvested catch in a management concentrating fishing effort and catch in Sustainable Yield (MSY) level or its area (up to 10 percent of the initial sub- certain management areas may have proxy (e.g., Spawning Stock Biomass at ACL for that area) would be added to negative impacts on the herring stock. MSY (SSBMSY) or proxy). The stock is the area’s sub-ACL for 2020. This Continuation of the suspension of considered subject to overfishing if the carryover increases the sub-ACL for that carryover into 2021 is consistent with estimated fishing mortality rate (F) management area, but it does not the Council’s conservative management exceeds the fishing mortality rate increase the total ACL. due to the current status of the herring associated with the MSY level or its This rule approves the suspension of stock and the uncertainty surrounding proxy (e.g., FMSY or proxy). carryover of unharvested catch for the estimates of biomass and recruitment. Over time, the parameters used to 2020 and 2021, consistent with the assess the herring stock have changed, recommendation in Framework 6, such Regulatory Clarifications and so have the corresponding that unharvested catch in 2018 and 2019 We are implementing the following projections used to evaluate stock status will not be added to sub-ACLs for 2020 administrative changes to the herring and set catch levels. The updated and 2021, respectively. Suspending regulations under the authority of definition is more flexible because it can carryover is approved because the section 305(d) to the Magnuson-Stevens incorporate any estimate of biomass that amount of carryover from 2018 (just Act, which provides that the Secretary is warranted (total biomass, SSB, or under 5,000 mt) is substantial relative to of Commerce may promulgate

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regulations necessary to carry out an Comment 1: CLF, Seatuck understanding the effects of climate FMP or the Magnuson-Stevens Act. Environmental Association, and six change. First, in §§ 648.4, 648.7, 648.10, members of the public supported the These catch caps were intended to be 648.11, 648.14, 648.15, 648.80, 648.83, proposed specifications. CLF also adjusted when new information became 648.86, 648.201, 648.202, 648.204, and supported changes to the overfished/ available. The approved catch caps were 648.205, this rule simplifies the names overfishing definitions, and suspension originally implemented in a 2016–1018 of herring vessel permits. Previously, of carryover. specifications action and were each herring vessel permit has two Response: NMFS agrees with the calculated using updated data and a names used in regulations, the first Council’s rationale for its specifications revised methodology. The 2016–2018 name specifies the permit type (i.e., recommendation, as described earlier in caps were set based on recent limited or open access) and herring this rule. These measures are approved Commission river herring and shad management area and the second name without modification. assessments, which indicated that data assigns a category letter to each permit Comment 2: While the Seatuck are not robust enough to determine a type. For example, the All Areas Environmental Association supported biologically-based river herring/shad Limited Access Herring Permit is also the river herring and shad catch caps, catch cap and/or the potential effects of known as a Category A Herring Permit. CLF did not, stating that the proposed such a catch cap on river herring/shad This rule simplifies references to caps are inconsistent with National populations on a coast-wide scale. herring vessel permits by only using the Standard 9 and inconsistent with the Through this specifications action, category name in regulation. This purpose and need of Framework proactive catch caps were set to manage clarification is intended to aid in the Adjustment 3 to the Herring FMP. and minimize catch to the extent Response: NMFS has determined that understandability of herring regulations practicable. the river herring and shad catch caps are as most stakeholders refer to herring No new information is available that likely sufficiently conservative, meet the vessel permits by category name. inform altering the previously approved original catch cap goals to provide an river herring and shad catch caps. The Second, this rule clarifies the incentive for the herring fleet to approved catch caps likely promote the transiting and pre-landing prohibitions continue to reduce river herring and concept of reducing bycatch to the for the herring fishery in § 648.14. This shad catch, and are consistent with extent practicable by providing an rule clarifies that vessels are prohibited National Standard 9. Catch caps were incentive to avoid incidental catch of from transiting Area 1A during June implemented through Framework 3, river herring and shad while still through September with midwater trawl with a goal of minimizing river herring allowing an opportunity to achieve OY. gear onboard, unless gear is properly and shad bycatch and bycatch mortality When a cap trigger is reached, it stowed and not available for immediate to the extent practicable, while allowing implements a minimal Atlantic herring use, consistent with § 648.2. This rule the herring fishery an opportunity to possession limit (area closure) that is also clarifies that herring vessels are fully harvest the herring ACL. expected to end directed fishing effort required to notify NMFS of offloading Framework 3 established a process for for herring in the corresponding closure through the vessel monitoring system of setting and modifying catch caps for area for the rest of that fishing year. the time and place of offloading at least river herring (alewife and blueback) and In approving status quo river herring 6 hours prior to landing or, if fishing shad (American and hickory) catch caps and shad catch caps, the Council ends less than 6 hours before landing, in the Atlantic herring fishery (herring acknowledged that it is possible that the as soon as the vessel stops catching fish. fishery), and sets specific river herring fishery will catch the same amount of These requirements currently exist and shad catch caps for the 2014 and haddock, river herring, and shad, even elsewhere in the regulations, and this 2015 fishing years. Framework 3 with a lower herring quota. However, rule updates regulations in § 648.14, outlined a process for setting and the approved catch caps likely reduce accordingly. modifying the river herring and shad bycatch and bycatch mortality to the Third, this rule updates the definition catch caps that includes: Identification extent practicable by providing an of OY consistent with new National of gears, areas, and trips that would be incentive to avoid the incidental catch Standard guidance for OY in § 648.200. subject to the catch caps; changes to of river herring and shad by allowing an This rule also updates terminology to reporting requirements for vessels opportunity to achieve OY. This action reflect that the Atlantic States Marine issued limited access and Herring also maintains the trigger that Fisheries Commission’s (Commission’s) Management Areas 2⁄3 open access implements a low Atlantic herring Herring Section is now a Herring Board herring permits; criteria that would possession limit (area closure) that is and that the Commission’s Atlantic trigger the closure of an area to directed likely to further limit bycatch and Herring Technical Committee conducts herring fishing for a particular gear type; bycatch mortality once the cap is the work that was previously described and a list of management measures reached. The approved caps remain as being conducted by the Plan Review related to setting catch caps that can be proactive and should continue to Team. modified through the herring provide an incentive for the Atlantic specifications process and/or framework Comments and Responses herring industry to avoid river herring adjustment process. Catch caps for 2014 and shad catch and bycatch, while still NMFS published a proposed rule on and 2015 were set based upon the most allowing an opportunity to use the full January 28, 2020 (85 FR 4932), seeking recent river herring stock assessment Atlantic herring ACL. Therefore, this comment on the proposed specifications conducted by the Atlantic States Marine action is both consistent with the and measures. NMFS received eight Fisheries Commission, which indicated purpose and need of Framework 3 and comment letters on the proposed rule, that river herring populations have National Standard 9. including comments from the declined from historic levels and many Conservation Law Foundation (CLF), factors would need to be addressed to Changes From the Proposed Rule Seatuck Environmental Association, and allow their recovery, including: Fishing This rule includes slight adjustments six members of the public. A summary in both state and Federal waters; to the regulatory corrections in 50 CFR of comments and NMFS responses is improvement of river passageways and 648.7(b)(2)(i), 648.7(m), presented below: water quality; reduced predation; and 648.11(r)(1)(iv)(A), and 648.80(e)(5)

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implemented under section 305(d) of not only could result in exceeding the proposed rule (85 FR 4932), and is not the Magnuson-Stevens Act to account catch limits, but also could pose safety repeated here. All of the documents that for new regulations implemented in the concerns as vessels might perceive a constitute the FRFA are available from New England Industry-Funded greater incentive to fish during the delay NMFS and a copy of the IRFA, the RIR, Monitoring Omnibus Amendment (85 that could be contrary to safe practices. and the EA are available upon request FR 7414, February 7, 2020). If catch exceeds a sub-ACL, the excess (see ADDRESSES) or via the internet at catch must be deducted from a future www.greateratlantic.fisheries.noaa.gov. Classification sub-ACL and would reduce future A Summary of the Significant Issues The NMFS Assistant Administrator fishing opportunities. has determined that this final rule is The 2019–2021 herring specifications Raised by the Public in Response to the consistent with the Herring FMP, are based on the best available science. IRFA, a Summary of the Agency’s National Standards and other provisions This action is reducing the herring ACL Assessment of Such Issues, and a of the Magnuson-Stevens Act, and other and sub-ACLs. Delaying implementation Statement of Any Changes Made in the applicable law. of the 2020–2021 herring specifications Final Rule as a Result of Such The Assistant Administrator for for 30 days would be contrary to the Comments Fisheries finds good cause under the public interest because the herring NMFS received eight comment letters authority of 5 U.S.C. 553(d)(3) to waive fishery may exceed the new, lower sub- on the proposed rule. Those comments, the 30-day delay in this action’s ACLs and/or the ACL. Exceeding these and NMFS’ responses, are contained in effective date. This action sets 2020 harvest limits would negatively impact the Comments and Responses section of herring catch limits, puts in place other the herring industry when future this final rule and are not repeated here. herring specifications, and sets river harvest is limited to account for excess None of the comments addressed the herring/shad catch caps for the herring catch. IRFA and NMFS did not make any fishery. This rule must be in effect as The specifications are part of regular changes in the final rule based on public soon as practicable to prevent rulemaking prescribed by the FMP’s comment. overharvesting the ACL and regulations. As such, herring fishery Description and Estimate of Number of management area sub-ACLs and to participants expect the implementation Small Entities to Which This Final Rule ensure the FMP’s goals and objectives of the specifications at the earliest date Would Apply are achieved. Because this rule lowers practicable. Catch limits are an integral herring catch limits directly related to part of the fishery and are not new For RFA purposes only, NMFS has preventing overharvesting the ACL, a requirements. The herring fishery established a small business size 30-day delay would be contrary to the participants are well aware of and standard for businesses, including their public interest. accustomed to operating under the catch affiliates, whose primary industry is Delaying the effective date of the limits and catch caps. A 30-day delay to commercial fishing (see 50 CFR 200.2). specifications for 30 days will affect adjust these measures therefore is A business primarily engaged in NMFS’ ability to prevent the herring unnecessary because it provides no commercial fishing (NAICS code 11411) fishery from exceeding its 2020 area benefit to the herring fishery. is classified as a small business if it is sub-ACLs and ACL. Federal regulations Conversely, a 30-day delay could result independently owned and operated, is at 50 CFR 648.201(a)(1)(i) require NMFS in undue loss of economic opportunity not dominant in its field of operation to implement a 2,000-lb possession limit from unnecessary catch restrictions or (including its affiliates), and has for each management area through the future economic restrictions due to combined annual receipts not in excess end of the current fishing year once it otherwise avoidable overages in this of $11 million for all its affiliated is projected that 92 percent of the area fishing year. For these reasons, NMFS operations worldwide. sub-ACL will be harvested. NMFS must, has determined that a 30-day delay in For the purposes of this analysis, under § 648.201(a)(1)(ii), implement the the effectiveness of this rule is contrary ownership entities are defined by those 2,000-lb possession limit for the whole to the public interest. entities with common ownership fishery (all areas) when 95-percent of This final rule has been determined to personnel as listed on permit the total herring ACL is harvested. As be not significant for purposes of application documentation. Permits required by § 648.201(a)(4), NMFS must Executive Order (E.O.) 12866. with identical ownership personnel are also implement the 2,000-lb possession This final rule is not an Executive categorized as a single entity. For limit for river herring/shad Order 13771 regulatory action because example, if five permits have the same accountability measure areas when 95- this rule is not significant under seven personnel listed as co-owners on percent of the river herring/shad catch Executive Order 12866. their application paperwork, those cap for a specific area is reached. NMFS prepared a Final Regulatory seven personnel form one ownership This action reduces the 2020 herring Flexibility Analysis (FRFA) for this final entity, covering those five permits. If ACL (11,571 mt) by nearly 25 percent rule, as required by section 603 of the one or several of the seven owners also compared to the ACL that was in place Regulatory Flexibility Act (RFA), 5 own additional vessels, with sub-sets of in fishing year 2019 (15,065 mt). This U.S.C. 603. The FRFA incorporates the the original seven personnel or with action similarly reduces sub-ACLs for IRFA, a summary of the significant new co-owners, those ownership each Herring Management Area. issues raised by the public comments in arrangements are deemed to be separate Because this action reduces the 2020 response to the IRFA, NMFS responses ownership entities for the purpose of herring ACL, NMFS is concerned about to those comments, and a summary of this analysis. preventing catch from exceeding harvest the analyses completed in the This rule would affect all permitted limits in Herring Management Areas 2 Framework 6 EA. A summary of the herring vessels; therefore, a directly (3,217 mt reduced from 4,188 mt) and IRFA was published in the proposed regulated entity is a firm that owns at 3 (4,513 mt reduced from 5,876 mt) rule for this action and is not repeated least one herring permit. There are which opened on January 1, 2020. here. A description of why this action many businesses that hold an open- Delaying implementation could was considered, the objectives of, and access (Category D) permit. These encourage a derby-style rush to fish the legal basis for this action is businesses catch a small fraction of before the lower limits are in effect. This contained in the preamble to the herring; furthermore, they are minimally

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affected by the regulations. Firms are In 2018, there were 1,205 firms (1,193 approximately 38 percent of total entity defined as active in the herring fishery small) that held at least one herring revenue from the herring fishery. All if they landed any herring in 2018. This permit. There were 62 (60 small) active small entity herring permit holders as a section describes the directly regulated firms that held at least one herring whole derived approximately 29 percent small entities in four classes: All permit. There were 68 (62 small) firms of total entity revenue from the herring permitted firms; all active firms; limited that held at least one limited access fishery. Approved measures decrease access permitted firms; and active permit, 31 (29 small) of which were the ACL in 2020 and 2021 from the limited access permitted firms. active. Small entity limited access baseline, as presented in Table 4. permit holders as a whole derived

TABLE 4—HERRING ACL FOR THE BASELINE (2019) COMPARED TO APPROVED 2020 AND 2021 SPECIFICATIONS

2020 and Baseline 2021 Year (mt) specifications (mt)

ACL ...... 15,066 11,571 Area 1A Sub-ACL (28.9%) ...... 4,354 3,344 Area 1B Sub-ACL (4.3%) ...... 647 498 Area 2 Sub-ACL (27.8%) ...... 4,188 3,217 Area 3 Sub-ACL (39%) ...... 5,876 4,513

To examine effects of the approved Area 1A. Area 1A generates revenue for total revenue resulting from a 23- measures, this analysis assumes catch is more small entities than any other area; percent reduction in the herring ACL. equal to the ACL. Recent catch from the all other areas only have 3 entities four herring management areas has deriving more than 80 percent of TABLE 6—ESTIMATES OF PERCENT frequently been below the ACL and sub- revenue from herring. Nine small REDUCTION IN TOTAL SMALL ENTITY ACLs. However, recent ACLs have been entities fished for herring in Area 1B in REVENUE FROM THIS ACTION much higher than the Council’s 2018, with 5 entities deriving 30 percent preferred 2020 ACL and portions of the or less from the area and 4 entities Percent change in total small Count of fishery have been restricted due to catch deriving between 70 and 100 percent entity revenue small entities of non-target species (i.e., river herring from 1B. Thirty-nine small entities and shad). With decreasing ACLs but fished for herring in Area 2 in 2018. 0 to 1 percent ...... 17 1 to 7 percent ...... 4 status quo non-target species catch caps, Twenty-seven of them derived between 18 to 23 percent ...... 8 excessive catch of non-target species 0 and 1 percent of total entity revenue becomes less likely. The sub-ACL from Area 2, and another 6 entities Description of Projected Reporting, percentages remain constant between derived less than 30 percent of entity Recordkeeping, and Other Compliance the baseline period (2019) through 2020 revenue from Area 2. Four entities Requirements and 2021; therefore, there is an derived between 70 and 100 percent of approximate 23-percent decrease in total entity revenue from herring in Area This final rule does not introduce any available catch in each management 2. Finally, 8 small entities fished for new reporting, recordkeeping, or other area from 2019 to 2021. Using this herring in Area 3 in 2018. Four of those compliance requirements. information we can evaluate the effects entities derived less than 30 percent of Description of the Steps the Agency Has of the action on small entity revenues. total entity revenue from Areas 3 and 4 Taken To Minimize the Significant The average percentage of total small entities derived between 70 and 100 Economic Impact on Small Entities entity revenue derived from each percent of total entity revenue from Consistent With the Stated Objectives of management area is listed in Table 5. Area 3. Applicable Statutes While the overall fishery ACL will TABLE 5—AVERAGE PERCENTAGE OF decline by 23 percent, NMFS does not Specification of commercial harvest SMALL ENTITY REVENUE FROM expect that each of these small entities and river herring/shad catch caps are constrained by the conservation EACH HERRING MANAGEMENT AREA will have a 23-percent reduction in herring revenue. Rather, because of the objectives set forth in the FMP and Overall low catch limits, some companies may implemented at 50 CFR part 648, subpart K under the authority of the Management area average decide not to fish for herring in 2020 percent entity and 2021 and would lose 100 percent of Magnuson-Stevens Act. Furthermore, revenue revenue from herring. If this happens, specifications must be based on the best available scientific information, 1A ...... 44 the remaining small entities who fish for 1B ...... 40 herring in 2020 and 2021 may realize consistent with National Standard 2 of 2 ...... 10 less than 23-percent reduction in the Magnuson-Stevens Act. With the 3 ...... 43 revenue from herring, as there may be specification options considered, the fewer vessels herring fishing. Because measures in this final rule are the only Seventeen small entities, mainly entities that catch herring are also active measures that both satisfy these purse seine vessels, fished for herring in in other fisheries, the reduction in total overarching regulatory and statutory Area 1A in 2018. Ten of these small revenue for small entities would likely requirements while minimizing, to the entities derived 30 percent or less of be less than the reduction in herring extent possible, impacts on small total entity revenue from Area 1A. revenue. Without being able to predict entities. This rule implements the Seven small entities derived more than these specific shifts, Table 6 estimates herring specifications outlined in Table 80 percent of total entity revenue from the percent change for small entities in 1 and the river herring/shad catch caps

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outlined in Table 2. Other options via VMS consistent with the herring areas, provided the vessel considered by the Council, including requirements at § 648.10(m)(1). Once a qualifies for and has been issued this those that could have less of an impact vessel declares an Atlantic herring permit, subject to all other regulations of on small entities, failed to meet one or carrier trip via VMS, it is bound to the this part. more of these stated objectives and, VMS operating requirements, specified (2) Category B Herring Permit (Areas therefore, cannot be implemented. at § 648.10, for the remainder of the 2 and 3 Limited Access Herring Permit). Section 212 of the Small Business fishing year. On Atlantic herring carrier A vessel may fish for, possess, and land Regulatory Enforcement Fairness Act of trips under either the letter of unlimited amounts of herring from 1996 states that, for each rule or group authorization or an Atlantic herring herring Areas 2 and 3, provided the of related rules for which an agency is carrier VMS trip declaration, an Atlantic vessel qualifies for and has been issued required to prepare a FRFA, the agency herring carrier is exempt from the VMS, this permit, subject to all other shall publish one or more guides to IVR, and VTR vessel reporting regulations of this part. assist small entities in complying with requirements, as specified in § 648.7 (3) Category C Herring Permit (Limited the rule, and shall designate such and subpart K of this part, except as Access Incidental Catch Herring publications as ‘‘small entity otherwise required by this part. If not Permit). (i) A vessel that does not compliance guides.’’ The agency shall declaring an Atlantic herring carrier trip qualify for either of the permits explain the actions a small entity is via VMS, an Atlantic herring carrier specified in paragraphs (a)(10)(iv)(A)(1) required to take to comply with a rule vessel must request and obtain a letter and (2) of this section may fish for, or group of rules. As part of this of authorization from the Regional possess, and land up to 55,000 lb (25 rulemaking process, a bulletin to permit Administrator, and there is a minimum mt) of herring from any herring area, holders that also serves as small entity enrollment period of 7 calendar days for provided the vessel qualifies for and has compliance guide was prepared. This a letter of authorization. Atlantic herring been issued this permit, subject to all final rule and the guide (i.e., bulletin) carrier vessels operating under a letter other regulations of this part. will be sent via email to the Greater of authorization or an Atlantic herring (ii) A vessel that does not qualify for a Category A Herring Permit specified in Atlantic Regional Fisheries Office carrier VMS trip declaration may not paragraph (a)(10)(iv)(A)(1) of this herring email list and are available on conduct fishing activities, except for section, but qualifies for the Category B the website at: https:// purposes of transport, or possess any Herring Permit specified in paragraph www.fisheries.noaa.gov/species/ fishing gear on board the vessel capable (a)(10)(iv)(A)(2) of this section, may fish atlantic-herring. Hard copies of the of catching or processing herring, and for, possess, and land up to 55,000 lb guide and this final rule will be they must be used exclusively as an (25 mt) of herring from Area 1, provided available upon request (see ADDRESSES). Atlantic herring carrier vessel, and they the vessel qualifies for and has been must carry observers if required by List of Subjects in 50 CFR Part 648 issued this permit, subject to all other NMFS. While operating under a valid regulations of this part. Fisheries, Fishing, Recordkeeping and letter of authorization or Atlantic reporting requirements. (B) Eligibility for Category A and B herring carrier VMS trip declaration, Herring Permits, and Confirmation of Dated: April 29, 2020. such vessels are exempt from any Permit History (CPH). A vessel is Samuel D. Rauch III, herring possession limits associated eligible for and may be issued either a Deputy Assistant Administrator for with the herring vessel permit Category A or B Herring Permit if it Regulatory Programs, National Marine categories. Atlantic herring carrier meets the permit history criteria in Fisheries Service. vessels operating under a letter of paragraph (a)(10)(iv)(B)(1) of this section For the reasons set out in the authorization or an Atlantic herring and the relevant landing requirements preamble, 50 CFR part 648 is amended carrier VMS trip declaration may not in paragraphs (a)(10)(iv)(B)(2) and (3) of as follows: possess, transfer, or land any species this section. other than Atlantic herring, except that (1) Permit history criteria for Category PART 648—FISHERIES OF THE they may possess Northeast A and B Herring Permits. (i) The vessel NORTHEASTERN UNITED STATES multispecies transferred by vessels must have been issued a Federal herring issued either a Category A or B Herring permit (Category 1 or 2) that was valid ■ 1. The authority citation for part 648 Permit, consistent with the applicable as of November 10, 2005; or continues to read as follows: possession limits for such vessels (ii) The vessel is replacing a vessel Authority: 16 U.S.C. 1801 et seq. specified at § 648.86(a)(3) and (k). that was issued a Federal herring permit ■ 2. In § 648.4, revise paragraphs * * * * * (Category 1 or 2) between November 10, (a)(10)(ii), (a)(10)(iv)(A) through (C), and (iv) * * * 2003, and November 9, 2005. To qualify (a)(10)(v), and remove paragraph (A) A vessel of the United States that as a replacement vessel, the replacement (a)(10)(vi). fishes for, possesses, or lands more than vessel and the vessel being replaced The revisions read as follows: 6,600 lb (3 mt) of herring, except vessels must both be owned by the same vessel that fish exclusively in state waters for owner; or, if the vessel being replaced § 648.4 Vessel permits. herring, must have been issued and was sunk or destroyed, the vessel owner (a) * * * carry on board either one of the limited must have owned the vessel being (10) * * * access herring permits described in replaced at the time it sunk or was (ii) Atlantic herring carrier. An paragraphs (a)(10)(iv)(A)(1) through (3) destroyed; or, if the vessel being Atlantic herring carrier must have been of this section or an open access replaced was sold to another person, the issued and have on board a herring Category E Herring Permit (as described vessel owner must provide a copy of a permit and a letter of authorization to in § 648.4(a)(10)(v)(B)), including both written agreement between the buyer of receive and transport Atlantic herring vessels engaged in pair trawl operations. the vessel being replaced and the caught by another permitted fishing (1) Category A Herring Permit (All owner/seller of the vessel, documenting vessel or it must have been issued and Areas Limited Access Herring Permit). A that the vessel owner/seller retained the have on board a herring permit and have vessel may fish for, possess, and land herring permit and all herring landings declared an Atlantic herring carrier trip unlimited amounts of herring from all history.

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(2) Landings criteria for the Category trawl operations may provide landings must have owned the vessel being A Herring Permit—(i) The vessel must information as specified in paragraph replaced at the time it sunk or was have landed at least 500 mt of herring (a)(10)(iv)(B)(2)(iii) of this section. destroyed; or, if the vessel being in any one calendar year between Landings made by a vessel that is being replaced was sold to another person, the January 1, 1993, and December 31, 2003, replaced may be used to qualify a vessel owner must provide a copy of a as verified by dealer reports submitted replacement vessel consistent with the written agreement between the buyer of to NMFS or documented through valid requirements specified in paragraph the vessel being replaced and the dealer receipts, if dealer reports were (a)(10)(iv)(B)(1)(ii) of this section and owner/seller of the vessel, documenting not required by NMFS. In those cases the permit splitting prohibitions in that the vessel owner/seller retained the where a vessel has sold herring but paragraph (a)(10)(iv)(N) of this section. herring permit and all herring landings there are no required dealer receipts, (ii) Extension of eligibility period for history. e.g., transfers of bait at sea and border landings criteria for vessels under transfers, the vessel owner can submit construction, reconstruction or purchase (2) Landings criteria for Category C other documentation that documents contract. An applicant who submits Herring Permit. (i) The vessel must have such transactions and proves that the written evidence that a vessel was under landed at least 15 mt of herring in any herring thus transferred should be construction, reconstruction, or was calendar year between January 1, 1988, added to their landings history. The under written contract for purchase as and December 31, 2003, as verified by owners of vessels that fished in pair of December 31, 2003, may extend the dealer reports submitted to NMFS or trawl operations may provide landings period for determining landings documented through valid dealer information as specified in paragraph specified in paragraph (a)(10)(iv)(B)(3)(i) receipts, if dealer reports were not (a)(10)(iv)(B)(2)(iii) of this section. of this section through December 31, required by NMFS. In those cases where Landings made by a vessel that is being 2004. a vessel has sold herring but there are replaced may be used to qualify a (iii) Landings criteria for vessels using no required dealer receipts, e.g., replacement vessel consistent with the landings from pair trawl operations. See transfers of bait at sea and border requirements specified in paragraph paragraph (a)(10)(iv)(B)(2)(iii) of this transfers, the vessel owner can submit (a)(10)(iv)(B)(1)(ii) of this section and section. other documentation that documents the permit splitting prohibitions in (4) CPH. A person who does not such transactions and proves that the paragraph (a)(10)(iv)(N) of this section. currently own a fishing vessel, but herring thus transferred should be (ii) Extension of eligibility period for owned a vessel that satisfies the permit added to the vessel’s landings history. landings criteria for vessels under eligibility requirements in paragraph The owners of vessels that fished in pair construction, reconstruction, or (a)(10)(iv)(B) of this section that has trawl operations may provide landings purchase contract. An applicant who sunk, been destroyed, or transferred to information as specified in paragraph submits written evidence that a vessel another person, but that has not been (a)(10)(iv)(B)(2)(iii) of this section. replaced, may apply for and receive a was under construction, reconstruction, Landings made by a vessel that is being CPH that allows for a replacement or was under written contract for replaced may be used to qualify a vessel to obtain the relevant limited purchase as of December 31, 2003, may replacement vessel consistent with the access herring permit if the fishing and extend the period for determining requirements specified in paragraph permit history of such vessel has been landings specified in paragraph (a)(10)(iv)(B)(1)(ii) of this section and (a)(10)(iv)(B)(2)(i) of this section through retained lawfully by the applicant as the permit splitting prohibitions in December 31, 2004. specified in paragraph (iii) Landings criteria for vessels using (a)(10)(iv)(B)(1)(ii) of this section and paragraph (a)(10)(iv)(N) of this section. landings from pair trawl operations. To consistent with (a)(10)(iv)(N) of this (ii) Extension of eligibility period for qualify for a limited access permit using section. landings criteria for vessels under landings from pair trawl operations, the (C) Eligibility for Category C Herring construction, reconstruction or purchase owners of the vessels engaged in that Permit, and CPH. A vessel is eligible for contract. An applicant who submits operation must agree on how to divide and may be issued a Category C Herring written evidence that a vessel was under such landings between the two vessels Permit if it meets the permit history construction, reconstruction, or was and apply for the permit jointly, as criteria specified in paragraph under written contract for purchase as verified by dealer reports submitted to (a)(10)(iv)(C)(1) of this section and the of December 31, 2003, may extend the NMFS or valid dealer receipts, if dealer landings criteria in paragraph period for determining landings reports were not required by NMFS. (a)(10)(iv)(C)(2) of this section. specified in paragraph (a)(10)(iv)(C)(2)(i) (3) Landings criteria for the Category (1) Permit history criteria. (i) The of this section through December 31, B Herring Permit. (i) The vessel must vessel must have been issued a Federal 2004. have landed at least 250 mt of herring permit for Northeast multispecies, in any one calendar year between Atlantic mackerel, Atlantic herring, (3) CPH. A person who does not January 1, 1993, and December 31, 2003, longfin or Illex squid, or butterfish that currently own a fishing vessel, but as verified by dealer reports submitted was valid as of November 10, 2005; or owned a vessel that satisfies the permit to NMFS or documented through valid (ii) The vessel is replacing a vessel eligibility requirements in paragraph dealer receipts, if dealer reports were that was issued a Federal permit for (a)(10)(iv)(C) of this section that has not required by NMFS. In those cases Northeast multispecies, Atlantic sunk, been destroyed, or transferred to where a vessel has sold herring but mackerel, Atlantic herring, longfin or another person, but that has not been there are no required dealer receipts, Illex squid, or butterfish that was issued replaced, may apply for and receive a e.g., transfers of bait at sea and border between November 10, 2003, and CPH that allows for a replacement transfers, the vessel owner can submit November 9, 2005. To qualify as a vessel to obtain the relevant limited other documentation that documents replacement vessel, the replacement access herring permit if the fishing and such transactions and proves that the vessel and the vessel being replaced permit history of such vessel has been herring thus transferred should be must both be owned by the same vessel retained lawfully by the applicant as added to their landings history. The owner; or, if the vessel being replaced specified in paragraph owners of vessels that fished in pair was sunk or destroyed, the vessel owner (a)(10)(iv)(B)(1)(ii) of this section and

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consistent with (a)(10)(iv)(N) of this limited access permit (i.e., Category A, code prior to leaving port at the start of section. B, or C) or Category E Herring Permit to each trip in order to harvest, possess, or * * * * * fish for herring must report catch land herring on that trip. (v) Open access herring permits. A (retained and discarded) of herring daily (2) A vessel issued a limited access vessel that has not been issued a limited via VMS, unless exempted by the herring permit (i.e., Category A, B, or C) access herring permit may obtain: Regional Administrator. The report shall or a Category E Herring Permit or a (A) A Category D Herring Permit (All include at least the following vessel that declared an Atlantic herring Areas Open Access Herring Permit) to information, and any other information carrier trip via VMS must notify NMFS possess up to 6,600 lb (3 mt) of herring required by the Regional Administrator: Office of Law Enforcement through per trip from all herring management Fishing Vessel Trip Report serial VMS of the time and place of offloading areas, limited to one landing per number; month and day herring was at least 6 hours prior to landing or, if calendar day; and/or caught; pounds retained for each herring fishing ends less than 6 hours before (B) A Category E Herring Permit management area; and pounds landing, as soon as the vessel stops (Areas 2/3 Open Access Herring Permit) discarded for each herring management catching fish. The Regional to possess up to 20,000 lb (9 mt) of area. Additionally, the owner or Administrator may adjust the prior herring per trip from Herring operator of a vessel issued a limited notification minimum time through Management Areas 2 and 3, limited to access permit or Category E Herring publication of a document in the one landing per calendar day, provided Permit to fish for herring using Federal Register consistent with the the vessel has also been issued a midwater trawl or bottom trawl gear Administrative Procedure Act. Limited Access Atlantic Mackerel must report daily via VMS the estimated * * * * * permit, as defined at § 648.4(a)(5)(iii). total amount of all species retained (in ■ 5. In § 648.11, revise paragraphs (a), * * * * * pounds, landed weight) by statistical (m)(1)(i) introductory text, (m)(1)(ii) area for use in tracking catch against ■ 3. In § 648.7, revise paragraphs introductory text, (m)(1)(iv), (m)(2)(i), catch caps (haddock, river herring and (b)(2)(i), (b)(3)(i) introductory text, and (m)(2)(iii) introductory text, and shad) in the herring fishery. Daily (b)(3)(i)(A) to read as follows: (m)(7)(iv) through (vi) to read as follows: Atlantic herring VMS catch reports must § 648.7 Recordkeeping and reporting be submitted in 24-hr intervals for each § 648.11 Monitoring coverage. requirements. day and must be submitted by 0900 hr (a) Coverage. The Regional * * * * * (9:00 a.m.) of the following day. Reports Administrator may request any vessel (b) * * * are required even if herring caught that holding a permit for Atlantic sea (2) * * * day has not yet been landed. This report scallops, NE multispecies, monkfish, (i) Atlantic herring vessel owners or does not exempt the owner or operator skates, Atlantic mackerel, squid, operators issued a Category D Herring from other applicable reporting butterfish, scup, black sea bass, bluefish, Permit. The owner or operator of a requirements of this section. spiny dogfish, Atlantic herring, tilefish, vessel issued a Category D Herring (A) The owner or operator of any Atlantic surfclam, ocean quahog, or Permit to fish for herring must report vessel issued a limited access herring Atlantic deep-sea red crab; or a catch (retained and discarded) of permit (i.e., Category A, B, or C) or a moratorium permit for summer herring via an IVR system for each week Category E Herring Permit must submit flounder; to carry a NMFS-certified herring was caught, unless exempted by a catch report via VMS each day, fisheries observer. A vessel holding a the Regional Administrator. IVR reports regardless of how much herring is permit for Atlantic sea scallops is are not required for weeks when no caught (including days when no herring subject to the additional requirements herring was caught. The report shall is caught), unless exempted from this specified in paragraph (k) of this include at least the following requirement by the Regional section. A vessel holding a Category A information, and any other information Administrator. or B Herring Permit is subject to the required by the Regional Administrator: * * * * * additional requirements specified in Vessel identification; week in which ■ 4. In § 648.10, revise paragraphs (b)(8) paragraph (m) of this section. Also, any herring are caught; management areas and (m) to read as follows: vessel or vessel owner/operator that fished; and pounds retained and pounds fishes for, catches or lands hagfish, or discarded of herring caught in each § 648.10 VMS and DAS requirements for intends to fish for, catch, or land hagfish management area. The IVR reporting vessel owners/operators. in or from the exclusive economic zone week begins on Sunday at 0001 hour * * * * * must carry a NMFS-certified fisheries (hr) (12:01 a.m.) local time and ends (b) * * * observer when requested by the Saturday at 2400 hr (12 midnight). (8) A vessel issued a limited access Regional Administrator in accordance Weekly Atlantic herring catch reports herring permit (i.e., Category A, B, or C), with the requirements of this section. must be submitted via the IVR system or a vessel issued a Category E Herring * * * * * by midnight each Tuesday, eastern time, Permit, or a vessel declaring an Atlantic (m) * * * for the previous week. Reports are herring carrier trip via VMS. (1) * * * required even if herring caught during * * * * * (i) In addition to the requirement for the week has not yet been landed. This (m) Atlantic herring VMS notification any vessel holding an Atlantic herring report does not exempt the owner or requirements. (1) A vessel issued a permit to carry a NMFS-certified operator from other applicable reporting limited access herring permit (i.e., observer described in paragraph (a) of requirements of this section. Category A, B, or C) or a Category E this section, vessels issued a Category A * * * * * Herring Permit intending to declare into or B Herring Permit are subject to (3) * * * the herring fishery or a vessel issued a industry-funded monitoring (IFM) (i) Atlantic herring owners or herring permit and intending to declare requirements on declared Atlantic operators issued a limited access permit an Atlantic herring carrier trip via VMS herring trips, unless the vessel is or Category E Herring Permit. The must notify NMFS by declaring a carrying a NMFS-certified observer to owner or operator of a vessel issued a herring trip with the appropriate gear fulfill Standard Bycatch Reporting

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Methodology requirements. An owner of pursuant to paragraphs (m)(2)(iii)(B) and (k) * * * a midwater trawl vessel, required to (C) and (m)(3) of this section. (1) * * * carry a NMFS-certified observer when * * * * * (i) * * * fishing in Northeast Multispecies Closed (2) * * * (D) Any haddock, and up to 100 lb (45 Areas at § 648.202(b), may purchase an (i) At least 48 hr prior to the kg) of other regulated NE multispecies IFM high volume fisheries (HVF) beginning of any trip on which a vessel other than haddock, were harvested by observer to access Closed Areas on a may harvest, possess, or land Atlantic a vessel issued a Category A or B trip-by-trip basis. General requirements herring, the owner, operator, or manager Herring Permit on a declared herring for IFM programs in New England of a vessel issued a limited access trip, regardless of gear or area fished, or Council FMPs are specified in herring permit (i.e., Category A, B, or C) a vessel issued a Category C, D, or E paragraph (g) of this section. Possible or a vessel issued an open access Herring Permit that fished with IFM monitoring for the Atlantic herring herring permit (Category D or E) fishing midwater trawl gear, pursuant to the fishery includes NMFS-certified with midwater trawl gear in requirements in § 648.80(d) and (e), and observers, at-sea monitors, and Management Areas 1A, 1B, and/or 3, as such fish are not sold for human electronic monitoring and portside defined in § 648.200(f)(1) and (3), or a consumption. samplers, as defined in § 648.2. vessel acting as a herring carrier must * * * * * notify NMFS/FSB of the trip. (r) * * * * * * * * * * * * * (1) * * * (ii) Vessels issued a Category A or B (iii) For vessels issued a Category A or (vi) * * * Herring Permit are subject to IFM at-sea B Herring Permit, the trip notification (A) For the purposes of observer monitoring coverage. If the New must also include the following deployment, fail to notify NMFS/FSB at England Council determines that requests, if appropriate: least 48 hr prior to departing on a electronic monitoring, used in * * * * * declared herring trip with a vessel conjunction with portside sampling, is (7) * * * issued a Category A or B Herring Permit an adequate substitute for at-sea (iv) If a vessel issued a Category A or and fishing with midwater trawl or monitoring on vessels fishing with B Herring permit slips catch for any of purse seine gear, or on a trip with a midwater trawl gear, and it is approved the reasons described in paragraph vessel issued a Category C, D, or E by the Regional Administrator as (m)(7)(i) of this section when an Herring Permit that is fishing with specified in paragraph (m)(1)(iii) of this observer or monitor is aboard, the vessel midwater trawl gear in Management section, then owners of vessels issued a operator must move at least 15 nm Areas 1A, 1B, and/or 3, as defined in Category A or B Herring Permit may (27.78 km) from the location of the § 648.200(f)(1) and (3), pursuant to the choose either IFM at-sea monitoring slippage event before deploying any requirements in § 648.80(d) and (e). coverage or IFM electronic monitoring gear again, and must stay at least 15 nm * * * * * and IFM portside sampling coverage, (27.78 km) away from the slippage event (vii) * * * pursuant with requirements in location for the remainder of the fishing (D) Transit Area 1A from June 1 paragraphs (h) and (i) of this section. trip. through September 30 with more than Once owners of vessels issued a (v) If a vessel issued a Category A or 2,000 lb (907.2 kg) of herring while Category A or B Herring Permit may B Herring permit slips catch for any having on board midwater trawl gear choose an IFM monitoring type, vessel reason on a trip selected by NMFS for that is not properly stowed or available owners must select one IFM monitoring portside sampling, pursuant to for immediate use as defined in § 648.2. type per fishing year and notify NMFS paragraph (m)(3) of this section, the (E) Discard haddock at sea that has of their selected IFM monitoring type vessel operator must move at least 15 been brought on deck, or pumped into via selection form six months in nm (27.78 km) from the location of the the hold, of a vessel issued a Category advance of the beginning of the SBRM slippage event before deploying any A or B Herring Permit fishing on a year (October 31). NMFS will provide gear again, and must stay at least 15 nm declared herring trip, regardless of gear vessels owners with selection forms no (27.78 km) away from the slippage event or area fished, or on a trip with a vessel later than September 1 in advance of the location for the remainder of the fishing issued a Category C, D, or E Herring beginning of the SBRM year. trip. Permit fishing with midwater trawl gear, (vi) If catch is slipped by a vessel pursuant to the requirements in * * * * * issued a Category A or B Herring permit § 648.80(d) and (e). (iv) Owners, operators, or managers of for any reason not described in * * * * * vessels issued a Category A or B Herring paragraph (m)(7)(i) of this section when (viii) * * * Permit are responsible for their vessel’s an observer or monitor is aboard, the (B) Fail to notify NMFS Office of Law compliance with IFM requirements. vessel operator must immediately Enforcement through VMS of the time When NMFS notifies a vessel owner, terminate the trip and return to port. No and place of offloading at least 6 hours operator, or manager of the requirement fishing activity may occur during the prior to landing or, if fishing ends less to have monitoring coverage on a return to port. than 6 hours before landing, as soon as specific declared Atlantic herring trip, * * * * * the vessel stops catching fish, if a vessel that vessel may not fish for, take, retain, ■ 6. In § 648.14, revise paragraphs has been issued a limited access herring possess, or land any Atlantic herring (k)(1)(i)(D); (r)(1)(vi)(A), (r)(1)(vii)(D) permit (i.e., Category A, B, or C) or a without the required monitoring and (E), (r)(1)(viii)(B) and (C), remove Category E Herring Permit or has coverage. Vessels may only embark on paragraph (r)(1)(viii)(D), and revise declared an Atlantic herring carrier trip a declared Atlantic herring trip without paragraphs (r)(2)(i) through (iv) and via VMS. the required monitoring coverage if the (r)(2)(ix) through (xiv). (C) Fail to declare via VMS into the vessel owner, operator, and/or manager The revisions read as follows: herring fishery by entering the has been notified that the vessel has appropriate herring fishery code and received a waiver for the required § 648.14 Prohibitions. appropriate gear code prior to leaving monitoring coverage for that trip, * * * * * port at the start of each trip to harvest,

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possess, or land herring, if a vessel has (ix) For vessels with Category A or B vessel issued a Category A or B Herring been issued a limited access herring Herring Permits, fail to move 15 nm Permit fishing on a declared herring trip permit (i.e., Category A, B, or C) or (27.78 km), as required by regardless of gear or area fished, or a issued a Category E Herring Permit or is §§ 648.11(m)(7)(iv) and (v) and vessel issued a Category C, D, or E intending to act as an Atlantic herring 648.202(b)(4)(iv). Herring Permit and fishing with carrier. (x) For vessels with Category A or B midwater trawl gear pursuant to * * * * * Herring Permits, fail to immediately § 648.80(d), may not discard any (2) * * * return to port, as required by haddock that has been brought on the §§ 648.11(m)(7)(vi) and deck or pumped into the hold. (i) Sell, purchase, receive, trade, 648.202(b)(4)(iv). barter, or transfer haddock or other ■ 8. In § 648.80, revise paragraphs (d)(4) (xi) Fail to complete, sign, and submit regulated NE multispecies (cod, witch through (6) and (e)(4) through (6) to read a Released Catch Affidavit as required flounder, plaice, yellowtail flounder, as follows: by §§ 648.11(m)(7)(iii) and pollock, winter flounder, windowpane 648.202(b)(4)(ii). § 648.80 NE Multispecies regulated mesh flounder, redfish, white hake, and (xii) Fail to report or fail to accurately areas and restrictions on gear and methods Atlantic wolffish); or attempt to sell, report a slippage event on the Atlantic of fishing. purchase, receive, trade, barter, or herring daily VMS catch report, as * * * * * transfer haddock or other regulated NE required by §§ 648.11(m)(7)(iii) and (d) * * * multispecies for human consumption; if 648.202(b)(4)(iii). the regulated NE multispecies are (4) The vessel does not fish for, (xiii) For vessels with Category A or landed by a vessel issued a Category A possess or land NE. multispecies, except B Herring Permits, fail to comply with or B Herring Permit fishing on a that a vessel issued a Category A or B industry-funded monitoring declared herring trip, regardless of gear Herring Permit and fishing on a requirements at § 648.11(m). or area fished, or by a vessel issued a declared herring trip, regardless of gear (xiv) For a vessel with a Category A Category C, D, or E Herring Permit or area fished, or a vessel issued a or B Herring Permit, fail to comply with fishing with midwater trawl gear Category C, D, or E Herring Permit and its NMFS-approved vessel monitoring pursuant to § 648.80(d). fishing with midwater trawl gear plan requirements, as described at pursuant to paragraph (d) of this (ii) Fail to comply with requirements § 648.11(m). section, may possess and land haddock for herring processors/dealers that * * * * * and other regulated multispecies handle individual fish to separate out, consistent with the catch caps and and retain, for at least 12 hours, all ■ 7. In § 648.15, revise paragraphs (d) and (e) to read as follows: possession restrictions in § 648.86(a)(3) haddock offloaded from a vessel issued and (k). Such haddock or other a Category A or B Herring Permit that § 648.15 Facilitation of enforcement. regulated NE multispecies may not be fished on a declared herring trip * * * * * sold, purchased, received, traded, regardless of gear or area fished, or by (d) Retention of haddock by herring bartered, or transferred, or attempted to a vessel issued a Category C, D, or E dealers and processors. (1) Federally be sold, purchased, received, traded, Herring Permit that fished with permitted herring dealers and bartered, or transferred for, or intended midwater trawl gear pursuant to processors, including at-sea processors, for, human consumption. Haddock or § 648.80(d). that cull or separate out from the herring other regulated NE multispecies that are (iii) Sell, purchase, receive, trade, catch all fish other than herring in the separated out from the herring catch barter, or transfer; or attempt to sell, course of normal operations, must pursuant to § 648.15(d) may not be sold, purchase, receive, trade, barter, or separate out and retain all haddock purchased, received, traded, bartered, or transfer; to another person, any haddock offloaded from a vessel issued a transferred, or attempted to be sold, or other regulated NE. multispecies Category A or B Herring Permit that purchased, received, traded, bartered, or (cod, witch flounder, plaice, yellowtail fished on a declared herring trip transferred for any purpose. A vessel flounder, pollock, winter flounder, regardless of gear or area fished, or by issued a Category A or B Herring Permit windowpane flounder, redfish, white a vessel issued a Category C, D, or E fishing on a declared herring trip, hake, and Atlantic wolffish) separated Herring Permit that fished with regardless of gear or area fished, or a out from a herring catch offloaded from midwater trawl gear pursuant to vessel issued a Category C, D, or E a vessel issued a Category A or B § 648.80(d). Such haddock may not be Herring Permit and fishing with Herring Permit that fished on a declared sold, purchased, received, traded, midwater trawl gear pursuant to this herring trip regardless of gear or area bartered, or transferred, and must be paragraph (d), may not discard haddock fished, or by a vessel issued a Category retained, after they have been separated, that has been brought on the deck or C, D, or E Herring Permit that fished for at least 12 hours for dealers and pumped into the hold; with midwater trawl gear pursuant to processors on land, and for 12 hours (5) To fish for herring under this § 648.80(d). after landing by at-sea processors. The exemption, a vessel issued a Category A (iv) While operating as an at-sea dealer or processor, including at-sea or B Herring Permit fishing on a herring processor, fail to comply with processors, must clearly indicate the declared herring trip, or a vessel issued requirements to separate out and retain vessel that landed the retained haddock a Category C, D, or E Herring Permit all haddock offloaded from a vessel or transferred the retained haddock to fishing with midwater trawl gear in issued a Category A or B Herring Permit an at-sea processor. Authorized officers Management Areas 1A, 1B, and/or 3, as that fished on a declared herring trip must be given access to inspect the defined in § 648.200(f)(1) and (3), must regardless of gear or area fished, or by haddock. provide notice of the following a vessel issued a Category C, D, or E (2) All haddock separated out and information to NMFS at least 48 hr prior Herring Permit that fished with retained is subject to reporting to beginning any trip into these areas for midwater trawl gear pursuant to requirements specified at § 648.7. the purposes of observer deployment: § 648.80(d). (e) Retention of haddock by herring Vessel name; contact name for * * * * * vessels using midwater trawl gear. A coordination of observer deployment;

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telephone number for contact; the date, notification minimum time through for a vessel issued a Category A or B time, and port of departure; and publication of a document in the Herring Permit fishing on a declared (6) A vessel issued a Category A or B Federal Register consistent with the herring trip, regardless of area fished or Herring Permit fishing on a declared Administrative Procedure Act. gear used, in the applicable AM area, herring trip with midwater trawl gear, or * * * * * unless the vessel also possesses a NE a vessel issued a Category C or E Herring ■ 9. In § 648.83, revise paragraph (b)(4) multispecies permit and is operating on Permit and fishing with midwater trawl to read as follows: a declared (consistent with § 648.10(g)) gear in Management Areas 1A, 1B, and/ NE multispecies trip. In making this or 3, as defined at § 648.200(f)(1) and § 648.83 Multispecies minimum fish sizes. determination, the Regional (3), must notify NMFS Office of Law * * * * * Administrator shall use haddock Enforcement through VMS of the time (b) * * * catches observed by NMFS-certified and place of offloading at least 6 hours (4) Vessels that have a Category A or observers or monitors by herring vessel prior to landing or, if fishing ends less B Herring Permit may possess and land trips using midwater trawl gear in than 6 hours before landing, as soon as haddock and other regulated species Management Areas 1A, 1B, and/or 3, as the vessel stops catching fish. The that are smaller than the minimum size defined in § 648.200(f)(1) and (3), Regional Administrator may adjust the specified under § 648.83, consistent expanded to an estimate of total prior notification minimum time with the bycatch caps specified in haddock catch for all such trips in a through publication of a document in § 648.86(a)(3) and (k). Such fish may not given haddock stock area. the Federal Register consistent with the be sold for human consumption. * * * * * Administrative Procedure Act. * * * * * (k) Other regulated NE multispecies * * * * * ■ 10. In § 648.86, revise paragraphs possession restrictions for some Atlantic (e) * * * (a)(3)(i), (a)(3)(ii)(A)(1), and (k) to read herring vessels. A vessel issued a (4) The vessel does not fish for, as follows: Category A or B Herring Permit on a possess, or land NE multispecies, except declared herring trip, regardless of area that vessels that have a Category A or B § 648.86 NE Multispecies possession fished or gear used, or a vessel issued Herring Permit fishing on a declared restrictions. a Category C, D, or E Herring Permit and herring trip may possess and land * * * * * fishing with midwater trawl gear haddock or other regulated species (a) * * * pursuant to § 648.80(d), may possess consistent with possession restrictions (3) * * * and land haddock, and up to 100 lb (45 in § 648.86(a)(3) and (k), respectively. (i) Incidental catch allowance for kg), combined, of other regulated NE. Such haddock or other regulated some Atlantic herring vessels. A vessel multispecies, other than haddock, in multispecies may not be sold, issued a Category A or B Herring Permit accordance with the requirements in purchased, received, traded, bartered, or fishing on a declared herring trip, § 648.80(d) and (e). Such fish may not transferred, or attempted to be sold, regardless of gear or area fished, or a be sold for human consumption. purchased, received, traded, bartered, or vessel issued a Category C, D, or E * * * * * transferred for, or intended for, human Herring Permit and fishing with ■ 11. In § 648.200, revise paragraphs (a), consumption. Haddock or other midwater trawl gear pursuant to (b)(1), and (c) to read as follows: regulated species that are separated out § 648.80(d), may only possess and land from the herring catch pursuant to haddock, in accordance with § 648.200 Specifications. § 648.15(d) may not be sold, purchased, requirements specified in § 648.80(d) (a) The Atlantic Herring Plan received, traded, bartered, or and (e). Development Team (PDT) shall meet at transferred, or attempted to be sold, (ii) * * * least every 3 years, but no later than July purchased, received, traded, bartered, or (A) * * * of the year before new specifications are transferred for any purpose. A vessel (1) Haddock incidental catch cap. implemented, with the Atlantic States issued a Category A or B Herring Permit When the Regional Administrator has Marine Fisheries Commission’s may not discard haddock that has been determined that the incidental catch (Commission) Atlantic Herring brought on the deck or pumped into the allowance for a given haddock stock, as Technical Committee (TC) to develop hold; specified in § 648.90(a)(4)(iii)(D), has and recommend the following (5) To fish for herring under this been caught, no vessel issued an specifications for a period of 3 years for exemption, vessels that have a Category Atlantic herring permit and fishing with consideration by the New England A or B Herring Permit must provide midwater trawl gear in the applicable Fishery Management Council’s Atlantic notice to NMFS of the vessel name; stock area, i.e., the Herring GOM Herring Oversight Committee: contact name for coordination of Haddock Accountability Measure (AM) Overfishing Limit (OFL), Acceptable observer deployment; telephone number Area or Herring GB Haddock AM Area, Biological Catch (ABC), Annual Catch for contact; and the date, time, and port as defined in paragraphs (a)(3)(ii)(A)(2) Limit (ACL), Optimum yield (OY), of departure, at least 48 hr prior to and (3) of this section, may fish for, domestic annual harvest (DAH), beginning any trip into these areas for possess, or land herring in excess of domestic annual processing (DAP), U.S. the purposes of observer deployment; 2,000 lb (907.2 kg) per trip in or from at-sea processing (USAP), border and that area, unless all herring possessed transfer (BT), the sub-ACL for each (6) All vessels that have a Category A and landed by the vessel were caught management area, including seasonal or B Herring Permit must notify NMFS outside the applicable AM Area and the periods as specified at § 648.201(d) and Office of Law Enforcement through vessel’s gear is stowed and not available modifications to sub-ACLs as specified VMS of the time and place of offloading for immediate use as defined in § 648.2 at § 648.201(f), the amount to be set at least 6 hours prior to landing or, if while transiting the AM Area. Upon this aside for the RSA (from 0 to 3 percent fishing ends less than 6 hours before determination, the haddock possession of the sub-ACL from any management landing, as soon as the vessel stops limit is reduced to 0 lb (0 kg) for a vessel area), and river herring and shad catch catching fish. The Regional issued a Federal Atlantic herring permit caps, as specified in § 648.201(a)(4). Administrator may adjust the prior and fishing with midwater trawl gear or Recommended specifications shall be

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presented to the New England Fishery clearly stated and the revised herring is added as carryover to a 5,000 Management Council. specifications must satisfy the criteria mt sub-ACL, catch in that management (1) The PDT shall meet with the set forth in paragraph (b) of this section. area would be tracked against a total Commission’s TC to review the status of * * * * * sub-ACL of 5,500 mt. NMFS shall add the stock and the fishery and prepare a ■ 12. In § 648.201, revise paragraphs sub-ACL carryover only if the ACL, Stock Assessment and Fishery (a)(2), (g), and (h) to read as follows: specified consistent with Evaluation (SAFE) report at least every § 648.200(b)(3), for the fishing year in 3 years. The Herring PDT will meet at § 648.201 AMs and harvest controls. which there is unharvested herring, is least once during interim years to (a) * * * not exceeded. The ACL, consistent with review the status of the stock relative to (2) When the Regional Administrator § 648.200(b)(3), shall not be increased the overfishing definition if information has determined that the GOM and/or GB by carryover specified in this paragraph is available to do so. When conducting incidental catch cap for haddock in (g). a 3-year review and preparing a SAFE § 648.90(a)(4)(iii)(D) has been caught, no (2) Carryover of unharvested catch as Report, the PDT/TC will recommend to vessel issued a Federal Atlantic herring described in this paragraph (g) shall not the Council/Commission any necessary permit and fishing with midwater trawl be added to any herring management adjustments to the specifications for the gear in the applicable Accountability area’s sub-ACL in the 2020 and 2021 upcoming 3 years. Measure (AM) Area, i.e., the Herring herring fishing years. (2) If the Council determines, based GOM Haddock AM Area or Herring GB (h) If NMFS determines that the New on information provided by the PDT/TC Haddock AM Area, as defined in Brunswick weir fishery landed less than or other stock-related information, that § 648.86(a)(3)(ii)(A)(2) and (3) of this 2,942 mt of herring through October 1, the specifications should be adjusted part, may fish for, possess, or land NMFS will subtract 1,000 mt from during the 3-year time period, it can do herring in excess of 2,000 lb (907.2 kg) management uncertainty and reallocate so through the same process outlined in per trip in or from the applicable AM that 1,000 mt to the ACL and Area 1A this section during one or both of the Area, and from landing herring more sub-ACL. NMFS will notify the Council interim years. than once per calendar day, unless all of this adjustment and publish the (b) * * * herring possessed and landed by a adjustment in the Federal Register. (1) OFL must be equal to catch vessel were caught outside the ■ 13. In § 648.202, revise paragraph resulting from applying the maximum applicable AM Area and the vessel’s (b)(4)(iv) to read as follows: fishing mortality threshold to a current gear is not available for immediate use § 648.202 Season and area restrictions. or projected estimate of stock size. as defined in § 648.2 while transiting When the stock is not overfished and the applicable AM Area. Upon this * * * * * overfishing is not occurring, this is determination, the haddock possession (b) * * * usually the fishing rate supporting limit is reduced to 0 lb (0 kg) in the (4) * * * (iv) Comply with the measures to maximum sustainable yield (e.g., FMSY). applicable AM area for a vessel issued address slippage specified in Catch that exceeds this amount would a Federal Atlantic herring permit and § 648.11(m)(4)(iv) and (v) if the vessel result in overfishing. The stock is fishing with midwater trawl gear or for was issued a Category A or B Herring considered overfished if stock biomass a vessel issued a Category A or B Permit. is less than 1⁄2 the stock biomass Herring Permit fishing on a declared ■ associated with the MSY level or its herring trip, regardless of area fished or 14. In § 648.204, revise paragraph (a) to read as follows: proxy (e.g., SSBMSY or proxy). The stock gear used, in the applicable AM area, is considered subject to overfishing if unless the vessel also possesses a § 648.204 Possession restrictions. the fishing mortality rate exceeds the Northeast multispecies permit and is (a) A vessel must be issued and fishing mortality rate associated with operating on a declared (consistent with possess a valid limited access herring the MSY level or its proxy (e.g., FMSY or § 648.10(g)) Northeast multispecies trip. permit (i.e., Category A, B, or C) or proxy). * * * * * Category E Herring Permit (as defined in * * * * * (g) Carryover. (1) Subject to the § 648.4(a)(10)(iv) and (v)) to fish for, (c) The Atlantic Herring Oversight conditions described in this paragraph possess, or land more than 6,600 lb (3 Committee shall review the (g), unharvested catch in a herring mt) of Atlantic herring from any herring recommendations of the PDT and shall management area in a fishing year (up management area in the EEZ. A vessel consult with the Commission’s Herring to 10 percent of that area’s sub-ACL) must abide by any harvest restriction Board. Based on these recommendations shall be carried over and added to the specified in § 648.201 that has been and any public comment received, the sub-ACL for that herring management implemented. Herring Oversight Committee shall area for the fishing year following the (1) A vessel issued a Category A recommend to the Council appropriate year when total catch is determined. For Herring Permit may fish for, possess, or specifications for a 3-year period. The example, NMFS will determine total land Atlantic herring with no Council shall review these catch from Year 1 during Year 2, and possession restriction from any of the recommendations and, after considering will add carryover to the applicable sub- herring management areas defined in public comment, shall recommend ACL(s) in Year 3. All such carryover § 648.200(f), provided none of the appropriate 3-year specifications to shall be based on the herring accountability measures or harvest NMFS. NMFS shall review the management area’s initial sub-ACL restrictions specified in § 648.201 have recommendations, consider any allocation for the fishing year, not the been implemented. comments received from the sub-ACL as increased by carryover or (2) A vessel issued only a Category B Commission, and publish notification in decreased by an overage deduction, as Herring Permit may fish for, possess, or the Federal Register proposing 3-year specified in paragraph (a)(3) of this land Atlantic herring with no specifications. If the proposed section. All herring caught from a possession restriction only from Area 2 specifications differ from those herring management area shall count or Area 3, as defined in § 648.200(f), recommended by the Council, the against that area’s sub-ACL, as increased provided none of the accountability reasons for any differences shall be by carryover. For example, if 500 mt of measures or harvest restrictions

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specified in § 648.201 have been is limited to one landing of herring per ■ 15. Section 648.205 is revised to read implemented. Such a vessel may fish in calendar day, provided none of the as follows: Area 1 only if issued a Category C or D accountability measures or harvest Herring Permit, and only as authorized restrictions specified in § 648.201 have § 648.205 VMS requirements. by the respective permit. been implemented. The owner or operator any vessel (3) A vessel issued a Category C (5) A vessel issued a Category E issued a limited access herring permit Herring Permit may fish for, possess, or Herring Permit may fish for, possess, or (i.e., Category A, B, or C) or Category E land up to, but no more than, 20,000 lb land up to, but no more than, 55,000 lb Herring Permit, with the exception of (25 mt) of Atlantic herring in any (9 mt) of Atlantic herring from only fixed gear fishermen, must install and calendar day, and is limited to one Area 2 or Area 3, as defined in operate a VMS unit consistent with the landing of herring per calendar day, § 648.200(f), per trip, and is limited to requirements of § 648.9. The VMS unit from any management area defined in one landing of herring per calendar day, § 648.200(f), provided none of the provided none of the accountability must be installed on board, and must be accountability measures or harvest measures or harvest restrictions operable before the vessel may begin restrictions specified in § 648.201 have specified in § 648.201 have been fishing. Atlantic herring carrier vessels been implemented. implemented. are not required to have VMS (See (4) A vessel issued a Category D (6) A vessel issued a herring permit § 648.10(m) for VMS notification Herring Permit may fish for, possess, or may possess herring roe provided that requirements.). land up to, but no more than, 6,600 lb the carcasses of the herring from which [FR Doc. 2020–09574 Filed 5–5–20; 8:45 am] it came are not discarded at sea. (3 mt) of Atlantic herring from any BILLING CODE 3510–22–P herring management area per trip, and * * * * *

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Proposed Rules Federal Register Vol. 85, No. 88

Wednesday, May 6, 2020

This section of the FEDERAL REGISTER Airplanes, Attention: Contractual & Data Discussion contains notices to the public of the proposed Services (C&DS), 2600 Westminster The FAA has examined the issuance of rules and regulations. The Blvd., MC 110–SK57, Seal Beach, CA underlying safety issues involved in fuel purpose of these notices is to give interested 90740–5600; telephone 562–797–1717; persons an opportunity to participate in the tank explosions on several large rule making prior to the adoption of the final internet https:// transport airplanes, including the rules. www.myboeingfleet.com. You may view adequacy of existing regulations, the this service information at the FAA, service history of airplanes subject to Airworthiness Products Section, those regulations, and existing DEPARTMENT OF TRANSPORTATION Operational Safety Branch, 2200 South maintenance practices for fuel tank 216th St., Des Moines, WA. For systems. As a result of those findings, Federal Aviation Administration information on the availability of this the FAA issued a final rule titled material at the FAA, call 206–231–3195. ‘‘Transport Airplane Fuel Tank System 14 CFR Part 39 Design Review, Flammability Reduction Examining the AD Docket [Docket No. FAA–2020–0341; Product and Maintenance and Inspection Identifier 2020–NM–017–AD] You may examine the AD docket on Requirements’’ (66 FR 23086, May 7, 2001). In addition to new airworthiness RIN 2120–AA64 the internet at https:// www.regulations.gov by searching for standards for transport airplanes and Airworthiness Directives; The Boeing and locating Docket No. FAA–2020– new maintenance requirements that rule Company Airplanes 0341; or in person at Docket Operations included Amendment 21–78, which established Special Federal Aviation between 9 a.m. and 5 p.m., Monday AGENCY: Federal Aviation Regulation No. 88 (‘‘SFAR 88’’) at 14 through Friday, except Federal holidays. Administration (FAA), DOT. CFR part 21. Subsequently, SFAR 88 The AD docket contains this NPRM, any was amended by Amendment 21–82 (67 ACTION: Notice of proposed rulemaking comments received, and other FR 57490, September 10, 2002; (NPRM). information. The street address for corrected at 67 FR 70809, November 26, SUMMARY: The FAA proposes to adopt a Docket Operations is listed above. 2002), Amendment 21–83 (67 FR 72830, new airworthiness directive (AD) for Comments will be available in the AD December 9, 2002; corrected at 68 FR certain The Boeing Company Model docket shortly after receipt. 37735, June 25, 2003, to change ‘‘21–82’’ 737–600, –700, –700C, –800, –900, and FOR FURTHER INFORMATION CONTACT: to ‘‘21–83’’), and Amendment 21–101 –900ER series airplanes. This proposed Christopher Baker, Aerospace Engineer, (83 FR 9162, March 5, 2018). AD was prompted by significant Propulsion Section, FAA, Seattle ACO Among other actions, SFAR 88 changes made to the airworthiness Branch, 2200 South 216th St., Des requires certain type design (i.e., type limitations (AWLs) related to fuel tank Moines, WA 98198; phone and fax: 206– certificate (TC) and supplemental type ignition prevention and the nitrogen 231–3556; email: Christopher.R.Baker@ certificate (STC)) holders to substantiate generation system. This proposed AD faa.gov. that their fuel tank systems can prevent would require revising the existing ignition sources in the fuel tanks. This maintenance or inspection program, as SUPPLEMENTARY INFORMATION: requirement applies to type design applicable, to incorporate the latest holders for large turbine-powered revision of the AWLs. The FAA is Comments Invited transport airplanes and for subsequent proposing this AD to address the unsafe The FAA invites you to send any modifications to those airplanes. It condition on these products. written relevant data, views, or requires them to perform design reviews DATES: The FAA must receive comments arguments about this proposal. Send and to develop design changes and on this proposed AD by June 22, 2020. your comments to an address listed maintenance procedures if their designs do not meet the new fuel tank safety ADDRESSES: You may send comments, under the ADDRESSES section. Include using the procedures found in 14 CFR ‘‘Docket No. FAA–2020–0341; Product standards. As explained in the preamble to the final rule published on May 7, 11.43 and 11.45, by any of the following Identifier 2020–NM–017–AD’’ at the 2001, the FAA intended to adopt methods: beginning of your comments. The FAA • airworthiness directives to mandate any Federal eRulemaking Portal: Go to specifically invite comments on the changes found necessary to address https://www.regulations.gov. Follow the overall regulatory, economic, unsafe conditions identified as a result instructions for submitting comments. environmental, and energy aspects of • of these reviews. Fax: 202–493–2251. this NPRM. The FAA will consider all • Mail: U.S. Department of In evaluating these design reviews, comments received by the closing date Transportation, Docket Operations, M– the FAA has established four criteria and may amend this NPRM because of 30, West Building Ground Floor, Room intended to define the unsafe conditions those comments. W12–140, 1200 New Jersey Avenue SE, associated with fuel tank systems that Washington, DC 20590. The FAA will post all comments require corrective actions. The • Hand Delivery: Deliver to Mail received, without change, to https:// percentage of operating time during address above between 9 a.m. and 5 www.regulations.gov, including any which fuel tanks are exposed to p.m., Monday through Friday, except personal information you provide. The flammable conditions is one of these Federal holidays. FAA will also post a report criteria. The other three criteria address For service information identified in summarizing each substantive verbal the failure types under evaluation: this NPRM, contact Boeing Commercial contact received about this NPRM. single failures, single failures in

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combination with another latent • The revision required by paragraph are not required to do the operational condition(s), and in-service failure (k) of AD 2011–18–03, Amendment 39– test for left center tank fuel boost pump experience. For all four criteria, the 16785 (76 FR 53317, August 26, 2011). relay R54 and right center tank fuel evaluations included consideration of • All requirements of AD 2013–15– boost pump relay R55. previous actions taken that may mitigate 17, Amendment 39–17533 (78 FR Paragraph (g) of this proposed AD 52838, August 27, 2013). the need for further action. would require operators to revise their • All requirements of AD 2018–20– The FAA has determined that the existing maintenance or inspection 24. actions identified in this proposed AD program by incorporating, in part, AWL are necessary to reduce the potential of Related Service Information Under 1 No. 28–AWL–05, ‘‘Wire Separation ignition sources inside fuel tanks, CFR Part 51 Requirements for New Wiring Installed which, in combination with flammable in Proximity to Wiring That Goes Into fuel vapors, could result in fuel tank The FAA reviewed Boeing 737–600/ the Fuel Tanks’’ in Boeing 737–600/700/ explosions and consequent loss of the 700/700C/800/900/900ER Special 700C/800/900/900ER Special airplane. Compliance Items/Airworthiness Compliance Items/Airworthiness The FAA issued AD 2008–10–10 R1, Limitations, D626A001–9–04, dated Limitations, D626A001–9–04, dated Amendment 39–16164 (75 FR 1529, April 2019. This service information April 2019. Paragraph (h) of this January 12, 2010) (‘‘AD 2008–10–10 describes AWLs that include proposed AD would allow certain R1’’) and AD 2018–20–24, Amendment airworthiness limitation instructions changes to be made to the requirements 39–19458 (83 FR 51815, October 15, (ALIs) and critical design configuration specified in AWL No. 28–AWL–05 as an 2018) (‘‘AD 2018–20–24’’), which apply control limitations (CDCCLs) tasks option. to certain The Boeing Company Model related to fuel tank ignition prevention 737–600, –700, –700C, –800, and –900 and the nitrogen generation system. Clarification of the Service Information series airplanes. AD 2008–10–10 R1 and This service information is reasonably AD 2018–20–24 require incorporation of available because the interested parties The ‘‘applicability’’ column of AWL fuel system AWLs and also require an have access to it through their normal No. 28–AWL–19 identifies affected initial inspection to phase in certain course of business or by the means airplanes. For airplanes on which the repetitive inspections, and repair if identified in the ADDRESSES section. actions specified in paragraph (s) of AD necessary. The fuel system AWLs were FAA’s Determination 2011–18–03 have been done, developed to satisfy SFAR 88 incorporation of Boeing Service Bulletin The FAA is proposing this AD requirements and included in the 737–28A1206 is not required. Therefore, because the agency evaluated all the Airworthiness Limitations Section those airplanes are not affected by AWL relevant information and determined (ALS) of the manufacturer’s Instructions No. 28–AWL–19 and are not required to the unsafe condition described for Continued Airworthiness. Since AD do the functional test. previously is likely to exist or develop 2008–10–10 R1 and AD 2018–20–24 in other products of the same type The ‘‘applicability’’ column of AWL were issued, the ALS has been design. No. 28–AWL–23 identifies affected significantly revised by the airplanes. For airplanes on which the manufacturer to correct technical and Proposed AD Requirements actions specified in paragraph (s) of AD editorial errors and also to add new This proposed AD would require 2011–18–03 have been done, requirements. Those changes affect the revising the existing maintenance or incorporation of Boeing Service Bulletin fuel system and nitrogen generation inspection program, as applicable, to 737–28A1248 is not required. Therefore, system AWLs. incorporate new or more restrictive those airplanes are not affected by AWL The FAA proposes to adopt this new airworthiness limitations. No. 28–AWL–23 and are not required to AD to require revising the maintenance This proposed AD would require do the functional test. or inspection program, as applicable, to revisions to certain operator incorporate the latest revision of the maintenance documents to include new Costs of Compliance AWLs. The FAA is proposing this AD to actions (e.g., inspections) and CDCCLs. The FAA estimates that this proposed prevent the potential for ignition Compliance with these actions and sources inside the fuel tanks and also to AD affects 2,057 airplanes of U.S. CDCCLs is required by 14 CFR registry. The FAA estimates the prevent increasing the flammability 91.403(c). For airplanes that have been exposure of the center fuel tank caused following costs to comply with this previously modified, altered, or repaired proposed AD: by latent failures, alterations, repairs, or in the areas addressed by this proposed maintenance actions, which could result AD, the operator may not be able to The FAA determined that revising the in a fuel tank explosion and consequent accomplish the actions described in the existing maintenance or inspection loss of an airplane. revisions. In this situation, to comply program takes an average of 90 work- The FAA has determined that with 14 CFR 91.403(c), the operator hours per operator, although the agency accomplishing the revision required by must request approval for an alternative recognizes that this number may vary paragraph (g) of this proposed AD method of compliance according to from operator to operator. In the past, would terminate the following paragraph (k) of this proposed AD. the FAA estimated that this action takes requirements for that airplane: 1 work-hour per airplane. Since • All requirements of AD 2008–10–10 Differences Between This Proposed AD operators incorporate maintenance or R1. and the Service Information inspection program changes for their • The revision required by paragraphs The ‘‘description’’ column of AWL affected fleet(s), the FAA determined (h) and (h)(1) of AD 2008–06–03, No. 28–AWL–20 identifies certain that a per-operator estimate is more Amendment 39–15415 (73 FR 13081, operational tests. However, airplanes on accurate than a per-airplane estimate. March 12, 2008). which the actions specified in Therefore, the FAA estimates the • The revision required by paragraph paragraph (g)(2)(ii) of AD 2011–20–07, average total cost per operator to be (g) of AD 2008–17–15, Amendment 39– Amendment 39–16818 (76 FR 60710, $7,650 (90 work-hours x $85 per work- 15653 (73 FR 50714, August 28, 2008). September 30, 2011), have been done hour).

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Authority for This Rulemaking § 39.13 [Amended] paragraph (h) of this AD. The initial ■ 2. The FAA amends § 39.13 by adding compliance times for the airworthiness Title 49 of the United States Code the following new airworthiness limitation instruction (ALI) tasks are within specifies the FAA’s authority to issue directive (AD): the applicable compliance times specified in rules on aviation safety. Subtitle I, in paragraphs (g)(1) through (14) of this AD. section 106, describes the authority of The Boeing Company: Docket No. FAA– (1) For AWL No. 28–AWL–01, ‘‘External 2020–0341; Product Identifier 2020– Wires Over Center Fuel Tank:’’ Within 120 the FAA Administrator. Subtitle VII: NM–017–AD. months after the date of issuance of the Aviation Programs, describes in more original airworthiness certificate or the (a) Comments Due Date detail the scope of the Agency’s original export certificate of airworthiness, or authority. The FAA must receive comments by June within 120 months after the most recent 22, 2020. The FAA is issuing this rulemaking inspection was performed as specified in (b) Affected ADs AWL No. 28–AWL–01, whichever is later. under the authority described in (2) For AWL No. 28–AWL–03, ‘‘Fuel Subtitle VII, Part A, Subpart III, Section This AD affects the ADs specified in Quantity Indicating System (FQIS)-Out Tank 44701: ‘‘General requirements.’’ Under paragraphs (b)(1) through (6) of this AD. Wiring Lightning Shield to Ground that section, Congress charges the FAA (1) AD 2008–06–03, Amendment 39–15415 Termination:’’ Within 120 months after the with promoting safe flight of civil (73 FR 13081, March 12, 2008) (‘‘AD 2008– date of issuance of the original airworthiness aircraft in air commerce by prescribing 06–03’’). certificate or the original export certificate of regulations for practices, methods, and (2) AD 2008–10–10 R1, Amendment 39– airworthiness, or within 120 months after the 16164 (75 FR 1529, January 12, 2010) (‘‘AD most recent inspection was performed as procedures the Administrator finds 2008–10–10 R1’’). necessary for safety in air commerce. specified in AWL No. 28–AWL–03, (3) AD 2008–17–15, Amendment 39–15653 whichever is later. This regulation is within the scope of (73 FR 50714, August 28, 2008) (‘‘AD 2008– (3) For AWL No. 28–AWL–19, ‘‘Center that authority because it addresses an 17–15’’). Tank Fuel Boost Pump Automatic Shutoff unsafe condition that is likely to exist or (4) AD 2011–18–03, Amendment 39–16785 System:’’ Within 12 months after the date of develop on products identified in this (76 FR 53317, August 26, 2011) (‘‘AD 2011– issuance of the original airworthiness rulemaking action. 18–03’’). certificate or the original export certificate of (5) AD 2013–15–17, Amendment 39–17533 airworthiness, within 12 months after Regulatory Findings (78 FR 52838, August 27, 2013) (‘‘AD 2013– accomplishment of the actions specified in 15–17’’). Boeing Service Bulletin 737–28A1206, or The FAA determined that this (6) AD 2018–20–24, Amendment 39–19458 within 12 months after the most recent proposed AD would not have federalism (83 FR 51815, October 15, 2018) (‘‘AD 2018– inspection was performed as specified in implications under Executive Order 20–24’’). AWL No. 28–AWL–19, whichever is latest. 13132. This proposed AD would not (c) Applicability This AWL does not apply to airplanes that have complied with paragraph (s) of AD have a substantial direct effect on the This AD applies to The Boeing Company 2011–18–03. States, on the relationship between the Model 737–600, –700, –700C, –800, –900, (4) For AWL No. 28–AWL–20, ‘‘Over- national Government and the States, or and –900ER series airplanes, certificated in Current and Arcing Protection Electrical on the distribution of power and any category, with an original airworthiness Design Features Operation-Boost Pump certificate or original export certificate of responsibilities among the various Ground Fault Interrupter (GFI):’’ Within 12 airworthiness issued on or before December levels of government. months after the date of issuance of the 18, 2019. For the reasons discussed above, I original airworthiness certificate or the certify this proposed regulation: (d) Subject original export certificate of airworthiness, within 12 months after accomplishment of (1) Is not a ‘‘significant regulatory Air Transport Association (ATA) of America Code 71, Powerplant. the actions specified in Boeing Service action’’ under Executive Order 12866, Bulletin 737–28A1201, or within 12 months (2) Will not affect intrastate aviation (e) Unsafe Condition after the most recent inspection was in Alaska, and This AD was prompted by significant performed as specified in AWL No. 28– changes made to the airworthiness AWL–20, whichever is latest. For airplanes (3) Will not have a significant limitations (AWLs) related to fuel tank that have complied with paragraph (g)(2)(ii) economic impact, positive or negative, ignition prevention and the nitrogen of AD 2011–20–07, Amendment 39–16818 on a substantial number of small entities generation system. The FAA is issuing this (76 FR 60710, September 30, 2011), the under the criteria of the Regulatory AD to address the development of an ignition operational test for left center tank fuel boost Flexibility Act. source inside the fuel tanks and also to pump relay R54 and right center tank fuel prevent increasing the flammability exposure boost pump relay R55 does not apply. List of Subjects in 14 CFR Part 39 of the center fuel tank, which could lead to (5) For AWL No. 28–AWL–23, ‘‘Center fuel tank explosion and consequent loss of Tank Fuel Boost Pump Power Failed On Air transportation, Aircraft, Aviation the airplane. Protection System:’’ Within 12 months after safety, Incorporation by reference, the date of issuance of the original Safety. (f) Compliance airworthiness certificate or the original Comply with this AD within the export certificate of airworthiness, within 12 The Proposed Amendment compliance times specified, unless already months after accomplishment of the actions done. specified in Boeing Service Bulletin 737– Accordingly, under the authority 28A1248, or within 12 months after the most delegated to me by the Administrator, (g) Maintenance or Inspection Program recent inspection was performed as specified the FAA proposes to amend 14 CFR part Revision in AWL No. 28–AWL–23, whichever is latest. 39 as follows: Within 60 days after the effective date of This AWL does not apply to airplanes that this AD, revise the existing maintenance or have complied with paragraph (s) of AD PART 39—AIRWORTHINESS inspection program, as applicable, to 2011–18–03. DIRECTIVES incorporate the information specified in (6) For AWL No. 28–AWL–24, ‘‘Spar Valve Section A, including Subsections A.1., A.2., Motor Operated Valve (MOV) Actuator- ■ 1. The authority citation for part 39 and A.3, of Boeing 737–600/700/700C/800/ Lightning and Fault Current Protection 900/900ER Special Compliance Items/ Electrical Bond:’’ Within 72 months after continues to read as follows: Airworthiness Limitations, D626A001–9–04, accomplishment of the actions specified in Authority: 49 U.S.C. 106(g), 40113, 44701. dated April 2019; except as provided by Boeing Service Bulletin 737–28A1207, or

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within 72 months after the most recent of the original airworthiness certificate or the (k) Alternative Methods of Compliance inspection was performed as specified in original export certificate of airworthiness, or (AMOCs) AWL No. 28–AWL–24, whichever is later. within 18,000 flight hours after the most (1) The Manager, Seattle ACO Branch, (7) For AWL No. 28–AWL–29, ‘‘Full recent replacement was performed as FAA, has the authority to approve AMOCs Cushion Clamps and Teflon Sleeving (If specified in AWL No. 47–AWL–09, or within for this AD, if requested using the procedures Installed) Installed on Out-of-Tank Wire 12 months after the effective date of this AD, found in 14 CFR 39.19. In accordance with Bundles Installed on Brackets that are whichever is latest. 14 CFR 39.19, send your request to your Mounted Directly on the Fuel Tanks:’’ For (14) For AWL No. 28–AWL–101, ‘‘Engine principal inspector or local Flight Standards airplanes having line numbers (L/N) 1 Fuel Suction Feed Operational Test:’’ Within District Office, as appropriate. If sending through 1754 inclusive, within 120 months 7,500 flight hours or 36 months, whichever information directly to the manager of the after accomplishment of the actions specified occurs first, after the date of issuance of the certification office, send it to the attention of in Boeing Service Bulletin 737–57A1279. For original airworthiness certificate or the the person identified in paragraph (l)(1) of airplanes having L/N 1755 and subsequent, original export certificate of airworthiness; or this AD. Information may be emailed to: 9- within 120 months after the date of issuance [email protected]. of the original airworthiness certificate or the within 7,500 flight hours or 36 months, whichever occurs first, after the most recent (2) Before using any approved AMOC, original export certificate of airworthiness, or notify your appropriate principal inspector, inspection was performed as specified in within 48 months after the effective date of or lacking a principal inspector, the manager AWL No. 28–AWL–101; whichever is later. this AD, whichever is later. of the local flight standards district office/ (8) For AWL No. 28–AWL–35, ‘‘Fuel (h) Additional Acceptable Wire Types and certificate holding district office. Quantity Indicating System (FQIS)—Center Sleeving (3) An AMOC that provides an acceptable Fuel Tank In-Tank Component and Wire level of safety may be used for any repair, Harness Protection Features—Separation As an option, when accomplishing the modification, or alteration required by this from Center Tank Internal Structure:’’ For actions required by paragraph (g) of this AD, AD if it is approved by The Boeing Company airplanes that have incorporated Boeing the changes specified in paragraphs (h)(1) Organization Designation Authorization Service Bulletin 737–28–1356, within 120 and (2) of this AD are acceptable. (ODA) that has been authorized by the months after accomplishment of the actions (1) Where AWL No. 28–AWL–05 identifies Manager, Seattle ACO Branch, FAA, to make specified in Boeing Service Bulletin 737–28– wire types BMS 13–48, BMS 13–58, and BMS those findings. To be approved, the repair 1356, or within 120 months after the most 13–60, the following wire types are method, modification deviation, or alteration recent inspection was performed as specified acceptable: MIL–W–22759/16, SAE deviation must meet the certification basis of in AWL No. 28–AWL–35, whichever is later. AS22759/16 (M22759/16), MIL–W–22759/32, the airplane, and the approval must (9) For AWL No. 28–AWL–37, ‘‘Fuel SAE AS22759/32 (M22759/32), MIL–W– specifically refer to this AD. Quantity Indicating System (FQIS)—Built in 22759/34, SAE AS22759/34 (M22759/34), (l) Related Information Test Equipment (BITE) Test:’’ For airplane L/ MIL–W–22759/41, SAE AS22759/41 Ns 6987 and 7000 and subsequent, within (M22759/41), MIL–W–22759/86, SAE (1) For more information about this AD, 750 flight hours since the date the most AS22759/86 (M22759/86), MIL–W–22759/87, contact Christopher Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle recent BITE test was accomplished as SAE AS22759/87 (M22759/87), MIL–W– ACO Branch, 2200 South 216th St., Des specified in AWL No. 28–AWL–37, or within 22759/92, and SAE AS22759/92 (M22759/ 750 flight hours after the effective date of this Moines, WA 98198; phone and fax: 206–231– 92); and MIL–C–27500 and NEMA WC 27500 3556; email: [email protected]. AD, whichever is later. cables constructed from these military or (10) For AWL No. 47–AWL–04, ‘‘Nitrogen (2) For service information identified in SAE specification wire types, as applicable. this AD, contact Boeing Commercial Generation System-Thermal Switch:’’ Within (2) Where AWL No. 28–AWL–05 identifies 22,500 flight hours after the date of issuance Airplanes, Attention: Contractual & Data TFE–2X Standard wall for wire sleeving, the Services (C&DS), 2600 Westminster Blvd., of the original airworthiness certificate or the following sleeving materials are acceptable: original export certificate of airworthiness, MC 110–SK57, Seal Beach, CA 90740–5600; Roundit 2000NX and Varglas Type HO, HP, telephone 562–797–1717; internet https:// within 22,500 flight hours after or HM. www.myboeingfleet.com. You may view this accomplishment of the actions specified in service information at the FAA, Boeing Service Bulletin 737–47–1003, or (i) No Alternative Actions, Intervals, or Airworthiness Products Section, Operational within 22,500 flight hours after the most Critical Design Configuration Control Safety Branch, 2200 South 216th St., Des recent inspection was performed as specified Limitations (CDCCLs) Moines, WA. For information on the in AWL No. 47–AWL–04, whichever is latest. Except as provided in paragraph (h) of this availability of this material at the FAA, call (11) For AWL No. 47–AWL–06, ’’Nitrogen AD, after the existing maintenance or 206–231–3195. Generation System (NGS)-Cross Vent Check inspection program has been revised as Valve:’’ Within 13,000 flight hours after the Issued on April 23, 2020. required by paragraph (g) of this AD, no date of issuance of the original airworthiness Lance T. Gant, certificate or the original export certificate of alternative actions (e.g., inspections), intervals, or CDCCLs may be used unless the Director, Compliance & Airworthiness airworthiness, within 13,000 flight hours Division, Aircraft Certification Service. actions, intervals, and CDCCLs are approved after accomplishment of the actions specified [FR Doc. 2020–09395 Filed 5–5–20; 8:45 am] in Boeing Service Bulletin 737–47–1003, or as an alternative method of compliance within 13,000 flight hours after the most (AMOC) in accordance with the procedures BILLING CODE 4910–13–P recent inspection was performed as specified specified in paragraph (k) of this AD. in AWL No. 47–AWL–06, whichever is latest. (j) Terminating Action for Certain AD DEPARTMENT OF TRANSPORTATION (12) For AWL No. 47–AWL–07, ‘‘Nitrogen Requirements Generation System (NGS)-Nitrogen Enriched Air (NEA) Distribution Ducting Integrity:’’ Accomplishment of the revision required Federal Aviation Administration Within 6,500 flight hours after the date of by paragraph (g) of this AD terminates the issuance of the original airworthiness requirements specified in paragraphs (j)(1) 14 CFR Part 39 certificate or the original export certificate of through (6) of this AD for that airplane. [Docket No. FAA–2020–0443; Project airworthiness, within 6,500 flight hours after (1) The revision required by paragraphs (h) Identifier AD–2020–00178–E] accomplishment of the actions specified in and (h)(1) of AD 2008–06–03. Boeing Service Bulletin 737–47–1003, or (2) All requirements of AD 2008–10–10 R1. RIN 2120–AA64 within 6,500 flight hours after the most (3) The revision required by paragraph (g) recent inspection was performed as specified of AD 2008–17–15. Airworthiness Directives; General in AWL No. 47–AWL–07, whichever is latest. (4) The revision required by paragraph (k) Electric Company Turbofan Engines (13) For AWL No. 47–AWL–09, ‘‘Nitrogen of AD 2011–18–03. Generation System—Oxygen Sensor:’’ Within (5) All requirements of AD 2013–15–17. AGENCY: Federal Aviation 18,000 flight hours after the date of issuance (6) All requirements of AD 2018–20–24. Administration (FAA), DOT.

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ACTION: Notice of proposed rulemaking listed above. Comments will be Aerospace Engineer, ECO Branch, FAA, (NPRM). available in the AD docket shortly after 1200 District Avenue, Burlington, MA receipt. 01803. Any commentary that the FAA SUMMARY: The FAA proposes to adopt a FOR FURTHER INFORMATION CONTACT: receives which is not specifically new airworthiness directive (AD) for all Mehdi Lamnyi, Aerospace Engineer, designated as CBI will be placed in the General Electric Company (GE) GEnx– ECO Branch, FAA, 1200 District public docket for this rulemaking. 1B64, 1B64/P1, –1B64/P2, –1B67, Avenue, Burlington, MA 01803; phone: –1B67/P1, –1B67P2, –1B70, –1B70/75/ Discussion (781) 238–7743; fax: (781) 238–7199; P1, –1B70/75/P2, –1B70/P1, –1B70/P2, email: [email protected]. –1B70C/P1, –1B70C/P2, –1B74/75/P1, The FAA received two reports of SUPPLEMENTARY INFORMATION: –1B74/75/P2, –1B76/P2, and –1B76A/ engine overheat messages on airplanes operating GE GEnx–1B model turbofan P2 model turbofan engines. This Comments Invited proposed AD was prompted by reports engines during revenue flights. One The FAA invites you to send any message led to a commanded in-flight of combustor case burn-through. This written relevant data, views, or proposed AD would require installation shutdown and both flights diverted and arguments about this proposal. Send made safe landings. Investigation of of electronic engine control (EEC) your comments to an address listed software, version B205 or later. The these incidents revealed combustor case under the ADDRESSES section. Include burn-through as the result of damage to FAA is proposing this AD to address the ‘‘Docket No. FAA–2020–0443; Project unsafe condition on these products. the fuel nozzle caused by high Identifier AD–2020–00178–E’’ at the amplitude load on the combustor DATES: The FAA must receive comments beginning of your comments. The FAA components during fuel mixing. The on this proposed AD by June 22, 2020. specifically invites comments on the breach in the fuel nozzle produced ADDRESSES: You may send comments, overall regulatory, economic, sideways jets and fanned spray directed using the procedures found in 14 CFR environmental, and energy aspects of towards the combustor case which led 11.43 and 11.45, by any of the following this NPRM. The FAA will consider all to burn-through of the cases. The methods: comments received by the closing date • software upgrade required by this AD Federal eRulemaking Portal: Go to and may amend this NPRM because of would introduce changes to the fuel https://www.regulations.gov. Follow the those comments. scheduling to reduce the high load instructions for submitting comments. Except for Confidential Business during the fuel mixing that led to • Fax: 202–493–2251. Information (CBI) as described in the damage to the fuel nozzle. This • Mail: U.S. Department of following paragraph, and other condition, if not addressed, could result Transportation, Docket Operations, M– information as described in 14 CFR in failure of the fuel nozzle, damage to 30, West Building Ground Floor, Room 11.35, the FAA will post all comments the combustor case, engine fire and W12–140, 1200 New Jersey Avenue SE, received, without change, to https:// damage to the airplane. Washington, DC 20590. www.regulations.gov, including any • Hand Delivery: Deliver to Mail personal information you provide. The Related Service Information address above between 9 a.m. and 5 FAA will also post a report p.m., Monday through Friday, except summarizing each substantive verbal The FAA reviewed GE GEnx–1B Federal holidays. contact received about this proposed Service Bulletin (SB) 73–0085 R00, For service information identified in AD. dated December 23, 2019. The SB this NPRM, contact General Electric describes procedures for installing the Company, 1 Neumann Way, Cincinnati, Confidential Business Information EEC software version B205. OH, 45215, United States; phone: (513) Confidential Business Information FAA’s Determination 552–3272; email: aviation.fleetsupport@ (CBI) is commercial or financial ae.ge.com; website: www.ge.com. You information that is both customarily and The FAA is proposing this AD may view this service information at the actually treated as private by its owner. because the Agency evaluated all the FAA, Airworthiness Products Section, Under the Freedom of Information Act relevant information and determined Operational Safety Branch, 1200 District (FOIA) (5 U.S.C. 552), CBI is exempt the unsafe condition described Avenue, Burlington, MA, 01803. For from public disclosure. If your previously is likely to exist or develop information on the availability of this comments responsive to this NPRM in other products of the same type material at the FAA, call 781–238–7759. contain commercial or financial design. information that is customarily treated Examining the AD Docket as private, that you actually treat as Proposed AD Requirements You may examine the AD docket on private, and that is relevant or This proposed AD would require the internet at https:// responsive to this NPRM, it is important installation of EEC software, version www.regulations.gov by searching for that you clearly designate the submitted B205 or later. and locating Docket No. FAA–2020– comments as CBI. Please mark each 0443; or in person at Docket Operations page of your submission containing CBI Costs of Compliance between 9 a.m. and 5 p.m., Monday as ‘‘PROPIN.’’ The FAA will treat such through Friday, except Federal holidays. marked submissions as confidential The FAA estimates that this proposed The AD docket contains this NPRM, the under the FOIA, and they will not be AD affects 176 engines installed on regulatory evaluation, any comments placed in the public docket of this airplanes of U.S. registry. received, and other information. The NPRM. Submissions containing CBI The FAA estimates the following street address for Docket Operations is should be sent to Mehdi Lamnyi, costs to comply with this proposed AD:

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ESTIMATED COSTS

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

Install EEC software version B205 or later .... 1 work-hour × $85 per hour = $85 ...... $0 $85 $14,960

Authority for This Rulemaking PART 39—AIRWORTHINESS or local Flight Standards District Office, as DIRECTIVES appropriate. If sending information directly Title 49 of the United States Code to the manager of the certification office, specifies the FAA’s authority to issue ■ 1. The authority citation for part 39 send it to the attention of the person rules on aviation safety. Subtitle I, continues to read as follows: identified in paragraph (j)(1) of this AD. You section 106, describes the authority of may email your request to: ANE–AD–AMOC@ Authority: 49 U.S.C. 106(g), 40113, 44701. the FAA Administrator. Subtitle VII: faa.gov. (2) Before using any approved AMOC, Aviation Programs, describes in more § 39.13 [Amended] notify your appropriate principal inspector, detail the scope of the Agency’s ■ 2. The FAA amends § 39.13 by adding or lacking a principal inspector, the manager authority. the following new airworthiness of the local flight standards district office/ The FAA is issuing this rulemaking directive (AD): certificate holding district office. under the authority described in General Electric Company: Docket No. FAA– (j) Related Information Subtitle VII, Part A, Subpart III, Section 2020–0443; Project Identifier AD–2020– (1) For more information about this AD, 44701: ‘‘General requirements.’’ Under 00178–E. contact Mehdi Lamnyi, Aerospace Engineer, that section, Congress charges the FAA (a) Comments Due Date ECO Branch, FAA, 1200 District Avenue, with promoting safe flight of civil Burlington, MA, 01803; phone: (781) 238– aircraft in air commerce by prescribing The FAA must receive comments by June 7743; fax: (781) 238–7199; email: 22, 2020. regulations for practices, methods, and [email protected]. procedures the Administrator finds (b) Affected ADs (2) For service information identified in this AD, contact General Electric Company, necessary for safety in air commerce. None. 1 Neumann Way, Cincinnati, OH 45215, This regulation is within the scope of (c) Applicability United States; phone: (513) 552–3272; email: that authority because it addresses an [email protected]; website: unsafe condition that is likely to exist or This AD applies to General Electric Company (GE) GEnx–1B64, 1B64/P1, –1B64/ www.ge.com. You may view this referenced develop on products identified in this P2, –1B67, –1B67/P1, –1B67P2, –1B70, service information at the FAA, rulemaking action. –1B70/75/P1, –1B70/75/P2, –1B70/P1, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Regulatory Findings –1B70/P2, –1B70C/P1, –1B70C/P2, –1B74/ 75/P1, –1B74/75/P2, –1B76/P2, and –1B76A/ Burlington, MA 01803. For information on P2 model turbofan engines. the availability of this material at the FAA, The FAA determined that this call 781–238–7759. proposed AD would not have federalism (d) Subject implications under Executive Order Issued on April 29, 2020. Joint Aircraft System Component (JASC) Gaetano A. Sciortino, 13132. This proposed AD would not Code 7240, Turbine Engine Combustion have a substantial direct effect on the Section. Deputy Director for Strategic Initiatives, States, on the relationship between the Compliance & Airworthiness Division, national government and the States, or (e) Unsafe Condition Aircraft Certification Service. on the distribution of power and This AD was prompted by two reports of [FR Doc. 2020–09437 Filed 5–5–20; 8:45 am] responsibilities among the various combustor case burn-through. The FAA is BILLING CODE 4910–13–P issuing this AD to prevent failure of the fuel levels of government. nozzle. The unsafe condition, if not For the reasons discussed above, I addressed, could result in damage to the DEPARTMENT OF TRANSPORTATION certify this proposed regulation: combustor case, engine fire, and damage to (1) Is not a ‘‘significant regulatory the airplane. Federal Aviation Administration action’’ under Executive Order 12866, (f) Compliance (2) Will not affect intrastate aviation Comply with this AD within the 14 CFR Part 39 in Alaska, and compliance times specified, unless already [Docket No. FAA–2020–0331; Product done. (3) Will not have a significant Identifier 2020–NM–019–AD] economic impact, positive or negative, (g) Required Actions RIN 2120–AA64 on a substantial number of small entities Within 120 days after the effective date of under the criteria of the Regulatory this AD, install electronic engine control Airworthiness Directives; The Boeing Flexibility Act. (EEC) software that is eligible for installation. Company Airplanes List of Subjects in 14 CFR Part 39 (h) Definition AGENCY: Federal Aviation For the purpose of this AD, EEC software Administration (FAA), DOT. Air transportation, Aircraft, Aviation that is eligible for installation is EEC software ACTION: Notice of proposed rulemaking safety, Incorporation by reference, that is version B205 or later. (NPRM). Safety. (i) Alternative Methods of Compliance The Proposed Amendment (AMOCs) SUMMARY: The FAA proposes to adopt a (1) The Manager, ECO Branch, FAA, has new airworthiness directive (AD) for Accordingly, under the authority the authority to approve AMOCs for this AD, certain The Boeing Company Model delegated to me by the Administrator, if requested using the procedures found in 14 737–600, –700, –700C, –800, –900, and the FAA proposes to amend 14 CFR part CFR 39.19. In accordance with 14 CFR 39.19, –900ER series airplanes. This proposed 39 as follows: send your request to your principal inspector AD was prompted by a report that the

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necessary sealant was not applied to the 231–3622; email: james.laubaugh@ that the production drawing lacked side of body (SOB) slot as a result of a faa.gov. clarity regarding the SOB slot sealant production drawing that provided SUPPLEMENTARY INFORMATION: application. The drawing was revised unclear SOB slot sealant application beginning at line number (L/N) 937, but instructions. This proposed AD would Comments Invited production planning did not reflect the require a general visual inspection for The FAA invites you to send any drawing change until L/N 1935. The insufficient sealant in the SOB slot, and written relevant data, views, or ADMB is not a flammable fluid leakage related investigative and corrective arguments about this proposal. Send zone and therefore does not have actions. The FAA is proposing this AD your comments to an address listed ignition prevention and fire detection to address the unsafe condition on these under the ADDRESSES section. Include features, and is also immediately products. ‘‘Docket No. FAA–2020–0331; Product adjacent to the passenger compartment. DATES: The FAA must receive comments Identifier 2020–NM–019–AD’’ at the Fuel leaking into the ADMB, if not on this proposed AD by June 22, 2020. beginning of your comments. The FAA addressed, could possibly lead to an ADDRESSES: You may send comments, specifically invites comments on the ignition of flammable fluid vapors, fire, using the procedures found in 14 CFR overall regulatory, economic, or explosion, or fuel vapor inhalation by 11.43 and 11.45, by any of the following environmental, and energy aspects of passengers and crew. methods: this NPRM. The FAA will consider all Related Service Information Under 1 • Federal eRulemaking Portal: Go to comments received by the closing date CFR Part 51 https://www.regulations.gov. Follow the and may amend this NPRM because of instructions for submitting comments. those comments. The FAA reviewed Boeing Multiple • Fax: 202–493–2251. The FAA will post all comments, Operator Message MOM–MOM–20– • Mail: U.S. Department of without change, to https:// 0049–01B (R1), dated January 29, 2020. Transportation, Docket Operations, M– www.regulations.gov, including any This service information describes 30, West Building Ground Floor, Room personal information you provide. The procedures for a general visual W12–140, 1200 New Jersey Avenue SE, FAA will also post a report inspection for insufficient sealant in the Washington, DC 20590. summarizing each substantive verbal SOB slot. The service information also • Hand Delivery: Deliver to Mail contact received about this NPRM. describes procedures for related address above between 9 a.m. and 5 Discussion investigative actions including a general p.m., Monday through Friday, except visual inspection of the ADMB for fuel Federal holidays. The FAA has received a report contamination, a check for external For service information identified in indicating that the necessary sealant leaks of the center fuel tank external this NPRM, contact Boeing Commercial was not applied to the SOB slot as a surfaces inside the pressure boundary, Airplanes, Attention: Contractual & Data result of a production drawing and an internal leak check of the center Services (C&DS), 2600 Westminster providing unclear SOB slot sealant fuel tank to identify the leakage path(s). Blvd., MC 110–SK57, Seal Beach, CA application instructions on certain The The service information also describes 90740–5600; telephone 562–797–1717; Boeing Company Model 737–600, –700, procedures for corrective actions internet https:// –700C, –800, –900, and –900ER series including removal of all insulation www.myboeingfleet.com. You may view airplanes. In 2019, an operator of a blankets below the crease beam left side this service information at the FAA, Model 737–800 airplane reported a fuel to right side, clean-up of all fuel Airworthiness Products Section, smell in the cabin, and the airplane was contamination, repair of any leak, Operational Safety Branch, 2200 South diverted. During post-flight inspection, preparation of the SOB slot for sealing, 216th St., Des Moines, WA. For insulation blankets in the air application of sealant, and repair of the information on the availability of this distribution mix bay (ADMB) were secondary fuel barrier. This service material at the FAA, call 206–231–3195. found to be soaked with fuel. The information is reasonably available It is also available on the internet at ADMB is located in the fuselage lower because the interested parties have https://www.regulations.gov by lobe immediately forward of the body access to it through their normal course searching for and locating Docket No. station (BS) 540 front spar bulkhead. An of business or by the means identified FAA–2020–0331. investigation of this incident led to the in the ADDRESSES section. finding that there was no sealant Examining the AD Docket applied in the SOB slot. For any part of FAA’s Determination You may examine the AD docket on a fuel tank that is inside the pressurized the internet at https:// boundary, a secondary fuel barrier is The FAA is proposing this AD www.regulations.gov by searching for required. On The Boeing Company because the FAA evaluated all the and locating Docket No. FAA–2020– Model 737–600, –700, –700C, –800, relevant information and determined 0331; or in person at Docket Operations –900, and –900ER series airplanes, the the unsafe condition described between 9 a.m. and 5 p.m., Monday areas requiring secondary barrier are the previously is likely to exist or develop through Friday, except Federal holidays. wing center section upper surface and in other products of the same type The AD docket contains this NPRM, any the part of the wing center section front design. comments received, and other spar that is inside the pressure Proposed AD Requirements information. The street address for boundary. The secondary barrier is Docket Operations is listed above. achieved by application of BMS 5–81 This proposed AD would require Comments will be available in the AD secondary fuel barrier sealant accomplishing the actions specified in docket shortly after receipt. (commonly referred to as ‘‘vapor the service information described FOR FURTHER INFORMATION CONTACT: barrier’’). On the reporting airplane, previously. For information on the James Laubaugh, Aerospace Engineer, sealant inside the center fuel tank was procedures, see this service information Propulsion Section, FAA, Seattle ACO repaired to correct the primary leak in at https://www.regulations.gov by Branch, 2200 South 216th St., Des the tank, and the SOB slot sealant was searching for and locating Docket No. Moines, WA 98198; phone and fax: 206– restored. The investigation concluded FAA–2020–0331.

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Costs of Compliance The FAA estimates the following costs The FAA estimates that this proposed to comply with this proposed AD: AD affects 731 airplanes of U.S. registry.

ESTIMATED COSTS

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

Inspection for sealant ...... 30 work-hours × $85 per hour = $2,550 ...... $0 $2,550 $1,864,050

The FAA estimates the following would be required based on the results has no way of determining the number costs to do any necessary repairs that of the proposed inspection. The FAA of aircraft that might need these repairs:

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Repair of sealant ...... 2 work-hours × $85 per hour = $170 ...... $129 $299 Insulation blanket replacement ...... 24 work-hours × $85 per hour = $2,040 ...... 6,312 8,352 Leak checks ...... 6 work-hours × $85 per hour = $510 ...... 0 510

Authority for This Rulemaking on a substantial number of small entities (e) Unsafe Condition Title 49 of the United States Code under the criteria of the Regulatory This AD was prompted by a report that specifies the FAA’s authority to issue Flexibility Act. sealant was not applied to the side of body (SOB) slot inside of a pressurized boundary, rules on aviation safety. Subtitle I, List of Subjects in 14 CFR Part 39 which could lead to inconsistent application section 106, describes the authority of Air transportation, Aircraft, Aviation of the required secondary fuel barrier sealant the FAA Administrator. Subtitle VII: safety, Incorporation by reference, (vapor barrier). The FAA is issuing this AD Aviation Programs, describes in more Safety. to address possible ignition of flammable detail the scope of the Agency’s fluid vapors, fire, or explosion, or fuel vapor authority. The Proposed Amendment inhalation by passengers and crew. The FAA is issuing this rulemaking Accordingly, under the authority (f) Compliance under the authority described in delegated to me by the Administrator, Subtitle VII, Part A, Subpart III, Section Comply with this AD within the the FAA proposes to amend 14 CFR part compliance times specified, unless already 44701: ‘‘General requirements.’’ Under 39 as follows: done. that section, Congress charges the FAA with promoting safe flight of civil PART 39—AIRWORTHINESS (g) Inspection Definition aircraft in air commerce by prescribing DIRECTIVES For the purposes of this AD, a general regulations for practices, methods, and visual inspection is defined as: ‘‘A visual procedures the Administrator finds ■ 1. The authority citation for part 39 examination of an interior or exterior area, necessary for safety in air commerce. continues to read as follows: installation, or assembly to detect obvious This regulation is within the scope of damage, failure, or irregularity. This level of Authority: 49 U.S.C. 106(g), 40113, 44701. inspection is made from within touching that authority because it addresses an § 39.13 [Amended] distance unless otherwise specified. A mirror unsafe condition that is likely to exist or may be necessary to enhance visual access to ■ develop on products identified in this 2. The FAA amends § 39.13 by adding all exposed surfaces in the inspection area. rulemaking action. the following new airworthiness This level of inspection is made under directive (AD): normally available lighting conditions such Regulatory Findings The Boeing Company: Docket No. FAA– as daylight, hangar lighting, flashlight, or The FAA determined that this 2020–0331; Product Identifier 2020– droplight and may require removal or proposed AD would not have federalism NM–019–AD. opening of access panels or doors. Stands, implications under Executive Order ladders, or platforms may be required to gain (a) Comments Due Date 13132. This proposed AD would not proximity to the area being checked.’’ have a substantial direct effect on the The FAA must receive comments by June (h) SOB Slot Inspection and Related 22, 2020. States, on the relationship between the Investigative and Corrective Actions national Government and the States, or (b) Affected ADs Within 9 months after the effective date of on the distribution of power and None. this AD: Do a general visual inspection for responsibilities among the various insufficient sealant in the SOB slot, and do (c) Applicability levels of government. all applicable related investigative and For the reasons discussed above, I This AD applies to The Boeing Company corrective actions, in accordance with Boeing certify this proposed regulation: Model 737–600, –700, –700C, –800, –900, Multiple Operator Message MOM–MOM–20– (1) Is not a ‘‘significant regulatory and –900ER series airplanes, certificated in 0049–01B (R1), dated January 29, 2020. Do any category, line numbers 1 through 1934 all related investigative and corrective action’’ under Executive Order 12866, inclusive. actions before further flight. (2) Will not affect intrastate aviation in Alaska, and (d) Subject (i) Deferred Repair (3) Will not have a significant Air Transport Association (ATA) of Repair of insufficient sealant as required by economic impact, positive or negative, America Code 28, Fuel. paragraph (h) may be deferred for 10 days

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provided there is no fuel present in the DEPARTMENT OF TRANSPORTATION You may view this IBR material at the center tank as specified in the procedures in FAA, Airworthiness Products Section, item 28–02A of the operator’s existing Federal Aviation Administration Operational Safety Branch, 2200 South minimum equipment list, and there is no fuel 216th St., Des Moines, WA. For contamination in the ADMB. 14 CFR Part 39 information on the availability of this (j) Reporting Provisions [Docket No. FAA–2020–0348; Product material at the FAA, call 206–231–3195. Although the service information Identifier 2020–NM–054–AD] It is also available in the AD docket on the internet at https:// referenced in Boeing Multiple Operator RIN 2120–AA64 Message MOM–MOM–20–0049–01B (R1), www.regulations.gov by searching for and locating Docket No. FAA–2020– dated January 29, 2020, specifies to report Airworthiness Directives; Airbus SAS 0348. inspection findings, this AD does not require Airplanes any report. Examining the AD Docket AGENCY: Federal Aviation (k) Alternative Methods of Compliance Administration (FAA), DOT. You may examine the AD docket on (AMOCs) the internet at https:// ACTION: Notice of proposed rulemaking (1) The Manager, Seattle ACO Branch, www.regulations.gov by searching for (NPRM). FAA, has the authority to approve AMOCs and locating Docket No. FAA–2020– for this AD, if requested using the procedures SUMMARY: The FAA proposes to adopt a 0348; or in person at Docket Operations found in 14 CFR 39.19. In accordance with new airworthiness directive (AD) for between 9 a.m. and 5 p.m., Monday 14 CFR 39.19, send your request to your certain Airbus SAS Model A330–202, through Friday, except Federal holidays. principal inspector or local Flight Standards –203, –223, –223F, –243, –243F, –302, The AD docket contains this NPRM, any District Office, as appropriate. If sending comments received, and other information directly to the manager of the –303, –323, –343, and –941 airplanes; and Model A340–313, –541, and –642 information. The street address for certification office, send it to the attention of Docket Operations is listed above. the person identified in paragraph (l)(1) of airplanes. This proposed AD was Comments will be available in the AD this AD. Information may be emailed to: 9- prompted by the results of laboratory [email protected]. tests on non-rechargeable lithium docket shortly after receipt. (2) Before using any approved AMOC, batteries installed in emergency locator FOR FURTHER INFORMATION CONTACT: notify your appropriate principal inspector, transmitters (ELT), which highlighted a Vladimir Ulyanov, Aerospace Engineer, or lacking a principal inspector, the manager lack of protection against currents of 28 Large Aircraft Section, International of the local flight standards district office/ volts DC or 115 volts AC that could lead Validation Branch, FAA, 2200 South certificate holding district office. to thermal runaway and a battery fire. 216th St., Des Moines, WA 98198; (3) An AMOC that provides an acceptable This proposed AD would require telephone and fax 206–231–3229; email level of safety may be used for any repair, modifying a certain ELT by installing a [email protected]. modification, or alteration required by this diode between the ELT and the terminal SUPPLEMENTARY INFORMATION: AD if it is approved by The Boeing Company block, as specified in a European Union Organization Designation Authorization Comments Invited (ODA) that has been authorized by the Aviation Safety Agency (EASA) AD, which will be incorporated by reference. The FAA invites you to send any Manager, Seattle ACO Branch, FAA, to make written relevant data, views, or those findings. To be approved, the repair The FAA is proposing this AD to address the unsafe condition on these arguments about this proposal. Send method, modification deviation, or alteration your comments to an address listed deviation must meet the certification basis of products. under the ADDRESSES section. Include the airplane, and the approval must DATES: The FAA must receive comments ‘‘Docket No. FAA–2020–0348; Product specifically refer to this AD. on this proposed AD by June 22, 2020. Identifier 2020–NM–054–AD’’ at the (l) Related Information ADDRESSES: You may send comments, beginning of your comments. The FAA (1) For more information about this AD, using the procedures found in 14 CFR specifically invites comments on the contact James Laubaugh, Aerospace Engineer, 11.43 and 11.45, by any of the following overall regulatory, economic, Propulsion Section, FAA, Seattle ACO methods: environmental, and energy aspects of Branch, 2200 South 216th St., Des Moines, • Federal eRulemaking Portal: Go to this NPRM. The FAA will consider all WA 98198; phone and fax: 206–231–3622; https://www.regulations.gov. Follow the comments received by the closing date email: [email protected]. instructions for submitting comments. and may amend this NPRM based on (2) For service information identified in • Fax: 202–493–2251. those comments. this AD, contact Boeing Commercial • Mail: U.S. Department of The FAA will post all comments Airplanes, Attention: Contractual & Data Transportation, Docket Operations, M– received, without change, to https:// Services (C&DS), 2600 Westminster Blvd., 30, West Building Ground Floor, Room www.regulations.gov, including any MC 110–SK57, Seal Beach, CA 90740–5600; W12–140, 1200 New Jersey Avenue SE, personal information you provide. The telephone 562–797–1717; internet https:// Washington, DC 20590. FAA will also post a report www.myboeingfleet.com. You may view this • Hand Delivery: Deliver to Mail summarizing each substantive verbal referenced service information at the FAA, address above between 9 a.m. and 5 Airworthiness Products Section, Operational contact received about this NPRM. p.m., Monday through Friday, except Safety Branch, 2200 South 216th St., Des Discussion Moines, WA. For information on the Federal holidays. availability of this material at the FAA, call For the material identified in this The EASA, which is the Technical 206–231–3195. proposed AD that will be incorporated Agent for the Member States of the by reference (IBR), contact the EASA, European Union, has issued EASA AD Issued on April 23, 2020. Konrad-Adenauer-Ufer 3, 50668 2020–0083, dated April 3, 2020 (‘‘EASA Lance T. Gant, Cologne, Germany; telephone +49 221 AD 2020–0083’’) (also referred to as the Director, Compliance & Airworthiness 89990 1000; email [email protected]; Mandatory Continuing Airworthiness Division, Aircraft Certification Service. internet www.easa.europa.eu. You may Information, or ‘‘the MCAI’’), to correct [FR Doc. 2020–09396 Filed 5–5–20; 8:45 am] find this IBR material on the EASA an unsafe condition for certain Airbus BILLING CODE 4910–13–P website at https://ad.easa.europa.eu. SAS Model A330–202, –203, –223,

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–223F, –243, –243F, –302, –303, –323, country, and is approved for operation use this process. As a result, EASA AD –343, and –941 airplanes; and Model in the United States. Pursuant to the 2020–0083 will be incorporated by A340–313, –541, and –642 airplanes. FAA’s bilateral agreement with the State reference in the FAA final rule. This This proposed AD was prompted by of Design Authority, the FAA has been proposed AD would, therefore, require the results of laboratory tests on non- notified of the unsafe condition compliance with EASA AD 2020–0083 rechargeable lithium batteries installed described in the MCAI referenced in its entirety, through that in ELTs, which highlighted a lack of above. The FAA is proposing this AD incorporation, except for any differences protection against currents of 28 volts after evaluating all the relevant identified as exceptions in the DC or 115 volts AC that could lead to information and determining the unsafe regulatory text of this proposed AD. thermal runaway and a battery fire. The condition described previously is likely Using common terms that are the same FAA is proposing this AD to address to exist or develop in other products of as the heading of a particular section in local (temporary) fires in non- the same type design. the EASA AD does not mean that rechargeable lithium batteries installed operators need comply only with that Proposed AD Requirements in ELTs, which could result in damage section. For example, where the AD to the airplane and injury to occupants. This proposed AD would require requirement refers to ‘‘all required See the MCAI for additional background accomplishing the actions specified in actions and compliance times,’’ information. EASA AD 2020–0083 described compliance with this AD requirement is previously, as incorporated by not limited to the section titled Related IBR Material Under 1 CFR Part reference, except for any differences ‘‘Required Action(s) and Compliance 51 identified as exceptions in the Time(s)’’ in the EASA AD. Service EASA AD 2020–0083 describes regulatory text of this AD. information specified in EASA AD procedures for modifying a certain ELT 2020–0083 that is required for Explanation of Required Compliance by installing a diode between the ELT compliance with EASA AD 2020–0083 Information and the terminal block. will be available on the internet at This material is reasonably available In the FAA’s ongoing efforts to https://www.regulations.gov by because the interested parties have improve the efficiency of the AD searching for and locating Docket No. access to it through their normal course process, the FAA initially worked with FAA–2020–0348 after the FAA final of business or by the means identified Airbus and EASA to develop a process rule is published. in the ADDRESSES section. to use certain EASA ADs as the primary source of information for compliance Costs of Compliance FAA’s Determination and Requirements with requirements for corresponding The FAA estimates that this proposed of This Proposed AD FAA ADs. The FAA has since AD affects 12 airplanes of U.S. registry. This product has been approved by coordinated with other manufacturers The FAA estimates the following costs the aviation authority of another and civil aviation authorities (CAAs) to to comply with this proposed AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

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

3 work-hours × $85 per hour = $255 ...... $460 $715 $8,580

According to the manufacturer, some regulations for practices, methods, and (3) Will not have a significant or all of the costs of this proposed AD procedures the Administrator finds economic impact, positive or negative, may be covered under warranty, thereby necessary for safety in air commerce. on a substantial number of small entities reducing the cost impact on affected This regulation is within the scope of under the criteria of the Regulatory individuals. The FAA does not control that authority because it addresses an Flexibility Act. warranty coverage for affected unsafe condition that is likely to exist or individuals. As a result, the FAA has develop on products identified in this List of Subjects in 14 CFR Part 39 included all known costs in our cost rulemaking action. Air transportation, Aircraft, Aviation estimate. Regulatory Findings safety, Incorporation by reference, Authority for This Rulemaking The FAA determined that this Safety. Title 49 of the United States Code proposed AD would not have federalism The Proposed Amendment specifies the FAA’s authority to issue implications under Executive Order rules on aviation safety. Subtitle I, 13132. This proposed AD would not Accordingly, under the authority section 106, describes the authority of have a substantial direct effect on the delegated to me by the Administrator, the FAA Administrator. Subtitle VII: States, on the relationship between the the FAA proposes to amend 14 CFR part Aviation Programs, describes in more national Government and the States, or 39 as follows: detail the scope of the Agency’s on the distribution of power and authority. responsibilities among the various PART 39—AIRWORTHINESS The FAA is issuing this rulemaking levels of government. DIRECTIVES under the authority described in For the reasons discussed above, I Subtitle VII, Part A, Subpart III, Section certify this proposed regulation: ■ 1. The authority citation for part 39 44701: ‘‘General requirements.’’ Under (1) Is not a ‘‘significant regulatory continues to read as follows: that section, Congress charges the FAA action’’ under Executive Order 12866, with promoting safe flight of civil (2) Will not affect intrastate aviation Authority: 49 U.S.C. 106(g), 40113, 44701. aircraft in air commerce by prescribing in Alaska, and

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§ 39.13 [Amended] found in 14 CFR 39.19. In accordance with DEPARTMENT OF TRANSPORTATION ■ 2. The FAA amends § 39.13 by adding 14 CFR 39.19, send your request to your the following new airworthiness principal inspector or local Flight Standards Federal Aviation Administration directive (AD): District Office, as appropriate. If sending information directly to the International 14 CFR Part 71 Airbus SAS: Docket No. FAA–2020–0348; Validation Branch, send it to the attention of Product Identifier 2020–NM–054–AD. the person identified in paragraph (j)(2) of [Docket No. FAA–2020–0319; Airspace (a) Comments Due Date this AD. Information may be emailed to: 9- Docket No. 20–ACE–5] [email protected]. The FAA must receive comments by June Before using any approved AMOC, notify RIN 2120–AA66 22, 2020. your appropriate principal inspector, or (b) Affected ADs lacking a principal inspector, the manager of Proposed Amendment of Class D and the local flight standards district office/ None. E Airspace; St. Louis, MO certificate holding district office. (c) Applicability (2) Contacting the Manufacturer: For any AGENCY: Federal Aviation This AD applies to the Airbus SAS requirement in this AD to obtain instructions Administration (FAA), DOT. airplanes specified in paragraphs (c)(1) from a manufacturer, the instructions must be accomplished using a method approved ACTION: Notice of proposed rulemaking through (7) of this AD, certificated in any (NPRM). category, as identified in European Union by the Manager, Large Aircraft Section, Aviation Safety Agency (EASA) AD 2020– International Validation Branch, FAA; or SUMMARY: This action proposes to 0083, dated April 3, 2020 (‘‘EASA AD 2020– EASA; or Airbus SAS’s EASA Design 0083’’). Organization Approval (DOA). If approved by amend the Class D airspace and the (1) Model A330–202, –203, –223, and –243 the DOA, the approval must include the Class E surface airspace at Spirit of St. airplanes. DOA-authorized signature. Louis Airport, St. Louis, MO, and the (2) Model A330–223F and –243F airplanes. (3) Required for Compliance (RC): For any Class E airspace extending upward from (3) Model A330–302, –303, –323, and –343 service information referenced in EASA AD 700 feet above the surface at St. Louis airplanes. 2020–0083 that contains RC procedures and Lambert International Airport, St. Louis, (4) Model A330–941 airplanes. tests: Except as required by paragraph (i)(2) MO, Spirit of St. Louis Airport, and St. (5) Model A340–313 airplanes. of this AD, RC procedures and tests must be Charles County Smartt Airport, St. done to comply with this AD; any procedures (6) Model A340–541 airplanes. Charles, MO, which is contained within (7) Model A340–642 airplanes. or tests that are not identified as RC are recommended. Those procedures and tests the St. Louis, MO, airspace legal (d) Subject that are not identified as RC may be deviated description, and removing St. Louis Air Transport Association (ATA) of from using accepted methods in accordance Regional Airport, Alton/St. Louis, IL, America Code 25, Equipment/Furnishings. with the operator’s maintenance or which is contained within the St. Louis, inspection program without obtaining (e) Reason MO, airspace legal description. The approval of an AMOC, provided the FAA is proposing these actions as the This AD was prompted by the results of procedures and tests identified as RC can be result of airspace reviews caused by the laboratory tests on non-rechargeable lithium done and the airplane can be put back in an batteries installed in emergency locator decommissioning of the Cardinal VHF airworthy condition. Any substitutions or omnidirectional range (VOR) navigation transmitters (ELT), which highlighted a lack changes to procedures or tests identified as of protection against currents of 28 volts DC RC require approval of an AMOC. aid, which provided navigation or 115 volts AC that could lead to thermal information for the instrument runaway and a battery fire. The FAA is (j) Related Information procedures at these airports, as part of issuing this AD to address local (temporary) (1) For information about EASA AD 2020– the VOR Minimum Operational fires in non-rechargeable lithium batteries 0083, contact the EASA, Konrad-Adenauer- Network (MON) Program; and the installed in ELTs, which could result in Ufer 3, 50668 Cologne, Germany; telephone decommissioning of the outer markers damage to the airplane and injury to +49 221 89990 6017; email ADs@ for runways 12R, 24, and 30L at St. occupants. easa.europa.eu; internet Louis Lambert International Airport. (f) Compliance www.easa.europa.eu. You may find this The names of St. Louis Lambert EASA AD on the EASA website at https:// Comply with this AD within the ad.easa.europa.eu. You may view this International Airport and the Spirit of compliance times specified, unless already material at the FAA, Airworthiness Products St. Louis: RWY 25L–LOC would also be done. Section, Operational Safety Branch, 2200 updated to coincide with the FAA’s (g) Requirements South 216th St., Des Moines, WA. For aeronautical database. information on the availability of this Except as specified in paragraph (h) of this DATES: Comments must be received on material at the FAA, call 206–231–3195. This or before June 22, 2020. AD: Comply with all required actions and material may be found in the AD docket on compliance times specified in, and in the internet at https://www.regulations.gov ADDRESSES: Send comments on this accordance with, EASA AD 2020–0083. by searching for and locating Docket No. proposal to the U.S. Department of (h) Exceptions to EASA AD 2020–0083 FAA–2020–0348. Transportation, Docket Operations, (2) For more information about this AD, (1) Where EASA AD 2020–0083 refers to its West Building Ground Floor, Room contact Vladimir Ulyanov, Aerospace effective date, this AD requires using the W12–140, 1200 New Jersey Avenue SE, Engineer, Large Aircraft Section, effective date of this AD. Washington, DC 20590; telephone (202) International Validation Branch, FAA, 2200 (2) The ‘‘Remarks’’ section of EASA AD 366–9826, or (800) 647–5527. You must South 216th St., Des Moines, WA 98198; 2020–0083 does not apply to this AD. identify FAA Docket No. FAA–2020– telephone and fax 206–231–3229; email (i) Other FAA AD Provisions [email protected]. 0319/Airspace Docket No. 20–ACE–5 at the beginning of your comments. You The following provisions also apply to this Issued on April 28, 2020. may also submit comments through the AD: Lance T. Gant, (1) Alternative Methods of Compliance internet at https://www.regulations.gov. Director, Compliance & Airworthiness (AMOCs): The Manager, Large Aircraft You may review the public docket Division, Aircraft Certification Service. Section, International Validation Branch, containing the proposal, any comments FAA, has the authority to approve AMOCs [FR Doc. 2020–09376 Filed 5–5–20; 8:45 am] received, and any final disposition in for this AD, if requested using the procedures BILLING CODE 4910–13–P person in the Dockets Office between

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9:00 a.m. and 5:00 p.m., Monday Comments that provide the factual basis Class A, B, C, D, and E airspace areas, through Friday, except federal holidays. supporting the views and suggestions air traffic service routes, and reporting FAA Order 7400.11D, Airspace presented are particularly helpful in points. Designations and Reporting Points, and developing reasoned regulatory The Proposal subsequent amendments can be viewed decisions on the proposal. Comments online at https://www.faa.gov/air_ are specifically invited on the overall The FAA is proposing an amendment traffic/publications/. For further regulatory, aeronautical, economic, to Title 14 Code of Federal Regulations information, you can contact the environmental, and energy-related (14 CFR) part 71 by: Airspace Policy Group, Federal Aviation aspects of the proposal. Amending the Class D airspace at Administration, 800 Independence Communications should identify both Spirit of St. Louis Airport, St. Louis, docket numbers and be submitted in MO, by updating the bearing of the east Avenue SW, Washington, DC 20591; ° ° telephone: (202) 267–8783. The Order is triplicate to the address listed above. extension to 078 (previously 079 ); and Commenters wishing the FAA to updating the bearing of the west also available for inspection at the ° ° National Archives and Records acknowledge receipt of their comments extension to 258 (previously 259 ); Administration (NARA). For on this notice must submit with those Amending the Class E surface area at Spirit of St. Louis Airport by updating information on the availability of FAA comments a self-addressed, stamped the bearing of the east extension to 078° Order 7400.11D at NARA, email postcard on which the following (previously 079°); and updating the [email protected] or go to https:// statement is made: ‘‘Comments to bearing of the west extension to 258° www.archives.gov/federal-register/cfr/ Docket No. FAA–2020–0319/Airspace (previously 259°); ibr-locations.html. Docket No. 20–ACE–5.’’ The postcard will be date/time stamped and returned Amending the Class E airspace FOR FURTHER INFORMATION CONTACT: extending upward from 700 feet above Jeffrey Claypool, Federal Aviation to the commenter. All communications received before the surface at St. Louis Lambert Administration, Operations Support the specified closing date for comments International Airport, St. Louis, MO, to Group, Central Service Center, 10101 will be considered before taking action within an 8.5-mile (increased from 7.1- Hillwood Parkway, Fort Worth, TX on the proposed rule. The proposal mile) radius of the airport; removing the 76177; telephone (817) 222–5711. contained in this notice may be changed St. Louis Lambert International Runway SUPPLEMENTARY INFORMATION: in light of the comments received. A 24 Localizer and the associated extension from the airspace legal Authority for This Rulemaking report summarizing each substantive public contact with FAA personnel description, as it is no longer needed; The FAA’s authority to issue rules concerned with this rulemaking will be removing the St. Louis Lambert regarding aviation safety is found in filed in the docket. International Runway 12R Localizer and Title 49 of the United States Code. the associated extension from the Subtitle I, Section 106 describes the Availability of NPRMs airspace legal description, as it is no authority of the FAA Administrator. An electronic copy of this document longer needed; removing the St. Louis Subtitle VII, Aviation Programs, may be downloaded through the Lambert International Runway 30L describes in more detail the scope of the internet at http://www.regulations.gov. Localizer and the associated extension agency’s authority. This rulemaking is Recently published rulemaking from the airspace legal description, as it promulgated under the authority documents can also be accessed through is no longer needed; removing the described in Subtitle VII, Part A, the FAA’s web page at https:// ZUMAY LOM and the associated Subpart I, Section 40103. Under that www.faa.gov/air_traffic/publications/ extension from the airspace legal section, the FAA is charged with airspace_amendments/. description, as it is no longer needed; prescribing regulations to assign the use You may review the public docket removing the OBLIO LOM and the of airspace necessary to ensure the containing the proposal, any comments associated extension from the airspace safety of aircraft and the efficient use of received, and any final disposition in legal description, as it is no longer airspace. This regulation is within the person in the Dockets Office (see the needed; updating the name of the St. scope of that authority as it would ADDRESSES section for the address and Louis Lambert International Airport amend the Class D airspace and the phone number) between 9:00 a.m. and (previously Lambert-St. Louis Class E surface airspace at Spirit of St. 5:00 p.m., Monday through Friday, International Airport) to coincide with Louis Airport, St. Louis, MO, and the except federal holidays. An informal the FAA’s aeronautical database; Class E airspace extending upward from docket may also be examined during updating the bearing of the east 700 feet above the surface at St. Louis normal business hours at the Federal extension of Spirit of St. Louis Airport Lambert International Airport, St. Louis, Aviation Administration, Air Traffic to 078° (previously 079°); updating the MO, Spirit of St. Louis Airport, and St. Organization, Central Service Center, name of the Spirit of St. Louis: RWY Charles County Smartt Airport, St. Operations Support Group, 10101 26L–LOC (previously Spirit of St. Louis Charles, MO, which is contained within Hillwood Parkway, Fort Worth, TX Runway 26L Localizer) to coincide with the St. Louis, MO, airspace legal 76177. the FAA’s aeronautical database; description, and removing St. Louis updating the extension east of the Spirit Regional Airport, Alton/St. Louis, IL, Availability and Summary of of St. Louis: RWY 26L–LOC to within which is contained within the St. Louis, Documents for Incorporation by 3.8 miles (decreased from 4.1 miles) MO, airspace legal description, to Reference north and 5.7 miles (decreased from 6.4 support instrument flight rule This document proposes to amend miles) south of the 078° (previously operations at these airports. FAA Order 7400.11D, Airspace 079°) bearing from the Spirit of St. Designations and Reporting Points, Louis: RWY 26L–LOC extending from Comments Invited dated August 8, 2019, and effective the 6.9-mile radius of the Spirit of St. Interested parties are invited to September 15, 2019. FAA Order Louis Airport to 10.6 miles (decreased participate in this proposed rulemaking 7400.11D is publicly available as listed from 11.3 miles) east of the Spirit of St. by submitting such written data, views, in the ADDRESSES section of this Louis: RWY 26L–LOC; updating the or arguments, as they may desire. document. FAA Order 7400.11D lists bearing of the west extension of Spirit

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of St. Louis Airport to 258° (previously under the criteria of the Regulatory 4.4-mile radius of Spirit of St. Louis Airport, 259°); adding an extension at St. Charles Flexibility Act. and within 1 mile each side of the 078° County Smartt Airport, St. Charles, MO, bearing from the airport extending from the Environmental Review within 3.3 miles each side of the 028° 4.4-mile radius to 4.6 miles east of the radial from the St. Louis VORTAC This proposal will be subject to an airport, and within 1 mile each side of the extending from the 6.4-mile radius of St. environmental analysis in accordance 258° bearing from the airport extending from Charles County Smartt Airport to 12.4 with FAA Order 1050.1F, the 4.4-mile radius to 4.6 miles west of the miles northeast of St. Charles County ‘‘Environmental Impacts: Policies and airport, excluding that airspace within the St. Smartt Airport; and removing St. Louis Procedures’’ prior to any FAA final Louis, MO Class B airspace area. This Class Regional Airport, Alton/St. Louis, IL, regulatory action. D airspace area is effective during the specific dates and times established in which is contained within the St. Louis, List of Subjects in 14 CFR Part 71 MO, airspace legal description, and the advance by a Notice to Airmen. The effective Civic Memorial NDB and the associated Airspace, Incorporation by reference, dates and times will thereafter be north and south extensions from St. Navigation (air). continuously published in the Chart Supplement. Louis Regional Airport. (A separate The Proposed Amendment airspace review of St. Louis Regional Accordingly, pursuant to the Paragraph 6005 Class E Airspace Areas Airport resulted in the Class E airspace authority delegated to me, the Federal Extending Upward From 700 Feet or More extending upward from 700 feet above Aviation Administration proposes to Above the Surface of the Earth. the surface at St. Louis Regional Airport amend 14 CFR part 71 as follows: * * * * * no longer adjoining the St. Louis, MO, Class E airspace extending upward from PART 71—DESIGNATION OF CLASS A, ACE MO E5 St. Louis, MO [Amended] 700 feet above the surface. As a result, B, C, D, AND E AIRSPACE AREAS; AIR St. Louis Lambert International Airport, MO a separate Class E airspace extending TRAFFIC SERVICE ROUTES; AND (Lat. 38°44′55″ N, long. 90°22′12″ W) upward from 700 feet above the surface REPORTING POINTS Spirit of St. Louis Airport, MO airspace legal description will be (Lat. 38°39′44″ N, long. 90°39′07″ W) created for Alton/St. Louis, IL, under ■ 1. The authority citation for 14 CFR St. Charles County Smartt Airport, MO FAA Docket No. FAA–2020–0321/ part 71 continues to read as follows: (Lat. 38°55′47″ N, long. 90°25′48″ W) Airspace Docket 20–AGL–17 and will be Authority: 49 U.S.C. 106(f), 106(g); 40103, St. Louis VORTAC ° ′ ″ ° ′ ″ become effective coincidentally with 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, (Lat. 38 51 38 N, long. 90 28 57 W) this action.) 1959–1963 Comp., p. 389. Spirit of St. Louis: RWY 26L–LOC Class D and E airspace designations (Lat. 38°39′26″ N, long. 90°39′48″ W) § 71.1 [Amended] are published in paragraph 5000, 6002, That airspace extending upward from 700 ■ and 6005, respectively, of FAA Order 2. The incorporation by reference in feet above the surface within an 8.5-mile 7400.11D, dated August 8, 2019, and 14 CFR 71.1 of FAA Order 7400.11D, radius of St. Louis Lambert International effective September 15, 2019, which is Airspace Designations and Reporting Airport, and within a 6.9-mile radius of incorporated by reference in 14 CFR Points, dated August 8, 2019, and Spirit of St. Louis Airport, and within 2.5 71.1. The Class D and E airspace effective September 15, 2019, is miles each side of the 078° bearing from the designations listed in this document amended as follows: Spirit of St. Louis Airport extending from the will be published subsequently in the Paragraph 5000 Class D Airspace. 6.9-mile radius of the airport to 8.1 miles east Order. of the airport, and within 3.8 miles north and * * * * * ° FAA Order 7400.11, Airspace 5.7 miles south of the 078 bearing from the ACE MO D St. Louis, MO [Amended] Designations and Reporting Points, is Spirit of St. Louis: RWY 26L–LOC extending Spirit of St. Louis Airport, MO from the 6.9-mile radius of the Spirit of St. published yearly and effective on ° ′ ″ ° ′ ″ September 15. (Lat. 38 39 44 N, long. 90 39 07 W) Louis Airport to 10.6 miles east of the Spirit That airspace extending upward from the of St. Louis: RWY 26L–LOC, and within 3.9 Regulatory Notices and Analyses surface to and including 3,000 feet within a miles each side of the 258° bearing from the 4.4-mile radius of Spirit of St. Louis Airport, Spirit of St. Louis Airport extending from the The FAA has determined that this and within 1 mile each side of the 078° 6.9-mile radius of the airport to 10.6 miles regulation only involves an established bearing from the airport extending from the west of the airport, and within a 6.4-mile body of technical regulations for which 4.4-mile radius to 4.6 miles east of the radius of St. Charles County Smartt Airport, frequent and routine amendments are airport, and within 1 mile each side of the and within 3.3 miles each side of the 028° 258° bearing from the airport extending from necessary to keep them operationally radial from the St. Louis VORTAC extending current, is non-controversial and the 4.4-mile radius to 4.6 miles west of the airport, excluding that airspace within the St. from the 6.4-mile radius of St. Charles unlikely to result in adverse or negative County Smartt Airport to 12.4 miles comments. It, therefore: (1) Is not a Louis, MO Class B airspace area. This Class D airspace area is effective during the northeast of the airport. ‘‘significant regulatory action’’ under specific dates and times established in Issued in Fort Worth, Texas, on April 27, Executive Order 12866; (2) is not a advance by a Notice to Airmen. The effective 2020. ‘‘significant rule’’ under DOT dates and times will thereafter be Regulatory Policies and Procedures (44 continuously published in the Chart Steven Phillips, FR 11034; February 26, 1979); and (3) Supplement. Acting Manager, Operations Support Group, does not warrant preparation of a Paragraph 6002 Class E Airspace Areas ATO Central Service Center. regulatory evaluation as the anticipated Designated as Surface Areas. [FR Doc. 2020–09463 Filed 5–5–20; 8:45 am] impact is so minimal. Since this is a * * * * * BILLING CODE 4910–13–P routine matter that will only affect air traffic procedures and air navigation, it ACE MO E2 St. Louis, MO [Amended] is certified that this rule, when Spirit of St. Louis Airport, MO promulgated, would not have a (Lat. 38°39′44″ N, long. 90°39′07″ W) significant economic impact on a That airspace extending upward from the substantial number of small entities surface to and including 3,000 feet within a

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DEPARTMENT OF TRANSPORTATION 741–6030, or go to https:// report summarizing each substantive www.archives.gov/federal-register/cfr/ public contact with FAA personnel Federal Aviation Administration ibr-locations.html. concerned with this rulemaking will be FOR FURTHER INFORMATION CONTACT: filed in the docket. 14 CFR Part 71 Jeffrey Claypool, Federal Aviation Availability of NPRMs [Docket No. FAA–2020–0324; Airspace Administration, Operations Support Docket No. 20–ACE–6] Group, Central Service Center, 10101 An electronic copy of this document Hillwood Parkway, Fort Worth, TX may be downloaded through the RIN 2120–AA66 76177; telephone (817) 222–5711. internet at https://www.regulations.gov. Recently published rulemaking Proposed Amendment of Class E SUPPLEMENTARY INFORMATION: documents can also be accessed through Airspace; Sedalia, MO Authority for This Rulemaking the FAA’s web page at https:// _ AGENCY: Federal Aviation www.faa.gov/air traffic/publications/ The FAA’s authority to issue rules _ Administration (FAA), DOT. airspace amendments/. regarding aviation safety is found in You may review the public docket ACTION: Notice of proposed rulemaking Title 49 of the United States Code. containing the proposal, any comments (NPRM). Subtitle I, Section 106 describes the received, and any final disposition in authority of the FAA Administrator. SUMMARY: person in the Dockets Office (see the This action proposes to Subtitle VII, Aviation Programs, ADDRESSES section for the address and amend the Class E airspace extending describes in more detail the scope of the upward from 700 feet above the surface phone number) between 9:00 a.m. and agency’s authority. This rulemaking is 5:00 p.m., Monday through Friday, at Sedalia Regional Airport, Sedalia, promulgated under the authority MO. The FAA is proposing this action except federal holidays. An informal described in Subtitle VII, Part A, docket may also be examined during as the result of an airspace review due Subpart I, Section 40103. Under that to the decommissioning of the Sedalia normal business hours at the Federal section, the FAA is charged with Aviation Administration, Air Traffic non-directional beacon (NDB) which prescribing regulations to assign the use provided navigation information to the Organization, Central Service Center, of airspace necessary to ensure the Operations Support Group, 10101 instrument procedures at this airport. safety of aircraft and the efficient use of The name of the airport would also be Hillwood Parkway, Fort Worth, TX airspace. This regulation is within the 76177. updated to coincide with the FAA’s scope of that authority as it would aeronautic database. Airspace redesign amend the Class E airspace extending Availability and Summary of is necessary for the safety and upward from 700 feet above the surface Documents for Incorporation by management of instrument flight rules at Sedalia Regional Airport, Sedalia, Reference (IFR) operations at this airport. MO, to support IFR operations at this This document proposes to amend DATES: Comments must be received on airport. FAA Order 7400.11D, Airspace or before June 22, 2020. Comments Invited Designations and Reporting Points, ADDRESSES: Send comments on this dated August 8, 2019, and effective proposal to the U.S. Department of Interested parties are invited to September 15, 2019. FAA Order Transportation, Docket Operations, participate in this proposed rulemaking 7400.11D is publicly available as listed West Building Ground Floor, Room by submitting such written data, views, in the ADDRESSES section of this W12–140, 1200 New Jersey Avenue SE, or arguments, as they may desire. document. FAA Order 7400.11D lists Washington, DC 20590; telephone (202) Comments that provide the factual basis Class A, B, C, D, and E airspace areas, 366–9826, or (800) 647–5527. You must supporting the views and suggestions air traffic service routes, and reporting identify FAA Docket No. FAA–2020– presented are particularly helpful in points. 0324/Airspace Docket No. 20–ACE–6 at developing reasoned regulatory the beginning of your comments. You decisions on the proposal. Comments The Proposal may also submit comments through the are specifically invited on the overall The FAA is proposing an amendment internet at https://www.regulations.gov. regulatory, aeronautical, economic, to Title 14 Code of Federal Regulations You may review the public docket environmental, and energy-related (14 CFR) part 71 by amending the Class containing the proposal, any comments aspects of the proposal. E airspace extending upward from 700 received, and any final disposition in Communications should identify both feet above the surface to within a 6.6- person in the Dockets Office between docket numbers and be submitted in mile (decreased from a 7.1-mile) radius 9:00 a.m. and 5:00 p.m., Monday triplicate to the address listed above. of the Sedalia Regional Airport, Sedalia, through Friday, except federal holidays. Commenters wishing the FAA to MO; updating the name of the Sedalia FAA Order 7400.11D, Airspace acknowledge receipt of their comments Regional Airport (previously Sedalia Designations and Reporting Points, and on this notice must submit with those Memorial Airport) to coincide with the subsequent amendments can be viewed comments a self-addressed, stamped FAA’s aeronautical database; and online at https://www.faa.gov/air_ postcard on which the following removing the Sedalia NDB and traffic/publications/. For further statement is made: ‘‘Comments to associated extension from the airspace information, you can contact the Docket No. FAA–2020–0324/Airspace legal description. Airspace Policy Group, Federal Aviation Docket No. 20–ACE–6.’’ The postcard This action is necessary due to an Administration, 800 Independence will be date/time stamped and returned airspace review due to the Avenue SW, Washington, DC 20591; to the commenter. decommissioning of the Sedalia NDB telephone: (202) 267–8783. The Order is All communications received before which provided navigation information also available for inspection at the the specified closing date for comments to the instrument procedures at this National Archives and Records will be considered before taking action airport. Administration (NARA). For on the proposed rule. The proposal Class E airspace designations are information on the availability of FAA contained in this notice may be changed published in paragraph 6005 of FAA Order 7400.11D at NARA, call (202) in light of the comments received. A Order 7400.11D, dated August 8, 2019,

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and effective September 15, 2019, which effective September 15, 2019, is (section 409(b)(5) (21 U.S.C. 348(b)(5))), is incorporated by reference in 14 CFR amended as follows: we are giving notice that we have filed 71.1. The Class E airspace designation Paragraph 6005. Class E Airspace Areas a food additive petition (FAP 2311) listed in this document will be Extending Upward From 700 Feet or More submitted by Biomin GmbH; Erber published subsequently in the Order. Above the Surface of the Earth Campus 1, 3131 Getzersdorf, Austria. FAA Order 7400.11, Airspace * * * * * The petition proposes to amend Title 21 Designations and Reporting Points, is of the Code of Federal Regulations (CFR) published yearly and effective on ACE MO E5 Sedalia, MO [Amended] in part 573 (21 CFR part 573) Food September 15. Sedalia Regional Airport, MO Additives Permitted in Feed and (Lat. 38°42′27″ N, long. 93°10′33″ W) Regulatory Notices and Analyses Drinking Water of Animals to provide That airspace extending upward from 700 for the safe use of fumonisin esterase to The FAA has determined that this feet above the surface within a 6.6-mile degrade fumonisins present in swine regulation only involves an established radius of Sedalia Regional Airport. feed. body of technical regulations for which Issued in Fort Worth, Texas, on April 27, The petitioner has claimed that this frequent and routine amendments are 2020. action is categorically excluded under necessary to keep them operationally Steven Phillips, 21 CFR 25.32(r) because it is of a type current, is non-controversial and that does not individually or unlikely to result in adverse or negative Acting Manager, Operations Support Group, ATO Central Service Center. cumulatively have a significant effect on comments. It, therefore: (1) Is not a the human environment. In addition, ‘‘significant regulatory action’’ under [FR Doc. 2020–09464 Filed 5–5–20; 8:45 am] BILLING CODE 4910–13–P the petitioner has stated that, to their Executive Order 12866; (2) is not a knowledge, no extraordinary ‘‘significant rule’’ under DOT circumstances exist. If FDA determines Regulatory Policies and Procedures (44 a categorical exclusion applies, neither DEPARTMENT OF HEALTH AND FR 11034; February 26, 1979); and (3) an environmental assessment nor an HUMAN SERVICES does not warrant preparation of a environmental impact statement is regulatory evaluation as the anticipated Food and Drug Administration required. If FDA determines a impact is so minimal. Since this is a categorical exclusion does not apply, we routine matter that will only affect air 21 CFR Part 573 will request an environmental traffic procedures and air navigation, it assessment and make it available for is certified that this rule, when [Docket No. FDA–2020–F–1275] public inspection. promulgated, would not have a significant economic impact on a Biomin GmbH; Filing of Food Additive Dated: April 24, 2020. substantial number of small entities Petition (Animal Use) Lowell J. Schiller, under the criteria of the Regulatory Principal Associate Commissioner for Policy. AGENCY Flexibility Act. : Food and Drug Administration, [FR Doc. 2020–09187 Filed 5–5–20; 8:45 am] HHS. Environmental Review BILLING CODE 4164–01–P ACTION: Notification; petition for This proposal will be subject to an rulemaking. environmental analysis in accordance with FAA Order 1050.1F, SUMMARY: The Food and Drug DEPARTMENT OF THE INTERIOR ‘‘Environmental Impacts: Policies and Administration (FDA or we) is Procedures’’ prior to any FAA final announcing that we have filed a Bureau of Indian Affairs regulatory action. petition, submitted by Biomin GmbH, proposing that the food additive 25 CFR Part 82 List of Subjects in 14 CFR Part 71 regulations be amended to provide for Airspace, Incorporation by reference, the safe use of fumonisin esterase to [201A2100DD/AAKC001030/ Navigation (air). degrade fumonisins present in swine A0A501010.999900 253G] feed. The Proposed Amendment RIN 1076–AF51 Accordingly, pursuant to the DATES: The food additive petition was authority delegated to me, the Federal filed on March 26, 2020. Procedures for Federal Aviation Administration proposes to ADDRESSES: For access to the docket to Acknowledgment of Alaska Native amend 14 CFR part 71 as follows: read background documents or Entities comments received, go to https:// AGENCY: Bureau of Indian Affairs, PART 71—DESIGNATION OF CLASS A, www.regulations.gov and insert the Interior. B, C, D, AND E AIRSPACE AREAS; AIR docket number found in brackets in the TRAFFIC SERVICE ROUTES; AND heading of this document, into the ACTION: Proposed rule; correction and REPORTING POINTS ‘‘Search’’ box and follow the prompts; reopening of period for comments on and/or go to the Dockets Management the information collection. ■ 1. The authority citation for 14 CFR Staff, 5630 Fishers Lane, Rm. 1061, part 71 continues to read as follows: SUMMARY: The Bureau of Indian Affairs Rockville, MD 20852. published a proposed rule in the Authority: 49 U.S.C. 106(f), 106(g); 40103, FOR FURTHER INFORMATION CONTACT: Federal Register of January 2, 2020, that 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, Carissa Adams, Center for Veterinary 1959–1963 Comp., p. 389. contained errors in the Paperwork Medicine, Food and Drug Reduction Act statement. This § 71.1 [Amended] Administration, 7519 Standish Pl., document provides a corrected ■ 2. The incorporation by reference in Rockville, MD 20855, 240–402–6283, Paperwork Reduction Act statement and 14 CFR 71.1 of FAA Order 7400.11D, [email protected]. reopens the comment period for Airspace Designations and Reporting SUPPLEMENTARY INFORMATION: Under the comments on the information collection Points, dated August 8, 2019, and Federal Food, Drug, and Cosmetic Act described in that statement.

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DATES: Comments on the information Alaska IRA and 25 CFR part 82. The regulations for certain waters of the collection, published on January 2, 2020 current authorization totals an estimated Choptank River. This action is necessary (85 FR 37), are due by May 21, 2020. 1,436 annual burden hours. This rule to provide for the safety of life on these ADDRESSES: You may send comments on change would require a revision to an navigable waters located at Cambridge, the information collection, identified by approved information collection under MD, during a high-speed power boat RIN number 1076–AF51 by any of the the Paperwork Reduction Act (PRA), 44 racing event on July 25, 2020, and July following methods: U.S.C. 3501 et seq., for which the 26, 2020. This proposed rulemaking • Federal eRulemaking Portal: http:// Department is requesting OMB would prohibit persons and vessels www.regulations.gov. Follow the approval. from entering the regulated area unless instructions for sending comments. OMB Control Number: 1076–0104. authorized by the Captain of the Port • Email: [email protected]. Title: Federal Acknowledgment as an Maryland-National Capital Region or the Include RIN number 1076–AF51 in the Indian Tribe, 25 CFR 82 & 83. Coast Guard Patrol Commander. We subject line of the message. Brief Description of Collection: This invite your comments on this proposed • Mail or Hand-Delivery/Courier: information collection requires entities rulemaking. Office of Regulatory Affairs & seeking Federal recognition as an Indian DATES: Comments and related material Collaborative Action—Indian Affairs Tribe to collect and provide information must be received by the Coast Guard on (RACA), U.S. Department of the Interior, in a documented petition evidencing or before June 5, 2020. 1849 C Street NW, Mail Stop 4660, that the entities meet the criteria set out ADDRESSES: You may submit comments Washington, DC 20240. in the rule. identified by docket number USCG– All submissions received must Type of Review: Revision of currently 2020–0081 using the Federal include the Regulatory Information approved collection. eRulemaking Portal at http:// Number (RIN) for this rulemaking (RIN Respondents: Entities petitioning for www.regulations.gov. See the ‘‘Public 1076–AF51). All comments received Federal acknowledgment. Participation and Request for will be posted without change to http:// Number of Respondents: 2 on average Comments’’ portion of the www.regulations.gov, including any (each year). SUPPLEMENTARY INFORMATION section for personal information provided. Number of Responses: 2 on average further instructions on submitting FOR FURTHER INFORMATION CONTACT: (each year). comments. Elizabeth Appel, Director, Office of Frequency of Response: On occasion. FOR FURTHER INFORMATION CONTACT: If Regulatory Affairs & Collaborative Estimated Time per Response: (See you have questions about this proposed Action, (202) 273–4680; table below). rulemaking, call or email Mr. Ron [email protected]. Estimated Total Annual Hour Burden: Houck, U.S. Coast Guard Sector 2,872 hours. SUPPLEMENTARY INFORMATION: Maryland-National Capital Region; Estimated Total Annual Non-Hour telephone 410–576–2674, email Correction Cost: $4,200,000. [email protected]. In the Federal Register of January 2, OMB Control No. 1076–0104 SUPPLEMENTARY INFORMATION: 2020, in FR Doc. 2019–27998, on page currently authorizes the collections of I. Table of Abbreviations 45, in the third column: information contained in 25 CFR part • Replace ‘‘we are seeking to revise 83. If this proposed rule is finalized, CFR Code of Federal Regulations this information collection’’ with ‘‘we DOI estimates that the annual burden COTP Captain of the Port are seeking to renew and revise this hours for respondents (entities DHS Department of Homeland Security petitioning for Federal FR Federal Register information collection’’; NPRM Notice of proposed rulemaking • Replace ‘‘14,360 annual burden acknowledgment) will increase by approximately 1,436 hours, for a total of PATCOM Coast Guard Patrol Commander hours’’ with ‘‘1,436 annual burden § Section hours’’; and 2,872 hours. U.S.C. United States Code • Replace ‘‘Estimated Total Annual Tara Sweeney, Non-Hour Cost: $2,100,000’’ with II. Background, Purpose, and Legal Assistant Secretary—Indian Affairs. Basis ‘‘Estimated Total Annual Non-Hour [FR Doc. 2020–09100 Filed 5–5–20; 8:45 am] Cost: $4,200,000’’. Kent Narrows Racing Association of BILLING CODE 4337–15–P We are restating the entire Paperwork Chester, MD, notified the Coast Guard Reduction Act statement (which was that it will be conducting the Thunder provided in Section V.J. of the preamble on the Choptank from 9:30 a.m. to 5 to the proposed rule) here for the DEPARTMENT OF HOMELAND p.m. on July 25, 2020, and from 9:30 convenience of anyone who wishes to SECURITY a.m. to 5 p.m. on July 26, 2020. The high-speed power boat racing event comment on the information collection. Coast Guard consists of approximately 50 J. Paperwork Reduction Act participating inboard and outboard 33 CFR Part 100 OMB Control No. 1076–0104 hydroplane and runabout race boats of currently authorizes the collections of [Docket Number USCG–2020–0081] various classes, 16 to 21 feet in length. information related to petitions for The vessels will be competing on a Federal acknowledgment under the RIN 1625–AA08 designated, marked 1-mile oval course Indian Reorganization Act (IRA) Special Local Regulation; Choptank located in the Choptank River in a cove contained in 25 CFR part 83, with an River, Hambrooks Bay, Cambridge, MD located between Hambrooks Bar and the expiration of October 31, 2021. With shoreline at Cambridge, MD. Hazards this rulemaking, we are seeking to AGENCY: Coast Guard, DHS. from the power boat racing event renew and revise this information ACTION: Notice of proposed rulemaking. include risks of injury or death resulting collection to include collections of from near or actual contact among information related to petitions for SUMMARY: The Coast Guard is proposing participant vessels and spectator vessels Federal acknowledgment under the to establish temporary special local or waterway users if normal vessel

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traffic were to interfere with the event. (PATCOM) would have authority to regulated area, which would impact a Additionally, such hazards include forbid and control the movement of all small designated area of the Choptank participants operating near designated vessels and persons, including event River for 19 total enforcement hours. navigation channels, as well as participants, in the regulated area. The Coast Guard would issue a operating near approaches to local Except for Thunder on the Choptank Broadcast Notice to Mariners via VHF– public boat ramps, private marinas and participants and vessels already at FM marine channel 16 about the status yacht clubs, and waterfront businesses. berth, a vessel or person would be of the regulated area. Moreover, the rule The COTP Maryland-National Capital required to get permission from the would allow vessels to seek permission Region has determined that potential COTP or PATCOM before entering the to enter the regulated area, and vessel hazards associated with the power boat regulated area while the rule is being traffic would be able to safely transit the races would be a safety concern for enforced. Vessel operators could request regulated area once the PATCOM deems anyone intending to participate in this permission to enter and transit through it safe to do so. event and for vessels that operate within the regulated area by contacting the specified waters of the Choptank River. PATCOM on VHF–FM channel 16. B. Impact on Small Entities The purpose of this rulemaking is to Vessel traffic would be able to safely The Regulatory Flexibility Act of protect event participants, non- transit the regulated area once the 1980, 5 U.S.C. 601–612, as amended, participants and transiting vessels PATCOM deems it safe to do so. A requires Federal agencies to consider before, during, and after the scheduled person or vessel not registered with the the potential impact of regulations on event. The Coast Guard is proposing this event sponsor as a participant or small entities during rulemaking. The rulemaking under authority in 46 U.S.C. assigned as official patrols would be term ‘‘small entities’’ comprises small 70034 (previously 33 U.S.C. 1231). considered a non-participant. Official businesses, not-for-profit organizations III. Discussion of Proposed Rule Patrols are any vessel assigned or that are independently owned and approved by the Commander, Coast operated and are not dominant in their The COTP Maryland-National Capital Guard Sector Maryland-National Capital Region is proposing to establish special fields, and governmental jurisdictions Region with a commissioned, warrant, with populations of less than 50,000. local regulations to be enforced from or petty officer on board and displaying 8:30 a.m. through 6 p.m. on July 25, The Coast Guard certifies under 5 U.S.C. a Coast Guard ensign. 605(b) that this proposed rule would not 2020, and from 8:30 a.m. through 6 p.m. If permission is granted by the COTP on July 26, 2020. The regulated area have a significant economic impact on or PATCOM, a person or vessel would a substantial number of small entities. would cover all navigable waters of the be allowed to enter the regulated area or Choptank River and Hambrooks Bay pass directly through the regulated area While some owners or operators of bounded by a line connecting the as instructed. Vessels would be required vessels intending to transit the safety following coordinates: Commencing at to operate at a safe speed that minimizes zone may be small entities, for the the shoreline at Long Wharf Park, wake while within the regulated area. reasons stated in section IV.A above, Cambridge, MD, at position latitude this proposed rule would not have a ° ′ ″ ° ′ ″ Official patrol vessels would direct non- 38 34 30 N, longitude 076 04 16 W; participants while within the regulated significant economic impact on any thence east to latitude 38°34′20″ N, vessel owner or operator. ° ′ ″ area. longitude 076 03 46 W; thence The regulatory text we are proposing If you think that your business, northeast across the Choptank River appears at the end of this document. organization, or governmental along the Senator Frederick C. Malkus, IV. Regulatory Analyses jurisdiction qualifies as a small entity Jr. (US–50) Memorial Bridge, at mile and that this rule would have a 15.5, to latitude 38°35′30″ N, longitude We developed this proposed rule after ° ′ ″ significant economic impact on it, 076 02 52 W; thence west along the considering numerous statutes and please submit a comment (see shoreline to latitude 38°35′38″ N, Executive orders related to rulemaking. ° ′ ″ ADDRESSES) explaining why you think it longitude 076 03 09 W; thence north Below we summarize our analyses qualifies and how and to what degree and west along the shoreline to latitude based on a number of these statutes and this rule would economically affect it. 38°36′42″ N, longitude 076°04′15″ W; Executive orders, and we discuss First Under section 213(a) of the Small thence southwest across the Choptank Amendment rights of protestors. River to latitude 38°35′31″ N, longitude Business Regulatory Enforcement 076°04′57″ W; thence west along the A. Regulatory Planning and Review Fairness Act of 1996 (Pub. L. 104–121), Hambrooks Bay breakwall to latitude Executive Orders 12866 and 13563 we want to assist small entities in 38°35′33″ N, longitude 076°05′17″ W; direct agencies to assess the costs and understanding this proposed rule. If the thence south and east along the benefits of available regulatory rule would affect your small business, shoreline back to the point of origin. alternatives and, if regulation is organization, or governmental This proposed rule provides necessary, to select regulatory jurisdiction and you have questions additional information about areas approaches that maximize net benefits. concerning its provisions or options for within the regulated area, and the Executive Order 13771 directs agencies compliance, please contact the person restrictions that apply to mariners. to control regulatory costs through a listed in the FOR FURTHER INFORMATION These areas include a ‘‘Race Area,’’ budgeting process. This NPRM has not CONTACT section. The Coast Guard will ‘‘Buffer Zone’’ and ‘‘Spectator Area.’’ been designated a ‘‘significant not retaliate against small entities that The proposed duration of the rule and regulatory action,’’ under Executive question or complain about this size of the regulated area are intended Order 12866. Accordingly, the NPRM proposed rule or any policy or action of to ensure the safety of life on these has not been reviewed by the Office of the Coast Guard. navigable waters before, during, and Management and Budget (OMB), and C. Collection of Information after the high-speed power boat races, pursuant to OMB guidance it is exempt scheduled to take place from 9:30 a.m. from the requirements of Executive This proposed rule would not call for to 5 p.m. on July 25, 2020, and those Order 13771. a new collection of information under same hours on July 26, 2020. The COTP This regulatory action determination the Paperwork Reduction Act of 1995 and the Coast Guard Patrol Commander is based on size and duration of the (44 U.S.C. 3501–3520).

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D. Federalism and Indian Tribal States that could negatively impact the List of Subjects in 33 CFR Part 100 Governments safety of waterway users and shore side Marine safety, Navigation (water), A rule has implications for federalism activities in the event area lasting for 19 Reporting and recordkeeping under Executive Order 13132, hours. Normally such actions are requirements, Waterways. Federalism, if it has a substantial direct categorically excluded from further For the reasons discussed in the effect on the States, on the relationship review under paragraph L[61] of preamble, the Coast Guard is proposing between the national government and Appendix A, Table 1 of DHS Instruction to amend 33 CFR part 100 as follows: the States, or on the distribution of Manual 023–01–001–01, Rev. 01. We power and responsibilities among the seek any comments or information that PART 100—SAFETY OF LIFE ON various levels of government. We have may lead to the discovery of a NAVIGABLE WATERS analyzed this proposed rule under that significant environmental impact from ■ 1. The authority citation for part 100 Order and have determined that it is this proposed rule. continues to read as follows: consistent with the fundamental G. Protest Activities federalism principles and preemption Authority: 46 U.S.C. 70041; 33 CFR 1.05– requirements described in Executive The Coast Guard respects the First 1. Order 13132. Amendment rights of protesters. ■ 2. Add § 100.T05–0081 to read as Also, this proposed rule does not have Protesters are asked to contact the follows: tribal implications under Executive person listed in the FOR FURTHER § 100.T05–0081 Thunder on the Choptank, Order 13175, Consultation and INFORMATION CONTACT section to coordinate protest activities so that your Choptank River, Hambrooks Bay, Coordination with Indian Tribal Cambridge, MD. message can be received without Governments, because it would not have (a) Regulated areas. The regulations a substantial direct effect on one or jeopardizing the safety or security of people, places, or vessels. in this section apply to the following more Indian tribes, on the relationship areas: between the Federal Government and V. Public Participation and Request for (1) Regulated area. All navigable Indian tribes, or on the distribution of Comments waters within Choptank River and power and responsibilities between the Hambrooks Bay bounded by a line Federal Government and Indian tribes. We view public participation as connecting the following coordinates: If you believe this proposed rule has essential to effective rulemaking, and Commencing at the shoreline at Long implications for federalism or Indian will consider all comments and material Wharf Park, Cambridge, MD, at position tribes, please contact the person listed received during the comment period. latitude 38°34′30″ N, longitude in the FOR FURTHER INFORMATION Your comment can help shape the 076°04′16″ W; thence east to latitude CONTACT section. outcome of this rulemaking. If you 38°34′20″ N, longitude 076°03′46″ W; submit a comment, please include the E. Unfunded Mandates Reform Act thence northeast across the Choptank docket number for this rulemaking, River along the Senator Frederick C. The Unfunded Mandates Reform Act indicate the specific section of this Malkus, Jr. (US–50) Memorial Bridge, at of 1995 (2 U.S.C. 1531–1538) requires document to which each comment mile 15.5, to latitude 38°35′30″ N, Federal agencies to assess the effects of applies, and provide a reason for each longitude 076°02′52″ W; thence west their discretionary regulatory actions. In suggestion or recommendation. along the shoreline to latitude 38°35′38″ particular, the Act addresses actions We encourage you to submit N, longitude 076°03′09″ W; thence north that may result in the expenditure by a comments through the Federal and west along the shoreline to latitude State, local, or tribal government, in the eRulemaking Portal at http:// 38°36′42″ N, longitude 076°04′15″ W; aggregate, or by the private sector of www.regulations.gov. If your material thence southwest across the Choptank $100,000,000 (adjusted for inflation) or cannot be submitted using http:// River to latitude 38°35′31″ N, longitude more in any one year. Though this www.regulations.gov, contact the person 076°04′57″ W; thence west along the proposed rule would not result in such in the FOR FURTHER INFORMATION Hambrooks Bay breakwall to latitude an expenditure, we do discuss the CONTACT section of this document for 38°35′33″ N, longitude 076°05′17″ W; effects of this rule elsewhere in this alternate instructions. thence south and east along the preamble. We accept anonymous comments. All shoreline to and terminating at the point F. Environment comments received will be posted of origin. The following locations are without change to http:// within the regulated area: We have analyzed this proposed rule (i) Race Area. Located within the www.regulations.gov and will include under Department of Homeland waters of Hambrooks Bay and Choptank any personal information you have Security Directive 023–01, Rev. 1, River, between Hambrooks Bar and associated implementing instructions, provided. For more about privacy and Great Marsh Point, MD. and Environmental Planning submissions in response to this docket, (ii) Buffer Zone. All waters within COMDTINST 5090.1 (series), which see DHS’s Correspondence System of Hambrooks Bay and Choptank River guide the Coast Guard in complying Records notice (84 FR 48645, September (with the exception of the Race Area with the National Environmental Policy 26, 2018). designated by the marine event sponsor) Act of 1969 (42 U.S.C. 4321–4370f), and Documents mentioned in this NPRM bound to the north by the breakwall and have made a preliminary determination as being available in the docket, and all continuing along a line drawn from the that this action is one of a category of public comments, will be in our online east end of breakwall located at latitude actions that do not individually or docket at http://www.regulations.gov 38°35′27.6″ N, longitude 076°04′50.1″ cumulatively have a significant effect on and can be viewed by following that W, thence southeast to latitude the human environment. This proposed website’s instructions. Additionally, if 38°35′17.7″ N, longitude 076°04′29″ W, rule involves implementation of you go to the online docket and sign up thence south to latitude 38°35′01″ N, regulations within 33 CFR part 100 for email alerts, you will be notified longitude 076°04′29″ W, thence west to applicable to organized marine events when comments are posted or a final the shoreline at latitude 38°35′01″ N, on the navigable waters of the United rule is published. longitude 076°04′41.3″ W.

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(iii) Spectator Area. All waters of the (d) Enforcement officials. The Coast electronically. The CRB continued, Choptank River, eastward and outside of Guard may be assisted with marine however, to permit the filing of claims Hambrooks Bay breakwall, thence event patrol and enforcement of the on paper forms. bound by line that commences at regulated area by other Federal, State, The CRB has since received a latitude 38°35′28″ N, longitude and local agencies. ° ′ ″ diminishing number of paper claims. In 076 04 50 W; thence northeast to (e) Enforcement period. This section the most recent claims filing period for latitude 38°35′30″ N, longitude will be enforced from 8:30 a.m. through cable and satellite royalties (July 2019), 076°04′47″ W; thence southeast to 6 p.m. on July 25, 2020, and, from 8:30 out of 545 and 280 claims, respectively, latitude 38°35′23″ N, longitude a.m. through 6 p.m. on July 26, 2020. the CRB received two claims for cable 076°04′29″ W; thence southwest to ° ′ ″ Dated: April 23, 2020. royalties and one claim for satellite latitude 38 35 19 N, longitude Joseph B. Loring, 076°04′31″ W; thence northwest to and royalties that were filed exclusively in Captain, U.S. Coast Guard, Captain of the paper form.1 In the most recent claims terminating at the point of origin. Port Maryland-National Capital Region. (2) Coordinates. These coordinates are filing period for DART royalties [FR Doc. 2020–09285 Filed 5–5–20; 8:45 am] based on datum NAD 1983. (January–February 2020), out of 61 (b) Definitions. As used in this BILLING CODE 9110–04–P claims filed, the CRB received no claims section— that were filed exclusively in paper 2 Captain of the Port (COTP) Maryland- form. National Capital Region means the LIBRARY OF CONGRESS The handling of paper claims is more Commander, U.S. Coast Guard Sector Copyright Royalty Board resource-intensive for the CRB than the Maryland-National Capital Region or handling of electronic claims. Each any Coast Guard commissioned, warrant 37 CFR Part 360 paper claim must be opened, date- or petty officer who has been authorized stamped, numbered, scanned, and by the COTP to act on his behalf. [Docket No. 20–CRB–0006–RM] uploaded to eCRB, and details from the Coast Guard Patrol Commander paper claim must be entered manually Procedural Regulations of the (PATCOM) means a commissioned, into eCRB to generate an electronic Copyright Royalty Board Requiring warrant, or petty officer of the U.S. claim. Coast Guard who has been designated Electronic Filing of Claims by the Commander, Coast Guard Sector More critically, acceptance of paper AGENCY: Copyright Royalty Board, claims creates a dependency on the Maryland-National Capital Region. Library of Congress. Official Patrol means any vessel receipt and processing of mail and ACTION: assigned or approved by Commander, Proposed rule. courier deliveries. The current disruption at the Library of Congress to Coast Guard Sector Maryland-National SUMMARY: The Copyright Royalty Judges Capital Region with a commissioned, both mail processing and acceptance of propose to amend regulations governing courier deliveries because of the warrant, or petty officer on board and the filing of claims to royalty fees COVID–19 pandemic demonstrates the displaying a Coast Guard ensign. collected under compulsory license to risk to claims processing of that Participant means all persons and require that all claims be filed dependency. vessels registered with the event electronically through the Copyright sponsor as participating in the Thunder Royalty Board’s (CRB) electronic filing In order to eliminate the need for on the Choptank or otherwise system (eCRB). The Judges solicit resource-intensive manual processing of designated by the event sponsor as comments on the proposed rule. paper claims and to mitigate the risk to having a function tied to the event. DATES: Comments are due no later than CRB operations of a disruption to (c) Regulations. (1) Except for vessels June 5, 2020. normal mail and courier delivery, the already at berth, all non-participants are Judges propose to amend 37 CFR part prohibited from entering, transiting ADDRESSES: You may send comments, identified by docket number 20–CRB– 360 to require that all claims be filed through, anchoring in, or remaining online through eCRB. within the regulated area described in 0006–RM, online through eCRB at paragraph (a) of this section unless https://app.crb.gov. List of Subjects in 37 CFR Part 360 authorized by the COTP Maryland- Instructions: All submissions received National Capital Region or PATCOM. must include the Copyright Royalty Administrative practice and (2) To seek permission to enter, Board name and the docket number for procedure, Cable royalties, Claims, contact the COTP Maryland-National this rulemaking. All comments received Copyright, Electronic filing, Satellite Capital Region at telephone number will be posted without change to eCRB royalties. at https://app.crb.gov, including any 410–576–2693 or on Marine Band Proposed Regulations Radio, VHF–FM channel 16 (156.8 personal information provided. MHz) or the PATCOM on Marine Band Docket: For access to the docket to For the reasons set forth in the Radio, VHF–FM channel 16 (156.8 read background documents or preamble, and under the authority of MHz). Those in the regulated area must comments received, go to eCRB at chapter 8, title 17, United States Code, comply with all lawful orders or https://app.crb.gov and perform a case the Copyright Royalty Judges propose to directions given to them by the COTP search for docket 20–CRB–0006–RM. amend part 360 of Title 37 of the Code Maryland-National Capital Region or FOR FURTHER INFORMATION CONTACT: of Federal Regulations as follows: PATCOM. Anita Blaine, CRB Program Specialist, at (3) The COTP Maryland-National 202–707–7658 or [email protected]. 1 For both cable and satellite claims, the CRB Capital Region will provide notice of the SUPPLEMENTARY INFORMATION: In 2017, received approximately 20 backup paper claims— regulated area through advanced notice the CRB deployed its electronic filing i.e., claims filed in paper form that are duplicates of claims filed in electronic form. The practice of via Fifth Coast Guard District Local and case management system, eCRB, filing backup paper claims is neither necessary nor Notice to Mariners, broadcast notice to and began accepting claims to encouraged by the CRB. mariners, and on-scene official patrols. compulsory license royalties 2 The CRB received four backup paper claims.

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SUBCHAPTER C—SUBMISSION OF § 360.5 [Removed] § 360.30 Amendment of claims. ROYALTY CLAIMS ■ 4. Remove § 360.5. * * * All Notices of Amendment must be filed online through eCRB. PART 360—FILING OF CLAIMS TO Subpart B—Digital Audio Recording ■ 9. Amend § 360.31 by adding the ROYALTY FEES COLLECTED UNDER Devices and Media (DART) Royalty sentence ‘‘All Notices of Withdrawal of COMPULSORY LICENSE Claims Claim(s) must be filed online through eCRB.’’ at the end of the paragraph to ■ 1. The authority citation for part 360 ■ 5. Amend § 360.22 by: read as follows: continues to read as follows: ■ a. Revising paragraph (a); ■ § 360.31 Withdrawal of claims. Authority: 17 U.S.C. 801, 803, 805. b. In paragraph (b)(2), removing the words ‘‘for claims submitted through * * * All Notices of Withdrawal of Subpart A also issued under 17 U.S.C. Claim(s) must be filed online through 111(d)(4) and 119(b)(4). eCRB’’; Subpart B also issued under 17 U.S.C. ■ c. Removing paragraph (c); eCRB. 1007(a)(1). ■ d. Redesignating paragraphs (d), (e), Dated: April 22, 2020. Subpart C also issued under 17 U.S.C. and (f) as paragraphs (c), (d), and (e) Jesse M. Feder, 111(d)(4), 119(b)(4) and 1007(a)(1). respectively; and Chief Copyright Royalty Judge. ■ Subpart A—Cable and Satellite Claims e. Revising newly redesignated [FR Doc. 2020–08926 Filed 5–5–20; 8:45 am] paragraph (d). BILLING CODE 1410–72–P § 360.3 [Amended] The revisions read as follows: ■ 2. Amend § 360.3 by: § 360.22 Form and content of claims. ■ a. In paragraph (b), removing the ENVIRONMENTAL PROTECTION words ‘‘or by mail or hand delivery in (a) Electronic filing. (1) Each claim to AGENCY accordance with § 301.2’’; DART royalty payments must be filed ■ b. Removing paragraph (d); and online using the claims filing feature of 40 CFR Part 52 ■ c. Redesignating paragraph (e) as eCRB and must contain the information required by the online form and its [EPA–R03–OAR–2020–0062; FRL–10008– paragraph (d). 86–Region 3] ■ 3. Amend § 360.4 by: accompanying instructions. ■ a. Revising paragraph (a); (2) Filers may access eCRB at https:// Air Plan Approval; Maryland; 1997 8- ■ b. Removing paragraph (b)(1)(v); app.crb.gov. The claims filing feature for Hour Ozone NAAQS Limited ■ c. Redesignating paragraph (b)(1)(vi) claims to DART royalty payments will Maintenance Plan for the Kent and as paragraph (b)(1)(v); be available only during the months of Queen Anne’s Counties Area ■ d. Revising paragraph (b)(2)(i); January and February. AGENCY: Environmental Protection ■ e. In paragraph (b)(2)(iii), removing * * * * * Agency (EPA). the words ‘‘for claims submitted (d) List of claimants. If the claim is a through eCRB’’; joint claim, it must include the name of ACTION: Proposed rule. ■ f. Removing paragraph (b)(2)(v); and each claimant participating in the joint ■ g. Redesignating paragraph (b)(2)(vi) SUMMARY: The Environmental Protection claim. Filers submitting joint claims on Agency (EPA) is proposing to approve a as paragraph (b)(2)(v). behalf of ten or fewer claimants, must The revisions read as follows: state implementation plan (SIP) revision list the name of each claimant included submitted by the State of Maryland. § 360.4 Form and content of claims. in the joint claim directly on the filed This revision pertains to the Maryland (a) Electronic filing. (1) Each filer joint claim. Filers submitting joint Department of the Environment’s (MDE) must file claims online using the claims claims on behalf of more than ten plan for maintaining the 1997 8-hour filing feature of eCRB to claim cable claimants must include an Excel ozone national ambient air quality compulsory license royalty fees or spreadsheet listing the name of each standards (NAAQS) for the Kent and satellite compulsory license royalty fees claimant included in the joint claim. Queen Anne’s Counties area. This and must provide all information * * * * * action is being taken under the Clean Air Act (CAA). required by the online form and its § 360.23 [Removed] accompanying instructions. DATES: Written comments must be ■ (2) Filers may access eCRB at https:// 6. Remove § 360.23. received on or before June 5, 2020. app.crb.gov. The claims filing feature for § 360.24 [Redesignated as § 360.23 and ADDRESSES: Submit your comments, claims to cable compulsory license Amended] identified by Docket ID No. EPA–R03– royalty fees and satellite compulsory ■ 7. Amend § 360.24 by: OAR–2020–0062 at https:// license royalty fees will be available ■ www.regulations.gov, or via email to only during the month of July. a. Redesignating § 360.24 as § 360.23; and [email protected]. For (b) * * * comments submitted at Regulations.gov, ■ b. In paragraph (b) of newly (2) * * * follow the online instructions for redesignated § 360.23, adding the words (i) With the exception of joint claims submitting comments. Once submitted, ‘‘online through eCRB’’ after the word filed by a performing rights society on comments cannot be edited or removed ‘‘notice’’. behalf of its members, a list including from Regulations.gov. For either manner the full legal name, address, and email Subpart C—Rules of General of submission, EPA may publish any address of each copyright owner whose Application comment received to its public docket. claim(s) are included in the joint claim. Do not submit electronically any Claims must include an Excel ■ 8. Amend § 360.30 by adding the information you consider to be spreadsheet containing the information sentence ‘‘All Notices of Amendment confidential business information (CBI) if the number of joint claimants is in must be filed online through eCRB.’’ at or other information whose disclosure is excess of ten. the end of the paragraph to read as restricted by statute. Multimedia * * * * * follows: submissions (audio, video, etc.) must be

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accompanied by a written comment. pre-existing 1-hour ozone NAAQS was revocation of the 1997 ozone standard, The written comment is considered the set. second maintenance plans were not official comment and should include Following promulgation of a new or required for ‘‘orphan maintenance discussion of all points you wish to revised NAAQS, EPA is required by the areas,’’ (i.e., areas like Kent and Queen make. EPA will generally not consider CAA to designate areas throughout the Anne’s Counties) that had been comments or comment contents located nation as attaining or not attaining the redesignated to attainment for the 1997 outside of the primary submission (i.e., NAAQS. On April 30, 2004, EPA NAAQS and were designated attainment on the web, cloud, or other file sharing designated the Kent and Queen Anne’s for the 2008 ozone NAAQS. Thus, states system). For additional submission Counties area as nonattainment for the with these ‘‘orphan maintenance areas’’ methods, please contact the person 1997 8-hr ozone NAAQS. 69 FR 23858. under the 1997 ozone NAAQS must identified in the FOR FURTHER Once a nonattainment area has three submit maintenance plans for the INFORMATION CONTACT section. For the years of complete, certified air quality second maintenance period. full EPA public comment policy, data that has been determined to attain As previously discussed, CAA section information about CBI or multimedia the NAAQS, and the area has met the 175A sets forth the criteria for adequate submissions, and general guidance on other criteria outlined in CAA section maintenance plans. In addition, EPA making effective comments, please visit 107(d)(3)(E),2 the state can submit a has published longstanding guidance https://www.epa.gov/dockets/ request to EPA to redesignate the area to that provides further insight on the commenting-epa-dockets. attainment. Areas that have been content of an approvable maintenance FOR FURTHER INFORMATION CONTACT: redesignated by EPA from plan, explaining that a maintenance David Talley, Planning & nonattainment to attainment are referred plan should address five elements: (1) Implementation Branch (3AD30), Air & to as ‘‘maintenance areas.’’ One of the An attainment emissions inventory; (2) Radiation Division, U.S. Environmental criteria for redesignation is to have an a maintenance demonstration; (3) a Protection Agency, Region III, 1650 approved maintenance plan under CAA commitment for continued air quality Arch Street, Philadelphia, Pennsylvania section 175A. The maintenance plan monitoring; (4) a process for verification 19103. The telephone number is (215) must demonstrate that the area will of continued attainment; and (5) a 814–2117. Mr. Talley can also be continue to maintain the standard for contingency plan.5 The 1992 Calcagni reached via electronic mail at the period extending 10 years after memo provides that states may [email protected]. redesignation, and it must contain such generally demonstrate maintenance by additional measures as necessary to SUPPLEMENTARY INFORMATION: On either performing air quality modeling ensure maintenance as well contingency December 18, 2019, MDE submitted a to show that the future mix of sources measures as necessary to assure that revision to the Maryland SIP to and emission rates will not cause a violations of the standard will be incorporate a plan for maintaining the violation of the NAAQS or by showing promptly corrected. that future emissions of a pollutant and 1997 ozone NAAQS through January 1, On December 22, 2006 (effective 2028, in accordance with CAA section its precursors will not exceed the level January 22, 2007), EPA approved a of emissions during a year when the 175A. On March 12, 2020, MDE redesignation request (and maintenance area was attaining the NAAQS (i.e., submitted a technical correction to their plan) from MDE for the Kent and Queen attainment year inventory). See Calcagni initial submittal, which included Anne’s Counties area. 71 FR 76920. In Memo at p. 9. EPA further clarified in ‘‘Appendix B—2014 Emissions accordance with section 175A(b), at the three subsequent guidance memos Inventory Methodology end of the eighth year after the effective describing ‘‘limited maintenance plans’’ Documentation.’’ This appendix had date of the redesignation, the state must (LMPs) 6 that the requirements of CAA been inadvertently omitted from the also submit a second maintenance plan section 175A could be met by original submittal. to ensure ongoing maintenance of the demonstrating that the area’s design I. Background standard for an additional 10 years. value 7 was well below the NAAQS and EPA’s final implementation rule for that the historical stability of the area’s In 1979, under section 109 of the the 2008 ozone NAAQS revoked the CAA, EPA established primary and air quality levels showed that the area 1997 ozone NAAQS and provided that was unlikely to violate the NAAQS in secondary NAAQS for ozone at 0.12 one consequence of revocation was that parts per million (ppm), averaged over the future. Specifically, EPA believes areas that had been redesignated to that if the most recent air quality design a 1-hour period. 44 FR 8202 (February attainment (i.e., maintenance areas) for 8, 1979). On July 18, 1997, EPA revised value for the area is at a level that is the 1997 NAAQS no longer needed to below 85% of the standard, or in this the primary and secondary NAAQS for submit second 10-year maintenance ozone to set the acceptable level of 3 plans under CAA section 175A(b). 5 ‘‘Procedures for Processing Requests to ozone in the ambient air at 0.08 ppm, However, in South Coast Air Quality Redesignate Areas to Attainment,’’ Memorandum averaged over an 8-hour period. 62 FR Management District v. EPA 4 (South from John Calcagni, Director, Air Quality 1 38856 (July 18, 1997). EPA set the 8- Coast II), the United States Court of Management Division, September 4, 1992 (Calcagni hour ozone NAAQS based on scientific Memo). Appeals for the District of Columbia 6 See ‘‘Limited Maintenance Plan Option for evidence demonstrating that ozone (D.C. Circuit) vacated EPA’s Nonclassifiable Ozone Nonattainment Areas’’ from causes adverse health effects at lower interpretation that, because of the Sally L. Shaver, Office of Air Quality Planning and concentrations and over longer periods Standards (OAQPS), dated November 16, 1994; ‘‘Limited Maintenance Plan Option for of time than was understood when the 2 The requirements of CAA section 107(d)(3)(E) Nonclassifiable CO Nonattainment Areas’’ from include attainment of the NAAQS, full approval Joseph Paisie, OAQPS, dated October 6, 1995; and 1 In March 2008, EPA completed another review under section 110(k) of the applicable SIP, ‘‘Limited Maintenance Plan Option for Moderate of the primary and secondary ozone standards and determination that improvement in air quality is a PM10 Nonattainment Areas’’ from Lydia Wegman, tightened them further by lowering the level for result of permanent and enforceable reductions in OAQPS, dated August 9, 2001. both to 0.075 ppm. 73 FR 16436 (March 27, 2008). emissions, demonstration that the state has met all 7 The ozone design value for a monitoring site is Additionally, in October 2015, EPA completed a applicable section 110 and part D requirements, and the 3-year average of the annual fourth-highest daily review of the primary and secondary ozone a fully approved maintenance plan under CAA maximum 8-hour average ozone concentrations. standards and tightened them by lowering the level section 175A. The design value for an ozone nonattainment area for both to 0.70 ppm. 80 FR 65292 (October 26, 3 See 80 FR 12315 (March 6, 2015). is the highest design value of any monitoring site 2015). 4 882 F.3d 1138 (D.C. Cir. 2018). in the area.

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case below 0.071 ppm, then EPA II. Summary of SIP Revision and EPA emissions in the area which is sufficient considers the state to have met the Analysis to maintain the NAAQS. The inventory section 175A requirement for a MDE’s December 18, 2019 SIP should be developed consistent with demonstration that the area will submittal outlines a plan for continued EPA’s most recent guidance. For ozone, maintain the NAAQS for the requisite maintenance of the 1997 ozone NAAQS the inventory should be based on period. Accordingly, on December 18, which addresses the criteria set forth in typical summer day’s emissions of 2019, MDE submitted an LMP for the the Calcagni Memo as follows. oxides of nitrogen (NOX) and volatile Kent and Queen Anne’s Counties area, organic compounds (VOC), the A. Attainment Emissions Inventory demonstrating that the area will precursors to ozone formation. maintain the 1997 ozone NAAQS A state should develop a comprehensive and accurate inventory Table 1 presents a summary of the through January 1, 2028, i.e., through 2014 inventories submitted in the the entire 20-year maintenance period. of actual emissions for an attainment year which identifies the level of maintenance plan.

TABLE 1—2014 TYPICAL SUMMER DAY VOC AND NOX EMISSIONS [tons/day] 8

Area Source category VOC NOX

Kent County ...... Nonroad ...... 2.49 1.23 Onroad ...... 0.42 0.96 Point Source ...... 0.04 0.23 Area Source ...... 0.82 0.05 Queen Anne’s County ...... Nonroad ...... 2.63 1.60 Onroad ...... 1.10 3.69 Point Source ...... 0.03 0.05 Area Source ...... 1.97 0.09

Total ...... 9.50 7.90

The 2014 emissions inventory was emissions are modelled by MDE using below. CAA section 175A requires a prepared by MDE and uploaded into EPA’s Motor Vehicle Emission demonstration that the area will EPA’s Emissions Inventory System (EIS) Simulator (MOVES). MDE generates continue to maintain the NAAQS for inclusion in EPA’s National nonroad mobile source emissions data throughout the duration of the requisite Emission Inventory (NEI). The inventory through the use of EPA’s maintenance period. Consistent with the addresses four anthropogenic emission NONROAD2014a model, except for prior guidance documents discussed source categories: Stationary (point) marine air and rail emissions which are previously in this document, EPA sources, stationary nonpoint (area) estimated at the county level based on believes that if the most recent DV for sources, nonroad mobile, and on-road emission factors and activity levels. EPA the area is well below the NAAQS (e.g., mobile sources. Point sources are reviewed the supporting documentation below 85%, or in this case below 0.071 stationary sources that have the 9 submitted by MDE and proposes to ppm), the section 175A demonstration potential to emit (pte) more than 100 conclude that the plan’s inventory is requirement has been met, provided that tons per year (tpy) of VOC, or more than acceptable for the purposes of a Prevention of Significant Deterioration 50 tpy of NOX, and which are required subsequent maintenance plan under requirements, any control measures to obtain an operating permit. Data are CAA section 175A(b). collected for each source at a facility already in the SIP, and any Federal and reported to MDE. Stationary area B. Maintenance Demonstration measures remain in place through the sources have relatively low emissions In order to attain the 1997 ozone end of the second 10-year maintenance individually, but due to the large NAAQS, the three-year average of the period (absent a showing consistent number of sources, cumulative fourth-highest daily average ozone with section 110(l) that such measures emissions could be significant. concentrations (design value, DV) at are not necessary to assure Examples include fuel combustion for each monitor within an area must not maintenance). Table 2 shows that the household heating. Emissions are exceed 0.08 ppm. Based on the last two DVs for the Kent and Queen estimated by using emission factors and rounding convention described in 40 Anne’s County area continue to be known variables such as population, or CFR part 50, appendix I, the standard is below 85% of the 1997 ozone number of households. On-road mobile attained if the DV is 0.084 ppm or NAAQS.10

TABLE 2—RECENT AIR QUALITY VALUES FOR KENT AND QUEEN ANNE’S COUNTIES

Design value Design value DV <0.071 Designated area years AQS site ID (DV) ppm?

Kent and Queen Anne’s Counties ...... 2015–2017 24–029–0002 0.070 Yes. 2016–2018 24–029–0002 0.069 Yes.

8 Data in Table 1 have been rounded. See Table 9 See Appendix B of MDE’s March 12, 2020 10 The 2016–2018 DV was published by EPA after 4.1–1 of MDE’s December 18, 2019 submittal for technical correction. the date of MDE’s submittal. See https:// precise data. www.epa.gov/sites/production/files/2019-07/ozone_ designvalues_20162018_final_06_28_19.xlsx.

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Additionally, states can support the to maintain an air quality network in continued implementation of the SIP demonstration of continued accordance with 40 CFR part 58, in measures for the control of NOX and maintenance by showing stable or order to verify the area’s attainment VOC which were in place prior to improving air quality trends. Several status. MDE monitors ambient ozone redesignation. These include the Tier 3 kinds of analyses can be performed by concentrations at the Millington, MD Vehicle Emissions and Control Program, states wishing to make such a showing. site (Air Quality System (AQS)) Site ID Vehicle Inspection and Maintenance One approach is to take the most recent 24–029–0002). In the December 18, 2019 Programs, and standards for various DV for the area and add the biggest submittal, Maryland committed to nonroad engines.13 increase that has been observed over the maintaining an appropriate air quality MDE’s December 18, 2019 submittal past several years. A sum that is still monitoring network, in accordance with also included a contingency plan, to be below the NAAQS would be considered part 58. MDE committed to track and implemented in the event of NAAQS a good indication of continued analyze any exceedances of the NAAQS violations in the future. MDE listed two attainment.11 Going back to the 2004– during the maintenance period. specific regulatory measures which will 2006 DV years, the largest increase in be evaluated and implemented through D. Contingency Plan DV was 0.008 ppm and occurred the promulgation of a rule in the event between the 2009–2011 (0.074 ppm) and CAA section 175A requires that each that the contingency plan is triggered. the 2010–2012 (0.082 ppm) DV years.12 maintenance plan include provisions First, MDE will consider accelerating Adding 0.008 ppm to the most recent which require the state to maintain all compliance with Code of Maryland DV of 0.069 ppm results in a sum that control measures which were in place in Regulations (COMAR) section is still below the NAAQS (0.077 ppm). the SIP prior to redesignation. 26.11.13.07 (Control of VOC Emissions Therefore, EPA believes MDE has Additionally, each maintenance plan from Portable Fuel Containers) by satisfactorily demonstrated that future must contain contingency measures creating a voluntary portable fuel violations of the NAAQS in this area are sufficient to assure that the state will container exchange program affecting unlikely. promptly correct violations of the residences and businesses. Second, NAAQS after the area is redesignated as MDE will consider lowering the C. Continued Air Quality Monitoring an attainment area. applicability threshold for industrial, and Verification of Continued MDE’s December 18, 2019 submittal commercial, and institutional (ICI) Attainment outlines its foundation control program, boiler standards under COMAR Once an area has been redesignated to which is intended to prevent violations 26.11.09.08, potentially impacting the attainment, the State remains obligated of the NAAQS. MDE committed to sources listed in Table 3.

TABLE 3—SOURCES POTENTIALLY IMPACTED BY LOWER APPLICABILITY THRESHOLDS

Queen Anne’s County Kent County

Chesapeake College ...... Washington College. Kent Narrows Waste Water Treatment Plant ...... Kent and Queen Anne’s Hospital. Queen Anne’s County Emergency Center ...... Wenger’s Feed Mill. Chesapeake Bay Bridge Maintenance and Administration Facility ...... Kent County Public Works and Roads Building. Centerville Town Hall and Sheriff’s Department ...... Monsanto-Asgrow Seeds. Queenstown Town Offices and Courthouse ...... Maryland SHA District 2 Office. County Health Department ...... Maryland State Police. County Board of Education ...... National Guard Armory. County Courthouse ...... County Courthouse. County Department of Public Works ...... Chestertown Filtration Plant. Maryland SHA Garage ...... County Schools. Maryland State Police. National Guard Armory. County Schools.

MDE’s contingency plan also includes Anne’s Counties and other stakeholders approximately twelve months to the possibility of implementing other and schedule a meeting concerning the complete any required rulemaking measures as necessary in order to return selection and implementation of processes; (6) Within twenty four the area to attainment. contingency measures; (2) Within six months of the trigger, agreed upon After the fourth ozone season weeks of the trigger, the meeting will be contingency measure will be exceedance of the 1997 NAAQS (0.08 convened; (3) Within twelve weeks of implemented in the impacted counties. ppm) at the Millington monitoring the trigger, a public meeting will be held E. Transportation Conformity station, MDE will immediately on the proposed contingency measures; recalculate the DV for that monitor. If (4) Within eighteen weeks of the trigger, Transportation conformity is required the recalculated DV exceeds the all stakeholders will convene to by section 176(c) of the CAA. NAAQS, the contingency plan will be consider public comments and finalize Conformity to a SIP means that ‘‘triggered,’’ based on the following a list of planned contingency measures; transportation activities will not schedule: (1) Within two weeks of the (5) After the list of contingency produce new air quality violations, trigger, MDE will notify Kent and Queen measures is finalized, it will take worsen existing violations, or delay

11 See https://www.epa.gov/sites/production/files/ 12 See Tables 3.1–1 and 3.2–2 of MDE’s December 13 See MDE’s December 18, 2019 submittal at pgs. 2018-11/documents/ozone_1997_naaqs_lmp_ 18, 2019 submittal found at https:// 10–12. resource_document_nov_20_2018.pdf at pgs. 6–7. www.regulations.gov, Docket ID No. EPA–R03– OAR–2020–0062.

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timely attainment of the NAAQS (CAA this document. These comments will be maintenance plan for Kent and Queen 176(c)(1)(B)). EPA’s conformity rule at considered before taking final action. Anne’s Counties, does not have tribal 40 CFR part 93 requires that implications as specified by Executive IV. Statutory and Executive Order transportation plans, programs and Order 13175 (65 FR 67249, November 9, Reviews projects conform to SIPs and establish 2000), because the SIP is not approved the criteria and procedures for Under the CAA, the Administrator is to apply in Indian country located in the determining whether or not they required to approve a SIP submission State, and EPA notes that it will not conform. The conformity rule generally that complies with the provisions of the impose substantial direct costs on tribal requires a demonstration that emissions CAA and applicable Federal regulations. governments or preempt tribal law. from the Regional Transportation Plan 42 U.S.C. 7410(k); 40 CFR 52.02(a). (RTP) and the Transportation Thus, in reviewing SIP submissions, List of Subjects in 40 CFR Part 52 Improvement Program (TIP) are EPA’s role is to approve state choices, Environmental protection, Air consistent with the motor vehicle provided that they meet the criteria of pollution control, Incorporation by emissions budget (MVEB) contained in the CAA. Accordingly, this action reference, Nitrogen dioxide, Ozone, the control strategy SIP revision or merely approves state law as meeting Volatile organic compounds. maintenance plan (40 CFR 93.101, Federal requirements and does not Dated: April 27, 2020. 93.118, and 93.124). A MVEB is defined impose additional requirements beyond Cosmo Servidio, as ‘‘that portion of the total allowable those imposed by state law. For that emissions defined in the submitted or reason, this proposed action: Regional Administrator, Region III. approved control strategy • Is not a ‘‘significant regulatory [FR Doc. 2020–09373 Filed 5–5–20; 8:45 am] implementation plan revision or action’’ subject to review by the Office BILLING CODE 6560–50–P maintenance plan for a certain date for of Management and Budget under the purpose of meeting reasonable Executive Orders 12866 (58 FR 51735, further progress milestones or October 4, 1993) and 13563 (76 FR 3821, ENVIRONMENTAL PROTECTION demonstrating attainment or January 21, 2011); AGENCY • Is not an Executive Order 13771 (82 maintenance of the NAAQS, for any 40 CFR Part 271 criteria pollutant or its precursors, FR 9339, February 2, 2017) regulatory allocated to highway and transit vehicle action because SIP approvals are [EPA–R05–RCRA–2018–0376; FRL–10008– use and emissions (40 CFR 93.101).’’ exempted under Executive Order 12866. 91–Region 5] Under the conformity rule, LMP areas • Does not impose an information may demonstrate conformity without a collection burden under the provisions Indiana: Proposed Authorization of regional emission analysis (40 CFR of the Paperwork Reduction Act (44 State Hazardous Waste Management 93.109(e)). However, because LMP areas U.S.C. 3501 et seq.); Program Revisions • are still maintenance areas, certain Is certified as not having a AGENCY: Environmental Protection aspects of transportation conformity significant economic impact on a Agency (EPA). determinations still will be required for substantial number of small entities ACTION: Proposed rule. transportation plans, programs and under the Regulatory Flexibility Act (5 projects. Specifically, for such U.S.C. 601 et seq.); SUMMARY: Indiana has applied to the • determinations, RTPs, TIPs and Does not contain any unfunded Environmental Protection Agency (EPA) transportation projects still will have to mandate or significantly or uniquely for final authorization of changes to its demonstrate that they are fiscally affect small governments, as described hazardous waste program under the constrained (40 CFR 93.108), meet the in the Unfunded Mandates Reform Act Resource Conservation and Recovery criteria for consultation (40 CFR 93.105 of 1995 (Public Law 104–4); • Act (RCRA), as amended. EPA has and 40 CFR 93.112) and transportation Does not have Federalism reviewed Indiana’s application and has control measure implementation in the implications as specified in Executive determined that these changes satisfy all conformity rule provisions (40 CFR Order 13132 (64 FR 43255, August 10, requirements needed to qualify for final 93.113). Additionally, conformity 1999); • authorization. Therefore, we are determinations for RTPs and TIPs must Is not an economically significant proposing to authorize the State’s be determined no less frequently than regulatory action based on health or changes. EPA seeks public comment every four years, and conformity of safety risks subject to Executive Order prior to taking final action. transportation plan and TIP 13045 (62 FR 19885, April 23, 1997); amendments and transportation projects • Is not a significant regulatory action DATES: Comments must be received on is demonstrated in accordance with the subject to Executive Order 13211 (66 FR or before June 22, 2020. timing requirements specified in 40 CFR 28355, May 22, 2001); ADDRESSES: Submit your comments by 93.104. In addition, for projects to be • Is not subject to requirements of one of the following methods: approved, they must come from a Section 12(d) of the National • Federal eRulemaking Portal: currently conforming RTP and TIP (40 Technology Transfer and Advancement https://www.regulations.gov. Follow the CFR 93.114 and 93.115). Act of 1995 (15 U.S.C. 272 note) because on-line instructions for submitting application of those requirements would comments. III. Proposed Action be inconsistent with the CAA; and • Email: [email protected]. EPA’s review of MDE’s December 18, • Does not provide EPA with the Instructions: EPA must receive your 2019 submittal and March 12, 2020 discretionary authority to address, as comments by June 22, 2020. Direct your technical correction indicates they meet appropriate, disproportionate human comments to Docket ID Number EPA– CAA section 175A and all applicable health or environmental effects, using R05–RCRA–2018–0376. EPA’s policy is CAA requirements. EPA is proposing to practicable and legally permissible that all comments received will be approve the LMP for Kent and Queen methods, under Executive Order 12898 included in the public docket without Anne’s Counties as a revision to the (59 FR 7629, February 16, 1994). change and may be made available Maryland SIP. EPA is soliciting public In addition, this proposed rule, online at www.regulations.gov, comments on the issues discussed in pertaining Maryland’s limited including any personal information

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provided, unless the comment includes maintain a hazardous waste program enforcement authority and information claimed to be Confidential that is equivalent to, consistent with, responsibility for its State hazardous Business Information (CBI), or other and no less stringent than the Federal waste program. EPA would maintain its information whose disclosure is program. As the Federal program authorities under RCRA sections 3007, restricted by statute. Do not submit changes, states must change their 3008, 3013, and 7003, including its information that you consider to be CBI programs and ask EPA to authorize the authority to: or otherwise protected through changes. Changes to state programs may • Conduct inspections, and require www.regulations.gov, or email. The be necessary when Federal or state monitoring, tests, analyses and reports; federal www.regulations.gov website is statutory or regulatory authority is • Enforce RCRA requirements, an ‘‘anonymous access’’ system, which modified or when certain other changes including authorized State program means EPA will not know your identity occur. Most commonly, states must requirements, and suspend or revoke or contact information unless you change their programs because of permits; and • provide it in the body of your comment. changes to EPA’s regulations in 40 Code Take enforcement actions regardless If you send an email comment directly of Federal Regulations (CFR) parts 124, of whether the State has taken its own to EPA without going through 260 through 268, 270, 273, and 279. actions. www.regulations.gov, your email New Federal requirements and This action will not impose additional address will be automatically captured prohibitions imposed by Federal requirements on the regulated and included as part of the comment regulations that EPA promulgates community because the regulations for that is placed in the public docket and pursuant to the Hazardous and Solid which EPA is proposing to authorize made available on the internet. If you Waste Amendments of 1984 (HSWA) Indiana are already effective under state submit an electronic comment, EPA take effect in authorized states at the law and are not changed by today’s recommends that you include your same time that they take effect in proposed action. unauthorized states. Thus, EPA will name and other contact information in D. What happens if EPA receives implement those requirements and the body of your comment and with any comments that oppose this action? disk or CD–ROM you submit. If EPA prohibitions in Indiana, including the If EPA receives comments on this cannot read your comment due to issuance of new permits implementing proposed action, we will address all technical difficulties and cannot contact those requirements, until the State is such comments in a later final rule. You you for clarification, EPA may not be granted authorization to do so. may not have another opportunity to able to consider your comment. B. What decisions has EPA made in this comment. If you want to comment on Electronic files should avoid the use of rule? this authorization, you should do so at special characters, any form of On January 23, 2020, Indiana this time. encryption, and be free of any defects or submitted a complete program revision viruses. (For additional information application seeking authorization of E. What has Indiana previously been about EPA’s public docket, visit the EPA changes to its hazardous waste program authorized for? Docket Center homepage at that correspond to certain Federal rules Indiana initially received Final www.epa.gov/epahome/dockets.htm). promulgated between March 18, 2010 Authorization on January 31, 1986, Docket: All documents in the docket and April 8, 2015 (including RCRA effective January 31, 1986 (51 FR 3955) are listed in the www.regulations.gov, Clusters XIX through XXIV). EPA to implement the RCRA hazardous index. Although listed in the index, concludes that Indiana’s application to waste management program. We granted some information is not publicly revise its authorized program meets all authorization for changes to their available, e.g., CBI or other information of the statutory and regulatory program on October 31, 1986, effective whose disclosure is restricted by statute. requirements established under RCRA, December 31, 1986 (51 FR 39752); Certain other material, such as as set forth in RCRA section 3006(b), 42 January 5, 1988, effective January 19, copyrighted material, will be publicly U.S.C. 6926(b), and 40 CFR part 271. 1988 (53 FR 128); July 13, 1989, available only in hard copy. Publicly Therefore, EPA proposes to grant effective September 11, 1989 (54 FR available docket materials are available Indiana final authorization to operate its 29557); July 23, 1991, effective electronically in www.regulations.gov. hazardous waste program with the September 23, 1991 (56 FR 33717); July For alternative access to docket changes described in the authorization 24, 1991, effective September 23, 1991 materials, please contact the person application, and as outlined below in (56 FR 33866); July 29, 1991, effective FOR FURTHER identified in the Section F of this document. Indiana has September 27, 1991 (56 FR 35831); July INFORMATION CONTACT section. responsibility for permitting treatment, 30, 1991, effective September 30, 1991 FOR FURTHER INFORMATION CONTACT: Jean storage, and disposal facilities within its (56 FR 36010); August 20, 1996, Gromnicki, Indiana Regulatory borders (except in Indian country) and effective October 21, 1996 (61 FR Specialist, U.S. EPA Region 5, LL–17J, for carrying out the aspects of the RCRA 43018); September 1, 1999, effective 77 West Jackson Boulevard, Chicago, program described in its revised November 30, 1999 (64 FR 47692); Illinois 60604, (312) 886–6162, email: program application, subject to the January 4, 2001 effective January 4, 2001 [email protected]. The EPA limitations of HSWA, as discussed (66 FR 733); December 6, 2001 effective Region 5 office is open from 9:00 a.m. above. December 6, 2001 (66 FR 63331); to 4:00 p.m., Monday through Friday, October 29, 2004 (69 FR 63100) effective C. What is the effect of this proposed excluding Federal holidays and facility October 29, 2004; November 23, 2005 authorization decision? closures due to COVID–19. (70 FR 70740) effective November 23, SUPPLEMENTARY INFORMATION: If Indiana is authorized for the 2005; and June 6, 2013 (78 FR 33986) changes described in Indiana’s effective June 6, 2013. A. Why are revisions to state programs authorization application, these changes necessary? will become part of the authorized State F. What changes are we proposing with States that have received final hazardous waste program, and will today’s action? authorization from EPA under RCRA therefore be federally enforceable. On January 23, 2020, Indiana section 3006(b), 42 U.S.C. 6926(b), must Indiana will continue to have primary submitted a final complete program

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revision application, seeking of written comments that oppose this satisfy all of the requirements necessary authorization of changes to its action, that Indiana’s hazardous waste to qualify for final authorization. hazardous waste management program program revisions are equivalent to, Therefore, EPA is proposing to in accordance with 40 CFR 271.21. EPA consistent with, and no less stringent authorize Indiana for the following proposes to determine, subject to receipt than the federal program, and therefore program changes:

TABLE 1—INDIANA’S ANALOGS TO THE FEDERAL REQUIREMENTS

Federal Register date and Description of federal requirement page Analogous state authority

Hazardous Waste Technical Corrections and Clarifica- March 18, 2010; 75 FR 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; tions Checklist 223. 12989 and amended on 3.1–6–1; 3.1–6–2(4); 3.1–6–2(7); 3.1–6–2(10); 3.1– June 4, 2010; 75 FR 6–3; 3.1–6–4; 3.1–7–1; 3.1–7–2(4); 3.1–8–1; 3.1–8– 31716. 2(1); 3.1–8–2 (7); 3.1–8–4; 3.1–9–1; 3.1–9–2(8); 3.1– 10–1; 3.1–10–2(11); 3.1–10–2(21); 3.1–11–1; 3.1– 11–2(3); 3.1–12–1; 3.1–12–2(10); 3.1–13–1 Effective November 5, 2016. Withdrawal of the Emission Comparable Fuel Exclusion June 15, 2010; 75 FR 329 IAC 3.1–6–1 Effective June 28, 2012. under RCRA Checklist 224. 33712. Removal of Saccharin and Its Salts from the Lists of December 17, 2010; 75 FR 329 IAC 3.1–6.1; 3.1–12–1; 3.1–12–2(10) Effective Hazardous Wastes Checklist 225. 78918. June 28, 2012. Academic Laboratories Generator Standards Technical December 20, 2010; 75 FR 329 IAC 3.1–7–1 Effective June 28, 2012. Corrections Checklist 226. 79304. Revisions of the Land Disposal Treatment Standards for June 13, 2011; 76 FR 329 IAC 3.1–12–1; 3.1–12–2(10) Effective July 3, 2015. Carbamate Wastes Checklist 227. 34147. Hazardous Waste Technical Corrections and Clarifica- April 13, 2012; 77 FR 329 IAC 3.1–6–1; 3.1–11–1 Effective July 3, 2015. tions Checklist 228. 22229. Conditional Exclusions for Solvent Contaminated Wipes July 31, 2013; 78 FR 46448 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; Checklist 229. 3.1–6–1; 3.1–6–2(13) Effective July 3, 2015. Conditional Exclusions for Carbon Dioxide Streams in January 3, 2014; 79 FR 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; Geologic Sequestration Activities Checklist 230. 350. 3.1–6–1 Effective July 3, 2015. Hazardous Waste Electronic Manifest Rule Checklist February 7, 2014; 79 FR 329 IAC 3.1–2; 3.1–3–1; 3.1–4–1(a); 3.1–4–1(b) 231. 7518. through 25.1; 3.1–7–1; 3.1–8–1; 3.1–8–2(1); 3.1–8– 2(2); 3.1–9–1; 3.1–9–2(8) Effective November 5, 2016. Revisions to the Export Provisions of the Cathode Ray June 26, 2014; 79 FR 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; Tube Rule Checklist 232. 36220. 3.1–6–1 Effective November 5, 2016. Revisions to the Definition of Solid Waste Checklist January 13, 2015; 80 FR 329 IAC 3.1–5–4; 3.1–5–4(b); 3.1–5–7(a); 3.1–5–7(b) 233A. 1694. Effective November 5, 2016. Revisions to the Definition of Solid Waste Checklist January 13, 2015; 80 FR 329 IAC 3.1–6–1; 3.1–6–2(3) Effective November 5, 233C. 1694. 2016. Revisions to the Definition of Solid Waste Checklist January 13, 2015; 80 FR 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; 233E. 1694. 3.1–6–1; 3.1–6–2(2) Effective November 5, 2016. Response to Vacaturs of the Comparable Fuels Rule April 8, 2015; 80 FR 18777 329 IAC 3.1–4–1(a); 3.1–4–1(b); 3.1–4–5 through 25.1; and the Gasification Rule Checklist 234. 3.1–6–1 Effective November 5, 2016.

Indiana is not seeking authorization cannot receive federal authorization for State law, they are not RCRA for the transfer-based exclusion, at 40 such regulations, and they are not requirements. CFR 261.4(a)(24) and (25), or the federally enforceable. There are no state requirements in the definition of legitimate recycling, at 40 EPA considers the following State program revisions Indiana seeks CFR 260.43, at this time. requirements to be more stringent than authorization for that are considered to G. Where are the revised State rules the Federal requirements: be broader in scope than the Federal different from the Federal rules? 329 IAC 3.1–6–3, because the State requirements. adds six hazardous wastes to the acute EPA cannot authorize the Federal When revised state rules differ from hazardous waste list that are not acute requirements at 40 CFR 268.5, 268.6, the Federal rules in the RCRA state hazardous wastes in 40 CFR part 261. 268.42(b), 268.44, and 270.3. Indiana authorization process, EPA determines has excluded those non-delegable 329 IAC 3.1–9–2, because the State whether the state rules are equivalent to, federal requirements. EPA will continue maintains more stringent levels for more stringent than, or broader in scope to implement those requirements. than the federal program. Pursuant to groundwater protection for several of H. Who handles permits after the final Section 3009 of RCRA, 42 U.S.C. 6929, the constituents listed in Table 1 of 40 authorization takes effect? state programs may contain CFR 264.94. requirements that are more stringent These requirements are part of When the Final Authorization takes than the federal regulations. Such more Indiana’s authorized program and are effect, Indiana will issue permits for all stringent requirements can be federally federally enforceable. the provisions for which it is authorized authorized and, once authorized, Broader-in-scope requirements do not and will administer the permits it become federally enforceable. Although become part of the authorized program issues. EPA will continue to administer the statute does not prevent states from and EPA cannot enforce them. Although any RCRA hazardous waste permits or adopting regulations that are broader in regulated entities must comply with portions of permits which EPA issues scope than the federal program, states these requirements in accordance with prior to the effective date of the

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proposed authorization until they expire Indiana’s revised hazardous waste necessary steps to eliminate drafting or are terminated. EPA will not issue program under RCRA are exempted errors and ambiguity, minimize any new permits or new portions of under Executive Order 12866. potential litigation, and provide a clear permits for the provisions listed in the Accordingly, I certify that this action legal standard for affected conduct. EPA Table above after the effective date of will not have a significant economic has complied with Executive Order the final authorization. EPA will impact on a substantial number of small 12630 (53 FR 8859, March 15, 1988) by continue to implement and issue entities under the Regulatory Flexibility examining the takings implications of permits for HSWA requirements for Act (5 U.S.C. 601 et seq.). Because this this action in accordance with the which Indiana is not yet authorized. action proposes to authorize pre- ‘‘Attorney General’s Supplemental EPA has the authority to enforce state- existing requirements under State law Guidelines for the Evaluation of Risk issued permits after the State is and does not impose any additional and Avoidance of Unanticipated authorized. enforceable duty beyond that required Takings’’ issued under the executive by State law, it does not contain any I. How does today’s action affect Indian order. This action does not impose an unfunded mandate or significantly or country (18 U.S.C. 1151) in Indiana? information collection burden under the uniquely affect small governments, as Indiana is not authorized to carry out described in the Unfunded Mandates provisions of the Paperwork Reduction its hazardous waste program in Indian Reform Act of 1995 (2 U.S.C. 1531– Act of 1995 (44 U.S.C. 3501 et seq.). country within the State, which 1538). For the same reason, this action ‘‘Burden’’ is defined at 5 CFR 1320.3(b). includes: also does not significantly or uniquely Executive Order 12898 (59 FR 7629, • All lands within the exterior affect the communities of tribal February 16, 1994) establishes federal boundaries of Indian reservations governments, as specified by Executive executive policy on environmental within or abutting the State of Indiana; Order 13175 (65 FR 67249, November 9, justice. Its main provision directs • Any land held in trust by the U.S. 2000). This action will not have federal agencies, to the greatest extent for an Indian tribe; and practicable and permitted by law, to • substantial direct effects on the states, Any other land, whether on or off on the relationship between the national make environmental justice part of their an Indian reservation, that qualifies as government and the states, or on the mission by identifying and addressing, Indian country. distribution of power and as appropriate, disproportionately high Therefore, this action has no effect on responsibilities among the various and adverse human health or Indian country. EPA retains jurisdiction levels of government, as specified in environmental effects of their programs, over Indian country and will continue Executive Order 13132 (64 FR 43255, to implement and administer the RCRA policies, and activities on minority August 10, 1999), because it merely program on these lands. populations and low-income proposes to authorize State populations in the United States. J. What is codification and will EPA requirements as part of the State RCRA Because this action proposes codify Indiana’s hazardous waste hazardous waste program without authorization of pre-existing State rules program as proposed in this rule? altering the relationship or the which are at least equivalent to, and no Codification is the process of placing distribution of power and less stringent than existing federal citations and references to the State’s responsibilities established by RCRA. requirements, and imposes no This action also is not subject to statutes and regulations that comprise additional requirements beyond those Executive Order 13045 (62 FR 19885, the State’s authorized hazardous waste imposed by State law, and there are no April 23, 1997), because it is not program into the Code of Federal anticipated significant adverse human economically significant and it does not Regulations. EPA does this by adding health or environmental effects, this those citations and references to the make decisions based on environmental health or safety risks. This action is not proposed rule is not subject to Executive authorized State rules in 40 CFR part Order 12898. 272. EPA is not proposing to codify the subject to Executive Order 13211, authorization of Indiana’s changes at ‘‘Actions Concerning Regulations That List of Subjects in 40 CFR Part 271 this time. However, EPA reserves the Significantly Affect Energy Supply, ability to amend 40 CFR part 272, Distribution, or Use’’ (66 FR 28355, May Environmental protection, subpart P for the authorization of 22, 2001) because it is not a significant Administrative practice and procedure, Indiana’s program changes at a later regulatory action under Executive Order Confidential business information, date. 12866. Hazardous waste, Hazardous waste Under RCRA section 3006(b), EPA transportation, Indian lands, K. Statutory and Executive Order grants a state’s application for Intergovernmental relations, Penalties, Reviews authorization as long as the state meets Reporting and recordkeeping The Office of Management and Budget the criteria required by RCRA. It would requirements. (OMB) has exempted this action from thus be inconsistent with applicable law Authority: This action is issued under the the requirements of Executive Order for EPA, when it reviews a state authority of sections 2002(a), 3006, and 12866 (58 FR 51735, October 4, 1993) authorization application, to require the 7004(b) of the Solid Waste Disposal Act as and 13563 (76 FR 3821, January 21, use of any particular voluntary amended, 42 U.S.C. 6912(a), 6926, and 2011). This action proposes to authorize consensus standard in place of another 6974(b). State requirements for the purpose of standard that otherwise satisfies the RCRA section 3006 and imposes no requirements of RCRA. Thus, the Dated: April 29, 2020. additional requirements beyond those requirements of section 12(d) of the Kurt Thiede, imposed by State law. Therefore, this National Technology Transfer and Regional Administrator, Region 5. action is not subject to review by OMB. Advancement Act of 1995 (15 U.S.C. [FR Doc. 2020–09548 Filed 5–5–20; 8:45 am] This action is not an Executive Order 272 note) do not apply. As required by BILLING CODE 6560–50–P 13771 (82 FR 9339, February 3, 2017) section 3 of Executive Order 12988 (61 regulatory action because actions such FR 4729, February 7, 1996), in as today’s proposed authorization of proposing this rule, EPA has taken the

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SURFACE TRANSPORTATION BOARD network, while also providing received, the Board is issuing this compensation to rail carriers for the SNPRM to invite comment on certain 49 CFR Chapter X expense incurred when rail cars are modifications and additions to the [Docket No. EP 759] unduly detained beyond a specified proposed requirements for minimum period of time (i.e., ‘‘free time’’) for information to be included on or with Demurrage Billing Requirements loading and unloading. See Pa. R.R. v. Class I carriers’ demurrage invoices, as Kittaning Iron & Steel Mfg. Co., 253 U.S. discussed in more detail below.6 AGENCY: Surface Transportation Board. 319, 323 (1920) (‘‘The purpose of Background ACTION: Supplemental notice of demurrage charges is to promote car proposed rulemaking. efficiency by penalizing undue This proceeding arises, in part, as a detention of cars.’’); 49 CFR1333.1; see result of the testimony and comments SUMMARY: In response to comments also 49 CFR pt. 1201, category 106. submitted in Oversight Hearing on received in the notice of proposed In the simplest demurrage case, a Demurrage & Accessorial Charges, rulemaking (NPRM) in this docket, the railroad assesses demurrage on the Docket No. EP 754. In that proceeding, Surface Transportation Board (STB or consignor (the shipper of the goods) for parties from a broad range of industries Board) invites parties, through this delays in loading cars at origin and on raised concerns about demurrage billing supplemental notice of proposed the consignee (the receiver of the goods) practices, including issues involving the rulemaking (SNPRM), to comment on for delays in unloading cars and receipt of invoices containing certain modifications and additions to returning them to the rail carrier at insufficient information. See NPRM, EP the minimum information requirements destination.3 Demurrage, however, can 759, slip op. at 5–6 (providing overview proposed in the NPRM. also involve third-party intermediaries, of comments received in Docket No. EP DATES: Comments are due by June 5, commonly known as warehousemen or 754 related to the adequacy of 2020. Reply comments are due by July terminal operators,4 that accept freight demurrage invoices). Warehousemen 6, 2020. cars for loading and unloading but have also raised concerns related to Class I ADDRESSES: Comments and replies may no property interest in the freight being carriers’ billing practices as applied to be filed with the Board via e-filing. transported. Warehousemen do not them following the Board’s adoption of Written comments and replies will be typically own the property being the final rule in Demurrage Liability, EP posted to the Board’s website at shipped (although, by accepting the 707 (STB served Apr. 11, 2014), codified www.stb.gov. cars, they could be in a position to at 49 CFR part 1333, which established facilitate or impede car supply). that a person receiving rail cars for FOR FURTHER INFORMATION CONTACT: In the NPRM, the Board proposed loading or unloading who detains the Sarah Fancher at (202) 245–0355. requirements for minimum information cars beyond the free time provided in Assistance for the hearing impaired is to be included on or with Class I the rail carrier’s governing tariff may be available through the Federal Relay carriers’ demurrage invoices and held liable for demurrage if that person Service at (800) 877–8339. proposed that the serving Class I carrier had actual notice, prior to rail car SUPPLEMENTARY INFORMATION: On be required to directly bill the shipper placement, of the demurrage tariff October 7, 2019, the Board issued a for demurrage when the shipper and establishing such liability. See NPRM, notice of proposed rulemaking to warehouseman agree to that EP 759, slip op. at 6–8 (providing propose changes to its existing arrangement and so notify the rail overview of comments received in demurrage regulations to address carrier. NPRM, EP 759, slip op. at 8–11, several issues regarding carriers’ 14–15. In response, the Board received Company (CN); Canadian Pacific Railway Company demurrage billing practices. See a significant number of comments from (CP); Corn Refiners Association (CRA); CSX Demurrage Billing Requirements 5 Transportation, Inc. (CSXT); Daniel R. Elliott; stakeholders. In light of the comments Diversified CPC International, Inc. (CPC); Dow, Inc. (NPRM), EP 759 (STB served Oct. 7, (Dow); The Fertilizer Institute (TFI); Freight Rail 2019).1 Demurrage is subject to Board 3 As the Board noted in Demurrage Liability, EP Customer Alliance; Industrial Minerals regulation under 49 U.S.C. 10702, 707, slip op. at 2 n.2, the Interstate Commerce Act, Association—North America; The Institute of Scrap which requires railroads to establish as amended by the ICC Termination Act of 1995 Recycling Industries, Inc. (ISRI); International (ICCTA), Public Law 104–88, 109 Stat. 803, does Association of Refrigerated Warehouses; reasonable rates and transportation- not define ‘‘consignor’’ or ‘‘consignee,’’ though both International Liquid Terminals Association; related rules and practices, and under terms are commonly used in the demurrage context. International Paper; International Warehouse 49 U.S.C. 10746, which requires Black’s Law Dictionary defines ‘‘consignor’’ as Logistics Association; The Kansas City Southern railroads to compute demurrage charges, ‘‘[o]ne who dispatches goods to another on Railway Company (KCS); Kinder Morgan Terminals consignment,’’ and ‘‘consignee’’ ‘‘as [o]ne to whom (Kinder Morgan); Lansdale Warehouse Company; and establish rules related to those goods are consigned.’’ Demurrage Liability, EP 707, National Association of Chemical Distributors); The charges, in a way that will fulfill the slip op. at 2 n.2 (citing Black’s Law Dictionary 327 Mosaic Company; National Coal Transportation national needs related to freight car use (8th ed. 2004)). The Federal Bills of Lading Act Association; The National Industrial Transportation and distribution and maintenance of an defines these terms in a similar manner. Id. (citing League (NITL); North American Freight Car 49 U.S.C. 80101(1) & (2)). 2 Association (NAFCA); Norfolk Southern Railway adequate car supply. Demurrage is a 4 This decision uses the terms ‘‘warehousemen’’ Company (NSR); Peabody Energy Corporation; The charge that serves principally as an and ‘‘third-party intermediaries’’ to refer to these Portland Cement Association (PCA); Private Railcar incentive to prevent undue car entities. This decision uses ‘‘rail users’’ to broadly Food and Beverage Association, Inc. (PRFBA); detention and thereby encourage the mean any person or business that sends goods by Quad, Inc.; Union Pacific Railroad Company (UP); rail or receives rail cars for loading or unloading, Valley Distributing & Storage Company; Western efficient use of rail cars in the rail regardless of whether that person has a property Coal Traffic League and Seminole Electric interest in the freight being transported. Cooperative, Inc.; and Yvette Longonje. 1 The proposed rules were published in the 5 The Board received comments and/or replies 6 In the NPRM, the Board also proposed that the Federal Register, 84 FR 55,109 (Oct. 15, 2019). from the following: American Chemistry Council serving Class I carrier be required to directly bill the 2 In Demurrage Liability, EP 707, slip op. at 15– (ACC); American Forest & Paper Association; shipper for demurrage (instead of the 16 (STB served Apr. 11, 2014), the Board clarified American Fuel & Petrochemical Manufacturers warehouseman) when the shipper and that private car storage is included in the definition (AFPM); American Iron and Steel Institute (AISI); warehouseman agree to that arrangement and so of demurrage for purposes of the demurrage American Short Line and Regional Railroad notify the rail carrier. See NPRM, EP 759, slip op. regulations established in that decision. The Board Association (ASLRRA); ArcelorMittal USA LLC at 11, 14–15. The direct-billing proposal, and the uses the same definition of demurrage in this (AM); Association of American Railroads (AAR); comments on that proposal, will be addressed in a decision. Barilla America, Inc.; Canadian National Railway separate decision.

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Docket No. EP 754 relating to information requirements, arguing that invoice, which the Board construes to warehousemen). they already provide most (or all) of the mean the billing cycle. (CPC Comments After carefully considering the required information on their web 4–5.) Class I carriers did not respond to comments and testimony in Docket No. platforms and urging the Board to this specific request. The information EP 754, the Board issued the NPRM in consider a more flexible standard. In sought by CPC is standard invoice this docket. As relevant here, the Board addition, both rail users and Class I information that would allow invoice proposed requirements for certain carriers ask the Board to clarify the recipients to easily identify the period minimum information to be included on ‘‘appropriate action’’ requirement. covered by the invoice. To assess the or with Class I carriers’ demurrage validity of demurrage charges, invoices. Specifically, the Board Discussion and Request for Comments recipients of demurrage invoices may proposed the inclusion of: In the NPRM, the Board explained need to evaluate the timing of the • The unique identifying information that the requirements proposed there charges with their own record of events, (e.g., reporting marks and number) of were: and clearer information on the billing each car involved; cycle would assist in this assessment. • intended to ensure that the recipients of the following shipment demurrage invoices will be provided Given the basic nature of the information, where applicable: sufficient information to readily assess the information, which may already be Æ The date the waybill was created; validity of those charges without having to provided by some carriers, compiling Æ the status of each car as loaded or undertake an unreasonable effort to gather the information to include it on or with empty; information that can be provided by the demurrage invoices would not appear to Æ the commodity being shipped (if railroad in the first instance, to properly be burdensome. The Board invites the car is loaded); allocate demurrage responsibility, and to comment on requiring Class I carriers to Æ the identity of the shipper, modify their behavior if their own actions led include on or with all demurrage to the demurrage charges. consignee, and/or care-of party, as invoices the billing period covered by applicable; and NPRM, EP 759, slip op. at 10. After the invoice. Æ the origin station and state of the reviewing the comments received, the Original ETA and Date and Time Cars shipment; Board is now considering modifying the Received at Interchange. Several • the dates and times of: proposed regulations at 49 CFR 1333.4 commenters identify the original ETA Æ Actual placement of each car; to require certain additional information and, if applicable, the date and time that Æ constructive placement of each car on or with demurrage invoices from cars are received at interchange, as (if applicable and different from actual Class I carriers beyond that discussed in information that would give rail users placement); the NPRM. These additions would greater visibility into how carrier-caused Æ notification of constructive include: (1) The date range (i.e., the bunching,8 which has been of concern placement to the shipper, consignee, or billing cycle) covered by the invoice; (2) to the Board,9 and other delays affect third-party intermediary (if applicable); the original estimated date and time of demurrage charges. and arrival (ETA) of each car (as established First, commenters state that, if the Æ release of each car; and original ETA were included on carriers’ • by the invoicing carrier) and the date the number of credits and debits and time each car was received at demurrage invoices, rail users could attributable to each car (if applicable). interchange (if applicable), either on or compare that ETA to the car placement NPRM, EP 759, slip op. at 9–10. The with each invoice or, alternatively, upon information in order to better recognize Board also proposed to require Class I reasonable request from the invoiced if carrier-caused problems, including carriers, prior to sending demurrage party; and (3) the date and time of each bunching, may have impacted the invoices, to take ‘‘appropriate action to car ordered in (if applicable). Finally, ensure that the demurrage charges are the Board is considering requiring that 8 Recently, the Board has described bunching as accurate and warranted, consistent with ‘‘rail car deliveries that are not reasonably timed or Class I carriers provide access to spaced.’’ See Demurrage Liability, EP 707, slip op. the purpose of demurrage.’’ NPRM, EP demurrage invoicing data in machine- 759, slip op. at 10 (footnote omitted). at 23. readable format. 9 In Docket No. EP 754, the Board invited Under the NPRM, both the minimum Below, the Board discusses these stakeholders to comment on their recent information requirements and the experiences with demurrage and accessorial charges additional items, which are in response pertaining to bunching, including bunching that ‘‘appropriate action’’ requirement would to various stakeholders’ comments, and be added in a proposed new regulation may be attributable to upstream rail carriers. See invites stakeholders to comment on Oversight Hearing on Demurrage & Accessorial at 49 CFR 1333.4. their inclusion in section 1333.4(a), the Charges, EP 754, slip op. at 3 (STB served Apr. 8, In the NPRM, EP 759, slip op. at 10, Board’s proposed regulations regarding 2019). In response, rail users across a broad range the Board invited stakeholders to of industries described issues related to bunching, requirements for demurrage invoices. In comment on the proposed rules and on including that they regularly experience demurrage addition, and as discussed below, the charges associated with bunched deliveries. See any additional information that Class I Board invites further comment on the Policy Statement on Demurrage & Accessorial Rules carriers could reasonably provide on or Board’s proposed demurrage regulations & Charges, EP 757, slip op. at 13 n.38 (STB served with demurrage invoices to help Oct. 7, 2019) (describing comments received in at section 1333.4(b), which would shippers and warehousemen effectively Docket No. EP 754 relating to bunching). Some rail require Class I carriers to take carriers in that proceeding stated that they award evaluate those invoices. In response to ‘‘appropriate action’’ to ensure that credits for bunching in some instances but did not the NPRM, the Board received a demurrage charges are accurate and describe with specificity how these credits are significant number of comments from awarded or otherwise address the concerns warranted prior to sending demurrage stakeholders. While rail users generally expressed by rail users. See id. at 13–14 (describing invoices.7 comments submitted in Docket No. EP 754). support the minimum information Billing Cycle. CPC asks the Board to Additionally, the Board provides guidance on the requirements proposed by the Board, require carriers to include on demurrage general principles it expects to consider when they identify additional information that evaluating the reasonableness of demurrage and invoices the dates covered by the they argue would allow them to accessorial rules and charges in future cases, including those that involve claims of carrier- evaluate demurrage invoices more 7 Comments on the NPRM that are not specifically caused bunching, by separate decision. See Policy effectively. Class I carriers largely discussed in this SNPRM will be considered in a Statement on Demurrage & Accessorial Rules & oppose the proposed minimum subsequent decision. Charges, EP 757 (STB served Apr. 30, 2020).

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timing of a car’s placement. (ACC to include the additional items time at which each car was received at Comments 1; Dow Comments 5–6.) With requested by commenters would add to interchange, if applicable. The Board this information, commenters assert that the ‘‘burdensome paperwork also invites comment on whether the they would know when to dispute requirements’’ that, according to CSXT, requirement that Class I carriers provide demurrage charges attributable to would be created by the NPRM. (CSXT the date and time at which each car was carriers’ actions and could verify credits Reply 2, 4.) UP contends that the date received at interchange, if applicable, when applicable. For example, ISRI and time at which rail cars were should be limited to the last interchange alleges that one Class I carrier, which received at interchange is information with the invoicing carrier. provides credits for early or late arrivals, that ‘‘only applies to a subset of The Board also recognizes, however, will occasionally replace the original shippers’ operations’’ and would not be that bunching information may not be ETA if delays occur. (ISRI Comments 9.) useful for a majority of ‘‘customers [for relevant to every invoice recipient in all ISRI contends that, if rail users have whom] the invoice acts as an end-of- circumstances. Accordingly, the Board access to the original ETA on demurrage month summary of charges.’’ (UP Reply also invites comment on whether Class invoices, they would be able to avoid 3.) 10 I carriers should instead be required to the ‘‘burdensome and unfair As discussed in the NPRM, the provide these items to the invoiced administrative process’’ of tracking purpose of the Board’s proposed rule is party upon reasonable request, but not original ETAs, thereby mitigating the to ensure that the recipients of include them on or with every risk that rail users do not receive the demurrage invoices will be provided invoice.13 A request for this information number of credits they are ‘‘entitled to sufficient information in demurrage might be reasonable when the invoiced receive.’’ (Id.) Furthermore, AFPM and invoicing so that they can more easily party has reason to believe that carrier- PRFBA argue that requiring carriers to determine the cause of demurrage caused bunching occurred and cannot provide original ETA information on charges, verify the validity of those otherwise easily access the requested demurrage invoices would encourage charges, properly allocate demurrage information. A request might not be them to apply increased scrutiny to responsibility, and modify their reasonable if a carrier already provides demurrage invoices before sending behavior if their own actions led to the the information to the invoiced party them. (AFPM Comments 6; PRFBA demurrage charges. NPRM, EP 759, slip through other means, including the Comments 1–2.) Dow reasons that this op. at 10. Based on the comments and carrier’s web-based platform, so long as additional requirement would not be replies received in response to the it is easily accessible and remains easily unreasonably burdensome for carriers NPRM, it appears that the inclusion of accessible on or with the demurrage because they already generate this the original ETA of each car (as invoice. Comment is invited on what information in the normal course of established by the invoicing carrier) and would constitute a reasonable request. business in order to account for delays the date and time at which cars are Ordered-In Date and Time. Several when assessing demurrage. (Dow received at interchange, if applicable, on commenters ask the Board to require Comments 6.) or with invoices may further these carriers to specify, if applicable, the date Second, commenters identify the date objectives by helping recipients identify and time that cars were ordered into a and time at which a delivering carrier sources of delay and carrier-caused rail user’s facility. (ACC Comments 2; received rail cars at interchange, if bunching and assess the validity of any Dow Comments 4; CPC Comments 4–5.) applicable, as useful information that resulting demurrage charges. Moreover, Dow explains that, at closed-gate would help rail users identify upstream this information appears to be readily facilities, carriers cannot place cars until carrier-caused bunching. (ACC available to carriers as it is used in the they receive approval from those Comments 2; Dow Comments 6.) ACC ordinary course of business to track car facilities, at which time demurrage stops and Dow explain that delivering carriers movement and place cars.11 accruing. (Dow Comments 4 & n.4.) Both do not award demurrage credits for Accordingly, the Board invites Dow and ACC argue that ordered-in delays caused by upstream carriers and, comments on revisions to proposed information would allow rail users to without interchange information, rail section 1333.4 that would require Class ‘‘validate demurrage charges, alter their users cannot identify these delays I carriers to provide on or with their practices to prevent similar demurrage themselves. (ACC Comments 2; Dow demurrage invoices (1) the original ETA events, and hold railroads accountable Comments 6.) Dow argues that having of each car (as established by the for railroad-caused delays.’’ (ACC interchange information would allow invoicing carrier); 12 and (2) the date and Comments 2; see also Dow Comments rail users to calculate the transit time on 4.) Dow acknowledges that many rail an upstream carrier’s line and credibly 10 NSR also indicates that its web platform does users would have ordered-in approach the upstream carrier about not provide users with information about ‘‘bunching events’’ because they are subjective, should be generated promptly following assuming responsibility for any though it is unclear precisely what type of bunching demurrage it causes. (Dow Comments interchange or release of shipment to the invoicing information NSR is referencing here. (NSR Reply 1.) carrier and be based on the first movement of the 6.) Dow contends that this requirement 11 See CSXT Reply 4 (explaining that it already invoicing carrier. would not be unreasonably burdensome provides this information on its web platform). 13 Many commenters support requiring Class I for carriers since they must generate this 12 The Board also invites comment on how to carriers to provide supporting information, upon information already in order to account define ‘‘original ETA,’’ which was not defined by request from the invoiced party, to help recipients commenters, and whether the original ETA may verify that the demurrage charges are accurate and for delays on joint-line shipments. (Id. differ depending on whether the rail car is loaded warranted. While these commenters’ suggestions for at 7.) or empty. The Board notes that NSR’s current tariff information that should be available upon request Several Class I carriers briefly states the following with respect to original ETA: vary in scope, they all ask that invoice recipients reference these proposed additions in ‘‘Following interchange or release of shipment and be allowed to request information that can provide their replies, generally suggesting that it complete billing to final destination, the first more visibility into bunching. (See, e.g., Kinder reported movement on [NSR] will generate the NSR Morgan Comments 14; AISI Comments 9–10; AM is unnecessary to require this Original Estimated Time of Availability (ETA). Comments 6; ISRI Reply 13.) In response to one of information on invoices. For example, Though the time of availability may change during these comments, NSR argues that providing specific CSXT states that its web platform transit due to delays or advances en route, it is the information upon request would essentially force currently provides rail users with the original NSR ETA against which an early or late the carrier to prove its case to a rail user, allow that shipment will be measured.’’ NSR Tariff 6004–D, user to still refuse to pay the railroad, and then original ETA and date and time of Item 200 (effective Sept. 1, 2019). The Board seeks require the railroad to sue and prove its case all interchange, and that requiring carriers comment on whether, for example, original ETA over again in court. (NSR Reply 3.)

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information in their own records, have easy access to the carriers’ ordered- commenters say that this information is reflecting the date on which the rail user in date and time to compare against not easily accessible, is cumbersome to believes it ordered the car. (Dow their own records, then they may be download, or is available only for a Comments 4.) However, Dow argues that better equipped to verify demurrage limited time period. (Joint Reply (ACC, requiring carriers to provide ordered-in invoices and spot any discrepancies. CFA, TFI, and NITL) 3–4; Dow Reply 5– information on demurrage invoices Because rail carriers use this 6.) would allow rail users to ‘‘quickly information in the ordinary course of Machine-readable invoicing may be ascertain whether the carrier has used business to compute demurrage one way to make the process of the correct dates for calculating invoices, compiling this information to verifying demurrage charges less demurrage’’ and validate invoices more provide it on or with demurrage burdensome for invoice recipients and efficiently. (Id.) Dow also argues that invoices would not appear to be thereby further the Board’s objective to requiring the ordered-in date and time, burdensome. Accordingly, the Board make demurrage invoices more at which the accrual of demurrage stops, invites comment on a modification to transparent and information related to would be consistent with the Board’s proposed section 1333.4 that would demurrage charges more accessible. proposal to require the date and time of require Class I carriers to provide the However, as some advocates note, constructive placement, at which the ordered-in date and time on or with electronic auditing may involve coding accrual of demurrage starts. (Id. at 5.) demurrage invoices. and require upfront costs, (Joint Reply Dow maintains that providing this Machine-Readable Data. Many (ACC, CFA, TFI, and NITL) 5), and the information would not place an commenters express a preference for Board expects that some smaller rail users would not have the resources to unreasonable burden on carriers since ‘‘machine-readable’’ data.16 Certain use machine-readable data. they already have this information commenters define this term as ‘‘a Furthermore, while NSR states that it readily available to calculate demurrage structured data file format that is open currently offers machine-readable charges. (Id.) ACC and Dow also note and capable of being easily processed by formatting,18 that one carrier already provides this a computer,’’ including ‘‘Comma the Board does not have information on demurrage invoices. Separated Values (CSV), Office Open information about how large of an (ACC Comments 2; Dow Comments 5.) XML ([XLSX]), and OpenDocument undertaking machine-readable Class I carriers did not respond Spreadsheet (ODS).’’ (Joint Reply (ACC, formatting would be for those Class I specifically to this proposed addition. CFA, TFI, and NITL) 2 n.2; see also Dow carriers that do not currently offer this Because the ordered-in date and time 19 Reply 2 n.3.) They state that ‘‘a format data format. For these reasons, the is essential to the calculation of is open if it is not limited to a specific Board invites comments on matters that demurrage at closed-gate facilities, such software platform and not subject to may be associated with modifying information would be valuable on or restrictions on re-use.’’ (Joint Reply section 1333.4 to require Class I carriers with demurrage invoices for both (ACC, CFA, TFI, and NITL) 2 n.2; see to provide machine-readable data, such demurrage accrual and verification also Dow Reply 2 n.3.) Commenters as through a machine-readable invoice, purposes. As stakeholders explain, the explain that most railroads currently a separate electronic file containing ordered-in date and time stops the provide invoices in PDF or paper machine-readable data, or a customized accrual of demurrage at closed-gate format, which necessitates manual and link so the rail user could directly facilities and also impacts how certain resource-intensive review, the burden of download the data in a machine- carriers calculate credits. For example, which may cause rail users to pay large readable format. It would be at each rail UP has stated that it issues ‘‘one credit amounts in erroneous charges that are carrier’s discretion to select how to per day from the time a rail car is difficult to detect. (Joint Reply (ACC, provide rail users access to the machine- ordered into a customer’s facility until CFA, TFI, and NITL) 2, 4–6; Dow Reply readable data. With this potential it is delivered,’’ as well as ‘‘one credit 2, 6.) They argue that, conversely, modification, the Board does not intend per rail car not supplied’’ if UP ‘‘fails to machine-readable data would allow that invoice information would be supply a rail car that the customer users to efficiently and effectively audit available to rail users only in a machine- ordered and the customer has capacity the invoices through coding and readable format that would render it within its facility to take the rail car.’’ 14 automation. (Joint Reply (ACC, CFA, inaccessible to rail users without The Board also understands that TFI, and NITL) 4–5; Dow Reply 6.) resources for coding or new upfront disagreements over the ordered-in date Commenters reference NSR as the only costs. The Board invites comment on and time may be the source of some Class I carrier that currently invoices in ways to prevent such inaccessibility. demurrage disputes. In Oversight a machine-readable format. (Joint Reply The Board also invites comment from Hearing on Demurrage & Accessorial (ACC, CFA, TFI, and NITL) 4; Dow smaller rail users on whether machine- Charges, Docket No. EP 754, rail users Reply 6.) Commenters state that many readable data would provide them with described issues with demurrage Class I carriers do not allow access to greater access to information, and on charges accruing after cars had been machine-readable data on their web- any other issues pertaining to the ordered into a facility.15 If rail users based platforms, and, to the extent that 17 into a Microsoft Excel spreadsheet for analysis 14 UP Comments 2–3, May 8, 2019, Oversight carriers do allow such access, purposes. (CP Comments, V.S. Melo 4, 6, 11, 13.) Hearing on Demurrage & Accessorial Charges, EP 18 See NSR Reply 1–2 (also requesting that ‘‘the 754. as scheduled); Packaging Corporation of America Board clarify that the information specified in the 15 Hr’g Tr. 387:2–387:17, May 22, 2019, Oversight Comments 4–5, May 8, 2019, Oversight Hearing on [NPRM] need not appear on physical demurrage Hearing on Demurrage & Accessorial Charges, EP Demurrage & Accessorial Charges, EP 754 (asserting invoices and instead need only be readily accessible 754 (Ag Processing, Inc., stating that it had that five missed switches resulted in demurrage via web-based applications in machine-readable experienced demurrage charges accruing on cars charges of $15,500 at one location in one month). format’’). that were ordered into a facility after more 16 AISI Comments 10; Joint Reply (ACC, CFA, 19 See Publ’n Requirements for Agricultural conveniently-placed cars were switched instead); TFI, and NITL) 4; Dow Reply 6; ISRI Reply 13. Prods., EP 528 (Sub-No. 1) et al., slip op. at 8 (STB Brainerd Chemical Company, Inc., Comments 4, 17 Commenters cite CSXT and UP as carriers that served June 30, 2017) (indicating that the Board did May 8, 2019, Oversight Hearing on Demurrage & allow access to machine-readable data on their web- not yet have enough information about the burden Accessorial Charges, EP 754 (describing being based platforms. (Joint Reply (ACC, CFA, TFI, and that would be associated with a requested machine- charged demurrage for two cars that had been NITL) 3; Dow Reply 6.) CP also states that it allows readability requirement for agricultural rate and previously ordered into its facility and not switched users to download some data from its web portal service information).

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accessibility of machine-readable data invoices are disputed. (KCS Comments when a rule directly regulates those for smaller rail users. Furthermore, the 6.) entities. In other words, the impact must Board invites comment on how to Whether a carrier has taken be a direct impact on small entities define ‘‘machine-readable,’’ including appropriate action to ensure that ‘‘whose conduct is circumscribed or the following definition proposed by demurrage charges are accurate and mandated’’ by the proposed rule. White commenters: ‘‘a structured data file warranted depends on the particular Eagle Coop. v. Conner, 553 F.3d 467, format that is open and capable of being facts and circumstances of a situation. 480 (7th Cir. 2009). easily processed by a computer. A Since Class I carriers utilize different In the NPRM, the Board limited its format is open if it is not limited to a invoicing systems, one carrier may be proposal to Class I carriers and does not specific software platform and not able to ensure accuracy in its invoicing modify that proposal here.22 subject to restrictions on re-use.’’ (Joint system by different methods than Accordingly, the Board again certifies Reply (ACC, CFA, TFI, and NITL) 2 n.2; another. ISRI calls upon Class I carriers under 5 U.S.C. 605(b) that this rule see also Dow Reply 2 n.3.) to explain the actions they currently would not have a significant economic Appropriate Action to Ensure take to ensure the accuracy of their impact on a substantial number of small Demurrage Charges Are Accurate and demurrage invoices, as those responses entities as defined by the RFA.23 A copy Warranted. Section 1333.4(b) of the rule could ‘‘assist the Board in determining of this decision will be served upon the proposed in the NPRM would require and clarifying steps the railroads may Chief Counsel for Advocacy, Office of Class I carriers to ‘‘take appropriate need to take to achieve this important Advocacy, U.S. Small Business action to ensure that the demurrage objective.’’ (ISRI Reply 13.) The Board Administration, Washington, DC 20416. agrees that such information would be charges are accurate and warranted’’ Paperwork Reduction Act prior to sending demurrage invoices. useful in its consideration of proposed Several commenters support this section 1333.4(b) and, accordingly, In this decision, the Board invites parties to comment on possible provision,20 but some express concern invites further comments from the Class revisions to its proposed rule that would that it will create more uncertainty and I carriers regarding what actions they require Class I carriers to include certain potential litigation over its meaning.21 currently take, and from all stakeholders additional information on or with their In order to clarify this requirement, on what actions Class I carriers demurrage invoices. In the NPRM, the certain commenters offer their own reasonably should be required to take, to Board sought comments, pursuant to the definitions for actions that would ensure that demurrage invoices are Paperwork Reduction Act (PRA), 44 qualify. For example, NAFCA suggests a accurate and warranted. U.S.C. 3501–3521, Office of revision to proposed section 1333.4(b) Conclusion Management and Budget (OMB) that would require Class I carriers to For the reasons discussed above, the regulations, 5 CFR 1320.8(d)(3), and the provide ‘‘a concise explanation of how Board invites comments on the NPRM’s Appendix, about the impact of the charge was calculated and the additions to proposed 49 CFR 1333.4 the proposed rule on the currently carrier’s reasons for the charge being discussed in this decision, as well as approved collection of the Demurrage assessed.’’ (NAFCA Comments 3.) further comment on the Board’s Liability Disclosure Requirements (OMB AFPM asks the Board to compel proposal that Class I carriers be required Control No. 2140–0021). Specifically, carriers, as part of this requirement, to to take ‘‘appropriate action to ensure the Board sought comments regarding: furnish specific types of documentation, that demurrage charges are accurate and (1) Whether the collection of such as signed and certified documents, warranted.’’ Comments will be due by information is necessary for the proper photographs, and original trip plans to June 5, 2020; replies will be due July 6, performance of the functions of the confirm the accuracy of the charges. 2020. Board, including whether the collection (AFPM Comments 7.) has practical utility; (2) the accuracy of Regulatory Flexibility Act CN expresses concern that if the the Board’s burden estimates; (3) ways proposal ‘‘were interpreted to require The Regulatory Flexibility Act of 1980 to enhance the quality, utility, and that every single invoice be manually (RFA), 5 U.S.C. 601–612, generally clarity of the information collected; and double-checked before it is sent, requires a description and analysis of (4) ways to minimize the burden of the significant additional resources would new rules that would have a significant collection of information on the have to be deployed to perform busy economic impact on a substantial respondents, including the use of work of reviewing invoices that already number of small entities. In drafting a automated collection techniques or have a high degree of accuracy,’’ which rule, an agency is required to: (1) Assess other forms of information technology, would only slow down the invoicing the effect that its regulation will have on when appropriate. process. (CN Comments 8.) CN states small entities, (2) analyze effective that it already dedicates a team of ten alternatives that may minimize a 22 Arguments that the Board should require Class employees to review the accuracy of regulation’s impact, and (3) make the II and III carriers to comply with proposed section demurrage invoices ‘‘using a highly analysis available for public comment. 1333.4 will be addressed in a future decision. structured process, with the focus being 23 For the purpose of RFA analysis, the Board Sections 601–604. In its notice of defines a ‘‘small business’’ as only including those proactive adjustment of optional proposed rulemaking, the agency must rail carriers classified as Class III carriers under 49 services invoices before they are either include an initial regulatory CFR 1201.1–1. See Small Entity Size Standards issued.’’ (Id.) Likewise, KCS states that Under the Regulatory Flexibility Act, EP 719 (STB flexibility analysis, section 603(a), or served June 30, 2016) (with Board Member it believes it already takes appropriate certify that the proposed rule would not Begeman dissenting). Class III carriers have annual action to ensure that its demurrage bills have a ‘‘significant impact on a operating revenues of $20 million or less in 1991 are accurate as evidenced by the fact substantial number of small entities,’’ dollars ($39,194,876 or less when adjusted for that ‘‘only a very small fraction’’ of the inflation using 2018 data). Class II carriers have section 605(b). Because the goal of the annual operating revenues of less than $250 million RFA is to reduce the cost to small in 1991 dollars ($489,935,956 when adjusted for 20 See, e.g., NITL Comments 10; TFI Comments 4; entities of complying with federal inflation using 2018 data). The Board calculates the CRA Comments 4; NACD Comments 4; PCA regulations, the RFA requires an agency revenue deflator factor annually and publishes the Comments 5. railroad revenue thresholds on its website. 49 CFR 21 See, e.g., NAFCA Comments 3; KCS Comments to perform a regulatory flexibility 1201.1–1; Indexing the Annual Operating Revenues 6; CSXT Comments 11; CN Comments 8. analysis of small entity impacts only of R.Rs., EP 748 (STB served June 14, 2019).

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In the NPRM, the Board estimated that invoicing protocols and procedures to appropriate action to ensure that the proposed requirements for ensure that demurrage charges are demurrage charges are accurate and minimum information to be included on accurate and warranted is ‘‘significantly warranted necessitates both a one-time or with Class I carriers’ demurrage understated’’ because the NPRM appears hourly burden to establish or modify invoices would add a total one-time to propose an ongoing review invoicing procedures and an additional hourly burden of 280 hours (or 93.3 requirement for every individual hourly burden for continuing review of hours per year as amortized over three invoice, which would require ongoing demurrage invoices, the Board declines years) because, in most cases, those time and effort. (Id. at 21.) to adjust the hourly burden for an carriers would likely need to modify CN and CSXT argue that the estimated ongoing review requirement since, as their billing systems to implement some burden to modify demurrage invoices or Class I carriers have indicated, they or all of these changes. NPRM, EP 759, establish or modify demurrage invoicing review invoices in the ordinary course slip op. at 13. The Board also estimated protocols should be larger than the of business.26 that the proposed requirement that Class Board estimated in the NPRM, but The Board welcomes comments on I carriers take appropriate action to neither provides quantitative analysis or the estimates of actual time and costs of ensure that demurrage charges are data to support any particular increases. compliance with the possible accurate and warranted would add a Further, CSXT’s estimate of ‘‘nine modifications to its proposed invoicing total one-time hourly burden of 560 months’’ and CN’s estimate of requirements for Class I carriers. hours (or 186.7 hours per year as ‘‘hundreds of hours’’ appear overstated Information pertinent to these issues is amortized over three years) because in comparison to other software included in the Appendix below and Class I carriers would likely need to programming requirements recently will be submitted to OMB for review as establish or modify appropriate estimated by the Board or proposed by required under 44 U.S.C. 3507(d) and 5 demurrage invoicing protocols and carriers. See Pet. for Rulemaking to CFR 1320.11(b). Once the comment 24 procedures. Id. Amend 49 CFR part 1250, EP 724 (Sub- period ends, comments received by the The Board received comments from No. 5), slip op. at 5–6 (STB served Sept. Board regarding the information CSXT and CN pertaining to the 30, 2019) (noting that rail carriers collection will also be forwarded to collection of this information under the estimated that it would take 80 hours to OMB for its review. PRA.25 CSXT and CN both argue that make software changes necessary for the Board’s 280-hour estimate of the proposed new performance reporting List of Subjects in 49 CFR Part 1333 time it would take Class I carriers to requirements); Waybill Sample modify their invoicing systems is too Reporting, EP 385 (Sub-No. 8), slip op. Penalties, Railroads. low for those Class I carriers that would at 13, 16 (STB served Nov. 29, 2019) It is ordered: need to make modifications to comply (proposing a one-time burden of 80 1. The Board requests comments on with the proposed rule. CSXT contends hours to implement programming revisions to its proposed rule as set forth that, if the Board requires Class I changes). Nonetheless, based on CSXT’s in this decision. Notice of this request carriers to provide the required and CN’s stated concern that Class I for comment will be published in the information on demurrage invoices carriers would collectively need more Federal Register. (rather than solely on their web than 280 hours to modify their invoicing 2. The procedural schedule is platforms), then it would need nine systems to include the proposed established as follows: Comments on months to implement a software minimum information requirements, the this decision are due by June 5, 2020; redesign. (CSXT Reply Comments 6.) Board will increase its estimate from replies are due by July 6, 2020. CN does not believe that it would need 280 hours (or 40 hours per Class I 3. A copy of this decision will be to adjust its invoicing system to comply carrier) to 560 hours (or 80 hours per served upon the Chief Counsel for with the proposed requirements; Class I carrier). The Board expects that Advocacy, Office of Advocacy, U.S. however, it argues that the time the 560 hours would cover the time necessary to implement invoicing Class I carriers would need to include Small Business Administration. system changes, including ‘‘software the possible modifications discussed in 4. This decision is effective on its development,’’ ‘‘internal training,’’ and the SNPRM, especially given that this service date. ‘‘communications with customers about information appears to be readily Decided: April 30, 2020. changes’’ could ‘‘easily encompass available to carriers in the ordinary By the Board, Board Members Begeman, hundreds of hours.’’ (CN Comments 20– course of their business. Furthermore, Fuchs, and Oberman. 21.) Moreover, CN maintains that the the Board would expect that Class I Jeffrey Herzig, Board’s 560-hour estimate of the time it carriers would only need to undertake Clearance Clerk. would take Class I carriers to establish one software redesign to incorporate or modify appropriate demurrage both the proposed minimum Note: The Appendix below will not appear information requirements discussed in in the Code of Federal Regulations. 24 The Board also provided an hourly burden the NPRM and the proposed revisions estimate for the proposal that Class I carriers discussed in the SNPRM. 26 See CSXT Comments 5, May 8, 2019, Oversight directly bill the shipper for demurrage when the Similarly, in response to CN’s Hearing on Demurrage & Accessorial Charges, EP shipper and warehouseman agree to that 754 (stating that CSXT has a team dedicated to arrangement and so notify the rail carrier. Id. contention that the Board’s estimate of reviewing demurrage matters); CN Comments 8, Comments pertaining to this hourly burden the time it would take Class I carriers to May 8, 2019, Oversight Hearing on Demurrage & estimate will be addressed in a separate decision. establish or modify appropriate Accessorial Charges, EP 754 (stating that invoices 25 Additionally, ASLRRA argues that the Board’s demurrage invoicing protocols and go through ‘‘internal validating processes that collection of information under the PRA is deficient include both system and manual processes to because it does not address the hourly burdens on procedures is ‘‘significantly validate that the charges are accurate’’); BNSF Class II and Class III carriers, should the proposed understated,’’ the Board will increase its Railway Company Comments 6, May 8, 2019, rule be extended to them. (ASLRRA Comments 4.) estimate from 560 hours (or 80 hours Oversight Hearing on Demurrage & Accessorial However, such a discussion in the NPRM would per Class I carrier) to 840 hours (or 120 Charges, EP 754 (stating that ‘‘BNSF independently have been unnecessary because the proposed rule undertakes a rigorous review of demurrage pre-bills excludes Class II and Class III carriers from its hours per Class I carrier). However, with to ensure that billing is occurring in appropriate requirements. The Appendix below addresses the respect to CN’s argument that the circumstances before a bill ever leaves the burdens to those carriers for the existing collection. requirement that Class I carriers take building’’).

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Appendix Estimated Time per Response: The Total Burden Hours (annually including all estimated hourly burden for demurrage respondents): 1,896.7 hours. Consistent with Information Collection liability notices for new customers remains the existing, approved information Title: Demurrage Liability Disclosure one hour per notice. The modification sought collection, Board staff estimates that: (1) Requirements. here for certain minimum information to be Seven Class I carriers would each take on 15 OMB Control Number: 2140–0021. included on or with Class I carriers’ new customers each year (105 hours); (2) Form Number: None. demurrage invoices is an estimated each of the seven Class I carriers would Type of Review: Revision of a currently annualized one-time hourly burden— update its demurrage tariffs annually (2.3 approved collection. resulting from an adjustment to the seven hours); (3) 677 non-Class I carriers (which are Summary: As part of its continuing effort Class I carriers’ billing systems—of 80 hours already subject to the existing collection to reduce paperwork burdens, and as per railroad. The modification requiring required by the Paperwork Reduction Act of Class I carriers to take appropriate action to requirements, but which will not be subject 1995 (PRA), the Surface Transportation ensure that the demurrage invoices are to the new requirements) would each take on Board (STB or Board) gives notice that it is accurate and warranted is an estimated one new customer a year (677 hours); and (4) requesting from the Office of Management annualized one-time hourly burden of 120 each of the non-Class I carriers would update and Budget (OMB) approval for the revision hours. The modification requiring Class I its demurrage tariffs every three years (225.7 of the currently approved information carriers to directly bill the shipper for hours annualized). For the modification to collection, Demurrage Liability Disclosure demurrage when the shipper and include certain minimum information on or Requirements, OMB Control No. 2140–0021. warehouseman agree to that arrangement and with demurrage invoices, Board staff The requested revision to the currently so notify the rail carrier is an estimated estimates that, on average, each Class I carrier approved collection is necessitated by the annual hourly burden of one hour per would have a one-time burden of 80 hours NPRM (which proposed requirements for agreement.27 (560 total hours). Amortized over three years, certain minimum information to be included Frequency: On occasion. The existing this one-time burden equals 186.7 hours per on or with Class I carriers’ demurrage demurrage liability disclosure requirement is year. For the modification requiring each invoices and proposed that serving Class I triggered in two circumstances: (1) When a Class I carrier to take appropriate action to carriers be required to directly bill the shipper initially arranges with a railroad for ensure that demurrage charges are accurate shipper, instead of the warehouseman, for transportation of freight pursuant to the rail and warranted, Board staff estimates that, on demurrage when the shipper and carrier’s tariff; or (2) when a rail carrier average, each Class I carrier would have a warehouseman agree to that arrangement and changes the terms of its demurrage tariff. The one-time burden of 120 hours (840 total so notify the rail carrier) and this SNPRM modification sought here makes three hours) to establish or modify appropriate (which invites parties to comment on certain changes to the existing collection, as follows: protocols and procedures. Amortized over modifications and additions to the minimum (1) One-time adjustments to the Class I information requirements proposed in the railroads’ billing systems to (a) include three years, this one-time burden equals 280 NPRM). All other information collected by certain minimum information on or with hours per year. For the modification the Board in the currently approved demurrage invoices and (b) take appropriate requiring Class I carriers to directly bill the collection is without change from its action to ensure that the demurrage invoices shipper for demurrage when the shipper and approval, except for an update to the number are accurate and warranted; and (2) an warehouseman agree to that arrangement and of non-Class I carriers (currently expiring on annual adjustment to the Class I carriers’ so notify the rail carrier, Board staff estimates June 30, 2020). billing practices to directly bill the shipper that annually seven Class I carriers would Respondents: Freight railroads subject to for demurrage when the warehouseman and each receive 60 direct-billing agreements per the Board’s jurisdiction. the shipper agree to that arrangement and so year at one hour per agreement (420 hours). Number of Respondents: 684 (including notify the rail carrier (estimated 60 The total hourly burdens are also set forth seven Class I carriers). agreements). in the table below.

TABLE—TOTAL BURDEN HOURS [per year]

Estimated Existing Estimated one-time Estimated Existing annual update one-time burden for annual burden Total Respondents annual burden burden burden for appropriate for invoicing yearly burden (hours) additional data protocols agreement hours (hours) (hours) (hours)

7 Class I Carriers ...... 105 28 2.3 186.7 280 420 994 677 Non-Class I Carriers ...... 677 225.7 ...... 902.7

Totals ...... 782 228 186.7 280 420 1,896.7

Total ‘‘Non-hour Burden’’ Cost: There are use and distribution and maintenance of an U.S. 319, 323 (1920) (‘‘The purpose of no other costs identified. adequate car supply. Demurrage is a charge demurrage charges is to promote car Needs and Uses: Demurrage is subject to that serves principally as an incentive to efficiency by penalizing undue detention of Board regulation under 49 U.S.C. 10702, prevent undue car detention and thereby cars.’’); 49 CFR 1333.1; see also 49 CFR part which requires railroads to establish encourage the efficient use of rail cars in the 1201, category 106. reasonable rates and transportation-related rail network, while also providing Under 49 CFR 1333.3, a railroad’s ability rules and practices, and under 49 U.S.C. compensation to rail carriers for the expense to charge demurrage pursuant to its tariff is 10746, which requires railroads to compute incurred when rail cars are unduly detained conditional on its having given, prior to rail demurrage charges, and establish rules beyond a specified period of time (i.e., ‘‘free car placement, actual notice of the demurrage related to those charges, in a way that will time’’) for loading and unloading. See Pa. tariff to the person receiving rail cars for fulfill the national needs related to freight car R.R. v. Kittaning Iron & Steel Mfg. Co., 253 loading and unloading. Once a shipper

27 In a final rule decision issued on the same day one hour per agreement. See Demurrage Billing 28 In the NPRM, the Board used seven hours for as this decision, the Board increased its estimate of Requirements, EP 759, slip op. at 16–17 (STB served the existing annual update burden for Class I the time Class I carriers would need to implement Apr. 30, 2020). carriers; however, this number has been corrected direct billing from five minutes per agreement to to 2.3 hours to reflect the average over three years.

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receives a notice as to a particular tariff, billing issued simultaneously with this demurrage when the shipper and additional notices are required only when the SNPRM, the Board is amending the rule that warehouseman agree to that arrangement and tariff changes materially. The parties rely on applies to this collection of demurrage so notify the rail carrier. The collection and the information in the demurrage tariffs to disclosure requirements to require Class I use of this information by the Board enable avoid demurrage disputes, and the Board carriers to include certain minimum the Board to meet its statutory duties. uses the tariffs to adjudicate demurrage information on or with demurrage invoices, disputes that come before it. take appropriate action to ensure that [FR Doc. 2020–09684 Filed 5–5–20; 8:45 am] As described in detail in this SNPRM, the demurrage charges are accurate and BILLING CODE 4915–01–P NPRM, and the final rule relating to direct warranted, and directly bill the shipper for

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Notices Federal Register Vol. 85, No. 88

Wednesday, May 6, 2020

This section of the FEDERAL REGISTER Persons with hearing impairments DEPARTMENT OF COMMERCE contains documents other than rules or may also follow the discussion by first proposed rules that are applicable to the calling the Federal Relay Service at 1– Foreign-Trade Zones Board public. Notices of hearings and investigations, 800–877–8339 and providing the committee meetings, agency decisions and [B–24–2020] rulings, delegations of authority, filing of operator with the toll-free conference petitions and applications and agency call-in number: 1–888–204–4368 and Foreign-Trade Zone (FTZ) 7—San statements of organization and functions are conference call 2737236. Juan, Puerto Rico; Notification of Proposed Production Activity; Amgen examples of documents appearing in this Members of the public are invited to section. Manufacturing Limited make statements during the open (Pharmaceuticals), Juncos, Puerto comment period of the meeting or Rico COMMISSION ON CIVIL RIGHTS submit written comments. The comments must be received in the Amgen Manufacturing Limited Agenda and Notice of Public Meeting regional office approximately 30 days (Amgen) submitted a notification of of the North Dakota Advisory after each scheduled meeting. Written proposed production activity to the FTZ Committee comments may be mailed to the Western Board for its facility in Juncos, Puerto Rico. The notification conforming to the AGENCY: Commission on Civil Rights. Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles requirements of the regulations of the ACTION: Announcement of meetings. Street, Suite 2010, Los Angeles, CA FTZ Board (15 CFR 400.22) was received on April 28, 2020. SUMMARY: Notice is hereby given, 90012, faxed to (213) 894–3435, or Amgen already has authority to pursuant to the provisions of the rules emailed to Evelyn Bohor at ebohor@ produce pharmaceuticals within and regulations of the U.S. Commission usccr.gov. Persons who desire Subzone 7M. The current request would on Civil Rights (Commission), and the additional information may contact add a foreign status material/component Federal Advisory Committee Act Evelyn Bohor at 202–381–8915. to the scope of authority. Pursuant to 15 (FACA), that a planning meeting of the Records and documents discussed CFR 400.14(b), additional FTZ authority North Dakota Advisory Committee to during the meeting will be available for would be limited to the specific foreign- the Commission will be held by status material/component described in teleconference at 12:00 p.m. (CDT) on public viewing as they become available at https://gsageo.force.com/FACA/apex/ the submitted notification (as described Monday, May 11, 2020. The purpose of below) and subsequently authorized by the meeting is for planning of its next FACAPublicCommittee? id=a10t0000001gzl9AAA; click the the FTZ Board. civil rights project. Production under FTZ procedures ‘‘Meeting Details’’ and ‘‘Documents’’ DATES: Monday, May 11, 2020, at 12:00 could exempt Amgen from customs links. Records generated from this p.m. CDT. duty payments on the foreign-status Public Call-In Information: meeting may also be inspected and material/component used in export Conference call-in number: 1–888–204– reproduced at the Western Regional production. On its domestic sales, for 4368 and conference call 2737236. Office, as they become available, both the foreign-status material/component TDD: Dial Federal Relay Service 1– before and after the meeting. Persons noted below, Amgen would be able to 800–877–8339 and give the operator the interested in the work of this advisory choose the duty rates during customs above conference call number and committee are advised to go to the entry procedures that apply to the conference ID. Commission’s website, www.usccr.gov, pharmaceutical products in Amgen’s FOR FURTHER INFORMATION CONTACT: or to contact the Western Regional existing scope of authority (duty-free). Evelyn Bohor, at [email protected] or Office at the above phone numbers, Amgen would be able to avoid duty on by phone at (202) 376–7533. email or street address. foreign-status components which SUPPLEMENTARY INFORMATION: Interested become scrap/waste. Customs duties members of the public may listen to the Agenda also could possibly be deferred or discussion by calling the following toll- Monday, May 11, 2020, 12:00 p.m. reduced on foreign-status production free conference call-in number: 1–888– (CDT) equipment. 204–4368 and conference call 2737236. The material/component sourced Please be advised that before placing • Roll call from abroad is L-Carnosine (duty rate them into the conference call, the • Planning Next Civil Rights Project 6.5%). The request indicates that the conference call operator will ask callers • material/component is subject to special to provide their names, their Other Business duties under Section 301 of the Trade organizational affiliations (if any), and • Open Comment Act of 1974 (Section 301), depending on email addresses (so that callers may be • Adjourn the country of origin. The applicable notified of future meetings). Callers can Section 301 decisions require subject expect to incur charges for calls they Dated: May 1, 2020. merchandise to be admitted to FTZs in initiate over wireless lines, and the David Mussatt, privileged foreign status (19 CFR Commission will not refund any Supervisory Chief, Regional Programs Unit. 146.41). incurred charges. Callers will incur no [FR Doc. 2020–09660 Filed 5–5–20; 8:45 am] Public comment is invited from charge for calls they initiate over land- BILLING CODE 6335–01–P interested parties. Submissions shall be line connections to the toll-free addressed to the Board’s Executive conference call-in number. Secretary and sent to: [email protected]. The

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closing period for their receipt is June DATES: Comments must be submitted 1994; or (iii) makes a payment to a 15, 2020. within 30 days after publication of this funding mechanism to provide a A copy of the notification will be notice. financial contribution to a person, or available for public inspection in the FOR FURTHER INFORMATION CONTACT: entrusts or directs a private entity to ‘‘Reading Room’’ section of the Board’s Kristen Johnson, AD/CVD Operations, make a financial contribution, if website, which is accessible via Enforcement and Compliance, providing the contribution would www.trade.gov/ftz. International Trade Administration, normally be vested in the government For further information, contact U.S. Department of Commerce, 1401 and the practice does not differ in Juanita Chen at [email protected] Constitution Avenue NW, Washington, substance from practices normally or 202–482–1378. DC 20230; telephone: (202) 482–4793. followed by governments, and a benefit is thereby conferred.1 Dated: April 30, 2020. SUPPLEMENTARY INFORMATION: Parties should include in their Andrew McGilvray, Background comments: (1) The country which Executive Secretary. provided the subsidy; (2) the name of [FR Doc. 2020–09676 Filed 5–5–20; 8:45 am] Pursuant to section 805 of Title VIII of the Tariff Act of 1930 (the Softwood the subsidy program; (3) a brief BILLING CODE 3510–DS–P Lumber Act of 2008), the Secretary of description (no more than 3–4 Commerce is mandated to submit to the sentences) of the subsidy program; and (4) the government body or authority DEPARTMENT OF COMMERCE appropriate Congressional committees a report every 180 days on any subsidy that provided the subsidy. Foreign-Trade Zones Board provided by countries exporting Submission of Comments softwood lumber or softwood lumber As specified above, to be assured of [B–22–2020] products to the United States, including consideration, comments must be stumpage subsidies. Commerce received no later than 30 days after the Foreign-Trade Zone 139—Sierra Vista, submitted its last subsidy report on publication of this notice in the Federal Arizona; Application for December 30, 2019. As part of its newest Register. All comments must be Reorganization (Expansion of Service report, Commerce intends to include a submitted through the Federal Area) Under Alternative Site list of subsidy programs identified with eRulemaking Portal at http:// Framework; Correction sufficient clarity by the public in www.regulations.gov, Docket No. ITA– response to this notice. The Federal Register notice (85 FR 2020–0002. The materials in the docket 23506, April 28, 2020) describing the Request for Comments will not be edited to remove identifying or contact information, and Commerce application submitted by the Arizona Given the large number of countries cautions against including any Regional Economic Development that export softwood lumber and information in an electronic submission Foundation, grantee of Foreign-Trade softwood lumber products to the United that the submitter does not want Zone 139, requesting authority to States, we are soliciting public comment publicly disclosed. Attachments to expand its service area under the only on subsidies provided by countries electronic comments will be accepted in alternative site framework is corrected which had exports accounting for at Microsoft Word, Excel, or Adobe PDF as follows: least one percent of total U.S. imports of formats only. In the heading of the notice, fourth softwood lumber by quantity, as The electronic comments should be line, the location of Foreign-Trade Zone classified under Harmonized Tariff addressed to Joseph Laroski, Deputy 139 should read ‘‘Sierra Vista, Arizona.’’ Schedule of the United States (HTSUS) Assistant Secretary for Policy and Dated: April 30, 2020. codes 4407.1001, 4407.1100, 4407.1200, Negotiations, at U.S. Department of Andrew McGilvray, 4407.1905, 4407.1906, 4407.1910, Commerce, 1401 Constitution Avenue during the period July 1, 2019 through Executive Secretary. NW, Washington, DC 20230. December 31, 2019. Official U.S. import [FR Doc. 2020–09675 Filed 5–5–20; 8:45 am] data published by the United States Dated: April 22, 2020. BILLING CODE 3510–DS–P International Trade Commission’s Joseph Laroski, DataWeb indicate that four countries Deputy Assistant Secretary for Policy and (Brazil, Canada, Germany, and Sweden) Negotiations. DEPARTMENT OF COMMERCE exported softwood lumber to the United [FR Doc. 2020–09674 Filed 5–5–20; 8:45 am] International Trade Administration States during that time period in BILLING CODE 3510–DS–P amounts sufficient to account for at least Subsidy Programs Provided by one percent of U.S. imports of softwood Countries Exporting Softwood Lumber lumber products. We intend to rely on DEPARTMENT OF COMMERCE similar previous six-month periods to and Softwood Lumber Products to the International Trade Administration United States; Request for Comment identify the countries subject to future reports on softwood lumber subsidies. [A–484–803] AGENCY: Enforcement and Compliance, For example, we will rely on U.S. International Trade Administration, imports of softwood lumber and Large Diameter Welded Pipe From Department of Commerce. softwood lumber products during the Greece: Preliminary Results of SUMMARY: The Department of Commerce period January 1, 2020, through June 30, Antidumping Duty Changed (Commerce) seeks public comment on 2020, to select the countries subject to Circumstances Review any subsidies, including stumpage the next report. AGENCY: Enforcement and Compliance, subsidies, provided by certain countries Under U.S. trade law, a subsidy exists International Trade Administration, exporting softwood lumber or softwood where an authority: (i) Provides a Department of Commerce. lumber products to the United States financial contribution; (ii) provides any during the period July 1, 2019 through form of income or price support within 1 See section 771(5)(B) of the Tariff Act of 1930, December 31, 2019. the meaning of Article XVI of the GATT as amended.

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SUMMARY: The Department of Commerce Scope of the Order are provided for convenience and (Commerce) is issuing the preliminary The merchandise covered by this customs purposes, the written results of the changed circumstances order is welded carbon and alloy steel description of the scope of the order is review (CCR) of the antidumping duty line pipe (other than stainless steel dispositive. (AD) order on large diameter welded pipe), more than 406.4 mm (16 inches) Preliminary Results of Changed pipe from Greece. in nominal outside diameter (large Circumstances Review DATES: Applicable May 6, 2020. diameter welded line pipe), regardless In this changed circumstances review, FOR FURTHER INFORMATION CONTACT: of wall thickness, length, surface finish, pursuant to section 751(b) of the Tariff Brittany Bauer, AD/CVD Operations, grade, end finish, or stenciling. Large Office II, Enforcement and Compliance, Act of 1930, as amended (the Act), diameter welded pipe may be used to Commerce is considering the partial International Trade Administration, transport oil, gas, slurry, steam, or other U.S. Department of Commerce, 1401 revocation of the order on welded pipe fluids, liquids, or gases. from Greece. The Greek welded pipe Constitution Avenue NW, Washington, Large diameter welded line pipe is DC 20230; telephone: (202) 482–3860. producer Corinth requested a changed used to transport oil, gas, or natural gas circumstances review following the SUPPLEMENTARY INFORMATION: liquids and is normally produced to the initiation and preliminary partial Background American Petroleum Institute (API) revocation of the antidumping and specification 5L. Large diameter welded countervailing (CVD) duty orders on On February 21, 2020, in response to line pipe can be produced to 7 a request by Corinth Pipeworks Pipe large diameter welded pipe from India. comparable foreign specifications, In its request, Corinth included the Industry S.A. (Corinth), a Greek grades and/or standards or to producer of large diameter welded pipe public version of the domestic proprietary specifications, grades and/or producers’ request to initiate the Indian (welded pipe), Commerce published a standards, or can be non-graded notice of initiation of a changed CCRs. In the Indian CCR requests, the material. All line pipe meeting the ten domestic producers filing the circumstances review to partially revoke physical description set forth above, the antidumping duty order on welded request assert that they account for including any dual- or multiple- 8 1 ‘‘substantially all’’ of the domestic pipe from Greece. The specific types of certified/stenciled pipe with an API (or large diameter welded pipe which are production of large diameter welded comparable) welded line pipe 9 under consideration for partial pipe. In the Initiation Notice for the certification/stencil, is covered by the Greek CCR, we requested comments revocation are described in the scope of the orders. Attachment to this notice. In the related to the applicability of the ‘‘no Subject merchandise also includes interest’’ statement in the Indian CCR Initiation Notice, we requested large diameter welded line pipe that has comments from interested parties.2 In request to the Greek CCR. In response, been further processed in a third we received a submission from the March 2020, we received comments country, including but not limited to 3 domestic producers in which they from Corinth and the domestic { 4 coating, painting, notching, beveling, stated the following: ‘‘ the domestic producers, and rebuttal comments from cutting, punching, welding, or any other } Corinth.5 On April 9, 2020, we spoke producers confirm the comments made processing that would not otherwise in the CCR of the antidumping and with the domestic producers regarding remove the merchandise from the scope both this CCR and the CCRs of welded countervailing duty orders of LDWP of the order if performed in the country 10 pipe from India.6 from India.’’ of manufacture of the in-scope large We find that: (1) The ten domestic diameter welded line pipe. producers’ statement of no interest in 1 See Large Diameter Welded Pipe from Greece: Initiation of Antidumping Duty Changed Excluded from the scope of the order the AD and CVD orders with respect to Circumstances Review, 85 FR 10150 (February 21, is structural pipe, which is produced certain specific large diameter welded 2020) (Initiation Notice). only to American Society for Testing pipe products from India; (2) the 2 See Initiation Notice, 85 FR at 10151. and Materials (ASTM) standards A500, domestic producers’ statement that they 3 See Corinth’s Letter, ‘‘Changed Circumstances A252, or A53, or other relevant do not currently produce the particular Review of Large Diameter Welded Pipe from Greece—Corinth Pipeworks’ Comments and New domestic specifications, or comparable large diameter welded pipe products Factual Information for Changed Circumstances foreign specifications, grades and/or subject to this CCR request; 11 (3) the Review,’’ dated March 6, 2020 (Corinth’s standards or to proprietary domestic producers’ statement that the Comments); and Domestic Producers’ Letter, ‘‘Large specifications, grades and/or standards. investment needed for the industry to Diameter Welded Pipe from Greece: Comments on Initiation of Changed Circumstances Review,’’ Also excluded is large diameter welded dated March 6, 2020 (refiled with amended pipe produced only to specifications of 7 See Corinth’s Letter, ‘‘Large Diameter Welded bracketing on March 13, 2020) (Domestic Producers’ the American Water Works Association Pipe from Greece: Request for Changed Comments). (AWWA) for water and sewage pipe. Circumstances Review and Revocation, In Part,’’ 4 The domestic producers are American Cast Iron dated January 3, 2020 (Corinth CCR Request); and Pipe Company; Berg Steel Pipe Corp./Berg Spiral The large diameter welded line pipe Large Diameter Welded Pipe from India: Initiation Pipe Corp.; Dura-Bond Industries; Stupp that is subject to the order is currently and Expedited Preliminary Results of Antidumping Corporation; (individually and as members of the classifiable in the Harmonized Tariff Duty and Countervailing Duty Changed American Line Pipe Producers Association); Greens Schedule of the United States (HTSUS) Circumstances Reviews, 84 FR 69356 (December 18, Bayou Pipe Mill, LP; JSW Steel (USA) Inc.; Skyline 2019) (Indian CCR Initiation and Prelim). Steel; and Trinity Products LLC (collectively the under subheadings 7305.11.1030, 8 Commerce has interpreted ‘‘substantially all’’ to petitioners in the less-than-fair-value investigation) 7305.11.1060, 7305.11.5000, mean at least 85 percent of the total production of and Welspun Global Trade LLC. 7305.12.1030, 7305.12.1060, the domestic like product covered by the order. See, 5 See Corinth’s Letter, ‘‘Changed Circumstances 7305.12.5000, 7305.19.1030, e.g., Supercalendered Paper from Canada: Final Review of Large Diameter Welded Pipe from Results of Changed Circumstances Review and Greece—Corinth Pipeworks’ Rebuttal Comments,’’ 7305.19.1060, and 7305.19.5000. Revocation of Countervailing Duty Order, 83 FR dated March 20, 2020 (Corinth’s Rebuttal Merchandise currently classifiable 32268 (July 12, 2018). Comments). under subheadings 7305.31.4000, 9 See Corinth CCR Request, at Exhibit 2 and 6 See Memorandum, ‘‘AD Order on Large 7305.31.6090, 7305.39.1000 and Indian CCR Initiation and Prelim, 84 FR at 69357. 10 Diameter Welded Pipe from Greece; AD and CVD 7305.39.5000 and that otherwise meets See Domestic Producers’ Comments, at 2. Orders on Large Diameter Welded Pipe from 11 See Corinth CCR Request, at Exhibits 1 (at 84 India—Ex Parte Memorandum,’’ dated April 14, the above scope language is also FR 69357), 2 (at internal page numbers 4 and 8), 2020. covered. While the HTSUS subheadings and 4 (at internal page numbers 9–10).

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produce these products far exceeds the country subject to the orders is document must be received successfully potential benefit of such an investment, unnecessary.18 The domestic producers in its entirety in ACCESS by 5:00 p.m. given that the U.S. market for deep did not rebut Corinth’s comments. Eastern Time on the due date set forth offshore projects, i.e., the primary While the direct statement of no in this notice. Note that Commerce has market for the large diameter welded interest from the domestic producers is temporarily modified certain of its pipe product groups at issue is from the Indian welded pipe CCRs, the requirements for serving documents relatively small; 12 and (4) the domestic domestic producers have stated that containing business proprietary industry’s support for excluding the these varieties of welded pipe are not information, until May 19, 2020, unless pipe products at issue from the Greek produced domestically and that there extended.22 order, in the event that Commerce are no plans to undertake the An interested party may request a determines to treat all three orders investments needed to produce these hearing within 14 days of publication of equally, all support a preliminary 19 varieties of welded pipe. Further, this notice. Hearing requests should finding to exclude the specified there is no evidence that harm is done contain the following information: (1) products from the AD order on large to the domestic industry only by The party’s name, address, and diameter welded pipe from Greece. imports of Greek welded pipe and not telephone number; (2) the number of In its comments on the initiation of by Indian welded pipe. Accordingly, we participants; and (3) a list of the issues this review, Corinth argued that: (1) The find that the domestic producers’ to be discussed. Oral presentations at domestic industry has expressed a lack statements are equally applicable to the of interest in these products; (2) no the hearing will be limited to issues CCRs for both countries, as the lack of raised in the briefs. If a request for a party objected to the Section 232 domestic production or planned exclusion requests for these same hearing is made, Commerce intends to domestic production is true regardless hold the hearing at a date and time to products; and (3) Corinth currently of the foreign country of production. 23 produces these varieties of welded be determined. Parties should confirm Therefore, in the absence of an the date, time, and location of the pipe.13 In response, the domestic objection by any other interested producers stated that, while the partial hearing two days before the scheduled parties, and based upon the four factual date. revocation of the Indian orders would factors listed above, we preliminarily convey a benefit to the domestic find excluding those products from the Unless extended, consistent with 19 producers, it did not believe that a Greek and Indian Orders to be equally CFR 351.216(e), we intend to issue the similar domestic benefit would be appropriate. Thus, we preliminarily final results of these CCRs no later than conferred by the exclusion of the same determine that substantially all of the 270 days after the date on which these 14 products from Greek order. domestic producers of the like product reviews were initiated, or within 45 In its rebuttal comments, Corinth have no interest in the continued days of that date if all parties agree to argues that ‘‘domestic benefit’’ is not a application, in part, of the AD order on the outcome of the reviews. consideration in the law, regulation, or the same types of large diameter welded 15 Notification to Interested Parties practice of CCRs. Corinth argues that pipe from Greece. Accordingly, we are the relevant factors are: (1) The notifying the public of our intent to This notice is published in domestic industry’s statement of no revoke, in part, the AD order as it relates accordance with sections 751(b)(1) and interest in its request for CCRs of Indian to certain specific large diameter welded 777(i)(1) of the Act and 19 CFR 351.216 welded pipe; (2) the fact that the pipe products. We intend to change the and 351.221(c)(3). domestic industry does not produce scope of the AD order on large diameter Dated: April 30, 2020. these varieties of welded pipe; (3) the welded pipe from Greece by adding the fact that the domestic industry has no exclusion language provided in the Jeffrey I. Kessler, intention of producing these varieties of Attachment to this notice. Assistant Secretary for Enforcement and pipe, because the investment needed Compliance. outweighs any economic benefits due to Public Comment Attachment the small size of market for these types Interested parties may submit case of welded pipe; and (4) ten domestic briefs not later than 14 days after the Proposed Revision to the Scope of the Order producers, who account for at least 85 date of publication of this notice.20 Excluded from the scope of the percent of domestic production of Rebuttal briefs, which must be limited antidumping duty Order are large diameter welded pipe, supported the statement of to issues raised in case briefs, may be welded pipe products in the following 16 no interest. Further, Corinth pointed filed not later than seven days after the combinations of grades, outside diameters, out that in the Indian proceedings, the due date for case briefs.21 All and wall thicknesses: domestic producers inaccurately stated submissions must be filed electronically • Grade X60, X65, or X70, 18″ outside that only India, Brazil, and Germany using Enforcement and Compliance’s diameter, 0.688″ or greater wall thickness; produce the specified welded pipe in AD and CVD Centralized Electronic • Grade X60, X65, or X70, 20″ outside 17 meaningful quantities. Service System (ACCESS). ACCESS is diameter, 0.688″ or greater wall thickness; Corinth also argues that the domestic available to registered users at http:// • Grade X60, X65, X70, or X80, 22″ outside ″ producers are incorrect in their access.trade.gov. An electronically filed diameter, 0.750 or greater wall thickness; assertion that an exclusion for any other and • ″ 18 Id. at 4–6. Grade X60, X65, or X70, 24 outside 12 ″ See Corinth CCR Request at 6 and Exhibits 2 19 See Corinth CCR Request, at 6 and Exhibits 1 diameter, 0.750 or greater wall thickness. (at internal page number 4) and Exhibit 4 (at (at 84 FR 69357), 2 (at internal page numbers 4 and [FR Doc. 2020–09677 Filed 5–5–20; 8:45 am] internal page number 10). 8), and 4 (at internal page numbers 9–10). 13 BILLING CODE 3510–DS–P See Corinth’s Comments at 3–5 and Exhibits 2, 20 Commerce is exercising its discretion under 19 3, and 4. CFR 351.309(c)(1)(ii) to alter the time limit for filing 14 See Domestic Producers’ Comments at 2. of case briefs. 22 See Temporary Rule Modifying AD/CVD 15 See Corinth’s Rebuttal Comments at 2–3. 21 Commerce is exercising its discretion under 19 Service Requirements Due to COVID–19, 85 FR 16 See Corinth’s Rebuttal Comments at 3. CFR 351.309(d)(1) to alter the time limit for filing 17006 (March 26, 2020). 17 Id. at 4. of rebuttal briefs. 23 See 19 CFR 351.310(d).

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DEPARTMENT OF COMMERCE submitted within the 15-day deadline Analysis of Comments Received specified in 19 CFR 351.218(d)(1)(i). International Trade Administration The petitioners and Terphane each All issues raised in these sunset claimed interested party status under reviews are addressed in the Issues and [A–570–924, A–520–803] section 771(9)(C) of the Act as a Decision Memorandum. The issues discussed in the Issues and Decision Polyethylene Terephthalate Film, Sheet producer of the domestic like product in and Strip From the People’s Republic the United States. Memorandum include the likelihood of of China and the United Arab Emirates: On January 31 and February 3, 2020, continuation or recurrence of dumping Final Results of the Expedited Second Commerce received adequate and the magnitude of the margins likely Sunset Reviews of the Antidumping substantive responses to the Notice of to prevail if the Orders were revoked. Duty Orders Initiation from the petitioners and The Issues and Decision Memorandum Terphane, respectively, within the 30- is a public document and is on file AGENCY: Enforcement and Compliance, day deadline specified in 19 CFR electronically via Enforcement and International Trade Administration, 351.218(d)(3)(i).5 We received no Compliance’s Antidumping and Department of Commerce. substantive responses from respondent Countervailing Duty Centralized SUMMARY: As a result of these expedited interested parties with respect to either Electronic Service System (ACCESS). (120-day) sunset reviews, the of the orders covered by these sunset ACCESS is available to registered users Department of Commerce (Commerce) reviews. at http://access.trade.gov. A list of finds that revocation of the antidumping On February 24, 2020, Commerce topics discussed in the Issues and duty (AD) orders would be likely to lead notified the U.S. International Trade Decision Memorandum is included as to the continuation or recurrence of Commission (ITC) that it did not receive an appendix to this notice. In addition, dumping at the levels indicated in the an adequate substantive response from a complete version of the Issues and 6 ‘‘Final Results of Review’’ section of this respondent interested parties. As a Decision Memorandum can be accessed notice. result, pursuant to section 751(c)(3)(B) directly on the internet at http:// of the Act and 19 CFR DATES: Applicable May 6, 2020. enforcement.trade.gov/frn. The signed 351.218(e)(1)(ii)(C)(2), Commerce has and electronic version of the Issues and FOR FURTHER INFORMATION CONTACT: conducted expedited (120-day) sunset Decision Memorandum are identical in Kathryn Turlo, AD/CVD Operations, reviews of the Orders. content. Office VII, Enforcement and Compliance, International Trade Scope of the Orders Final Results of Reviews Administration, U.S. Department of The products covered by the Orders is Commerce, 1401 Constitution Avenue PET film and is currently classifiable in Pursuant to sections 751(c)(1) and NW, Washington, DC 20230; telephone: the Harmonized Tariff Schedule of the 752(c)(1) and (3) of the Act, Commerce (202) 482–3870. United States (HTSUS) under item determines that revocation of the AD SUPPLEMENTARY INFORMATION: number 3920.62.00.90. A full orders on PET film from China and the description of the scope of the Orders is UAE would be likely to lead to the Background contained in the accompanying Issues continuation or recurrence of dumping On November 10, 2008, Commerce and Decision Memorandum.7 at weighted-average dumping margins issued the Orders on polyethylene up to 76.72 percent for China and 4.05 terephthalate film, sheet, and strip (PET Terephthalate (PET) Film, Sheet, and Strip from the percent for the UAE. film) from the People’s Republic of United Arab Emirates: Notice of Intent to Participate in Sunset Review,’’ dated January 15, Administrative Protective Order China (China) and the United Arab 2020; Terphane’s Letter, ‘‘Five-Year (‘‘Sunset’’) 1 Emirates (UAE). On July 1, 2019, Review Of Antidumping Order On Polyethylene This notice also serves as the only Commerce published the Notice of Terephthalate (PET) Film, Sheet, And Strip From reminder to parties subject to Initiation of the second sunset reviews The People’s Republic of China: Notice Of Intent To administrative protective order (APO) of of the Orders pursuant to section 751(c) Participate,’’ dated January 15, 2020; and Terphane’s Letter, ‘‘Five-Year (‘‘Sunset’’) Review Of their responsibility concerning the of the Tariff Act of 1930, as amended Antidumping Order On Polyethylene Terephthalate return or destruction of proprietary (the Act).2 On January 13 and 15, 2020, (PET) Film, Sheet, And Strip from The United Arab information disclosed under APO in Commerce received notices of intent to Emirates: Notice Of Intent To Participate,’’ dated accordance with 19 CFR 351.305. January 15, 2020. participate from the petitioners 3 and Timely notification of the return or 5 See Petitioners’ Letter, ‘‘Polyethylene Terphane LLC (Terphane), destruction of APO materials or 4 Terephthalate (PET) Film, Sheet, and Strip from the respectively. Each filing was timely People’s Republic of China: Substantive Response conversion to judicial protective orders to the Notice of Initiation,’’ dated January 31, 2020; is hereby requested. Failure to comply 1 See Polyethylene Terephthalate Film, Sheet, and see also Petitioners’ Letter, ‘‘Polyethylene with the regulations and terms of an Strip from Brazil, the People’s Republic of China Terephthalate (PET) Film, Sheet, and Strip from the and the United Arab Emirates: Antidumping Duty United Arab Emirates: Substantive Response to the APO is a violation which is subject to Orders and Amended Final Determination of Sales Notice of Initiation,’’ dated January 31, 2020; and sanction. at Less Than Fair Value for the United Arab Terphane’s Letter, ‘‘Five-Year (‘‘Sunset’’) Review Of Emirates, 73 FR 66595 (November 10, 2008) (the Antidumping Orders On Polyethylene Notification to Interested Parties Orders). Terephthalate (PET) Film, Sheet, And Strip From 2 See Initiation of Five-Year (Sunset) Reviews, 85 China And The United Arab Emirates: Terphane’s We are issuing and publishing these FR 67 (January 2, 2020) (Notice of Initiation). Substantive Response,’’ dated February 3, 2020. final results and this notice in 3 The petitioners are DuPont Teijin Films; 6 See Commerce’s Letter, ‘‘Sunset Review accordance with sections 751(c), 752(c), Mitsubishi Polyester Film, Inc.; SKC, Inc.; and Initiation on January 2, 2020,’’ dated February 24, and 777(i)(1) of the Act, and 19 CFR Toray Plastics (America), Inc. 2020. 351.218. 4 See Petitioners’ Letter, ‘‘Polyethylene 7 See Memorandum, ‘‘Issues and Decision Terephthalate (PET) Film, Sheet, and Strip from the Memorandum for the Final Results of the Second China and the United Arab Emirates,’’ dated People’s Republic of China: Notice of Intent to Expedited Sunset Reviews of the Antidumping concurrently with, and hereby adopted by, this Participate in Sunset Review,’’ dated January 13, Duty Orders on Polyethylene Terephthalate Film, notice (Issues and Decision Memorandum). 2020; see also Petitioners’ Letter, ‘‘Polyethylene Sheet, and Strip from the People’s Republic of

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Dated: April 30, 2020. pursuant to section 751(c) of the Tariff discussed in the Issues and Decision Joseph Laroski, Act of 1930, as amended (the Act), Agri- Memorandum is attached as an Deputy Assistant Secretary for Policy and Fab, Inc. (domestic interested party) appendix to this notice. The Issues and Negotiations. filed with Commerce a timely and Decision Memorandum is a public complete notice of intent to participate document and is on file electronically Appendix in the sunset review,2 and a timely and via Enforcement and Compliance’s List of Topics Discussed in the Issues and adequate substantive response.3 Antidumping and Countervailing Duty Decision Memorandum Commerce did not receive a substantive Centralized Electronic Service System I. Summary response from any respondent (ACCESS). ACCESS is available to II. Background interested party. As a result, pursuant to registered users at http:// III. Scope of the Orders section 751(c)(3)(B) of the Act and 19 access.trade.gov. In addition, a complete IV. History of the Orders CFR 351.218(e)(1)(ii)(C)(2), Commerce version of the Issues and Decision V. Legal Framework conducted an expedited (120-day) Memorandum can be accessed on the VI. Discussion of the Issues 4 1. Likelihood of Continuation or sunset review of the Order. internet at http://enforcement.trade.gov/ frn/. The signed and electronic versions Recurrence of Dumping Scope of the Order 2. Magnitude of the Margin of Dumping of the Issues and Decision Likely To Prevail The merchandise covered by the order Memorandum are identical in content. VII. Final Results of Sunset Reviews is certain non-motorized tow-behind VIII. Recommendation lawn groomers, manufactured from any Final Results of Sunset Review [FR Doc. 2020–09671 Filed 5–5–20; 8:45 am] material, and certain parts thereof, from Pursuant to sections 751(c)(1), BILLING CODE 3510–DS–P China. The lawn groomers that are the 752(c)(1) and (3) of the Act, Commerce subject of this order are currently determines that revocation of the Order classifiable in the Harmonized Tariff would be likely to lead to continuation DEPARTMENT OF COMMERCE schedule of the United States or recurrence of dumping, and that the (‘‘HTSUS’’) statistical reporting numbers magnitude of the dumping margins International Trade Administration 8432.41.0000, 8432.42.0000, likely to prevail would be weighted- [A–570–939] 8432.80.0000, 8432.80.0010, average dumping margins up to 386.28 8432.90.0060, 8432.90.0081, percent. 8479.89.9496, 8479.90.9496, and Tow-Behind Lawn Groomers and Administrative Protective Orders Certain Parts Thereof From the 9603.50.0000. These HTSUS provisions People’s Republic of China: Final are given for reference and customs This notice also serves as the only Results of the Expedited Second purposes only, and the description of reminder to parties subject to Sunset Review of the Antidumping merchandise is dispositive for administrative protective order (APO) of Duty Order determining the scope of the product their responsibility concerning the included in this order.5 return or destruction of proprietary AGENCY: Enforcement and Compliance, information disclosed under APO in Analysis of Comments Received International Trade Administration, accordance with 19 CFR 351.305. Department of Commerce. A complete discussion of all issues Timely notification of the return or SUMMARY: The Department of Commerce raised in this sunset review, including destruction of APO materials, or (Commerce) finds that revocation of the the likelihood of continuation or conversion to judicial protective, orders antidumping duty (AD) order on tow- recurrence of dumping in the event of is hereby requested. Failure to comply behind lawn groomers and certain parts revocation of the Order and the with the regulations and terms of an thereof from the People’s Republic of magnitude of the dumping margins APO is a violation which is subject to China (China) would be likely to lead to likely to prevail if the Order were to be sanction. continuation or recurrence of dumping, revoked, is provided in the Notification to Interested Parties at the level indicated in the ‘‘Final accompanying Issues and Decision Results of Sunset Review’’ section of Memorandum.6 A list of the topics We are issuing and publishing these this notice. results and notice in accordance with 2 DATES: Applicable May 6, 2020. See Domestic Interested Party’s Letter, ‘‘Second sections 751(c), 752(c), and 777(i)(1) of Five-Year (‘‘Sunset’’) Review of Antidumping Duty the Act, and 19 CFR 351.218 and 19 FOR FURTHER INFORMATION CONTACT: Order on Certain Tow-Behind Lawn Groomers and Dakota Potts, AD/CVD Operations, Certain Parts Thereof from The People’s Republic CFR 351.221(c)(5)(ii). Office IV, Enforcement and Compliance, of China; Notice of Intent to Participate,’’ dated Dated: April 30, 2020. January 16, 2020. International Trade Administration, Jeffrey I. Kessler, 3 See Domestic Interested Party’s Letter, ‘‘Second U.S. Department of Commerce, 1401 Five-Year (‘‘Sunset’’) Review of Antidumping Duty Assistant Secretary for Enforcement and Constitution Avenue NW, Washington, Order on Certain Tow-Behind Lawn Groomers and Compliance. DC 20230; telephone: (202) 482–0223. Certain Parts Thereof from The People’s Republic of China; Agri-Fab’s Response to Notice of Appendix SUPPLEMENTARY INFORMATION: Initiation,’’ dated January 31, 2020 (Substantive List of Topics Discussed in the Issues and Background Response). 4 For a complete description of the background of Decision Memorandum After publication of the notice of this sunset review of the Order, see Memorandum, I. Summary initiation of this sunset review of the ‘‘Issues and Decision Memorandum for the II. Background Expedited Second Sunset Review of the III. Scope of the Order AD order on tow-behind lawn groomers Antidumping Duty Order on Certain Tow-Behind 1 IV. History of the Order and certain parts thereof from China, Lawn Groomers and Certain Parts Thereof from the People’s Republic of China,’’ dated concurrently V. Legal Framework VI. Discussion of the Issues 1 See Initiation of Five-Year (Sunset) Reviews, 85 with, and hereby adopted by, this notice (Issues and FR 67 (January 2, 2020); see also Antidumping Duty Decision Memorandum). 1. Likelihood of Continuation or Order: Certain Tow Behind Lawn Groomers and 5 The full scope of the Order is included in the Recurrence of Dumping Certain Parts Thereof from the People’s Republic of Issues and Decision Memorandum. 2. Magnitude of the Margin of Dumping China, 74 FR 38395 (August 3, 2009) (Order). 6 Id. Likely To Prevail

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VII. Final Results of Sunset Review 351.218(d)(1)(i).3 The domestic public memorandum, which is on file VIII. Recommendation interested parties claimed interested electronically via Enforcement and [FR Doc. 2020–09670 Filed 5–5–20; 8:45 am] party status under section 771(9)(C) of Compliance’s Antidumping and BILLING CODE 3510–DS–P the Act, as producers of certain solar Countervailing Duty Centralized products. Electronic Services System (ACCESS). Commerce received adequate ACCESS is available to registered users DEPARTMENT OF COMMERCE substantive responses to the Notice of at http://access.trade.gov. In addition, a Initiation from the domestic interested complete version of the Issues and International Trade Administration parties within the 30-day period Decision Memorandum can be accessed specified in 19 CFR 351.218(d)(3)(i).4 [C–570–011] directly at https:// On February 25, 2020, Commerce enforcement.trade.gov/frn/index.html. Certain Crystalline Silicon Photovoltaic notified the U.S. International Trade A list of the issues discussed in the Products From the People’s Republic Commission (ITC) that it did not receive decision memorandum is attached at the of China: Final Results of the a substantive response from respondent Appendix to this notice. The signed and 5 Expedited Sunset Review of the interested parties. In accordance with electronic versions of the Issues and Countervailing Duty Order section 751(c)(3)(B) of the Act and 19 Decision Memorandum are identical in CFR 351.218(e)(1)(ii)(C)(2), Commerce content. AGENCY: Enforcement and Compliance, conducted an expedited (120-day) International Trade Administration, sunset review of the Order on certain Final Results of Sunset Review Department of Commerce. solar products from China. Pursuant to sections 751(c)(1) and SUMMARY: As a result of this expedited Scope of the Order 752(b) of the Act, Commerce determines sunset review, the Department of that revocation of the countervailing Commerce (Commerce) finds that The products covered by the Order is certain solar products, which are duty Order on certain solar products revocation of the countervailing duty from China would be likely to lead to order on Certain Crystalline Silicon currently classifiable in the Harmonized Tariff Schedule of the United States continuation or recurrence of Photovoltaic Products (certain solar countervailable subsidies at the products) from the People’s Republic of (HTSUS) under item numbers 8501.61.0000, 8507.20.8030, following rates: 27.65 percent for Wuxi China (China) would be likely to lead to Suntech Power Co., Ltd. (Wuxi continuation or recurrence of 8507.20.8040, 8507.20.8060, 8507.20.8090, 8541.40.6020, Suntech); 33.50 percent for Changzhou countervailable subsidies as indicated 8541.40.6030 and 8501.31.8000. A full Trina Solar Energy Co., Ltd. (Trina in the ‘‘Final Results of Sunset Review’’ description of the scope of the Order is Solar); and 33.58 percent for all others. section of this notice. contained in the accompanying Issues Administrative Protective Order DATES: Applicable May 6, 2020. and Decision Memorandum.6 FOR FURTHER INFORMATION CONTACT: This notice serves as the only Kathryn Turlo, AD/CVD Operations, Analysis of Comments Received reminder to parties subject to Office VII, Enforcement and All issues raised in this review are administrative protective order (APO) of Compliance, International Trade addressed in the Issues and Decision their responsibility concerning the Administration, U.S. Department of Memorandum, including the likelihood disposition of proprietary information Commerce, 1401 Constitution Avenue of continuation or recurrence of disclosed under APO in accordance NW, Washington, DC 20230; telephone: countervailable subsidies and the net with 19 CFR 351.305. Timely written (202) 482–3870. countervailable subsidy likely to prevail notification of the destruction of APO SUPPLEMENTARY INFORMATION: if the Order were revoked. Parties can materials or conversion to judicial find a complete discussion of all issues protective order is hereby requested. Background raised in this review and the Failure to comply with the regulations On February 18, 2015, Commerce corresponding recommendations in this and terms of an APO is a violation published its CVD order on certain solar which is subject to sanction. 3 See SunPower’s Letter, ‘‘Crystalline Silicon products from China in the Federal Notification to Interested Parties 1 Photovoltaic Products from China and Taiwan: Register. On January 2, 2020, Intent to Participate in Sunset Reviews,’’ dated Commerce initiated the first sunset January 13, 2020; see also Q Cells’ Letter, Commerce is issuing and publishing review of the countervailing duty order ‘‘Crystalline Silicon Photovoltaic Products from the final results and notice in covering certain solar products from People Republic of China and Taiwan: Hanwha Q accordance with sections 751(c), 752(b), CELLS USA, Inc.’s Notice of Intent to Participate in China, pursuant to section 751(c) of the Sunset Reviews,’’ dated January 17, 2020. and 777(i)(1) of the Act and 19 CFR Tariff Act of 1930, as amended (the 4 See SunPower’s Letter, ‘‘Crystalline Silicon 351.218. 2 Act). Commerce received notices of Photovoltaic Products from China and Taiwan Dated: May 1, 2020. Sunset Reviews: Substantive Response of SPMOR,’’ intent to participate in this sunset Joseph A. Laroski Jr., review from SunPower Manufacturing dated February 3, 2020; see also Q Cells’ Letter, ‘‘Certain Crystalline Silicon Photovoltaic Products Deputy Assistant Secretary for Policy and Oregon, LLC (SunPower) and Hanwha Q from China and Taiwan, Inv. Nos. 701–TA–511 and Negotiations. CELLS USA, Inc. (Q Cells) (collectively, 731–TA–1246 and 1247 (1st Sunset Review); the domestic interested parties), within Hanwha Q CELLS USA, Inc.’s Substantive,’’ dated Appendix the 15-day period specified in 19 CFR February 3, 2020. 5 See Commerce’s Letter, ‘‘Sunset Review List of Topics Discussed in the Final Initiated on January 2, 2020,’’ dated February 25, Decision Memorandum 1 See Certain Crystalline Silicon Photovoltaic 2020. I. Summary 6 Products from the People’s Republic of China: See Memorandum, ‘‘Issues and Decision II. Background Antidumping Duty Order; and Amended Final Memorandum for the Final Results of the First III. Scope of the Order Affirmative Countervailing Duty Determination and Expedited Sunset Review of the Antidumping Duty Countervailing Duty Order, 80 FR 8592 (February Orders on Certain Crystalline Silicon Photovoltaic IV. History of the Order 18, 2015) (Order). Products from the People’s Republic of China,’’ V. Legal Framework 2 See Initiation of Five-Year (Sunset) Reviews, 85 dated concurrently with this notice (Issues and VI. Discussion of the Issues FR 67 (January 2, 2020) (Notice of Initiation). Decision Memorandum). VII. Final Results of Sunset Review

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VIII. Recommendation in which Commerce preliminarily transport oil, gas, slurry, steam, or other [FR Doc. 2020–09669 Filed 5–5–20; 8:45 am] revoked, in part, the Orders with respect fluids, liquids, or gases. BILLING CODE 3510–DS–P to certain large diameter welded pipe Large diameter welded line pipe is products with specific combinations of used to transport oil, gas, or natural gas grades, diameters and wall thicknesses. liquids and is normally produced to the DEPARTMENT OF COMMERCE These products have been incorporated American Petroleum Institute (API) into the exclusion language of the scope, specification 5L. Large diameter welded International Trade Administration below in bold. line pipe can be produced to [A–533–881; C–533–882] The petitioners, representing comparable foreign specifications, ‘‘substantially all’’ of the domestic grades and/or standards or to Large Diameter Welded Pipe From industry,4 demonstrated ‘‘good cause’’ proprietary specifications, grades and/or India: Final Results of Antidumping to conduct the CCRs less than 24 standards, or can be non-graded Duty and Countervailing Duty Changed months after the date of publication of material. All line pipe meeting the Circumstances Reviews notices of the final determinations in physical description set forth above, the investigations.5 Specifically, the including any dual- or multiple- AGENCY: Enforcement and Compliance, domestic industry does not currently certified/stenciled pipe with an API (or International Trade Administration, produce the particular large diameter comparable) welded line pipe Department of Commerce. welded pipe products subject to this certification/stencil, is covered by the SUMMARY: On December 18, 2019, the partial revocation request, and the scope of the Orders. Subject merchandise also includes Department of Commerce (Commerce) investment needed to do so far exceeds large diameter welded line pipe that has published a notice of initiation and the potential benefit of such investment. been further processed in a third expedited preliminary results of the In addition, the domestic producers country, including but not limited to changed circumstances reviews (CCR) of provided an explanation indicating that coating, painting, notching, beveling, the antidumping duty (AD) and the commercial reality has changed cutting, punching, welding, or any other countervailing duty (CVD) orders on since the Orders were put in place. large diameter welded pipe from India processing that would not otherwise In the Initiation and Preliminary which revoked, in part, these orders as remove the merchandise from the scope Results, we provided all interested they relate to certain specific large of the Orders if performed in the parties an opportunity to comment and diameter welded pipe products. country of manufacture of the in-scope to request a public hearing regarding our Commerce has adopted the scope large diameter welded line pipe. preliminary findings.6 On January 2, exclusion language in these final results. Excluded from the scope of the Orders 2020, SeAH Steel Corporation (SeAH) is structural pipe, which is produced DATES: Applicable May 6, 2020. commented on the Initiation and only to American Society for Testing FOR FURTHER INFORMATION CONTACT: Preliminary Results.7 The domestic and Materials (ASTM) standards A500, Katherine Johnson or Jaron Moore, AD/ industry submitted rebuttal comments A252, or A53, or other relevant CVD Operations, Office VIII, on January 9, 2020.8 domestic specifications, or comparable Enforcement and Compliance, Scope of the Orders foreign specifications, grades and/or International Trade Administration, standards or to proprietary U.S. Department of Commerce, 1401 The merchandise covered by these specifications, grades and/or standards. Constitution Avenue NW, Washington, Orders is welded carbon and alloy steel Also excluded is large diameter welded DC 20230; telephone: (202) 482–4929 or line pipe (other than stainless steel pipe produced only to specifications of (202) 482–3640, respectively. pipe), more than 406.4 mm (16 inches) the American Water Works Association SUPPLEMENTARY INFORMATION: in nominal outside diameter (large (AWWA) for water and sewage pipe. diameter welded line pipe), regardless Background Also excluded is large diameter welded of wall thickness, length, surface finish, pipe in the following combinations of On March 6, 2019, Commerce grade, end finish, or stenciling. Large grades, outside diameters, and wall published the AD and CVD orders on diameter welded pipe may be used to thicknesses: large diameter welded pipe from India.1 • Grade X60, X65, or X70, 18 inches On December 18, 2019, in response to Antidumping Duty and Countervailing Duty outside diameter, 0.688 inches or greater a request submitted by members of the Changed Circumstances Reviews, 84 FR 69356 wall thickness; domestic industry, including the (December 18, 2019) (Initiation and Preliminary • Grade X60, X65, or X70, 20 inches Results). petitioners from the underlying 4 outside diameter, 0.688 inches or greater 2 Id., 84 FR at 65357. Commerce has interpreted investigations, Commerce published ‘‘substantially all’’ to mean at least 85 percent of the wall thickness; the Initiation and Preliminary Results,3 total production of the domestic like product • Grade X60, X65, X70, or X80, 22 covered by the order. See, e.g., Supercalendered inches outside diameter, 0.750 inches or 1 See Large Diameter Welded Pipe from India: Paper From Canada: Final Results of Changed greater wall thickness; and Antidumping Duty Order, 84 FR 8079 (March 6, Circumstances Review and Revocation of • Grade X60, X65, or X70, 24 inches 2019) and Large Diameter Welded Pipe from India: Countervailing Duty Order, 83 FR 32268 (July 12, Countervailing Duty Order, 84 FR 8085 (March 6, 2018). outside diameter, 0.750 inches or greater 2019) (Orders). 5 See 19 CFR 351.216(c). wall thickness. 2 The companies composing the ‘‘domestic 6 See Initiation and Preliminary Results, 84 FR at The large diameter welded line pipe industry’’ are: American Cast Iron Pipe Company; 65357. that is subject to these Orders is Berg Steel Pipe Corp./Berg Spiral Pipe Corp.; Dura- 7 See SeAH’s Letter, ‘‘Changed Circumstances currently classifiable in the Harmonized Bond Industries; Stupp Corporation; (individually Review of Antidumping and Countervailing Duty and as members of the American Line Pipe Orders on Large Diameter Welded Pipe from Tariff Schedule of the United States Producers Association); Greens Bayou Pipe Mill, India—Comments on Preliminary Results of (HTSUS) under subheadings LP; JSW Steel (USA) Inc.; Skyline Steel; and Trinity Review,’’ dated January 2, 2020 (SeAH Comments). 7305.11.1030, 7305.11.1060, Products LLC (collectively the petitioners in the 8 See the Domestic Industry’s Letter, ‘‘Large 7305.11.5000, 7305.12.1030, less-than-fair-value investigation) and Welspun Diameter Welded Pipe from India: Response to Global Trade LLC. SeAH’s Comments on Preliminary Results of 7305.12.1060, 7305.12.5000, 3 See Large Diameter Welded Pipe from India: Review,’’ dated January 9, 2020 (Petitioners’ 7305.19.1030, 7305.19.1060, and Initiation and Expedited Preliminary Results of Rebuttal Comments). 7305.19.5000. Merchandise currently

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classifiable under subheadings give Commerce the authority to revoke issue being covered by the Orders.17 7305.31.4000, 7305.31.6090, an order in part based on changed There is no information on the record to 7305.39.1000, and 7305.39.5000 and circumstances when it concludes that contradict the domestic industry’s that otherwise meets the above scope the domestic producers accounting for claim. SeAH’s argument that the ITC language is also covered. While the substantially all of the production of the may have made a negative injury HTSUS subheadings are provided for domestic like product express a lack of determination if the products at issue convenience and customs purposes, the interest in part of the order.12 Finally, were not included in its cumulated written description of the scope of these the domestic producers argue that the injury analysis is immaterial to these Orders is dispositive. scope exclusion is extremely narrow CCRs. Therefore, for the reasons stated Final Results of CCRs and the merchandise at issue accounts in the Initiation and Preliminary for a very small portion of the U.S. Results, Commerce continues to find In its comments, SeAH argues that if market and is not produced in the that it is appropriate to revoke the Commerce modifies the scope of the United States. Therefore, LDWP from Orders, in part, with respect to certain Orders, it must do so with respect to all India, including that produced by the large diameter welded pipe products of the orders on large diameter welded Indian affiliate of one of the U.S. with specific combinations of grades, pipe from countries that resulted from producers, will still be subject to AD diameters and wall thicknesses, as the investigations that were included in and CVD duties in the vast majority of reflected in the ‘‘Scope of the Orders’’ the International Trade Commission’s the U.S. market.13 section of this notice. (ITC) cumulated injury analysis. Section 751(b) authorizes Commerce Notification to Interested Parties Specifically, in order to maintain the to modify the scopes of AD and CVD integrity of its proceedings, Commerce orders only for those orders in which we We are issuing this determination and must modify the scope of the orders on conduct a CCR.14 Further, 19 CFR publishing these final results and notice Canada, China, Greece, Korea, and 9 351.216(c) requires that ‘‘good cause’’ in accordance with sections 751(b)(1) Turkey in addition to the India orders. exists when it conducts a CCR within 24 and 777(i)(1) and (2) of the Act and 19 SeAH also argues that it is possible that months of the publication of a final CFR 351.216(e), 351.221(b), and the ITC might have made a negative determination of an investigation. In the 351.221(c)(3). injury determination for Canada, Korea Initiation and Preliminary Results, and Turkey if the imports of the Dated: April 30, 2020. Commerce found that ‘‘good cause’’ products at issue had not been Jeffrey I. Kessler, existed to initiate these CCRs.15 considered in its cumulative analysis. Assistant Secretary for Enforcement and Finally, SeAH also asserts that, in These CCRs pertain to the India large Compliance. diameter pipe orders. SeAH’s comments order to maintain the integrity of its [FR Doc. 2020–09678 Filed 5–5–20; 8:45 am] referencing the other large diameter proceedings, Commerce cannot allow BILLING CODE 3510–DS–P the domestic industry to select which of pipe orders are beyond the scope of the various AD and CVD orders will these CCRs. have an exclusion and which of the Further, with respect to SeAH’s DEPARTMENT OF COMMERCE orders will not. SeAH argues that one of argument that Commerce cannot allow the U.S. producers now seeks to exclude the domestic producers to select which International Trade Administration imports from a foreign affiliate whose of the countries covered by the orders AD and CVD cash deposit rates are will have an exclusion and which will Initiation of Antidumping and based on adverse facts available, but not not, Commerce has the authority to Countervailing Duty Administrative from other producers in other countries revoke an order in part based on Reviews covered by the petitions. The domestic changed circumstances if it concludes AGENCY: Enforcement and Compliance, industry’s request ‘‘raises serious that the domestic producers accounting for substantially all of the production of International Trade Administration, questions of unlawful anticompetitive Department of Commerce. intent.’’ 10 the domestic like product express a lack In its comments, the domestic of interest in part of the order.16 In these SUMMARY: The Department of Commerce industry argues that SeAH has no CCRs, the ten domestic producers which (Commerce) has received requests to evidence to support its claim that the requested the CCRs represent conduct administrative reviews of ITC may have made a different injury substantially all of the production of the various antidumping duty (AD) and determination had the products at issue domestic like product covered by these countervailing duty (CVD) orders and not been considered in the ITC’s Orders, and have stated that they are no findings with March anniversary dates. cumulated injury analysis. The longer interested in the merchandise at In accordance with Commerce’s domestic industry argues that whenever regulations, we are initiating those Commerce narrows the scope of an 12 Id. at 3. administrative reviews. 13 order, there is necessarily a product Id. at 3–4. DATES: Applicable May 6, 2020. removed from the scope that could have 14 See Carbon and Alloy Steel Wire Rod from the FOR FURTHER INFORMATION CONTACT: been considered by the ITC in its injury Republic of Korea: Final Results of Antidumping Duty Changed Circumstances Review, 84 FR 13888 analysis.11 The domestic industry Brenda E. Brown, AD/CVD Operations, (April 8, 2019) (Carbon and Alloy Steel Wire Rod Customs Liaison Unit, Enforcement and argues that the statute and regulations from Korea); see also Certain Steel Nails from the People’s Republic of China: Final Results of Compliance, International Trade 9 See SeAH Comments at 2 (citing Large Diameter Antidumping Duty Changed Circumstances Review, Administration, U.S. Department of Welded Pipe from China and India, Investigation 84 FR 49508 (September 20, 2019). Commerce, 1401 Constitution Avenue Nos. 701–TA–593 and 594 and 731–TA–1402 and 15 See Initiation and Preliminary Results, 84 FR NW, Washington, DC 20230, telephone: 1404 (Final), USITC Pub. 4859 (January 2019), and at 69357. (202) 482–4735. Large Diameter Welded Pipe from Canada, Greece, 16 See Carbon and Alloy Steel Wire Rod from Korea, and Turkey, Investigation Nos. 701–TA–595– Korea (2019); see also Crystalline Silicon 596 and 731–TA–1401, 1403, 1405–1406 (Final), Photovoltaic Cells, Whether or Not Assembled Into 17 See the Domestic Industry’s Letter, ‘‘Large USITC Pub. 4883 (April 2019)). Modules, From the People’s Republic of China: Diameter Welded Pipe from India: Petitioner’s 10 Id. at 4. Final Results of the Changed Circumstances Request for Changed Circumstances Review and 11 See Petitioners’ Rebuttal Comments at 3. Review, 81 FR 9427 (February 25, 2016). Partial Revocation,’’ dated October 18, 2019.

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SUPPLEMENTARY INFORMATION: general, Commerce has found that market situation (PMS) for purposes of determinations concerning whether constructed value under section 773(e) Background particular companies should be of the Act.2 Section 773(e) of the Act Commerce has received timely ‘‘collapsed’’ (e.g., treated as a single states that ‘‘if a particular market requests, in accordance with 19 CFR entity for purposes of calculating situation exists such that the cost of 351.213(b), for administrative reviews of antidumping duty rates) require a materials and fabrication or other various AD and CVD orders and substantial amount of detailed processing of any kind does not findings with March anniversary dates. information and analysis, which often accurately reflect the cost of production All deadlines for the submission of require follow-up questions and in the ordinary course of trade, the various types of information, analysis. Accordingly, Commerce will administering authority may use certifications, or comments or actions by not conduct collapsing analyses at the another calculation methodology under Commerce discussed below refer to the respondent selection phase of this this subtitle or any other calculation number of calendar days from the review and will not collapse companies methodology.’’ When an interested applicable starting time. at the respondent selection phase unless party submits a PMS allegation pursuant Notice of No Sales there has been a determination to to section 773(e) of the Act, Commerce collapse certain companies in a will respond to such a submission If a producer or exporter named in previous segment of this AD proceeding consistent with 19 CFR 351.301(c)(2)(v). this notice of initiation had no exports, (e.g., investigation, administrative If Commerce finds that a PMS exists sales, or entries during the period of review, new shipper review, or changed under section 773(e) of the Act, then it review (POR), it must notify Commerce circumstances review). For any will modify its dumping calculations within 30 days of publication of this company subject to this review, if appropriately. notice in the Federal Register. All Commerce determined, or continued to Neither section 773(e) of the Act nor submissions must be filed electronically treat, that company as collapsed with 19 CFR 351.301(c)(2)(v) set a deadline at https://access.trade.gov in accordance for the submission of PMS allegations 1 others, Commerce will assume that such with 19 CFR 351.303. Such companies continue to operate in the and supporting factual information. submissions are subject to verification same manner and will collapse them for However, in order to administer section in accordance with section 782(i) of the respondent selection purposes. 773(e) of the Act, Commerce must Tariff Act of 1930, as amended (the Act). Otherwise, Commerce will not collapse receive PMS allegations and supporting Further, in accordance with 19 CFR companies for purposes of respondent factual information with enough time to 351.303(f)(1)(i), a copy must be served selection. Parties are requested to (a) consider the submission. Thus, should on every party on Commerce’s service identify which companies subject to an interested party wish to submit a list. review previously were collapsed, and PMS allegation and supporting new Respondent Selection (b) provide a citation to the proceeding factual information pursuant to section In the event Commerce limits the in which they were collapsed. Further, 773(e) of the Act, it must do so no later number of respondents for individual if companies are requested to complete than 20 days after submission of initial examination for administrative reviews the Quantity and Value (Q&V) responses to section D of the initiated pursuant to requests made for Questionnaire for purposes of questionnaire. respondent selection, in general, each the orders identified below, Commerce Separate Rates intends to select respondents based on company must report volume and value In proceedings involving non-market U.S. Customs and Border Protection data separately for itself. Parties should economy (NME) countries, Commerce (CBP) data for U.S. imports during the not include data for any other party, begins with a rebuttable presumption POR. We intend to place the CBP data even if they believe they should be that all companies within the country on the record within five days of treated as a single entity with that other are subject to government control and, publication of the initiation notice and party. If a company was collapsed with to make our decision regarding another company or companies in the thus, should be assigned a single respondent selection within 30 days of most recently completed segment of this antidumping duty deposit rate. It is publication of the initiation Federal proceeding where Commerce Commerce’s policy to assign all Register notice. Comments regarding the considered collapsing that entity, exporters of merchandise subject to an CBP data and respondent selection complete Q&V data for that collapsed administrative review in an NME should be submitted within seven days entity must be submitted. country this single rate unless an after the placement of the CBP data on exporter can demonstrate that it is Deadline for Withdrawal of Request for sufficiently independent so as to be the record of this review. Parties Administrative Review wishing to submit rebuttal comments entitled to a separate rate. Pursuant to 19 CFR 351.213(d)(1), a To establish whether a firm is should submit those comments within party that has requested a review may sufficiently independent from five days after the deadline for the withdraw that request within 90 days of government control of its export initial comments. the date of publication of the notice of In the event Commerce decides it is activities to be entitled to a separate initiation of the requested review. The necessary to limit individual rate, Commerce analyzes each entity regulation provides that Commerce may examination of respondents and exporting the subject merchandise. In extend this time if it is reasonable to do conduct respondent selection under accordance with the separate rates so. Determinations by Commerce to section 777A(c)(2) of the Act, the criteria, Commerce assigns separate extend the 90-day deadline will be following guidelines regarding rates to companies in NME cases only made on a case-by-case basis. collapsing of companies for purposes of if respondents can demonstrate the respondent selection will apply. In Deadline for Particular Market absence of both de jure and de facto Situation Allegation government control over export 1 See Antidumping and Countervailing Duty activities. Proceedings: Electronic Filing Procedures; Section 504 of the Trade Preferences Administrative Protective Order Procedures, 76 FR Extension Act of 2015 amended the Act 2 See Trade Preferences Extension Act of 2015, 39263 (July 6, 2011). by adding the concept of a particular Public Law 114–27, 129 Stat. 362 (2015).

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All firms listed below that wish to for submitting a Certification applies contained in the application. Separate qualify for separate rate status in the equally to NME-owned firms, wholly Rate Applications are due to Commerce administrative reviews involving NME foreign-owned firms, and foreign sellers no later than 30 calendar days after countries must complete, as who purchase and export subject publication of this Federal Register appropriate, either a separate rate merchandise to the United States. notice. The deadline and requirement application or certification, as described Entities that currently do not have a for submitting a Separate Rate below. For these administrative reviews, separate rate from a completed segment Application applies equally to NME- in order to demonstrate separate rate of the proceeding 3 should timely file a owned firms, wholly foreign-owned eligibility, Commerce requires entities Separate Rate Application to firms, and foreign sellers that purchase for whom a review was requested, that demonstrate eligibility for a separate and export subject merchandise to the were assigned a separate rate in the rate in this proceeding. In addition, United States. most recent segment of this proceeding companies that received a separate rate For exporters and producers who in which they participated, to certify in a completed segment of the that they continue to meet the criteria proceeding that have subsequently submit a Separate Rate Application or for obtaining a separate rate. The made changes, including, but not Certification and subsequently are Separate Rate Certification form will be limited to, changes to corporate selected as mandatory respondents, available on Commerce’s website at structure, acquisitions of new these exporters and producers will no https://enforcement.trade.gov/nme/ companies or facilities, or changes to longer be eligible for separate rate status nme-sep-rate.html on the date of their official company name,4 should unless they respond to all parts of the publication of this Federal Register timely file a Separate Rate Application questionnaire as mandatory notice. In responding to the to demonstrate eligibility for a separate respondents. certification, please follow the rate in this proceeding. The Separate Initiation of Reviews ‘‘Instructions for Filing the Rate Application will be available on Certification’’ in the Separate Rate Commerce’s website at https:// In accordance with 19 CFR Certification. Separate Rate enforcement.trade.gov/nme/nme-sep- 351.221(c)(1)(i), we are initiating Certifications are due to Commerce no rate.html on the date of publication of administrative reviews of the following later than 30 calendar days after this Federal Register notice. In AD and CVD orders and findings. We publication of this Federal Register responding to the Separate Rate intend to issue the final results of these notice. The deadline and requirement Application, refer to the instructions reviews not later than March 31, 2021.

Period to be reviewed

AD Proceedings BRAZIL: Certain Uncoated Paper, A–351–842 ...... 3/1/19–2/29/20 International Paper do Brasil Ltda. International Paper Exportadora Ltda. Suzano S.A. (formerly Suzano Papel e Celulose S.A.). PORTUGAL: Uncoated Paper, A–471–807 ...... 3/1/19–2/29/20 Navigator Company, S.A. THAILAND: Circular Welded Carbon Steel Pipes and Tubes, A–549–502 ...... 3/1/19–2/29/20 Apex International Logistics. Aquatec Maxcon Asia. Asian Unity Part Co., Ltd. Blue Pipe Steel Center. Bis Pipe Fitting Industry Co., Ltd. Chuhatsu (Thailand) Co., Ltd. CSE Technologies Co., Ltd. Expeditors International (Bangkok). Expeditors Ltd. FS International (Thailand) Co., Ltd. K Line Logistics. Kerry-Apex (Thailand) Co., Ltd. Oil Steel Tube (Thailand) Co., Ltd. Otto Ender Steel Structure Co., Ltd. Pacific Pipe Public Company Limited. Pacific Pipe and Pump. Panalpina World Transport Ltd. Polypipe Engineering Co., Ltd. Saha Thai Steel Pipe Public Co., Ltd. Schlumberger Overseas S.A. Siam Fittings Co., Ltd. Siam Steel Pipe Co., Ltd. Sino Connections Logistics (Thailand) Co., Ltd. Thai Malleable Iron and Steel. Thai Oil Group. Thai Oil Pipe Co., Ltd. Thai Premium Pipe Co., Ltd.

3 Such entities include entities that have not shipper review, etc.) and entities that lost their 4 Only changes to the official company name, participated in the proceeding, entities that were separate rate in the most recently completed rather than trade names, need to be addressed via preliminarily granted a separate rate in any segment of the proceeding in which they a Separate Rate Application. Information regarding currently incomplete segment of the proceeding participated. new trade names may be submitted via a Separate (e.g., an ongoing administrative review, new Rate Certification.

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Period to be reviewed

Vatana Phaisal Engineering Company. Visavakit Patana Corp., Ltd. THE PEOPLE’S REPUBLIC OF CHINA: Certain Amorphous Silica Fabric, A–570–038 ...... 3/1/19–2/29/20 Access China Industrial Textile (Pinghu) Inc. Access China Industrial Textile (Shanghai) Inc. Acmetex Co., Ltd. Beijing Great Pack Materials Co., Ltd. Beijing Landingji Engineering Tech. Co., Ltd. Beijing Tianxing Ceramic Fiber Composite Materials Corp. Changshu Yaoxing Fiberglass Insulation Products Co., Ltd. Changzhou Kingze Composite Materials Co., Ltd. Changzhou Utek Composite Co. Chengdu Chang Yuan Shun Co., Ltd. Chengdu Youbang Hengtai New Material Co., Ltd. China Beihai Fiberglass Co., Ltd. China National Building Materials International Corporation. China Yangzhou Guo Tai Fiberglass Co., Ltd. Chongqing Polycomp International Corp. (CPIC). Chongqing Tenways Material Corporation. Chongqing Yangkai Import & Export Trade Co., Ltd. Cixi Sunrise Sealing Material Co., Ltd. Fujian Minshan Fire-Fighting Co., Ltd. Ganzhou Guangjian Fiberglass Co., Ltd. Grant Fiberglass Co., Ltd. Haining Jiete Fiberglass Fabric Co., Ltd. Haining Jorhom Imp. & Ex. Co., Ltd. Hebei Yuniu Fiberglass Manufacturing Co., Ltd. Hebei Yuyin Trade Co., Ltd. Hengshui Aohong International Trading Co., Ltd. Hitex Insulation (Ningbo) Co., Ltd. Huatek New Material Inc. Jiangsu Jiuding New Material Co., Ltd. Jiangxi Aidmer Seal & Packing Co., Ltd. Jiujiang Huaxing Glass Fiber Co., Ltd. Langfang Wanda Industrial Co., Ltd. Lanxi Joen Fiberglass Co., Ltd. Mowco Industry Limited. Nantong Jinpeng Fiberglass Products Co., Ltd. Nanjing Debeili New Materials Co., Ltd. Nanjing Tianyuan Fiberglass Material Co., Ltd. New Fire Co., Ltd. New Fire, Ltd. Ningbo EAS Material Co., Ltd. Ningbo Firewheel Thermal Insulation & Sealing Co., Ltd. Ningbo Fitow High Strength Composites Co., Ltd. Ningbo Universal Star Industry & Trade Limited. Ningguo BST Thermal Protection Products Co., Ltd. Nische New Material (Nantong) Co., Ltd. Pizhou Hua Yixiang Import and Export. Pizhou Hua Yixiang Import and Export Trading Co., Ltd. Qingdao Feelongda Industry & Trade Co., Ltd. Qingdao Junfeng Industry Company Limited. Qingdao Meikang Fireproof Materials Co., Ltd. Qingdao Shishuo Industry Co., Ltd. Rugao City Ouhua Composite Material Co., Ltd. Rugao Nebula Fiberglass Co., Ltd. Shandong Rondy Composite Materials, Co., Ltd. Shanghai Bonthe Insulative Material Co., Ltd. Shanghai Horse Construction Co., Ltd. Shanghai Industrial Products Imp. & Exp. Co., Ltd. Shanghai Liankun Electronics Material Co., Ltd. Shanghai New Union Textra Import. Shanghai Porcher Industries Co., Ltd. Shanghai Suita Environmental Protection Technology Co., Ltd. Shanghai Weldflame Co., Ltd. Shangqiu Huanyu Fiberglass Co., Ltd. Shaoxing Sunway Tools & Hardware Import & Export Co., Ltd. Shengzhou Top-Tech New Material Co., Ltd. Shnzhen Core-Tex Composite Materials Co., Ltd. Shenzhen Songxin Silicone Products Co., Ltd. Suntex Composite Industrial Co., Ltd. Suretex Composite Co., Ltd. Taian Fibtex Trade Co., Ltd. Taian Juli Composite Materials Co., Ltd.

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Period to be reviewed

Taixing Chuanda Plastic Co., Ltd. Taixing Kaixin Composite Materials Co., Ltd. Taixing Ruifeng Rubber Products Co., Ltd. Taixing Vichen Composite Material Co., Limited. TaiZhou Xinxing Fiberglass Products Co., Ltd. Tenglong Sealing Products Manufactory Yuyao. Texaspro (China) Company. Tianjin Bin Jin Fiberglass Products Co., Ltd. Tongxiang Suretex Composite Co., Ltd. Wallean Industries Co., Ltd. Wuhan Dinfn Industries Co., Ltd. Wuxi First Special-Type Fiberglass Co., Ltd. Wuxi Xingxiao Hi-tech Material Co., Ltd. Yuyao Feida Insulation Sealing Factory. Yuyao Tianyi Special Carbon Fiber Co., Ltd. Zibo Irvine Trading Co., Ltd. Zibo Yao Xing Fire-Resistant and Heat Preservation Material Co., Ltd. Zibo Yuntai Furnace Technology Co., Ltd. THE PEOPLE’S REPUBLIC OF CHINA: Glycine, A–570–836 ...... 3/1/19–2/29/20 Avid Organics Private Limited. Baoding Mantong Fine Chemistry Co., Ltd. Kumar Industries. Mulji Mehta Enterprises. Studio Disrupt. THE PEOPLE’S REPUBLIC OF CHINA: Certain Frozen Warmwater Shrimp,5 A–570–893 ...... 2/1/19–1/31/20 Rongcheng Yinhai Aquatic Product Co., Ltd. Rushan Chunjiangyuan Foodstuffs Co., Ltd. CVD Proceedings INDIA: Certain New Pneumatic Off-The-Road Tires, C–533–870 ...... 1/1/19–12/31/19 Balkrishna Industries Limited. INDIA: Fine Denier Polyester Staple Fiber, C–533–876 ...... 1/1/19–12/31/19 Reliance Industries Limited. THE PEOPLE’S REPUBLIC OF CHINA: Certain Amorphous Silica Fabric, C–570–039 ...... 1/1/19–12/31/19 Access China Industrial Textile (Pinghu) Inc. (ACIT). Access China Industrial Textile (Shanghai) Inc. (ACIT). Acmetex Co., Ltd. Beijing Great Pack Materials Co., Ltd. Beijing Landingji Engineering Tech. Co., Ltd. Beijing Tianxing Ceramic Fiber Composite Materials Corp. Changshu Yaoxing Fiberglass Insulation Products Co., Ltd. Changzhou Kingze Composite Materials Co., Ltd. Changzhou Utek Composite Co. Chengdu Chang Yuan Shun Co., Ltd. Chengdu Youbang Hengtai New Material Co., Ltd. China Beihai Fiberglass Co., Ltd. China National Building Materials International Corporation. China Yangzhou Guo Tai Fiberglass Co., Ltd. Chongqing Polycomp International Corp. (CPIC). Chongqing Tenways Material Corporation. Chongqing Yangkai Import & Export Trade Co., Ltd. Cixi Sunrise Sealing Material Co., Ltd. Fujian Minshan Fire-Fighting Co., Ltd. Ganzhou Guangjian Fiberglass Co., Ltd. Grant Fiberglass Co., Ltd. Haining Jiete Fiberglass Fabric Co., Ltd. Haining Jorhom Imp. & Ex. Co., Ltd. Hebei Yuniu Fiberglass Manufacturing Co., Ltd. Hebei Yuyin Trade Co., Ltd. Hengshui Aohong International Trading Co., Ltd. Hitex Insulation (Ningbo) Co., Ltd. Huatek New Material Inc. Jiangsu Jiuding New Material Co., Ltd. Jiangxi Aidmer Seal & Packing Co., Ltd. Jiujiang Huaxing Glass Fiber Co., Ltd. Langfang Wanda Industrial Co., Ltd. Lanxi Joen Fiberglass Co., Ltd. Mowco Industry Limited. Nantong Jinpeng Fiberglass Products Co., Ltd. Nanjing Debeili New Materials Co., Ltd. Nanjing Tianyuan Fiberglass Material Co., Ltd. New Fire Co., Ltd. New Fire, Ltd. Ningbo EAS Material Co., Ltd. Ningbo Firewheel Thermal Insulation & Sealing Co., Ltd.

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Period to be reviewed

Ningbo Fitow High Strength Composites Co., Ltd. Ningbo Universal Star Industry & Trade Limited. Ningguo BST Thermal Protection Products Co., Ltd. Nische New Material (Nantong) Co., Ltd. Pizhou Hua Yixiang Import and Export. Pizhou Hua Yixiang Import and Export Trading Co., Ltd. Qingdao Feelongda Industry & Trade Co., Ltd. Qingdao Junfeng Industry Company Limited. Qingdao Meikang Fireproof Materials Co., Ltd. Qingdao Shishuo Industry Co., Ltd. Rugao City Ouhua Composite Material Co., Ltd. Rugao Nebula Fiberglass Co., Ltd. Shandong Rondy Composite Materials, Co., Ltd. Shanghai Bonthe Insulative Material Co., Ltd. Shanghai Horse Construction Co., Ltd. Shanghai Industrial Products Imp. & Exp. Co., Ltd. Shanghai Liankun Electronics Material Co., Ltd. Shanghai New Union Textra Import. Shanghai Porcher Industries Co., Ltd. Shanghai Suita Environmental Protection Technology Co., Ltd. Shanghai Weldflame Co., Ltd. Shangqiu Huanyu Fiberglass Co., Ltd. Shaoxing Sunway Tools & Hardware Import & Export Co., Ltd. Shengzhou Top-Tech New Material Co., Ltd. Shnzhen Core-Tex Composite Materials Co., Ltd. Shenzhen Songxin Silicone Products Co., Ltd. Suntex Composite Industrial Co., Ltd. Suretex Composite Co., Ltd. Taian Fibtex Trade Co., Ltd. Taian Juli Composite Materials Co., Ltd. Taixing Chuanda Plastic Co., Ltd. Taixing Kaixin Composite Materials Co., Ltd. Taixing Ruifeng Rubber Products Co., Ltd. Taixing Vichen Composite Material Co., Limited. TaiZhou Xinxing Fiberglass Products Co., Ltd. Tenglong Sealing Products Manufactory Yuyao. Texaspro (China) Company. Tianjin Bin Jin Fiberglass Products Co., Ltd. Tongxiang Suretex Composite Co., Ltd. Wallean Industries Co., Ltd. Wuhan Dinfn Industries Co., Ltd. Wuxi First Special-Type Fiberglass Co., Ltd. Wuxi Xingxiao Hi-tech Material Co., Ltd. Yuyao Feida Insulation Sealing Factory. Yuyao Tianyi Special Carbon Fiber Co., Ltd. Zibo Irvine Trading Co., Ltd. Zibo Yao Xing Fire-Resistant and Heat Preservation Material Co., Ltd. Zibo Yuntai Furnace Technology Co., Ltd. TURKEY: Circular Welded Carbon Steel Pipes and Tubes, C–489–502 ...... 1/1/19–12/31/19 Borusan Holding. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. Borusan Mannesmann Boru Yatirim Holding. Borusan Birlesik Boru Fabrikalari San ve Tic. Borusan Istikbal Ticaret T.A.S. Borusan Mannesmann. Borusan Gemlik Boru Tesisleri A.S. Borusan Ihracat Ithalat ve Dagitim A.S. Borusan Ithicat ve Dagitim A.S. Borusan Lojistik Dagitim Depolama Tasimacilik ve Ticaret A.S. Borusan Mannesmann Pipe US, Inc. Cagil Makina Sanayi ve Ticaret A.S. Cayirova Boru Sanayi ve Ticaret A.S. Cimtas Boru Imalatlari ve Ticaret Sirketi. Cinar Boru Profil San. Ve Tic. As. Eksen Makina. Erbosan Erciyas Boru Sanayi ve Ticaret A.S. Guner Eksport. Guven Steel Pipe. Guven Celik Born San. Ve Tic. Ltd. HDM Celik Boru Sanayi ve Ticaret Ltd. Sti. Kale Baglanti Teknolojileri San ve Tic. A.S. Kalibre Boru Sanayi ve Ticaret A.S. MTS Lojistik ve Tasimacilik Hizmetleri TIC A.S. Istanbul. Net Boru Sanayi ve Dis Ticaret Koll. Sti.

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Period to be reviewed

Noksel Celik Boru Sanayi A.S. Perfektup Ambalaj San. ve Tic. A.S. Schenker Arkas Nakliyat ve Ticaret A.S. Toscelik Metal Ticaret A.S. Toscelik Profil ve Sac Endustrisi A.S. Tosyali Dis Ticaret A.S. Tubeco Pipe and Steel Corporation. Umran Celik Born Sanayii A.S. Umran Steel Pipe Inc. Vespro Muhendislik Mimarlik Danismanlik Sanayi ve Ticaret A.S. Yucel Boru ve Profil Endustrisi A.S. Yucelboru Ihracat Ithalat ve Pazarlama A.S.

Suspension Agreements Parties wishing to participate in any of information, until May 19, 2020, unless 7 None. these administrative reviews should extended. ensure that they meet the requirements Any party submitting factual Duty Absorption Reviews of these procedures (e.g., the filing of information in an AD or CVD During any administrative review separate letters of appearance as proceeding must certify to the accuracy covering all or part of a period falling discussed at 19 CFR 351.103(d)). and completeness of that information between the first and second or third using the formats provided at the end of and fourth anniversary of the Factual Information Requirements the Final Rule.8 Commerce intends to publication of an AD order under 19 reject factual submissions in any Commerce’s regulations identify five proceeding segments if the submitting CFR 351.211 or a determination under categories of factual information in 19 19 CFR 351.218(f)(4) to continue an party does not comply with applicable CFR 351.102(b)(21), which are certification requirements. order or suspended investigation (after summarized as follows: (i) Evidence sunset review), Commerce, if requested submitted in response to questionnaires; Extension of Time Limits Regulation by a domestic interested party within 30 (ii) evidence submitted in support of days of the date of publication of the Parties may request an extension of allegations; (iii) publicly available notice of initiation of the review, will time limits before a time limit information to value factors under 19 established under Part 351 expires, or as determine whether AD duties have been 9 absorbed by an exporter or producer CFR 351.408(c) or to measure the otherwise specified by Commerce. In subject to the review if the subject adequacy of remuneration under 19 CFR general, an extension request will be merchandise is sold in the United States 351.511(a)(2); (iv) evidence placed on considered untimely if it is filed after through an importer that is affiliated the record by Commerce; and (v) the time limit established under Part with such exporter or producer. The evidence other than factual information 351 expires. For submissions which are request must include the name(s) of the described in (i)–(iv). These regulations due from multiple parties exporter or producer for which the require any party, when submitting simultaneously, an extension request inquiry is requested. factual information, to specify under will be considered untimely if it is filed which subsection of 19 CFR after 10:00 a.m. on the due date. Gap Period Liquidation 351.102(b)(21) the information is being Examples include, but are not limited For the first administrative review of submitted and, if the information is to: (1) Case and rebuttal briefs, filed any order, there will be no assessment submitted to rebut, clarify, or correct pursuant to 19 CFR 351.309; (2) factual of antidumping or countervailing duties factual information already on the information to value factors under 19 on entries of subject merchandise record, to provide an explanation CFR 351.408(c), or to measure the entered, or withdrawn from warehouse, identifying the information already on adequacy of remuneration under 19 CFR for consumption during the relevant the record that the factual information 351.511(a)(2), filed pursuant to 19 CFR ‘‘gap’’ period of the order (i.e., the seeks to rebut, clarify, or correct. The 351.301(c)(3) and rebuttal, clarification period following the expiry of regulations, at 19 CFR 351.301, also and correction filed pursuant to 19 CFR provisional measures and before provide specific time limits for such 351.301(c)(3)(iv); (3) comments concerning the selection of a surrogate definitive measures were put into factual submissions based on the type of country and surrogate values and place), if such a gap period is applicable factual information being submitted. rebuttal; (4) comments concerning CBP to the POR. Please review the Final Rule,6 available data; and (5) Q&V questionnaires. Under at https://enforcement.trade.gov/frn/ Administrative Protective Orders and certain circumstances, Commerce may Letters of Appearance 2013/1304frn/2013-08227.txt, prior to elect to specify a different time limit by Interested parties must submit submitting factual information in this which extension requests will be applications for disclosure under segment. Note that Commerce has considered untimely for submissions administrative protective orders in temporarily modified certain of its which are due from multiple parties accordance with the procedures requirements for serving documents outlined in Commerce’s regulations at containing business proprietary 7 See Temporary Rule Modifying AD/CVD Service 19 CFR 351.305. Those procedures Requirements Due to COVID–19, 85 FR 17006 apply to administrative reviews 6 See Certification of Factual Information To (March 26, 2020). Import Administration During Antidumping and 8 See section 782(b) of the Act; see also Final included in this notice of initiation. Countervailing Duty Proceedings, 78 FR 42678 (July Rule; and the frequently asked questions regarding 17, 2013) (Final Rule); see also the frequently asked the Final Rule, available at https:// 5 These companies were inadvertently combined questions regarding the Final Rule, available at enforcement.trade.gov/tlei/notices/factual_info_ on a single line in the previous initiation notice. https://enforcement.trade.gov/tlei/notices/factual_ final_rule_FAQ_07172013.pdf. See February Initiation Notice, 85 FR at 19737. info_final_rule_FAQ_07172013.pdf. 9 See 19 CFR 351.302.

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simultaneously. In such a case, AD orders 1 on crystalline silicon Analysis of Comments Received Commerce will inform parties in the photovoltaic products from China and letter or memorandum setting forth the Taiwan,2 pursuant to section 751(c) of A complete discussion of all issues deadline (including a specified time) by the Tariff Act of 1930, as amended (the raised in these sunset reviews, which extension requests must be filed Act), SunPower Manufacturing Oregon, including the likelihood of continuation to be considered timely. This policy also LLC and Hanwha Q CELLS USA, Inc. or recurrence of dumping in the event requires that an extension request must (Hanwha) (domestic interested parties) of revocation of the Orders and the be made in a separate, stand-alone filed with Commerce timely and magnitude of the dumping margins submission, and clarifies the complete notices of intent to participate likely to prevail if the Orders were to be circumstances under which Commerce in the sunset reviews,3 and timely and revoked, is provided in the accompanying Issues and Decision will grant untimely-filed requests for the adequate substantive responses.4 Memorandum, which is hereby adopted extension of time limits. Please review Commerce did not receive a substantive by this notice.7 A list of the topics the Final Rule, available at https:// response from any respondent discussed in the Issues and Decision www.gpo.gov/fdsys/pkg/FR-2013-09-20/ interested party. As a result, pursuant to Memorandum is attached as an html/2013-22853.htm, prior to section 751(c)(3)(B) of the Act and 19 Appendix to this notice. The Issues and submitting factual information in these CFR 351.218(e)(1)(ii)(C)(2), Commerce Decision Memorandum is a public segments. conducted an expedited (120-day) document and is on file electronically These initiations and this notice are sunset review of the Orders.5 in accordance with section 751(a) of the via Enforcement and Compliance’s Act (19 U.S.C. 1675(a)) and 19 CFR Scope of the Orders Antidumping and Countervailing Duty 351.221(c)(1)(i). Centralized Electronic Service System The merchandise covered by these (ACCESS). ACCESS is available to Dated: April 30, 2020. Orders is crystalline silicon registered users at http:// James Maeder, photovoltaic products from China and access.trade.gov. In addition, a complete Deputy Assistant Secretary for Antidumping Taiwan. Merchandise covered by the version of the Issues and Decision and Countervailing Duty Operations. Orders is currently classified in the Memorandum can be accessed on the [FR Doc. 2020–09667 Filed 5–5–20; 8:45 am] Harmonized Tariff Schedule of the internet at http://enforcement.trade.gov/ BILLING CODE 3510–DS–P United States (‘‘HTSUS’’) under frn/. The signed Issues and Decision subheadings 8501.61.0000, Memorandum and the electronic 8507.20.8030, 8507.20.8040, version of the Issues and Decision DEPARTMENT OF COMMERCE 8507.20.8060, 8507.20.8090, Memorandum are identical in content. International Trade Administration 8541.40.60.15, 8541.40.6020, 8541.40.6030, 8541.40.60.35 and Final Results of Sunset Reviews [A–570–010, A–583–853] 8501.31.8000. These HTSUS Pursuant to sections 751(c)(1), subheadings are provided for 752(c)(1) and (3) of the Act, Commerce Crystalline Silicon Photovoltaic convenience and customs purposes; the Products From the People’s Republic determines that revocation of the Orders written description of the scope of the would be likely to lead to continuation of China and Taiwan: Final Results of Orders is dispositive.6 the Expedited First Sunset Reviews of or recurrence of dumping, and that the the Antidumping Duty Orders magnitude of the dumping margins 1 See Antidumping Duty Order: Certain likely to prevail would be weighted- AGENCY: Enforcement and Compliance, Crystalline Silicon Photovoltaic Products from the average dumping margins up to 165.04 People’s Republic of China, 80 FR 8592 (February International Trade Administration, 18, 2015) and Antidumping Duty Order: Certain percent for China and 27.55 percent for Department of Commerce. Crystalline Silicon Photovoltaic Products from Taiwan. SUMMARY: The Department of Commerce Taiwan, 80 FR 8596 (February 18, 2015) (Orders). 2 Administrative Protective Orders (Commerce) finds that revocation of the See Initiation of Five-Year (Sunset) Reviews, 85 antidumping duty (AD) orders on FR 67 (January 2, 2020). 3 See Domestic Interested Parties’ Letter, This notice also serves as the only crystalline silicon photovoltaic products ‘‘Crystalline Silicon Photovoltaic Products from reminder to parties subject to from the People’s Republic of China China and Taiwan: Intent to Participate in Sunset administrative protective order (APO) of (China) and Taiwan would likely lead to Reviews,’’ dated January 13, 2020; see also their responsibility concerning the continuation or recurrence of dumping ‘‘Crystalline Silicon Photovoltaic Products from People Republic of China and Taiwan: Hanwha Q return or destruction of proprietary at the level indicated in the ‘‘Final CELLS USA, Inc.’s Notice of Intent to Participate in information disclosed under APO in Results of Sunset Reviews’’ section of Sunset Reviews,’’ dated January 17, 2020. accordance with 19 CFR 351.305. this notice. 4 See Domestic Interested Parties’ Letters, Timely notification of the return or DATES: Applicable May 6, 2020. ‘‘Crystalline Silicon Photovoltaic Products from destruction of APO materials, or China and Taiwan Sunset Reviews: Substantive FOR FURTHER INFORMATION CONTACT: Response of SPMOR,’’ dated February 3, 2020; and conversion to judicial protective orders Abdul Alnoor and Eva Kim, AD/CVD ‘‘Certain Crystalline Silicon Photovoltaic Products is hereby requested. Failure to comply Operations, Office IV, Enforcement and from China and Taiwan, Inv. Nos. 701–TA–511 and with the regulations and terms of an 731–TA–1246 and 1247 (1st Sunset Review); APO is a violation which is subject to Compliance, International Trade Hanwha Q CELLS USA, Inc.’s Substantive Administration, U.S. Department of Response,’’ dated February 3, 2020. sanction. Commerce, 1401 Constitution Avenue 5 For a complete description of the background Notification to Interested Parties NW, Washington, DC 20230; telephone: for these sunset reviews, see Commerce (202) 482–4554 and (202) 482–8283, Memorandum, ‘‘Issues and Decision Memorandum for the Expedited First Sunset Reviews of the We are issuing and publishing these respectively. Antidumping Duty Orders on Crystalline Silicon results and notice in accordance with SUPPLEMENTARY INFORMATION: Photovoltaic Products from the People’s Republic of sections 751(c), 752(c), and 777(i)(1) of China and Taiwan,’’ dated concurrently with, and the Act, and 19 CFR 351.218 and 19 Background hereby adopted by, this notice (Issues and Decision Memorandum). CFR 351.221(c)(5)(ii). After publication of the notice of 6 The full scope of the Orders is included in the initiation of these sunset reviews of the Issues and Decision Memorandum. 7 See Issues and Decision Memorandum.

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Dated: May 1, 2020. U.S.C. 1801 et seq., as amended by the ACTION: Notice of solicitation for Joseph A. Laroski Jr., Sustainable Fisheries Act, Public Law members of the NOAA Science Deputy Assistant Secretary for Policy and 104–297, provided for the establishment Advisory Board. Negotiations. of an AP to assist in the collection and evaluation of information relevant to the SUMMARY: NOAA is soliciting Appendix development of any FMP or FMP nominations for members of the NOAA List of Topics Discussed in the Issues and amendment for Atlantic HMS. NMFS Science Advisory Board (SAB). The Decision Memorandum consults with and considers the SAB is the only Federal Advisory I. Summary comments and views of AP members Committee with the responsibility to II. Background when preparing and implementing advise the Under Secretary of III. Scope of the Orders FMPs or FMP amendments for Atlantic Commerce for Oceans, Atmosphere, and IV. History of the Orders tunas, swordfish, billfish, and sharks. NOAA Administrator on long- and V. Legal Framework The AP has previously consulted with short-range strategies for research, VI. Discussion of the Issues NMFS on all Atlantic HMS FMPs and education, and application of science to 1. Likelihood of Continuation or resource management and Recurrence of Dumping FMP amendments since the inception of the AP in 1998. environmental assessment and 2. Magnitude of the Margin of Dumping prediction. The SAB consists of Likely to Prevail Generally AP meetings are held in- approximately fifteen members VII. Final Results of Sunset Reviews person, but because of current VIII. Recommendation reflecting the full breadth of NOAA’s restrictions on travel and public areas of responsibility and assists [FR Doc. 2020–09668 Filed 5–5–20; 8:45 am] gatherings this AP meeting will be NOAA in maintaining a complete and BILLING CODE 3510–DS–P conducted via webinar. The intent of accurate understanding of scientific this meeting is to consider alternatives issues critical to the agency’s missions. for the conservation and management of DATES: Nominations should be sent to DEPARTMENT OF COMMERCE all Atlantic tunas, swordfish, billfish, the web address specified below and and shark fisheries. We anticipate must be received by June 22, 2020. National Oceanic and Atmospheric discussing: Administration ADDRESSES: Applications should be • Draft Amendment 12, which would [RTID 0648–XA139] submitted electronically to update the 2006 Consolidated HMS [email protected]. FMP using revised National Standard FOR FURTHER INFORMATION CONTACT: Atlantic Highly Migratory Species; guidelines; Dr. Cynthia Decker, Executive Director, Meeting of the Atlantic Highly • Migratory Species Advisory Panel A proposed rule and Environmental Science Advisory Board, NOAA, Rm. Assessment to modify shark and 11230, 1315 East-West Highway, Silver AGENCY: National Marine Fisheries swordfish retention limits; Spring, Maryland 20910. (Phone: 301– Service (NMFS), National Oceanic and • Updates on the bluefin tuna fishery 734–1156, Fax: 301–713–1459, Email: Atmospheric Administration (NOAA), and Amendment 13 (bluefin tuna). [email protected]); or visit the Commerce. We also anticipate inviting other NOAA SAB website at http:// ACTION: Notice of meeting. NMFS offices and the United States www.sab.noaa.gov. SUMMARY: NMFS will hold a 1-day Coast Guard to provide updates, if SUPPLEMENTARY INFORMATION: At this Atlantic Highly Migratory Species available, on their activities relevant to time, individuals are sought with (HMS) Advisory Panel (AP) meeting via HMS fisheries. expertise in tsunami science; extreme webinar in May 2020. The intent of the Additional information on the weather prediction (including meeting is to consider options for the meeting and a copy of the draft agenda tornadoes); social sciences (including conservation and management of will be posted prior to the meeting at: geography, sociology, behavioral Atlantic HMS. The meeting is open to https://www.fisheries.noaa.gov/event/ science); Great Lakes research; cloud the public. may-2020-hms-advisory-panel-meeting. computing, artificial intelligence and DATES: The AP meeting and webinar Dated: April 30, 2020. data management; unmanned, will be held from 8:45 a.m. to 3:30 p.m. He´le`ne M.N. Scalliet, autonomous system technology; ‘omics science and eDNA; weather modeling on Tuesday, May 19, 2020. Acting Director, Office of Sustainable and data assimilation; and ocean ADDRESSES: The meeting on Tuesday, Fisheries, National Marine Fisheries Service. ecosystem science. Individuals with May 21, will be accessible via [FR Doc. 2020–09628 Filed 5–5–20; 8:45 am] expertise in other NOAA mission areas conference call and webinar. Conference BILLING CODE 3510–22–P are also welcome to apply. call and webinar access information are Composition and Points of View: The available at: https:// Board will consist of approximately DEPARTMENT OF COMMERCE www.fisheries.noaa.gov/event/may- fifteen members, including a Chair, 2020-hms-advisory-panel-meeting. designated by the Under Secretary in Participants are strongly encouraged National Oceanic and Atmospheric Administration accordance with Federal Advisory to log/dial in 15 minutes prior to the Committee Act requirements. meeting. NMFS will show the Science Advisory Board (SAB); Members will be appointed for three- presentations via webinar and allow Solicitation for Members of the NOAA year terms, renewable once, and serve at public comment during identified times Science Advisory Board the discretion of the Under Secretary. If on the agenda. a member resigns before the end of his FOR FURTHER INFORMATION CONTACT: AGENCY: National Oceanic and or her first term, the vacancy Peter Cooper at (301) 427–8503. Atmospheric Administration (NOAA), appointment shall be for the remainder SUPPLEMENTARY INFORMATION: The Office of Oceanic and Atmospheric of the unexpired term, and shall be Magnuson-Stevens Fishery Research (OAR), Department of renewable twice if the unexpired term is Conservation and Management Act, 16 Commerce (DOC). less than one year. Members will be

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appointed as special government Saint Matthew Island blue king crab is Dated: April 30, 2020. employees (SGEs) and will be subject to still overfished, the American Samoa He´le`ne M.N. Scalliet, the ethical standards applicable to Bottomfish Multi-species Complex is Acting Director, Office of Sustainable SGEs. Members are reimbursed for now subject to overfishing and now Fisheries, National Marine Fisheries Service. actual and reasonable travel and per overfished, and the Guam Bottomfish [FR Doc. 2020–09622 Filed 5–5–20; 8:45 am] diem expenses incurred in performing Multi-species Complex is now BILLING CODE 3510–22–P such duties but will not be reimbursed overfished. NMFS, on behalf of the for their time. As a Federal Advisory Secretary, notifies the appropriate Committee, the Board’s membership is regional fishery management council DEPARTMENT OF COMMERCE required to be balanced in terms of (Council) whenever it determines that viewpoints represented and the National Oceanic and Atmospheric overfishing is occurring, a stock is in an Administration functions to be performed as well as the overfished condition, or a stock is interests of geographic regions of the approaching an overfished condition. [RTID 0648–XA132] country and the diverse sectors of U.S. society. FOR FURTHER INFORMATION CONTACT: Takes of Marine Mammals Incidental to The SAB meets in person three times Regina Spallone, (301) 427–8568. Specified Activities; Taking Marine each year, exclusive of teleconferences Mammals Incidental to Marine Site SUPPLEMENTARY INFORMATION: Pursuant or subcommittee, task force, and Characterization Surveys Off of to section 304(e)(2) of the Magnuson- working group meetings. Board Massachusetts, Rhode Island, Stevens Fishery Conservation and members must be willing to serve as Connecticut, and New York liaisons to SAB working groups and/or Management Act (Magnuson-Stevens participate in periodic reviews of the Act), 16 U.S.C. 1854(e)(2), NMFS, on AGENCY: National Marine Fisheries NOAA Cooperative Institutes and behalf of the Secretary, must notify Service (NMFS), National Oceanic and overarching reviews of NOAA’s research Councils, and publish in the Federal Atmospheric Administration (NOAA), enterprise. Register, whenever it determines that a Commerce. Nominations: Interested persons may stock or stock complex is subject to ACTION: Notice; issuance of an incidental nominate themselves or third parties. overfishing, overfished, or approaching harassment authorization. Applications: An application is an overfished condition. required to be considered for Board SUMMARY: In accordance with the NMFS has determined that Saint membership, regardless of whether a regulations implementing the Marine person is nominated by a third party or Matthew Island blue king crab is still Mammal Protection Act (MMPA) as self-nominated. The application package overfished. This determination is based amended, notification is hereby given must include: (1) The nominee’s full on the most recent assessment, that NMFS has issued an incidental name, title, institutional affiliation, and completed in 2019 using data through harassment authorization (IHA) to contact information; (2) the nominee’s 2019, which indicates that the biomass Vineyard Wind, LLC (Vineyard Wind) to area(s) of expertise; (3) a short estimate remains below its threshold. incidentally harass, by Level B description of his/her qualifications NMFS has notified the North Pacific harassment only, marine mammals relative to the kinds of advice being Fishery Management Council of the during marine site characterization solicited by NOAA in this Notice; and requirements to rebuild this stock. surveys off the coast of Massachusetts in (4) a current resume (maximum length NMFS has determined that the the areas of the Commercial Lease of four [4] pages). American Samoa Bottomfish Multi- Submerged Lands for Renewable Energy Dated: April 28, 2020. species Complex is now subject to Development on the Outer Continental David Holst, overfishing and now overfished. This Shelf (OCS–A 0501 and OCS–A 0522) and along potential submarine cable Director Chief Financial Officer/CAO, Office determination is based on the most routes to a landfall location in of Oceanic and Atmospheric Research, recent assessment, completed in 2019, Massachusetts, Rhode Island, National Oceanic and Atmospheric using data through 2017, which Connecticut, and New York. Administration. indicates that this complex is overfished [FR Doc. 2020–09641 Filed 5–5–20; 8:45 am] because the biomass estimate is less DATES: This authorization is valid from BILLING CODE 3510–KD–P than the threshold and subject to June 1, 2020 through May 31, 2021. overfishing because the fishing FOR FURTHER INFORMATION CONTACT: mortality rate is greater than the Robert Pauline, Office of Protected DEPARTMENT OF COMMERCE threshold. In addition, NMFS has Resources, NMFS, (301) 427–8401. Electronic copies of the applications National Oceanic and Atmospheric determined that the Guam Bottomfish and supporting documents, as well as a Administration Multi-species Complex is now list of the references cited in this overfished. This determination is based [RTID 0648–XV180] document, may be obtained by visiting on the most recent assessment, the internet at: www.fisheries.noaa.gov/ Determination of Overfishing or an completed in 2019, using data through national/marine-mammal-protection/ Overfished Condition 2017, which indicates that this complex incidental-take-authorizations-other- is overfished because the biomass energy-activities-renewable. In case of AGENCY: National Marine Fisheries estimate is less than the threshold. Service (NMFS), National Oceanic and problems accessing these documents, NMFS has notified the Western Pacific please call the contact listed above. Atmospheric Administration (NOAA), Fishery Management Council of its Commerce. SUPPLEMENTARY INFORMATION: obligation to end overfishing on the ACTION: Notice. American Samoa Multi-species Background SUMMARY: This action serves as a notice Complex and rebuild both stock The MMPA prohibits the ‘‘take’’ of that NMFS, on behalf of the Secretary of complexes. marine mammals, with certain Commerce (Secretary), has found that exceptions. Sections 101(a)(5)(A) and

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(D) of the MMPA (16 U.S.C. 1361 et Summary of Request to landfall locations in Massachusetts, seq.) direct the Secretary of Commerce Rhode Island, Connecticut, and New On October 24, 2019, NMFS received (as delegated to NMFS) to allow, upon a request from Vineyard Wind for an York. request, the incidental, but not IHA to take marine mammals incidental The purpose of the marine site intentional, taking of small numbers of to marine site characterization surveys characterization surveys is to obtain a marine mammals by U.S. citizens who baseline assessment of seabed/sub- engage in a specified activity (other than offshore of Massachusetts in the areas of commercial fishing) within a specified the Commercial Lease of Submerged surface soil conditions in the Lease Area geographical region if certain findings Lands for Renewable Energy and cable route corridors to support the are made and either regulations are Development on the Outer Continental siting of potential future offshore wind issued or, if the taking is limited to Shelf (OCS–A 0501 and OCS–A 0522) projects. Underwater sound resulting harassment, a notice of a proposed and along potential submarine offshore from Vineyard Wind’s planned site incidental take authorization may be export cable corridors (OECC) to characterization surveys has the provided to the public for review. landfall locations in Massachusetts, potential to result in incidental take of Authorization for incidental takings Rhode Island, Connecticut, and New marine mammals in the form of shall be granted if NMFS finds that the York. NMFS deemed that request to be behavioral harassment. The estimated taking will have a negligible impact on adequate and complete on January 7, duration of the activity is expected to be the species or stock(s) and will not have 2020. Vineyard Wind’s request is for the up to 365 survey days starting in June, take of 14 marine mammal species by an unmitigable adverse impact on the 2020. This schedule is based on 24-hour Level B harassment that would occur, availability of the species or stock(s) for operations and includes potential down using multiple concurrently operating taking for subsistence uses (where time due to inclement weather. A relevant). Further, NMFS must prescribe vessels, over the course of up to 365 calendar days. Neither Vineyard Wind maximum of 736 vessel days are the permissible methods of taking and planned with up to eight survey vessels other ‘‘means of effecting the least nor NMFS expects serious injury or operating concurrently. Survey vessels practicable adverse impact’’ on the mortality to result from this activity and will travel at an average speed of 3.5 affected species or stocks and their the activity is expected to last no more habitat, paying particular attention to than one year, therefore, an IHA is knots (kn) and total distance covered by rookeries, mating grounds, and areas of appropriate. each while actively operating HRG equipment is approximately 100 similar significance, and on the Description of the Specified Activity availability of such species or stocks for kilometers (km) per day. The notice of taking for certain subsistence uses Vineyard Wind plans to conduct high- proposed IHA incorrectly stated an (referred to in shorthand as resolution geophysical (HRG) surveys in average speed of 4 kn. ‘‘mitigation’’); and requirements support of offshore wind development The HRG survey activities planned by pertaining to the mitigation, monitoring projects in the areas of Commercial Vineyard Wind are described in detail and reporting of such takings are set Lease of Submerged Lands for in the notice of proposed IHA (85 FR forth. Renewable Energy Development on the 7952; February 12, 2020). The HRG The definitions of all applicable Outer Continental Shelf (#OCS–A 0501 equipment planned for use is shown in MMPA statutory terms cited above are and #OCS–A 0522) (Lease Areas) and Table 1. included in the relevant sections below. along potential submarine cable routes TABLE 1—SUMMARY OF GEOPHYSICAL SURVEY EQUIPMENT PLANNED FOR USE BY VINEYARD WIND

HRG Operating Beam Source level Peak source level Pulse Repetition equipment Specific HRG equipment frequency width μ duration rate category (kHz) (°) (dB rms) (dB re 1 Pa m) (ms) (Hz)

Shallow subbottom profiler ...... EdgeTech Chirp 216 ...... 2–10 65 178 182 2 3.75 Innomar SES 2000 Medium ...... 85–115 2 241 247 2 40 Deep seismic profiler ...... Applied Acoustics AA251 Boomer .. 0.2–15 180 205 212 0.9 2 GeoMarine Geo Spark 2000 (400 0.25–5 180 206 214 2.8 1 tip). Underwater positioning (USBL) ...... SonarDyne Scout Pro ...... 35–50 180 188 191 Unknown Unknown ixBlue Gaps ...... 20–32 180 191 194 1 10

As described above, detailed Comments and Responses Management Act. NMFS has posted the description of Vineyard Wind’s planned A notice of proposed IHA was comments online at: surveys is provided in the notice of published in the Federal Register on www.fisheries.noaa.gov/national/ proposed IHA (85 FR 7952; February 12, February 12, 2020 (85 FR 7952). During marine-mammal-protection/incidental- 2020). Since that time, no changes have the 30-day public comment period, take-authorizations-other-energy- been made to the activities. Therefore, a NMFS received comment letters from: activities-renewable. A summary of the detailed description is not provided (1) The Marine Mammal Commission public comments received from the here. Please refer to that notice for the (Commission); (2) a group of Commission, the ENGOs, and the FAB detailed description of the specified environmental non-governmental as well as NMFS’ responses to those activity. Mitigation, monitoring, and organizations (ENGOs) including the comments are below. reporting measures are described in Natural Resources Defense Council, Comment 1: The Commission detail later in this document (please see Conservation Law Foundation, and recommended that NMFS incorporate Mitigation and Monitoring and National Wildlife Federation; and (3) the actual beamwidth of 75° rather than Reporting below). the Rhode Island Fisherman’s Advisory 180° for the Applied Acoustics AA251 Board (FAB), which manages the state’s boomer for Vineyard Wind and re- coastal program under the Coastal Zone

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estimate the Level A and B harassment for modeling exposure estimates in the Response: NMFS agrees with the zones accordingly. notice of proposed IHA (85 FR 7952; Commission that methodological and Response: None of the HRG sources February 12, 2020). However, NMFS has signal processing standards for HRG specified by the Commission’s comment confirmed using a recently-developed sources is warranted and is working on were determined to be the dominant spreadsheet tool that accompanies our developing such standards. However, source in terms of Level A/B harassment interim HRG guidance (NMFS, 2019), NMFS cannot ensure such standards zones and therefore were not used for which incorporates water depth, that will be developed within the estimating relevant ensonified zones. the incorporation of water depth in Commission’s preferred time frame. Additionally, the Commission’s modeling the HRG sources planned for Comment 5: The Commission recommendations would result in use by Vineyard Wind would result recommended that NMFS (1) prohibit harassment zone sizes for these only in smaller harassment zones for Vineyard Wind and other action particular sources that would be equal some sources, and would not result in proponents from using the impulsive to, or lesser than, those described in the larger zones for any sources. In addition, Level A harassment thresholds for proposed IHA, and therefore would not for the source that was determined to be estimating the extents of the Level A result in a change to the dominant the dominant source in terms of the harassment zones for non-impulsive source used to estimate marine mammal Level B harassment zone and was sources (i.e., echosounders, shallow- exposures. As re-modeling these therefore used to model acoustic penetration SBPs, pingers, etc.) and (2) specific sources would not result in any exposures (the GeoMarine Geo Spark require action proponents to use the changes to marine mammal exposure 2000 (400 tip)), using our interim correct Level A harassment thresholds estimates, Level A or Level B guidance (NMFS, 2019) we determined in all future applications. harassment take numbers, or our incorporation of depth resulted in no Response: NMFS concurs with the determinations, we have determined change to the modeled Level B Commission’s recommendation. As that taking these steps is not warranted harassment isopleth. As a result, NMFS described in the notice of proposed IHA, for this authorization. NMFS will take will take the Commission’s comments NMFS does not agree with Vineyard the Commission’s comments into into consideration for future ITAs for Wind’s characterization of certain HRG consideration for future ITAs for similar similar activities and sources to ensure sources as impulsive sources. However, activities and sources. action proponents incorporate depth this characterization results in more Comment 2: The Commission into acoustic modeling (as we agree is conservative modeling results. Thus, we recommended that NMFS use the out- appropriate). However, as taking this have assessed the potential for Level A of-beam source level of 187 dB re 1 mPa step would not change the modeled harassment to result from the proposed at 1 m from Subacoustech (2018) for the distances to relevant isopleths for activities based on the modeled Level A harassment zones with the Innomar SES–2000 Medium-100 dominant sources, and therefore would parametric SBP and re-estimate the acknowledgement that these zones are result in no change to exposure Level A and B harassment zones. likely conservative. This approach estimates, authorized take numbers, or Otherwise, NMFS should use the in- allows us to assess the impacts of the our determinations, NMFS has beam source level and beamwidth to proposed activity conservatively and is determined that taking this step for this revise the harassment zones accordingly appropriate in this case. Therefore, it is particular authorization is not for the parametric SBP. unnecessary to make any changes to the warranted. We note that the recently- Response: With respect to the analysis for this proposed activity. developed spreadsheet tool that Innomar SES–2000 Medium-100 However, we will proactively work with accompanies the NMFS interim HRG parametric SBP, NMFS has determined action proponents to require use of the that, based on the very narrow beam guidance, referred to above, was not correct Level A harassment thresholds width of this source (i.e., 2 degrees), it publicly available at the time the in all future applications. is extremely unlikely that a marine Vineyard Wind IHA application was Comment 6: The Commission mammal would be exposed to sound submitted, but is now available to the recommended that NMFS (1) re-estimate emitted from this particular source. In public upon request. We also note that all of the Level A and Level B addition, baleen whales are unlikely to the NMFS interim HRG guidance did harassment zones for Vineyard Wind hear signals from this source, which not previously incorporate water depth, using its User Spreadsheet that operates at 85–115 kHz. Therefore, we but a revised version has been incorporates the operating frequency have determined the potential for this developed since the notice of proposed and beamwidth and (2) provide the source to result in take of marine IHA was published, and this version spreadsheet to all action proponents mammals is so low as to be will be shared with applicants from this that conduct HRG surveys, post it on discountable, and re-modeling point onward. These recent NMFS’s website, and require all action harassment isopleths for this source is developments will ensure water depth proponents to use it for all future HRG- therefore not warranted. will be incorporated in future IHAs related authorizations. Comment 3: The Commission issued for HRG surveys. Response: NMFS appreciates the recommended that NMFS incorporate Comment 4: The Commission Commission’s comments and concurs water depth when considering the recommended that NMFS and BOEM with this recommendation. However, beamwidth for all sources, including in expedite efforts to develop and finalize, the current Level A harassment User this instance single-beam echosounders, in the next six months, methodological Spreadsheet does not incorporate shallow-penetration SBPs, and boomers. and signal processing standards for HRG operating frequency or beam width as The Level A and B harassment zones sources. Those standards should be inputs for assessing Level A harassment should be revised accordingly. used by action proponents that conduct zones. The tool referenced by the Response: NMFS agrees with the HRG surveys and that either choose to Commission is in development and will Commission that water depth should be conduct in-situ measurements to inform not be available for use prior to making incorporated in acoustic modeling for an authorization application or are a decision regarding the issuance of this HRG sources and acknowledges that required to conduct measurements to IHA. In addition, re-estimating the depth was not incorporated in the fulfill a lease condition set forth by isopleth distances for Level A modeling of HRG sources that was used BOEM. harassment with the incorporation of

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operating frequency and beam width under the MMPA. As an example, which does not account for the would result in smaller Level A zones NMFS has determined that most types effectiveness of the required mitigation. and would therefore not result in any of geotechnical survey equipment are There are several reasons justifying this change in our determination as to generally unlikely to result in the reduction. Vineyard Wind will establish whether Level A harassment is a likely incidental take of marine mammals (in and monitor a shutdown zone at least outcome of the activity. Therefore, the the absence of site-specific or species- 2.5 times (500-m) greater than the Level A harassment zones will not be specific circumstances that may warrant predicted Level B harassment threshold recalculated. Note that the current User additional analysis). NMFS has not distance (195 m). Take has also been Spreadsheet is available on our website. made such a determination with respect conservatively calculated based on the The current interim guidance for to all HRG sources. As NMFS has not largest source, which will not be determining Level B harassment zones made a determination that sound from operating at all times, and take is does incorporate operating frequency all HRG sources would be considered de therefore likely over-estimated to some and beam width. We strongly minimis we cannot rule out the degree. Furthermore, the potential for recommend that applicants employ potential for these sources to result in incidental take during daylight hours is these tools, as we believe they are best the incidental take of marine mammals. very low given that two PSOs are currently available methodologies. Comment 9: The Commission required for monitoring. However, applicants are free to develop recommended that NMFS consider Additionally, sightings of right whales additional models or use different tools whether, in such situations involving have been uncommon during previous if they believe they are more HRG surveys, incidental harassment HRG surveys. Bay State Wind submitted representative of real-world conditions. authorizations are necessary given the a marine mammal monitoring report on Comment 7: The Commission small size of the Level B harassment July 19, 2019 describing PSO recommended that NMFS: (1) Continue zones, the proposed shut-down observations and takes in Lease Area to prohibit action proponents, including requirements, and the added protection OCS–A500, which is adjacent to part of Vineyard Wind, from using a 100-msec afforded by the lease-stipulated Vineyard Wind’s survey area covered integration time to adjust the SPLrms- exclusion zones. Specifically, the under this IHA. The offshore export based source levels when estimating the Commission states that NMFS should cable corridor (OECC) areas for Bay Level B harassment zones; (2) ensure evaluate whether taking needs to be State Wind and Vineyard Wind also that the Federal Register notice for the authorized for those sources that are not overlap. Over 376 vessel days, three final authorization for Vineyard Wind considered de minimis, including separate survey ships recorded a total of does not incorrectly state that pulse sparkers and boomers, and for which 496 marine mammal detections between duration was considered in the implementation of the various May 11, 2018 and March 14, 2019. estimation of the Level B harassment mitigation measures should be sufficient Nevertheless, there were no confirmed zones: And (3) require action to avoid Level B harassment takes. observations of right whales on any of proponents to omit any related Response: NMFS has evaluated the survey ships during the entire discussions regarding integration time whether taking needs to be authorized survey period. There were a number of from all future applications to avoid for those sources that are not considered unidentifiable whales reported, and it is unnecessary confusion and errors in de minimis, including sparkers and possible that some of these unidentified future Federal Register notices. boomers, factoring into consideration animals may have been right whales. Response: As the Commission is the effectiveness of mitigation and Vineyard Wind’s marine mammal aware, NMFS does not have the monitoring measures, and we have monitoring report included Lease Areas authority to require action proponents determined that implementation of OCS–A 0501 and OCS–A 0522 from to omit the discussion of particular mitigation and monitoring measures May 31, 2019 through January 7, 2020. topics in ITA applications. We will, cannot ensure that all take can be No right whales were observed although however, continue to prohibit avoided during all HRG survey activities unidentifiable whales, some of them applicants from using a 100-msec under all circumstances at this time. If possibly right whales, were recorded. integration time to adjust the SPLrms- and when we are able to reach such a However, the lack of confirmed based source levels when estimating the conclusion, we will re-evaluate our observations by both Bay State Wind Level B harassment zones, as we have determination that incidental take and Vineyard Wind within or near the done in this IHA. NMFS has removed authorization is warranted for these Lease Areas included in this issued IHA references to the use of pulse duration activities. indicates that right whale sightings have for the estimation of Level B harassment Comment 10: The Commission and not been common in this region during zones. ENGOs recommended that NMFS previous survey work. In summary, the Comment 8: The Commission provide justification for reducing the aforementioned factors lead NMFS to recommended that NMFS evaluate the number of Level B harassment takes for conclude that the unadjusted modeled impacts of sound sources consistently North Atlantic right whales. exposure estimate is likely a significant across all action proponents and deem Response: NMFS understands that the overestimate of actual potential sources de minimis in a consistent required mitigation and monitoring exposure. Accordingly, NMFS has made manner for all proposed incidental measures may not be 100 percent a reasonable adjustment to harassment authorizations and effective under all conditions. Due to conservatively account for these rulemakings. This has the potential to night time operations over an extended expected impacts on actual taking of reduce burdens on both action period (736 vessel days), NMFS right whales. proponents and NMFS. acknowledges that a limited number of Comment 11: The Commission Response: NMFS concurs with the right whales may enter into the Level B recommended that NMFS authorize up Commission’s recommendation and harassment zone without being to four Level B harassment takes of sei agrees that sound sources should be observed. Therefore, NMFS has whales, consistent with Table 1 in the analyzed in a consistent manner and conservatively authorized take of 10 draft authorization. agrees that sources determined to result right whales by Level B harassment. The Response: NMFS concurs with the in de minimis impact should generally number of authorized takes was reduced recommendation and has authorized be considered unlikely to result in take from the calculated take of 30 whales, four sei whale takes by Level B

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harassment as shown in Table 5 to days, as required by section 202(d) of that there have been a number of recent match the number of takes included in the MMPA. mortalities. While the ensonified areas the draft and issued IHA. Comment 14: The Commission contemplated for any single HRG vessel Comment 12: The Commission recommends that, for all authorizations are comparatively small and the recommended that NMFS require and rulemakings, NMFS provide anticipated resulting effects of exposure Vineyard Wind to report as soon as separate, detailed explanations for not relatively lower-level, the potential possible and cease project activities following or adopting any Commission impacts of multiple HRG vessels (up to immediately in the event of an recommendation. 8 according to Vineyard Wind) unauthorized injury or mortality of a Response: NMFS agrees that section operating simultaneously in areas of marine mammal from a vessel strike 202(d) of the MMPA requires that any higher right whale density are not well- until NMFS’s Office of Protected recommendations made by the documented and warrant caution. Resources and the New England/Mid- Commission be responded to within 120 NMFS agrees with the Atlantic Regional Stranding Coordinator days of receipt, and that response to recommendation to include a seasonal determine whether additional measures recommendations that are not followed restriction on survey activity, as are necessary to minimize the potential or adopted must be accompanied by a described below and determined by for additional unauthorized takes. detailed explanation of the reasons why. NMFS to be both warranted and Response: NMFS has imposed a suite Therefore, NMFS concurs with the practicable. NMFS reviewed the best of measures in this IHA to reduce the Commission’s recommendation that available right whale abundance data for risk of vessel strikes and has not NMFS provide detailed explanations for the planned survey area (Roberts et al. authorized any takes associated with not following or adopting any 2017; Kraus et al. 2016). We determined vessel strikes. However, NMFS does not Commission recommendation. that right whale abundance is concur and does not adopt the However, NMFS disagrees with the significantly higher in the period recommendation. NMFS does not agree Commission’s underlying allegation that starting in late winter and extending to that a blanket requirement for project we have not provided the necessary late spring in specific sections of the activities to cease would be practicable responses, as required by the MMPA. survey area. for a vessel that is operating on the open Section 202(d) requires NMFS to Based on this information NMFS has water, and it is unclear what mitigation provide detailed explanations of the defined seasonal restriction areas that benefit would result from such a reasons why recommendations are not Vineyard Wind must follow when requirement in relation to vessel strike. adopted within 120 days, however it conducting HRG surveys. Survey The Commission does not suggest what does not provide the Commission with activities may only occur in the Cape measures other than those prescribed in the authority to assess the adequacy of Cod Bay Seasonal Management Area this IHA would potentially prove more NMFS’ response, and NMFS believes (SMA) and off of the Race Point SMA effective in reducing the risk of strike. that the explanations provided are during the months of August and Therefore, we have not included this sufficient. Regarding certain examples September to ensure sufficient buffer requirement in the authorization. NMFS where NMFS does acknowledge having between the SMA restrictions (January retains authority to modify the IHA and yet to provide the requisite detailed to May 15) and known seasonal cease all activities immediately based explanation, the Commission notes that occurrence of right whales north and on a vessel strike and will exercise that it has been ‘‘over a month’’ with no northeast of Cape Cod (fall, winter, and authority if warranted. response. However, as noted accurately spring). Comment 13: The Commission by the Commission, the statute requires Vineyard Wind will limit to three the recommended that NMFS refrain from only that the explanation be provided number of survey vessels that will issuing renewals for any authorization within 120 days. operate concurrently from March and instead use its abbreviated Federal Comment 15: The ENGOs through June within the lease areas Register notice process. That process is recommended a seasonal restriction on (OCS–A 0501 and 0487) and OECC areas similarly expeditious and fulfills site assessment and characterization north of the lease areas up to, but not NMFS’s intent to maximize efficiencies, activities in the Project Areas with the including, coastal and bay waters. An and that NMFS (1) stipulate that a potential to harass North Atlantic right additional seasonal restriction area has renewal is a one-time opportunity (a) in whales between November 1, 2020 and been defined south of Nantucket and all Federal Register notices requesting May 14, 2021. will be in effect from December to comments on the possibility of a Response: In evaluating how February in the area delineated by the renewal, (b) on its web page detailing mitigation may or may not be Dynamic Management Area (DMA) that the renewal process, and (c) in all draft appropriate to ensure the least was effective from January 31, 2020 and final authorizations that include a practicable adverse impact on species or through February 15, 2020. DMAs have term and condition for a renewal and, stocks and their habitat, we carefully been established during this time frame (2) if NMFS refuses to stipulate a consider two primary factors: (1) The in this area for the last several years. renewal being a one-time opportunity, manner in which, and the degree to DMAs are temporary protection zones explain why it will not do so in its which, the successful implementation of that are triggered when three or more Federal Register notices, on its web the measure(s) is expected to reduce whales are sighted within 2–3 miles of page, and in all draft and final impacts to marine mammals, marine each other outside of active SMAs. The authorizations. mammal species or stocks, and their size of a DMA is larger if more whales Response: NMFS does not agree with habitat; and (2) the practicability of the are present. the Commission and, therefore, does not measures for applicant implementation, Vineyard Wind is permitted to adopt the Commission’s which may consider such things as operate no more than three survey recommendation. As explained in relative cost and impact on operations. vessels concurrently in the areas response to Comment 21, NMFS NMFS is concerned about the status described above during the December– believes renewals can be issued in of the North Atlantic right whale February and March–June timeframes certain limited circumstances. NMFS population given that an unusual when right whale densities are greatest. will provide a more detailed mortality event (UME) has been in effect The seasonal restrictions described explanation of its decision within 120 for this species since June of 2017 and above will help to reduce both the

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number and intensity of right whale additional surveys the following year. to visually monitor the exclusion area takes. Regarding practicability, the This would result in significantly during nighttime hours, the ENGOs also timing of Vineyard Wind’s surveys is increased costs incurred by the recommended that NMFS require, for driven by a complex suite of factors applicant. Thus the restriction suggested efforts that continue into the nighttime, including availability of vessels and by the commenters would not be a combination of night-vision, thermal equipment (which are used for other practicable for the applicant to imaging, and PAM. surveys and by other companies), other implement. In consideration of potential Response: There are several reasons permitting timelines, and the timing of effectiveness of the recommended why we do not agree that use of PAM certain restrictions associated with measure and its practicability for the is warranted for 24-hour HRG surveys fisheries gear, among other things. applicant, NMFS has determined that such as the one planned by Vineyard Vineyard Wind has indicated that there restricting survey start-ups to daylight Wind. While NMFS agrees that PAM is enough flexibility to revise their hours when visibility is unimpeded is can be an important tool for augmenting survey plan such that they can both not warranted or practicable in this detection capabilities in certain accommodate this measure and satisfy case. circumstances, its utility in further their permitting and operational Comment 17: The ENGOs reducing impact for Vineyard Wind’s obligations, and we do not anticipate recommended that NMFS require HRG survey activities is limited. First, that these restrictions will impact monitoring an exclusion zone (EZ) for for this activity, the area expected to be Vineyard Wind’s ability to execute their North Atlantic right whales of at least ensonified above the Level B survey plan within the planned 736 500 meters (m), and ideally 1,000 m, harassment threshold is relatively small vessel days. Therefore, NMFS around each vessel conducting activities (a maximum of 195 m as described in determined that this required mitigation with noise levels that could result in the Estimated Take section)—this measure is sufficient to ensure the least injury or harassment to this species. reflects the fact that, to start with, the practicable adverse impact on species or Response: Regarding the source level is comparatively low and stocks and their habitat. recommendation for a 1,000 m EZ the intensity of any resulting impacts Comment 16: The ENGOs specifically for North Atlantic right would be lower level and, further, it recommended a prohibition on the whales, we have determined that the means that inasmuch as PAM will only commencement of geophysical surveys 500-m EZ, as required in the IHA, is detect a portion of any animals exposed at night or during times of poor sufficiently protective. We note that the within a zone (see below), the overall visibility. They stated that ramp up 500-m EZ exceeds the modeled distance probability of PAM detecting an animal should occur during daylight hours to the largest Level B harassment in the harassment zone is low—together only, to maximize the probability that isopleth distance (195 m) by a these factors support the limited value North Atlantic right whales are detected substantial margin. Thus, we are not of PAM for use in reducing take with and confirmed clear of the exclusion requiring shutdown if a right whale is smaller zones. PAM is only capable of zone. observed beyond 500-m. detecting animals that are actively Response: We acknowledge the Comment 18: The ENGOs vocalizing, while many marine mammal limitations inherent in detection of recommended a requirement that four species vocalize infrequently or during marine mammals at night. However, no PSOs adhere to a two-on/two-off shift certain activities, which means that only injury is expected to result even in the schedule to ensure no individual PSO is a subset of the animals within the range absence of mitigation, given the very responsible for monitoring more than of the PAM would be detected (and small estimated Level A harassment 180° of the exclusion zone at any one potentially have reduced impacts). zones. Any potential impacts to marine time. Additionally, localization and range mammals authorized for take would be Response: NMFS typically requires a detection can be challenging under limited to short-term behavioral single PSO to be on duty during certain scenarios. For example, responses. Restricting surveys in the daylight hours and 30 minutes prior to odontocetes are fast moving and often manner suggested by the commenters and during nighttime ramp-ups for HRG travel in large or dispersed groups may reduce marine mammal exposures surveys. Vineyard Wind proposed, and which makes localization difficult. In by some degree in the short term, but has voluntarily committed, to a addition, the ability of PAM to detect would not result in any significant minimum of two (2) NMFS-approved baleen whale vocalizations is further reduction in either intensity or duration PSOs on duty and conducting visual limited due to being deployed from the of noise exposure. Vessels would also observations on all survey vessels at all stern of a vessel, which puts the PAM potentially be on the water for an times when HRG equipment is in use hydrophones in proximity to propeller extended time introducing noise into (i.e., daylight and nighttime operations). noise and low frequency engine noise the marine environment. The NMFS adopted Vineyard Wind’s PSO which can mask the low frequency restrictions recommended by the proposal. Even in the absence of the sounds emitted by baleen whales, commenters could result in the surveys mitigation provided by PSOs, the including right whales. spending increased time on the water, impacts of this survey are quite low and Given that the effects to marine which may result in greater overall Vineyard Wind has proposed more mammals from the types of surveys exposure to sound for marine mammals; PSOs monitoring when HRG equipment authorized in this IHA are expected to thus the commenters have not is in use than NMFS typically requires. be limited to low level behavioral demonstrated that such a requirement We have determined that the PSO harassment even in the absence of would result in a net benefit. requirements in the IHA are sufficient to mitigation, the limited additional Furthermore, restricting the ability of ensure the least practicable adverse benefit anticipated by adding this the applicant to ramp-up only during impact on the affected species or stocks detection method (especially for right daylight hours would have the potential and their habitat. whales and other low frequency to result in lengthy shutdowns of the Comment 19: The ENGOs cetaceans, species for which PAM has survey equipment, which could result recommended that a combination of limited efficacy), and the cost and in the applicant failing to collect the visual monitoring by PSOs and passive impracticability of implementing a full- data they have determined is necessary acoustic monitoring (PAM) should be time PAM program, we have determined and, subsequently, the need to conduct used at all times. Since PSOs are unable the current requirements for visual

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monitoring are sufficient to ensure the sufficient to ensure the least practicable scale or nature not previously analyzed. least practicable adverse impact on the adverse impact on species or stocks and The additional 15-day public comment affected species or stocks and their their habitat. As noted previously, period provides the public an habitat. However, we note that Vineyard occurrence of vessel strike during opportunity to review these few Wind will voluntarily implement PAM surveys is extremely unlikely based on documents, provide any additional during night operations as an added the low vessel speed of approximately pertinent information and comment on precautionary measure even though this 3.5 knots (6.5 km/hour) while transiting whether they think the criteria for a is not a NMFS requirement. survey lines. Furthermore, no Renewal have been met. Between the As stated in the draft IHA, Vineyard documented vessel strikes have initial 30-day comment period on these Wind is required to use night-vision occurred for any HRG surveys which same activities and the additional 15 equipment (i.e., night-vision goggles were issued IHAs from NMFS. days, the total comment period for a and/or infrared technology) during night Comment 21: The ENGOs objected to Renewal is 45 days. time monitoring. NMFS’ process to consider extending In addition to the IHA Renewal Comment 20: The ENGOs any one-year IHA with a truncated 15- process being consistent with all recommended a requirement that all day comment period as contrary to the requirements under section 101(a)(5)(D), project vessels (regardless of size) either MMPA. it is also consistent with Congress’ transiting to/from or operating within Response: NMFS’ IHA Renewal intent for issuance of IHAs to the extent the Lease Areas observe a 10 knot speed process meets all statutory reflected in statements in the legislative restriction during times, at minimum, requirements. All IHAs issued, whether history of the MMPA. Through the when mother-calf pairs, pregnant an initial IHA or a Renewal IHA, are provision for Renewals in the females, surface active groups, or valid for a period of not more than one regulations, description of the process aggregations of three or more whales are year. And the public has at least 30 days and express invitation to comment on confirmed or, based on multi-year to comment on all proposed IHAs, with specific potential Renewals in the sightings data, expected to be in the a cumulative total of 45 days for IHA Request for Public Comments section of area. The commenters also recommend Renewals. As noted above, the Request each proposed IHA, the description of that a compulsory 10 knot vessel speed for Public Comments section made clear the process on NMFS’ website, further restriction should also be required of all that the agency was seeking comment elaboration on the process through project vessels (not just survey vessels) on both the initial proposed IHA and responses to comments such as these, within a DMA established by NMFS. To the potential issuance of a Renewal for posting of substantive documents on the the extent that any project vessel of any this project. Because any Renewal (as agency’s website, and provision of 30 or size may exceed a speed of 10 knots, the explained in the Request for Public 45 days for public review and comment ENGOs state that this should only be Comments section) is limited to another on all proposed initial IHAs and allowed if multiple monitoring year of identical or nearly identical Renewals respectively, NMFS has measures are in place, including aerial activities in the same location (as ensured that the public ‘‘is invited and surveys or a combination of vessel- described in the Description of Proposed encouraged to participate fully in the based visual observers and passive Activity section) or the same activities agency decision-making process.’’ acoustic monitoring. that were not completed within the one- Comment 22: The ENGOs suggested Response: NMFS has analyzed the year period of the initial IHA, reviewers that it should be NMFS’ top priority to potential for ship strike resulting from have the information needed to consider any initial data from State Vineyard Wind’s activity and has effectively comment on both the monitoring efforts, passive acoustic determined that the mitigation measures immediate proposed IHA and a possible monitoring data, opportunistic marine specific to ship strike avoidance are one-year Renewal, should the IHA mammal sightings data, satellite sufficient to avoid the potential for ship holder choose to request one in the telemetry, and other data sources. strike. These include: A requirement coming months. Further, commenters state that NMFS that all vessel operators comply with 10 While there will be additional should take steps now to develop a knot (18.5 kilometer (km)/hour) or less documents submitted with a Renewal dataset that more accurately reflects speed restrictions in any SMA or DMA; request, for a qualifying Renewal these marine mammal presence so that it is in a requirement that all vessel operators will be limited to documentation that hand for future IHA authorizations and reduce vessel speed to 10 knots (18.5 NMFS will make available and use to other work. km/hour) or less when any large whale, verify that the activities are identical to Response: NMFS will review any any mother/calf pairs, pods, or large those in the initial IHA, are nearly recommended data sources and will assemblages of non-delphinoid identical such that the changes would continue to use the best available cetaceans are observed within 100 m of have either no effect on impacts to information. We welcome future input an underway vessel; a requirement that marine mammals or decrease those from interested parties on data sources all survey vessels maintain a separation impacts, or are a subset of activities that may be of use in analyzing the distance of 500-m or greater from any already analyzed and authorized but not potential presence and movement sighted North Atlantic right whale; a completed under the initial IHA. NMFS patterns of marine mammals, including requirement that, if underway, vessels will also confirm, among other things, North Atlantic right whales, in New must steer a course away from any that the activities will occur in the same England waters. sighted North Atlantic right whale at 10 location; involve the same species and Comment 23: The ENGOs stated that knots or less until the 500-m minimum stocks; provide for continuation of the the agency’s assumptions regarding separation distance has been same mitigation, monitoring, and mitigation effectiveness are unfounded established; and a requirement that, if a reporting requirements; and that no new and cannot be used to justify any North Atlantic right whale is sighted in information has been received that reduction in the number of takes a vessel’s path, or within 500 m of an would alter the prior analysis. The authorized as was done for right whales. underway vessel, the underway vessel Renewal request will also contain a The reasons cited include: (i) The must reduce speed and shift the engine preliminary monitoring report, but that agency’s reliance on a 160 dB threshold to neutral. We have determined that the is to verify that effects from the for behavioral harassment that is not ship strike avoidance measures are activities do not indicate impacts of a supported by the best available

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scientific information in other low- to the species receiving the sound and the Ellison et al., 2012; Bain and Williams, mid-frequency sources (which sound source, but also on the social, 2006). Further, we note that the sounds commenters assert demonstrates Level B behavioral, or environmental contexts of sources and the equipment used in the harassment takes will occur with near exposure. Finally, Gong et al. (2014) specified activities are outside (higher certainty at exposure levels well below highlighted that behavioral responses than) of the most sensitive range of the 160 dB threshold); (ii) the depend on many contextual factors, mysticete hearing. geographic and temporal extent, as well including range to source, RL above There is currently no agreement on as the 24-hour nature of the survey background noise, novelty of the signal, these complex issues, and NMFS activities proposed to be authorized; and differences in behavioral state. followed the practice at the time of and (iii) the reliance on the assumption Similarly, Kastelein et al., 2015 (cited in submission and review of this that marine mammals will avoid sound the comment) examined behavioral application in assessing the likelihood despite studies that have found responses of a harbor porpoise to sonar of disruption of behavioral patterns by avoidance behavior is not generalizable signals in a quiet pool, but stated using the 160 dB threshold. This among species and contexts. behavioral responses of harbor threshold has remained in use in part Response: The three comments porpoises at sea would vary with because of the practical need to use a provided by the ENGOs are addressed context such as social situation, sound relatively simple threshold based on individually below. propagation, and background noise available information that is both (i) NMFS acknowledges that the levels. predictable and measurable for most potential for behavioral response to an NMFS uses 160 dB (rms) as the activities. We note that the seminal anthropogenic source is highly variable exposure level for estimating Level B review presented by Southall et al. and context-specific and acknowledges harassment takes, while acknowledging (2007) did not suggest any specific new the potential for Level B harassment at that the 160 db rms step-function criteria due to lack of convergence in exposures to received levels below 160 approach is a simplistic approach. the data. NMFS is currently evaluating dB rms. Alternatively, NMFS However, there appears to be a available information towards acknowledges the potential that not all misconception regarding the concept of development of guidance for assessing animals exposed to received levels the 160 dB threshold. While it is correct the effects of anthropogenic sound on above 160 dB rms will respond in ways that in practice it works as a step- marine mammal behavior. However, constituting behavioral harassment. function, i.e., animals exposed to undertaking a process to derive There are a variety of studies indicating received levels above the threshold are defensible exposure-response that contextual variables play a very considered to be ‘‘taken’’ and those relationships is complex (e.g., NMFS important role in response to exposed to levels below the threshold previously attempted such an approach, anthropogenic noise, and the severity of are not, it is in fact intended as a sort but is currently re-evaluating the effects are not necessarily linear when of mid-point of likely behavioral approach based on input collected compared to a received level (RL). The responses (which are extremely during peer review of NMFS (2016)). A studies cited in the comment (Nowacek complex depending on many factors recent systematic review by Gomez et et al., 2004 and Kastelein et al., 2012 including species, noise source, al. (2016) was unable to derive criteria and 2015) showed there were behavioral individual experience, and behavioral expressing these types of exposure- responses to sources below the 160 dB context). What this means is that, response relationships based on threshold, but also acknowledge the conceptually, the function recognizes currently available data. importance of context in these that some animals exposed to levels NMFS acknowledges that there may responses. For example, Nowacek et al., below the threshold will in fact react in be methods of assessing likely 2004 reported the behavior of five out of ways that are appropriately considered behavioral response to acoustic stimuli six North Atlantic right whales was take, while others that are exposed to that better capture the variation and disrupted at RLs of only 133–148 dB re levels above the threshold will not. Use context-dependency of those responses 1 mPa (returning to normal behavior of the 160-dB threshold allows for a than the simple 160 dB step-function within minutes) when exposed to an simplistic quantitative estimate of take, used here, but there is no agreement on alert signal. However, the authors also while we can qualitatively address the what that method should be or how reported that none of the whales variation in responses across different more complicated methods may be responded to noise from transiting received levels in our discussion and implemented by applicants. NMFS is vessels or playbacks of ship noise even analysis. committed to continuing its work in though the RLs were at least as strong, Overall, we emphasize the lack of developing updated guidance with and contained similar frequencies, to scientific consensus regarding what regard to acoustic thresholds, but those of the alert signal. The authors criteria might be more appropriate. pending additional consideration and state that a possible explanation for why Defining sound levels that disrupt process is reliant upon an established whales responded to the alert signal and behavioral patterns is difficult because threshold that is reasonably reflective of did not respond to vessel noise is that responses depend on the context in available science. the whales may have been habituated to which the animal receives the sound, (ii) Given the geographic and vessel noise, while the alert signal was including an animal’s behavioral mode temporal extent of the survey area as a novel sound. In addition, the authors when it hears sounds (e.g., feeding, well as continuous 24-hour operations, noted differences between the resting, or migrating), prior experience, the ENGOs question the effectiveness of characteristics of the vessel noise and and biological factors (e.g., age and sex). the mitigation measures proposed to be alert signal which may also have played Other contextual factors, such as signal authorized. They specifically a part in the differences in responses to characteristics, distance from the recommended that seasonal restrictions the two noise types. Therefore, it was source, and signal to noise ratio, may should be established and consideration concluded that the signal itself, as also help determine response to a given should be given to species for which a opposed to the RL, was responsible for received level of sound. Therefore, UME has been declared. Note that the response. DeRuiter et al. (2012) also levels at which responses occur are not NMFS is requiring Vineyard Wind to indicate that variability of responses to necessarily consistent and can be comply with seasonal restrictions as acoustic stimuli depends not only on difficult to predict (Southall et al., 2007; described in the response to Comment

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15. Furthermore, we have established a 1371(a)(5)(A)(i). Cumulative impacts number of factors that were considered 500-m shutdown zone for right whales (also referred to as cumulative effects) is by NMFS based on the best available which is precautionary considering the a term that appears in the context of scientific data and why we concluded Level B harassment isopleth for the NEPA and the ESA, but it is defined that impacts resulting from the specified largest source utilized in the specified differently in those different contexts. activity are not reasonably expected to, activities for this IHA is estimated at Neither the MMPA nor NMFS’s codified or reasonably likely to, adversely affect 195 m. Actual isopleths are no greater implementing regulations address the species or stock through effects on than 195 m and are considerably less for consideration of other unrelated annual rates of recruitment or survival. a number of other HRG devices activities and their impacts on The MMPA does not define small employing downward facing beams at populations. However, the preamble for numbers. NMFS’s practice for making various angles. After accounting for NMFS’s implementing regulations (54 small numbers determinations is to these small harassment zones and FR 40338; September 29, 1989) states in compare the number of individuals examining previous marine mammal response to comments that the impacts estimated and authorized to be taken monitoring reports from nearby areas, from other past and ongoing (often using estimates of total instances the calculated right whale exposures anthropogenic activities are to be of take, without regard to whether decreased from 30 to 10 animals (as incorporated into the negligible impact individuals are exposed more than discussed in greater detail in response analysis via their impacts on the once) against the best available to Comment 10). At these distances, environmental baseline. Accordingly, abundance estimate for that species or monitoring by PSOs is expected to be NMFS here has factored into its stock. In other words, consistent with highly effective. Given these factors, we negligible impact analysis the impacts past practice, when the estimated are confident in our decision to of other past and ongoing anthropogenic number of individual animals taken authorize 10 takes by Level B activities via their impacts on the (which may or may not be assumed as harassment. Additionally, similar baseline (e.g., as reflected in the equal to the total number of takes, mitigation measures have been required density/distribution and status of the depending on the available information) in several previous HRG survey IHAs species, population size and growth is up to, but not greater than, one third and have been successfully rate, and other relevant stressors (such of the species or stock abundance, implemented. as incidental mortality in commercial NMFS will determine that the numbers (iii) The commenters disagreed with fisheries)). of marine mammals taken of a species NMFS’ assumption that marine Comment 25: The FAB indicated that or stock are small. mammals move away from sound NMFS did not adequately justify In summary, when quantitative take sources. The ENGOs claimed that authorized take numbers, particularly in estimates of individual marine studies have not found avoidance allowing incidental take of 10 North mammals are available or inferable behavior to be generalizable among Atlantic right whale. They also felt that through consideration of additional species and contexts, and even though the other numbers for allowed take are factors, and the number of animals avoidance may itself constitute take unjustified, referring to them as a taken is one third or less of the best under the MMPA. Importantly, the percentage of the entire population. As available abundance estimate for the commenters mistakenly seem to believe NMFS stated in its Notice for the species or stock, NMFS considers it to that the NMFS’ does not consider Proposed IHA, ‘‘[a]n estimate of the be of small numbers. NMFS may avoidance as a take, and that the number of takes alone is not enough appropriately find that one or two concept of avoidance is used as a information on which to base an impact predicted group encounters will result mechanism to reduce overall take—this determination.’’ in small numbers of take relative to the is not the case. Avoidance of loud Response: In the Estimated Take range and distribution of a species, sounds is a well-documented behavioral section, NMFS describes in detail how regardless of the estimated proportion of response, and NMFS often accordingly authorized take for each species is the abundance. Additional information accounts for this avoidance by reducing calculated using the best available on NMFS’ interpretation of the small the number of injurious exposures, scientific data. Please refer to that numbers finding may be found in the which would occur in very close section. Justification for the authorized Federal Register notice published on proximity to the source and necessitate take of ten right whales by Level B December 7, 2018 (83 FR 63268) and we a longer duration of exposure. However, harassment as well as the take of other refer the reader to that document. when Level A harassment takes are species may be found in the response to Comment 27: The FAB stated that a reduced in this manner, they are Comment 23. more detailed description of the study changed to Level B harassment takes, in Comment 26: The FAB indicated that equipment planned for use and the recognition of the fact that this the assessment of whether there are potential effects on marine mammals avoidance or other behavioral responses ‘‘small numbers’’ affected, and whether should have been included in the occurring as a result of these exposures there is only a ‘‘negligible impact,’’ proposed IHA. are still take. NMFS does not reduce the should be assessed in further detail Response: The applicant provided overall amount of take as a result of rather than simply listing the detailed descriptions of HRG equipment avoidance. percentages of potentially-impacted planned for use. Information pertaining Comment 24: The ENGOs individuals compared to the species as to specific device characteristics recommended that the agency must a whole, particularly for North Atlantic necessary to assess impacts to marine carefully analyze the cumulative Right Whales. mammals including equipment impacts from the survey activities and Response: The Negligible Impact category, source levels, operating other survey activities contemplated in Analysis and Determination section of frequencies, beam width, pulse duration the other lease areas on the North the proposed IHA (85 FR 7952; February and repetition rate was provided. Note Atlantic right whale and other protected 12, 2020) provides a detailed qualitative that the HRG equipment described in species. discussion supporting NMFS’s the proposed IHA also serves as a proxy Response: The MMPA grants determination that any anticipated for similar equipment types that may be exceptions to its broad take prohibition impacts from this action would be utilized. The potential impacts for a ‘‘specified activity.’’ 16 U.S.C. negligible. The section contains a associated with use of HRG equipment

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may be found in the Potential Effects of and a second probable right whale were potentially affected species. Additional Specified Activities on Marine observed at night by infra-red cameras at information regarding population trends Mammals and Their Habitat section of distances of 1,251 m and approximately and threats may be found in NMFS’ the proposed IHA. The commenter did 800 m respectively. Research studies Stock Assessment Reports (SARs; not provide specific recommendations have concluded that the use of IR www.fisheries.noaa.gov/national/ regarding what additional information is (thermal) imaging technology may allow marine-mammal-protection/marine- necessary. for the detection of marine mammals at mammal-stock-assessments) and more Comment 28: The FAB argued that the night as well as improve the detection general information about these species IHA’s revocation language requires during all periods through the use of (e.g., physical and behavioral amendment because 16 U.S.C. automated detection algorithms descriptions) may be found on NMFS’ 1539(a)(2)(C) states that NMFS shall (Weissenberger 2011). While we website (www.fisheries.noaa.gov/find- revoke the permit if it finds the acknowledge that no technology is species). permittee is not complying with the 100% effective either during daylight or Table 2 summarizes information terms and conditions of the permit; nighttime hours, the equipment used related to the population or stock, thus, the language of the draft IHA here will enhance PSO’s ability to detect including regulatory status under the should reflect this instead of saying that marine mammals at night and the fact MMPA and ESA and potential ‘‘[t]his Authorization may be modified, that not all will be detected is accounted biological removal (PBR), where known. suspended or withdrawn if the holder for in the authorized take. For taxonomy, we follow Committee on fails to abide by the conditions Taxonomy (2019). PBR is defined by the prescribed herein. . .’’ Changes From the Proposed IHA to MMPA as the maximum number of Response: We do not believe the Final IHA animals, not including natural current discretionary language in the As described above, the following mortalities, that may be removed from a IHA precludes NMFS from complying items have been incorporated in the marine mammal stock while allowing 16 U.S.C. 1539(a)(2)(C). We also note issued IHA: that stock to reach or maintain its that the use of the term ‘‘shall’’ in a • Based on recently analyzed Atlantic optimum sustainable population (as statute can be either mandatory or Marine Assessment Program for described in NMFS’ SARs). While no directory depending on the context and Protected Species (AMAPPS) survey mortality is anticipated or authorized legislative intent. data from 2010 through 2018, NMFS has here, PBR is included here as a gross Comment 29: The FAB indicated that revised the mean group size for Risso’s indicator of the status of the species and the draft IHA does not adequately dolphins to 5.9 dolphins which other threats. discuss whether nighttime survey represent a reduction from 30 dolphins activity can be effectively monitored by in the proposed IHA (NOAA Fisheries Marine mammal abundance estimates the two required Protected Species Northeast and Southeast Fisheries presented in this document represent Observers using night-vision goggles Science Centers, 2019, 2018, 2017, 2016, the total number of individuals that and/or infrared technology. While these 2015, 2014, 2013, 2012, 2011). Based on make up a given stock or the total may work under some conditions, the this information NMFS has reduced number estimated within a particular FAB stated it is unlikely they would be authorized take of Risso’s dolphins from study or survey area. NMFS’ stock sufficient for sea states above a flat 30 to 6. abundance estimates for most species calm. Information regarding the efficacy • NMFS rounded up the calculated represent the total estimate of of using night-vision equipment in take of 3.23 sei whales to an authorized individuals within the geographic area, monitoring marine mammals in the area take number of 4 sei whales as shown if known, that comprises that stock. For should be included and addressed. in Table 5. some species, this geographic area may Response: Currently, there are no None of these modifications affect our extend beyond U.S. waters. All managed existing standards that NMFS could use negligible impact or small numbers stocks in this region are assessed in to approve night vision and infrared determinations. NMFS’ U.S. Atlantic SARs. All values equipment. Right whales can be seen at presented in Table 2 are the most recent night from a considerable distance, Description of Marine Mammals in the available at the time of publication and depending on conditions. Note that in a Area of Specified Activity are available in the 2019 draft Atlantic recent IHA monitoring report submitted Sections 3 and 4 of the IHA SARs (Hayes et al., 2019), available to NMFS after completion of an HRG application summarize available online at: www.fisheries.noaa.gov/ survey off the coast of Delaware information regarding status and trends, national/marine-mammal-protection/ (Deepwater Wind, 83 FR 28808, June 21, distribution and habitat preferences, marine-mammal-stock-assessment- 2018) a single confirmed right whale and behavior and life history, of the reports-region. TABLE 2—MARINE MAMMALS KNOWN TO OCCUR IN THE PROJECT AREA THAT MAY BE AFFECTED BY VINEYARD WIND’S PLANNED ACTIVITY

MMPA and Stock abundance Predicted Common name ESA 4 Annual Stock (CV, Nmin, most recent abundance PBR 4 (scientific name) status; 2 3 M/SI strategic abundance survey) (CV) (Y/N) 1

Toothed whales (Odontoceti)

Sperm whale (Physeter macrocephalus) ...... North Atlantic ...... E; Y 4,349 (0.28; 3,451; n/a) ...... 5,353 (0.12) 6.9 0.0 Long-finned pilot whale (Globicephala melas) W North Atlantic ...... --; N 39,215 (0.3; 30,627; n/a) ...... 5 18,977 (0.11) 306 21 Atlantic white-sided dolphin (Lagenorhynchus W North Atlantic ...... --; N 93,233(0.71; 54,443; n/a) ...... 37,180 (0.07) 544 26 acutus). Bottlenose dolphin (Tursiops truncatus) ...... W North Atlantic, Offshore .... --; N 62,851 (0.23; 51,914; 2011) 5 97,476 (0.06) 519 28

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TABLE 2—MARINE MAMMALS KNOWN TO OCCUR IN THE PROJECT AREA THAT MAY BE AFFECTED BY VINEYARD WIND’S PLANNED ACTIVITY—Continued

MMPA and Stock abundance Predicted Common name ESA Annual Stock (CV, N , most recent abundance PBR 4 (scientific name) status; min M/SI 4 abundance survey) 2 (CV) 3 strategic (Y/N) 1

Common dolphin (Delphinus delphis) ...... W North Atlantic ...... --; N 172,825 (0.21; 145,216; 86,098 (0.12) 1,452 419 2011). Risso’s dolphin (Grampus griseus) ...... W North Atlantic ...... --; N 35,493 (0.19; 30,289; 2011) 7,732 (0.09) 303 54.3 Harbor porpoise (Phocoena phocoena) ...... Gulf of Maine/Bay of Fundy .. --; N 95,543 (0.31; 74,034; 2011) * 45,089 (0.12) 851 217

Baleen whales (Mysticeti)

North Atlantic right whale (Eubalaena W North Atlantic ...... E; Y 428 (0; 418; n/a) ...... * 535 (0.45) 0.8 6.85 glacialis). Humpback whale (Megaptera novaeangliae) Gulf of Maine ...... --; N 1,396 (0; 1,380; n/a) ...... * 1,637 (0.07) 22 12.15 Fin whale (Balaenoptera physalus) ...... W North Atlantic ...... E; Y 7,418 (0.25; 6,025; n/a) ...... 4,633 (0.08) 12 2.35 Sei whale (Balaenoptera borealis) ...... Nova Scotia ...... E; Y 6,292 (1.015; 3,098; n/a) ...... * 717 (0.30) 6.2 1.0 Minke whale (Balaenoptera acutorostrata) .... Canadian East Coast ...... --; N 24,202 (0.3; 18,902; n/a) ...... * 2,112 (0.05) 8.0 7.0

Earless seals (Phocidae)

Gray seal 6 (Halichoerus grypus) ...... W North Atlantic ...... --; N 27,131 (0.19; 23,158; n/a) ...... 1,389 5,410 Harbor seal (Phoca vitulina) ...... W North Atlantic ...... --; N 75,834 (0.15; 66,884; 2012) ...... 2,006 350 1 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 (see footnote 3) or which is de- termined 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 Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most re- cent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the esti- mate. All values presented here are from the 2019 draft Atlantic SARs (Hayes et al., 2019). 3 This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016, 2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the cor- responding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4 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 draft 2019 SARs (Hayes et al., 2019). 5 Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitat- based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level for Globicephala spp. and produced a den- sity model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

Four marine mammal species that are website (www.fisheries.noaa.gov/find- inform both NMFS’ consideration of listed under the Endangered Species Act species) for generalized species ‘‘small numbers’’ and the negligible (ESA) may be present in the survey area accounts. impact determination. and are included in the take request: Potential Effects of Specified Activities Harassment is the only type of take The North Atlantic right whale, fin on Marine Mammals and Their Habitat expected to result from these activities. whale, sei whale, and sperm whale. We Except with respect to certain activities consulted under section 7 of the ESA The effects of underwater noise from not pertinent here, section 3(18) of the Vineyard Wind’s survey activities have with the NMFS Greater Atlantic MMPA defines ‘‘harassment’’ as any act the potential to result in behavioral Regional Fisheries Office (GARFO) on of pursuit, torment, or annoyance, harassment of marine mammals in the our authorization of take for these which (i) has the potential to injure a vicinity of the survey area. The notice species; please see the Endangered marine mammal or marine mammal of proposed IHA (85 FR 7952; February Species Act section below. stock in the wild (Level A harassment); 12, 2020) included a discussion of the or (ii) has the potential to disturb a A detailed description of the species effects of anthropogenic noise on marine marine mammal or marine mammal likely to be affected by Vineyard Wind’s mammals and the potential effects of stock in the wild by causing disruption surveys, including brief introductions to underwater noise from Vineyard Wind’s of behavioral patterns, including, but the species and relevant stocks as well survey activities on marine mammals as available information regarding and their habitat. That information and not limited to, migration, breathing, population trends and threats, and analysis is incorporated by reference nursing, breeding, feeding, or sheltering information regarding local occurrence, into this final IHA determination and is (Level B harassment). were provided in the notice of proposed not repeated here; please refer to the Authorized takes would be by Level B IHA (85 FR 7952; February 12, 2020). notice of proposed IHA (85 FR 7952; harassment only, in the form of Since that time, we are not aware of any February 12, 2020). disruption of behavioral patterns for changes in the status of these species individual marine mammals resulting and stocks; therefore, detailed Estimated Take from exposure to HRG sources. Based on descriptions are not provided here. This section provides an estimate of the nature of the activity and the Please refer to that notice for these the number of incidental takes anticipated effectiveness of the descriptions. Please also refer to NMFS’ authorized through this IHA, which will mitigation measures (i.e., exclusion

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zones and shutdown measures), anthropogenic noise exposure is also mammals include the use of impulsive discussed in detail below in the informed to varying degrees by other sources. We note that sources that Mitigation section, Level A harassment factors related to the source (e.g., operate with a repetition rate greater is neither anticipated nor authorized. frequency, predictability, duty cycle), than 10 Hz were assessed by Vineyard As described previously, no mortality the environment (e.g., bathymetry), and Wind with the non-impulsive is anticipated or authorized for this the receiving animals (hearing, (intermittent) source criteria and activity. Below we describe how the motivation, experience, demography, sources with a repetition rate equal to or take is estimated. behavioral context) and can be difficult less than 10 Hz were assessed with the Generally speaking, we estimate take to predict (Southall et al., 2007, Ellison impulsive source criteria. This resulted by considering: (1) Acoustic thresholds et al., 2012). Based on what the in all echosounders, sparkers, boomers above which NMFS believes the best available science indicates and the and sub-bottom profilers (with the available science indicates marine practical need to use a threshold based exception of one: The Innomar SES- mammals will be behaviorally harassed on a factor that is both predictable and 2000 Medium-100 parametric sub- or incur some degree of permanent measurable for most activities, NMFS bottom profiler) being categorized as hearing impairment; (2) the area or uses a generalized acoustic threshold impulsive for purposes of modeling volume of water that will be ensonified based on received level to estimate the Level A harassment zones. above these levels in a day; (3) the onset of behavioral harassment. NMFS Predicted distances to Level A density or occurrence of marine predicts that marine mammals are likely harassment isopleths, which vary based mammals within these ensonified areas; to be behaviorally harassed in a manner on marine mammal functional hearing and, (4) and the number of days of we consider Level B harassment when groups were calculated. The updated activities. We note that while these exposed to underwater anthropogenic acoustic thresholds for impulsive basic factors can contribute to a basic noise above received levels of 160 dB re sounds (such as HRG survey equipment) calculation to provide an initial 1 mPa (rms) for impulsive and/or contained in the Technical Guidance prediction of takes, additional intermittent sources (e.g., impact pile (NMFS, 2018) were presented as dual information that can qualitatively driving) and 120 dB rms for continuous metric acoustic thresholds using both inform take estimates is also sometimes sources (e.g., vibratory driving). SELcum and peak sound pressure level available (e.g., previous monitoring Vineyard Wind’s planned activity metrics. As dual metrics, NMFS results or average group size). Below, we includes the use of intermittent sources considers onset of PTS (Level A describe the factors considered here in (geophysical survey equipment) harassment) to have occurred when more detail and present the take therefore use of the 160 dB re 1 mPa either one of the two metrics is estimate. (rms) threshold is applicable. exceeded (i.e., metric resulting in the Level A harassment—NMFS’ largest isopleth). The SELcum metric Acoustic Thresholds Technical Guidance for Assessing the considers both level and duration of Using the best available science, Effects of Anthropogenic Sound on exposure, as well as auditory weighting NMFS has developed acoustic Marine Mammal Hearing (Version 2.0) functions by marine mammal hearing thresholds that identify the received (Technical Guidance, 2018) identifies group. level of underwater sound above which dual criteria to assess auditory injury These thresholds are provided in exposed marine mammals would be (Level A harassment) to five different Table 3 below. The references, analysis, reasonably expected to be behaviorally marine mammal groups (based on and methodology used in the harassed (equated to Level B hearing sensitivity) as a result of development of the thresholds are harassment) or to incur PTS of some exposure to noise from two different described in NMFS 2018 Technical degree (equated to Level A harassment). types of sources (impulsive or non- Guidance, which may be accessed at: Level B Harassment—Though impulsive). The components of www.fisheries.noaa.gov/national/ significantly driven by received level, Vineyard Wind’s planned activity that marine-mammal-protection/marine- the onset of behavioral disturbance from may result in the take of marine mammal-acoustic-technical-guidance.

TABLE 3—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.

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Ensonified Area HRG sources but was not incorporated shows the literature sources for the Here, we describe operational and in the modeling of HRG sources in the sound source levels that were environmental parameters of the activity notice of proposed IHA (85 FR 7952; incorporated into the model. that will feed into identifying the area February 12, 2020). However, also as Results of modeling described above ensonified above the acoustic noted above, NMFS has confirmed using indicated that sound produced by the thresholds, which include source levels a recently-developed spreadsheet tool GeoMarine Geo Spark 2000 would and transmission loss coefficient. that accompanies the NMFS interim propagate furthest to the Level B The proposed survey would entail the HRG guidance (NMFS, 2019), which harassment threshold; therefore, for the use of HRG equipment. The distance to incorporates water depth, that the purposes of the exposure analysis, it the isopleth corresponding to the incorporation of water depth in was assumed the GeoMarine Geo Spark threshold for Level B harassment was modeling the HRG sources proposed for 2000 would be active during the entirety calculated for all HRG equipment with use by Vineyard Wind would result of the survey. The distance to the the potential to result in harassment of only in smaller harassment zones for isopleth corresponding to the threshold marine mammals. NMFS has developed some sources, and would not result in for Level B harassment for the an interim methodology for determining larger zones for any sources. GeoMarine Geo Spark 2000 (estimated the rms sound pressure level (SPLrms) at NMFS considers the data provided by at 195 m; Table 4) was used as the basis the 160-dB isopleth for the purposes of Crocker and Fratantonio (2016) to of the take calculation for all marine estimating take by Level B harassment represent the best available information mammals. Note that this likely provides resulting from exposure to HRG survey on source levels associated with HRG a conservative estimate of the total equipment (NMFS, 2019). This equipment and therefore recommends ensonified area resulting from the methodology incorporates frequency that source levels provided by Crocker planned activities. Vineyard Wind may and some directionality to refine and Fratantonio (2016) be incorporated not operate the GeoMarine Geo Spark estimated ensonified zones. Vineyard in the method described above to 2000 during the entirety of the planned Wind used the methods specified in the estimate isopleth distances to the Level survey, and for any survey segments in interim methodology (NMFS, 2019) B harassment threshold. In cases when which it is not used the distance to the with additional modifications to the source level for a specific type of Level B harassment threshold would be incorporate a seawater absorption HRG equipment is not provided in less than 195 m and the corresponding formula and a method to account for Crocker and Fratantonio (2016), NMFS ensonified area would also decrease. energy emitted outside of the primary recommends that either the source The model also assumed that the beam of the source. For sources that levels provided by the manufacturer be sparker (GeoMarine Geo Spark 2000) is operate with different beam widths, the used, or, in instances where source omnidirectional. This assumption, maximum beam width was used. The levels provided by the manufacturer are which is made because the beam pattern lowest frequency of the source was used unavailable or unreliable, a proxy from is unknown, results in precautionary when calculating the absorption Crocker and Fratantonio (2016) be used estimates of received levels generally, coefficient. The formulas used to apply instead. Table 1 shows the HRG and in particular is likely to the methodology are described in detail equipment types that may be used overestimate both SPL and PK. This in Appendix B of the IHA application. during the planned surveys and the overestimation of the SPL likely results As described above, NMFS sound levels associated with those HRG in an overestimation of the number of acknowledges that water depth should equipment types. Table A–3 in takes by Level B harassment for this also be incorporated in modeling of Appendix A of the IHA application type of equipment. TABLE 4—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLDS 1

HRG survey equipment Level A harassment horizontal impact distance (m) Level B har- assment hori- zontal impact distance (m)

Low frequency Mid frequency High frequency Phocid All cetaceans cetaceans cetaceans pinnipeds

Shallow subbottom profilers ...... EdgeTech Chirp 216 ...... <1 <1 <1 <1 4 Shallow subbottom profilers ...... Innomar SES 2000 Medium ...... <1 <1 60 <1 116 Deep seismic profilers ...... Applied Acoustics AA251 Boomer .... <1 <1 60 <1 178 Deep seismic profilers...... GeoMarine Geo Spark 2000 (400 <1 <1 6 <1 195 tip). Underwater positioning (USBL) ...... SonarDyne Scout Pro ...... (*) (*) (*) (*) 24 Underwater positioning (USBL) ...... ixBlue Gaps ...... <1 m <1 m 55 <1 m 35

1 Note that SELcum was greater than peak SPL in all instances.

Predicted distances to Level A both cumulative sound exposure level exposure, as well as auditory weighting harassment isopleths, which vary based (SELcum) and peak sound pressure level functions by marine mammal hearing on marine mammal functional hearing metrics. As dual metrics, NMFS group. groups (Table 3), were also calculated. considers onset of PTS (Level A Modeling of distances to isopleths The updated acoustic thresholds for harassment) to have occurred when corresponding to the Level A impulsive sounds (such as HRG survey either one of the two metrics is harassment threshold was performed for equipment) contained in the Technical exceeded (i.e., the metric resulting in all types of HRG equipment proposed Guidance (NMFS, 2018) were presented the largest isopleth). The SELcum metric for use with the potential to result in as dual metric acoustic thresholds using considers both level and duration of harassment of marine mammals.

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Vineyard Wind used a new model NMFS does not agree with this step in zone for harbor porpoises—are expected developed by JASCO to calculate the modeling assessment, which results to minimize the potential for close distances to Level A harassment in nearly all HRG sources being approach or longer duration exposure to isopleths based on both the peak SPL classified as impulsive. However, we active HRG sources. In addition, harbor and the SELcum metric. For the peak SPL note that the classification of the porpoises are a notoriously shy species metric, the model is a series of majority of HRG sources as impulsive which is known to avoid vessels, and equations that accounts for both results in more conservative modeling would also be expected to avoid a sound seawater absorption and HRG results. Therefore, we are retaining the source prior to that source reaching a equipment beam patterns (for all HRG analysis of Level A harassment zones level that would result in injury (Level sources with beam widths larger than from the notice of proposed IHA (85 FR A harassment). Therefore, we have 90°, it was assumed these sources were 7952; February 12, 2020), though this determined that the potential for take by omnidirectional). For the SELcum metric, analysis does incorporate a 10 Hz Level A harassment of harbor porpoises a model was developed that accounts repetition rate as a cutoff between is so low as to be discountable. As for the hearing sensitivity of the marine impulsive and non-impulse sources. We NMFS has determined that the mammal group, seawater absorption, acknowledge that this modeling likelihood of take of any marine and beam width for downwards-facing approach results in zones are likely mammals in the form of Level A transducers. Details of the modeling conservative for some sources. harassment occurring as a result of the methodology for both the peak SPL and Modeled isopleth distances to Level A planned surveys is so low as to be SELcum metrics are provided in harassment thresholds for all types of discountable, we therefore do not Appendix A of the IHA application. HRG equipment and all marine mammal authorize the take by Level A This model entails the following steps: functional hearing groups are shown in harassment of any marine mammals. 1. Weighted broadband source levels Table 4. The dual criteria (peak SPL and Marine Mammal Occurrence were calculated by assuming a flat SELcum) were applied to all HRG sources spectrum between the source minimum using the modeling methodology as In this section we provide the and maximum frequency, weighted the described above, and the largest isopleth information about the presence, density, spectrum according to the marine distances for each functional hearing or group dynamics of marine mammals mammal hearing group weighting group were then carried forward in the that will inform the take calculations. function (NMFS 2018), and summed exposure analysis to be conservative. The habitat-based density models across frequency. For all HRG sources the SELcum metric produced by the Duke University 2. Propagation loss was modeled as a resulted in larger isopleth distances. Marine Geospatial Ecology Laboratory function of oblique range. Distances to the Level A harassment (Roberts et al., 2016, 2017, 2018) 3. Per-pulse SEL was modeled for a threshold based on the larger of the dual represent the best available information stationary receiver at a fixed distance off criteria (peak SPL and SELcum) are regarding marine mammal densities in a straight survey line, using a vessel shown in Table 4. the planned survey area. The density transit speed of 3.5 knots and source- Modeled distances to isopleths data presented by Roberts et al. (2016, specific pulse length and repetition rate. corresponding to the Level A 2017, 2018) incorporates aerial and The off-line distance is referred to as the harassment threshold are very small (<1 shipboard line-transect survey data from closest point of approach (CPA) and was m) for three of the four marine mammal NMFS and other organizations and performed for CPA distances between 1 functional hearing groups that may be incorporates data from 8 physiographic m and 10 km. The survey line length impacted by the proposed activities (i.e., and 16 dynamic oceanographic and was modeled as 10 km long (analysis low frequency and mid frequency biological covariates, and controls for showed longer survey lines increased cetaceans, and phocid pinnipeds; see the influence of sea state, group size, SEL by a negligible amount). SEL is Table 4). Based on the very small Level availability bias, and perception bias on calculated as SPL + 10 log10 T/15 dB, A harassment zones for these functional the probability of making a sighting. where T is the pulse duration. hearing groups, the potential for species These density models were originally 4. The SEL for each survey line was within these functional hearing groups developed for all cetacean taxa in the calculated to produce curves of to be taken by Level A harassment is U.S. Atlantic (Roberts et al., 2016). In weighted SEL as a function of CPA considered so low as to be discountable. subsequent years, certain models have distance. These three functional hearing groups been updated on the basis of additional 5. The curves from Step 4 above were encompass all but one of the marine data as well as certain methodological used to estimate the CPA distance to the mammal species listed in Table 2 that improvements. Our evaluation of the impact criteria. may be impacted by the proposed changes leads to a conclusion that these We note that in the modeling methods activities. There is one species (harbor represent the best scientific evidence described above and in Appendix A of porpoise) within the high frequency available. More information is available the IHA application, sources that functional hearing group that may be online at seamap.env.duke.edu/models/ operate with a repetition rate greater impacted by the proposed activities. Duke-EC-GOM-2015/. Marine mammal than 10 Hz were assessed with the non- The largest modeled distance to the density estimates in the project area impulsive (intermittent) source criteria Level A harassment threshold for the (animals/km2) were obtained using while sources with a repetition rate high frequency functional hearing group these model results (Roberts et al., 2016, equal to or less than 10 Hz were was 60 m (Table 4). However, as noted 2017, 2018). The updated models assessed with the impulsive source above, modeled distances to isopleths incorporate additional sighting data, criteria. This resulted in all corresponding to the Level A including sightings from the NOAA echosounders, sparkers, boomers and harassment threshold are assumed to be Atlantic Marine Assessment Program for sub-bottom profilers (with the exception conservative. Level A harassment would Protected Species (AMAPPS) surveys of one: The Innomar SES–2000 also be more likely to occur at close from 2010–2014 (NEFSC & SEFSC, Medium-100 parametric sub-bottom approach to the sound source or as a 2011, 2012, 2014a, 2014b, 2015, 2016). profiler) being categorized as impulsive result of longer duration exposure to the For purposes of the exposure analysis, for purposes of modeling Level A sound source, and mitigation density data from Roberts et al. (2016, harassment zones. As noted above, measures—including a 100-m exclusion 2017, 2018) were mapped using a

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geographic information system (GIS). be ensonified to sound levels that each species taken per day are then The density coverages that included any exceed harassment thresholds. The area multiplied by the total number of vessel portion of the planned project area were estimated to be ensonified to relevant days (i.e., 736). The product is then selected for all survey months. Monthly thresholds in a single day is then rounded, to generate an estimate of the density data for each species were then calculated, based on areas predicted to total number of instances of harassment averaged over the year to come up with be ensonified around the HRG survey expected for each species over the a mean annual density value for each equipment and the estimated trackline duration of the survey. A summary of species. The mean annual density distance traveled per day by the survey this method is illustrated in the values used to estimate take numbers vessel. Vineyard Wind estimates that following formula: are shown in Table 5 below. survey vessels will achieve a maximum Estimated Take = D × ZOI × # of days Roberts et al. (2018) produced density daily track line distance of 100 km per 2 models for all seals and did not day during planned HRG surveys. This Where: D = average species density (per km ) and ZOI = maximum daily ensonified area to differentiate by seal species. Because the distance accounts for the vessel relevant thresholds. seasonality and habitat use by gray seals traveling at roughly 3.5 kn during active roughly overlaps with that of harbor survey periods. Based on the maximum Using this method to calculate take, seals in the survey areas, it was assumed estimated distance to the Level B Vineyard wind estimated that there that modeled takes of seals could occur harassment threshold of 195 m (Table 5) would be take of several species by to either of the respective species, thus and the maximum estimated daily track Level A harassment including Atlantic the total number of modeled takes for line distance of 100 km, an area of 39.12 White-sided dolphin, bottlenose seals was applied to each species. This km2 would be ensonified to the Level B dolphin, common dolphin, harbor approach represents a double-counting harassment threshold per day during porpoise, gray seal, and harbor seal in of expected total seal takes and is Vineyard Wind’s planned HRG surveys. the absence of mitigation (see Table 10 therefore conservative. As described above, this is a in the IHA application for the estimated conservative estimate as it assumes the number of Level A harassment takes for Take Calculation and Estimation HRG sources that result in the greatest all potential HRG equipment types). Here we describe how the information isopleth distances to the Level B However, as described above, due to the provided above is brought together to harassment threshold would be very small estimated distances to Level produce a quantitative take estimate. operated at all times during all 736 A harassment thresholds (Table 4), and In order to estimate the number of vessel days. in consideration of the mitigation marine mammals predicted to be The number of marine mammals measures, the likelihood of survey exposed to sound levels that would expected to be incidentally taken per activities resulting in take in the form of result in harassment, radial distances to day is then calculated by estimating the Level A harassment is considered so predicted isopleths corresponding to number of each species predicted to low as to be discountable; therefore, we harassment thresholds are calculated, as occur within the daily ensonified area did not authorize take of any marine described above. Those distances are (animals/km2) by incorporating the mammals by Level A harassment. then used to calculate the area(s) around estimated marine mammal densities as Authorized take numbers by Level B the HRG survey equipment predicted to described above. Estimated numbers of harassment are shown in Table 5.

TABLE 5—TOTAL NUMBERS OF AUTHORIZED INCIDENTAL TAKES OF MARINE MAMMALS AND TAKES AS A PERCENTAGE OF POPULATION

Estimated Authorized Annual density Level B takes by % Species mean 1 ¥2 harassment Level B Population (km ) takes harassment

Fin whale ...... 0.0023 67.28 67 1.4 Humpback whale ...... 0.0016 45.73 46 2.8 Minke whale ...... 0.001 41.20 41 1.9 North Atlantic right whale ...... 0.001 30.32 10 1.9 Sei whale ...... 0.000 3.23 4 0.06 Atlantic white sided dolphin ...... 0.0351 1,011.19 1,011 2.7 Bottlenose dolphin (WNA Offshore) ...... 0.0283 814.91 815 0.8 Pilot whales ...... 0.0049 141.98 142 0.7 Risso’s dolphin ...... 0.000 5.74 6 0.08 Common dolphin ...... 0.071 2,035.87 2,036 2.3 Sperm whale ...... 0.000 3.82 4 0.07 Harbor porpoise ...... 0.0363 1,044.87 1,045 2.3 Gray seal ...... 0.1404 4,043.67 4,044 14.9 Harbor seal ...... 0.1404 4,043.67 4,044 5.3 1 Calculations of percentage of stock taken are based on the best available abundance estimate as shown in Table 23. In most cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available, to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North Atlantic right whales the best available abundance estimate is derived from the North Atlantic Right Whale Consortium 2019 Annual Report Card (Pettis et al., 2019). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a single abundance estimate and does not provide abundance estimates at the stock or species level (respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins, gray and harbor seals are derived from NMFS SARs (Hayes et al., 2019).

For the North Atlantic right whale, substantially exceeds the distance to the However, Vineyard Wind will be NMFS required a 500-m EZ which level B harassment isopleth (195 m). operating up to 24 hours per day for a

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total of 736 vessel days. Even with the harassment zones estimated by impact on operations, and, in the case implementation of mitigation measures Vineyard Wind. Similar to the Bay State of a military readiness activity, (including night-vision goggles and Wind findings, no confirmed personnel safety, practicality of thermal clip-ons) it is reasonable to observations of right whales on any of implementation, and impact on the assume that night time operations for an the survey ships occurred during the effectiveness of the military readiness extended period could result in a entire survey period. While some of the activity. limited number of right whales being unidentified animals could also have exposed to underwater sound at Level B been right whales, the absence of Mitigation Measures harassment levels. Given the fact that verified sightings demonstrates that NMFS has required that the following take has been conservatively calculated right whale observations are mitigation measures be implemented based on the largest source, which will uncommon. during Vineyard Wind’s planned marine not be operating at all times, and is In summary, given the low site characterization surveys. observation rate, and expected efficacy thereby likely over-estimated to some Marine Mammal Exclusion Zones, of the required mitigation measures, we degree, the fact that Vineyard Wind will Buffer Zone and Monitoring Zone implement a shutdown zone 2.5 times believe a reduction of 30 calculated the predicted Level B harassment right whale exposures down to 10 Marine mammal exclusion zones (EZ) threshold distance (see below) for that authorized takes by Level B harassment would be established around the HRG largest source (and significantly more is reasonable. survey equipment and monitored by protected species observers (PSO) than that for the smaller sources), and Mitigation the fact that night vision goggles with during HRG surveys as follows: • thermal clips will be used for nighttime In order to issue an IHA under A 500-m EZ would be required for Section 101(a)(5)(D) of the MMPA, North Atlantic right whales. operations, NMFS predicts that no more • than 10 right whales may be taken by NMFS must set forth the permissible A 100-m EZ would be required for Level B harassment. methods of taking pursuant to such all other marine mammals (with the Additionally, sightings of right whales activity, and other means of effecting exception of certain small dolphin have been uncommon during previous the least practicable impact on such species specified below). HRG surveys. Bay State Wind submitted species or stock and its habitat, paying If a marine mammal is detected a marine mammal monitoring report particular attention to rookeries, mating approaching or entering the EZs during HRG survey on July 19, 2019 described grounds, and areas of similar the planned survey, the vessel operator PSO observations and takes in Lease significance, and on the availability of would adhere to the shutdown Area OCS–A500, which is part of the such species or stock for taking for procedures described below. In addition survey area covered under this IHA as certain subsistence uses (latter not to the EZs described above, PSOs would well as along several ECR corridors applicable for this action). NMFS visually monitor a 200-m Buffer Zone. closer to shore. Over 376 vessel days, regulations require applicants for During use of acoustic sources with the three separate survey ships recorded a incidental take authorizations to include potential to result in marine mammal total of 496 marine mammal detections information about the availability and harassment (i.e., anytime the acoustic between May 11, 2018 and March 14, feasibility (economic and technological) source is active, including ramp-up), 2019. There were no confirmed of equipment, methods, and manner of occurrences of marine mammals within observations of right whales on any of conducting such activity or other means the Buffer Zone (but outside the EZs) the survey ships during the entire of effecting the least practicable adverse would be communicated to the vessel survey period. There were a number of impact upon the affected species or operator to prepare for potential unidentifiable whales reported, and it is stocks and their habitat (50 CFR shutdown of the acoustic source. The possible that some of these unidentified 216.104(a)(11)). Buffer Zone is not applicable when the animals may have been right whales. In evaluating how mitigation may or EZ is greater than 100 meters. PSOs However, the lack of confirmed may not be appropriate to ensure the would also be required to observe a 500- observations indicates that right whale least practicable adverse impact on m Monitoring Zone and record the sightings are not common in this region species or stocks and their habitat, as presence of all marine mammals within during previous survey work. well as subsistence uses where this zone. In addition, observation of Vineyard Wind provided a marine applicable, we carefully consider two any marine mammals within the Level mammal monitoring report associated primary factors: B harassment zone will be documented. with survey activity for which Vineyard (1) The manner in which, and the The zones described above would be Wind determined that no take of marine degree to which, the successful based upon the radial distance from the mammals was reasonably anticipated to implementation of the measure(s) is active equipment (rather than being occur, and therefore no incidental take expected to reduce impacts to marine based on distance from the vessel itself). authorization requested. The survey mammals, marine mammal species or activity covered the Renewable Lease stocks, and their habitat. This considers Visual Monitoring Numbers OCS–A 0501 and OCS–A 0522 the nature of the potential adverse NMFS only requires a single PSO to (Lease) and associated potential cable impact being mitigated (likelihood, be on duty during daylight hours and 30 routes located offshore of scope, range). It further considers the minutes prior to and during nighttime Massachusetts. These are the same likelihood that the measure will be ramp-ups for HRG surveys. Vineyard Lease Areas covered by the IHA NMFS effective if implemented (probability of Wind proposed, and has voluntarily has issued to Vineyard Wind. Survey accomplishing the mitigating result if committed, to a minimum of two (2) operations began on May 31, 2019 and implemented as planned), the NMFS-approved PSOs on duty and concluded on January 7, 2020. Six likelihood of effective implementation conducting visual observations on all survey vessels were employed and (probability implemented as planned), survey vessels at all times when HRG engaged in both day and night survey and; equipment is in use (i.e., daylight and operations. There was a total of 412 (2) The practicability of the measures nighttime operations). Visual marine mammal sightings but no marine for applicant implementation, which monitoring would begin no less than 30 mammals were observed within Level B may consider such things as cost, minutes prior to ramp-up of HRG

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equipment and would continue until 30 or Buffer Zone, or, until an additional minutes for small odontocetes and seals, minutes after use of the acoustic source time period has elapsed with no further and 30 minutes for all other species). ceases or until 30 minutes past sunset. sighting (i.e., minimum 15 minutes for Upon implementation of shutdown, However, as noted, Vineyard Wind has small odontocetes and seals, and 30 the HRG source may be reactivated after committed to 24-hr use of PSOs. PSOs minutes for all other species). The pre- the marine mammal that triggered the would establish and monitor the clearance requirement would include shutdown has been observed exiting the applicable EZs, Buffer Zone and small delphinids that approach the applicable EZ (i.e., the animal is not Monitoring Zone as described above. vessel (e.g., bow ride). PSOs would also required to fully exit the Buffer Zone Visual PSOs would coordinate to ensure continue to monitor the zone for 30 where applicable) or, following a 360° visual coverage around the vessel minutes after survey equipment is shut clearance period of 15 minutes for small from the most appropriate observation down or survey activity has concluded. odontocetes and seals and 30 minutes posts, and would conduct visual Ramp-Up of Survey Equipment for all other species with no further observations using binoculars and the observation of the marine mammal(s) naked eye while free from distractions When technically feasible, a ramp-up within the relevant EZ. If the HRG and in a consistent, systematic, and procedure would be used for equipment shuts down for brief periods diligent manner. PSOs would estimate geophysical survey equipment capable (i.e., less than 30 minutes) for reasons distances to marine mammals located in of adjusting energy levels at the start or other than mitigation (e.g., mechanical proximity to the vessel and/or relevant re-start of survey activities. The ramp- or electronic failure) the equipment may using range finders. It would be the up procedure would be used at the be re-activated as soon as is practicable responsibility of the Lead PSO on duty beginning of HRG survey activities in at full operational level, without 30 to communicate the presence of marine order to provide additional protection to minutes of pre-clearance, only if PSOs mammals as well as to communicate marine mammals near the Project Area have maintained constant visual and enforce the action(s) that are by allowing them to detect the presence observation during the shutdown and necessary to ensure mitigation and of the survey and vacate the area prior no visual detections of marine mammals monitoring requirements are to the commencement of survey occurred within the applicable EZs and implemented as appropriate. Position equipment operation at full power. Buffer Zone during that time. For a data would be recorded using hand-held Ramp-up of the survey equipment shutdown of 30 minutes or longer, or if or vessel global positioning system would not begin until the relevant EZs visual observation was not continued (GPS) units for each confirmed marine and Buffer Zone has been cleared by the diligently during the pause, pre- mammal sighting. PSOs, as described above. HRG clearance observation is required, as Pre-Clearance of the Exclusion Zones equipment would be initiated at their described above. Prior to initiating HRG survey lowest power output and would be The shutdown requirement would be activities, Vineyard Wind would incrementally increased to full power. If waived for certain genera of small implement a 30-minute pre-clearance any marine mammals are detected delphinids (i.e., Delphinus, period. During pre-clearance monitoring within the EZs or Buffer Zone prior to Lagenorhynchus, and Tursiops) under (i.e., before ramp-up of HRG equipment or during ramp-up, the HRG equipment certain circumstances. If a delphinid(s) begins), the Buffer Zone would also act would be shut down (as described from these genera is visually detected as an extension of the 100-m EZ in that below). approaching the vessel (i.e., to bow ride) or towed survey equipment, shutdown observations of marine mammals within Shutdown Procedures the 200-m Buffer Zone would also would not be required. If there is preclude HRG operations from If an HRG source is active and a uncertainty regarding identification of a beginning. During this period, PSOs marine mammal is observed within or marine mammal species (i.e., whether would ensure that no marine mammals entering a relevant EZ (as described the observed marine mammal(s) belongs are observed within 200 m of the survey above) an immediate shutdown of the to one of the delphinid genera for which equipment (500 m in the case of North HRG survey equipment would be shutdown is waived), PSOs would use Atlantic right whales). HRG equipment required. When shutdown is called for best professional judgment in making would not start up until this 200-m zone by a PSO, the acoustic source would be the decision to call for a shutdown. (or, 500-m zone in the case of North immediately deactivated and any If a species for which authorization Atlantic right whales) is clear of marine dispute resolved only following has not been granted, or, a species for mammals for at least 30 minutes. The deactivation. Any PSO on duty would which authorization has been granted vessel operator would notify a have the authority to delay the start of but the authorized number of takes have designated PSO of the proposed start of survey operations or to call for been met, approaches or is observed HRG survey equipment as agreed upon shutdown of the acoustic source if a within the area encompassing the Level with the lead PSO; the notification time marine mammal is detected within the B harassment isopleth (195 m), should not be less than 30 minutes prior applicable EZ. The vessel operator shutdown would occur. would establish and maintain clear lines to the planned initiation of HRG Vessel Strike Avoidance equipment order to allow the PSOs time of communication directly between to monitor the EZs and Buffer Zone for PSOs on duty and crew controlling the Vessel strike avoidance measures the 30 minutes of pre-clearance. A PSO HRG source(s) to ensure that shutdown would include, but would not be conducting pre-clearance observations commands are conveyed swiftly while limited to, the following, except under would be notified again immediately allowing PSOs to maintain watch. circumstances when complying with prior to initiating active HRG sources. Subsequent restart of the HRG these requirements would put the safety If a marine mammal were observed equipment would only occur after the of the vessel or crew at risk: within the relevant EZs or Buffer Zone marine mammal has either been • All vessel operators and crew will during the pre-clearance period, observed exiting the relevant EZ, or, maintain vigilant watch for cetaceans initiation of HRG survey equipment until an additional time period has and pinnipeds, and slow down or stop would not begin until the animal(s) has elapsed with no further sighting of the their vessel to avoid striking these been observed exiting the respective EZ animal within the relevant EZ (i.e., 15 protected species;

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• All survey vessels, regardless of • All vessels will maintain a Confirmation of the training and size, must observe a 10-knot speed separation distance of 100 m (330 ft) or understanding of the requirements will restriction in specific areas designated greater from any sighted non-delphinoid be documented on a training course log by NMFS for the protection of North cetacean. If sighted, the vessel sheet. Signing the log sheet will certify Atlantic right whales from vessel underway must reduce speed and shift that the crew members understand and strikes: Any DMAs when in effect, and the engine to neutral, and must not will comply with the necessary the Block Island Seasonal Management engage the engines until the non- requirements throughout the survey Area (SMA) (from November 1 through delphinoid cetacean has moved outside activities. April 30), Cape Cod Bay SMA (from of the vessel’s path and beyond 100 m. Seasonal Operating Requirements January 1 through May 15), Off Race If a survey vessel is stationary, the Point SMA (from March 1 through April vessel will not engage engines until the Vineyard Wind will conduct HRG 30) and Great South Channel SMA (from non-delphinoid cetacean has moved out survey activities in the Cape Cod Bay April 1 through July 31). Note that this of the vessel’s path and beyond 100 m; SMA and Off Race Point SMA only requirement includes vessels, regardless • All vessels will maintain a during the months of August and of size, to adhere to a 10 knot speed separation distance of 50 m (164 ft) or September to ensure sufficient buffer limit in SMAs and DMAs, not just greater from any sighted delphinoid between the SMA restrictions (January vessels 65 ft or greater in length. cetacean. Any vessel underway remain to May 15) and known seasonal • All vessel operators will reduce parallel to a sighted delphinoid occurrence of the NARW north and vessel speed to 10 knots (18.5 km/hr) or cetacean’s course whenever possible, northeast of Cape Cod (fall, winter, and less when any large whale, any mother/ and avoid excessive speed or abrupt spring). Vineyard Wind will also limit calf pairs, large assemblages of non- changes in direction. Any vessel to three the number survey vessels that delphinoid cetaceans are observed near underway reduces vessel speed to 10 will operate concurrently from March (within 100 m (330 ft)) an underway knots (18.5 km/hr) or less when pods through June within the lease areas vessel; (including mother/calf pairs) or large (OCS–A 0501 and 0487) and OECC areas • All vessels will maintain a assemblages of delphinoid cetaceans are north of the lease areas up to, but not separation distance of 500 m (1640 ft) or observed. Vessels may not adjust course including, coastal and bay waters. The greater from any sighted North Atlantic and speed until the delphinoid boundaries of this area are delineated by right whale; cetaceans have moved beyond 50 m a polygon with the following vertices: • If underway, vessels must steer a and/or the abeam of the underway 40.746 N 70.748 W; 40.953 N 71.284 W; course away from any sighted North vessel; 41.188 N 71.284 W; 41.348 N 70.835 W; Atlantic right whale at 10 knots (18.5 • All vessels will maintain a 41.35 N 70.455 W; 41.097 N 70.372 W; km/hr) or less until the 500-m (1640 ft) separation distance of 50 m (164 ft) or and 41.021 N 70.37 W. This area is minimum separation distance has been greater from any sighted pinniped; and delineated by the dashed line shown in established. If a North Atlantic right • All vessels underway will not Figure 1. Another seasonal restriction whale is sighted in a vessel’s path, or divert or alter course in order to area south of Nantucket will be in effect within 100 m (330 ft) to an underway approach any whale, delphinoid from December to February in the area vessel, the underway vessel must reduce cetacean, or pinniped. Any vessel delineated by the DMA that was speed and shift the engine to neutral. underway will avoid excessive speed or effective from January 31, 2020 through Engines will not be engaged until the abrupt changes in direction to avoid February 15, 2020. The winter seasonal North Atlantic right whale has moved injury to the sighted cetacean or restriction area is delineated by outside of the vessel’s path and beyond pinniped. latitudes and longitudes of 41.183 N; 100 m. If stationary, the vessel must not Project-specific training will be 40.366 N; 69.533 W; and 70.616 W. This engage engines until the North Atlantic conducted for all vessel crew prior to area is delineated by the solid line in right whale has moved beyond 100 m; the start of survey activities. Figure 1.

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Vineyard Wind would operate no The MMPA implementing regulations at of marine mammal species with the more than three survey vessels 50 CFR 216.104 (a)(13) indicate that action; or (4) biological or behavioral concurrently in the areas described requests for authorizations must include context of exposure (e.g., age, calving or above during the December–February the suggested means of accomplishing feeding areas). and March–June timeframes when right the necessary monitoring and reporting • Individual marine mammal whale densities are greatest. The that will result in increased knowledge responses (behavioral or physiological) seasonal restrictions described above of the species and of the level of taking to acoustic stressors (acute, chronic, or will help to reduce both the number and or impacts on populations of marine cumulative), other stressors, or intensity of right whale takes. mammals that are expected to be cumulative impacts from multiple Although not required by NMFS, present in the planned action area. stressors. Vineyard Wind would also employ Effective reporting is critical both to • How anticipated responses to passive acoustic monitoring (PAM) to compliance as well as ensuring that the stressors impact either: (1) Long-term support monitoring during night time most value is obtained from the required fitness and survival of individual operations to provide for acquisition of monitoring. marine mammals; or (2) populations, species detections at night. Monitoring and reporting species, or stocks. Based on our evaluation of the requirements prescribed by NMFS • Effects on marine mammal habitat applicant’s proposed measures, as well should contribute to improved (e.g., marine mammal prey species, as other measures considered by NMFS, understanding of one or more of the acoustic habitat, or other important NMFS has determined that the required following: physical components of marine mitigation measures provide the means • Occurrence of marine mammal mammal habitat). effecting the least practicable impact on species or stocks in the area in which • Mitigation and monitoring the affected species or stocks and their take is anticipated (e.g., presence, effectiveness. habitat, paying particular attention to abundance, distribution, density). Monitoring Measures rookeries, mating grounds, and areas of • Nature, scope, or context of likely similar significance. marine mammal exposure to potential As described above, visual monitoring stressors/impacts (individual or would be performed by qualified and Monitoring and Reporting cumulative, acute or chronic), through NMFS-approved PSOs. Vineyard Wind In order to issue an IHA for an better understanding of: (1) Action or would use independent, dedicated, activity, Section 101(a)(5)(D) of the environment (e.g., source trained PSOs, meaning that the PSOs MMPA states that NMFS must set forth characterization, propagation, ambient must be employed by a third-party requirements pertaining to the noise); (2) affected species (e.g., life observer provider, must have no tasks monitoring and reporting of such taking. history, dive patterns); (3) co-occurrence other than to conduct observational

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effort, collect data, and communicate During good conditions (e.g., daylight In the event of a ship strike of a with and instruct relevant vessel crew hours; Beaufort sea state (BSS) 3 or less), marine mammal by any vessel involved with regard to the presence of marine to the maximum extent practicable, in the activities covered by the mammals and mitigation requirements PSOs would conduct observations when authorization, the IHA-holder shall (including brief alerts regarding the acoustic source is not operating for report the incident to OPR, NMFS and maritime hazards), and must have comparison of sighting rates and to the New England/Mid-Atlantic successfully completed an approved behavior with and without use of the Regional Stranding Coordinator as soon PSO training course appropriate for acoustic source and between acquisition as feasible. The report must include the their designated task. Vineyard Wind periods. Any observations of marine following information: would provide resumes of all proposed mammals by crew members aboard any • Time, date, and location (latitude/ PSOs (including alternates) to NMFS for vessel associated with the survey would longitude) of the incident; review and approval prior to the start of be relayed to the PSO team. • Species identification (if known) or survey operations. Data on all PSO observations would description of the animal(s) involved; During survey operations (e.g., any be recorded based on standard PSO • Vessel’s speed during and leading day on which use of an HRG source is collection requirements. This would up to the incident; planned to occur), a minimum of two include dates, times, and locations of • Vessel’s course/heading and what PSOs must be on duty and conducting survey operations; dates and times of operations were being conducted (if visual observations at all times on all observations, location and weather; applicable); • active survey vessels when HRG details of marine mammal sightings Status of all sound sources in use; • equipment is operating, including both (e.g., species, numbers, behavior); and Description of avoidance measures/ daytime and nighttime operations. details of any observed marine mammal requirements that were in place at the Visual monitoring would begin no less take that occurs (e.g., noted behavioral time of the strike and what additional than 30 minutes prior to initiation of disturbances). measures were taken, if any, to avoid HRG survey equipment and would strike; continue until one hour after use of the Reporting Measures • Environmental conditions (e.g., acoustic source ceases. Note that NMFS Within 90 days after completion of wind speed and direction, Beaufort sea only requires that a minimum of one survey activities, a final technical report state, cloud cover, visibility) PSO must be on duty and conducting will be provided to NMFS that fully immediately preceding the strike; visual observations during daylight documents the methods and monitoring • Estimated size and length of animal hours (i.e., from 30 minutes prior to protocols, summarizes the data recorded that was struck; • sunrise through 30 minutes following during monitoring, summarizes the Description of the behavior of the sunset) and during nighttime ramp-ups number of marine mammals estimated marine mammal immediately preceding of HRG equipment. PSOs would to have been taken during survey and following the strike; • coordinate to ensure 360° visual activities (by species, when known), If available, description of the coverage around the vessel from the summarizes the mitigation actions taken presence and behavior of any other most appropriate observation posts, and during surveys (including what type of marine mammals immediately would conduct visual observations preceding the strike; mitigation and the species and number • using binoculars and the naked eye of animals that prompted the mitigation Estimated fate of the animal (e.g., while free from distractions and in a action, when known), and provides an dead, injured but alive, injured and consistent, systematic, and diligent interpretation of the results and moving, blood or tissue observed in the manner. PSOs may be on watch for a effectiveness of all mitigation and water, status unknown, disappeared); maximum of four consecutive hours and monitoring. Any recommendations • followed by a break of at least two hours made by NMFS must be addressed in To the extent practicable, between watches and may conduct a the final report prior to acceptance by photographs or video footage of the maximum of 12 hours of observation per NMFS. animal(s). 24-hour period. In cases where multiple In the event that Vineyard Wind Negligible Impact Analysis and vessels are surveying concurrently, any personnel discover an injured or dead Determination observations of marine mammals would marine mammal, Vineyard Wind shall NMFS has defined negligible impact be communicated to PSOs on all survey report the incident to the Office of as ‘‘an impact resulting from the vessels. Protected Resources (OPR), NMFS and specified activity that cannot be PSOs would be equipped with to the New England/Mid-Atlantic reasonably expected to, and is not binoculars and have the ability to Regional Stranding Coordinator as soon reasonably likely to, adversely affect the estimate distances to marine mammals as feasible. The report must include the species or stock through effects on located in proximity to the vessel and/ following information: or exclusion zone using range finders. • Time, date, and location (latitude/ annual rates of recruitment or survival’’ Reticulated binoculars will also be longitude) of the first discovery (and (50 CFR 216.103). A negligible impact available to PSOs for use as appropriate updated location information if known finding is based on the lack of likely based on conditions and visibility to and applicable); adverse effects on annual rates of support the monitoring of marine • Species identification (if known) or recruitment or survival (i.e., population- mammals. Position data would be description of the animal(s) involved; level effects). An estimate of the number recorded using hand-held or vessel GPS • Condition of the animal(s) of takes alone is not enough information units for each sighting. Observations (including carcass condition if the on which to base an impact would take place from the highest animal is dead); determination. In addition to available vantage point on the survey • Observed behaviors of the considering estimates of the number of vessel. General 360-degree scanning animal(s), if alive; marine mammals that might be ‘‘taken’’ would occur during the monitoring • If available, photographs or video through harassment, NMFS considers periods, and target scanning by the PSO footage of the animal(s); and other factors, such as the likely nature would occur when alerted of a marine • General circumstances under which of any responses (e.g., intensity, mammal presence. the animal was discovered. duration), the context of any responses

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(e.g., critical reproductive time or to any species, even in the absence of feeding BIAs for right whales (February– location, migration), as well as effects mitigation and no serious injury or April), humpback whales (March– on habitat, and the likely effectiveness mortality is authorized. As discussed in December), fin whales (March–October), of the mitigation. We also assess the the Potential Effects section, non- and sei whales (May–November) as well number, intensity, and context of auditory physical effects and vessel as a migratory BIA or right whales estimated takes by evaluating this strike are not expected to occur. We (March–April and November–December. information relative to population expect that most potential takes would Most of these feeding BIAs are extensive status. Consistent with the 1989 be in the form of short-term Level B and sufficiently large (705 km2 and preamble for NMFS’s implementing behavioral harassment in the form of 3,149 km2 for right whales; 47,701 km2 regulations (54 FR 40338; September 29, temporary avoidance of the area or for humpback whales; 2,933 km2 for fin 1989), the impacts from other past and decreased foraging (if such activity were whales; and 56,609 km2 for sei whales), ongoing anthropogenic activities are occurring), reactions that are considered and the acoustic footprint of the incorporated into this analysis via their to be of low severity and with no lasting planned survey is sufficiently small that impacts on the environmental baseline biological consequences (e.g., Southall feeding opportunities for these whales (e.g., as reflected in the regulatory status et al., 2007). The planned survey is not would not be reduced appreciably. Any of the species, population size and anticipated to affect the fitness or whales temporarily displaced from the growth rate where known, ongoing reproductive success of individual planned Project Area would be expected sources of human-caused mortality, or animals. Since impacts to individual to have sufficient remaining feeding ambient noise levels). survivorship and fecundity are unlikely, habitat available to them, and would not To avoid repetition, our analysis the planned survey is not expected to be prevented from feeding in other areas applies to all the species listed in Table result in population-level effects for any within the biologically important 2, given that NMFS expects the ESA-listed species or alter current feeding habitat. In addition, any anticipated effects of the planned survey population trends of any ESA-listed displacement of whales from the BIA or to be similar in nature. As discussed in species. interruption of foraging bouts would be the ‘‘Potential Effects of the Specified The status of the North Atlantic right expected to be temporary in nature. Activity on Marine Mammals and Their whale population is of heightened Therefore, we do not expect whales Habitat’’ section of the proposed notice, concern and, therefore, merits with feeding BIAs to be negatively PTS, masking, non-auditory physical additional analysis. NMFS has impacted by the planned survey. effects, and vessel strike are not rigorously assessed potential impacts to A migratory BIA for North Atlantic expected to occur. right whales from this survey. We have right whales (effective March–April and The majority of impacts to marine established a 500-m shutdown zone for November–December) extends from mammals are expected to be short-term right whales which is precautionary Massachusetts to Florida (LaBrecque, et disruption of behavioral patterns, considering the Level B harassment al., 2015). Off the south coast of primarily in the form of avoidance or isopleth for the largest source utilized Massachusetts and Rhode Island, this potential interruption of foraging. (i.e., GeoMarine Geo Spark 2000 (400 BIA extends from the coast to beyond Marine mammal feeding behavior is not tip) is estimated to be 195 m. the shelf break. The fact that the spatial likely to be significantly impacted. NMFS is also requiring Vineyard acoustic footprint of the planned survey Regarding impacts to marine mammal Wind to limit the number of survey is very small relative to the spatial habitat, prey species are mobile, and are vessels operating concurrently to no extent of the available migratory habitat broadly distributed throughout the more than three in specified areas means that right whale migration is not Project Area and the footprint of the during periods when right whale expected to be impacted by the survey. activity is small; therefore, marine densities are likely to be elevated. This Required vessel strike avoidance mammals that may be temporarily includes a specified area approximately measures will also decrease risk of ship displaced during survey activities are 31 miles due south of Nantucket strike during migration. NMFS is expected to be able to resume foraging including Lease Area OCS–A 0522 from expanding the standard avoidance once they have moved away from areas December to February as well as Lease measures by requiring that all vessels, with disturbing levels of underwater Area OCS–A 0501 and surrounding regardless of size, adhere to a 10 knot noise. Because of the availability of Project Areas south and southwest of speed limit in SMAs and DMA. similar habitat and resources in the Martha’s Vineyard from March to June. Additionally, limited take by Level B surrounding area the impacts to marine Numerous right whale aggregations have harassment of North Atlantic right mammals and the food sources that they been reported in these areas during the whales has been authorized as HRG utilize are not expected to cause winter and spring. Furthermore, surveys survey operations are required to shut significant or long-term consequences in right whale critical habitat area will down at 500 m to minimize the for individual marine mammals or their be limited to August and September potential for behavioral harassment of populations. The HRG survey when the whales are unlikely to be this species. equipment itself will not result in present. Due to the length of the survey As noted previously, elevated physical habitat disturbance. Avoidance and continuous night operations, it is humpback whale mortalities have of the area around the HRG survey conceivable that a limited number of occurred along the Atlantic coast from activities by marine mammal prey right whales could enter into the Level Maine through Florida since January species is possible. However, any B harassment zone without being 2016. Of the cases examined, avoidance by prey species would be observed. Any potential impacts to right approximately half had evidence of expected to be short term and whales would consist of, at most, low- human interaction (ship strike or temporary. level, short-term behavioral harassment entanglement). The UME does not yet ESA-listed species for which takes are in a limited number of animals. The provide cause for concern regarding authorized are right, fin, sei, and sperm authorized takes of right whales would population-level impacts. Despite the whales, and these effects are anticipated not exacerbate or compound the UME, the relevant population of to be limited to lower level behavioral ongoing UME in any way. humpback whales (the West Indies effects. NMFS does not anticipate that The planned Project Area breeding population, or distinct serious injury or mortality would occur encompasses or is in close proximity to population segment (DPS)) remains

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healthy. Beginning in January 2017, to cause injury (Level A harassment) • Required mitigation measures, elevated minke whale strandings have and more severe Level B harassment including visual monitoring and occurred along the Atlantic coast from during HRG survey activities, even in shutdowns, are expected to minimize Maine through South Carolina, with the biologically important areas the intensity of potential impacts to highest numbers in Massachusetts, described above. No Level A harassment marine mammals. Maine, and New York. This event does is anticipated or authorized. Based on the analysis contained not provide cause for concern regarding NMFS expects that most takes would herein of the likely effects of the population level impacts, as the likely primarily be in the form of short-term specified activity on marine mammals population abundance is greater than Level B behavioral harassment in the and their habitat, and taking into 20,000 whales. Elevated North Atlantic form of brief startling reaction and/or consideration the implementation of the right whale mortalities began in June temporary vacating of the area, or required monitoring and mitigation 2017, primarily in Canada. Overall, decreased foraging (if such activity were measures, NMFS finds that the total preliminary findings support human occurring)—reactions that (at the scale marine mammal take from Vineyard interactions, specifically vessel strikes and intensity anticipated here) are Wind’s planned HRG survey activities or rope entanglements, as the cause of considered to be of low severity and will have a negligible impact on the death for the majority of the right with no lasting biological consequences. affected marine mammal species or whales. Elevated numbers of harbor seal Since both the source and the marine stocks. and gray seal mortalities were first mammals are mobile, only a smaller Small Numbers observed in July, 2018 and have area would be ensonified by sound occurred across Maine, New Hampshire levels that could result in take for only As noted above, only small numbers and Massachusetts. Based on tests a short period. Additionally, required of incidental take may be authorized conducted so far, the main pathogen mitigation measures would reduce under Sections 101(a)(5)(A) and (D) of found in the seals is phocine distemper exposure to sound that could result in the MMPA for specified activities other virus although additional testing to more severe behavioral harassment. than military readiness activities. The identify other factors that may be In summary and as described above, MMPA does not define small numbers involved in this UME are underway. the following factors primarily support and so, in practice, where estimated The UME for seals does not yet provide our determination that the impacts numbers are available, NMFS compares cause for concern regarding population- resulting from this activity are not the number of individuals taken to the level impacts to any of these stocks. For expected to adversely affect the species most appropriate estimation of harbor seals, the population abundance or stock through effects on annual rates abundance of the relevant species or is over 75,000 and annual M/SI (345) is of recruitment or survival: stock in our determination of whether well below PBR (2,006) (Hayes et al., • No mortality or serious injury is an authorization is limited to small 2018). For gray seals, the population anticipated or authorized; numbers of marine mammals. abundance in the United States is over • No Level A harassment is Additionally, other qualitative factors 27,000, with an estimated abundance anticipated or authorized; may be considered in the analysis, such including seals in Canada of • Any foraging interruptions are as the temporal or spatial scale of the approximately 505,000, and abundance expected to be short term and unlikely activities. is likely increasing in the U.S. Atlantic to cause significant impacts; The numbers of marine mammals that EEZ as well as in Canada (Hayes et al., • Impacts on marine mammal habitat we have authorized for take, for all 2018). and species that serve as prey species species and stocks, would be considered Direct physical interactions (ship for marine mammals are expected to be small relative to the relevant stocks or strikes and entanglements) appear to be minimal and the alternate areas of populations (less than 15 percent for all responsible for many of the UME similar habitat value for marine species and stocks) as shown in Table humpback and right whale mortalities mammals are readily available; 5. Based on the analysis contained • recorded. The HRG survey will require Take is anticipated to be primarily herein of the planned activity (including ship strike avoidance measures which Level B behavioral harassment the required mitigation and monitoring would minimize the risk of ship strikes consisting of brief startling reactions measures) and the anticipated take of while fishing gear and in-water lines and/or temporary avoidance of the marine mammals, NMFS finds that will not be employed as part of the ensonified area; small numbers of marine mammals will • survey. Furthermore, the planned Survey activities would occur in be taken relative to the population size activities are not expected to promote such a comparatively small portion of of the affected species or stocks. the transmission of infectious disease the biologically important areas for among marine mammals. The survey is North Atlantic right whale migration, Unmitigable Adverse Impact Analysis not expected to result in the deaths of including a small area of designated and Determination any marine mammals or combine with critical habitat, that any avoidance of There are no relevant subsistence uses the effects of the ongoing UMEs to result the Project Area due to activities would of the affected marine mammal stocks or in any additional impacts not analyzed not affect migration. In addition, species implicated by this action. here. Accordingly, Vineyard Wind did mitigation measures to shut down at 500 Therefore, NMFS has determined that not request, and NMFS is not m to minimize potential for Level B the total taking of affected species or authorizing, take of marine mammals by behavioral harassment would limit both stocks would not have an unmitigable serious injury, or mortality. the number and severity of take of the adverse impact on the availability of The required mitigation measures are species. such species or stocks for taking for expected to reduce the number and/or • Similarly, due to the relatively subsistence purposes. severity of takes by giving animals the small footprint of the survey activities opportunity to move away from the in relation to the size of a biologically National Environmental Policy Act sound source before HRG survey important areas for right, humpback, fin, To comply with the National equipment reaches full energy and and sei whales foraging, the survey Environmental Policy Act of 1969 preventing animals from being exposed activities would not affect foraging (NEPA; 42 U.S.C. 4321 et seq.) and to sound levels that have the potential behavior of this species; and NOAA Administrative Order (NAO)

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216–6A, NMFS must evaluate our Authorization the proposed Renewal not previously proposed action (i.e., the promulgation NMFS has issued an IHA to Vineyard provided during the initial 30-day of regulations and subsequent issuance Winds for conducting marine site comment period. of incidental take authorization) and characterization surveys offshore of DATES: Comments and information must alternatives with respect to potential Massachusetts in the areas of the be received no later than May 21, 2020. impacts on the human environment. Commercial Lease of Submerged Lands ADDRESSES: Comments should be This action is consistent with for Renewable Energy Development on addressed to Jolie Harrison, Chief, categories of activities identified in the Outer Continental Shelf (OCS–A Permits and Conservation Division, Categorical Exclusion B4 of the 0501 and OCS–A 0522) and along Office of Protected Resources, National Companion Manual for NAO 216–6A, potential submarine offshore export Marine Fisheries Service. Physical which do not individually or cable corridors (OECC) to landfall comments should be sent to 1315 East- cumulatively have the potential for locations in Massachusetts, Rhode West Highway, Silver Spring, MD 20910 significant impacts on the quality of the Island, Connecticut, and New York from and electronic comments should be sent human environment and for which we June 1, 2020 through May 31, 2021, to [email protected]. have not identified any extraordinary provided the previously mentioned Instructions: NMFS is not responsible circumstances that would preclude this mitigation, monitoring, and reporting for comments sent by any other method, categorical exclusion. Accordingly, requirements are incorporated. to any other address or individual, or NMFS has determined that the proposed received after the end of the comment Dated: April 30, 2020. action qualifies to be categorically period. Comments received excluded from further NEPA review. Donna Wieting, electronically, including all Director, Office of Protected Resources, Endangered Species Act attachments, must not exceed a 25- National Marine Fisheries Service. megabyte file size. All comments Section 7(a)(2) of the Endangered [FR Doc. 2020–09629 Filed 5–5–20; 8:45 am] received are a part of the public record Species Act of 1973 (16 U.S.C. 1531 et BILLING CODE 3510–22–P and will generally be posted online at seq.) requires that each Federal agency https://www.fisheries.noaa.gov/permit/ insure that any action it authorizes, incidental-take-authorizations-under- funds, or carries out is not likely to DEPARTMENT OF COMMERCE marine-mammal-protection-act without jeopardize the continued existence of National Oceanic and Atmospheric change. All personal identifying any endangered or threatened species or Administration information (e.g., name, address) result in the destruction or adverse voluntarily submitted by the commenter modification of designated critical [RTID 0648–XR110] may be publicly accessible. Do not habitat. To ensure ESA compliance for submit confidential business the issuance of IHAs, NMFS consults Takes of Marine Mammals Incidental to information or otherwise sensitive or internally, in this case with the NMFS Specified Activities; Taking Marine protected information. Mammals Incidental to the Chevron Greater Atlantic Regional Fisheries FOR FURTHER INFORMATION CONTACT: Richmond Refinery Long Wharf Office (GARFO), whenever we propose Bonnie DeJoseph, Office of Protected Maintenance and Efficiency Project in to authorize take for endangered or Resources, NMFS, (301) 427–8401. San Francisco Bay, California threatened species. Electronic copies of the original The NMFS Office of Protected AGENCY: National Marine Fisheries application, Renewal request, and Resources Permits and Conservation Service (NMFS), National Oceanic and supporting documents (including NMFS Division is authorizing the incidental Atmospheric Administration (NOAA), Federal Register notices of the proposed take of four species of marine mammals Commerce. and final authorizations for both the which are listed under the ESA: The ACTION: Notice; request for comments on 2019 and 2018 IHAs, and the 2019 IHA), North Atlantic right, fin, sei and sperm proposed Renewal incidental as well as a list of the references cited whale. We requested initiation of harassment authorization. in this document, may be obtained consultation under Section 7 of the ESA online at: https:// with NMFS GARFO on February 12, SUMMARY: NMFS received a request from www.fisheries.noaa.gov/permit/ 2020, for the issuance of this IHA. Chevron Products Company (Chevron) incidental-take-authorizations-under- BOEM consulted with NMFS GARFO for the Renewal of their currently active marine-mammal-protection-act. In case under section 7 of the ESA on incidental harassment authorization of problems accessing these documents, commercial wind lease issuance and (IHA) to take marine mammals please call the contact listed above. site assessment activities on the Atlantic incidental to the Long Wharf SUPPLEMENTARY INFORMATION: Outer Continental Shelf in Maintenance and Efficiency Project Massachusetts, Rhode Island, New York (LWMEP) in San Francisco Bay, Background and New Jersey Wind Energy Areas. The California. These activities consist of The Marine Mammal Protection Act NMFS GARFO issued a Biological activities that are covered by the current (MMPA) prohibits the ‘‘take’’ of marine Opinion concluding that these activities authorization but will not be completed mammals, with certain exceptions. may adversely affect but are not likely prior to its expiration. Pursuant to the Sections 101(a)(5)(A) and (D) of the to jeopardize the continued existence of Marine Mammal Protection Act, prior to MMPA (16 U.S.C. 1361 et seq.) direct the North Atlantic right, fin, sei and issuing the currently active IHA, NMFS the Secretary of Commerce (as delegated sperm whale. Upon request from the requested comments on both the to NMFS) to allow, upon request, the NMFS Office of Protected Resources, proposed IHA and the potential for incidental, but not intentional, taking of NMFS GARFO issued an amended renewing the authorization if certain small numbers of marine mammals by incidental take statement associated requirements were satisfied. The U.S. citizens who engage in a specified with this Biological Opinion to include Renewal requirements have been activity (other than commercial fishing) the take of the ESA-listed marine satisfied, and NMFS is now providing within a specified geographical region if mammal species authorized through an additional 15-day comment period to certain findings are made and either this IHA in April, 2020. allow for any additional comments on regulations are issued or, if the taking is

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limited to harassment, a notice of a Renewal IHA are identical to the This action is consistent with proposed incidental take authorization activities analyzed under the initial categories of activities identified in is provided to the public for review. IHA, are a subset of the activities, or Categorical Exclusion B4 (incidental Authorization for incidental takings include changes so minor (e.g., harassment authorizations with no shall be granted if NMFS finds that the reduction in pile size) that the changes anticipated serious injury or mortality) taking will have a negligible impact on do not affect the previous analyses, of the Companion Manual for NOAA the species or stock(s) and will not have mitigation and monitoring Administrative Order 216–6A, which do an unmitigable adverse impact on the requirements, or take estimates (with not individually or cumulatively have availability of the species or stock(s) for the exception of reducing the type or the potential for significant impacts on taking for subsistence uses (where amount of take). the quality of the human environment relevant). Further, NMFS must prescribe (2) A preliminary monitoring report and for which we have not identified the permissible methods of taking and showing the results of the required any extraordinary circumstances that other ‘‘means of effecting the least monitoring to date and an explanation would preclude this categorical practicable adverse impact’’ on the showing that the monitoring results do exclusion. Accordingly, NMFS has affected species or stocks and their not indicate impacts of a scale or nature determined that the issuance of the IHA habitat, paying particular attention to not previously analyzed or authorized. qualifies to be categorically excluded rookeries, mating grounds, and areas of Upon review of the request for from further NEPA review. similar significance, and on the Renewal, the status of the affected History of Request availability of such species or stocks for species or stocks, and any other On June 19, 2019, NMFS issued an taking for certain subsistence uses pertinent information, NMFS IHA to Chevron Products Company to (referred to here as ‘‘mitigation determines that there are no more than take marine mammals incidental to measures’’). Monitoring and reporting of minor changes in the activities, the Chevron Richmond Refinery Long such takings are also required. The mitigation and monitoring measures Wharf Maintenance and Efficiency meaning of key terms such as ‘‘take,’’ will remain the same and appropriate, Project (LWMEP) in San Francisco Bay, ‘‘harassment,’’ and ‘‘negligible impact’’ and the findings in the initial IHA California (84 FR 28474; June 19, 2019), can be found in section 3 of the MMPA remain valid. (16 U.S.C. 1362) and the agency’s effective from June 1, 2019 through May An additional public comment period regulations at 50 CFR 216.103. 31, 2020. On January 30, 2020, NMFS NMFS’ regulations implementing the of 15 days (for a total of 45 days), with received a request for the Renewal of MMPA at 50 CFR 216.107(e) indicate direct notice by email, phone, or postal this 2019 IHA. As described in the that IHAs may be renewed for service to commenters on the initial request for Renewal IHA, the activities additional periods of time not to exceed IHA, is provided to allow for any for which incidental take is requested one year for each reauthorization. In the additional comments on the proposed consist of activities that are covered by notice of proposed IHA for the 2019 Renewal. A description of the Renewal the initial 2019 IHA but will not be authorization, NMFS described the process may be found on our website at: completed prior to its expiration. As circumstances under which we would www.fisheries.noaa.gov/national/ required, the applicant also provided a consider issuing a Renewal for this marine-mammal-protection/incidental- preliminary monitoring report (available activity, and requested public comment harassment-authorization-renewals. at https://www.fisheries.noaa.gov/ on a potential Renewal under those Any comments received on the potential action/incidental-take-authorization- circumstances. Specifically, on a case- Renewal, along with relevant comments chevron-long-wharf-maintenance-and- by-case basis, NMFS may issue a one- on the 2019 IHA, have been considered efficiency-project-san-0) which confirms year Renewal IHA following notice to in the development of this proposed that the applicant has implemented the the public providing an additional 15 IHA Renewal, and a summary of agency required mitigation and monitoring, and days for public comments when (1) up responses to applicable comments is which also shows that no impacts of a to another year of identical or nearly included in this notice. NMFS will scale or nature not previously analyzed identical, or nearly identical, activities consider any additional public or authorized have occurred as a result as described in the Description of the comments prior to making any final of the activities conducted. Specified Activities and Anticipated decision on the issuance of the Of note, NMFS previously issued an Impacts section of this notice is planned requested Renewal, and agency IHA to Chevron for similar work (82 FR or (2) the activities as described in the responses will be summarized in the 27240; June 14, 2017). However, the Description of the Specified Activities final notice of our decision. construction schedule and scope was and Anticipated Impacts section of this The NDAA (Pub. L. 108–136) revised and no work was conducted notice would not be completed by the removed the ‘‘small numbers’’ and under that IHA. NMFS issued a second time the IHA expires and a Renewal ‘‘specified geographical region’’ IHA on June 1, 2018 to Chevron for would allow for completion of the limitations indicated above and work not conducted in 2017 (83 FR activities beyond that described in the amended the definition of ‘‘harassment’’ 27548; June 13, 2018). Because the Dates and Duration section of this as it applies to a ‘‘military readiness activities addressed in the 2019 IHA notice, provided all of the following activity.’’ were very similar to those analyzed in conditions are met: National Environmental Policy Act the 2018 IHA, the Federal Register • A request for renewal is received no Notices supporting the 2019 IHA refer later than 60 days prior to the needed To comply with the National back to the Federal Register Notices Renewal IHA effective date (recognizing Environmental Policy Act of 1969 supporting the 2018 IHA for more that the Renewal IHA expiration date (NEPA; 42 U.S.C. 4321 et seq.) and detailed descriptions. cannot extend beyond one year from NOAA Administrative Order (NAO) Description of the Specified Activities expiration of the initial IHA). 216–6A, NMFS must review our • The request for renewal must proposed action (i.e., the issuance of an and Anticipated Impacts include the following: incidental harassment authorization) Chevron will be unable to complete (1) An explanation that the activities with respect to potential impacts on the all of the planned work in the 2019 IHA to be conducted under the requested human environment. at the Richmond Refinery Long Wharf

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(Long Wharf) before the expiration date monitoring would be identical to that Species with the expected potential to of May 31, 2020 and, therefore, they included in the 2019 IHA. All be present during all or a portion of the have requested a Renewal IHA to documents associated with the 2019 in-water work window include the Gray authorize take of marine mammals for IHA (i.e., the IHA application, Proposed whale (Eschrichtius robustus), the subset of the initially planned work IHA, Final IHA, public comments, Bottlenose dolphin (Tursiops truncates), that could not be completed. These monitoring reports, etc.) can be found harbor porpoise (Phocoena phocoena), planned construction activities would on NMFS’s website, https:// California sea lion (Zalophus allow Chevron to comply with Marine www.fisheries.noaa.gov/action/ californianus), Northern fur seal Oil Terminal Engineering and incidental-take-authorization-chevron- (Callorhinus ursinus), Pacific harbor Maintenance Standards (MOTEMS) and long-wharf-maintenance-and-efficiency- seal (Phoca vitulina richardii), and to improve safety and efficiency at the project-san-0. All documents associated Northern elephant seal (Mirounga Long Wharf. The work would be with the 2018 IHA (which are identical to a subset of the activities sometimes referenced in the Federal angustirostris). Monitoring results of the analyzed in the 2019 IHA and include Register Notices supporting the 2019 2019 construction activities (Table 1) both vibratory and impact pile driving IHA) can be found at: https:// indicate that observed exposures above for removal and installation of piles. www.fisheries.noaa.gov/action/ Level A and Level B harassment Chevron installed 46 piles and removed incidental-take-authorization-chevron- thresholds (see monitoring report) were 10 piles (of which 8 were temporary and long-wharf-maintenance-and-efficiency- below the amount authorized in removed shortly after installation) over project-san. association with the amount of work approximately 18 construction days Anticipated impacts, which would conducted; thus, the subset of Level A under the 2019 IHA, leaving 69 piles include both Level A and Level B and Level B take remaining from that remaining to be installed and up to109 harassment of marine mammals, would authorized under the 2019 IHA will be piles to be removed in the June 1 to also be identical to those analyzed and sufficient to cover the 2020 pile November 30, 2020 construction authorized in the 2019 IHA (though installation and removal activities. window. Similarly, the mitigation and fewer, since from a subset of activities).

TABLE 1—TAKE AUTHORIZED IN 2019 IHA AND TAKE DOCUMENTED BY SPECIES AND STOCK IN THE 2019 CONSTRUCTION WINDOW

Documented Documented Authorized Authorized 2019 2019 Species Stock Level A Level B Level A Level B takes takes take take

Harbor seal ...... California ...... 513 6,572 0 a 94 California sea lion ...... Eastern U.S ...... 479 0 b 1 Harbor porpoise ...... San Francisco—Russian River ...... 4 509 0 c 2 Northern elephant seal ...... California Breeding ...... 23 0 0 Gray whale ...... Eastern North Pacific ...... 2 0 0 Northern fur seal ...... California ...... 10 0 0 Bottlenose Dolphin ...... California Coastal ...... 30 0 0 a Sum of oberserved (48) and extrapolated (46). b No take extrapolated. Only one sea lion was observed sitting on a moving tug outside of construction activity. c Sum of observed (1) and extrapolated (1).

Detailed Description of the Activity driving for removal and installation of IHA. Table 2 shows the work completed piles. in 2019 and the remaining subset of A detailed description of the All piles for which take was work to be covered under this Renewal. construction activities for which take is authorized in the 2019 IHA were Identical to the 2019 IHA, pile driving proposed here may be found in the expected to be installed/removed during activities would be timed to occur Notices of the Proposed and Final IHAs the 2019 in-water work window from within the standard NMFS work for the 2019 authorization. The work June 1 to November 30, 2019. However, windows for Endangered Species Act would be identical to a subset of the due to construction schedule delays, (ESA)-listed fish species (June 1 through activities analyzed in the 2019 IHA and designated work was only conducted on November 30). The proposed Renewal include both vibratory and impact pile 18 of the estimated 67 days of pile would be effective for a period of one driving activity planned in the 2019 year from the date of issuance.

TABLE 2— PILE INSTALLATIONS COMPLETED IN 2019 AND REMAINING SUBSET PLANNED FOR THE 2020 CONSTRUCTION WINDOW

Number of Number of piles Number Pile Number of piles requested in installed/ Number of Pile type driver piles completed 2020 Renewal removed per driving days type 2019 IHA in 2019 application day 2020 2020

60-inch steel pipe piles ...... Impact ...... 8 0 8 1 8 36-inch steel template pile (Installation Vibratory ...... 8 8 0 ...... 0 and removal). 20-inch steel template pile (Installation Vibratory ...... 8 8 0 ...... 0 and removal).

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TABLE 2— PILE INSTALLATIONS COMPLETED IN 2019 AND REMAINING SUBSET PLANNED FOR THE 2020 CONSTRUCTION WINDOW—Continued

Number of Number of piles Number Pile Number of piles requested in installed/ Number of Pile type driver piles completed 2020 Renewal removed per driving days type 2019 IHA in 2019 application day 2020 2020

22-inch concrete pile removal ...... Vibratory ...... 5 2 3 5 1 24-inch square concrete ...... Impact ...... 39 30 9 2 5 12-inch composite piles ...... Vibratory ...... 52 0 52 5 11 Timber pile removal ...... Vibratory ...... 106 0 106 12 9

Total ...... 226 * 48 178 NA 34 *46 piles were installed and 2 other piles were removed. Eight of the 46 piles were temporary and removed shortly after installation. Thus, a total of 48 piles were utilized in construction activities during 2019, in which 46 pile installations and 10 pile removals were monitored, as re- quired by the initial IHA.

Description of Marine Mammals conclude that these updates do not Impacts section, the purpose of this A description of the marine mammals change our findings. Renewal IHA is to authorize take of in the area of the activities for which Potential Effects on Marine Mammals marine mammals for the subset of the authorization of take is proposed here, and Their Habitat initially planned work that could not be including information on abundance, completed before the expiration of the A description of the potential effects 2019 IHA, May 31, 2020. The subset of status, distribution, and hearing, may be of the specified activity on marine work completed in 2019 and that left to found in the Notices of the Proposed mammals and their habitat for the be completed during the 2020 and Final IHAs for the 2019 activities for which take is proposed authorization. NMFS has reviewed the here may be found in the in the Federal construction window is listed in Table monitoring data from the 2019 IHA, Register notice of the issuance of the 2. recent draft Stock Assessment Reports, 2018 IHA for Chevron’s Long Wharf A detailed description of the methods information on relevant Unusual Maintenance and Efficiency project (83 and inputs used to estimate take for the Mortality Events, and other scientific FR 27548; June 13, 2018) and the specified activity are found in the literature, and determined that neither Federal Register notice of the proposed Notices of the Proposed and Final IHAs this nor any other new information IHA (83 FR 18802; April 30, 2018). for the 2019 authorization. Specifically, affects which species or stocks have the NMFS has reviewed the monitoring data the source levels, in-water construction potential to be affected or the pertinent from the 2019 IHA, recent draft Stock window, and marine mammal density information in the Description of the Assessment Reports, information on data applicable to this authorization Marine Mammals in the Area of relevant Unusual Mortality Events, and Specified Activities contained in the remain unchanged from the previously other scientific literature, and issued IHA, just the new, lesser, supporting documents for the 2019 IHA. determined that neither this nor any remaining levels of activity have been The only change from the 2019 IHA is other new information affects our initial applied. Similarly, the stocks taken, a reduction of the San Francisco— analysis of impacts on marine mammals methods of take, and types of take Russian River harbor porpoise and the and their habitat. U.S. California sea lion estimated stocks remain unchanged from the previously from 9,886 to 7,524 and 296,750 to Estimated Take issued IHA. 257,606, respectively (Carretta et al. As stated above in the Description of 2019). Preliminary determinations the Specified Activities and Anticipated

TABLE 3—AUTHORIZED TAKE OF STOCKS, RENEWAL IHA 2020

Authorized Authorized Species Stock Level A take Level B take

Harbor seal ...... California ...... * 513 5,114 California sea lion ...... Eastern U.S ...... 302 Harbor porpoise ...... San Francisco—Russian River ...... * 4 321 Northern elephant seal ...... California Breeding ...... 11 Gray whale ...... Eastern North Pacific ...... 2 Northern fur seal ...... California ...... 10 Bottlenose Dolphin ...... California Coastal ...... 17 * Level A take is associated with impact pile driving of 60-inch steel pipe, which was not conducted in 2019 as planned and is part of the sub- set of work to be completed in 2020.

Description of Proposed Mitigation, Federal Register Notice announcing the following measures are proposed for Monitoring and Reporting Measures issuance of the 2019 IHA, and the this renewal: discussion of the least practicable The proposed mitigation, monitoring, Proposed Mitigation adverse impact included in that and reporting measures included as document remains accurate. The requirements in this authorization are Time Restrictions—For all in-water identical to those included in the pile driving activities, Chevron must

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operate only during daylight hours (7 percent of the piling perimeter for the contact. (3) Air flow to the bubblers a.m. to 7 p.m.). full depth of the water column. (2) The must be balanced around the Attenuation Devices—Chevron must lowest bubble ring must be in contact circumference of the pile. implement the use of bubble curtains with the mudline for the full Establishment of Shutdown Zone— during impact driving of 60-inch steel circumference of the ring, and the For all pile driving and extraction piles and 24-inch square concrete piles weights attached to the bottom ring activities Chevron must implement and and operate it in a manner consistent must ensure 100 percent mudline with the following performance monitor shutdown zones. See Table 4 contact. No parts of the ring or other for minimum radial distances required standards: (1) The bubble curtain must objects shall prevent full mudline distribute air bubbles around 100 for shutdown zones.

TABLE 4—RADIAL DISTANCE TO SHUTDOWN ZONES

Shutdown zones meters Project element requiring pile installation Low- Mid- High- frequency frequency frequency Phocid Otariid cetaceans cetaceans cetaceans pinnipeds pinnipeds

Attenuated Impact Driving (with bubble curtain): 60-inch steel pipe ...... 840 30 50 30 35 24-inch square concrete ...... 20 10 50 15 10 Impact Pile Proofing (no bubble curtain): 36-inch steel pipe pile ...... 100 10 80 30 10 Vibratory Driving/Extraction: 12-inch Composite Barrier Pile ...... 20 10 50 15 10 36-inch steel pipe pile ...... 20 10 50 15 10 20-inch steel pipe pile ...... 10 10 50 10 10 Wood and concrete pile extraction ...... 10 10 50 10 10

Establishment of Monitoring Zones for harassment zones during impact driving 990 meters. Chevron must also establish Level A and Level B—Chevron must for harbor seal extending to 450 meters and monitor Level B harassment zones establish and monitor Level A and for harbor porpoise extending to as depicted in Table 5.

TABLE 5—RADIAL DISTANCES TO MONITORING ZONES

Distance to threshold Pile type 160/120 dB RMS (Level B) in meters

Attenuated Impact Driving (with bubble curtain): 60-inch steel pipe (1 per day) ...... 740 24-inch square concrete (1-2 per day) ...... 75 Impact Pile Proofing (no bubble curtain): 36-inch steel pipe pile (2 total) ...... 1,000 Vibratory Driving/Extraction: 12-Inch Composite Barrier Piles (5 per day) ...... 15,850 36-inch steel pipe pile (4 per day) ...... 21,545 20-inch steel pipe pile (4 per day) ...... 7,360 Wood and concrete pile extraction (12 per day) ...... 1,360

Soft Start—Chevron must use soft the end of the 30-minute pre-activity animal. Pile driving activities include start techniques when impact pile monitoring period, provided observers the time to install or remove a single driving. Chevron must provide an initial have determined that the shutdown pile or series of piles, as long as the time set of strikes at reduced energy, zone is clear of marine mammals, which elapsed between uses of the pile driving followed by a 30-second waiting period, includes delaying start of pile driving equipment is no more than thirty then two subsequent reduced energy activities if a marine mammal is sighted minutes. strike sets. Soft start must be in the zone, as described below. 10-Meter Shutdown Zone—During the implemented at the start of each day’s If a marine mammal approaches or in-water operation of heavy machinery impact pile driving and at any time enters the shutdown zone during (e.g., barge movements), a 10-m following cessation of impact pile activities or pre-activity monitoring, all shutdown zone for all marine mammals driving for a period of thirty minutes or pile driving activities at that location must be implemented. If a marine longer. must be halted or delayed, respectively. mammal comes within 10 m, operations Pre-Activity Monitoring—Pre-activity If pile driving is halted or delayed due must cease and vessels must reduce monitoring must take place from 30 to the presence of a marine mammal, the speed to the minimum level required to minutes prior to initiation of pile activity may not resume or commence maintain steerage and safe working driving activity and post-activity until either the animal has voluntarily conditions. monitoring must continue through 30 left and been visually confirmed beyond Non-authorized Take Prohibited—If a minutes post-completion of pile driving the shutdown zone or 15 minutes have species for which authorization has not activity. Pile driving may commence at passed without re-detection of the been granted or a species for which

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authorization has been granted but the during construction activities; (3) Other following receipt of comments on the authorized takes are met, is observed PSOs may substitute education (degree draft report from NMFS. approaching or within the monitoring in biological science or related field) or The report must include an overall zone, pile driving and removal activities training for experience; and (4) Chevron description of work completed, a must shut down immediately using must submit PSO CVs for approval by narrative regarding marine mammal delay and shut-down procedures. NMFS. sightings, and associated marine Activities must not resume until the Chevron must ensure that observers mammal observation data sheets. animal has been confirmed to have left have the following additional Specifically, the report must include: (1) the area or an observation time period qualifications: (1) Ability to conduct Dates and times (begin and end) of all of 15 minutes without re-sighting has field observations and collect data marine mammal monitoring; (2) elapsed. according to assigned protocols; (2) Construction activities occurring during each daily observation period, including Proposed Monitoring Measures Experience or training in the field identification of marine mammals, how many and what type of piles were Visual Marine Mammal including the identification of removed or driven and by what method Observation—the following visual behaviors; (3) Sufficient training, (i.e., impact, vibratory, drilling); (3) monitoring measures must be orientation, or experience with the Weather parameters and water implemented: construction operation to provide for conditions during each monitoring Baseline biological monitoring must personal safety during observations; (4) period (e.g., wind speed, percent cover, occur within one week before the Writing skills sufficient to prepare a visibility, sea state); (4) The number of project’s start date. report of observations including but not marine mammals observed, by species, Monitoring distances, in accordance limited to the number and species of relative to the pile location and if pile with the identified shutdown zones, marine mammals observed; dates and removal or installation was occurring at Level A and Level B zones, must be times when in-water construction time of sighting; (5) Age and sex class, determined by using a range finder, activities were conducted; dates, times, if possible, of all marine mammals scope, hand-held global positioning and reason for implementation of observed; (6) PSO locations during system (GPS) device or landmarks with mitigation (or why mitigation was not marine mammal monitoring; (7) known distances from the monitoring implemented when required); and Distances and bearings of each marine positions. marine mammal behavior; and (5) mammal observed to the pile being Monitoring locations must be Ability to communicate orally, by radio removed or driven for each sighting (if established at locations offering best or in person, with project personnel to pile removal or installation was views of the monitoring zone. One occurring at time of sighting); (8) provide real-time information on marine protected species observer (PSO) must Description of any marine mammal mammals observed in the area as be stationed at the north end of the behavior patterns during observation, necessary. wharf monitoring the entire observable including direction of travel; (9) area with a special focus on the section Hydroacoustic Monitoring—Sound Number of individuals of each species between Castro Rocks and the wharf. Source Verification (SSV) testing must (differentiated by month as appropriate) At least two PSOs must be actively be conducted as stipulated in the detected within the monitoring zone, scanning the monitoring zone during all Hydroacoustic Monitoring Plan. and estimates of number of marine pile driving activities. Acoustic monitoring must be conducted mammals taken, by species; (10) Observers must record all incidents of on the following: (1) Acoustic Detailed information about any marine mammal occurrence, regardless monitoring for at least two timber piles implementation of any mitigation of distance from activity, and must (vibratory); (2) Acoustic monitoring for triggered (e.g., shutdowns and delays), a document any behavioral reactions in at least four 24-inch square concrete description of specific actions that concert with distance from piles being piles (impact); (3) Acoustic monitoring ensued, and resulting behavior of the driven or removed. for at least two 20-inch steel piles animal, if any; (11) Description of Monitoring must be continuous (vibratory); (4) Acoustic monitoring for attempts to distinguish between the unless the contractor takes a break at least two 36-inch steel piles number of individual animals taken and longer than 2 hours from active pile and (vibratory); (5) Acoustic monitoring for the number of incidences of take, such sheet pile driving, in which case at least two 60-inch steel piles (impact); as ability to track groups or individuals; monitoring must be required 30 minutes and (6) Acoustic monitoring of two 12- and (12) Level B harassment exposures prior to restarting pile installation. inch composite piles (vibratory). recorded by PSOs must be extrapolated For in-water pile driving, under Testing must be conducted by an based upon the number of observed conditions of fog or poor visibility that acoustical firm with prior experience takes and the percentage of the Level B might obscure the presence of a marine conducting SSV testing. Final results harassment zone that was not visible. mammal within the shutdown zone or must be sent to NMFS and may be used Injury, Serious Injury, or Mortality—In Level A zone, the pile in progress must to establish shutdown and monitoring the unanticipated event that the be completed and then pile driving isopleths. Any alterations to the specified activity clearly causes the take suspended until visibility conditions shutdown or monitoring zones based on of a marine mammal in a manner improve. testing data must be approved by NMFS. prohibited by the IHA, such as an Monitoring of pile driving must be injury, serious injury or mortality, Reporting conducted by qualified PSOs, who must Chevron would immediately cease the have no other assigned tasks during Marine Mammal Monitoring—A draft specified activities and report the monitoring periods. Chevron must marine mammal monitoring report must incident to the Chief of the Permits and adhere to the following conditions when be submitted to NMFS within 90 days Conservation Division, Office of selecting observers: (1) Independent after the completion of pile driving and Protected Resources, NMFS (301–427– PSOs must be used (i.e., not removal activities or a minimum of 60 8701), and the West Coast Regional construction personnel); (2) At least one days prior to any subsequent IHAs. A Stranding Coordinator (562–980–3230). PSO must have prior experience final report must be prepared and The report must include the following: working as a marine mammal observer submitted to NMFS within 30 days (1) Description of the incident; (2)

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Environmental conditions (e.g., Beaufort All public comments were addressed proposed IHA Renewal in the Federal sea state, visibility); (3) Description of in the notice announcing the issuance of Register and provide an additional 15 all marine mammal observations in the the 2019 IHA (84 FR 28474; June 19, days for public comment, making a total 24 hours preceding the incident; (4) 2019). Below, we describe how we have of 45 days of public comment. We also Species identification or description of addressed, with updated information directly contact all commenters on the the animal(s) involved; (5) Fate of the where appropriate, any comments initial IHA by email, phone, or, if the animal(s); and (6) Photographs or video received that specifically pertain to the commenter did not provide email or footage of the animal(s) (if equipment is Renewal of the 2019 IHA. phone information, by postal service to available). Comment: The Commission provide them the opportunity to submit Activities would not resume until recommended that NMFS refrain from any additional comments on the NMFS is able to review the implementing its proposed renewal proposed Renewal IHA. Where the circumstances of the prohibited take. process for Chevron’s subsequent commenter has already had the NMFS would work with Chevron to authorizations. The Commission opportunity to review and comment on determine what is necessary to believes that the renewal process should the potential for a Renewal in the initial minimize the likelihood of further be used sparingly and selectively, by proposed IHA for these activities, the prohibited take and ensure MMPA limiting its use only to those proposed abbreviated additional comment period compliance. Chevron would not be able IHAs that are expected to have the is sufficient for consideration of the to resume their activities until notified lowest levels of impacts to marine results of the preliminary monitoring by NMFS via letter, email, or telephone. mammals and that require the least report and new information (if any) In the event that Chevron discovers an complex analyses. Also, the from the past year. injured or dead marine mammal, and Commission recommended that NMFS the lead PSO determines that the cause provide the Commission and other Preliminary Determinations reviewers the full 30-day comment of the injury or death is unknown and opportunity set forth in section The proposed action of this Renewal the death is relatively recent (e.g., in 101(a)(5)(D)(iii) of the MMPA. IHA, both vibratory and impact pile less than a moderate state of Response: The Commission has driving for removal and installation of decomposition as described in the next submitted this comment multiple times, piles, would be identical to a subset of paragraph), Chevron would immediately and NMFS has responded multiple the activities analyzed in the 2019 IHA, report the incident to the Chief of the times, including, for example, more as listed in Table 2. Based on the Permits and Conservation Division, recently in the notice of issuance of an analysis detailed in the Notice of the Office of Protected Resources, NMFS, IHA to Avangrid Renewables (84 FR Final IHA for 2019 authorization, of the and the West Coast Regional Stranding 31032, June 28, 2019), and we refer the likely effects of the specified activity on Coordinator. The report would include Commission to those responses. We also marine mammals and their habitat, and the same information identified in include NMFS’ original response to the taking into consideration the section above. Activities would be able comment received on the 2019 Chevron implementation of the monitoring and to continue while NMFS reviews the proposed IHA here: mitigation measures, NMFS found that circumstances of the incident. NMFS Regarding the Commission’s comment the total marine mammal take from the would work with Chevron to determine that Renewal IHAs should be limited to activity will have a negligible impact on whether modifications in the activities certain types of projects NMFS has all affected marine mammal species or are appropriate. explained on its website and in stocks. In the event that Chevron discovers an individual Federal Register notices that injured or dead marine mammal and the Renewal IHAs are appropriate where the NMFS has preliminarily concluded lead PSO determines that the injury or continuing activities are identical, that there is no new information death is not associated with or related nearly identical, or a subset of the suggesting that our analysis or findings to the activities authorized in the IHA activities for which the initial 30-day should change from those reached for (e.g., previously wounded animal, comment period applied. If Chevron the 2019 IHA. This includes carcass with moderate to advanced seeks to obtain a Renewal IHA in the consideration of the estimated decomposition, or scavenger damage), future, NMFS will determine at that abundance of harbor porpoise and Chevron would report the incident to time whether the request meets the California sea lion stock decreasing the Chief of the Permits and necessary conditions under which a slightly. Based on the information and Conservation Division, Office of Renewal IHA could be considered. analysis contained here and in the Protected Resources, NMFS, and the NMFS has taken a number of steps to referenced documents, NMFS has West Coast Regional Stranding ensure the public has adequate notice, determined the following: (1) The Coordinator within 24 hours of the time, and information to be able to required mitigation measures will affect discovery. Chevron would provide comment effectively on Renewal IHAs the least practicable impact on marine photographs or video footage (if within the limitations of processing IHA mammal species or stocks and their available) or other documentation of the applications efficiently. Federal habitat; (2) the authorized takes will stranded animal sighting to NMFS and Register notices for the proposed initial have a negligible impact on the affected the Marine Mammal Stranding Network. IHAs identified the conditions under marine mammal species or stocks; (3) which a one-year Renewal IHA might be the authorized takes represent small Public Comments appropriate. This information is numbers of marine mammals relative to As noted previously, NMFS published presented in the Request for Public the affected stock abundances; (4) a notice of a proposed IHA (84 FR Comments section and thus encourages Chevron’s activities will not have an 17788; April 26, 2019) and solicited submission of comments on the unmitigable adverse impact on taking public comments on both our proposal potential of a one-year renewal as well for subsistence purposes as no relevant to issue the 2019 IHA for pile driving as the initial IHA during the 30-day subsistence uses of marine mammals are and extraction activities and on the comment period. In addition, when we implicated by this action, and; (5) potential for a Renewal IHA, should receive an application for a Renewal appropriate monitoring and reporting certain requirements be met. IHA, we will publish notice of the requirements are included.

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Endangered Species Act the person(s) listed below as soon as three voluntary mechanisms by which No incidental take of ESA-listed possible. communities, certain fleets, and the species is proposed for authorization or ADDRESSES: Written comments should purchasing public can get a better expected to result from this activity. be sent to the following: DOE Desk understanding of their readiness for Therefore, NMFS has determined that Officer, Office of Information and plug-in electric vehicles (PEVs), and to formal consultation under section 7 of Regulatory Affairs, Office of help DOE’s Clean Cities coalitions the ESA is not required for this action. Management and Budget, New prepare for the adoption of these Executive Office Building, Room 10102, vehicles review their progress in doing Proposed Renewal IHA and Request for 735 17th Street NW, Washington, DC so. The voluntary PEV Scorecard is Public Comment 20503. intended to assist communities and the As a result of these preliminary And to: Mr. Dennis Smith, Office of coalitions in assessing the level of determinations, NMFS proposes to issue Energy Efficiency and Renewable readiness of their communities for a Renewal IHA to Chevron for Energy (EE–3V), U.S. Department of PEVs. The principal objectives of the conducting vibratory and impact pile Energy, 1000 Independence Avenue questionnaire are to provide driving for removal and installation of SW, Washington, DC 20585–0121, or by respondents with an objective piles at the Long Wharf in San Francisco fax at 202–586–1600, or by email at assessment and estimate of their Bay, California during the in-water [email protected]. respective community’s readiness for construction window of June 1 through FOR FURTHER INFORMATION CONTACT: Mr. PEVs as well as understand the November 30, 2020, provided the Dennis Smith at Dennis.Smith@ respective community’s goals related to previously described mitigation, ee.doe.gov or via 202–586–1791. Please integrating these vehicles, and allow monitoring, and reporting requirements put ‘‘2020 DOE Agency Information communities to assess the magnitude of are incorporated. A draft of the Collection Renewal-Clean Cities Vehicle gaps in their readiness to achieve their proposed and final 2019 IHA can be Programs’’ in the subject line when goals. DOE intends the questionnaire to found at https:// sending an email. be completed by a city/county/regional www.fisheries.noaa.gov/permit/ SUPPLEMENTARY INFORMATION: Comments sustainability or energy coordinator. As incidental-take-authorizations-under- are invited on: (a) Whether the extended the intended respondent may not be marine-mammal-protection-act. We collection of information is necessary aware of every aspect of local or request comment on our analyses, the for the proper performance of the regional PEV readiness, coordination proposed Renewal IHA, and any other functions of DOE, including whether the among local stakeholders to gather aspect of this Notice. Please include information shall have practical utility; appropriate information may be with your comments any supporting (b) the accuracy of DOE’s estimate of the necessary. data or literature citations to help burden of the proposed collection of DOE expects a total respondent inform our final decision on the request information, including the validity of population of approximately 1,250 for MMPA authorization. the methodology and assumptions used; respondents. Selecting the multiple- Dated: April 30, 2020. (c) ways to enhance the quality, utility, choice answers in completing a questionnaire is expected to take under Donna S. Wieting, and clarity of the information to be collected; and (d) ways to minimize the 30 minutes, although additional time of Director, Office of Protected Resources, no more than 20 hours may be needed National Marine Fisheries Service. burden of the collection of information to assemble information necessary to be [FR Doc. 2020–09630 Filed 5–5–20; 8:45 am] on respondents, including through the use of automated collection techniques able to answer the questions, leading to BILLING CODE 3510–22–P or other forms of information a total burden of approximately 25,625 technology. hours. Assembling information to The Department of Energy is update questionnaire answers in the DEPARTMENT OF ENERGY proposing to extend an information future on a voluntary basis would be expected to take less time, on the order Agency Information Collection collection pursuant to the Paperwork of 10 hours, as much of any necessary Extension Reduction Act of 1995. The approved collection is being used for three Clean time and effort needed to research AGENCY: Office of Energy Efficiency and Cities programmatic efforts. The first information would have been completed Renewable Energy, U.S. Department of initiative is the collection of information previously. Energy (DOE). for a voluntary plug-in electric vehicle For the Clean Fleets Partnership ACTION: Submission for Office of (PEV) questionnaire that assists information collection, the Partnership Management and Budget (OMB) review; communities and DOE Clean Cities is targeted at large, private-sector fleets comment request. coalitions in assessing the level of that own or have contractual control readiness of their communities for over at least 50 percent of their vehicles SUMMARY: The Department of Energy has PEVs. The second effort is intended to and have vehicles operating in multiple submitted an information collection develop information that enables DOE States. DOE expects approximately 50 request to the OMB for extension under to review the progress of DOE’s National fleets to participate in the Partnership the provisions of the Paperwork Clean Fleets Partnership (Partnership). and, as a result, DOE expects a total Reduction Act of 1995. The information The third effort is referred to as ‘‘Ride respondent population of approximately collection requests a three-year and Drive Surveys’’. DOE is not 50 respondents. Providing initial extension of its Clean Cities Vehicle proposing to expand the scope of these baseline information for each Programs Information Collection, OMB information collection efforts. participating fleet, which occurs only Control Number 1910–5171. This information collection request once, is expected to take 60 minutes. DATES: Comments regarding this contains: (1) OMB No.: 1910–5171; (2) Follow-up questions and clarifications proposed information collection must Information Collection Request Title: for the purpose of ensuring accurate be received on or before June 5, 2020. Clean Cities Vehicle Programs; (3) Type analyses are expected to take up to 90 If you anticipate difficulty in submitting of Review: Renewal; (4) Purpose: DOE’s minutes. The total burden is expected to comments within that period, contact Clean Cities initiative has developed be 125 hours.

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For the DOE Clean Cities initiative with the original signature and date is In addition to publishing the full text that involves the ride-and-drive surveys, maintained by DOE. For administrative of this document in the Federal DOE has developed a three-part purposes only, and in compliance with Register, the Commission provides all voluntary survey to assist its coalitions requirements of the Office of the Federal interested persons an opportunity to and stakeholders in assessing the level Register, the undersigned DOE Federal view and/or print the contents of this of interest, understanding, and Register Liaison Officer has been document via the internet through the acceptance of PEVs and alternative fuel authorized to sign and submit the Commission’s Home Page (http:// vehicles (AFV) by the purchasing document in electronic format for ferc.gov) using the ‘‘eLibrary’’ link. public. DOE intends the surveys to be publication, as an official document of Enter the docket number excluding the completed by individuals who are the Department of Energy. This last three digits in the docket number participating in one of many ride-and- administrative process in no way alters field to access the document. At this drive events. There are three phases to the legal effect of this document upon time, the Commission has suspended the Survey: (1) Pre Ride-and-Drive; (2) publication in the Federal Register. access to the Commission’s Public post Ride-and-Drive; and (3) a few Signed in Washington, DC, on May 1, 2020. Reference Room, due to the months/some time later to discern if the Treena V. Garrett, proclamation declaring a National respondent followed through with Federal Register Liaison Officer, U.S. Emergency concerning the Novel acquisition of a PEV or another AFV. Department of Energy. Coronavirus Disease (COVID–19), issued Respondents provide answers in the [FR Doc. 2020–09696 Filed 5–5–20; 8:45 am] by the President on March 13, 2020. For first two phases through a user-friendly BILLING CODE 6450–01–P assistance, contact the Federal Energy paper survey and on-line survey, and in Regulatory Commission at the third phase they answer questions [email protected] or call via an electronic interface, although a DEPARTMENT OF ENERGY toll-free, (886) 208–3676 or TYY, (202) paper survey may be used for those 502–8659. lacking access to an electronic device or Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time computer. Commission on May 28, 2020. The Surveys’ effort relies on responses to questions the respondent [Docket No. AC20–103–000] Dated: April 30, 2020. chooses to answer. The multiple-choice Kimberly D. Bose, Locke Lord LLP; Notice of Filing questions address the following topic Secretary. areas: (1) Demographics; (2) Current Take notice that on April 28, 2020, [FR Doc. 2020–09657 Filed 5–5–20; 8:45 am] vehicle background; (3) How they Locke Lord LLP submitted a request for BILLING CODE 6717–01–P learned about ride and drive event; (3) confirmation from the Federal Energy Perceptions of PEVs before and after Regulatory Commission (Commission) driving; (4) Post-drive vehicle that the cost of specific electric wind DEPARTMENT OF ENERGY experience; (5) Purchase expectations; and solar generating equipment is (6) Follow-up survey regarding properly booked to Uniform System of Federal Energy Regulatory subsequent behaviors; (7) Purchase Accounts Nos. 343, 344 and 345, which Commission information; (8) Barriers; and (9) Future pertain to Production Plant. Combined Notice of Filings #2 intentions. The survey is expected to Any person desiring to intervene or to take 30 minutes, leading to a total protest this filing must file in Take notice that the Commission burden of approximately 28,250 hours accordance with Rules 211 and 214 of received the following electric rate (an increase 2,500 hours above the total the Commission’s Rules of Practice and filings: burden in hours for the two currently Procedure (18 CFR 385.211 or 385.214). Docket Numbers: ER20–1607–001. approved collections). Protests will be considered by the Applicants: PacifiCorp. (5) Type of Respondents: Public; (6) Commission in determining the Description: Tariff Amendment: Annual Estimated Number of appropriate action to be taken, but will Colstrip Trans System LGIA— Respondents for all three information not serve to make protestants parties to Concurrence Broadview Solar—Errata collections: 16,300; (7) Annual the proceeding. Any person wishing to Filing to be effective 4/9/2020. Estimated Number of Total Responses: become a party must file a notice of Filed Date: 4/30/20. 16,300; (7) Annual Estimated Number of intervention or motion to intervene, as Accession Number: 20200430–5287. Burden Hours: 28,250 (25,625 for PEV appropriate. Such notices, motions, or Comments Due: 5 p.m. ET 5/21/20. Scorecard, 125 for Clean Fleets protests must be filed on or before the Partnership, and 2,500 for the Ride and comment date. On or before the Docket Numbers: ER20–1710–000. Drive Surveys); and (8) Annual comment date, it is not necessary to Applicants: Rochelle Municipal Estimated Reporting and Recordkeeping serve motions to intervene or protests Utilities, PJM Interconnection, L.L.C. Description: § 205(d) Rate Filing: City Cost Burden: There is no cost associated on persons other than the Applicant. of Rochelle submits Revisions to CTOA with reporting and recordkeeping. The Commission encourages Statutory Authority: 42 U.S.C. 13233; electronic submission of protests and to be Removed as a TO to be effective 42 U.S.C. 13252 (a)–(b); 42 U.S.C. interventions in lieu of paper using the 5/28/2020. 13255. ‘‘eFiling’’ link at http://www.ferc.gov. Filed Date: 4/30/20. Persons unable to file electronically may Accession Number: 20200430–5222. Signing Authority mail similar pleadings to the Federal Comments Due: 5 p.m. ET 5/21/20. This document of the Department of Energy Regulatory Commission, 888 Docket Numbers: ER20–1711–000. Energy was signed on April 30, 2020, by First Street NE, Washington, DC 20426. Applicants: PJM Interconnection, David Howell, Program Director, Hand delivered submissions in L.L.C. Vehicle Technologies, Office Energy docketed proceedings should be Description: § 205(d) Rate Filing: Efficiency and Renewable Energy, delivered to Health and Human Amendment to ISA, Service Agreement pursuant to delegated authority from the Services, 12225 Wilkins Avenue, No. 5466; Queue No. AC2–176 to be Secretary of Energy. That document Rockville, Maryland 20852. effective 8/13/2019.

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Filed Date: 4/30/20. Filed Date: 4/30/20. The filings are accessible in the Accession Number: 20200430–5219. Accession Number: 20200430–5302. Commission’s eLibrary system by Comments Due: 5 p.m. ET 5/21/20. Comments Due: 5 p.m. ET 5/21/20. clicking on the links or querying the Docket Numbers: ER20–1712–000. Docket Numbers: ER20–1719–000. docket number. Applicants: Southwest Power Pool, Applicants: PPL Electric Utilities Any person desiring to intervene or Inc. Corporation, PJM Interconnection, protest in any of the above proceedings Description: § 205(d) Rate Filing: 3668 L.L.C. must file in accordance with Rules 211 MRES/Western Minnesota/Fort Pierre/ Description: Compliance filing: PPL and 214 of the Commission’s West Central Int Agr to be effective 7/ submits revisions to PJM Tariff re: Order Regulations (18 CFR 385.211 and 1/2020. 864 to be effective 1/27/2020. 385.214) on or before 5:00 p.m. Eastern Filed Date: 4/30/20. Filed Date: 4/30/20. time on the specified comment date. Accession Number: 20200430–5223. Accession Number: 20200430–5307. Protests may be considered, but Comments Due: 5 p.m. ET 5/21/20. Comments Due: 5 p.m. ET 5/21/20. intervention is necessary to become a party to the proceeding. Docket Numbers: ER20–1713–000. Docket Numbers: ER20–1720–000. eFiling is encouraged. More detailed Applicants: Evergy Kansas Central, Applicants: Southern California information relating to filing Inc. Edison Company. requirements, interventions, protests, Description: Compliance filing: Order Description: Compliance filing: SCE service, and qualifying facilities filings No. 864 Compliance to be effective 1/ Revised TO Tariff Formula Rate—Order can be found at: http://www.ferc.gov/ 27/2020. No. 864 to be effective 1/27/2020. docs-filing/efiling/filing-req.pdf. For Filed Date: 4/30/20. Filed Date: 4/30/20. other information, call (866) 208–3676 Accession Number: 20200430–5278. Accession Number: 20200430–5309. (toll free). For TTY, call (202) 502–8659. Comments Due: 5 p.m. ET 5/21/20. Comments Due: 5 p.m. ET 5/21/20. Docket Numbers: ER20–1714–000. Docket Numbers: ER20–1721–000. Dated: April 30, 2020. Applicants: Duke Energy Carolinas, Applicants: Energy Harbor LLC. Nathaniel J. Davis, Sr., LLC. Description: § 205(d) Rate Filing: Deputy Secretary. Description: § 205(d) Rate Filing: DEC Amendment to Reactive Service Rate [FR Doc. 2020–09651 Filed 5–5–20; 8:45 am] Wholesale Contract Rev. Rate Schedule Schedule FERC No. 1 to be effective 5/ BILLING CODE 6717–01–P Nos. 328, 329, 330, 332, 336, 337, 338 31/2020. to be effective 1/1/2020. Filed Date: 4/30/20. Filed Date: 4/30/20. Accession Number: 20200430–5311. DEPARTMENT OF ENERGY Accession Number: 20200430–5273. Comments Due: 5 p.m. ET 5/21/20. Comments Due: 5 p.m. ET 5/21/20. Federal Energy Regulatory Docket Numbers: ER20–1722–000. Commission Docket Numbers: ER20–1715–000. Applicants: Spring Valley Wind LLC. Applicants: Duke Energy Carolinas, Description: § 205(d) Rate Filing: [Docket No. RP20–822–000] LLC. Notice of Change in MBR Status to be Description: § 205(d) Rate Filing: effective 5/1/2020. Rockies Express Pipeline LLC; Notice DEC—Revision to Rate Schedule No. Filed Date: 4/30/20. of Petition for Declaratory Order 326 to be effective 6/1/2020. Accession Number: 20200430–5315. Take notice that on April 29, 2020, Filed Date: 4/30/20. Comments Due: 5 p.m. ET 5/21/20. pursuant to Rule 207(a)(2) 1 of the Accession Number: 20200430–5289. Docket Numbers: ER20–1723–000. Federal Energy Regulatory Comments Due: 5 p.m. ET 5/21/20. Applicants: Midcontinent Commission’s (Commission) Rules of Docket Numbers: ER20–1716–000. Independent System Operator, Inc. Practice and Procedure, Rockies Express Applicants: Duke Energy Carolinas, Description: § 205(d) Rate Filing: Pipeline LLC filed a petition for LLC. 2020–04–30_Revisions to the TOA to declaratory order (Petition) finding that Description: § 205(d) Rate Filing: Clarify Cost Allocation Methodology to the Commission has concurrent DEC—Revisions to Rate Schedule 273 to be effective 7/29/2020. jurisdiction with U.S. Bankruptcy be effective 6/1/2020. Filed Date: 4/30/20. Courts under Sections 4 and 5 of the Filed Date: 4/30/20. Accession Number: 20200430–5325. Natural Gas Act 2 and Part 154 of the Accession Number: 20200430–5279. Comments Due: 5 p.m. ET 5/21/20. Commission’s regulations,3 regarding Comments Due: 5 p.m. ET 5/21/20. Take notice that the Commission Rockies Express ‘negotiated rate firm Docket Numbers: ER20–1717–000. received the following electric securities transportation service agreement with Applicants: Duke Energy Progress, filings: Ultra Resources, Inc., all as more fully explained in the petition. LLC. Docket Numbers: ES20–28–000; Any person desiring to intervene or to Description: § 205(d) Rate Filing: ES20–29–000; ES20–30–000; ES20–31– protest this filing must file in DEP—Wholesale Contract Revisions to 000; ES20–32–000. accordance with Rules 211 and 214 of Rate Schedule No. 182 to be effective 6/ Applicants: AEP Generating the Commission’s Rules of Practice and 1/2020. Company, AEP Texas Inc., Kingsport Procedure (18 CFR 385.211, 385.214). Filed Date: 4/30/20. Power Company, Inc., Southwestern Protests will be considered by the Accession Number: 20200430–5297. Electric Power Company, Wheeling Commission in determining the Comments Due: 5 p.m. ET 5/21/20. Power Company. appropriate action to be taken, but will Docket Numbers: ER20–1718–000. Description: Application Under not serve to make protestants parties to Applicants: New York Independent Section 204 of the Federal Power Act for the proceeding. Any person wishing to System Operator, Inc. Authorization to Issue Securities of AEP Description: § 205(d) Rate Filing: 205 Generating Company, et al. 1 18 CFR 385.207 (2019). As required by Rule filing of tariff revisions re: Part A Filed Date: 4/30/20. 381.302(a), 18 CFR 381.302(a) (2019). enhancements under BSM to be Accession Number: 20200430–5254. 2 15 U.S.C. 717c and 717d (2012). effective 6/30/2020. Comments Due: 5 p.m. ET 5/21/20. 3 18 CFR part 154.

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become a party must file a notice of Accession Number: 20200429–5396. Comments Due: 5 p.m. ET 5/21/20. intervention or motion to intervene, as Comments Due: 5 p.m. ET 5/20/20. Docket Numbers: ER20–1694–000. appropriate. Such notices, motions, or Take notice that the Commission Applicants: New England Power Pool protests must be filed on or before the received the following electric rate Participants Committee. comment date. Anyone filing a motion filings: Description: § 205(d) Rate Filing: May to intervene or protest must serve a copy Docket Numbers: ER19–221–003. 2020 Membership Filing to be effective of that document on the Petitioner. Applicants: San Diego Gas & Electric 4/1/2020. The Commission encourages Company. Filed Date: 4/30/20. electronic submission of protests and Description: Compliance filing: TO5 Accession Number: 20200430–5079. interventions in lieu of paper using the Compliance Filing to be effective 6/1/ Comments Due: 5 p.m. ET 5/21/20. ‘‘eFiling’’ link at http://www.ferc.gov. 2019. Docket Numbers: ER20–1695–000. Persons unable to file electronically may Filed Date: 4/29/20. Applicants: Public Service Company mail similar pleadings to the Federal Accession Number: 20200429–5307. of Colorado. Energy Regulatory Commission, 888 Comments Due: 5 p.m. ET 5/20/20. Description: Notice of Cancellation of First Street NE, Washington, DC 20426. Network Operating Agreement of Public Hand delivered submissions in Docket Numbers: ER19–1939–001. Applicants: Arizona Public Service Service Company of Colorado. docketed proceedings should be Filed Date: 4/29/20. delivered to Health and Human Company. Description: Compliance filing: FERC Accession Number: 20200429–5442. Services, 12225 Wilkins Avenue, Comments Due: 5 p.m. ET 5/20/20. Rockville, Maryland 20852. Order 845 Compliance Filing to be In addition to publishing the full text effective 5/22/2019. Docket Numbers: ER20–1696–000. of this document in the Federal Filed Date: 4/30/20. Applicants: New York Independent Register, the Commission provides all Accession Number: 20200430–5161. System Operator, Inc. interested persons an opportunity to Comments Due: 5 p.m. ET 5/21/20. Description: § 205(d) Rate Filing: 205: view and/or print the contents of this Docket Numbers: ER20–1046–001. ESR Participation Model Enhancements document via the internet through the Applicants: GridLiance High Plains to be effective 12/31/9998. Commission’s Home Page (http:// LLC. Filed Date: 4/30/20. ferc.gov) using the ‘‘eLibrary’’ link. Description: Compliance filing: Accession Number: 20200430–5102. Enter the docket number excluding the GridLiance High Plains LLC Annual Comments Due: 5 p.m. ET 5/21/20. last three digits in the docket number Transmission Revenue Requirement Docket Numbers: ER20–1697–000. field to access the document. At this Filing to be effective N/A. Applicants: Midcontinent time, the Commission has suspended Filed Date: 4/29/20. Independent System Operator, Inc., AEP access to the Commission’s Public Accession Number: 20200429–5303. Indiana Michigan Transmission Reference Room, due to the Comments Due: 5 p.m. ET 5/20/20. Company. proclamation declaring a National Docket Numbers: ER20–1047–001. Description: Compliance filing: 2020– Emergency concerning the Novel Applicants: GridLiance High Plains 04–30_AEP Compliance on Order 864 Coronavirus Disease (COVID–19), issued LLC. for ADIT to be effective 1/27/2020. by the President on March 13, 2020. For Description: Compliance filing: GHP Filed Date: 4/30/20. assistance, contact the Federal Energy Revised Wholesale Distribution Formula Accession Number: 20200430–5131. Regulatory Commission at Rate Template to be effective 7/1/2020. Comments Due: 5 p.m. ET 5/21/20. [email protected] or call Filed Date: 4/29/20. Docket Numbers: ER20–1698–000. toll-free, (886) 208–3676 or TYY, (202) Accession Number: 20200429–5314. Applicants: PJM Interconnection, 502–8659. Comments Due: 5 p.m. ET 5/20/20. L.L.C. Comment Date: 5:00 p.m. Eastern time Docket Numbers: ER20–1048–001. Description: § 205(d) Rate Filing: on May 29, 2020. Applicants: GridLiance High Plains Original ISA, SA No. 5619; Queue No. Kimberly D. Bose, LLC. AC1–221/AD1–058 to be effective 4/2/ 2020. Secretary. Description: Compliance filing: GHP Revisions to OATT Formula Rate Filed Date: 4/30/20. [FR Doc. 2020–09656 Filed 5–5–20; 8:45 am] Template to be effective 7/1/2020. Accession Number: 20200430–5132. BILLING CODE 6717–01–P Filed Date: 4/29/20. Comments Due: 5 p.m. ET 5/21/20. Accession Number: 20200429–5306. Docket Numbers: ER20–1699–000. DEPARTMENT OF ENERGY Comments Due: 5 p.m. ET 5/20/20. Applicants: Johanna Energy Center, Docket Numbers: ER20–1574–001. LLC. Federal Energy Regulatory Applicants: Midcontinent Description: Baseline eTariff Filing: Commission Independent System Operator, Inc. Application for Market-Based Rate Description: Tariff Amendment: Authorization to be effective 5/1/2020. Combined Notice of Filings #1 2020–04–30_SA 3473 Ameren IL— Filed Date: 4/30/20. Take notice that the Commission Hickory Point Solar Energy Center Sub Accession Number: 20200430–5137. received the following electric corporate GIA (J815) to be effective 4/2/2020. Comments Due: 5 p.m. ET 5/21/20. filings: Filed Date: 4/30/20. Docket Numbers: ER20–1700–000. Docket Numbers: EC20–59–000. Accession Number: 20200430–5162. Applicants: PJM Interconnection, Applicants: PurEnergy II, LLC, Orion Comments Due: 5 p.m. ET 5/21/20. L.L.C. Acquisitions, LLC. Docket Numbers: ER20–1693–000. Description: § 205(d) Rate Filing: Description: Application for Applicants: Assembly Solar, LLC. Amendment to ISA, Service Agreement Authorization Under Section 203 of the Description: Baseline eTariff Filing: No. 4512; Queue No. AB1–128 re: Federal Power Act, et al. of PurEnergy baseline new to be effective 6/28/2020. Assignment to be effective 7/18/2016. II, LLC, et al. Filed Date: 4/30/20. Filed Date: 4/30/20. Filed Date: 4/29/20. Accession Number: 20200430–5000. Accession Number: 20200430–5138.

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Comments Due: 5 p.m. ET 5/21/20. Filed Date: 4/30/20. Power & Light Company (JCPL) current Docket Numbers: ER20–1701–000. Accession Number: 20200430–5190. co-licensees, and Yards Creek Energy, Applicants: California Power Comments Due: 5 p.m. ET 5/21/20. LLC (YCE or transferee) filed a joint Exchange Corporation. Docket Numbers: ER20–1708–000. application for a partial transfer of the Description: § 205(d) Rate Filing: Rate Applicants: California State license for the Yards Creek Pumped Filing for Rate Period 37 to be effective University Channel Island Site Storage Hydroelectric Project No. 2309. 7/1/2020. Authority. The project is located on Yards Creek in Filed Date: 4/30/20. Description: Baseline eTariff Filing: Warren County, New Jersey. Accession Number: 20200430–5141. Reliablity Must-Run Agreement with The applicants seek Commission Comments Due: 5 p.m. ET 5/21/20. CAISO to be effective 5/1/2020. approval for a partial transfer of the license for the project to remove PSEG Docket Numbers: ER20–1702–000. Filed Date: 4/30/20. Accession Number: 20200430–5194. as a co-licensee and to add YCE as co- Applicants: California Independent licensee. System Operator Corporation. Comments Due: 5 p.m. ET 5/21/20. Docket Numbers: ER20–1709–000. Applicants Contact: For transferor: Description: § 205(d) Rate Filing: Cara J. Lewis, Managing Counsel— 2020–04–30 Split Participation Applicants: Duke Energy Florida, LLC. Federal Regulatory, PSEG Services Agreement with Calpine re Sutter Corporation, 80 Park Plaza—T5G, Description: § 205(d) Rate Filing: DEF Energy Center to be effective 7/1/2020. Newark, New Jersey 07102, (973) 430– 2020 Annual Filing of Cost Factor Filed Date: 4/30/20. 8836, [email protected]. Accession Number: 20200430–5165. Updates to be effective 5/1/2020. For Co-Licensee: Anne M. Rericha, Comments Due: 5 p.m. ET 5/21/20. Filed Date: 4/30/20. Accession Number: 20200430–5202. FirstEnergy Service Company, 76 S Docket Numbers: ER20–1703–000. Maine Street, Akron, Ohio 44308, (330) Comments Due: 5 p.m. ET 5/21/20. Applicants: Capital Energy PA LLC. 374–6550, arericha@ Description: Baseline eTariff Filing: The filings are accessible in the firstenergycorp.com. FERC MBR Tariff to be effective 5/15/ Commission’s eLibrary system by For Transferee: Kimberly Ognisty, 2020. clicking on the links or querying the Winston & Strawn LLC, 1901 L Street Filed Date: 4/30/20. docket number. NW, Washington, DC 20036, (202) 282– Accession Number: 20200430–5174. Any person desiring to intervene or 5217, [email protected]. protest in any of the above proceedings Comments Due: 5 p.m. ET 5/21/20. FERC Contact: Anumzziatta must file in accordance with Rules 211 Purchiaroni, (202) 502–6191, Docket Numbers: ER20–1704–000. and 214 of the Commission’s [email protected]. Applicants: Duke Energy Progress, Regulations (18 CFR 385.211 and LLC. 385.214) on or before 5:00 p.m. Eastern Deadline for filing comments, motions Description: § 205(d) Rate Filing: DEP time on the specified comment date. to intervene, and protests: 30 days from Wholesale Contract Revisions to RS No. Protests may be considered, but the date that the Commission issues this 134 to be effective 6/1/2020. intervention is necessary to become a notice. The Commission strongly Filed Date: 4/30/20. party to the proceeding. encourages electronic filing. Please file Accession Number: 20200430–5177. eFiling is encouraged. More detailed comments, motions to intervene, and Comments Due: 5 p.m. ET 5/21/20. information relating to filing protests using the Commission’s eFiling system at http://www.ferc.gov/docs- Docket Numbers: ER20–1705–000. requirements, interventions, protests, filing/efiling.asp. Commenters can Applicants: Pacific Gas and Electric service, and qualifying facilities filings submit brief comments up to 6,000 Company. can be found at: http://www.ferc.gov/ docs-filing/efiling/filing-req.pdf. For characters, without prior registration, Description: § 205(d) Rate Filing: Q1 using the eComment system at http:// 2020 Quarterly Filing of City and other information, call (866) 208–3676 (toll free). For TTY, call (202) 502–8659. www.ferc.gov/docs-filing/ County of San Francisco’s WDT SA (SA ecomment.asp. You must include your 275) to be effective 3/31/2020. Dated: April 30, 2020. name and contact information at the end Filed Date: 4/30/20. Nathaniel J. Davis, Sr., of your comments. For assistance, Accession Number: 20200430–5181. Deputy Secretary. please contact FERC Online Support at Comments Due: 5 p.m. ET 5/21/20. [FR Doc. 2020–09647 Filed 5–5–20; 8:45 am] [email protected], (866) Docket Numbers: ER20–1706–000. BILLING CODE 6717–01–P 208–3676 (toll free), or (202) 502–8659 Applicants: Duke Energy Progress, (TTY). In lieu of electronic filing, please LLC. send a paper copy to: Secretary, Federal Description: § 205(d) Rate Filing: DEP DEPARTMENT OF ENERGY Energy Regulatory Commission, 888 Wholesale Contract Revisions to RS First Street NE, Washington, DC 20426. Federal Energy Regulatory Nos. 184 and 200 to be effective 6/1/ Hand delivered submissions in Commission 2020. docketed proceedings should be Filed Date: 4/30/20. [Project No. 2309–031] delivered to Health and Human Accession Number: 20200430–5188. Services, 12225 Wilkins Avenue, Comments Due: 5 p.m. ET 5/21/20. PSEG Fossil, LLC, Jersey Central Rockville, Maryland 20852. The first Power & Light Company, Yards Creek page of any filing should include docket Docket Numbers: ER20–1707–000. Energy, LLC; Notice of Application for number P–2309–031. Applicants: Rochelle Municipal Partial Transfer of License and Utilities, PJM Interconnection, L.L.C. Dated: April 30, 2020. Soliciting Comments, Motions To Kimberly D. Bose, Description: § 205(d) Rate Filing: City Intervene, and Protests of Rochelle submits Revisions to PJM Secretary. Tariff to be Removed as a TO to be On March 30, 2020, PSEG Fossil, LLC [FR Doc. 2020–09655 Filed 5–5–20; 8:45 am] effective 5/28/2020. (PSEG or transferor) and Jersey Central BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY Docket Numbers: RP20–819–000. time on the specified date(s). Protests Applicants: Panhandle Eastern Pipe may be considered, but intervention is Federal Energy Regulatory Line Company, LP. necessary to become a party to the Commission Description: § 4(d) Rate Filing: proceeding. Capacity Release Provision to be eFiling is encouraged. More detailed Combined Notice of Filings effective 5/30/2020. information relating to filing Take notice that the Commission has Filed Date: 4/29/20. requirements, interventions, protests, received the following Natural Gas Accession Number: 20200429–5272. service, and qualifying facilities filings Pipeline Rate and Refund Report filings: Comments Due: 5 p.m. ET 5/11/20. can be found at: http://www.ferc.gov/ docs-filing/efiling/filing-req.pdf. For Docket Numbers: RP20–812–000. Docket Numbers: RP20–820–000. Applicants: Columbia Gas Applicants: Southern Star Central Gas other information, call (866) 208–3676 Transmission, LLC. Pipeline, Inc. (toll free). For TTY, call (202) 502–8659. Description: § 4(d) Rate Filing: Description: § 4(d) Rate Filing: Vol. Dated: April 30, 2020. Prepayments to be effective 6/1/2020. 2—Negotiated Rate Agreements—Scout Nathaniel J. Davis, Sr., Filed Date: 4/29/20. and Conexus to be effective 5/1/2020. Deputy Secretary. Filed Date: 4/29/20. Accession Number: 20200429–5029. [FR Doc. 2020–09648 Filed 5–5–20; 8:45 am] Accession Number: 20200429–5274. Comments Due: 5 p.m. ET 5/11/20. BILLING CODE 6717–01–P Docket Numbers: RP20–813–000. Comments Due: 5 p.m. ET 5/11/20. Applicants: Columbia Gas Docket Numbers: RP20–821–000. Transmission, LLC. Applicants: Enable Gas Transmission, DEPARTMENT OF ENERGY Description: § 4(d) Rate Filing: LLC. Recontracting to be effective 6/1/2020. Description: § 4(d) Rate Filing: Federal Energy Regulatory Filed Date: 4/29/20. Negotiated Rate Filing—May 1 2020 Commission Accession Number: 20200429–5030. SWEPCO 1006888 to be effective 5/1/ [Docket No. ER20–1699–000] Comments Due: 5 p.m. ET 5/11/20. 2020. Docket Numbers: RP20–814–000. Filed Date: 4/29/20. Johanna Energy Center, LLC; Applicants: Bison Pipeline LLC. Accession Number: 20200429–5344. Supplemental Notice That Initial Description: Compliance filing 2020 Comments Due: 5 p.m. ET 5/11/20. Market-Based Rate Filing Includes Operational Purchases and Sales Report. Docket Numbers: RP20–828–000. Request for Blanket Section 204 Filed Date: 4/29/20. Applicants: Cameron Interstate Authorization Accession Number: 20200429–5045. Pipeline, LLC. Comments Due: 5 p.m. ET 5/11/20. Description: Annual Report of Penalty This is a supplemental notice in the Revenues of Cameron Interstate above-referenced proceeding of Johanna Docket Numbers: RP20–815–000. Energy Center, LLC’s application for Applicants: Cheyenne Plains Gas Pipeline, LLC under RP20–828. Filed Date: 4/29/20. market-based rate authority, with an Pipeline Company, L.L.C. accompanying rate tariff, noting that Description: § 4(d) Rate Filing: EPC Accession Number: 20200429–5438. Comments Due: 5 p.m. ET 5/11/20. such application includes a request for and FLU Computation Update to be blanket authorization, under 18 CFR effective 6/1/2020. Docket Numbers: RP20–829–000. part 34, of future issuances of securities Filed Date: 4/29/20. Applicants: Cameron Interstate and assumptions of liability. Accession Number: 20200429–5254. Pipeline, LLC. Any person desiring to intervene or to Comments Due: 5 p.m. ET 5/11/20. Description: Annual Report of protest should file with the Federal Docket Numbers: RP20–816–000. Operational Imbalances and Cash-out Energy Regulatory Commission, 888 Applicants: Algonquin Gas Activity of Cameron Interstate Pipeline, First Street NE, Washington, DC 20426, Transmission, LLC. LLC under RP20–829. in accordance with Rules 211 and 214 Description: § 4(d) Rate Filing: Filed Date: 4/29/20. of the Commission’s Rules of Practice Negotiated Rate—Bay State to UGI Accession Number: 20200429–5440. and Procedure (18 CFR 385.211 and Energy 802106 to be effective 5/1/2020. Comments Due: 5 p.m. ET 5/11/20. 385.214). Anyone filing a motion to Filed Date: 4/29/20. Docket Numbers: RP20–830–000. intervene or protest must serve a copy Accession Number: 20200429–5113. Applicants: Cameron Interstate of that document on the Applicant. Comments Due: 5 p.m. ET 5/11/20. Pipeline, LLC. Notice is hereby given that the Docket Numbers: RP20–817–000. Description: Annual Report of deadline for filing protests with regard Applicants: Ruby Pipeline, L.L.C. Transportation Imbalances and Cash-out to the applicant’s request for blanket Description: § 4(d) Rate Filing: Activity of Cameron Interstate Pipeline, authorization, under 18 CFR part 34, of Electric Power Charge and FLU Update LLC under RP20–830. future issuances of securities and to be effective 6/1/2020. Filed Date: 4/29/20. assumptions of liability, is May 20, Filed Date: 4/29/20. Accession Number: 20200429–5441. 2020. Accession Number: 20200429–5120. Comments Due: 5 p.m. ET 5/11/20. The Commission encourages Comments Due: 5 p.m. ET 5/11/20. The filings are accessible in the electronic submission of protests and Docket Numbers: RP20–818–000. Commission’s eLibrary system by interventions in lieu of paper, using the Applicants: Wyoming Interstate clicking on the links or querying the FERC Online links at http:// Company, L.L.C. docket number. www.ferc.gov. To facilitate electronic Description: § 4(d) Rate Filing: FLU Any person desiring to intervene or service, persons with internet access Recomputation Update to be effective 6/ protest in any of the above proceedings who will eFile a document and/or be 1/2020. must file in accordance with Rules 211 listed as a contact for an intervenor Filed Date: 4/29/20. and 214 of the Commission’s must create and validate an Accession Number: 20200429–5216. Regulations (18 CFR 385.211 and eRegistration account using the Comments Due: 5 p.m. ET 5/11/20. 385.214) on or before 5:00 p.m. Eastern eRegistration link. Select the eFiling

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link to log on and submit the intervene or protest must serve a copy ENVIRONMENTAL PROTECTION intervention or protests. of that document on the Applicant. AGENCY Persons unable to file electronically Notice is hereby given that the [FRL–10008–74–Region 10] may mail similar pleadings to the deadline for filing protests with regard Federal Energy Regulatory Commission, to the applicant’s request for blanket Clean Air Act Operating Permit 888 First Street NE, Washington, DC authorization, under 18 CFR part 34, of Program; Petition for Objection to 20426. Hand delivered submissions in future issuances of securities and State Operating Permit for the U.S. docketed proceedings should be Department of Energy—Hanford delivered to Health and Human assumptions of liability, is May 18, 2020. Operations, Benton County, Services, 12225 Wilkins Avenue, Washington Rockville, Maryland 20852. The Commission encourages In addition to publishing the full text electronic submission of protests and AGENCY: Environmental Protection of this document in the Federal interventions in lieu of paper, using the Agency (EPA). Register, the Commission provides all FERC Online links at http:// ACTION: Notice of final Order on Petition interested persons an opportunity to www.ferc.gov. To facilitate electronic for objection to Clean Air Act title V view and/or print the contents of this service, persons with internet access operating permit. document via the internet through the who will eFile a document and/or be SUMMARY: The Environmental Protection Commission’s Home Page (http:// listed as a contact for an intervenor Agency (EPA) Administrator signed an ferc.gov) using the ‘‘eLibrary’’ link. must create and validate an Enter the docket number excluding the Order, dated February 19, 2020, denying eRegistration account using the a petition dated July 18, 2019, filed by last three digits in the docket number eRegistration link. Select the eFiling field to access the document. At this Mr. Bill Green of Richland, Washington. link to log on and submit the The Petition requested that the EPA time, the Commission has suspended intervention or protests. access to the Commission’s Public object to a Clean Air Act (CAA) title V Reference Room, due to the Persons unable to file electronically operating permit (Permit No. 00–05– proclamation declaring a National may mail similar pleadings to the 006, Renewal 3) issued by the Emergency concerning the Novel Federal Energy Regulatory Commission, Washington State Department of Coronavirus Disease (COVID–19), issued 888 First Street NE, Washington, DC Ecology (Ecology) to the U.S. by the President on March 13, 2020. For 20426. Hand delivered submissions in Department of Energy—Hanford assistance, contact the Federal Energy docketed proceedings should be Operations (DOE) for the Hanford site Regulatory Commission at delivered to Health and Human located in Benton County, Washington. [email protected] or call Services, 12225 Wilkins Avenue, ADDRESSES: The Petition (without toll-free, (886) 208–3676 or TYY, (202) Rockville, Maryland 20852. attachments) and final Order are 502–8659. available electronically at: https:// In addition to publishing the full text www.epa.gov/title-v-operating-permits/ Dated: April 30, 2020. of this document in the Federal title-v-petition-database. Nathaniel J. Davis, Sr., Register, the Commission provides all Out of an abundance of caution for Deputy Secretary. interested persons an opportunity to members of the public and our staff, the [FR Doc. 2020–09649 Filed 5–5–20; 8:45 am] view and/or print the contents of this EPA Region 10 office is closed to the BILLING CODE 6717–01–P document via the internet through the public to reduce the risk of transmitting Commission’s Home Page (http:// COVID–19. Please contact the ferc.gov) using the ‘‘eLibrary’’ link. individual listed in the FOR FURTHER DEPARTMENT OF ENERGY Enter the docket number excluding the INFORMATION CONTACT section to view last three digits in the docket number copies of the Petition, Order, and other Federal Energy Regulatory field to access the document. At this supporting information. Commission time, the Commission has suspended FOR FURTHER INFORMATION CONTACT: [Docket No. ER20–1616–000] access to the Commission’s Public Doug Hardesty at telephone number: Reference Room, due to the (208) 378–5759, Hardesty.doug@ Western Spirit Transmission LLC; proclamation declaring a National epa.gov. Supplemental Notice That Facilities Emergency concerning the Novel SUPPLEMENTARY INFORMATION: The CAA Use Agreement Filing Includes Coronavirus Disease (COVID–19), issued Request for Blanket Section 204 affords the EPA a 45-day period to by the President on March 13, 2020. For Authorization review and object to a title V operating assistance, contact the Federal Energy permit proposed by a state permitting This is a supplemental notice in the Regulatory Commission at authority under title V of the CAA if the above-referenced proceeding of Western [email protected] or call EPA determines the permit does not Spirit Transmission LLC’s filing of a toll-free, (886) 208–3676 or TYY, (202) comply with the Act. Section 505(b)(2) facilities use agreement includes a 502–8659. of the CAA authorizes any person to request for blanket authorization, under Dated: April 30, 2020. petition the EPA Administrator to object 18 CFR part 34, of future issuances of to a title V operating permit within 60 securities and assumptions of liability. Nathaniel J. Davis, Sr., days after the expiration of the EPA’s Any person desiring to intervene or to Deputy Secretary. 45-day review period if the EPA has not protest should file with the Federal [FR Doc. 2020–09650 Filed 5–5–20; 8:45 am] objected on its own initiative. Petitions Energy Regulatory Commission, 888 BILLING CODE 6717–01–P must be based only on objections to the First Street NE, Washington, DC 20426, permit that were raised with reasonable in accordance with Rules 211 and 214 specificity during the public comment of the Commission’s Rules of Practice period provided by the state, unless the and Procedure (18 CFR 385.211 and petitioner demonstrates that it was 385.214). Anyone filing a motion to impracticable to raise these issues

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during the comment period or unless Act (PRA), the Federal Communications Estimated Time per Response: .05 the grounds for the issue arose after this Commission (FCC or Commission) hours (3 minutes) to 300 hours. period. invites the general public and other Frequency of Response: Annual, The EPA received the Petition from Federal agencies to take this monthly, on occasion, on-going, one- Mr. Bill Green of Richland, Washington, opportunity to comment on the time, and quarterly reporting dated July 18, 2019, requesting that the following information collections. requirements; Recordkeeping EPA object to the issuance of title V Comments are requested concerning: requirement; and Third-Party Disclosure operating permit no. 00–05–006, Whether the proposed collection of requirements. Renewal 3, issued by Ecology to DOE for information is necessary for the proper Obligation to Respond: Required to the Hanford site in Benton County, performance of the functions of the obtain or retain benefits. The statutory Washington. Commission, including whether the authority for the collection is contained The Petition claims that: (1) Ecology information shall have practical utility; in section 225 of the Communications exceeded its authority in imposing a the accuracy of the Commission’s Act, 47 U.S.C. 225. The law was enacted monitoring method that had not been burden estimate; ways to enhance the on July 26, 1990, as Title IV of the approved by the EPA for determining quality, utility, and clarity of the Americans with Disabilities Act of 1990 compliance with emission limits for information collected; ways to minimize (ADA), Public Law 101–336, 104 Stat. federally-enforceable requirements and the burden of the collection of 327, 366–69, and amended by the that the monitoring method was flawed; information on the respondents, Twenty-First Century Communications (2) the permit failed to include all including the use of automated and Video Accessibility Act of 2010, emission limitations as required by CAA collection techniques or other forms of Public Law 111–260, 103(a), 124 Stat. section 504(a), 42 U.S.C. 7661c(a), and information technology; and ways to 2751, 2755 (2010) (CVAA); Public Law 40 CFR 70.6(a)(1) because the permit further reduce the information 111–265 (technical amendments to incorporated some federally-enforceable collection burden on small business CVAA). emission limits by reference and ‘‘does concerns with fewer than 25 employees. Total Annual Burden: 329,582 hours. not actually include emission limits;’’ Annual Cost Burden: $261,000. The FCC may not conduct or sponsor a Nature and Extent of Confidentiality: (3) the permit did not include the collection of information unless it Confidentiality is an issue to the extent requirements for the control of fugitive displays a currently valid Office of that individuals and households dust from a 2003 administrative order of Management and Budget (OMB) control provide personally identifiable correction issued by the Benton Clean number. No person shall be subject to information, which is covered under the Air Agency; and (4) Ecology did not any penalty for failing to comply with FCC’s updated system of records notice comply with the public participation a collection of information subject to the (SORN), FCC/CGB–4, ‘‘Internet-based requirements of 40 CFR 70.7(h)(2) with PRA that does not display a valid OMB Telecommunications Relay Service-User respect to several permit terms. control number. Registration Database (ITRS–URD).’’ As On February 19, 2020, the EPA DATES: Written comments should be required by the Privacy Act, 5 U.S.C. Administrator issued an Order denying submitted on or before July 6, 2020. If 552a, the Commission also published a the Petition. The Order explains the you anticipate that you will be SORN, FCC/CGB–4 ‘‘Internet-based basis for the EPA’s decision. submitting comments, but find it Sections 307(b) and 505(b)(2) of the Telecommunications Relay Service-User difficult to do so within the period of Registration Database (ITRS–URD),’’ in CAA provide that the Order is subject to time allowed by this notice, you should judicial review for those portions of the the Federal Register on February 9, advise the contacts below as soon as 2015 (80 FR 6963) which became Order that deny issues raised in a possible. petition. Any petition for review shall effective on March 23, 2015. Privacy Act Impact Assessment: This be filed in the United States Court of ADDRESSES: Direct all PRA comments to information collection affects Appeals for the appropriate circuit no Cathy Williams, FCC, via email PRA@ individuals or households. As required later than July 6, 2020. fcc.gov and to [email protected]. by the Office of Management and FOR FURTHER INFORMATION CONTACT: Dated: April 30, 2020. For Budget Memorandum M–03–22 Christopher Hladick, additional information about the (September 26, 2003), the FCC is in the information collection, contact Cathy Regional Administrator, Region 10. process of completing the Privacy Williams at (202) 418–2918. [FR Doc. 2020–09619 Filed 5–5–20; 8:45 am] Impact Assessment. SUPPLEMENTARY INFORMATION: BILLING CODE 6560–50–P Needs and Uses: The OMB Control No.: 3060–1089. telecommunications relay service (TRS) Title: Structure and Practices of the program enables access to the nation’s FEDERAL COMMUNICATIONS Video Relay Service Program; telephone network by persons with COMMISSION Telecommunications Relay Services and hearing and speech disabilities. In 1991, Speech-to-Speech Services for as required by the Americans with [OMB 3060–1089; FRS 16715] Individuals with Hearing and Speech Disabilities Act and codified at 47 Disabilities, CG Docket Nos. 10–51 & U.S.C. 225, the Commission adopted Information Collections Being 03–123. rules governing the telecommunications Reviewed by the Federal Form No.: N/A. relay services (TRS) program and Communications Commission Type of Review: Revision of a procedures for each state TRS program AGENCY: Federal Communications currently approved collection. to apply for initial Commission Commission. Respondents: Business or other for- certification and renewal of Commission ACTION: Notice and request for profit entities; Individuals or certification of each state program. comments. households; Not-for-profit institutions; Telecommunications Services for State, Local or Tribal Government. Individuals with Hearing and Speech SUMMARY: As part of its continuing effort Number of Respondents and Disabilities, and the Americans with to reduce paperwork burdens, and as Responses: 202,021 respondents; Disabilities Act of 1990, Report and required by the Paperwork Reduction 1,846,406 responses. Order and Request for Comments,

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document FCC 91–213, published at 56 2011, the Commission released to give their customers at least 30-days FR 36729, August 1, 1991 (1991 TRS Structure and Practices of the Video notice. Implementation Order). Relay Service Program, Memorandum In the 2013 VRS Reform Order, the Between 2008 and 2011, to integrate Opinion and Order, Order, and Further Commission also adopted further internet-based TRS into the North Notice of Proposed Rulemaking, measures to improve the structure, American Numbering plan and facilitate document FCC 11–155, published at 76 efficiency, and quality of the video relay interoperability, universal calling, and FR 67070, October 31, 2011 (VRS service (VRS) program, reducing the 911 emergency services, the Certification Reconsideration Order), noted inefficiencies in the program, as Commission adopted rules in three modifying two aspects of information well as reducing the risk of waste, fraud, separate orders related to the telephone collection requirements contained in the and abuse, and ensuring that the numbering system and enhanced 911 VRS Certification Order. On June 10, program makes full use of advances in (E911) services for users of two forms of 2013, the Commission made permanent commercially-available technology. The internet-based TRS: Video Relay Service the interim rule adopted in the VRS Commission required reporting of (VRS) and internet Protocol Relay Certification Order. Structure and unauthorized and unnecessary us of service (IP Relay). See document FCC Practices of the Video Relay Service VRS; established a central 08–151, Report and Order and Further Program; Telecommunications Relay telecommunications relay services Notice of Proposed Rulemaking, Services and Speech-to-Speech Services (TRS) user registration database (TRS– published at 73 FR 41286, July 18, 2008 for Individuals with Hearing and Speech URD) for VRS, which incorporates a (First Numbering Order); document FCC Disabilities, Report and Order and centralized eligibility verification 08–275, Second Report and Order and Further Notice of Proposed Rulemaking, requirement to ensure accurate Order on Reconsideration, published at document FCC 13–82, published at 78 registration and verification of users, as 73 FR 79683, December 30, 2008 FR 40582, July 5, 2013 (2013 VRS well as per-call validation, to achieve (Second Numbering Order); and Reform Order). more effective prevention of waste, document FCC 11–123, Report and fraud, and abuse; established The VRS Certification Order as Order, published at 76 FR 59551, procedures to prevent unauthorized modified by the VRS Certification September 27, 2011 (iTRS Toll Free changes of a user’s default TRS Reconsideration and, as applicable, Order). provider; and established procedures to made permanent by the (2013 VRS The rules adopted in these three protect TRS users’ customer proprietary orders have information collection Reform Order), amended the network information (CPNI) from requirements that include requiring VRS Commission’s process for certifying disclosure. and IP Relay providers to: Register each internet-based TRS (iTRS) providers as On March 23, 2017, the Commission user who selects the provider as his or eligible for payment from the Interstate released Structure and Practices of the her default provider, including TRS Fund (Fund) for their provision of Video Relay Services Program et al., obtaining a self-certification from each iTRS to ensure that iTRS providers FCC 17–26, published at 82 FR 17754, user; verify the accuracy of each user’s; receiving certification are qualified to April 13, 2017 (2017 VRS Improvements provision and maintain their registered provide iTRS in compliance with the Order), which among other things, users’ routing information to the TRS Commission’s rules and to eliminate allows VRS providers to assign TRS Numbering Directory; place their users’ waste, fraud and abuse through Numbering Directory 10-digit telephone Registered Location and certain callback improved oversight of such providers. numbers to hearing individuals for the information in Automatic Location They contain information collection limited purpose of making point-to-pint Information (ALI) databases across the requirements including: Submission of video calls, and gives VRS providers the country and provide a means for their detailed information in an application option to participate in an at-home call users to update their Registered for certification that shows the handling pilot program, subject to Locations; include advisories on their applicant’s ability to comply with the certain limitations, as well as websites and in any promotional Commission’s rules; submission of recordkeeping and reporting materials addressing numbering and annual reports that include updates to requirements. E911 services for VRS or IP Relay; verify the provider’s information on file with On May 15, 2019, the Commission in the TRS Numbering Directory the Commission or a certification that released Structure and Practices of the whether each dial-around user is there are no changes to the information; Video Relay Service Program; registered with another provider; and if requirements for a senior executive of Telecommunications Relay Services and they provide equipment to a consumer, an applicant for iTRS certification or an Speech-to-Speech Services for make available to other VRS providers iTRS provider, when submitting an Individuals with Hearing and Speech enough information about that annual compliance report, to certify Disabilities, FCC 19–39, published at 84 equipment to enable another VRS under penalty of perjury that all FR 26364, June 6, 2019 (2019 VRS provider selected as the consumer’s information required under the Program Management Order). The default provider to perform all of the Commission’s rules and orders has been Commission further improved the functions of a default provider. provided and all statements of fact, as structure, efficiency, and quality of the On July 28, 2011, the Commission well as all documentation contained in VRS program, reduced the risk of waste, released Structure and Practices of the the submission, are true, accurate, and fraud, and abuse, and ensured that the Video Relay Service Program, document complete; requirements for VRS program makes full use of advances in FCC 11–118, published at 76 FR 47469, providers to obtain prior authorization commercially-available technology. August 5, 2011, and at 76 FR 47476, from the Commission for planned These improvements include August 5, 2011 (VRS Certification interruptions of service, to report to the information collection requirements, Order), adopting final and interim Commission unforeseen interruptions of including: The establishment of rules—designed to help prevent waste, service, and to provide notification of procedures to register enterprise and fraud, and abuse, and ensure quality temporary service outages, including public videophones to the TRS–URD; service, in the provision of internet- updates, to consumers on their websites; and permitting Qualified Direct Video based forms of Telecommunications and requirements for iTRS providers Calling (DVC) Entities to access the TRS Relay Services (iTRS). On October 17, that will no longer be providing service Numbering Directory and establishing

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an application procedure to authorize home call handling pilot program into a Filing Party: Wayne Rohde; Cozen such access, including rules governing permanent one, thereby allowing CAs to O’Connor. DVC entities and entry of information in work from home. To ensure user privacy Synopsis: The Agreement authorizes the TRS Numbering Directory and the and call confidentiality and to help Seaboard to charter space to King Ocean TRS–URD. prevent waste, fraud, and abuse, the in the trade between Miami and On August 2, 2019, the Commission modified information collections Trinidad. released Implementing Kari’s Law and include requirements for VRS providers Proposed Effective Date: 6/12/2020. Section 506 of RAY BAUM’s Act; to apply for certification to allow their Location: https://www2.fmc.gov/ Inquiry Concerning 911 Access, Routing, communications assistants to handle FMC.Agreements.Web/Public/ and Location in Enterprise calls while working at home; monitoring AgreementHistory/1032. Communications Systems; Amending and oversight requirements; and Agreement No.: 201342. the Definition of Interconnected VoIP reporting requirements. Agreement Name: MSC/Maersk SAEC Service in Section 9.3 of the Federal Communications Commission. Space Charter. Commission’s Rules, FCC 19–76, Parties: Maersk A/S and Marlene Dortch, published at 84 FR 66716, December 5, Mediterranean Shipping Company S.A. 2019 (MLTS 911 and Dispatchable Secretary, Office of the Secretary. Filing Party: Wayne Rohde; Cozen Location Order). The Commission [FR Doc. 2020–09621 Filed 5–5–20; 8:45 am] O’Connor. amended its rules to ensure that the BILLING CODE 6712–01–P Synopsis: The Agreement authorizes dispatchable location is conveyed to a MSC to charter space to Maersk in the Public Safety Answering Point (PSAP) trade between ports on the U.S. Gulf with a 911 call, regardless of the FEDERAL MARITIME COMMISSION Coast and ports in Mexico, Panama, technological platform used. Based on Colombia and Brazil. the directive in section 506 of RAY Notice of Agreements Filed Proposed Effective Date: 6/14/2020. Location: https://www2.fmc.gov/ BAUM’S Act, the Commission adopted The Commission hereby gives notice FMC.Agreements.Web/Public/ dispatchable location requirements that of the filing of the following agreements AgreementHistory/29496. in effect modified the existing under the Shipping Act of 1984. information collection requirements Interested parties may submit Agreement No.: 201343. applicable to VRS, IP Relay and covered comments, relevant information, or Agreement Name: Maersk/MSC UCLA IP CTS by improving the options for documents regarding the agreements to Space Charter Agreement. Parties: Maersk A/S and providing accurate location information the Secretary by email at Secretary@ Mediterranean Shipping Company S.A. to PSAPs as part of 911 calls. fmc.gov, or by mail, Federal Maritime Filing Party: Wayne Rohde; Cozen Fixed internet-based TRS devices Commission, Washington, DC 20573. O’Connor. must provide automated dispatchable Comments will be most helpful to the location. For non-fixed devices, when Synopsis: The Agreement authorizes Commission if received within 12 days Maersk to charter space to MSC on dispatchable location is not technically of the date this notice appears in the feasible, internet-based TRS providers Maersk’s UCLA service in the trade Federal Register. Copies of agreements between ports on the U.S. Gulf Coast may fall back to Registered Location or are available through the Commission’s provide alternative location and ports in Mexico, Panama, Colombia website (www.fmc.gov) or by contacting and Brazil. information. As a last resort, internet- the Office of Agreements at (202)–523– based providers may route calls to Proposed Effective Date: 6/14/2020. 5793 or [email protected]. Location: https://www2.fmc.gov/ Emergency Relay Calling Centers. after Agreement No.: 010099–068. making a good faith effort to obtain FMC.Agreements.Web/Public/ Agreement Name: International AgreementHistory/29497. location data from all available Council of Containership Operators. alternative location sources. Parties: CMA CGM S.A.; COSCO Dated: May 1, 2020. Dispatchable location means a location SHIPPING Co., Ltd.; Crowley Liner Rachel Dickon, delivered to the PSAP with a 911 call Services, Inc.; Evergreen Line Joint Secretary. that consists of the validated street Service Agreement; Hapag-Lloyd AG; [FR Doc. 2020–09659 Filed 5–5–20; 8:45 am] address of the calling party, plus Hyundai Merchant Marine Co., Ltd.; BILLING CODE 6730–02–P additional information such as suite, Maersk A/S; Mediterranean Shipping apartment or similar information Company S.A.; Orient Overseas necessary to adequately identify the Container Line Limited; Wan Hai Lines FEDERAL MARITIME COMMISSION location of the calling party. Automated Ltd.; Yang Ming Marine Transport [Fact Finding No. 30] dispatchable location means automatic Corporation; and Zim Integrated generation of dispatchable location. Shipping Services Ltd. COVID–19 Impact on Cruise Industry; Alternative location information is Filing Party: John Longstreth; K&L Order location information (which may be Gates. coordinate-based) sufficient to identify Synopsis: The amendment removes Congress tasked the Federal Maritime the caller’s civic address and Pacific International Lines (PTE) LTD as Commission (Commission) with approximate in-building location, a party to the Agreement. administering the Shipping Act of 1984 including floor level, in large buildings. Proposed Effective Date: 4/27/2020. (Shipping Act), 46 U.S.C. 40101 et seq. On January 31, 2020, the Commission Location: https://www2.fmc.gov/ The Commission also administers released Structure and Practices of the FMC.Agreements.Web/Public/ Public Law 89–777, 46 U.S.C. 44101 et Video Relay Service Program; AgreementHistory/1032. seq., to ensure that passenger vessel Telecommunications Relay Services and Agreement No.: 201341. operators (PVOs) satisfy the financial Speech-to-Speech Services for Agreement Name: King Ocean/ responsibility requirements related to Individuals with Hearing and Speech Seaboard Trinidad Space Charter nonperformance of transportation and Disabilities, FCC 20–7 (VRS At-Home Agreement. death or injury to passengers. Call Handling Order). The Commission Parties: King Ocean Services Limited The purposes of the Shipping Act amended its rules to convert the VRS at- and Seaboard Marine Ltd. include the provision of ‘‘an efficient

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and economic transportation system in 41301–41309, 44104–44106 and 46 CFR DEPARTMENT OF HEALTH AND the ocean commerce of the United 502.281 et seq., Commissioner Louis E. HUMAN SERVICES States that is, insofar as possible, in Sola engage cruise industry harmony with, and responsive to, stakeholders, including PVOs, Centers for Disease Control and international shipping practices.’’ 46 passengers, and marine terminal Prevention U.S.C. 40101. Pursuant to the Shipping operators, in public or non-public [Docket No. CDC–2020–0050] Act, the Commission regulates ocean discussions to identify commercial common carriage of the United States. solutions to COVID–19-related issues Advisory Board on Radiation and When they are engaged in transportation that interfere with the operation of the Worker Health (ABRWH or the of passengers between the U.S. and a cruise industry; Advisory Board), National Institute for foreign country, PVOs are common Occupational Safety and Health It is further ordered, That, the carriers under the Shipping Act. See 46 (NIOSH); Notice of Meeting and Commissioner form one or more teams, U.S.C. 40102(7)(A). Request for Comment PVOs are also subject to the composed of leaders from the cruise requirements of 46 U.S.C. chap. 441 and industry and other stakeholders, to AGENCY: Centers for Disease Control and regulations promulgated thereunder in develop commercial solutions to the Prevention (CDC), Department of Health 46 CFR part 540. The purpose of that challenges created by the COVID–19 and Human Services (HHS). statute is, among other things, ‘‘to pandemic; ACTION: Notice of meeting. prevent financial loss and hardship to It is further ordered, That the SUMMARY: In accordance with the the American traveling public, who, Commissioner interact with any or all Federal Advisory Committee Act, the after payment of cruise passage money, maritime related COVID–19 task forces are stranded by the abandonment or CDC announces the following meeting of which this Commission is affiliated cancellation of a cruise.’’ Terry Marler of the Advisory Board on Radiation and or monitors for the purpose of collecting and James Beasley dba Titanic Worker Health (ABRWH). This meeting Steamship Line, 22 S.R.R. 359, 369 (ALJ data related to COVID–19 and its impact is open to the public, but without a 1983), aff’d, 22 S.R.R. 798 (FMC 1984). on the cruise industry; public comment period. The public is The Commission understands that the It is further ordered, That, the welcome to listen to the meeting by current pandemic caused by the novel Commissioner provide a preliminary joining the audio conference coronavirus (COVID–19) has severely report and periodic updates to the (information below). The audio impacted the cruise industry. On March Commission on the results of efforts conference line has 150 ports for callers. 14, 2020, the Centers for Disease Control undertaken by this Order; DATES: The meeting will be held on June and Prevention (CDC) issued a No Sail It is further ordered, That, the 24, 2020, 11:00 a.m. to 1:00 p.m., EDT. Order and Suspension of Further Commissioner have full authority under Written comments must be received Embarkation causing PVOs to cease all on or before June 18, 2020. operations. Due to the unpredictable 46 CFR 502.281–291 to perform such duties as may be necessary in ADDRESSES: You may submit comments, nature of this disease, the CDC has identified by Docket No. CDC–2020– extended the term of the order accordance with U.S. law and Commission regulations. The 0050 by any of the following methods: demonstrating the uncertainty • Commissioner will be assisted by staff Federal eRulemaking Portal: associated with this pandemic. https://www.regulations.gov. Follow the Consequently, questions concerning members as may be assigned by the Chairman; instructions for submitting comments. future travel and passengers’ ability to • Mail: National Institute for obtain refunds of monies remitted for It is further ordered, That, this Occupational Safety and Health, NIOSH transportation disrupted by COVID–19 Proceeding be discontinued upon the Docket Office, 1090 Tusculum Avenue, are legion. acceptance of a final report and possible MS C–34, Cincinnati, Ohio 45226–1998. The cruise industry plays a unique recommendations by the Commissioner, Instructions: All information received and important role in the U.S. economy. unless otherwise ordered by the in response to this notice must include Given the Commission’s mandate to: (1) Commission; and the agency name and docket number Ensure an efficient and economic [CDC–2020–0050]. All relevant transportation system for ocean It is finally ordered, That, notice of comments received will be posted commerce for both goods and this Order be published in the Federal without change to http:// passengers under the Shipping Act; and Register. www.regulations.gov, including any (2) ensure that PVOs maintain adequate By the Commission. personal information provided. financial responsibility to indemnify Rachel Dickon, Instructions: All submissions received passengers for nonperformance and must include the Agency name and meet any liability which may be Secretary. Docket Number. All relevant comments incurred for death or injury to [FR Doc. 2020–09623 Filed 5–5–20; 8:45 am] received in conformance with the passengers or other persons under 46 BILLING CODE 6730–02–P https://www.regulations.gov suitability U.S.C. chap. 441, the Commission has a policy will be posted without change to clear and compelling responsibility to https://www.regulations.gov, including actively investigate and respond to the any personal information provided. For current challenges impacting the cruise access to the docket to read background industry and the U.S. ports that rely on documents or comments received, go to it.1 https://www.regulations.gov. Therefore it is ordered, That, pursuant Meeting Information: Audio to 46 U.S.C. 40104, 41101–41109, Conference Call via FTS Conferencing. 1 The provisions of the Shipping Act govern The USA toll-free dial-in number is 1– proceedings under 46 U.S.C. chap. 441. See 46 866–659–0537; the pass code is U.S.C. 44106. 9933701.

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FOR FURTHER INFORMATION CONTACT: requests must contain the name, DEPARTMENT OF HEALTH AND Rashaun Roberts, Ph.D., Designated address, and organizational affiliation of HUMAN SERVICES Federal Officer, NIOSH, CDC, 1090 the individual, as well as the topic being Tusculum Avenue, Mailstop C–24, addressed. Written comments should National Institutes of Health Cincinnati, Ohio 45226, Telephone not exceed one single-spaced typed page Submission for OMB review; 30-Day (513) 533–6800, Toll Free 1(800)CDC– in length. Written comments received in INFO, Email [email protected]. Comment Request; Office of Minority advance of the meeting will be included Health Research Coordination SUPPLEMENTARY INFORMATION: in the official record of the meeting. Background: The Advisory Board was (OMHRC) Research Training and established under the Energy Employees Please note that comments received, Mentor Programs Applications Occupational Illness Compensation including attachments and other (National Institute of Diabetes and Program Act of 2000 to advise the supporting materials, are part of the Digestive and Kidney Diseases) public record and are subject to public President on a variety of policy and AGENCY: National Institutes of Health, disclosure. Comments will be posted on technical functions required to HHS. implement and effectively manage the https://www.regulations.gov. Therefore, ACTION: new compensation program. Key do not include any information in your Notice. functions of the Advisory Board include comment or supporting materials that SUMMARY: In compliance with the providing advice on the development of you consider confidential or Paperwork Reduction Act of 1995, the probability of causation guidelines inappropriate for public disclosure. If National Institutes of Health (NIH) has which have been promulgated by the you include your name, contact submitted to the Office of Management Department of Health and Human information, or other information that and Budget (OMB) a request for review Services (HHS) as a final rule, advice on identifies you in the body of your and approval of the information methods of dose reconstruction which comments, that information will be on collection listed below. have also been promulgated by HHS as public display. CDC will review all DATES: a final rule, advice on the scientific Comments regarding this submissions and may choose to redact, information collection are best assured validity and quality of dose estimation or withhold, submissions containing and reconstruction efforts being of having their full effect if received private or proprietary information such performed for purposes of the within 30-days of the date of this as Social Security numbers, medical compensation program, and advice on publication. information, inappropriate language, or petitions to add classes of workers to the ADDRESSES: Written comments and Special Exposure Cohort (SEC). In duplicate/near duplicate examples of a recommendations for the proposed December 2000, the President delegated mass-mail campaign. CDC will carefully information collection should be sent responsibility for funding, staffing, and consider all comments submitted to the within 30 days of publication of this operating the Advisory Board to HHS, docket. notice to www.reginfo.gov/public/do/ which subsequently delegated this Matters to be Considered: The agenda PRAMain. Find this particular authority to the CDC. NIOSH will include discussions on: Work information collection by selecting implements this responsibility for CDC. Group and Subcommittee Reports; ‘‘Currently under 30-day Review—Open The charter was issued on August 3, Update on the Status of SEC Petitions; for Public Comments’’ or by using the 2001, renewed at appropriate intervals, Plans for the August 2020 Advisory search function. and rechartered under Executive Order Board Meeting; and Advisory Board FOR FURTHER INFORMATION CONTACT: To 13889 on March 22, 2020, and will Correspondence. Agenda items are request more information on the terminate on March 22, 2022. subject to change as priorities dictate. proposed project or to obtain a copy of Purpose: This Advisory Board is the data collection plans and The Director, Strategic Business charged with (a) providing advice to the instruments, contact: Ms. Winnie Initiatives Unit, Office of the Chief Secretary, HHS, on the development of Martinez, Project Officer, 6707 guidelines under Executive Order Operating Officer, Centers for Disease Democracy Blvd., 9th Floor, Bethesda, 13179; (b) providing advice to the Control and Prevention, has been MD, 20892 or call non-toll-free number Secretary, HHS, on the scientific delegated the authority to sign Federal (301) 435–2988 or Email your request, validity and quality of dose Register notices pertaining to including your address to: reconstruction efforts performed for this announcements of meetings and other [email protected]. program; and (c) upon request by the committee management activities, for SUPPLEMENTARY INFORMATION: This Secretary, HHS, advising the Secretary both the Centers for Disease Control and on whether there is a class of employees proposed information collection was Prevention and the Agency for Toxic previously published in the Federal at any Department of Energy facility Substances and Disease Registry. who were exposed to radiation but for Register on October 16, 2019, page whom it is not feasible to estimate their Kalwant Smagh, 55318–55319 (84 FR 55318) and radiation dose, and on whether there is Director, Strategic Business Initiatives Unit, allowed 60 days for public comment. No reasonable likelihood that such Office of the Chief Operating Officer, Centers public comments were received. The radiation doses may have endangered for Disease Control and Prevention. purpose of this notice is to allow an the health of members of this class. [FR Doc. 2020–09673 Filed 5–5–20; 8:45 am] additional 30 days for public comment. The National Institute of Diabetes and Public Participation BILLING CODE 4163–18–P Digestive and Kidney Diseases (NIDDK), Written Public Comment: The public National Institutes of Health, may not is welcome to submit written comments conduct or sponsor, and the respondent in advance of the meeting. Comments is not required to respond to an should be submitted in writing by mail information collection that has been according to the instructions provided. extended, revised, or implemented on or The deadline for receipt of written after October 1, 1995, unless it displays public comment is June 18, 2020. All a currently valid OMB control number.

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In compliance with Section Office of Minority Health Research Investigators (NMRI), the NIH/National 3507(a)(1)(D) of the Paperwork Coordination to address the burden of Medical Association (NMA) Academic Reduction Act of 1995, the National diseases and disorders that Career Fellow Travel Awards, and the Institutes of Health (NIH) has submitted disproportionately impact the health of NIH/National Hispanic Medical to the Office of Management and Budget minority populations. One of the major Association (NHMA) Academic Career (OMB) a request for review and goals of the office is to build and sustain Fellow Travel Awards. Identification of approval of the information collection a pipeline of researchers from participants to matriculate into the listed below. underrepresented populations in the program and initiatives comes from Proposed Collection Title: Office of biomedical, behavioral, clinical, and applications and related forms hosted Minority Health Research Coordination social sciences, with a focus on NIDDK through the NIDDK website. The Training and Mentor Programs mission areas. The office accomplishes proposed information collection activity Applications in use with OMB Control this goal by administering a variety of is necessary in order to determine the Number 0925–0748, exp., date 2/28/ programs and initiatives to recruit high eligibility and quality of potential 2023 REVISION, National Institute of school through post-doctoral awardees for traineeship in these Diabetes and Digestive and Kidney educational level individuals into programs and to evaluate the effectives Diseases (NIDDK), National Institutes of OMHRC research training and mentor of the OMHRC programs in achieving Health (NIH). programs: The Short-Term Research their missions and goals. Need and Use of Information Experience for Underrepresented OMB approval is requested for three Collection: In 2000, the National Persons (STEP–UP), the Diversity (3) years. There are no costs to Institute of Diabetes and Digestive and Summer Research Training Program respondents other than their time. The Kidney Diseases of the National (DSRTP) for Undergraduate Students, total estimated annualized burden hours Institutes of Health established the Network of Minority Health Research are 2,559.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Type of Number of Number of burden per Total annual Form name respondent respondents responses per response burden hours respondent (in hours)

Short-Term Research Experience for Underrepresented Individuals/ 2,000 1 45/60 1,500 Persons (STEP–UP) Application. Households ... STEP–UP Student Feedback Form ...... Individuals/ 200 1 15/60 50 Households ... STEP–UP Participant Survey Form ...... Private Sector 2,200 1 5/60 184 Diversity Summer Research Training Program (DSRTP) Individuals/ 14 1 30/60 7 Feedback Form. Households ... Network of Minority Health Research Investigators (NMRI) Private Sector 200 1 15/60 50 Enrollment Form. NMRI Evaluation Form ...... Private Sector 120 1 30/60 60 NMRI Survey Form ...... Private Sector 800 1 30/60 400 NMRI Mentor-Mentee Agreement Form ...... Private Sector 100 1 30/60 50 NIH/National Medical Association (NMA) Academic Career Private Sector 200 1 20/60 67 Fellow Travel Awards Application. NIH/NMA Feedback Form ...... Private Sector 40 1 30/60 20 NIH/NMA Academic Career Development Workshop Con- Private Sector 1,000 1 5/60 84 tact Information and Feedback Form. NIH/National Hispanic Medical Association (NHMA) Aca- Private Sector 200 1 20/60 67 demic Career Fellow Travel Awards Application. NIH/NHMA Feedback Form ...... Private Sector 40 1 30/60 20

Total ...... 7,114 ...... 2,559

Dated: April 30, 2020. DEPARTMENT OF HEALTH AND confidential trade secrets or commercial Starsky H. Cheng, HUMAN SERVICES property such as patentable material, NIDDK Project Clearance Liaison, Office of and personal information concerning Management and Policy Analysis, National National Institutes of Health individuals associated with the grant Institute of Diabetes and Digestive and Kidney applications, the disclosure of which Diseases, National Institutes of Health. National Institute on Aging; Notice of would constitute a clearly unwarranted Closed Meetings [FR Doc. 2020–09693 Filed 5–5–20; 8:45 am] invasion of personal privacy. BILLING CODE 4140–01–P Pursuant to section 10(d) of the Name of Committee: National Institute on Federal Advisory Committee Act, as Aging Special Emphasis Panel; NIA BSR amended, notice is hereby given of the LEADR DP1. following meetings. Date: June 17, 2020. The meetings will be closed to the Time: 12:00 p.m. to 3:00 p.m. public in accordance with the Agenda: To review and evaluate grant provisions set forth in sections applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Institute on Aging, as amended. The grant applications and Gateway Building, 7201 Wisconsin Avenue, the discussions could disclose Bethesda, MD 20892 (Video Meeting).

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Contact Person: Birgit Neuhuber, Ph.D., and personal information concerning Bethesda, MD 20892 (Telephone Conference Scientific Review Officer, Scientific Review individuals associated with the grant Call). Branch, National Institute on Aging, National applications, the disclosure of which Contact Person: Jian Yang, Ph.D., Scientific Institutes of Health, 7201 Wisconsin Avenue, would constitute a clearly unwarranted Review Officer, Review Branch, Division of Gateway Building, Suite 2W200, Bethesda, invasion of personal privacy. Extramural Activities, NIDDK, National MD 20892, (301) 480–1266, neuhuber@ Institutes of Health, Room 7111, 6707 ninds.nih.gov. Name of Committee: Center for Scientific Democracy Boulevard, Bethesda, MD 20892– Name of Committee: National Institute on Review Special Emphasis Panel 5452, (301) 594–7799, yangj@ Aging Special Emphasis Panel; Epigenomic Antimicrobial Resistance Rapid, Point-of- extra.niddk.nih.gov. Need Diagnostic Test Challenge: Step 3 changes in aging. Name of Committee: National Institute of Date: June 8, 2020. Date: June 30, 2020. Diabetes and Digestive and Kidney Diseases Time: 1:00 p.m. to 5:00 p.m. Time: 12:00 p.m. to 4:30 p.m. Special Emphasis Panel; Pragmatic Research Agenda: To review and evaluate prize. Agenda: To review and evaluate grant and Natural Experiments. Place: National Institutes of Health, applications. Date: June 30, 2020. Rockledge II, 6701 Rockledge Dr., Bethesda, Place: National Institute on Aging, Time: 11:00 a.m. to 5:00 p.m. MD 20892, (Virtual Meeting). Gateway Building, 7201 Wisconsin Avenue, Agenda: To review and evaluate grant Contact Person: Gagan Pandya, Ph.D., Bethesda, MD 20892 (Video Meeting). applications. Scientific Review Officer, National Institutes Contact Person: Birgit Neuhuber, Ph.D., Place: National Institutes of Health, Two of Health, Center for Scientific Review, 6701 Scientific Review Officer, Scientific Review Democracy Plaza, 6707 Democracy Blvd., Rockledge Drive, RM 3200, MSC 7808, Branch, National Institute on Aging, National Bethesda, MD 20892 (Telephone Conference Bethesda, MD 20892, 301–435–1167 Institutes of Health, 7201 Wisconsin Avenue, Call). [email protected]. Gateway Building, Suite 2W200, Bethesda, Contact Person: Michele L. Barnard, Ph.D., MD 20892, (301) 480–1266, neuhuber@ (Catalogue of Federal Domestic Assistance Scientific Review Officer, Review Branch, ninds.nih.gov. Program Nos. 93.306, Comparative Medicine; Division of Extramural Activities, NIDDK, Name of Committee: National Institute on 93.333, Clinical Research, 93.306, 93.333, National Institutes of Health, Room 7353, Aging Special Emphasis Panel; Lipid 93.337, 93.393–93.396, 93.837–93.844, 6707 Democracy Boulevard, Bethesda, MD signaling in aging and lifespan 93.846–93.878, 93.892, 93.893, National 20892–2542, (301) 594–8898, barnardm@ determination. Institutes of Health, HHS) extra.niddk.nih.gov. Date: July 2, 2020. Dated: May 1, 2020. Name of Committee: National Institute of Time: 11:00 a.m. to 5:00 p.m. Natasha M. Copeland, Diabetes and Digestive and Kidney Diseases Agenda: To review and evaluate grant Special Emphasis Panel; Fellowships in applications. Deputy Director, Office of Federal Advisory Committee Policy. Digestive Diseases and Nutrition. Place: National Institute on Aging, Date: July 9–10, 2020. Gateway Building, 7201 Wisconsin Avenue, [FR Doc. 2020–09687 Filed 5–5–20; 8:45 am] Time: 10:00 a.m. to 7:00 p.m. Bethesda, MD 20892 (Video Meeting). BILLING CODE 4140–01–P Agenda: To review and evaluate grant Contact Person: Maurizio Grimaldi, MD, applications. Ph.D., Scientific Review Officer, Scientific Place: National Institutes of Health, Two Review Branch, National Institute on Aging, DEPARTMENT OF HEALTH AND Democracy Plaza, 6707 Democracy Blvd., National Institutes of Health, 7201 Wisconsin HUMAN SERVICES Bethesda, MD 20892 (Telephone Conference Avenue, Gateway Building, Suite 2W200, Call). Bethesda, MD 20892, (301) 496–9374, National Institutes of Health Contact Person: Jian Yang, Ph.D., Scientific [email protected]. Review Officer, Review Branch, Division of (Catalogue of Federal Domestic Assistance National Institute of Diabetes and Extramural Activities, NIDDK, National Program Nos. 93.866, Aging Research, Digestive and Kidney Diseases; Notice Institutes of Health, Room 7111, 6707 National Institutes of Health, HHS) of Closed Meetings Democracy Boulevard, Bethesda, MD 20892– Dated: May 1, 2020. 5452, (301) 594–7799, yangj@ Miguelina Perez, Pursuant to section 10(d) of the extra.niddk.nih.gov. Program Analyst, Office of Federal Advisory Federal Advisory Committee Act, as (Catalogue of Federal Domestic Assistance Committee Policy. amended, notice is hereby given of the Program Nos. 93.847, Diabetes, following meetings. Endocrinology and Metabolic Research; [FR Doc. 2020–09689 Filed 5–5–20; 8:45 am] The meetings will be closed to the 93.848, Digestive Diseases and Nutrition BILLING CODE 4140–01–P public in accordance with the Research; 93.849, Kidney Diseases, Urology provisions set forth in sections and Hematology Research, National Institutes of Health, HHS). DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Dated: May 1, 2020. HUMAN SERVICES as amended. The grant applications and the discussions could disclose Miguelina Perez, National Institutes of Health confidential trade secrets or commercial Program Analyst, Office of Federal Advisory property such as patentable material, Committee Policy. Center for Scientific Review; Notice of and personal information concerning [FR Doc. 2020–09692 Filed 5–5–20; 8:45 am] Closed Meeting individuals associated with the grant BILLING CODE 4140–01–P applications, the disclosure of which Pursuant to section 10(d) of the would constitute a clearly unwarranted Federal Advisory Committee Act, as invasion of personal privacy. DEPARTMENT OF HEALTH AND amended, notice is hereby given of the HUMAN SERVICES following meeting. Name of Committee: National Institute of The meeting will be closed to the Diabetes and Digestive and Kidney Diseases National Institutes of Health public in accordance with the Special Emphasis Panel; R13 Conference provisions set forth in sections Grant Applications. National Institute of Allergy and Date: June 25, 2020. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 11:00 a.m. to 12:30 p.m. Infectious Diseases; Notice of Closed as amended. The grant applications and Agenda: To review and evaluate grant Meeting the discussions could disclose applications. confidential trade secrets or commercial Place: National Institutes of Health, Two Pursuant to section 10(d) of the property such as patentable material, Democracy Plaza, 6707 Democracy Blvd., Federal Advisory Committee Act, as

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amended, notice is hereby given of the and personal information concerning Place: National Institutes of Health, following meeting. individuals associated with the grant Rockledge II, 6701 Rockledge Dr., Bethesda, The meeting will be closed to the applications, the disclosure of which MD 20892, (Virtual Meeting). public in accordance with the would constitute a clearly unwarranted Contact Person: Tasmeen Weik, DRPH, provisions set forth in sections MPH, Scientific Review Officer, Center for invasion of personal privacy. Scientific Review, National Institutes of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of Health, 6701 Rockledge Drive, Room 3141, as amended. The grant applications and Allergy and Infectious Diseases Special Bethesda, MD 20892, (301) 827–6480 weikts@ the discussions could disclose Emphasis Panel; AIDSRRC Independent SEP. mail.nih.gov. confidential trade secrets or commercial Date: May 20, 2020. Name of Committee: Molecular, Cellular property such as patentable material, Time: 1:00 p.m. to 3:00 p.m. and Developmental Neuroscience Integrated and personal information concerning Agenda: To review and evaluate grant Review; Group Molecular individuals associated with the grant applications. Neuropharmacology and Signaling Study applications, the disclosure of which Place: National Institute of Allergy and Section. would constitute a clearly unwarranted Infectious Diseases, National Institutes of Date: June 4–5, 2020. invasion of personal privacy. Health, 5601 Fishers Lane, Room 3F40, Time: 8:00 a.m. to 6:00 p.m. Rockville, MD 20892 (Telephone Conference Agenda: To review and evaluate grant Name of Committee: National Institute of Call). applications. Allergy and Infectious Diseases Special Contact Person: Robert C. Unfer, Ph.D., Place: National Institutes of Health, Emphasis Panel; NIAID Resource-Related Scientific Review Officer, Scientific Review Rockledge II, 6701 Rockledge Dr., Bethesda, Research Projects (R24 Clinical Trial Not Program, National Institute of Allergy and MD 20892, (Virtual Meeting). Allowed). Infectious Diseases, National Institutes of Contact Person: Vanessa S Boyce, Ph.D., Date: June 2, 2020. Health, 5601 Fishers Lane, Room 3F40, Scientific Review Officer, Center for Time: 10:30 a.m. to 12:30 p.m. Rockville, MD 20892–9823, 240–669–5035, Scientific Review, National Institutes of Agenda: To review and evaluate grant [email protected]. Health, 6701 Rockledge Drive, Rm. 4016F, applications. (Catalogue of Federal Domestic Assistance MSC 7812 Bethesda, MD 20892 (301) 435– Place: National Institute of Allergy and Program Nos. 93.855, Allergy, Immunology, 0908, [email protected]. Infectious Diseases, National Institutes of and Transplantation Research; 93.856, Name of Committee: Biological Chemistry Health, 5601 Fishers Lane, Room 3F52, Microbiology and Infectious Diseases and Macromolecular Biophysics Integrated Rockville, MD 20892 (Telephone Conference Research, National Institutes of Health, HHS) Review; Group Biochemistry and Biophysics Call). of Membranes Study Section Dated: April 30, 2020. Contact Person: Jennifer Hartt Meyers, Date: June 4–5, 2020. Ph.D., Scientific Review Officer, Scientific Tyeshia M. Roberson, Time: 8:00 a.m. to 5:00 p.m. Review Program, Division of Extramural Program Analyst, Office of Federal Advisory Agenda: To review and evaluate grant Activities, National Institute of Allergy and Committee Policy. applications. Infectious Diseases, National Institutes of Place: National Institutes of Health, Health, 5601 Fishers Lane, Room 3F52, [FR Doc. 2020–09690 Filed 5–5–20; 8:45 am] BILLING CODE 4140–01–P Rockledge II, 6701 Rockledge Dr., Bethesda, Rockville, MD 20852, 301–761–6602, MD 20892, (Virtual Meeting). [email protected]. Contact Person: Nuria E Assa-Munt, Ph.D., (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Scientific Review Officer, Center for Program Nos. 93.855, Allergy, Immunology, Scientific Review National Institutes of and Transplantation Research; 93.856, HUMAN SERVICES Health 6701 Rockledge Drive, Room 4164, Microbiology and Infectious Diseases MSC 7806 Bethesda, MD 20892 (301) 451– Research, National Institutes of Health, HHS) National Institutes of Health 1323 [email protected]. Dated: April 30, 2020. Center for Scientific Review; Notice of Name of Committee: Molecular, Cellular Tyeshia M. Roberson, Closed Meetings and Developmental Neuroscience Integrated Review Group Cellular and Molecular Program Analyst, Office of Federal Advisory Biology of Glia Study Section Committee Policy. Pursuant to section 10(d) of the Date: June 4–5, 2020. [FR Doc. 2020–09691 Filed 5–5–20; 8:45 am] Federal Advisory Committee Act, as Time: 8:00 a.m. to 6:00 p.m. BILLING CODE 4140–01–P amended, notice is hereby given of the Agenda: To review and evaluate grant following meetings. applications. The meetings will be closed to the Place: National Institutes of Health, DEPARTMENT OF HEALTH AND Rockledge II, 6701 Rockledge Dr., Bethesda, public in accordance with the HUMAN SERVICES MD 20892, (Virtual Meeting). provisions set forth in sections Contact Person: Linda MacArthur, Ph.D., National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review Officer, Center for as amended. The grant applications and Scientific Review, National Institutes of National Institute of Allergy and the discussions could disclose Health, 6701 Rockledge Drive, Room 4187, Infectious Diseases; Notice of Closed confidential trade secrets or commercial Bethesda, MD 20892, (301) 537–9986 Meeting property such as patentable material, [email protected]. and personal information concerning Name of Committee: Immunology Pursuant to section 10(d) of the individuals associated with the grant Integrated Review Group; Cellular and Federal Advisory Committee Act, as applications, the disclosure of which Molecular Immunology—B Study Section. amended, notice is hereby given of the would constitute a clearly unwarranted Date: June 4–5, 2020. Time: 8:30 a.m. to 5:00 p.m. following meeting. invasion of personal privacy. The meeting will be closed to the Agenda: To review and evaluate grant public in accordance with the Name of Committee: Healthcare Delivery applications. provisions set forth in sections and Methodologies Integrated Review Group; Place: National Institutes of Health, Community Influences on Health Behavior Rockledge II, 6701 Rockledge Dr., Bethesda, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Study Section. MD 20892, (Virtual Meeting). as amended. The grant applications and Date: June 4–5, 2020. Contact Person: Betty Hayden, Ph.D., the discussions could disclose Time: 8:00 a.m. to 6:00 p.m. Scientific Review Officer, Center for confidential trade secrets or commercial Agenda: To review and evaluate grant Scientific Review, National Institutes of property such as patentable material, applications. Health, 6701 Rockledge Drive, Room 4206,

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MSC 7812 Bethesda, MD 20892, (301) 435– Dated: May 1, 2020. DEPARTMENT OF HOMELAND 1223 [email protected]. Miguelina Perez, SECURITY Name of Committee: Population Sciences Program Analyst, Office of Federal Advisory and Epidemiology Integrated Review Group; Committee Policy. U.S. Citizenship and Immigration Kidney, Nutrition, Obesity and Diabetes Services Study Section. [FR Doc. 2020–09686 Filed 5–5–20; 8:45 am] Date: June 4–5, 2020. BILLING CODE 4140–01–P [OMB Control Number 1615–NEW] Time: 10:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant Agency Information Collection applications. DEPARTMENT OF HEALTH AND Activities; New Collection: Sponsor Place: National Institutes of Health, Deeming and Agency Reimbursement Rockledge II, 6701 Rockledge Dr., Bethesda, HUMAN SERVICES MD 20892, (Virtual Meeting). AGENCY: U.S. Citizenship and Contact Person: Fungai Chanetsa, Ph.D., National Institutes of Health Immigration Services, Department of MPH Scientific Review Officer, Center for Homeland Security. Scientific Review, National Institutes of National Center for Advancing Health, 6701 Rockledge Drive, Room 3135, Translational Sciences; Notice of ACTION: 30-Day notice. MSC 7770 Bethesda, MD 20892, (301) 408– Closed Meeting 9436 [email protected]. SUMMARY: The Department of Homeland Name of Committee: Healthcare Delivery Security (DHS), U.S. Citizenship and Pursuant to section 10(d) of the Immigration Services (USCIS) will be and Methodologies Integrated Review Group; Federal Advisory Committee Act, as Clinical Management of Patients in submitting the following information Community-Based Settings Study Section. amended, notice is hereby given of the collection request to the Office of Date: June 8–9, 2020. following meeting. Management and Budget (OMB) for Time: 8:00 a.m. to 6:00 p.m. The meeting will be closed to the review and clearance in accordance Agenda: To review and evaluate grant public in accordance with the with the Paperwork Reduction Act of applications. 1995. The purpose of this notice is to Place: National Institutes of Health, provisions set forth in sections Rockledge II, 6701 Rockledge Dr., Bethesda, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., allow an additional 30 days for public MD 20892, (Virtual Meeting). as amended. The grant applications and comments. Contact Person: Lauren Fordyce, Ph.D., the discussions could disclose DATES: Comments are encouraged and Scientific Review Officer, Center for confidential trade secrets or commercial will be accepted until June 5, 2020. Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 3214 property such as patentable material, ADDRESSES: Written comments and/or Bethesda, MD 20892, (301) 827–8269 and personal information concerning suggestions regarding the item(s) [email protected]. individuals associated with the grant contained in this notice, especially Name of Committee: Risk, Prevention and applications, the disclosure of which regarding the estimated public burden Health Behavior Integrated Review Group; would constitute a clearly unwarranted and associated response time, must be Addiction Risks and Mechanisms Study invasion of personal privacy. submitted via the Federal eRulemaking Section. Portal website at http:// Date: June 8–9, 2020. Name of Committee: National Center for www.regulations.gov under e-Docket ID Advancing Translational Sciences Special Time: 9:00 a.m. to 5:00 p.m. number USCIS–2019–0026. All Agenda: To review and evaluate grant Emphasis Panel; R13 Conference Grants submissions received must include the applications. Review. OMB Control Number 1615–NEW in the Place: National Institutes of Health, Date: June 24, 2020. body of the letter, the agency name and Rockledge II, 6701 Rockledge Dr., Bethesda, Time: 8:30 a.m. to 5:30 p.m. MD 20892, (Virtual Meeting). Agenda: To review and evaluate grant Docket ID USCIS–2019–0026. Contact Person: Kristen Prentice, Ph.D., applications. FOR FURTHER INFORMATION CONTACT: Scientific Review Officer, Center for USCIS, Office of Policy and Strategy, Scientific Review, National Institutes of Place: National Center for Advancing Health, 6701 Rockledge Drive, Room 3112, Translational Sciences, National Institutes of Regulatory Coordination Division, MSC 7808 Bethesda, MD 20892, (301) 496– Health, 6701 Democracy Boulevard, Room Samantha Deshommes, Chief, 0726 [email protected]. 1080, Bethesda, MD 20892 (Virtual Meeting). Telephone number (202) 272–8377 Name of Committee: Oncology 1-Basic Contact Person: Jing Chen, Ph.D., Scientific (This is not a toll-free number; Translational Integrated Review Group; Review Officer, Office of Scientific Review, comments are not accepted via Tumor Progression and Metastasis Study National Center for Advancing Translational telephone message.). Please note contact Section. Sciences, National Institutes of Health, 6701 information provided here is solely for Date: June 9–10, 2020. Democracy Boulevard, Room 1080, Bethesda, questions regarding this notice. It is not Time: 8:00 a.m. to 5:00 p.m. MD 20892, [email protected]. for individual case status inquiries. Agenda: To review and evaluate grant Applicants seeking information about applications. (Catalogue of Federal Domestic Assistance Place: National Institutes of Health, Program Nos. 93.859, Pharmacology, the status of their individual cases can Rockledge II, 6701 Rockledge Dr., Bethesda, Physiology, and Biological Chemistry check Case Status Online, available at MD 20892, (Virtual Meeting). Research; 93.350, B—Cooperative the USCIS website at http:// Contact Person: Rolf Jakobi, Ph.D., Agreements; 93.859, Biomedical Research www.uscis.gov, or call the USCIS Scientific Review Officer, Center for and Research Training, National Institutes of Contact Center at (800) 375–5283; TTY Scientific Review, National Institutes of Health, HHS) (800) 767–1833. Health, 6701 Rockledge Drive, Room 6187, SUPPLEMENTARY INFORMATION: MSC 7806 Bethesda, MD 20892, (301) 495– Dated: April 30, 2020. 1718 [email protected]. Melanie J. Pantoja, Proposed Collection of Information (Catalogue of Federal Domestic Assistance Program Analyst, Office of Federal Advisory This information collection allows Program Nos. 93.306, Comparative Medicine; Committee Policy. 93.333, Clinical Research, 93.306, 93.333, federal means-tested public benefit 93.337, 93.393–93.396, 93.837–93.844, [FR Doc. 2020–09688 Filed 5–5–20; 8:45 am] agencies who are registered to use the 93.846–93.878, 93.892, 93.893, National BILLING CODE 4140–01–P Systematic Alien Verification for Institutes of Health, HHS) Entitlements (SAVE) program, and who

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confirm the immigration status of including the validity of the DEPARTMENT OF THE INTERIOR certain persons applying for specified methodology and assumptions used; licenses and benefits using sponsorship (3) Enhance the quality, utility, and Bureau of Land Management data, to provide information regarding clarity of the information to be [19X.LLMTC03200.L51100000.GA0000. use of sponsorship data in deeming and collected; and LVEME19CE830 MO #4500133387] reimbursement processes. The purpose (4) Minimize the burden of the for collecting this information is to collection of information on those who Notice of Availability of the support Federal means-tested benefit are to respond, including through the Environmental Assessment for Coyote granting agencies in the administration use of appropriate automated, Creek Mining Company’s Lease-by- and oversight of their respective benefit electronic, mechanical, or other Application NDM 110277, Mercer programs as they relate to deeming and technological collection techniques or County, ND, Notice of Public Hearing, reimbursement processes in order to other forms of information technology, and Request for Comment on better monitor system and information e.g., permitting electronic submission of Environmental Assessment, Maximum use, and perform actions to ensure responses. Economic Recovery, and Fair Market compliance regarding SAVE program Value Overview of This Information rules, federal sponsorship requirements, Collection AGENCY: Bureau of Land Management, and deeming and reimbursement Interior. obligations. (1) Type of Information Collection Request: New Collection. ACTION: Notice of availability and public Comments (2) Title of the Form/Collection: hearing. The information collection notice was Sponsor Deeming and Agency SUMMARY: The Bureau of Land previously published in the Federal Reimbursement. Management (BLM), North Dakota Field Register on December 18, 2019, at 84 FR (3) Agency form number, if any, and Office (NDFO) is publishing this notice 69386, allowing for a 60-day public the applicable component of the DHS to announce that an Environmental comment period. USCIS did receive 21 sponsoring the collection: G–1552; Assessment (EA) for Coyote Creek comments in connection with the 60- USCIS. Mining Company’s (CCMC) Federal Coal day notice. (4) Affected public who will be asked Lease-by-Application (LBA), serial You may access the information or required to respond, as well as a brief number NDM 110277, is available for collection instrument with instructions, abstract: Primary: Federal Government; public review and comment. The BLM or additional information by visiting the or State or local Government). The G– is also announcing that it will hold a Federal eRulemaking Portal site at: 1552 is created to collect information public hearing by teleconference to http://www.regulations.gov and enter via Systematic Alien Verification for receive comments on the EA, Fair USCIS–2019–0026 in the search box. Entitlements (SAVE) program regarding Market Value (FMV), and Maximum The comments submitted to USCIS via actions that agencies adjudicating Economic Recovery (MER) of the coal this method are visible to the Office of federal means-tested public benefits resources contained in the proposed Management and Budget and comply take to (1) deem sponsor income as part CCMC LBA lease tracts. The Office of with the requirements of 5 CFR of applicant income for purposes of Surface Mining Reclamation and 1320.12(c). All submissions will be federal means-tested benefits eligibility Enforcement (OSMRE) is also accepting posted, without change, to the Federal and (2) seek reimbursement from comments on the National eRulemaking Portal at http:// sponsors for the value of federal means- Environmental Policy Act (NEPA) www.regulations.gov, and will include tested public benefits provided to analysis regarding the potential Federal any personal information you provide. sponsored applicants. mine plan decision. Therefore, submitting this information (5) An estimate of the total number of DATES: The public hearing by makes it public. You may wish to respondents and the amount of time teleconference will be held from 3:00 consider limiting the amount of estimated for an average respondent to p.m. to 5:00 p.m. (Central time zone) on personal information that you provide respond: The estimated total number of May 20, 2020. Written or electronic in any voluntary submission you make respondents for the information comments should be submitted to the to DHS. DHS may withhold information collection G–1552 is 324,737 and the NDFO or postmarked no later than May provided in comments from public estimated hour burden per response is 29, 2020. viewing that it determines may impact 0.042 hour. ADDRESSES: A public hearing by the privacy of an individual or is (6) An estimate of the total public teleconference will be held by calling 1– offensive. For additional information, burden (in hours) associated with the 800–369–1853 and entering passcode please read the Privacy Act notice that collection: The total estimated annual 3787572 when prompted. The is available via the link in the footer of hour burden associated with this teleconference will convene on May 20, http://www.regulations.gov. collection is 13,639 hours. 2020, at 3:00 p.m. (Central time zone) Written comments and suggestions (7) An estimate of the total public and will conclude at 5:00 p.m. (Central from the public and affected agencies burden (in cost) associated with the time zone). Please note that any details should address one or more of the collection: The estimated total annual and updates made to any aspect of the following four points: cost burden associated with this hearing will be posted on the BLM (1) Evaluate whether the proposed collection of information is $0. ePlanning web page (https://go.usa.gov/ collection of information is necessary Dated: May 1, 2020 xVyfF). While the BLM expects the for the proper performance of the Samantha L Deshommes, hearing to go forward as set forth above, functions of the agency, including Chief, Regulatory Coordination Division, please monitor the ePlanning website or whether the information will have Office of Policy and Strategy, U.S. Citizenship contact the person listed in the FOR practical utility; and Immigration Services, Department of FURTHER INFORMATION CONTACT section to (2) Evaluate the accuracy of the Homeland Security. determine if there are any updates. In agency’s estimate of the burden of the [FR Doc. 2020–09672 Filed 5–5–20; 8:45 am] addition, copies of the EA are available proposed collection of information, BILLING CODE 9111–97–P on ePlanning, at the NDFO, and may be

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requested by mail, email or phone using the uncertainty of Federal, State, and personal identifying information—may the contacts provided in the FOR local social distancing guidelines, the be made publicly available at any time. FURTHER INFORMATION CONTACT section. BLM and OSRME are holding the public While you can ask us in your comment You may submit comments related to hearing by teleconference to ensure staff to withhold your personal identifying the CCMC EA, FMV and MER by any of and interested community members are information from public review, the the following methods: able to participate safely. A BLM cannot guarantee that we will be • Email: BLM_MT_North_Dakota_ stenographer will record the able to do so. [email protected]; presentation and comments received • (Authority: 40 CFR 1506.6, 43 CFR 3422.1, Mail: Bureau of Land Management during the teleconference. All public 3425.3 and 3425.4) North Dakota Field Office, Attention: comments, whether written or oral, will Joel Hartmann, Project Lead, 99 23rd receive consideration prior to the BLM’s John J. Mehlhoff, Avenue West, Suite A, Dickinson, ND decision regarding the leasing of the BLM Montana/Dakotas State Director, 58601. Federal coal contained in the tracts. Billings, Montana. [FR Doc. 2020–09613 Filed 5–5–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Joel Public comments on the EA should Hartmann, Geologist; telephone: 406– address the potential environmental BILLING CODE 4310–DN–P 896–5159; or at the address and email impacts of the proposed action. Public provided in the ADDRESSES section. comments on the FMV and MER for the DEPARTMENT OF THE INTERIOR Persons who use a telecommunications proposed lease tracts may address, but do not necessarily have to be limited to, device for the deaf (TDD) may call the Bureau of Land Management Federal Relay Service at 1–800–877– the following: 1. The quantity and quality of the 8339 to contact Mr. Hartmann during [LLMTC02200 L14400000.FR0000; MO normal business hours. The Service is Federal coal resource; 2. The mining method to be employed #4500143799; MTM 109178] available 24 hours a day, 7 days a week, to obtain the MER of the coal resource, to leave a message or question for Mr. Notice of Availability/Notice of Realty including the name of the coal bed(s) to Hartmann. You will receive a reply Action: Environmental Assessment of be mined, timing and rate of production, during normal business hours. If you the Direct Sale of the Reversionary restriction of mining, and the inclusion have questions regarding the potential Interest on the Miles Community of the lease tracts into the existing Federal mine plan decision, please College Patent and Draft Resource mining operation; contact Michelle Fishburne at 3. The price that the mined coal Management Plan Amendment to the telephone: 202–208–2982, email: would bring when sold; 2015 Miles City Field Office Resource [email protected]. If you have 4. Costs, including mining and Management Plan, Montana questions regarding attending the reclamation, and the anticipated timing hearing by teleconference, please AGENCY: Bureau of Land Management, of production; Interior. contact Al Nash at telephone: 406–896– 5. The percentage rate at which ACTION: 5260; email: [email protected]. anticipated income streams should be Notice of availability and notice SUPPLEMENTARY INFORMATION: On discounted, either with inflation, or in of realty action. December 13, 2017, CCMC submitted an the absence of inflation, in which case SUMMARY: In accordance with the application to lease two 160-acre the anticipated rate of inflation should National Environmental Policy Act of Federal coal lease tracts comprising 320 be given; 1969 (NEPA), as amended, and Section acres, located in Mercer County, North 6. Depreciation, depletion, 203 of the Federal Land Policy and Dakota. As project co-leads, the BLM amortization and other tax accounting Management Act of 1976 (FLPMA), as and OSMRE developed the issue-based factors; amended, the Bureau of Land EA, which analyzed and disclosed 7. The value of privately held mineral Management (BLM), Montana Miles City potential direct, indirect, and or surface estate in the Coyote Creek Field Office (MCFO) has prepared an cumulative impacts of leasing and Mine area. environmental assessment (EA) and Any proprietary information or data subsequent mining of the proposed proposal to amend the 2015 MCFO that you submit to the BLM must be lease tracts. The tracts are located at the Resource Management Plan (RMP), as marked as confidential to ensure the Coyote Creek Mine and contain about amended. The EA is in response to data will be treated in accordance with 5.23 million tons of in-place Federal Miles Community College’s (MCC) the applicable laws and regulations coal resources. The tracts underlie request for a direct sale of the United governing the confidentiality of such private surface and are described as States’ (U.S.) reversionary interest in the information or data. A copy of the follows: Recreation and Public Purpose (R&PP) comments submitted by the public on Fifth Principal Meridian, North Dakota Act Patent No. 25–92–0078 for 11.83 the EA, FMV, and MER for the tracts, acres at fair market value of $272,000, T. 143 N., R. 89 W., except those portions identified as under the authority of FLPMA. By this Sec. 24, SW1/4; proprietary and that meet one of the Sec. 26, SE1/4. notice, the BLM is announcing the exemptions in the Freedom of opening of the comment period on the The areas described aggregate 320.00 acres. Information Act, will be available for EA, realty action, and Draft RMP Through this notice, the BLM is public inspection at the BLM, NDFO, 99 amendment. inviting the public to provide comments 23rd Avenue West, Suite A, Dickinson, regarding the potential environmental North Dakota, during regular business DATES: To ensure that comments are impacts related to the proposed action, hours (8:00 a.m.–4:30 p.m. Central time considered, written comments regarding and to submit comments on the FMV zone), Monday through Friday. the EA, realty action, and Draft RMP and the MER for the proposed LBA Before including your address, phone amendment must be submitted to the tract. The BLM usually holds a public number, email address, or other BLM within 45 days following the date hearing in the local community where personal identifying information in your that the Environmental Protection the tracts are located. However, due to comment, you should be aware that Agency (EPA) publishes its Notice of the COVID–19 National Emergency and your entire comment—including your Availability (NOA) in the Federal

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Register. The EPA typically publishes would require a plan amendment to the investigation based on a complaint filed its NOAs every Friday. RMP. by Broadcom Corporation (‘‘Broadcom’’) ADDRESSES: You may submit comments Before including your address, phone of San Jose, California. 83 FR 27349 by any of the following methods: number, email address, or other (June 12, 2018). The complaint alleged • Website: https://bit.ly/36pwGth. personal identifying information in any a violation of section 337 of the Tariff • Mail: Bureau of Land Management; comment, be aware that your entire Act of 1930, as amended, 19 U.S.C. 1337 Miles City Field Office; Beth Klempel; comment—including your personal (‘‘section 337’’) in the importation into 111 Garryowen Road, Miles City, MT identifying information—may be made the United States, sale for importation, 59301. publicly available at any time. While or sale in the United States after Copies of the EA are available at the you can ask us in your comment to importation of certain infotainment MCFO at the above address or may be withhold your personal identifying systems, components thereof, and reviewed at: https://bit.ly/36pwGth. information from public review, we automobiles containing same that FOR FURTHER INFORMATION CONTACT: Beth cannot guarantee that we will be able to allegedly infringe one or more claims of Klempel, Assistant Field Manager for do so. U.S. Patent Nos. 6,937,187 (‘‘the ’187 the Division of Nonrenewable Resources (Authority: 43 CFR 1506, 43 CFR 1610.2, and patent’’); 8,902,104 (‘‘the ’104 patent’’); by telephone at 406–233–2800, or by 43 CFR 2711 et seq.) 7,512,752 (‘‘the ’752 patent’’); 7,530,027 email at [email protected]. Persons John Mehlhoff, (‘‘the ’027 patent’’); 8,284,844 (‘‘the ’844 who use a telecommunications device State Director, Montana/Dakotas. patent’’); and 7,437,583 (‘‘the ’583 for the deaf may call the Federal Relay patent’’) (collectively, ‘‘the Asserted [FR Doc. 2020–09616 Filed 5–5–20; 8:45 am] Service (FRS) at 1–800–877–8339 to Patents’’). The notice of investigation leave a message or question for Ms. BILLING CODE 4310–DN–P named 15 respondents, including Klempel. The FRS is available 24 hours Toyota Motor Corporation of Aichi, a day, 7 days a week. You will receive Japan; Toyota Motor North America, INTERNATIONAL TRADE a reply during normal business hours. Inc. of Plano, TX; Toyota Motor Sales, COMMISSION SUPPLEMENTARY INFORMATION: The BLM U.S.A., Inc. of Plano, TX; Toyota Motor patented the subject land’s surface [Investigation No. 337–TA–1119] Engineering & Manufacturing North estate to MCC in 1992 under the R&PP America, Inc. of Plano, TX; Toyota Act for the college’s educational Certain Infotainment Systems, Motor Manufacturing, Indiana, Inc. of purposes, including a rodeo arena for Components Thereof, and Princeton, IN; Toyota Motor equestrian events, recreation facilities Automobiles Containing the Same; Manufacturing, Kentucky, Inc. of and agriculture related courses and Notice of a Commission Determination Erlanger, KY; Toyota Motor programs. The patent is subject to a Finding No Violation of Section 337; Manufacturing, Mississippi, Inc. of reversionary interest which only allows Termination of the Investigation Tupelo, MS; and Toyota Motor MCC to use the land in accordance with AGENCY: U.S. International Trade Manufacturing, Texas, Inc. of San the patent and plan of development. Commission. Antonio, TX (collectively, ‘‘Toyota’’); The U.S. retained an interest in the land Panasonic Corporation of Osaka, Japan ACTION: Notice. in which title could revert back to the and Panasonic Corporation of North U.S. if the land is not used for the SUMMARY: Notice is hereby given that America of Newark, NJ (collectively, purposes authorized under the R&PP the U.S. International Trade ‘‘Panasonic’’); DENSO TEN Limited of Act or if the land is transferred to Commission has determined to affirm, Kobe City, Japan and DENSO TEN another party without the BLM’s with modified reasoning, the final AMERICA Limited of Torrance, CA approval. In 2016, MCC built an initial determination’s (‘‘FID’’) finding (collectively, ‘‘DENSO TEN’’); Renesas Agricultural Advancement Center that no violation of section 337 has Electronics Corporation of Tokyo, Japan (indoor arena) on the subject land. On occurred. The investigation is and Renesas Electronics America, Inc. of June 3, 2016, the BLM received a terminated. Milpitas, CA (collectively, ‘‘Renesas’’); request from MCC to purchase the FOR FURTHER INFORMATION CONTACT: and Japan Radio Co., Ltd. of Tokyo, Federal reversionary interest retained by Japan. Id. at 27349–50. The Office of the U.S. The reversionary interest in the Lynde Herzbach, Office of the General Counsel, U.S. International Trade Unfair Import Investigations was not following land is proposed for a direct named as a party. Id. at 27351. sale in accordance with Section 203 of Commission, 500 E Street SW, the FLPMA, as amended (43 U.S.C. Washington, DC. 20436, telephone (202) The complaint and notice of 1713). 205–3228. Copies of non-confidential investigation were later amended to add documents filed in connection with this ten more respondents, including Principal Meridian, Montana investigation may be viewed on the Pioneer Corporation of Tokyo, Japan T. 7 N., R 47 E., Commission’s electronic docket (EDIS) and Pioneer Automotive Technologies, Sec. 5, Tract X. at https://edis.usitc.gov. For help Inc. of Farmington Hills, MI The area described above contains 11.83 accessing EDIS, please email (collectively, ‘‘Pioneer’’); DENSO acres. [email protected]. General Corporation of Aichi, Japan; DENSO The conveyance document issued information concerning the Commission International America, Inc. of would convey only the reversionary may also be obtained by accessing its Southfield, MI; DENSO Manufacturing interest retained by the U.S. in patent internet server at https://www.usitc.gov. Tennessee, Inc. of Maryville, TN; and 25–92–0078 and would contain terms, Hearing-impaired persons are advised DENSO Wireless Systems America, Inc. conditions and reservations. that information on this matter can be of Vista, CA (collectively, ‘‘DENSO The 2015 RMP, as amended, does not obtained by contacting the Corp.’’); u-blox AG of Thalwil, specifically identify Tract X for disposal Commission’s TDD terminal, telephone Switzerland; u-blox America, Inc. of since it was patented to MCC under the 202–205–1810. Reston, VA; u-blox San Diego, Inc. of R&PP Act prior to the RMP being issued. SUPPLEMENTARY INFORMATION: On June San Diego, CA; and Socionext Inc. of A direct sale of the reversionary interest 12, 2018, the Commission instituted this Kanagawa, Japan. Order No. 14 (Oct. 3,

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2018), not rev’d in relevant part, determined to review the FID’s findings DEPARTMENT OF JUSTICE Comm’n Notice (Nov. 1, 2018). on: (1) The claim construction of the Certain patent claims were limitation ‘‘at least one processor’’ Antitrust Division subsequently withdrawn and terminated recited in claims 25 and 26 of the ’583 from the investigation. See Order No. 20 patent; (2) infringement of the asserted Notice Pursuant to the National (Jan. 31, 2019), not rev’d, Comm’n claims of the ’583 patent; (3) technical Cooperative Research and Production Notice (Feb. 19, 2019); Order No. 48 prong of the domestic industry Act of 1993—CHEDE–8 (June 5, 2019), not rev’d, Comm’n Notice requirement as to the ’583 patent; (4) Notice is hereby given that, on April (June 18, 2019); Order No. 49 (June 13, invalidity of the asserted claims of the 21, 2020, pursuant to Section 6(a) of the 2019), not rev’d, Comm’n Notice (June ’752 patent; and (5) whether the accused National Cooperative Research and 28, 2019). At the time of the FID, the Pioneer head units meet the limitations Production Act of 1993, 15 U.S.C. 4301 claims at issue were claims 1–3, 5, and of claims 2 and 5 of the ’752 patent. Id. et seq. (‘‘the Act’’), CHEDE–8 (‘‘CHEDE– 9 of the ’187 patent; claim 12 of the ’104 The Commission requested briefing on 8’’) has filed written notifications patent; claims 1–2 and 4–8 of the ’752 some of the issues under review, and simultaneously with the Attorney patent; claims 11 and 20 of the ’027 remedy, bonding, and the public General and the Federal Trade patent; claims 11 and 13 of the ’844 interest. Id. On March 11, 2020, the Commission disclosing changes in its patent; and claims 17–18 and 25–26 of parties filed their written responses to membership. The notifications were the ’583 patent. See Comm’n Notice the Commission’s request for briefing. filed for the purpose of extending the (June 28, 2019). On March 18, 2020, the parties filed Act’s provisions limiting the recovery of On November 13, 2019, the ALJ their reply submissions. antitrust plaintiffs to actual damages issued an FID finding no violation of On March 11, 2020, additional under specified circumstances. section 337. See FID. On November 15, Specifically, DENSO Corporation, 2019, the ALJ issued a Notice of submissions on remedy, bonding, and the public interest were received from Aichi-Ken, JAPAN, has been added as a Correction to Conclusions of Law in party to this venture. Initial Determination on Violation of the following non-parties: Representatives and Senators from No other changes have been made in Section 337 and a corrected FID issued either the membership or planned on November 18, 2019. The corrected Kentucky; Representatives and Senators from Texas; Harman International activity of the group research project. FID fixes a typographical error in the Membership in this group research conclusions of law and correctly Industries, Incorporated; and the Alliance for Automotive Innovation. project remains open, and CHEDE–8 identifies Respondents found to infringe intends to file additional written the ’583 patent. See FID at p. 272. Having examined the record of this notifications disclosing all changes in The FID also contains the ALJ’s investigation, including the FID, the membership. recommended determination petitions for review, and the responses On December 4, 2019, CHEDE–8 filed recommending, if a violation is found, thereto, and filings in response to the its original notification pursuant to that the Commission issue a limited Commission’s request for briefing, the Section 6(a) of the Act. The Department exclusion order prohibiting the Commission has determined to affirm, of Justice published a notice in the importation of infringing infotainment with modified reasoning, the FID’s Federal Register pursuant to Section systems, components thereof, and finding of no violation of section 337. 6(b) of the Act on December 30, 2019 automobiles containing same that Specifically, the Commission affirms, (84 FR 71977). infringe. as well as cease and desist with modified reasoning as explained in The last notification was filed with orders directed to certain domestic the Commission opinion, that: (1) the Department on March 2, 2020. A respondents. Claims 25 and 26 of the ’583 patent are notice was published in the Federal On November 26, 2019, Broadcom not infringed by any Respondent; (2) the Register pursuant to Section 6(b) of the filed a petition for review of the FID and technical prong of the domestic industry Act on March 20, 2020 (85 FR 16132). the respondents filed a contingent requirement is not met for the ’583 Suzanne Morris, petition for review. On December 4, patent; (3) the Pioneer head units do not 2019, Broadcom and the respondents meet the limitations of claims 2 and 5 Chief, Premerger and Division Statistics Unit, Antitrust Division. filed responses to each other’s petitions. of the ’752 patent; and (4) claims 1, 2, On December 16, 2019, Broadcom 4, 5, 7, and 8 of the ’752 patent are [FR Doc. 2020–09624 Filed 5–5–20; 8:45 am] filed a submission on the public interest invalid as anticipated and obvious. The BILLING CODE 4410–11–P pursuant to Commission Rule Commission affirms the FID’s 210.50(a)(4) (19 CFR 210.50(a)(4)). That infringement finding as to claims 17 and DEPARTMENT OF JUSTICE same day, Toyota, Renesas, and Tier 1 18 of the ’583 patent. Suppliers (DENSO Corp., DENSO TEN, Panasonic, and Pioneer) filed their The investigation is terminated. Antitrust Division submissions on the public interest The authority for the Commission’s Notice Pursuant to the National pursuant to Commission Rule determination is contained in section Cooperative Research and Production 210.50(a)(4) (19 CFR 210.50(a)(4)). On 337 of the Tariff Act of 1930, as Act of 1993—National Spectrum December 18, 2019, two non-parties, amended (19 U.S.C. 1337), and in part Consortium Peter Morici and the Reshoring 210 of the Commission’s Rules of Initiative, filed submissions on the Practice and Procedure (19 CFR part Notice is hereby given that, on April public interest in response to the 210). 21, 2020, pursuant to Section 6(a) of the Commission’s notice requesting such By order of the Commission. National Cooperative Research and responses. 84 FR 64104 (Nov. 20, 2019). Production Act of 1993, 15 U.S.C. 4301 On March 3, 2020, the Commission Issued: April 30, 2020. et seq. (‘‘the Act’’), National Spectrum determined to review the FID in part Lisa Barton, Consortium (‘‘NSC’’) has filed written and requested briefing on certain issues. Secretary to the Commission. notifications simultaneously with the 85 FR 12576–78 (March 3, 2020). [FR Doc. 2020–09636 Filed 5–5–20; 8:45 am] Attorney General and the Federal Trade Specifically, the Commission BILLING CODE 7020–02–P Commission disclosing changes in its

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membership. The notifications were notice was published in the Federal Powertrain Engineering Inc., Plymouth, filed for the purpose of extending the Register pursuant to Section 6(b) of the MI; Carillon Technologies Management, Act’s provisions limiting the recovery of Act on February 27, 2020 (85 FR 11396). Arlington, VA; DLT Solutions, Herndon, antitrust plaintiffs to actual damages VA; Falmouth Scientific Inc., Cataumet, Suzanne Morris, under specified circumstances. MA; Manufacturing Techniques Inc., Specifically, Integration Innovation Inc. Chief, Premerger and Division Statistics Unit, Kilmarnock, VA; Planck Aerosystems Antitrust Division. (i3), Huntsville, AL; Indiana Tool & Mfg. Inc., San Diego, CA; Presco Engineering, Co., Inc. DBA ITAMCO, Plymouth, IN; [FR Doc. 2020–09664 Filed 5–5–20; 8:45 am] Woodbridge, CT; Riptide Autonomous Knowledge Management Inc., BILLING CODE 4410–11–P Solutions LLC, Plymouth, MA; RPI Tyngsboro, MA; Simba Chain, Inc., Group Inc., Fredericksburg, VA; Plymouth, IN; Summation Research, Scientific Solutions Inc., Nashua, NH; DEPARTMENT OF JUSTICE Inc., Melbourne, FL; AVANTech Inc., Tampa Deep Sea Xplorers LLC, Tampa, Columbia, SC; Cobalt Solutions Inc., Antitrust Division FL; URSA Inc., Exeter, NH; Welkins Austin, TX; Zylinium Research LLC, LLC, Downers Grove, IL; and XST Inc., Atlanta, GA; Augmntr, Inc., Grass Notice Pursuant to the National San Diego, CA have withdrawn as Valley, CA; Electronic Design and Cooperative Research and Production parties from this venture. Development Corp. (ED2), Tucson, AZ; Act of 1993—Undersea Technology No other changes have been made in Strategic Data Systems, Inc., Keller, TX; Innovation Consortium either the membership or planned Systems & Technology Research, LLC, activity of the group research project. Woburn, MA; University at Buffalo, Notice is hereby given that, on April Membership in this group research Buffalo, NY; Mavenir Systems, Inc., 21, 2020, pursuant to Section 6(a) of the project remains open, and UTIC intends Richardson, TX; Institute for Building National Cooperative Research and to file additional written notifications Technology and Safety (IBTS), Ashburn, Production Act of 1993, 15 U.S.C. 4301 disclosing all changes in membership. VA; CIPHIR–TM, LLC, Albany, OR; et seq. (‘‘the Act’’), Undersea On October 9, 2018, UTIC filed its CommScope Technologies LLC, Technology Innovation Consortium original notification pursuant to Section Hickory, NC; XCOM–LABS, INC., San (‘‘UTIC’’) has filed written notifications 6(a) of the Act. The Department of Diego, CA; Iron Bow Technologies, LLC, simultaneously with the Attorney Justice published a notice in the Federal Herndon, VA; L3 Communications General and the Federal Trade Register pursuant to Section 6(b) of the Systems-East, Camden, NJ; Logistics Commission disclosing changes in its Act on November 2, 2018 (83 FR 55203). Management Institute (LMI), Tysons, membership. The notifications were The last notification was filed with VA; Ansys, Inc., Canonsburg, PA; filed for the purpose of extending the the Department on January 21, 2020. A Hanwha International LLC, Arlington, Act’s provisions limiting the recovery of notice was published in the Federal VA; CesiumAstro, Austin, TX; antitrust plaintiffs to actual damages Register pursuant to Section 6(b) of the Conductive Composites Company, under specified circumstances. Act on February 27, 2020 (85 FR 11397). Heber City, UT; National Instruments Specifically, Altron Inc., Mount Pleasant, SC; Aretec Inc., Providence, Suzanne Morris, Corporation, Austin, TX; Shipcom Chief, Premerger and Division Statistics Unit, Federal Solutions, LLC, Belcamp, MD; RI; BAE Systems Land & Armaments L.P., Minneapolis, MN; BoxBoat Antitrust Division. Qorvo Texas, LLC, Richardson, TX; [FR Doc. 2020–09661 Filed 5–5–20; 8:45 am] Technology Service Corporation (TSC), Technologies LLC, Bethesda, MD; Btech BILLING CODE 4410–11–P Arlington, VA; Huckworthy LLC, Acoustics LLC, Barrington, RI; Cardinal Washington, DC; AVT Simulation, Point Captains Inc., San Diego, CA; Orlando, FL; Consolidated Resource Cesium GS Inc., Philadelphia, PA; DEPARTMENT OF LABOR Imaging LLC (CRI), Grand Rapids, MI; Consolidated Ocean Technologies Inc., Ventura, CA; Coulometrics LLC, Global Technical Systems, Virginia Office of the Secretary Beach, VA; McKean Defense Group, Chattanooga, TN; DeepWater Buoyancy Philadelphia, PA; PlusN, LLC, Elmsford, Inc., Biddeford, ME; Dynexus Agency Information Collection NY; and University of Virginia, Technology Inc., Niwot, CO; GE Activities; Submission for OMB Charlottesville, VA have been added as Research, Niskayuna, NY; Hefring LLC, Review; Comment Request; Student parties to this venture. Boston, MA; iArchimedes Inc., Safety Assessment of Job Corps Also, Expedition Technology, Inc., Arlington, VA; Kenautics Inc., Centers Dulles, VA; Telspan Data, LLC, Encinitas, CA; KULR Technology Concord, CA; and Red Balloon Security, Corporation, Campbell, CA; Maritime ACTION: Notice of availability; request Inc., New York, NY have withdrawn as Arresting Technologies, Tarpon Springs, for comments. parties from this venture. FL; Michigan Tech. University, No other changes have been made in Houghton, MI; Mistral Inc., Bethesda, SUMMARY: The Department of Labor either the membership or planned MD; RJE International Inc., Irvine, CA; (DOL) is submitting this Employment activity of the group research project. SAILDRONE INC., Alameda, CA; Sellers and Training Administration (ETA)- Membership in this group research and Associates LLC (S&A), Chesapeake, sponsored information collection project remains open and NSC intends VA; Torch Technologies Inc., request (ICR) to the Office of to file additional written notifications Huntsville, AL; University of Dayton, Management and Budget (OMB) for disclosing all changes in membership. Dayton, OH; University of Houston review and approval in accordance with On September 24, 2014, NSC filed its Cullen College of Engineering, Houston, the Paperwork Reduction Act of 1995 original notification pursuant to Section TX; University of South Alabama, (PRA). Public comments on the ICR are 6(a) of the Act. The Department of Mobile, AL; and Venator Solutions LLC, invited. Justice published a notice in the Federal San Diego, CA have been added as DATES: The OMB will consider all Register pursuant to Section 6(b) of the parties to this venture. written comments that agency receives Act on November 4, 2014 (72 FR 65424). Also, Adolf Meller Co. dba Meller on or before June 5, 2020. The last notification was filed with Optics, Providence, RI; Analytical ADDRESSES: Written comments and the Department on January 21, 2020. A Graphics Inc., Exton, PA; AVL recommendations for the proposed

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information collection should be sent receive a month-to-month extension modification of an existing product within 30 days of publication of this while they undergo review. currently appearing on the market notice to www.reginfo.gov/public/do/ Agency: DOL–ETA. dominant or the competitive product PRAMain. Find this particular Title of Collection: Student Safety list. information collection by selecting Assessment of Job Corps Centers. Section II identifies the docket ‘‘Currently under 30-day Review—Open OMB Control Number: 1205–0NEW. number(s) associated with each Postal for Public Comments’’ or by using the Affected Public: Individuals or Service request, the title of each Postal search function. Households. Service request, the request’s acceptance Comments are invited on: (1) Whether Total Estimated Number of date, and the authority cited by the the collection of information is Respondents: 11,663. Postal Service for each request. For each necessary for the proper performance of Total Estimated Number of request, the Commission appoints an the functions of the Department, Responses: 139,956. officer of the Commission to represent including whether the information will Total Estimated Annual Time Burden: the interests of the general public in the have practical utility; (2) if the 34,989 hours. proceeding, pursuant to 39 U.S.C. 505 information will be processed and used Total Estimated Annual Other Costs (Public Representative). Section II also in a timely manner; (3) the accuracy of Burden: $0. establishes comment deadline(s) the agency’s estimates of the burden and (Authority: 44 U.S.C. 3507(a)(1)(D)) pertaining to each request. cost of the collection of information, Dated: April 29, 2020. The public portions of the Postal including the validity of the Service’s request(s) can be accessed via methodology and assumptions used; (4) Anthony May, the Commission’s website (http:// ways to enhance the quality, utility and Acting Departmental Clearance Officer. www.prc.gov). Non-public portions of clarity of the information collection; and [FR Doc. 2020–09615 Filed 5–5–20; 8:45 am] the Postal Service’s request(s), if any, (5) ways to minimize the burden of the BILLING CODE 4510–FT–P can be accessed through compliance collection of information on those who with the requirements of 39 CFR are to respond, including the use of 3011.301.1 automated collection techniques or POSTAL REGULATORY COMMISSION other forms of information technology. The Commission invites comments on [Docket Nos. MC2020–125 and CP2020–133] whether the Postal Service’s request(s) FOR FURTHER INFORMATION CONTACT: in the captioned docket(s) are consistent Crystal Rennie by telephone at 202– New Postal Product 693–0456 (this is not a toll-free number) with the policies of title 39. For or by email at DOL_PRA_PUBLIC@ AGENCY: Postal Regulatory Commission. request(s) that the Postal Service states dol.gov. ACTION: Notice. concern market dominant product(s), applicable statutory and regulatory SUPPLEMENTARY INFORMATION: The SUMMARY: The Commission is noticing a requirements include 39 U.S.C. 3622, 39 Department of Labor’s Office of Job recent Postal Service filing for the U.S.C. 3642, 39 CFR part 3030, and 39 Corps (OJC) is seeking approval from the Commission’s consideration concerning CFR part 3040, subpart B. For request(s) Office of Management and Budget a negotiated service agreement. This that the Postal Service states concern (OMB) for a new Student Safety notice informs the public of the filing, competitive product(s), applicable Assessment of Job Corps Centers. The invites public comment, and takes other statutory and regulatory requirements collection of information through this administrative steps. include 39 U.S.C. 3632, 39 U.S.C. 3633, assessment is necessary for program DATES: Comments are due: May 8, 2020. 39 U.S.C. 3642, 39 CFR part 3035, and evaluation to gauge active students’ 39 CFR part 3040, subpart B. Comment sense of safety and security at centers on ADDRESSES: Submit comments electronically via the Commission’s deadline(s) for each request appear in a monthly basis. For additional section II. substantive information about this ICR, Filing Online system at http:// see the related notice published in the www.prc.gov. Those who cannot submit II. Docketed Proceeding(s) comments electronically should contact Federal Register on July 5, 2019 (84 FR 1. Docket No(s).: MC2020–125 and 32221). the person identified in the FOR FURTHER INFORMATION CONTACT section by CP2020–133; Filing Title: USPS Request This information collection is subject to Add Priority Mail & First-Class to the PRA. A Federal agency generally telephone for advice on filing alternatives. Package Service Contract 145 to cannot conduct or sponsor a collection Competitive Product List and Notice of of information, and the public is FOR FURTHER INFORMATION CONTACT: Filing Materials Under Seal; Filing generally not required to respond to an David A. Trissell, General Counsel, at Acceptance Date: April 30, 2020; Filing information collection, unless the OMB 202–789–6820. Authority: 39 U.S.C. 3642, 39 CFR approves it and displays a currently SUPPLEMENTARY INFORMATION: 3040.130 et seq., and 39 CFR 3035.105; valid OMB Control Number. In addition, Table of Contents Public Representative: Christopher C. notwithstanding any other provisions of Mohr; Comments Due: May 8, 2020. law, no person shall generally be subject I. Introduction to penalty for failing to comply with a II. Docketed Proceeding(s) This Notice will be published in the collection of information that does not Federal Register. I. Introduction display a valid OMB Control Number. Erica A. Barker, See 5 CFR 1320.5(a) and 1320.6. The Commission gives notice that the Secretary. DOL seeks PRA authorization for this Postal Service filed request(s) for the [FR Doc. 2020–09680 Filed 5–5–20; 8:45 am] information collection for three (3) Commission to consider matters related BILLING CODE P years. OMB authorization for an ICR to negotiated service agreement(s). The cannot be for more than three (3) years request(s) may propose the addition or 1 See Docket No. RM2018–3, Order Adopting without renewal. The DOL notes that removal of a negotiated service Final Rules Relating to Non-Public Information, information collection requirements agreement from the market dominant or June 27, 2018, Attachment A at 19–22 (Order No. submitted to the OMB for existing ICRs the competitive product list, or the 4679).

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SECURITIES AND EXCHANGE Exchange has prepared summaries, set management functionality would allow COMMISSION forth in sections A, B, and C below, of a Member to manage its risk more the most significant aspects of such comprehensively, instead of relying on [Release No. 34–88783; File No. SR– statements. the more limited port level functionality CboeEDGX–2020–017] offered today. Further, the proposed risk A. Self-Regulatory Organization’s settings would be based on a notional Self-Regulatory Organizations; Cboe Statement of the Purpose of, and execution value, while the controls EDGX Exchange, Inc.; Notice of Filing Statutory Basis for, the Proposed Rule noted in paragraph (h) of Interpretation and Immediate Effectiveness of a Change Proposed Rule Change To Provide and Policy .03 are applied based on a Members Certain Optional Risk 1. Purpose combination of outstanding orders on Settings Under Proposed The purpose of the proposed rule the Exchange’s book and notional Interpretation and Policy .03 of Rule change is to provide Members 5 the execution value. The Exchange notes 11.10 option to utilize certain risk settings that the current gross and net notional under proposed Interpretation and controls noted in paragraph (h) of April 30, 2020. Policy .03 of Rule 11.10.6 In order to Interpretation and Policy .03 will Pursuant to Section 19(b)(1) of the help Members manage their risk, the continue to be available in addition to Securities Exchange Act of 1934 (the Exchange proposes to offer optional risk the proposed risk settings. ‘‘Act’’),1 and Rule 19b–4 thereunder,2 settings that would authorize the Paragraph (c) of proposed notice is hereby given that on April 23, Exchange to take automated action if a Interpretation and Policy .03 of Rule 2020, Cboe EDGX Exchange, Inc. (the 11.10 provides that a Member that does designated limit for a Member is 8 ‘‘Exchange’’) filed with the Securities breached. Such risk settings would not self-clear may allocate and revoke and Exchange Commission (the provide Members with enhanced the responsibility of establishing and ‘‘Commission’’) the proposed rule abilities to manage their risk with adjusting the risk settings identified in change as described in Items I and II respect to orders on the Exchange. proposed paragraph (a) to a Clearing below, which Items have been prepared Paragraph (a) of proposed Interpretation Member that clears transactions on by the Exchange. The Exchange filed the and Policy .03 of Rule 11.10 sets forth behalf of the Member, if designated in proposal as a ‘‘non-controversial’’ the specific risk controls the Exchange a manner prescribed by the Exchange. proposed rule change pursuant to proposes to offer. Specifically, the The Exchange proposes to harmonize Section 19(b)(3)(A)(iii) of the Act 3 and Exchange proposes to offer two credit Exchange Rule 11.13(a) with BZX and Rule 19b–4(f)(6) thereunder.4 The risk settings as follows: Cboe BYX Exchange, Inc. (‘‘BYX’’) Rules Commission is publishing this notice to • The ‘‘Gross Credit Risk Limit’’, 11.15(a). Specifically, in proposed Rule solicit comments on the proposed rule which refers to a pre-established 11.13(a), the Exchange proposes to (i) 9 change from interested persons. maximum daily dollar amount for define the term ‘‘Clearing Member’’; purchases and sales across all symbols, (ii) memorialize in its rules the process I. Self-Regulatory Organization’s where both purchases and sales are by which a Clearing Member shall Statement of the Terms of the Substance counted as positive values. For purposes affirm its responsibility for clearing any of the Proposed Rule Change of calculating the Gross Credit Risk and all trades executed by the Member Cboe EDGX Exchange, Inc. (‘‘EDGX’’ Limit, only executed orders are designating it as its Clearing Firm; and or the ‘‘Exchange’’) proposes to provide included; and (iii) memorialize the fact that the rules Members certain optional risk settings • The ‘‘Net Credit Risk Limit’’, which of a Qualified Clearing Agency shall under proposed Interpretation and refers to a pre-established maximum govern with respect to the clearance and Policy .03 of Rule 11.10. The text of the daily dollar amount for purchases and settlement of any transactions executed proposed rule change is provided in sales across all symbols, where by the Member on the Exchange. While Exhibit 5. purchases are counted as positive values the foregoing proposed changes to Rule The text of the proposed rule change and sales are counted as negative 11.13(a) were not previously is also available on the Exchange’s values. For purposes of calculating the memorialized in Exchange Rules, they website (http://markets.cboe.com/us/ Net Credit Risk Limit, only executed were contemplated in Exhibit F of the options/regulation/rule_filings/edgx/), orders are included. Exchange’s original Form 1 at the Exchange’s Office of the The Gross Credit and Net Credit risk application.10 As such, the proposed Secretary, and at the Commission’s settings are similar to credit controls changes to Rule 11.13(a) involve no Public Reference Room. measuring both gross and net exposure substantive changes. provided for in paragraph (h) of By way of background, Exchange Rule II. Self-Regulatory Organization’s Interpretation and Policy .01 of Rule 11.13(a) requires that all transactions Statement of the Purpose of, and 11.10, but with certain notable passing through the facilities of the Statutory Basis for, the Proposed Rule differences. Importantly, the proposed Change risk settings would be applied at a trading and billing purposes. Each logical port established is specific to a Member or non-Member In its filing with the Commission, the Market Participant Identifier (‘‘MPID’’) and grants that Member or non-Member the ability Exchange included statements level, while the controls noted in to accomplish a specific function, such as order concerning the purpose of and basis for paragraph (h) of Interpretation and entry, order cancellation, or data receipt. the proposed rule change and discussed Policy .01 are applied at the logical port 8 As discussed below, if a Member revokes the 7 responsibility of establishing and adjusting the risk any comments it received on the level. Therefore, the proposed risk settings identified in proposed paragraph (a), the proposed rule change. The text of these settings applied by the Member would be statements may be examined at the 5 See Exchange Rule 1.5(n). applicable. places specified in Item IV below. The 6 The proposed rule changes are substantially 9 As proposed, the term ‘‘Clearing Member’’ refers similar to a recent rule amendment by Cboe BZX to a Member that is a member of a Qualified Exchange, Inc. (‘‘BZX’’). See Securities Exchange Clearing Agency and clears transactions on behalf 1 15 U.S.C. 78s(b)(1). Act No. 88599 (April 8, 2020) 85 FR 20793 (April of another Member. See proposed Rule 11.13(a). 2 17 CFR 240.19b–4. 14, 2020) (the ‘‘BZX Approval’’). 10 Specifically, see item 3 entitled ‘‘Clearing 3 15 U.S.C. 78s(b)(3)(A)(iii). 7 A logical port represents a port established by Letter of Guarantee’’ included in Exhibit F of the 4 17 CFR 240.19b–4(f)(6). the Exchange within the Exchange’s System for Exchange’s original Form 1 application.

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Exchange shall be cleared and settled and ability to establish and adjust such ninety percent of the designated risk through a Qualified Clearing Agency risk settings to its Clearing Member limit. Both the Member and Clearing using a continuous net settlement unless and until such responsibility is Member 14 would have the option to system.11 As reflected in the proposed revoked by the Member, as discussed in enable the alerts via the risk changes to Rule 11.13(a) above, this further detail below. Because the management tool on the web portal and requirement may be satisfied by direct Member is responsible for its own designate email recipients of the participation, use of direct clearing trading activity, the Exchange will not notification.15 The proposed alert services, or by entry into a provide a Clearing Member system is meant to warn a Member and corresponding clearing arrangement authorization to establish and adjust Clearing Member of the Member’s with another Member that clears risk settings on behalf of a Member trading activity, and will have no through a Qualified Clearing Agency without first receiving consent from the impact on the Member’s order and trade (i.e., a Clearing Member). If a Member Member. The Exchange would consider activity if a warning percentage is clears transactions through another a Member to have provided such breached. Proposed paragraph (e) of Member that is a Clearing Member, such consent if it allocates the responsibility Interpretation and Policy .03 of Rule Clearing Member shall affirm to the to establish and adjust risk settings to its 11.10 would authorize the Exchange to Exchange in writing, through letter of Clearing Member via the risk automatically block new orders authorization, letter of guarantee or management tool available on the web submitted and cancel all open orders in other agreement acceptable to the portal. By allocating such the event that a risk setting is breached. Exchange, its agreement to assume responsibilities to its Clearing Member, The Exchange will continue to block responsibility for clearing and settling the Member consents to the Exchange new orders submitted until the Member any and all trades executed by the taking action, as set forth in proposed or Clearing Member, if allocated such Member designating it as its clearing paragraph (d) of Interpretation and responsibility pursuant to paragraph (c) firm.12 Thus, while not all Members are Policy .03, with respect to the Member’s of proposed Interpretation and Policy Clearing Members, all Members are trading activity. Specifically, if the risk .03, adjusts the risk settings to a higher required to either clear their own setting(s) established by the Clearing threshold. The proposed functionality is transactions or to have in place a Member are breached, the Member designed to assist Members and Clearing relationship with a Clearing Member consents that the Exchange will Members in the management of, and that has agreed to clear transactions on automatically block new orders risk control over, their credit risk. their behalf in order to conduct business submitted and cancel open orders until Further, the proposed functionality on the Exchange. Therefore, the Clearing such time that the applicable risk setting would allow the Member to seamlessly Member that guarantees the Member’s is adjusted to a higher limit by the avoid unintended executions that transactions on the Exchange has a Clearing Member. A Member may also exceed their stated risk tolerance. financial interest in the risk settings revoke responsibility allocated to its The Exchange does not guarantee that utilized within the System 13 by the Clearing Member pursuant to this the proposed risk settings described in Member. paragraph at any time via the risk proposed Interpretation and Policy .03, Paragraph (c) is proposed by the management tool available on the web are sufficiently comprehensive to meet Exchange in order to offer Clearing portal. all of a Member’s risk management Members an opportunity to manage Paragraph (b) of proposed needs. Pursuant to Rule 15c3–5 under their risk of clearing on behalf of other Interpretation and Policy .03 of Rule the Act,16 a broker-dealer with market Members, if authorized to do so by the 11.10 provides that either a Member or access must perform appropriate due Member trading on the Exchange. its Clearing Member, if allocated such diligence to assure that controls are Specifically, the Exchange believes such responsibility pursuant to paragraph (c) reasonably designed to be effective, and functionality would help Clearing of the proposed Interpretation and otherwise consistent with the rule.17 Members to better monitor and manage Policy, may establish and adjust limits Use of the Exchange’s risk settings the potential risks that they assume for the risk settings provided in included in proposed Interpretation and when clearing for Members of the proposed paragraph (a) of Interpretation Policy .03 will not automatically Exchange. A Member may allocate or and Policy .03. A Member or Clearing constitute compliance with Exchange or revoke the responsibility of establishing Member may establish and adjust limits federal rules and responsibility for and adjusting the risk settings identified for the risk settings through the compliance with all Exchange and SEC in proposed paragraph (a) to its Clearing Exchange’s risk management tool rules remains with the Member. Member via the risk management tool available on the web portal. The risk Lastly, as the Exchange currently has available on the web portal at any time. management web portal page will also the authority to share any of a Member’s By allocating such responsibility, a provide a view of all applicable limits risk settings specified in Interpretation Member would thereby cede all control for each Member, which will be made and Policy .01 of Rule 11.10 under available to the Member and its Clearing Exchange Rule 11.13(f) with the 11 The term ‘‘Qualified Clearing Agency’’ means Member, as discussed in further detail Clearing Member that clears a clearing agency registered with the Commission below. transactions on behalf of the Member, pursuant to Section 17A of the Act that is deemed Proposed paragraph (d) of qualified by the Exchange. See Exchange Rule 1.5(w). The rules of any such clearing agency shall Interpretation and Policy .03 of Rule 14 A Clearing Member would have the ability to govern with the respect to the clearance and 11.10 would provide optional alerts to enable alerts regardless of whether it was allocated settlement of any transactions executed by the signal when a Member is approaching responsibilities pursuant to proposed paragraph (c). 15 Member on the Exchange. its designated limit. If enabled, the The Member and Clearing Member may input 12 A Member can designate one Clearing Member any email address for which an alert will be sent per Market Participant Identifier (‘‘MPID’’) alerts would generate when the Member via the risk management tool on the web portal. associated with the Member. breaches certain percentage thresholds 16 17 CFR 240.15c3–5. 13 System is defined as ‘‘the electronic of its designated risk limit, as 17 See Division of Trading and Markets, communications and trading facility designated by determined by the Exchange. Based on Responses to Frequently Asked Questions the Board through which securities orders of current industry standards, the Concerning Risk Management Controls for Brokers Members are consolidated for ranking, execution or Dealers with Market Access, available at https:// and, when applicable, routing away.’’ See Exchange Exchange anticipates initially setting www.sec.gov/divisions/marketreg/faq-15c-5-risk- Rule 1.5(cc). these thresholds at fifty, seventy, or management-controls-bd.htm.

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the Exchange also seeks such authority Members, and ensures that Clearing Further, the Exchange believes that as it pertains to risk settings specified in Members are receiving information that the proposed rule will foster proposed Interpretation and Policy .03. is up to date and conforms to the cooperation and coordination with Existing Rule 11.13(f) provides the settings active in the System. persons facilitating transactions in Exchange with authority to directly securities because the Exchange will 2. Statutory Basis provide Clearing Members that clear provide alerts when a Member’s trading transactions on behalf of a Member, to The Exchange believes the proposed activity reaches certain thresholds, share any of the Member’s risk settings rule change is consistent with the which will be available to both the set forth under Interpretation and Policy Securities Exchange Act of 1934 (the Member and Clearing Member. As such, .01 to Rule 11.10.18 The purpose of such ‘‘Act’’) and the rules and regulations the Exchange may help Clearing a provision under Rule 11.13(f) was thereunder applicable to the Exchange Members monitor the risk levels of implemented in order to reduce the and, in particular, the requirements of correspondent Members and provide administrative burden on participants Section 6(b) of the Act.19 Specifically, tools for Clearing Members, if allocated on the Exchange, including both the Exchange believes the proposed rule such responsibility, to take action. Clearing Members and Members, and to change is consistent with the Section The proposal will permit Clearing ensure that Clearing Members receive 6(b)(5) 20 requirements that the rules of Members who have a financial interest information that is up to date and an exchange be designed to prevent in the risk settings of Members to better conforms to the settings active in the fraudulent and manipulative acts and monitor and manage the potential risks System. Further, the provision was practices, to promote just and equitable assumed by Clearing Members, thereby implemented because the Exchange principles of trade, to foster cooperation providing Clearing Members with believed such functionality would help and coordination with persons engaged greater control and flexibility over Clearing Members to better monitor and in regulating, clearing, settling, setting their own risk tolerance and manage the potential risks that they processing information with respect to, exposure. To the extent a Clearing assume when clearing for Members of and facilitating transactions in Member might reasonably require a the Exchange. Now, the Exchange also securities, to remove impediments to Member to provide access to its risk proposes to amend paragraph (f) of and perfect the mechanism of a free and settings as a prerequisite to continuing Exchange Rule 11.13 to authorize the open market and a national market to clear trades on the Member’s behalf, Exchange to share any of a Member’s system, and, in general, to protect the Exchange’s proposal to share those risk settings specified in proposed investors and the public interest. risk settings directly reduces the Interpretation and Policy .03 to Rule Specifically, the Exchange believes administrative burden on participants 11.10 with the Clearing Member that the proposed amendment will remove on the Exchange, including both clears transactions on behalf of the impediments to and perfect the Clearing Members and Members. Member and to update the term clearing mechanism of a free and open market Moreover, providing Clearing Members firm to the proposed defined term and a national market system because it with the ability to see the risk settings Clearing Member. The Exchange notes provides additional functionality for a established for Members for which they that the use by a Member of the risk Member to manage its credit risk. In clear will foster efficiencies in the settings offered by the Exchange is addition, the proposed risk settings market and remove impediments to and optional. By using these proposed could provide Clearing Members, who perfect the mechanism of a free and optional risk settings, a Member have assumed certain risks of Members, open market and a national market therefore also opts-in to the Exchange greater control over risk tolerance and system. The proposal also ensures that sharing its designated risk settings with exposure on behalf of their Clearing Members are receiving its Clearing Member. The Exchange correspondent Members, if allocated information that is up to date and believes that its proposal to offer responsibility pursuant to proposed conforms to the settings active in the additional risk settings will allow paragraph (c), while also providing an System. The Exchange believes that the Members to better manage their credit alert system that would help to ensure proposal is consistent with the Act, 21 risk. Further, by allowing Members to that both Members and its Clearing particularly Section 6(b)(5), because it allocate the responsibility for Member are aware of developing issues. will foster cooperation and coordination establishing and adjusting such risk As such, the Exchange believes that the with persons engaged in facilitating settings to its Clearing Member, the proposed risk settings would provide a transactions in securities and more Exchange believes Clearing Members means to address potentially market- generally, will protect investors and the may reduce potential risks that they impacting events, helping to ensure the public interest, by allowing Clearing assume when clearing for Members of proper functioning of the market. Members to better monitor their risk In addition, the Exchange believes the Exchange. The Exchange also exposure and by fostering efficiencies in that the proposed rule change is believes that its proposal to share a the market and removing impediments designed to protect investors and the to and perfect the mechanism of a free Member’s risk settings set forth under public interest because the proposed and open market and a national market proposed Interpretation and Policy .03 functionality is a form of risk mitigation system. to Rule 11.10 directly with Clearing that will aid Members and Clearing Finally, the Exchange believes that Members reduces the administrative Members in minimizing their financial the proposed rule change does not burden on participants on the Exchange, exposure and reduce the potential for unfairly discriminate among the including both Clearing Members and disruptive, market-wide events. In turn, Exchange’s Members because use of the the introduction of such risk risk settings is optional and are not a 18 By using the optional risk settings provided in Interpretation and Policy .01, a Member opts-in to management functionality could prerequisite for participation on the the Exchange sharing its risk settings with its enhance the integrity of trading on the Exchange. The proposed risk settings Clearing Member. Any Member that does not wish securities markets and help to assure the are completely voluntary and, as they to share such risk settings with its Clearing Member stability of the financial system. relate solely to optional risk can avoid sharing such settings by becoming a Clearing Member. See Securities Exchange Act management functionality, no Member Release No. 80607 (May 5, 2017) 82 FR 22027 (May 19 15 U.S.C. 78f(b). 11, 2017) (SR–BatsEDGX–2017–16). 20 15 U.S.C. 78f(b)(5). 21 15 U.S.C. 78f(b)(5).

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is required or under any regulatory 19(b)(3)(A) of the Act 23 and Rule 19b– Electronic Comments obligation to utilize them. 4(f)(6) thereunder.24 • Use the Commission’s internet The proposed amendments to Rule A proposed rule change filed comment form (http://www.sec.gov/ 11.13(a) will harmonize Exchange Rules pursuant to Rule 19b–4(f)(6) under the rules/sro.shtml); or with BZX and BYX Rules 11.15(a). Act 25 normally does not become • While the proposed changes to Rule operative for 30 days after the date of its Send an email to rule-comments@ 11.13(a) were not previously filing. However, Rule 19b–4(f)(6)(iii) 26 sec.gov. Please include File Number SR– memorialized in Exchange Rules, they permits the Commission to designate a CboeEDGX–2020–017 on the subject were contemplated in Exhibit F of the shorter time if such action is consistent line. Exchange’s original Form 1 application. with the protection of investors and the Paper Comments As such, the proposed changes to Rule public interest. The Exchange has asked 11.13(a) involve no substantive changes. the Commission to waive the 30-day • Send paper comments in triplicate operative delay so that the Exchange to Secretary, Securities and Exchange B. Self-Regulatory Organization’s may implement the proposed risk Commission, 100 F Street NE, Statement on Burden on Competition controls on the anticipated launch date Washington, DC 20549–1090. of April 24, 2020. The Exchange states The Exchange does not believe that All submissions should refer to File that waiver of the operative delay would the proposed rule change will impose Number SR–CboeEDGX–2020–017. This allow Members to immediately utilize any burden on competition that is not file number should be included on the necessary or appropriate in furtherance the proposed functionality to manage subject line if email is used. To help the of the purposes of the Act. In fact, the their risk. For this reason, the Commission process and review your Exchange believes that the proposal may Commission believes that waiver of the comments more efficiently, please use have a positive effect on competition 30-day operative delay is consistent only one method. The Commission will because it would allow the Exchange to with the protection of investors and the post all comments on the Commission’s offer risk management functionality that public interest. Therefore, the internet website (http://www.sec.gov/ is comparable to functionality that has Commission hereby waives the rules/sro.shtml). Copies of the been adopted by other national operative delay and designates the submission, all subsequent 27 securities exchanges.22 Further, by proposal as operative upon filing. amendments, all written statements providing Members and their Clearing At any time within 60 days of the with respect to the proposed rule Members additional means to monitor filing of the proposed rule change, the change that are filed with the and control risk, the proposed rule may Commission summarily may Commission, and all written increase confidence in the proper temporarily suspend such rule change if communications relating to the functioning of the markets and it appears to the Commission that such proposed rule change between the contribute to additional competition action is necessary or appropriate in the Commission and any person, other than among trading venues and broker- public interest, for the protection of those that may be withheld from the dealers. Rather than impede investors, or otherwise in furtherance of public in accordance with the competition, the proposal is designed to the purposes of the Act. If the provisions of 5 U.S.C. 552, will be facilitate more robust risk management Commission takes such action, the available for website viewing and by Members and Clearing Members, Commission shall institute proceedings printing in the Commission’s Public which, in turn, could enhance the to determine whether the proposed rule Reference Room, 100 F Street NE, integrity of trading on the securities change should be approved or Washington, DC 20549 on official markets and help to assure the stability disapproved. business days between the hours of of the financial system. 10:00 a.m. and 3:00 p.m. Copies of such IV. Solicitation of Comments filing also will be available for C. Self-Regulatory Organization’s inspection and copying at the principal Interested persons are invited to Statement on Comments on the office of the Exchange. All comments submit written data, views, and Proposed Rule Change Received From received will be posted without change. Members, Participants, or Others arguments concerning the foregoing, Persons submitting comments are including whether the proposed rule cautioned that we do not redact or edit The Exchange neither solicited nor change is consistent with the Act. personal identifying information from received comments on the proposed Comments may be submitted by any of comment submissions. You should rule change. the following methods: submit only information that you wish III. Date of Effectiveness of the to make available publicly. All 23 15 U.S.C. 78s(b)(3)(A). submissions should refer to File Proposed Rule Change and Timing for 24 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– Number SR–CboeEDGX–2020–017, and Commission Action 4(f)(6)(iii) requires a self-regulatory organization to give the Commission written notice of its intent to should be submitted on or before May Because the foregoing proposed rule file the proposed rule change, along with a brief 27, 2020. change does not: (i) Significantly affect description and text of the proposed rule change, For the Commission, by the Division of the protection of investors or the public at least five business days prior to the date of filing of the proposed rule change, or such shorter time Trading and Markets, pursuant to delegated interest; (ii) impose any significant as designated by the Commission. The Exchange authority.28 burden on competition; and (iii) become has satisfied this requirement. J. Matthew DeLesDernier, operative for 30 days from the date on 25 17 CFR 240.19b–4(f)(6). which it was filed, or such shorter time 26 17 CFR 240.19b–4(f)(6)(iii). Assistant Secretary. as the Commission may designate, it has 27 For purposes only of waiving the 30-day [FR Doc. 2020–09639 Filed 5–5–20; 8:45 am] operative delay, the Commission also has become effective pursuant to Section BILLING CODE 8011–01–P considered the proposed rule’s impact on efficiency, competition, and capital formation. See 22 Supra note 6. 15 U.S.C. 78c(f). 28 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE statements may be examined at the terms for P.M.-settled XSP options are COMMISSION places specified in Item IV below. The the same as the A.M.-settled XSP Exchange has prepared summaries, set options. The contract uses a $100 [Release No. 34–88787; File No. SR– forth in sections A, B, and C below, of CboeEDGX–2020–019] multiplier and the minimum trading the most significant aspects of such increments, strike price intervals, and Self-Regulatory Organizations; Cboe statements. expirations are the same as the A.M.- EDGX Exchange, Inc.; Notice of Filing A. Self-Regulatory Organization’s settled XSP option series. P.M.-settled and Immediate Effectiveness of a Statement of the Purpose of, and XSP options have European-style Proposed Rule Change To Extend the Statutory Basis for, the Proposed Rule exercise. The Exchange also has Pilot Programs in Connection With the Change flexibility to open for trading additional Listing and Trading of P.M.-Settled series in response to customer demand. 1. Purpose Series on Certain Broad-Based Index If the Exchange were to propose Options The proposed rule change extends the another extension of the XSPPM Pilot listing and trading of P.M.-settled series Program or should the Exchange April 30, 2020. on certain broad-based index options on propose to make the XSPPM Pilot Pursuant to Section 19(b)(1) of the a pilot basis.5 Rule 29.11(a)(6) currently Securities Exchange Act of 1934 (the permits the listing and trading of XSP Program permanent, the Exchange ‘‘Act’’),1 and Rule 19b–4 thereunder,2 options with third-Friday-of-the-month would submit a filing proposing such notice is hereby given that on April 24, expiration dates, whose exercise amendments to the XSPPM Pilot 2020, Cboe EDGX Exchange, Inc. (the settlement value will be based on the Program. Further, any positions ‘‘Exchange’’ or ‘‘EDGX Options’’) filed closing index value on the expiration established under the XSPPM Pilot with the Securities and Exchange day (‘‘P.M.-settled’’) on a pilot basis set Program would not be impacted by the Commission (the ‘‘Commission’’) the to expire on May 4, 2020 (the ‘‘XSPPM expiration of the XSPPM Pilot Program. proposed rule change as described in Pilot Program’’). Rule 29.11(j)(3) also For example, if the Exchange lists a Items I and II below, which Items have permits the listing and trading of P.M.- P.M.-settled XSP option that expires been prepared by the Exchange. The settled options on broad-based indexes after the XSPPM Pilot Program expires Exchange filed the proposal as a ‘‘non- with weekly expirations (‘‘Weeklys’’) (and is not extended), then those controversial’’ proposed rule change and end-of-month expirations (‘‘EOMs’’) positions would continue to exist. If the pursuant to Section 19(b)(3)(A)(iii) of on a pilot basis set to expire on May 4, pilot were not extended, then the the Act 3 and Rule 19b–4(f)(6) 2020 (the ‘‘Nonstandard Expirations positions could continue to exist. thereunder.4 The Commission is Pilot Program’’, and together with the However, any further trading in those publishing this notice to solicit XSPPM Pilot Program, the ‘‘Pilot series would be restricted to comments on the proposed rule change Programs’’). The Exchange proposes to transactions where at least one side of from interested persons. extend the Pilot Programs through the trade is a closing transaction. November 2, 2020. I. Self-Regulatory Organization’s As part of the XSPPM Pilot Program, Statement of the Terms of Substance of XSPPM Pilot Program the Exchange submits a pilot report to the Proposed Rule Change Rule 29.11(a)(6) permits the listing the Commission at least two months Cboe EDGX Exchange, Inc. (the and trading, in addition to A.M.-settled prior to the expiration date of the pilot. ‘‘Exchange’’ or ‘‘EDGX Options’’) XSP options, of P.M.-settled XSP This annual report contains an analysis proposes to extend the pilot programs in options with third-Friday-of-the-month of volume, open interest, and trading connection with the listing and trading expiration dates on a pilot basis. The patterns. In proposing to extend the of P.M.-settled series on certain broad- Exchange believes that continuing to XSPPM Pilot Program, the Exchange based index options. The text of the permit the trading of XSP options on a will continue to abide by the reporting proposed rule change is provided in P.M.-settled basis will continue to requirements described in the Notice.7 Exhibit 5. encourage greater trading in XSP Additionally, the Exchange will provide The text of the proposed rule change options. Other than settlement and the Commission with any additional is also available on the Exchange’s closing time on the last trading day data or analyses the Commission website (http://markets.cboe.com/us/ (pursuant to Rule 29.10(a)),6 contract requests because it deems such data or options/regulation/rule_filings/edgx/), analyses necessary to determine at the Exchange’s Office of the 5 The Exchange is authorized to list for trading whether the XSPPM Pilot Program is Secretary, and at the Commission’s options that overlie the Mini-SPX Index (‘‘XSP’’) and the Russell 2000 Index (‘‘RUT’’). See Rule consistent with the Exchange Act. The Public Reference Room. 29.11(a). See also Securities Exchange Act Release Exchange is in the process of making II. Self-Regulatory Organization’s Nos. 84481 (October 24, 2018), 83 FR 54624 public on its website data and analyses (October 30, 2018) (Notice of Filing of a Proposed previously submitted to the Commission Statement of the Purpose of, and Rule Change To Permit the Listing and Trading of Statutory Basis for, the Proposed Rule P.M.-Settled Series on Certain Broad-Based Index under the Pilot Program, and will make Change Options on a Pilot Basis) (SR–CboeEDGX–2018– public any data and analyses it submits 037) (‘‘Notice’’); 85182 (February 22, 2019), 84 FR to the Commission under the Pilot In its filing with the Commission, the 6846 (February 28, 2019) (Notice of Deemed Approval of a Proposed Rule Change To Permit the Program in the future. The Exchange Exchange included statements also notes that its affiliated options concerning the purpose of and basis for Listing and Trading of P.M.-Settled Series on Certain Broad-Based Index Options on a Pilot Basis) exchange, Cboe Exchange, Inc. (‘‘Cboe the proposed rule change and discussed (SR–CboeEDGX–2018–037); and 88054 (January 27, Options’’) currently has pilots that any comments it received on the 2020), 85 FR 5761 (January 31, 2020) (Notice of Filing and Immediate Effectiveness of a Proposed proposed rule change. The text of these effected on the Exchange between the hours of 9:30 Rule Change To Extend the Pilot Programs in a.m. and 4:00 p.m. Eastern time. All other Connection With the Listing and Trading of P.M.- 1 15 U.S.C. 78s(b)(1). Settled Series on Certain Broad-Based Index transactions in index options are effected on the 2 17 CFR 240.19b–4. Options) (SR–CboeEDGX–2020–002). Exchange between the hours of 9:30 a.m. and 4:15 3 15 U.S.C. 78s(b)(3)(A)(iii). 6 Rule 29.10(a) permits transactions in P.M.- p.m. Eastern time. 4 17 CFR 240.19b–4(f)(6). settled XSP options on their last trading day to be 7 See supra note 5.

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permit P.M.-settled third Friday-of-the- Expirations Pilot Program expires (and contracts with nonstandard expirations. month XSP options.8 is not extended), then those positions All terms regarding the trading of the would continue to exist. However, any Pilot Products shall continue to operate Nonstandard Expirations Pilot Program further trading in those series would be as described in the XSPPM and Rule 29.11(j)(1) permits the listing restricted to transactions where at least Nonstandard Expirations Notice.11 The and trading, on a pilot basis, of P.M.- one side of the trade is a closing Exchange merely proposes herein to settled options on broad-based indexes transaction. extend the terms of the Pilot Programs with nonstandard expiration dates and As part of the Nonstandard to November 2, 2020. is currently set to expire on January 28, Expirations Pilot Program, the Exchange Furthermore, the Exchange has not 2020. The Nonstandard Expirations submits a pilot report to the experienced any adverse market effects Pilot Program permits both Weeklys and Commission at least two months prior to with respect to the Programs. The EOMs as discussed below. Contract the expiration date of the pilot. This Exchange will continue to monitor for terms for the Weekly and EOM annual report contains an analysis of any such disruptions or the expirations are similar to those of the volume, open interest, and trading development of any factors that would A.M.-settled broad-based index options, patterns. In proposing to extend the cause such disruptions. The Exchange except that the Weekly and EOM Nonstandard Expirations Pilot Program, represents it continues to have an expirations are P.M.-settled. the Exchange will continue to abide by adequate surveillance program in place In particular, Rule 29.11(j)(1) permits the reporting requirements described in for index options and that the proposed the Exchange to open for trading the Notice.9 Additionally, the Exchange extension will not have an adverse Weeklys on any broad-based index will provide the Commission with any impact on capacity. eligible for standard options trading to additional data or analyses the 2. Statutory Basis expire on any Monday, Wednesday, or Commission requests because it deems Friday (other than the third Friday-of- such data or analyses necessary to The Exchange believes the proposed the-month or days that coincide with an determine whether the Nonstandard rule change is consistent with the EOM). Weeklys are subject to all Expirations Pilot Program is consistent Securities Exchange Act of 1934 (the provisions of Rule 29.11 and are treated with the Exchange Act. The Exchange is ‘‘Act’’) and the rules and regulations the same as options on the same in the process of making public on its thereunder applicable to the Exchange underlying index that expire on the website data and analyses previously and, in particular, the requirements of third Friday of the expiration month. submitted to the Commission under the Section 6(b) of the Act.12 Specifically, However, under the Nonstandard Pilot Program, and will make public any the Exchange believes the proposed rule Expirations Pilot Program, Weeklys are data and analyses it submits to the change is consistent with the Section P.M.-settled, and new Weekly series Commission under the Pilot Program in 6(b)(5) 13 requirements that the rules of may be added up to and including on the future. The Exchange notes that an exchange be designed to prevent the expiration date for an expiring other exchanges, including its affiliated fraudulent and manipulative acts and Weekly. exchange, Cboe Options, currently have practices, to promote just and equitable Rule 29.11(a)(2) permits the Exchange pilots that have weekly and end-of- principles of trade, to foster cooperation to open for trading EOMs on any broad- month expirations.10 and coordination with persons engaged based index eligible for standard in regulating, clearing, settling, options trading to expire on the last Additional Information processing information with respect to, trading day of the month. EOMs are The Exchange believes there is and facilitating transactions in subject to all provisions of Rule 29.11 sufficient investor interest and demand securities, to remove impediments to and treated the same as options on the in the XSPPM and Nonstandard and perfect the mechanism of a free and same underlying index that expire on Expirations Pilot Programs to warrant open market and a national market the third Friday of the expiration their extension. The Exchange believes system, and, in general, to protect month. However, under the that the Programs have provided investors and the public interest. Nonstandard Expirations Pilot Program, investors with additional means of In particular, the Exchange believes EOMs are P.M.-settled, and new series managing their risk exposures and that the proposed extension of the Pilot of EOMs may be added up to and carrying out their investment objectives. Programs will continue to provide including on the expiration date for an The proposed extensions will continue greater opportunities for investors. The expiring EOM. to offer investors the benefit of added Exchange believes that the Pilot As stated above, this proposed rule transparency, price discovery, and Programs have been successful to date. change extends the Nonstandard stability, as well as the continued The proposed rule change allows for an Expirations Pilot Program for broad- expanded trading opportunities in extension of the Program for the benefit based index options on a pilot basis, for connection with different expiration of market participants. The Exchange a period of six months. If the Exchange times. The Exchange proposes the believes that there is demand for the were to propose an additional extension extension of the Pilot Programs in order expirations offered under the Program of the Nonstandard Expirations Pilot to continue to give the Commission and believes that P.M.-settled XSP, Program or should the Exchange more time to consider the impact of the Weekly Expirations and EOMs will propose to make it permanent, the Pilot Programs. To this point, the continue to provide the investing public Exchange would submit additional Exchange believes that the Pilot and other market participants with the filings proposing such amendments. Programs have been well-received by its opportunities to trade desirable Further, any positions established under Members and the investing public, and products and to better manage their risk the Nonstandard Expirations Pilot the Exchange would like to continue to exposure. The proposed extension will Program would not be impacted by the provide investors with the ability to also provide the Commission further expiration of the pilot. For example, if trade P.M.-settled XSP options and opportunity to observe such trading of the Exchange lists a Weekly or EOM that expires after the Nonstandard 9 See supra note 5. 11 See supra note 5. 10 See Cboe Options Rule 4.13(e); and Phlx Rule 12 15 U.S.C. 78f(b). 8 See Cboe Options Rule 4.13.13. 1101A(b)(5). 13 15 U.S.C. 78f(b)(5).

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the Pilot Products. Further, the C. Self-Regulatory Organization’s it appears to the Commission that such Exchange has not encountered any Statement on Comments on the action is necessary or appropriate in the problems with the Programs; it has not Proposed Rule Change Received From public interest, for the protection of experienced any adverse effects or Members, Participants, or Others investors, or otherwise in furtherance of meaningful regulatory or capacity The Exchange neither solicited nor the purposes of the Act. If the concerns from the operation of the Pilot received comments on the proposed Commission takes such action, the Programs. Also, the Exchange believes rule change. Commission shall institute proceedings that such trading pursuant to the to determine whether the proposed rule XSPPM Pilot Program has not, and will III. Date of Effectiveness of the change should be approved or not, adversely impact fair and orderly Proposed Rule Change and Timing for disapproved. Commission Action markets on Expiration Fridays for the IV. Solicitation of Comments underlying stocks comprising the S&P Because the proposed rule change 500 index. does not: (i) Significantly affect the Interested persons are invited to submit written data, views, and protection of investors or the public B. Self-Regulatory Organization’s arguments concerning the foregoing, interest; (ii) impose any significant including whether the proposed rule Statement on Burden on Competition burden on competition; and (iii) become change is consistent with the Act. operative for 30 days from the date on The Exchange does not believe that Comments may be submitted by any of which it was filed, or such shorter time the proposed rule change will impose the following methods: any burden on competition that is not as the Commission may designate, it has necessary or appropriate in furtherance become effective pursuant to Section Electronic Comments 14 of the purposes of the Act. Specifically, 19(b)(3)(A) of the Act and • Use the Commission’s internet the Exchange believes that, by extending subparagraph (f)(6) of Rule 19b–4 comment form (http://www.sec.gov/ 15 the expiration of the Pilot Programs, the thereunder. rules/sro.shtml); or proposed rule change will allow for A proposed rule change filed • Send an email to rule-comments@ pursuant to Rule 19b–4(f)(6) under the sec.gov. Please include File Number SR– further analysis of the Program and a 16 determination of how the Program shall Act normally does not become CboeEDGX–2020–019 on the subject operative for 30 days after the date of its line. be structured in the future. In doing so, 17 the proposed rule change will also serve filing. However, Rule 19b–4(f)(6)(iii) permits the Commission to designate a Paper Comments to promote regulatory clarity and • consistency, thereby reducing burdens shorter time if such action is consistent Send paper comments in triplicate with the protection of investors and the to Secretary, Securities and Exchange on the marketplace and facilitating public interest. The Exchange has asked Commission, 100 F Street NE, investor protection. the Commission to waive the 30-day Washington, DC 20549–1090. Specifically, the Exchange does not operative delay so that investors may All submissions should refer to File believe the continuation of the Pilot continue to trade options that are part Number SR–CboeEDGX–2020–019. This Program will impose any unnecessary or of the Pilot Programs on an file number should be included on the inappropriate burden on intramarket uninterrupted basis. The Commission subject line if email is used. To help the competition because it will continue to believes that waiving the 30-day Commission process and review your apply equally to all EDGX Options operative delay is consistent with the comments more efficiently, please use market participants, and the Pilot protection of investors and the public only one method. The Commission will Products will continue to be available to interest as it will allow the Pilot post all comments on the Commission’s all EDGX Options market participants. Programs to continue uninterrupted, internet website (http://www.sec.gov/ The Exchange believes there is thereby avoiding investor confusion that rules/sro.shtml). Copies of the sufficient investor interest and demand could result from a temporary submission, all subsequent in the Pilot Programs to warrant its interruption in the Pilot Programs. amendments, all written statements extension. The Exchange believes that, Accordingly, the Commission hereby with respect to the proposed rule for the period that the Pilot Programs waives the operative delay and change that are filed with the has been in operation, it has provided designates the proposed rule change Commission, and all written investors with desirable products with operative upon filing.18 communications relating to the which to trade. Furthermore, as stated At any time within 60 days of the proposed rule change between the above, the Exchange maintains that it filing of the proposed rule change, the Commission and any person, other than has not experienced any adverse market Commission summarily may those that may be withheld from the effects or regulatory concerns with temporarily suspend such rule change if public in accordance with the respect to the Pilot Programs. The provisions of 5 U.S.C. 552, will be Exchange further does not believe that 14 15 U.S.C. 78s(b)(3)(A). available for website viewing and the proposed extension of the Pilot 15 17 CFR 240.19b–4(f)(6). In addition, Rule19b– printing in the Commission’s Public 4(f)(6)(iii) requires a self-regulatory organization to Programs will impose any burden on give the Commission written notice of its intent to Reference Room, 100 F Street NE, intermarket competition that is not file the proposed rule change, along with a brief Washington, DC 20549 on official necessary or appropriate in furtherance description and text of the proposed rule change, business days between the hours of of the purposes of the Act because it at least five business days prior to the date of filing 10:00 a.m. and 3:00 p.m. Copies of the of the proposed rule change, or such shorter time only applies to trading on EDGX as designated by the Commission. The Exchange filing also will be available for Options. To the extent that the has satisfied this requirement. inspection and copying at the principal continued trading of the Pilot Products 16 17 CFR 240.19b–4(f)(6). office of the Exchange. All comments may make EDGX Options a more 17 17 CFR 240.19b–4(f)(6)(iii). received will be posted without change. attractive marketplace to market 18 For purposes only of waiving the 30-day Persons submitting comments are participants at other exchanges, such operative delay, the Commission also has considered the proposed rule’s impact on cautioned that we do not redact or edit market participants may elect to become efficiency, competition, and capital formation. See personal identifying information from EDGX Options market participants. 15 U.S.C. 78c(f). comment submissions. You should

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submit only information that you wish Exchange Commission, 100 F Street NE, SECURITIES AND EXCHANGE to make available publicly. All Washington, DC 20549–1090. COMMISSION submissions should refer to File All submissions should refer to File No. [Release No. 34–88786; File No. SR–CBOE– Number SR–CboeEDGX–2020–019 and 2020–042] should be submitted on or before May 265–28. This file number should be included on the subject line if email is 27, 2020. Self-Regulatory Organizations; Cboe used. For the Commission, by the Division of Exchange, Inc.; Notice of Filing and Trading and Markets, pursuant to delegated Statements also will be available for Immediate Effectiveness of a Proposed authority.19 website viewing and printing in the Rule Change To Amend Rule 6.9 To J. Matthew DeLesDernier, Commission’s Public Reference Room, Permit In-Kind Transfers of Positions Assistant Secretary. 100 F Street NE, Room 1503, Off of the Exchange in Connection [FR Doc. 2020–09634 Filed 5–5–20; 8:45 am] Washington, DC 20549, on official With Unit Investment Trusts (‘‘UITs’’) BILLING CODE 8011–01–P business days between the hours of 10:00 a.m. and 3:00 p.m. For up-to-date April 30, 2020. Pursuant to Section 19(b)(1) of the information on the availability of the Securities Exchange Act of 1934 (the SECURITIES AND EXCHANGE Public Reference Room, please refer to ‘‘Act’’),1 and Rule 19b–4 thereunder,2 COMMISSION https://www.sec.gov/fast-answers/ notice is hereby given that on April 28, [Release Nos. 33–10780; 34–88790; File No. answerspublicdocshtm.html or call 2020, Cboe Exchange, Inc. (the 265–28] (202) 551–5450. ‘‘Exchange’’ or ‘‘Cboe Options’’) filed All statements received will be posted with the Securities and Exchange Investor Advisory Committee Meeting without change. Persons submitting Commission (the ‘‘Commission’’) the AGENCY: Securities and Exchange comments are cautioned that we do not proposed rule change as described in Commission. redact or edit personal identifying Items I and II below, which Items have been prepared by the Exchange. The ACTION: Notice of public meeting of information from comment submissions. Exchange filed the proposal as a ‘‘non- Securities and Exchange Commission You should submit only information controversial’’ proposed rule change Investor Advisory Committee. that you wish to make available publicly. pursuant to Section 19(b)(3)(A)(iii) of 3 SUMMARY: The Securities and Exchange the Act and Rule 19b–4(f)(6) Commission Investor Advisory FOR FURTHER INFORMATION CONTACT: thereunder.4 The Commission is Committee, established pursuant to Marc Oorloff Sharma, Chief Counsel, publishing this notice to solicit Section 911 of the Dodd-Frank Wall Office of the Investor Advocate, at (202) comments on the proposed rule change Street Reform and Consumer Protection 551–3302, Securities and Exchange from interested persons. Act of 2010, is providing notice that it Commission, 100 F Street NE, I. Self-Regulatory Organization’s will hold a public meeting. The public Washington, DC 20549. Statement of the Terms of Substance of is invited to submit written statements SUPPLEMENTARY INFORMATION: The the Proposed Rule Change to the Committee. meeting will be open to the public, Cboe Exchange, Inc. (the ‘‘Exchange’’ DATES: The meeting will be held on except during that portion of the or ‘‘Cboe Options’’) proposes to amend Thursday, May 21, 2020 from 10:00 a.m. meeting reserved for an administrative Rule 6.9 to permit in-kind transfers of until 4:00 p.m. (ET). Written statements work session during lunch. Persons positions off of the Exchange in should be received on or before May 21, needing special accommodations to take connection with unit investment trusts 2020. part because of a disability should (‘‘UITs’’). The text of the proposed rule ADDRESSES: The meeting will be notify the contact person listed in the change is provided below. conducted by remote means and/or at section above entitled FOR FURTHER (additions are italicized; deletions are the Commission’s headquarters, 100 F INFORMATION CONTACT. St NE, Washington, DC 20549. The [bracketed]) meeting will be webcast on the The agenda for the meeting includes: * * * * * Commission’s website at www.sec.gov. Welcome remarks; approval of previous Written statements may be submitted by meeting minutes, discussion of Rules of Cboe Exchange, Inc. any of the following methods. To help subcommittee recommendations, panel * * * * * us process and review your statement discussion regarding index funds, a Rule 6.9. In-Kind Exchange of Options more efficiently, please use only one non-public administrative session, Positions and ETF Shares and UIT Units method. At this time, electronic panel discussion regarding credit rating Notwithstanding the prohibition set forth statements are preferred. agencies, and subcommittee reports. in Rule 5.12, positions in options listed on Electronic Statements Dated: May 1, 2020. the Exchange may be transferred off the Exchange by a Trading Permit Holder in D Use the Commission’s internet Vanessa A. Countryman, connection with transactions (a) to purchase submission form (http://www.sec.gov/ Secretary. or redeem creation units of ETF shares rules/other.shtml); or [FR Doc. 2020–09662 Filed 5–5–20; 8:45 am] between an authorized participant and the D Send an email message to rules- issuer of such ETF shares or (b) to create or BILLING CODE 8011–01–P redeem units of a unit investment trust [email protected]. Please include File (‘‘UIT’’) between a broker-dealer and the No. 265–28 on the subject line; or issuer of such UIT units, which transfers Paper Statements would occur at the price(s) used to calculate

D Send paper statements to Vanessa A. 1 15 U.S.C. 78s(b)(1). Countryman, Secretary, Securities and 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 19 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(6).

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the net asset value of such ETF shares or UIT Specifically, Rule 6.9 permits positions unit of specified securities.8 A UIT’s units, respectively. For purposes of this Rule: in options listed on the Exchange to be investment portfolio is relatively fixed, (a) An ‘‘authorized participant’’ is an entity transferred off the Exchange by a and, unlike an ETF, a UIT has a fixed that has a written agreement with the issuer life (a termination date for the trust is of ETF shares or one of its service providers, Trading Permit Holder in connection which allows the authorized participant to with transactions to purchase or redeem established when the trust is created). place orders for the purchase and redemption ‘‘creation units’’ of ETF shares between Similar to other types of investment of creation units (i.e., specified numbers of an authorized participant and the issuer companies (including ETFs), UITs ETF shares); [and] of such ETF shares. Such transfers invest their assets in accordance with (b) an ‘‘issuer of ETF shares’’ is an entity pursuant to Rule 6.9 occur between two their investment objectives and registered with the Commission as an open- different parties, off the Exchange, and investment strategies, and UIT units end management investment company under are considered position transfers, as represent interests in a UIT’s underlying the Investment Company Act of 1940[.]; and 6 assets. Like ETFs, UITs do not sell or (c) an ‘‘issuer of UIT units’’ is a trust opposed to transactions. Each of these registered with the Commission as a unit transfers occurs at the price used to redeem individual shares, but instead, investment trust under the Investment calculate the net asset value (‘‘NAV’’) of through the creation and redemption Company Act of 1940. such ETF shares. Rule 6.9 also currently process, a UIT’s sponsor (a broker- * * * * * defines an ‘‘authorized participant’’ as dealer) may purchase and redeem shares The text of the proposed rule change an entity that has a written agreement directly from the UIT’s trustee in is also available on the Exchange’s with the issuer of ETF shares or one of aggregations known as ‘‘units.’’ A website (http://www.cboe.com/ its service providers, which allows the broker-dealer purchases a unit of UIT AboutCBOE/ authorized participant to place orders shares from the UIT’s trustee by CBOELegalRegulatoryHome.aspx), at for the purchase and redemption of depositing a basket of securities and/or the Exchange’s Office of the Secretary, creation units (i.e., specified numbers of other assets identified by the UIT. These and at the Commission’s Public ETF shares), and an ‘‘issuer of ETF transactions are largely effected by ‘‘in- Reference Room. shares’’ as an entity registered with the kind’’ transfers, or the exchange of Commission as an open-end securities, non-cash assets, and/or other II. Self-Regulatory Organization’s management investment company non-cash positions. The basket Statement of the Purpose of, and under the 1940 Act. The ability to effect deposited by the broker-dealer is Statutory Basis for, the Proposed Rule in-kind transfers is a key component of generally expected to be representative Change the operational structure of an ETF and of the UIT’s units and will be equal in In its filing with the Commission, the the exception under Rule 6.9 allows value to the aggregate NAV of the shares 9 Exchange included statements options-based ETFs to be more tax- of the UIT comprising a unit. The UIT concerning the purpose of and basis for efficient investment vehicles, to the then issues units that are publicly the proposed rule change and discussed benefit of their shareholders, and offered and sold. Unlike ETFs, UITs any comments it received on the potentially result in transaction cost typically do not continuously offer their proposed rule change. The text of these savings, which may be passed along to shares for sale, but rather, make a one- statements may be examined at the investors. The Exchange now proposes time or limited public offering of only places specified in Item IV below. The to expand Rule 6.9 to provide the same a specific, fixed number of units like a Exchange has prepared summaries, set exemption from Rule 5.12 to off-floor, closed-end fund (i.e., the primary forth in sections A, B, and C below, of in-kind transfers in connection with the period, which may range from a single the most significant aspects of such creation or redemption of units issued day to a few months). Similar to the statements. by a UIT, another type of investment process for ETFs, UITs allow investor- company registered under the 1940 Act. owners of units to redeem their units A. Self-Regulatory Organization’s back to the UIT’s trustee on a daily basis Statement of the Purpose of, and Although UITs operate differently than ETFs in certain respects, as described and, upon redemption, such investor- Statutory Basis for, the Proposed Rule owners are entitled to receive the Change below, the anticipated potential benefits to UIT investors (i.e., greater tax redemption price at the UIT’s NAV. While UITs provide for daily 1. Purpose efficiencies and transaction cost redemptions directly with the UIT’s savings) from the proposed exemption The Exchange proposes to amend trustee, UIT sponsors frequently would be similar as discussed below. Rule 6.9, which permits off-Exchange, maintain a secondary market for units, in-kind transfers of options positions in Specifically, under the 1940 Act,7 a UIT is an investment company connection with ETFs organized as 8 The Exchange also notes that, though a majority open-end management investment organized under a trust indenture or of ETFs are structured as open-ended funds (i.e., companies under the Investment similar instrument that issues those ETFs currently covered by Rule 6.9), some Company Act of 1940 (the ‘‘1940 Act’’), redeemable securities, each of which ETFs are structured as UITs, and currently represents an undivided interest in a represent a significant amount of assets within the to also permit in-kind transfers of ETF industry. These include, for example, SPDR options positions in connection with S&P 500 ETF Trust (‘‘SPY’’) and PowerShares QQQ entities registered as UITs under the 6 While the prices of options transactions effected Trust, Series 1 (‘‘QQQ’’). on the Exchange are disseminated to OPRA, back- 9 The NAV is an investment company’s total 1940 Act. office transfers of options positions in clearing Rule 6.9 is an exception to the assets minus its total liabilities. UITs must calculate accounts held at The Options Clearing Corporation their NAV at least once every business day, Exchange’s general requirement that (‘‘OCC’’) (in accordance with OCC Rules) are not typically after market close. See § 270.2a–4(c), transfers of options contracts listed on disseminated to OPRA or otherwise publicly which provides that any interim determination of the Exchange be effected on an available, as they are considered position transfers, current net asset value between calculations made rather than executions. OCC has represented to the 5 as of the close of the New York Stock Exchange on exchange, as set forth in Rule 5.12. Exchange that it has the operational capabilities to the preceding business day and the current business effect the position transfers and all transfers day may be estimated so as to reflect any change 5 See Rule 5.12(a) (Transactions Off the pursuant to Rule 6.9 are required to comply with in current net asset value since the closing Exchange), which generally requires transactions of OCC rules. See Rule 8.2 (which requires all TPHs calculation on the preceding business day. This, option contracts listed on the Exchange for a that are members of OCC to comply with OCC’s however, is notwithstanding the requirements of premium in excess of $1.00 to be effected on the Rules). § 270.2a–4(a), which provides for other events that floor of the Exchange or on another exchange. 7 15 U.S.C. 80a–4(2). would trigger computation of a UIT’s NAV.

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also like that of ETFs, and will buy back positions in connection with ETF and processing information with respect to, units at the applicable redemption price UIT (as proposed) creations and and facilitating transactions in per unit. To satisfy redemptions, a UIT redemptions are transferred off of the securities, to remove impediments to typically sells securities and/or other Exchange, they are not closed or and perfect the mechanism of a free and assets, which results in negative tax ‘‘traded’’, and instead, merely reside in open market and a national market implications and an incurrence of a different clearing account until closed system, and, in general, to protect trading costs borne by remaining unit in a trade on the Exchange or until they investors and the public interest. holders. expire. The Exchange also notes that The Exchange believes that permitting Although ETFs and UITs operate Rule 6.9 will continue to be clearly off-floor transfers in connection with the differently in certain respects, the delineated and limited in scope, given in-kind UIT creation and redemption ability to effect in-kind transfers is that the exception will continue to process promotes just and equitable significant to both types of investment apply only to transfers of options principles of trade and helps remove vehicles. Currently, in-kind transfers of effected in connection with the creation impediments to and perfect the options pursuant to Rule 6.9 protect and redemption process, and for certain mechanism of a free and open market ETF shareholders from certain investment companies registered under and a national market system, as it undesirable tax consequences and the 1940 Act. Moreover, the Exchange would permit UITs that invest in improve the overall tax efficiency of the notes that transfers of options in options traded on the Exchange to products. Indeed, by effecting connection with the creation or transfer options off of the Exchange in redemptions on an in-kind basis, as redemption of open-end fund ETFs connection with their in-kind creation permitted by Rule 6.9, there is no need constitute a minimal percentage of the and redemption process as ETFs are for an ETF to sell assets and potentially total average daily volume (‘‘ADV’’) of currently able to do under Rule 6.9, as realize capital gains that would be options and the Exchange expects previously approved by the distributed to shareholders. options transfers in connection with Commission.14 Further, the Exchange Additionally, by transacting on an in- UITs to comprise a similar minimal believes that permitting a comparable kind basis, ETFs may currently avoid percentage of ADV. Additionally the investment vehicle, also registered as an certain transaction costs they would options transfers that would be investment company under the 1940 otherwise incur in connection with permitted by the exemption are Act, to be included in the Rule 6.9 purchases and sales of securities and generally expected to include exemption, removes impediments to other assets (including options). As corresponding transactions by a broker- and perfect the mechanism of a free and stated, Rule 6.9 does not currently dealer that would occur on an exchange open market and national market system permit these in-kind transfers for UITs, and would be reported to OPRA.11 as it would enable UITs to compete as they are still generally required to sell more effectively with other investment options on an exchange to obtain the 2. Statutory Basis vehicles that, based on their portfolio requisite cash when effecting The Exchange believes the proposed holdings, may effect in-kind creations redemption transactions with broker- rule change is consistent with the Act and redemptions without restriction. dealers. Thus, the Exchange proposes to and the rules and regulations The Exchange notes that the ability to extend the Rule 6.9 exemption to UITs. thereunder applicable to the Exchange effect in-kind transfers is significant to As described above, UITs and ETFs are and, in particular, the requirements of both ETFs and UITs as investment situated in substantially the same Section 6(b) of the Act.12 Specifically, vehicles. By permitting UITs that invest manner; the key differences being a the Exchange believes the proposed rule in options traded on the Exchange to UIT’s fixed duration, and that a UIT change is consistent with the Section benefit from potential tax efficiencies generally makes a one-time public 6(b)(5) 13 requirements that the rules of and transaction cost savings similar to offering of only a specific, fixed number an exchange be designed to prevent those that ETFs may currently enjoy, the of units. Negative tax implication and fraudulent and manipulative acts and proposed rule change would protect trading costs for remaining unit holders practices, to promote just and equitable investors and the public interest by would be mitigated by allowing a UIT principles of trade, to foster cooperation passing along such potential benefits to sponsor or another broker-dealer to and coordination with persons engaged investors that participate in UITs. The receive an in-kind distribution of in regulating, clearing, settling, Exchange does not believe that the options upon redemption. Therefore, proposed rule change affects the permitting off-exchange in-kind Order Approving on an Accelerated Basis a protection of investors or the transfers for UITs would benefit Proposed Rule Change, as Modified by Amendment maintenance of a fair and orderly Nos. 2 and 3, To Adopt Rule 6.9 (In-Kind Exchange market because the Rule 6.9 exception investors by potentially providing tax of Options Positions and ETF Shares)) (SR–CBOE– efficiencies and transaction cost savings 2019–048). would continue to be clearly delineated similar to those that investors in ETFs 11 The Exchange notes that in conjunction with and limited in scope. Rule 6.9 already may enjoy today. The Exchange does depositing options with a UIT’s trustee and creating applies to ETFs, which operate in a not believe the proposed extension of units, the necessary options positions will be similar manner as UITs, and the acquired in an on-exchange transaction that is proposed rule change to make the Rule 6.9 to UITs will adversely impact reported to OPRA. In conjunction with investors or the maintenance of a fair redemptions, the sponsor or other broker-dealer transfer exemption available to UITs is and orderly market as it does not will generally acquire both the units redeemed by based on a similar rationale and does circumvent the prohibition under Rule a redeeming unit holder and an options position to not raise any new or novel issues. In offset the position that it will receive as proceeds this regard, as with in-kind, off- 5.12(a) nor does it compromise price for the redemption. Such an options position is discovery or transparency. To note, Rule likely acquired in an on-exchange transaction that exchange transfers of options in 6.9 is already applicable to options in would be reported to OPRA. Thus, while the connection with ETFs, those transfers in connection with ETF creations and transfer of options positions between the sponsor or connection with UITs would also occur other broker-dealer and the UIT would not at a price related to the NAV of the redemptions, previously approved by necessarily be reported, there are generally the Commission.10 Although options corresponding transactions that would be reported, applicable UIT units, which removes providing transparency into the transactions. the need for price discovery on an 10 See Securities Exchange Act Release No. 87340 12 15 U.S.C. 78f(b). (October 17, 2019), 84 FR 56877 (October 23, 2019) 13 15 U.S.C. 78f(b)(5). 14 See supra note 10.

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exchange. As stated above, the Exchange registered as a type of investment change should be approved or expects that off-exchange options company under the 1940 Act be disapproved. transfers in connection with the creation transferred on the floor of an exchange. and redemption process for UITs will The proposed rule change merely IV. Solicitation of Comments comprise a minimal percentage of ADV, extends the Rule 6.9 exemption (and Interested persons are invited to just as such transfers currently any potential benefits) to UITs. The submit written data, views, and permissible in connection with ETFs Exchange again notes that Rule 6.9 was arguments concerning the foregoing, comprise a minimal percentage of ADV. previously approved by the 16 including whether the proposed rule Further, the general price at which UIT- Commission and is currently change is consistent with the Act. related transfers are effected will be applicable to ETFs that are similarly Comments may be submitted by any of publicly available as they are based on situated and also in invest in options. the following methods: the disseminated closing prices and are Also, as indicated above, in light of the generally expected to include significant benefits provided (e.g., Electronic Comments corresponding, transactions by a broker- potential tax efficiencies and transaction dealer that would occur on an exchange cost savings), the proposed exception • Use the Commission’s internet and be reported to OPRA.15 may lead to further development of comment form (http://www.sec.gov/ UITs that invest in options, thereby rules/sro.shtml); or B. Self-Regulatory Organization’s fostering competition and resulting in • Statement on Burden on Competition Send an email to rule-comments@ additional choices for investors, which sec.gov. Please include File Number SR– The Exchange does not believe that ultimately benefits the marketplace and CBOE–2020–042 on the subject line. the proposed rule change will impose the public. Other options exchanges in any burden on competition that is not their discretion may pursue the Paper Comments necessary or appropriate in furtherance adoption of similar exceptions. • of the purposes of the Act. The Send paper comments in triplicate Exchange does not believe the proposed C. Self-Regulatory Organization’s to Secretary, Securities and Exchange rule change will impose any burden on Statement on Comments on the Commission, 100 F Street NE, intramarket competition that is not Proposed Rule Change Received From Washington, DC 20549–1090. Members, Participants, or Others necessary or appropriate in furtherance All submissions should refer to File of the purposes of the Act because The Exchange neither solicited nor Number SR–CBOE–2020–042. This file invoking the exception under Rule 6.9 received written comments on the number should be included on the in connection with UITs is voluntary proposed rule change. subject line if email is used. To help the and the proposed exception for UITs is III. Date of Effectiveness of the Commission process and review your not intended as a competitive trading Proposed Rule Change and Timing for comments more efficiently, please use tool. Instead, it is intended as an Commission Action only one method. The Commission will alternative to the normal auction post all comments on the Commission’s process to provide market participants Because the proposed rule change internet website (http://www.sec.gov/ with an efficient and effective means to does not: (i) Significantly affect the rules/sro.shtml). Copies of the transfer option positions as part of the protection of investors or the public submission, all subsequent UIT creation and redemption process interest; (ii) impose any significant amendments, all written statements under the same specified circumstances burden on competition; and (iii) become currently applicable to ETFs in operative for 30 days from the date on with respect to the proposed rule connection with creating and redeeming which it was filed, or such shorter time change that are filed with the units of UITs. The proposed expansion as the Commission may designate, it has Commission, and all written of the Rule 6.9 exception to UITs would become effective pursuant to Section communications relating to the enable this investment vehicle, which is 19(b)(3)(A) of the Act 17 and proposed rule change between the comparable to ETFs, to enjoy the subparagraph (f)(6) of Rule 19b–4 Commission and any person, other than potential benefits of off-exchange, in- thereunder.18 those that may be withheld from the kind transfers of option positions in At any time within 60 days of the public in accordance with the connection with creating and filing of the proposed rule change, the provisions of 5 U.S.C. 552, will be redeeming, and to pass these benefits Commission summarily may available for website viewing and along to investors. Use of the in-kind, temporarily suspend such rule change if printing in the Commission’s Public off-exchange transfer process in it appears to the Commission that such Reference Room, 100 F Street NE, connection with creating UIT units and action is necessary or appropriate in the Washington, DC 20549 on official the redemption process would be public interest, for the protection of business days between the hours of voluntary and would apply in the same investors, or otherwise in furtherance of 10:00 a.m. and 3:00 p.m. Copies of the manner to all broker-dealers choosing to the purposes of the Act. If the filing also will be available for invoke such process. Commission takes such action, the inspection and copying at the principal The Exchange does not believe the Commission shall institute proceedings office of the Exchange. All comments proposed rule change will impose any to determine whether the proposed rule received will be posted without change. burden on intermarket competition that Persons submitting comments are is not necessary or appropriate in 16 See supra note 10. cautioned that we do not redact or edit furtherance of the purposes of the Act, 17 15 U.S.C. 78s(b)(3)(A). personal identifying information from 18 17 CFR 240.19b–4(f)(6). In addition, Rule19b– because the in-kind transfer rule would 4(f)(6)(iii) requires a self-regulatory organization to comment submissions. You should continue to provide a clearly delineated give the Commission written notice of its intent to submit only information that you wish and limited exception to the file the proposed rule change, along with a brief to make available publicly. All requirement that options positions in description and text of the proposed rule change, submissions should refer to File at least five business days prior to the date of filing connection with certain entities of the proposed rule change, or such shorter time Number SR–CBOE–2020–042, and as designated by the Commission. The Exchange should be submitted on or before May 15 See supra note 11. has satisfied this requirement. 27, 2020.

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For the Commission, by the Division of II. Self-Regulatory Organization’s Finally, on August 30, 2019, the Trading and Markets, pursuant to delegated Statement of the Purpose of, and Exchange amended Rule 14.13(b)(2) in authority.19 Statutory Basis for, the Proposed Rule order to create annual pricing cap for J. Matthew DeLesDernier, Change Outcome Strategy Series 11 that are 12 Assistant Secretary. In its filing with the Commission, the listed on the Exchange. Now, the [FR Doc. 2020–09638 Filed 5–5–20; 8:45 am] Exchange included statements Exchange submits this proposal in order to amend Rule 14.13(b)(1)(C)(i) to BILLING CODE 8011–01–P concerning the purpose of and basis for the proposed rule change and discussed exclude generically-listed Exchange- any comments it received on the Traded Fund Shares from entry fees. By way of background, on April 6, SECURITIES AND EXCHANGE proposed rule change. The text of these 2020, the Exchange received approval COMMISSION statements may be examined at the by the Commission to generically list places specified in Item IV below. The and trade Exchange-Traded Fund Shares Exchange has prepared summaries, set [Release No. 34–88778; File No. SR– that are permitted to operate in reliance forth in sections A, B, and C below, of CboeBZX–2020–034] of Rule 6c–11 (‘‘Rule 6c–11’’) under the the most significant aspects of such Investment Company Act of 1940 (the statements. Self-Regulatory Organizations; Cboe ‘‘1940 Act’’).13 The Commission BZX Exchange, Inc.; Notice of Filing A. Self-Regulatory Organization’s recently adopted Rule 6c–11 to permit and Immediate Effectiveness of a Statement of the Purpose of, and exchange-traded funds (‘‘ETFs’’) that Proposed Rule Change To Amend the Statutory Basis for, the Proposed Rule satisfy certain conditions to operate Fees Applicable to Securities Listed on Change without obtaining an exemptive order the Exchange, Which Are Set Forth in from the Commission under the 1940 1. Purpose BZX Rule 14.13 (Company Listing Act.14 Since the first ETF was approved Fees) On August 30, 2011, the Exchange by the Commission in 1992, the received approval of rules applicable to Commission has routinely granted April 30, 2020. the qualification, listing, and delisting exemptive orders permitting ETFs to Pursuant to Section 19(b)(1) of the of companies on the Exchange,3 which operate under the 1940 Act because Securities Exchange Act of 1934 (the it modified on February 8, 2012 in order there was no ETF specific rule in place ‘‘Act’’),1 and Rule 19b–4 thereunder,2 to adopt pricing for the listing of and they have characteristics that 4 notice is hereby given that on April 16, exchange-traded products (‘‘ETPs’’) on distinguish them from the types of 5 2020, Cboe BZX Exchange, Inc. (the the Exchange. On July 3, 2017, the structures contemplated and included ‘‘Exchange’’ or ‘‘BZX’’) filed with the Exchange made certain changes to Rule in the 1940 Act. After such an extended 14.13 such that there were no entry fees Securities and Exchange Commission period operating without a specific rule or annual fees for ETPs listed on the (the ‘‘Commission’’) the proposed rule set and only under exemptive relief, Exchange.6 Effective January 1, 2019, Rule 6c–11 is designed to provide a change as described in Items I, II, and the Exchange made certain changes to III below, which Items have been consistent, transparent, and efficient Rule 14.13 in order to charge an entry regulatory framework for ETFs.15 Given prepared by the Exchange. The fee for ETPs that are not Generically- Commission is publishing this notice to Listed ETPs 7 and to add annual listing Rule 14.11(d), but specifically includes Equity solicit comments on the proposed rule fees for ETPs listed on the Exchange.8 Index-Linked Securities, Commodity-Linked change from interested persons. The Exchange then made certain Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, and Multifactor Index- I. Self-Regulatory Organization’s additional modifications to Rule 14.13 Linked Securities. Statement of the Terms of Substance of in May 2019 related to listings that are 10 See Securities Exchange Act Release No. 85881 the Proposed Rule Change transferring to the Exchange and to (May 16, 2019), 84 FR 23607 (May 22, 2019) (SR– make certain changes to the fees CboeBZX–2019–042). associated with Linked Securities.910 11 As defined in Rule 14.13(b)(2)(C)(iv), an Cboe BZX Exchange, Inc. (the Outcome Strategy Series is a series of ETPs that are ‘‘Exchange’’ or ‘‘BZX’’) is filing with the each designed to (i) a pre-defined set of returns; (ii) Securities and Exchange Commission 3 See Securities Exchange Act Release No. 65225 over a specified outcome period; (iii) based on the (August 30, 2011), 76 FR 55148 (September 6, 2011) (‘‘Commission’’) a proposed rule change performance of the same underlying instrument; (SR–BATS–2011–018). and (iv) each employ the same outcome strategy for to amend the fees applicable to 4 As defined in Rule 11.8(e)(1)(A), the term ‘‘ETP’’ achieving the predefined set of returns (each an securities listed on the Exchange, which means any security listed pursuant to Exchange ‘‘Outcome Strategy ETP’’ and, collectively, an are set forth in BZX Rule 14.13, Rule 14.11. ‘‘Outcome Strategy Series’’). 5 See Securities Exchange Act Release No. 66422 12 See Securities Exchange Act No. 86956 Company Listing Fees. The text of the (February 17, 2012), 77 FR 11179 (February 24, (September 12, 2019) 84 FR 49128 (September 18, proposed rule change is provided in 2012) (SR–BATS–2012–010). 2019) (SR–CboeBZX–2019–081). Exhibit 5. 6 See Securities Exchange Act Release No. 81152 13 15 U.S.C. 80a–1. (July 14, 2017), 82 FR 33525 (July 20, 2017) (SR– 14 See Release Nos. 33–10695; IC–33646; File No. The text of the proposed rule change BatsBZX–2017–45). S7–15–18 (Exchange-Traded Funds) (September 25, is also available on the Exchange’s 7 As defined in Rule 14.13(b)(1)(C)(i), the term 2019), 84 FR 57162 (October 24, 2019) (the ‘‘Rule website (http://markets.cboe.com/us/ ‘‘Generically-Listed ETPs’’ means Index Fund 6c–11 Release’’). equities/regulation/rule_filings/bzx/), at Shares, Portfolio Depositary Receipts, Managed 15 In approving the rule, the Commission stated Fund Shares, Linked Securities, and Currency Trust that the ‘‘rule will modernize the regulatory the Exchange’s Office of the Secretary, Shares that are listed on the Exchange pursuant to framework for ETFs to reflect our more than two and at the Commission’s Public Rule 19b–4(e) under the Exchange Act and for decades of experience with these investment Reference Room. which a proposed rule change pursuant to Section products. The rule is designed to further important 19(b) of the Exchange Act is not required to be filed Commission objectives, including establishing a with the Commission. consistent, transparent, and efficient regulatory 8 See Securities Exchange Act Release No. 83597 framework for ETFs and facilitating greater (July 5, 2018), 83 FR 32164 (July 11, 2018) (SR– competition and innovation among ETFs.’’ Rule 6c– 19 17 CFR 200.30–3(a)(12). CboeBZX–2018–46). 11 Release, at 57163. The Commission also stated 1 15 U.S.C. 78s(b)(1). 9 As defined in Rule 14.11(d), the term ‘‘Linked the following regarding the rule’s impact: ‘‘We 2 17 CFR 240.19b–4. Securities’’ includes any product listed pursuant to believe rule 6c–11 will establish a regulatory

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this, the Exchange adopted Rule 14.11(l) 6(b)(5),18 in particular, as it is designed under Rule 14.13(b)(1)(C)(i) because to similarly promote consistency, to provide for the equitable allocation of they do not require a proposed rule transparency, and efficiency reasonable dues, fees and other charges change pursuant to Section 19(b) of the surrounding the exchange listing among its issuers. The Exchange also Exchange Act to be filed with the process for ETF Shares in a manner that notes that its ETP listing business Commission in order to list and trade on is consistent with the Act. operates in a highly-competitive market the Exchange. As such, the Exchange Like Index Fund Shares and Managed in which ETP issuers can readily believes it is not unfairly discriminatory Fund Shares listed under generic listing transfer their listings if they deem fee of the Exchange to similarly exempt standards in Rules 14.11(c) and 14.11(i), levels or any other factor at a particular generically-listed Exchange-Traded respectively, series of Exchange-Traded venue to be insufficient or excessive. Fund Shares from such entry fees. Fund Shares that are permitted to The proposed rule change reflects a The Exchange notes that the proposed operate in reliance on Rule 6c–11 are competitive pricing structure designed entry fee exemption will only act to permitted to be listed and traded on the to incentivize issuers to list new leave static or reduce fees for ETPs Exchange without a prior Commission products and transfer existing products listed on the Exchange. This proposal approval order or notice of effectiveness to the Exchange, which the Exchange will decrease the fees associated with pursuant to Section 19(b) of the Act.16 believes will enhance competition both generically listing Exchange-Traded Given this, the Exchange proposes to among ETP issuers and listing venues, Fund Shares, which will reduce the include generically-listed Exchange- to the benefit of investors. barriers to entry into the space and Traded Fund Shares in the list of incentivize enhanced competition Generically-Listed ETPs set forth in The Proposed Entry Fee Exemption Is among issuers of Exchange-Traded Fund Rule 14.13(b)(1)(C)(i) that are excepted an Equitable Allocation of Fees Shares, also to the benefit of investors. from entry fees. Specifically, where The Exchange believes the proposal is The Proposed Entry Fee Exemption Is generically-listed Exchange-Traded equitable because it is available to all Reasonable Fund Shares do not require a proposed issuers and applies equally to all rule change pursuant to section 19(b) of generically-listed Exchange-Traded The Exchange believes that the the Exchange Act to be filed with the Fund Shares. The Exchange only proposed entry fee exemption for Commission prior to listing and trading recently amended its Rules to allow for generically-listed Exchange-Traded on the Exchange, the Exchange proposes the generic listing of Exchange-Traded Fund Shares is a reasonable means to to exempt such Exchange-Traded Fund Fund Shares. The Exchange believes incentivize issuers to list (or transfer) Shares from entry fees. Such treatment that providing an exemption to entry such Exchange-Traded Fund Shares on is consistent with the treatment of other fees for such ETPs is a reasonable and the Exchange. The marketplace for ETPs (such as Index Fund Shares and equitable approach as they do not listings is extremely competitive and Managed Fund Shares) that also require a proposed rule change pursuant there are several other national generally do not require a proposed rule to Section 19(b) of the Exchange Act to securities exchanges that offer ETP change pursuant to section 19(b) of the be filed with the Commission in order listings. Transfers between listing Exchange Act to be filed with the to list and trade on the Exchange. venues occur frequently for numerous Commission prior to listing and trading The Exchange notes that the proposed reasons, including listing fees. The on the Exchange. entry fee exemption will only act to proposed rule change reflects a leave static or reduce fees for ETPs competitive pricing structure designed 2. Statutory Basis listed on the Exchange. Further, this to incentivize issuers to list new The Exchange believes that the proposal will decrease the fees products and transfer existing products proposed rule changes are consistent associated with generically-listed to the Exchange, which the Exchange with the objectives of Section 6 of the Exchange-Traded Fund Shares on the believes will enhance competition both Act,17 in general, and furthers the Exchange, which will reduce the among ETP issuers and listing venues, objectives of Section 6(b)(4) and barriers to entry into the space and to the benefit of investors. Based on the incentivize enhanced competition foregoing, the Exchange believes that framework that: (1) Reduces the expense and delay among issuers of Exchange-Traded Fund the proposed rule changes are consistent currently associated with forming and operating Shares, to the benefit of investors. with the Act. certain ETFs unable to rely on existing orders; and (2) creates a level playing field for ETFs that can The Proposed Entry Fee Exemption Is B. Self-Regulatory Organization’s rely on the rule. As such, the rule will enable Not Unfairly Discriminatory Statement on Burden on Competition increased product competition among certain ETF providers, which can lead to lower fees for The Exchange also believes that the The Exchange does not believe that investors, encourage financial innovation, and proposed entry fee exemption for the proposed rule change will impose increase investor choice in the ETF market.’’ Rule 6c–11 Release, at 57204. generically-listed Exchange-Traded any burden on competition not 16 Rule 19b–4(e)(1) provides that the listing and Fund Shares is not unfairly necessary or appropriate in furtherance trading of a new derivative securities product by a discriminatory because it does not of the purposes of the Act. The self-regulatory organization (‘‘SRO’’) is not deemed require a proposed rule change pursuant Exchange does not believe the proposed a proposed rule change, pursuant to paragraph to Section 19(b) of the Exchange Act to change burdens competition, but rather, (c)(1) of Rule 19b–4, if the Commission has approved, pursuant to Section 19(b) of the Act, the be filed with the Commission in order enhances competition as it is intended SRO’s trading rules, procedures and listing to list and trade on the Exchange. As to increase the competitiveness of BZX standards for the product class that would include noted above, Exchange-Traded Funds as a listing venue by providing better the new derivative securities product and the SRO only recently became available to list pricing for generically-listed Exchange- has a surveillance program for the product class. As noted in the Approval Order, Exchange Rule and trade generically on the Exchange. Traded Fund Shares. The marketplace 14.11(l) establishes generic listing standards for Other similar types of ETPs (e.g., for listings is extremely competitive and ETFs that are permitted to operate in reliance on Managed Fund Shares and Index Fund there are several other national Rule 6c–11. An ETF listed under proposed Rule Shares) that are listed on the Exchange securities exchanges that offer ETP 14.11(l) would therefore not need a separate proposed rule change pursuant to Rule 19b–4 before generically are exempted from entry fees listings. Transfers between listing it can be listed and traded on the Exchange. venues occur frequently for numerous 17 15 U.S.C. 78f. 18 15 U.S.C. 78f(b)(4) and (5). reasons, including listing fees. This

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proposal is intended to help the Commission takes such action, the For the Commission, by the Division of Exchange compete as an ETP listing Commission will institute proceedings Trading and Markets, pursuant to delegated venue. Accordingly, the Exchange does to determine whether the proposed rule authority.21 not believe that the proposed change change should be approved or J. Matthew DeLesDernier, will impair the ability of issuers or disapproved. Assistant Secretary. competing ETP listing venues to [FR Doc. 2020–09637 Filed 5–5–20; 8:45 am] IV. Solicitation of Comments maintain their competitive standing. BILLING CODE 8011–01–P The Exchange also notes that the Interested persons are invited to proposed change represents a submit written data, views, and competitive pricing structure designed arguments concerning the foregoing, SECURITIES AND EXCHANGE to incentivize issuers to list new including whether the proposed rule COMMISSION products and transfer existing products change is consistent with the Act. Comments may be submitted by any of [Release No. 34–88782; File No. SR–CBOE– to the Exchange, which the Exchange 2020–039] believes will enhance competition both the following methods: among ETP issuers and listing venues, Electronic Comments Self-Regulatory Organizations; Cboe to the benefit of investors. The Exchange Exchange, Inc.; Notice of Filing and • Use the Commission’s internet believes that such proposed changes Immediate Effectiveness of a Proposed comment form (http://www.sec.gov/ will directly enhance competition Rule Change To Extend the Operation among ETP listing venues by reducing rules/sro.shtml); or • Send an email to rule-comments@ of Its Flexible Exchange Options the costs associated with listing on the (‘‘FLEX Options’’) PM Exercise Exchange for generically-listed sec.gov. Please include File Number SR– CboeBZX–2020–034 on the subject line. Settlement Pilot Program for FLEX Exchange-Traded Fund Shares. Index Options Similarly, the Exchange believes that Paper Comments exempting entry fees on such ETPs will • April 30, 2020. Send paper comments in triplicate Pursuant to Section 19(b)(1) of the enhance competition both among listing to Secretary, Securities and Exchange venues of Exchange-Traded Fund Securities Exchange Act of 1934 Commission, 100 F Street NE, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Shares and among issuers through an Washington, DC 20549–1090. overall reduction of fees for listing such notice is hereby given that on April 16, All submissions should refer to File products. As such, the proposal is a 2020, Cboe Exchange, Inc. (‘‘Exchange’’ Number SR–CboeBZX–2020–034. This competitive proposal designed to or ‘‘Cboe Options’’) filed with the file number should be included on the enhance pricing competition among Securities and Exchange Commission subject line if email is used. To help the listing venues and implement pricing (‘‘Commission’’) the proposed rule Commission process and review your for listings that better reflects the change as described in Items I and II comments more efficiently, please use revenue and expenses associated with below, which Items have been prepared only one method. The Commission will listing ETPs on the Exchange. The by the Exchange. The Exchange filed the post all comments on the Commission’s proposal as a ‘‘non-controversial’’ Exchange does not believe the proposed internet website (http://www.sec.gov/ amendments would burden intramarket proposed rule change pursuant to rules/sro.shtml). Copies of the Section 19(b)(3)(A)(iii) of the Act 3 and competition as they would be available submission, all subsequent to all issuers uniformly. Rule 19b–4(f)(6) thereunder.4 The amendments, all written statements Commission is publishing this notice to C. Self-Regulatory Organization’s with respect to the proposed rule solicit comments on the proposed rule Statement on Comments on the change that are filed with the change from interested persons. Proposed Rule Change Received From Commission, and all written Members, Participants, or Others communications relating to the I. Self-Regulatory Organization’s Statement of the Terms of Substance of The Exchange has not solicited, and proposed rule change between the the Proposed Rule Change does not intend to solicit, comments on Commission and any person, other than this proposed rule change. The those that may be withheld from the Cboe Exchange, Inc. (the ‘‘Exchange’’ Exchange has not received any public in accordance with the or ‘‘Cboe Options’’) proposes to extend unsolicited written comments from provisions of 5 U.S.C. 552, will be the operation of its Flexible Exchange Members or other interested parties. available for website viewing and Options (‘‘FLEX Options’’) pilot printing in the Commission’s Public program regarding permissible exercise III. Date of Effectiveness of the Reference Room, 100 F Street NE, settlement values for FLEX Index Proposed Rule Change and Timing for Washington, DC 20549, on official Options. The text of the proposed rule Commission Action business days between the hours of change is provided below. The foregoing rule change has become 10:00 a.m. and 3:00 p.m. Copies of the effective pursuant to Section 19(b)(3)(A) filing also will be available for (additions are in italics; deletions are [bracketed]) of the Act 19 and paragraph (f) of Rule inspection and copying at the principal 20 office of the Exchange. All comments 19b–4 thereunder. At any time within * * * * * 60 days of the filing of the proposed rule received will be posted without change. change, the Commission summarily may Persons submitting comments are Rules of Cboe Exchange, Inc. temporarily suspend such rule change if cautioned that we do not redact or edit * * * * * it appears to the Commission that such personal identifying information from Rule 4.21. Series of FLEX Options comment submissions. You should action is necessary or appropriate in the (a) No change. public interest, for the protection of submit only information that you wish investors, or otherwise in furtherance of to make available publicly. All 21 17 CFR 200.30–3(a)(12). the purposes of the Act. If the submissions should refer to File 1 15 U.S.C. 78s(b)(1). Number SR–CboeBZX–2020–034 and 2 17 CFR 240.19b–4. 19 15 U.S.C. 78s(b)(3)(A). should be submitted on or before May 3 15 U.S.C. 78s(b)(3)(A)(iii). 20 17 CFR 240.19b–4(f). 27, 2020. 4 17 CFR 240.19b–4(f)(6).

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(b) Terms. When submitting a FLEX Order Options.5 The Exchange has extended any business day (specified to day, for a FLEX Option series to the System, the the pilot period numerous times, which month and year) no more than 15 years submitting FLEX Trader must include one of is currently set to expire on the earlier from the date on which a FLEX Trader each of the following terms in the FLEX of May 4, 2020 or the date on which the submits a FLEX Order to the System.8 Order (all other terms of a FLEX Option pilot program is approved on a FLEX Index Options are settled in U.S. series are the same as those that apply to 6 non-FLEX Options), which terms constitute permanent basis. The purpose of this dollars, and may be a.m.-settled (with the FLEX Option series: rule change filing is to extend the pilot exercise settlement value determined by (1)–(4) No change. program through the earlier of reference to the reported level of the (5) settlement type: November 2, 2020 or the date on which index derived from the reported (A) No change. the pilot program is approved on a opening prices of the component (B) FLEX Index Options. FLEX Index permanent basis. This filing simply securities) or p.m.-settled (with exercise Options are settled in U.S. dollars, and may seeks to extend the operation of the settlement value determined by be: pilot program and does not propose any reference to the reported level of the (i) No change. substantive changes to the pilot index derived from the reported closing (ii) p.m.-settled (with exercise settlement program. prices of the component securities).9 value determined by reference to the reported level of the index derived from the reported Under Rule 4.21(b), Series of FLEX Specifically, a FLEX Index Option that closing prices of the component securities), Options (regarding terms of a FLEX expires on, or within two business days 7 except for a FLEX Index Option that expires Option), a FLEX Option may expire on of, a third Friday-of-the-month on any business day that falls on or within expiration day for a non-FLEX Option two business days of a third Friday-of-the- 5 Securities Exchange Act Release No. 61439 (other than a QIX option), may only be month expiration day for a non-FLEX Option (January 28, 2010), 75 FR 5831 (February 4, 2010) 10 (SR–CBOE–2009–087) (‘‘Approval Order’’). The a.m. settled. However, under the (other than a QIX option) may only be a.m.- initial pilot period was set to expire on March 28, exercise settlement values pilot, this settled; however, for a pilot period ending 2011, which date was added to the rules in 2010. restriction on p.m.-settled FLEX Index the earlier of [May 4]November 2, 2020 or the See Securities Exchange Act Release No. 61676 Options was eliminated.11 As stated, the date on which the pilot program is approved (March 9, 2010), 75 FR 13191 (March 18, 2010) (SR– exercise settlement values pilot is on a permanent basis, a FLEX Index Option CBOE–2010–026). with an expiration date on the third-Friday 6 See Securities Exchange Act Release Nos. 64110 currently set to expire on the earlier of of the month may be p.m.-settled; (March 23, 2011), 76 FR 17463 (March 29, 2011) May 4, 2020 or the date on which the (iii)–(iv) No change. (SR–CBOE–2011–024) (extending the pilot program pilot program is approved on a through the earlier of March 30, 2012 or the date * * * * * on which the pilot program is approved on the permanent basis. permanent basis); 66701 (March 30, 2012), 77 FR Cboe Options is proposing to extend The text of the proposed rule change 20673 (April 5, 2012) (SR–CBOE–2012–027) the pilot program through the earlier of is also available on the Exchange’s (extending the pilot through the earlier of November 2, 2020 or the date on which website (http://www.cboe.com/ November 2, 2012 or the date on which the pilot the pilot program is approved on a AboutCBOE/ program is approved on a permanent basis); 68145 (November 2, 2012), 77 FR 67044 (November 8, permanent basis. Cboe Options believes CBOELegalRegulatoryHome.aspx), at 2012) (SR–CBOE–2012–102) (extending the pilot the pilot program has been successful the Exchange’s Office of the Secretary, program through the earlier of November 2, 2013 or and at the Commission’s Public the date on which the pilot program is approved on a permanent basis); 70752 (October 24, 2013), 78 FR Cboe Affiliated Exchanges (Cboe C2 Exchange, Inc. Reference Room. 65023 (October 30, 2013) (SR–CBOE–2013–099) (‘‘C2’’), Cboe EDGX Exchange, Inc. (‘‘EDGX’’), Cboe BZX Exchange, Inc. (‘‘BZX’’), Cboe BYX Exchange, II. Self-Regulatory Organization’s (extending the pilot program through the earlier of November 3, 2014 or the date on which the pilot Inc. (‘‘BYX’’), Cboe EDGA Exchange, Inc. Statement of the Purpose of, and program is approved on a permanent basis); 73460 (‘‘EDGA’’)). In connection with this migration the Statutory Basis for, the Proposed Rule (October 29, 2014), 79 FR 65464 (November 4, 2014) Exchange restructured its Rulebook. Prior Rule Change (SR–CBOE–2014–080) (extending the pilot program 24A.4.01, covering the pilot program, was relocated through the earlier of May 3, 2016 or the date on to current Rule 4.21(b)(5). See Securities Exchange In its filing with the Commission, the which the pilot program is approved on a Act Release No. 87235 (October 4, 2019), 84 FR permanent basis); 77742 (April 29, 2016), 81 FR 54671 (October 10, 2019) (SR–CBOE–2019–084). Exchange included statements 26857 (May 4, 2016) (SR–CBOE–2016–032) 8 Except an Asian-settled or Cliquet-settled FLEX concerning the purpose of and basis for (extending the pilot program through the earlier of Option series, which must have an expiration date the proposed rule change and discussed May 3, 2017 or the date on which the pilot program that is a business day but may only expire 350 to any comments it received on the is approved on a permanent basis); 80443 (April 12, 371 days (which is approximately 50 to 53 calendar 2017), 82 FR 18331 (April 18, 2017) (SR–CBOE– weeks) from the date on which a FLEX Trader proposed rule change. The text of these 2017–032), 83 FR 21808 (May 10, 2018) (extending submits a FLEX Order to the System. statements may be examined at the the pilot program through the earlier of May 3, 2018 9 See Rule 4.21(b)(5)(B); see also Securities places specified in Item IV below. The or the date on which the pilot program is approved Exchange Act Release No. 87235 (October 4, 2019), Exchange has prepared summaries, set on a permanent basis); 83175 (May 4, 2018), 83 FR 84 FR 54671 (October 10, 2019) (SR–CBOE–2019– 21808 (May 10, 2018) (SR–CBOE–2018–037); 84537 084). The rule change removed the provision forth in sections A, B, and C below, of (November 5, 2018), 83 FR 56113 (November 9, regarding the exercise settlement value of FLEX the most significant aspects of such 2018) (SR–CBOE–2018–071); 85707 (April 23, Index Options on the NYSE Composite Index, as the statements. 2019), 84 FR 18100 (April 29, 2019) (SR–CBOE– Exchange no longer lists options on that index for 2019–021); and 87515 (November 13, 2020), 84 FR trading, and included the provisions regarding how 63945 (November 19, 2019) (SR–CBOE–2019–108). A. Self-Regulatory Organization’s the exercise settlement value is determined for each At the same time the permissible exercise settlement type, as how the exercise settlement Statement of the Purpose of, and settlement values pilot was established for FLEX value is determined is dependent on the settlement Statutory Basis for, the Proposed Rule Index Options, the Exchange also established a pilot type. Change program eliminating the minimum value size requirements for all FLEX Options. See Approval 10 For example, notwithstanding the pilot, the 1. Purpose Order, supra note 2. The pilot program eliminating exercise settlement value of a FLEX Index Option the minimum value size requirements was extended that expires on the Tuesday before the third Friday- On January 28, 2010, the Securities twice pursuant to the same rule filings that of-the-month could be a.m. or p.m. settled. However, the exercise settlement value of a FLEX and Exchange Commission (the extended the permissible exercise settlement values (for the same extended periods) and was approved Index Option that expires on the Wednesday before ‘‘Commission’’) approved a Cboe on a permanent basis in a separate rule change the third Friday-of-the-month could only be a.m. Options rule change that, among other filing. See id; and Securities Exchange Act Release settled. things, established a pilot program No. 67624 (August 8, 2012), 77 FR 48580 (August 11 No change was necessary or requested with regarding permissible exercise 14, 2012) (SR–CBOE–2012–040). respect to FLEX Equity Options. Regardless of the 7 On October 7, 2019, the Exchange migrated its expiration date, FLEX Equity Options are settled by settlement values for FLEX Index trading platform to the same system used by the physical delivery of the underlying.

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and well received by its Trading Permit To the contrary, Cboe Options believes its Trading Permit Holder organizations Holders and the investing public for the that the restriction actually places the each have the authority, pursuant to period that it has been in operation as Exchange at a competitive disadvantage Rule 10.9, Margin Required is Minimum, a pilot. In support of the proposed to its OTC counterparts in the market for to impose additional margin as deemed extension of the pilot program, and as customized options, and unnecessarily advisable. Cboe Options continues to required by the pilot program’s limits market participants’ ability to believe these existing safeguards serve Approval Order, the Exchange has trade in an exchange environment that sufficiently to help monitor open submitted to the Commission pilot offers the added benefits of interest in FLEX Option series and program reports regarding the pilot, transparency, price discovery, liquidity, significantly reduce any risk of adverse which detail the Exchange’s experience and financial stability. market effects that might occur as a with the program. Specifically, the The Exchange also notes that certain result of large FLEX exercises in FLEX Exchange provided the Commission position limit, aggregation and exercise Option series that expire near Non- with annual reports analyzing volume limit requirements continue to apply to FLEX expirations and use a p.m. and open interest for each broad-based FLEX Index Options in accordance with settlement. FLEX Index Options class overlying a Rules 8.35, Position Limits for FLEX Cboe Options is also cognizant of the third Friday-of-the-month expiration Options, 8.42(g) Exercise Limits (in OTC market, in which similar day, p.m.-settled FLEX Index Options connection with FLEX Options) and restrictions on exercise settlement series.12 The annual reports also 8.43(j), Reports Related to Position values do not apply. Cboe Options contained information and analysis of Limits (in connection with FLEX continues to believe that the pilot FLEX Index Options trading patterns. Options). Additionally, all FLEX program is appropriate and reasonable The Exchange also provided the Options remain subject to the general and provides market participants with Commission, on a periodic basis, position reporting requirements in Rule additional flexibility in determining interim reports of volume and open 8.43(a).15 Moreover, the Exchange and whether to execute their customized interest. In providing the pilot reports to options in an exchange environment or the Commission, the Exchange has of these settlement methodologies on these in the OTC market. Cboe Options previously requested confidential expiration dates (or on the expiration dates continues to believe that market addressed under the pilot program). The Exchange treatment of the pilot reports under the is also not aware of any market disruptions or participants benefit from being able to Freedom of Information Act (‘‘FOIA’’).13 problems caused by the use of customized options trade these customized options in an The Exchange believes there is in the over-the-counter (‘‘OTC’’) markets that expire exchange environment in several ways, sufficient investor interest and demand on or near the third Friday-of-the-month and are including, but not limited to, enhanced p.m. settled. In addition, the Exchange believes the in the pilot program to warrant its reasons for limiting expirations to a.m. settlement, efficiency in initiating and closing out extension. The Exchange believes that, which is something the SEC has imposed since the positions, increased market for the period that the pilot has been in early 1990s for Non-FLEX Options, revolved around transparency, and heightened contra- operation, the program has provided a concern about expiration pressure on the New party creditworthiness due to the role of York Stock Exchange (‘‘NYSE’’) at the close that are investors with additional means of no longer relevant in today’s market. Today, the the Options Clearing Corporation as managing their risk exposures and Exchange believes stock exchanges are able to better issuer and guarantor of FLEX Options. carrying out their investment objectives. handle volume. There are multiple primary listing If, in the future, the Exchange Furthermore, the Exchange believes that and unlisted trading privilege (‘‘UTP’’) markets, and proposes an additional extension of the trading is dispersed among several exchanges and pilot program, or should the Exchange it has not experienced any adverse alternative trading systems. In addition, the market effects with respect to the pilot Exchange believes that surveillance techniques are propose to make the pilot program program, including any adverse market much more robust and automated. In the early permanent, the Exchange will submit, volatility effects that might occur as a 1990s, it was also thought by some that opening along with any filing proposing such procedures allow more time to attract contra-side amendments to the pilot program, an result of large FLEX exercises in FLEX interest to reduce imbalances. The Exchange Option series that expire near Non- believes, however, that today, order flow is annual report (addressing the same FLEX expirations and use a p.m. predominantly electronic and the ability to smooth areas referenced above and consistent settlement (as discussed below). out openings and closes is greatly reduced (e.g., with the pilot program’s Approval market-on-close procedures work just as well as Order) to the Commission at least two In that regard, based on the openings). Also, other markets, such as the Exchange’s experience in trading FLEX NASDAQ Stock Exchange, do not have the same months prior to the expiration date of Options to date and over the pilot type of pre-opening imbalance disseminations as the program. The Exchange will also period, Cboe Options continues to NYSE, so many stocks are not subject to the same continue, on a periodic basis, to submit procedures on the third Friday-of-the-month. In interim reports of volume and open believe that the restrictions on exercise addition, the Exchange believes that NYSE has settlement values are no longer reduced the required time a specialist has to wait interest consistent with the terms of the necessary to insulate Non-FLEX after disseminating a pre-opening indication. So, in exercise settlement values pilot program expirations from the potential adverse this respect, the Exchange believes there is less time as described in the pilot program’s 14 to react in the opening than in the close. Moreover, Approval Order. Additionally, the market impacts of FLEX expirations. to the extent there may be a risk of adverse market effects attributable to p.m. settled options that Exchange will provide the Commission 12 The annual reports also contained certain pilot would otherwise be traded in a non-transparent period and pre-pilot period analyses of volume and fashion in the OTC market, the Exchange continues more contracts of any single class of option open interest for third Friday-of-the-month to believe that such risk would be lessened by contracts dealt in on the Exchange. The report shall expiration days, a.m.-settled FLEX Index series and making these customized options eligible for indicate for each such class of options, the number third Friday-of-the-month expiration day Non-FLEX trading in an exchange environment because of the of option contracts comprising each such position Index series overlying the same index as a third added transparency, price discovery, liquidity, and and, in the case of short positions, whether covered Friday-of-the-month expiration day, p.m.-settled financial stability available. or uncovered.’’ For purposes of Rule 8.43, the term FLEX Index option. 15 Rule 8.43(a) provides that ‘‘[i]n a manner and ‘‘customer’’ in respect of any Trading Permit Holder 13 5 U.S.C. 552; see infra note 12. form prescribed by the Exchange, each Trading includes ‘‘the Trading Permit Holder, any general 14 In further support, the Exchange also notes that Permit Holder shall report to the Exchange, the or special partner of the Trading Permit Holder, any the p.m. settlements are already permitted for FLEX name, address, and social security or tax officer or director of the Trading Permit Holder, or Index Options on any other business day except on, identification number of any customer who, acting any participant, as such, in any joint, group or or within two business days of, the third Friday-of- alone, or in concert with others, on the previous syndicate account with the Trading Permit Holder the-month. The Exchange is not aware of any business day maintained aggregate long or short or with any partner, officer or director thereof.’’ market disruptions or problems caused by the use positions on the same side of the market of 200 or Rule 8.43(d).

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with any additional data or analyses the of FLEX Options. Further, the Exchange proposed rule change will impose any Commission requests because it deems believes that it has not experienced any burden on competition. such data or analyses necessary to adverse effects from the operation of the C. Self-Regulatory Organization’s determine whether the pilot program is pilot program, including any adverse Statement on Comments on the consistent with the Exchange Act. The market volatility effects that might occur Proposed Rule Change Received From Exchange is in the process of making as a result of large FLEX exercises in Members, Participants, or Others public on its website all data and FLEX Option series that expire near analyses previously submitted to the Non-FLEX expirations and are p.m.- The Exchange neither solicited nor Commission under the pilot program, settled. The Exchange also believes that received comments on the proposed and will make public any data and the extension of the exercise settlement rule change. analyses it submits to the Commission values pilot does not raise any unique III. Date of Effectiveness of the under the pilot program in the future.16 regulatory concerns. In particular, As noted in the pilot program’s Proposed Rule Change and Timing for although p.m. settlements may raise Commission Action Approval Order, any positions questions with the Commission, the established under the pilot program Exchange believes that, based on the Because the foregoing proposed rule would not be impacted by the Exchange’s experience in trading FLEX change does not: (i) Significantly affect expiration of the pilot program.17 Options to date and over the pilot the protection of investors or the public 2. Statutory Basis period, market impact and investor interest; (ii) impose any significant protection concerns will not be raised burden on competition; and (iii) become The Exchange believes the proposed by this rule change. The Exchange also operative for 30 days from the date on rule change is consistent with the believes that the proposed rule change which it was filed, or such shorter time Securities Exchange Act of 1934 (the would continue to provide Trading as the Commission may designate, it has ‘‘Act’’) and the rules and regulations Permit Holders and investors with become effective pursuant to Section thereunder applicable to the Exchange additional opportunities to trade 19(b)(3)(A) of the Act 21 and Rule 19b– and, in particular, the requirements of customized options in an exchange 4(f)(6) thereunder.22 Section 6(b) of the Act.18 Specifically, environment (which offers the added A proposed rule change filed under the Exchange believes the proposed rule benefits of transparency, price Rule 19b–4(f)(6) 23 normally does not change is consistent with the Section discovery, liquidity, and financial become operative for 30 days after the 6(b)(5) 19 requirements that the rules of stability as compared to the over-the- date of filing. However, pursuant to an exchange be designed to prevent counter market) and subject to Rule 19b–4(f)(6)(iii),24 the Commission fraudulent and manipulative acts and exchange-based rules, and investors may designate a shorter time if such practices, to promote just and equitable would benefit as a result. action is consistent with the protection principles of trade, to foster cooperation of investors and the public interest. The and coordination with persons engaged B. Self-Regulatory Organization’s Exchange has asked the Commission to in regulating, clearing, settling, Statement on Burden on Competition waive the 30-day operative delay so that processing information with respect to, the proposal may become operative and facilitating transactions in Cboe Options does not believe that immediately upon filing. The Exchange securities, to remove impediments to the proposed rule change will impose states that such waiver will allow the and perfect the mechanism of a free and any burden on competition that is not Exchange to extend the pilot program open market and a national market necessary or appropriate in furtherance and maintain the status quo, thereby system, and, in general, to protect of the purposes of the Act. The reducing market disruption. investors and the public interest. Exchange believes there is sufficient Additionally, the Exchange believes the investor interest and demand in the The Commission believes that proposed rule change is consistent with pilot program to warrant its extension. waiving the 30-day operative delay is the Section 6(b)(5) 20 requirement that The Exchange believes that, for the consistent with the protection of the rules of an exchange not be designed period that the pilot has been in investors and the public interest, as it to permit unfair discrimination between operation, the program has provided will allow the pilot program to continue customers, issuers, brokers, or dealers. investors with additional means of uninterrupted, thereby avoiding In particular, the Exchange believes managing their risk exposures and investor confusion that could result that the proposed extension of the pilot carrying out their investment objectives. from a temporary interruption in the program, which permits an additional Furthermore, the Exchange believes that pilot program. For this reason, the exercise settlement value, would it has not experienced any adverse Commission designates the proposed provide greater opportunities for market effects with respect to the pilot rule change to be operative upon 25 investors to manage risk through the use program, including any adverse market filing. volatility effects that might occur as a 16 Available at https://www.cboe.com/aboutcboe/ result of large FLEX exercises in FLEX 21 15 U.S.C. 78s(b)(3)(A). legal-regulatory/national-market-system-plans/pm- Option series that expire near Non-Flex 22 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– settlement-flex-pm-data. 4(f)(6)(iii) requires a self-regulatory organization to 17 For example, a position in a p.m.-settled FLEX expirations and use a p.m. settlement. give the Commission written notice of its intent to Index Option series that expires on the third Friday- Cboe Options believes that the file the proposed rule change, along with a brief of-the-month in January 2020 could be established restriction actually places the Exchange description and text of the proposed rule change, during the exercise settlement values pilot. If the at a competitive disadvantage to its OTC at least five business days prior to the date of filing pilot program were not extended (or made of the proposed rule change, or such shorter time permanent), then the position could continue to counterparts in the market for as designated by the Commission. The Exchange exist. However, the Exchange notes that any further customized options, and unnecessarily has satisfied this requirement. trading in the series would be restricted to limits market participants’ ability to 23 17 CFR 240.19b–4(f)(6). transactions where at least one side of the trade is trade in an exchange environment that 24 17 CFR 240.19b–4(f)(6)(iii). a closing transaction. See Approval Order at offers the added benefits of 25 For purposes only of waiving the operative footnote 3, supra note 2. delay for this proposal, the Commission has 18 15 U.S.C. 78f(b). transparency, price discovery, liquidity, considered the proposed rule’s impact on 19 15 U.S.C. 78f(b)(5). and financial stability. Therefore, the efficiency, competition, and capital formation. See 20 Id. Exchange does not believe that the 15 U.S.C. 78c(f).

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At any time within 60 days of the personal identifying information from The text of the proposed rule change filing of the proposed rule change, the comment submissions. You should is also available on the Exchange’s Commission summarily may submit only information that you wish website (http://markets.cboe.com/us/ temporarily suspend such rule change if to make available publicly. All equities/regulation/rule_filings/bzx/), at it appears to the Commission that such submissions should refer to File the Exchange’s Office of the Secretary, action is necessary or appropriate in the Number SR–CBOE–2020–039 and and at the Commission’s Public public interest, for the protection of should be submitted on or before May Reference Room. investors, or otherwise in furtherance of 27, 2020. II. Self-Regulatory Organization’s the purposes of the Act. If the For the Commission, by the Division of Commission takes such action, the Statement of the Purpose of, and Trading and Markets, pursuant to delegated Statutory Basis for, the Proposed Rule Commission shall institute proceedings authority.26 Change to determine whether the proposed rule J. Matthew DeLesDernier, should be approved or disapproved. Assistant Secretary. In its filing with the Commission, the Exchange included statements IV. Solicitation of Comments [FR Doc. 2020–09632 Filed 5–5–20; 8:45 am] concerning the purpose of and basis for BILLING CODE 8011–01–P Interested persons are invited to the proposed rule change and discussed submit written data, views, and any comments it received on the arguments concerning the foregoing, SECURITIES AND EXCHANGE proposed rule change. The text of these including whether the proposed rule COMMISSION statements may be examined at the change is consistent with the Act. places specified in Item IV below. The Comments may be submitted by any of [Release No. 34–88788; File No. SR– Exchange has prepared summaries, set the following methods: CboeBZX–2020–038] forth in sections A, B, and C below, of Electronic Comments Self-Regulatory Organizations; Cboe the most significant aspects of such statements. • Use the Commission’s internet BZX Exchange, Inc.; Notice of Filing comment form (http://www.sec.gov/ and Immediate Effectiveness of a A. Self-Regulatory Organization’s rules/sro.shtml); or Proposed Rule Change To Extend the Statement of the Purpose of, and • Send an email to rule-comments@ Pilot Programs in Connection With the Statutory Basis for, the Proposed Rule sec.gov. Please include File Number SR– Listing and Trading of P.M.-Settled Change CBOE–2020–039 on the subject line. Series on Certain Broad-Based Index Options 1. Purpose Paper Comments The proposed rule change extends the • Send paper comments in triplicate April 30, 2020. listing and trading of P.M.-settled series to: Secretary, Securities and Exchange Pursuant to Section 19(b)(1) of the on certain broad-based index options on Securities Exchange Act of 1934 (the Commission, 100 F Street NE, a pilot basis.5 Rule 29.11(a)(6) currently ‘‘Act’’),1 2 Washington, DC 20549–1090. and Rule 19b–4 thereunder, permits the listing and trading of XSP All submissions should refer to File notice is hereby given that on April 24, options with third-Friday-of-the-month Number SR–CBOE–2020–039. This file 2020, Cboe BZX Exchange, Inc. (the expiration dates, whose exercise number should be included on the ‘‘Exchange’’ or ‘‘BZX Options’’) filed settlement value will be based on the subject line if email is used. To help the with the Securities and Exchange closing index value on the expiration Commission process and review your Commission (the ‘‘Commission’’) the day (‘‘P.M.-settled’’) on a pilot basis set comments more efficiently, please use proposed rule change as described in to expire on May 4, 2020 (the ‘‘XSPPM only one method. The Commission will Items I and II below, which Items have Pilot Program’’). Rule 29.11(j)(3) also post all comments on the Commission’s been prepared by the Exchange. The permits the listing and trading of P.M.- internet website (http://www.sec.gov/ Exchange filed the proposal as a ‘‘non- settled options on broad-based indexes rules/sro.shtml). Copies of the controversial’’ proposed rule change with weekly expirations (‘‘Weeklys’’) submission, all subsequent pursuant to Section 19(b)(3)(A)(iii) of 3 and end-of-month expirations (‘‘EOMs’’) amendments, all written statements the Act and Rule 19b–4(f)(6) 4 on a pilot basis set to expire on May 4, with respect to the proposed rule thereunder. The Commission is 2020 (the ‘‘Nonstandard Expirations change that are filed with the publishing this notice to solicit Pilot Program’’, and together with the Commission, and all written comments on the proposed rule change XSPPM Pilot Program, the ‘‘Pilot communications relating to the from interested persons. proposed rule change between the I. Self-Regulatory Organization’s 5 The Exchange is authorized to list for trading Commission and any person, other than Statement of the Terms of Substance of options that overlie the Mini-SPX Index (‘‘XSP’’) and the Russell 2000 Index (‘‘RUT’’). See Rule those that may be withheld from the the Proposed Rule Change 29.11(a). See also Securities Exchange Act Release public in accordance with the Cboe BZX Exchange, Inc. (the Nos. 84480 (October 24, 2018), 83 FR 54635 provisions of 5 U.S.C. 552, will be (October 30, 2018) (Notice of Filing of a Proposed ‘‘Exchange’’ or ‘‘BZX Options’’) available for website viewing and Rule Change To Permit the Listing and Trading of proposes to extend the pilot programs in printing in the Commission’s Public P.M.-Settled Series on Certain Broad-Based Index connection with the listing and trading Options on a Pilot Basis) (SR–CboeBZX–2018–066) Reference Room, 100 F Street NE, of P.M.-settled series on certain broad- (‘‘Notice’’); 85181 (February 22, 2019), 84 FR 6842 Washington, DC 20549 on official (February 28, 2019) (Notice of Deemed Approval of based index options. The text of the business days between the hours of a Proposed Rule Change To Permit the Listing and proposed rule change is provided in 10:00 a.m. and 3:00 p.m. Copies of the Trading of P.M.-Settled Series on Certain Broad- Exhibit 5. Based Index Options on a Pilot Basis) (SR– filing also will be available for CboeBZX–2018–066); and 88052 (January 27, 2020), 85 FR 5753 (January 31, 2020) (Notice of Filing and inspection and copying at the principal 26 17 CFR 200.30–3(a)(12). Immediate Effectiveness of a Proposed Rule Change office of the Exchange. All comments 1 15 U.S.C. 78s(b)(1). To Extend the Pilot Programs in Connection With received will be posted without change. 2 17 CFR 240.19b–4. the Listing and Trading of P.M.-Settled Series on Persons submitting comments are 3 15 U.S.C. 78s(b)(3)(A)(iii). Certain Broad-Based Index Options) (SR–CboeBZX– cautioned that we do not redact or edit 4 17 CFR 240.19b–4(f)(6). 2020–004).

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Programs’’). The Exchange proposes to the Commission with any additional As stated above, this proposed rule extend the Pilot Programs through data or analyses the Commission change extends the Nonstandard November 2, 2020. requests because it deems such data or Expirations Pilot Program for broad- analyses necessary to determine based index options on a pilot basis, for XSPPM Pilot Program whether the XSPPM Pilot Program is a period of six months. If the Exchange Rule 29.11(a)(6) permits the listing consistent with the Exchange Act. The were to propose an additional extension and trading, in addition to A.M.-settled Exchange is in the process of making of the Nonstandard Expirations Pilot XSP options, of P.M.-settled XSP public on its website data and analyses Program or should the Exchange options with third-Friday-of-the-month previously submitted to the Commission propose to make it permanent, the expiration dates on a pilot basis. The under the Pilot Program, and will make Exchange would submit additional Exchange believes that continuing to public any data and analyses it submits filings proposing such amendments. permit the trading of XSP options on a to the Commission under the Pilot Further, any positions established under P.M.-settled basis will continue to Program in the future. The Exchange the Nonstandard Expirations Pilot encourage greater trading in XSP also notes that its affiliated options Program would not be impacted by the options. Other than settlement and exchange, Cboe Exchange, Inc. (‘‘Cboe expiration of the pilot. For example, if closing time on the last trading day Options’’) currently has pilots that the Exchange lists a Weekly or EOM that (pursuant to Rule 29.10(a)),6 contract permit P.M.-settled third Friday-of-the- expires after the Nonstandard terms for P.M.-settled XSP options are month XSP options.8 Expirations Pilot Program expires (and the same as the A.M.-settled XSP is not extended), then those positions options. The contract uses a $100 Nonstandard Expirations Pilot Program would continue to exist. However, any multiplier and the minimum trading Rule 29.11(j)(1) permits the listing further trading in those series would be increments, strike price intervals, and and trading, on a pilot basis, of P.M.- restricted to transactions where at least expirations are the same as the A.M.- settled options on broad-based indexes one side of the trade is a closing settled XSP option series. P.M.-settled with nonstandard expiration dates and transaction. XSP options have European-style is currently set to expire on May 4, As part of the Nonstandard exercise. The Exchange also has 2020. The Nonstandard Expirations Expirations Pilot Program, the Exchange flexibility to open for trading additional Pilot Program permits both Weeklys and submits a pilot report to the series in response to customer demand. EOMs as discussed below. Contract Commission at least two months prior to If the Exchange were to propose terms for the Weekly and EOM the expiration date of the pilot. This another extension of the XSPPM Pilot expirations are similar to those of the annual report contains an analysis of Program or should the Exchange A.M.-settled broad-based index options, volume, open interest, and trading propose to make the XSPPM Pilot except that the Weekly and EOM patterns. In proposing to extend the Program permanent, the Exchange expirations are P.M.-settled. Nonstandard Expirations Pilot Program, would submit a filing proposing such In particular, Rule 29.11(j)(1) permits the Exchange will continue to abide by amendments to the XSPPM Pilot the Exchange to open for trading the reporting requirements described in Program. Further, any positions Weeklys on any broad-based index the Notice.9 Additionally, the Exchange established under the XSPPM Pilot eligible for standard options trading to will provide the Commission with any Program would not be impacted by the expire on any Monday, Wednesday, or additional data or analyses the expiration of the XSPPM Pilot Program. Friday (other than the third Friday-of- Commission requests because it deems For example, if the Exchange lists a the-month or days that coincide with an such data or analyses necessary to P.M.-settled XSP option that expires EOM). Weeklys are subject to all determine whether the Nonstandard after the XSPPM Pilot Program expires provisions of Rule 29.11 and are treated Expirations Pilot Program is consistent (and is not extended), then those the same as options on the same with the Exchange Act. The Exchange is positions would continue to exist. If the underlying index that expire on the in the process of making public on its pilot were not extended, then the third Friday of the expiration month. website data and analyses previously positions could continue to exist. However, under the Nonstandard submitted to the Commission under the However, any further trading in those Expirations Pilot Program, Weeklys are Pilot Program, and will make public any series would be restricted to P.M.-settled, and new Weekly series data and analyses it submits to the transactions where at least one side of may be added up to and including on Commission under the Pilot Program in the trade is a closing transaction. the expiration date for an expiring the future.. The Exchange notes that As part of the XSPPM Pilot Program, Weekly. other exchanges, including its affiliated the Exchange submits a pilot report to exchange, Cboe Options, currently have the Commission at least two months Rule 29.11(a)(2) permits the Exchange to open for trading EOMs on any broad- pilots that have weekly and end-of- prior to the expiration date of the pilot. month expirations.10 This annual report contains an analysis based index eligible for standard of volume, open interest, and trading options trading to expire on the last Additional Information trading day of the month. EOMs are patterns. In proposing to extend the The Exchange believes there is subject to all provisions of Rule 29.11 XSPPM Pilot Program, the Exchange sufficient investor interest and demand and treated the same as options on the will continue to abide by the reporting in the XSPPM and Nonstandard same underlying index that expire on requirements described in the Notice.7 Expirations Pilot Programs to warrant the third Friday of the expiration Additionally, the Exchange will provide their extension. The Exchange believes month. However, under the that the Programs have provided Nonstandard Expirations Pilot Program, 6 Rule 29.10(a) permits transactions in P.M.- investors with additional means of EOMs are P.M.-settled, and new series settled XSP options on their last trading day to be managing their risk exposures and effected on the Exchange between the hours of 9:30 of EOMs may be added up to and carrying out their investment objectives. a.m. and 4:00 p.m. Eastern time. All other including on the expiration date for an transactions in index options are effected on the Exchange between the hours of 9:30 a.m. and 4:15 expiring EOM. 9 See supra note 5. p.m. Eastern time. 10 See Cboe Options Rule 4.13(e); and Phlx Rule 7 See supra note 5. 8 See Cboe Options Rule 4.13.13. 1101A(b)(5).

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The proposed extensions will continue greater opportunities for investors. The the Pilot Programs. The Exchange to offer investors the benefit of added Exchange believes that the Pilot further does not believe that the transparency, price discovery, and Programs have been successful to date. proposed extension of the Pilot stability, as well as the continued The proposed rule change allows for an Programs will impose any burden on expanded trading opportunities in extension of the Program for the benefit intermarket competition that is not connection with different expiration of market participants. The Exchange necessary or appropriate in furtherance times. The Exchange proposes the believes that there is demand for the of the purposes of the Act because it extension of the Pilot Programs in order expirations offered under the Program only applies to trading on BZX Options. to continue to give the Commission and believes that P.M.-settled XSP, To the extent that the continued trading more time to consider the impact of the Weekly Expirations and EOMs will of the Pilot Products may make BZX Pilot Programs. To this point, the continue to provide the investing public Options a more attractive marketplace to Exchange believes that the Pilot and other market participants with the market participants at other exchanges, Programs have been well-received by its opportunities to trade desirable such market participants may elect to Members and the investing public, and products and to better manage their risk become BZX Options market the Exchange would like to continue to exposure. The proposed extension will participants. provide investors with the ability to also provide the Commission further C. Self-Regulatory Organization’s trade P.M.-settled XSP options and opportunity to observe such trading of Statement on Comments on the contracts with nonstandard expirations. the Pilot Products. Further, the Proposed Rule Change Received From All terms regarding the trading of the Exchange has not encountered any Members, Participants, or Others Pilot Products shall continue to operate problems with the Programs; it has not as described in the XSPPM and experienced any adverse effects or The Exchange neither solicited nor Nonstandard Expirations Notice.11 The meaningful regulatory or capacity received comments on the proposed Exchange merely proposes herein to concerns from the operation of the Pilot rule change. extend the terms of the Pilot Programs Programs. Also, the Exchange believes III. Date of Effectiveness of the to November 2, 2020. that such trading pursuant to the Proposed Rule Change and Timing for Furthermore, the Exchange has not XSPPM Pilot Program has not, and will Commission Action experienced any adverse market effects not, adversely impact fair and orderly with respect to the Programs. The markets on Expiration Fridays for the Because the proposed rule change Exchange will continue to monitor for underlying stocks comprising the S&P does not: (i) Significantly affect the any such disruptions or the 500 index. protection of investors or the public development of any factors that would interest; (ii) impose any significant B. Self-Regulatory Organization’s burden on competition; and (iii) become cause such disruptions. The Exchange Statement on Burden on Competition represents it continues to have an operative for 30 days from the date on adequate surveillance program in place The Exchange does not believe that which it was filed, or such shorter time for index options and that the proposed the proposed rule change will impose as the Commission may designate, it has any burden on competition that is not become effective pursuant to Section extension will not have an adverse 14 impact on capacity. necessary or appropriate in furtherance 19(b)(3)(A) of the Act and of the purposes of the Act. Specifically, subparagraph (f)(6) of Rule 19b–4 2. Statutory Basis the Exchange believes that, by extending thereunder.15 The Exchange believes the proposed the expiration of the Pilot Programs, the A proposed rule change filed rule change is consistent with the proposed rule change will allow for pursuant to Rule 19b–4(f)(6) under the 16 Securities Exchange Act of 1934 (the further analysis of the Program and a Act normally does not become ‘‘Act’’) and the rules and regulations determination of how the Program shall operative for 30 days after the date of its 17 thereunder applicable to the Exchange be structured in the future. In doing so, filing. However, Rule 19b–4(f)(6)(iii) and, in particular, the requirements of the proposed rule change will also serve permits the Commission to designate a Section 6(b) of the Act.12 Specifically, to promote regulatory clarity and shorter time if such action is consistent the Exchange believes the proposed rule consistency, thereby reducing burdens with the protection of investors and the change is consistent with the Section on the marketplace and facilitating public interest. The Exchange has asked 6(b)(5) 13 requirements that the rules of investor protection. the Commission to waive the 30-day an exchange be designed to prevent Specifically, the Exchange does not operative delay so that investors may fraudulent and manipulative acts and believe the continuation of the Pilot continue to trade options that are part practices, to promote just and equitable Program will impose any unnecessary or of the Pilot Programs on an principles of trade, to foster cooperation inappropriate burden on intramarket uninterrupted basis. The Commission and coordination with persons engaged competition because it will continue to believes that waiving the 30-day in regulating, clearing, settling, apply equally to all BZX Options market operative delay is consistent with the processing information with respect to, participants, and the Pilot Products will protection of investors and the public and facilitating transactions in continue to be available to all BZX interest as it will allow the Pilot securities, to remove impediments to Options market participants. The Programs to continue uninterrupted, and perfect the mechanism of a free and Exchange believes there is sufficient 14 open market and a national market investor interest and demand in the 15 U.S.C. 78s(b)(3)(A). Pilot Programs to warrant its extension. 15 17 CFR 240.19b–4(f)(6). In addition, Rule19b– system, and, in general, to protect 4(f)(6)(iii) requires a self-regulatory organization to investors and the public interest. The Exchange believes that, for the give the Commission written notice of its intent to In particular, the Exchange believes period that the Pilot Programs has been file the proposed rule change, along with a brief that the proposed extension of the Pilot in operation, it has provided investors description and text of the proposed rule change, with desirable products with which to at least five business days prior to the date of filing Programs will continue to provide of the proposed rule change, or such shorter time trade. Furthermore, as stated above, the as designated by the Commission. The Exchange 11 See supra note 5. Exchange maintains that it has not has satisfied this requirement. 12 15 U.S.C. 78f(b). experienced any adverse market effects 16 17 CFR 240.19b–4(f)(6). 13 15 U.S.C. 78f(b)(5). or regulatory concerns with respect to 17 17 CFR 240.19b–4(f)(6)(iii).

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thereby avoiding investor confusion that provisions of 5 U.S.C. 552, will be for up to 12 months of particular could result from a temporary available for website viewing and exclusions granted under these initial interruption in the Pilot Programs. printing in the Commission’s Public 11 product exclusion notices. The Office Accordingly, the Commission hereby Reference Room, 100 F Street NE, of the U.S. Trade Representative (USTR) waives the operative delay and Washington, DC 20549 on official invites public comment on whether to designates the proposed rule change business days between the hours of extend particular exclusions. 18 operative upon filing. 10:00 a.m. and 3:00 p.m. Copies of the DATES: At any time within 60 days of the filing also will be available for May 1, 2020: The public docket on the filing of the proposed rule change, the inspection and copying at the principal web portal at https:// Commission summarily may office of the Exchange. All comments comments.USTR.gov will open for temporarily suspend such rule change if received will be posted without change. parties to submit comments on the it appears to the Commission that such Persons submitting comments are possible extension of particular action is necessary or appropriate in the cautioned that we do not redact or edit exclusions. public interest, for the protection of personal identifying information from investors, or otherwise in furtherance of June 8, 2020 at 11:59 p.m. ET: To be comment submissions. You should assured of consideration, submit written the purposes of the Act. If the submit only information that you wish Commission takes such action, the comments on the public docket by this to make available publicly. All deadline. Commission shall institute proceedings submissions should refer to File to determine whether the proposed rule Number SR–CboeBZX–2020–038, and ADDRESSES: You must submit all change should be approved or should be submitted on or before May comments through the online portal: disapproved. 27, 2020. https://comments.USTR.gov. IV. Solicitation of Comments For the Commission, by the Division of FOR FURTHER INFORMATION CONTACT: Associate General Counsel Philip Butler Interested persons are invited to Trading and Markets, pursuant to delegated authority.19 or Assistant General Counsel Benjamin submit written data, views, and Allen at (202) 395–5725. arguments concerning the foregoing, J. Matthew DeLesDernier, including whether the proposed rule Assistant Secretary. SUPPLEMENTARY INFORMATION: change is consistent with the Act. [FR Doc. 2020–09635 Filed 5–5–20; 8:45 am] A. Background Comments may be submitted by any of BILLING CODE 8011–01–P the following methods: For background on the proceedings in this investigation, please see prior Electronic Comments OFFICE OF THE UNITED STATES notices including 82 FR 40213 (August • Use the Commission’s internet TRADE REPRESENTATIVE 24, 2017), 83 FR 14906 (April 6, 2018), comment form (http://www.sec.gov/ 83 FR 28710 (June 20, 2018), 83 FR rules/sro.shtml); or [Docket Number USTR–2020–0015] 33608 (July 17, 2018), 83 FR 38760 • Send an email to rule-comments@ (August 7, 2018), 83 FR 47974 sec.gov. Please include File Number SR– Request for Comments Concerning the (September 21, 2018), 83 FR 49153 CboeBZX–2020–038 on the subject line. Extension of Particular Exclusions (September 28, 2018), 83 FR 65198 Granted Under the $200 Billion Action (December 19, 2018), 84 FR 7966 (March Paper Comments Pursuant to Section 301: China’s Acts, 5, 2019), 84 FR 20459 (May 9, 2019), 84 • Send paper comments in triplicate Policies, and Practices Related to FR 29576 (June 24, 2019), 84 FRN 38717 to Secretary, Securities and Exchange Technology Transfer, Intellectual (August 7, 2019), 84 FR 46212 Commission, 100 F Street NE, Property, and Innovation (September 3, 2019), 84 FR 49591 Washington, DC 20549–1090. AGENCY: Office of the United States (September 20, 2019), 84 FR 57803 All submissions should refer to File Trade Representative. (October 28, 2019), 84 FR 61674 Number SR–CboeBZX–2020–038. This (November 13, 2019), 84 FR 65882 ACTION: Notice and request for file number should be included on the comments. (November 29, 2019), 84 FR 69012 subject line if email is used. To help the (December 17, 2019), 85 FR 549 (January Commission process and review your SUMMARY: Effective September 24, 2018, 6, 2020), 85 FR 6674 (February 5, 2020), comments more efficiently, please use the U.S. Trade Representative imposed 85 FR 9921 (February 20, 2020), 85 FR only one method. The Commission will additional duties on goods of China 15015 (March 16, 2020), and 85 FR post all comments on the Commission’s with an annual trade value of 17158 (March 26, 2020). internet website (http://www.sec.gov/ approximately $200 billion as part of Effective September 24, 2018, the U.S. rules/sro.shtml). Copies of the the action in the Section 301 Trade Representative imposed submission, all subsequent investigation of China’s acts, policies, additional 10 percent duties on goods of amendments, all written statements and practices related to technology China classified in 5,757 full and partial with respect to the proposed rule transfer, intellectual property, and subheading of the Harmonized Tariff change that are filed with the innovation. The U.S. Trade Schedule of the United States (HTSUS) Commission, and all written Representative initiated an exclusion with an approximate annual trade value communications relating to the process for the $200 billion action in of $200 billion. See 83 FR 47974, as proposed rule change between the June 2019, and as of March 26, 2020, modified by 83 FR 49153. In May 2019, Commission and any person, other than has issued 11 product exclusion notices the U.S. Trade Representative increased those that may be withheld from the under this action. The product the additional duty to 25 percent. See 84 public in accordance with the exclusions granted under these notices FR 20459. On June 24, 2019, the Trade are scheduled to expire on August 7, Representative established a process by 18 For purposes only of waiving the 30-day 2020. The U.S. Trade Representative has which U.S. stakeholders could request operative delay, the Commission also has considered the proposed rule’s impact on decided to consider a possible extension exclusion of particular products efficiency, competition, and capital formation. See classified within an 8-digit HTSUS 15 U.S.C. 78c(f). 19 17 CFR 200.30–3(a)(12). subheading covered by the $200 billion

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action from the additional duties. See 84 additional duties on the products explanation of your rationale. FR 29576 (the June 24 notice). covered by the exclusion will result in Commenters must provide a public The June 24 notice required severe economic harm to the commenter version of their rationale, even if the submission of requests for exclusion or other U.S. interests. commenter also intends to submit a from the $200 billion action no later more detailed BCI rationale. C. Procedures To Comment on the • than September 30, 2019, and noted that Extension of Particular Exclusions Whether the products covered by the U.S. Trade Representative the exclusion or comparable products periodically would announce decisions. To submit a comment regarding the are available from sources in the U.S. or As of March 26, 2020, the U.S. Trade extension of a particular exclusion in third countries. Please include Representative has issued 11 notices of granted under the above referenced information concerning any changes in product exclusions under the $200 product exclusion notices under the the global supply chain since September billion action. These exclusions are $200 billion action, commenters must 2018 with respect to the particular scheduled to expire on August 7, 2020. first register on the portal at https:// product. comments.USTR.gov. As noted above, • The efforts you have undertaken B. Possible Extensions of Particular the public docket on the portal will be since September 2018 to source the Product Exclusions open from May 1, 2020, to June 8, 2020. product from the United States or third After registration, the commenter may The U.S. Trade Representative has countries. submit an exclusion extension comment decided to consider a possible extension • The value and quantity of the for up to 12 months of particular form to the public docket. Fields on the comment form marked Chinese-origin product covered by the exclusions granted under the initial 11 specific exclusion request purchased in product exclusion notices under the with an asterisk (*) are required fields. Fields with a gray (BCI) notation are for 2018 and 2019. Whether these $200 billion action. At this time, USTR purchases are from a related company, is not considering product exclusion business confidential information and the information entered will not be and if so, the name of and relationship notices issued after March 26, 2020. to the related company. Accordingly, USTR invites public publicly available. Fields with a green • Whether Chinese suppliers have comments on whether to extend (public) notation will be publicly lowered their prices for products particular exclusions granted under the available. Additionally, parties will be covered by the exclusion following the following notices of product exclusions: able to upload documents and indicate imposition of duties. • 84 FR 38717 (August 7, 2019) whether the documents are BCI or • The value and quantity of the • 84 FR 49591 (September 20, 2019) public. Commenters will be able to product covered by the exclusion • 84 FR 57803 (October 29, 2019) review the public version of their purchased from domestic and third • 84 FR 61674 (November 13, 2019) comments before they are posted. • In order to facilitate the preparation of country sources in 2018 and 2019. 84 FR 65882 (November 29, 2019) • • 84 FR 69012 (December 17, 2019) comments prior to the May 1 opening of If applicable, the commenter’s gross • 85 FR 549 (January 6, 2020) the public docket, a facsimile of the revenue for 2018 and 2019. • • 85 FR 6674 (February 5, 2020) exclusion extension comment form to be Whether the Chinese-origin product • 84 FR 9921 (February 20, 2020) used on the portal is annexed to this of concern is sold as a final product or • 85 FR 15015 (March 16, 2020) notice. Please note that the color-coding as an input. • 85 FR 17158 (March 26, 2020) of the public and BCI fields is not • Whether the imposition of duties on visible on the annex, but will be the products covered by the exclusion For exclusions amended or corrected apparent on the actual comment form by a later issued notice, parties should will result in severe economic harm to used on the portal. the commenter or other U.S. interests. provide their extension comments on Set out below is a summary of the • Any additional information in the docket corresponding to the initial information to be entered on the support of or in opposition to extending notice of product exclusions. exclusion extension comment form. the exclusion. USTR will evaluate the possible • Contact information, including the extension of each exclusion on a case- full legal name of the organization Commenters also may provide any by-case basis. The focus of the making the comment, whether the other information or data that they evaluation will be whether, despite the commenter is a third party (e.g., law consider relevant. first imposition of these additional firm, trade association, or customs D. Submission Instructions duties in September 2018, the particular broker) submitting on behalf of an product remains available only from organization or industry, and the name To be assured of consideration, you China. In addressing this factor, of the third party organization, if must submit your comment between the commenters should address specifically: applicable. opening of the public docket on the • Whether the particular product • The number for the exclusion on portal on May 1, 2020 and the June 8, and/or a comparable product is which you are commenting as provided 2020 submission deadline. Parties available from sources in the United in the annex of the Federal Register seeking to comment on more than one States and/or in third countries. notice granting the exclusion and the exclusion must submit a separate • Any changes in the global supply description. For descriptions, amended comment for each exclusion. chain since September 2018 with or corrected by a later issued notice of By submitting a comment, the respect to the particular product or any product exclusions, parties should use commenter certifies that the information other relevant industry developments. the amended or corrected description. provided is complete and correct to the • The efforts, if any, the importers or • Whether the product or products best of their knowledge. U.S. purchasers have undertaken since covered by the exclusion are subject to E. Paperwork Reduction Act September 2018 to source the product an antidumping or countervailing duty from the United States or third order issued by the U.S. Department of In accordance with the requirements countries. Commerce. of the Paperwork Reduction Act of 1995 In addition, USTR will continue to • Whether you support or oppose and its implementing regulations, the consider whether the imposition of extending the exclusion and an Office of Management and Budget has

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assigned control number 0350–0015, which expires January 31, 2023. Joseph Barloon, General Counsel, Office of the U.S. Trade Representative. BILLING CODE 3290–F0–P

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[FR Doc. 2020–09653 Filed 5–5–20; 8:45 am] Agency’s new Crash Preventability In response to this concern, FMCSA BILLING CODE 3290–F0–C Determination Program. announced a demonstration program on July 27, 2017, to evaluate the FOR FURTHER INFORMATION CONTACT: Mr. preventability of certain categories of Catterson Oh, Compliance Division, crashes (82 FR 35045). Based on its DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety experience in conducting the Administration, 1200 New Jersey demonstration program, and the strong Federal Motor Carrier Safety Avenue SE, Washington, DC 20590, Administration support for continuing and expanding (202) 366–6160, [email protected]. this program, FMCSA is initiating the If you have questions regarding viewing [Docket No. FMCSA–2014–0177] Crash Preventability Determination or submitting material to the docket, Program (CPDP) as described in this contact Docket Operations, (202) 366– Crash Preventability Determination notice. Through this program, motor 9826. Program carriers and drivers may submit eligible SUPPLEMENTARY INFORMATION: crashes for preventability AGENCY: Federal Motor Carrier Safety determinations through FMCSA’s Administration (FMCSA), DOT. Background DataQs system. FMCSA will remove ACTION: Notice. crashes that were not preventable by the Since its implementation in 2010, motor carrier or driver from the SMS SUMMARY: On July 27, 2017, FMCSA FMCSA’s Safety Measurement System prioritization algorithm. FMCSA will announced a demonstration program to (SMS) has used safety performance also note the not preventable evaluate the preventability of eight information in the Behavior Analysis determinations in the driver’s Pre- categories of crashes through and Safety Improvement Categories Employment Screening Program (PSP) submissions of Requests for Data (BASICs), in addition to recordable record and will note not preventable, Review to its national data correction crashes involving commercial motor preventable, and undecided system known as DataQs. On August 5, vehicles (CMVs), to prioritize carriers determinations in the motor carrier’s list 2019, based on experiences with the for safety interventions (75 FR 18256). of crashes on the public SMS website. demonstration program, FMCSA The Crash Indicator BASIC uses crashes proposed a Crash Preventability from the previous 24 months to Implementation Proposal Determination Program with a calculate percentiles for motor carriers. General Comments streamlined process. FMCSA proposed In addition, the public SMS website to modify the Safety Measurement lists motor carriers’ recordable crashes. FMCSA received 111 comments to System to exclude crashes with not Although the Crash Indicator BASIC this docket. More than 90 commenters preventable determinations from the percentiles have never been publicly supported the proposal and the prioritization algorithm and proposed available, stakeholders have expressed Agency’s plan to continue the program. noting the not preventable concern that the use of all crashes in Many noted their support of the determinations in the Pre-Employment SMS, without an indication of expansion of eligible crash types. Screening Program. This notice preventability, may give an inaccurate Gregory Cohen advised that Greyhound responds to comments received on the impression about the risk posed by the Lines, Inc., participated in the proposal and announces the start of the company. demonstration program and supports

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the continuation of the program. Dave 35045), and the 2019 proposal to preventable determination does not indicate Guyer, Cindy Staten, Dave Fisher, Scott implement this program (84 FR 38087). that a crash was preventable. Conklin, and several anonymous At each stage, FMCSA has solicited, In addition, FMCSA will continue to commenters advised the program considered, and responded to public include the following text in its should be maintained. Associations comments. determination notifications to including the Owner Operator This program does not amend any submitters, which it included during the Independent Drivers Association prior legislative rules nor does it demonstration program: (OOIDA), the American Trucking provide a basis for any new enforcement Associations, the International FMCSA made this crash preventability actions, and does not require a notice determination on the basis of information Foodservice Distributors Association, and comment rulemaking under the National School Transportation available to the Agency at the time of the Administrative Procedure Act (49 U.S.C. determination, and it is not appropriate for Association, and Truckload Carriers 551, 553). This program does not alter use by private parties in civil litigation. This Association supported the proposal. FMCSA’s safety fitness standard under determination does not establish legal Thirteen commenters, including the 49 U.S.C. 31144 and 49 CFR part 385. liability, fault, or negligence by any party and Motor Carrier Regulatory Reform As expressly stated on the SMS website, was made by persons with no personal Coalition (MCRRC) and the National FMCSA uses SMS data to prioritize knowledge of the crash. This crash Association of Small Trucking motor carriers for further monitoring, preventability determination will not affect Companies (NASTC), opposed the any motor carrier’s safety rating or ability to and data ‘‘is not intended to imply any operate. FMCSA will not issue penalties or program. Both MCRRC and NASTC federal safety rating of the carrier requested that the proposed changes be sanctions on the basis of this determination. pursuant to 49 U.S.C. 31144.’’ This This crash preventability determination does made through notice and comment program does not impact preventability rulemaking. MCRRC detailed this not establish any obligations or impose any determinations made through FMCSA legal requirements on any motor carrier. request by additional letters to FMCSA’s safety investigations conducted under Administrator dated June 14 and FMCSA addresses the impact of the 49 CFR part 385, nor the preventability September 5, 2019, and requested an program on small carriers in the standard contained therein. extension of the comment period by ‘‘Effectiveness Analysis’’ section below. letter dated September 13, 2019. The crash preventability In response to IIHS’s comments, FMCSA FMCSA posted these letters to this determinations made under this acknowledges that the demonstration docket and considered the June 14 letter program thus will not affect any program was a first step in examining as part of MCRRC’s comments. MCRRC carrier’s safety rating or ability to the impacts of preventability and NASTC expressed concern that operate. FMCSA will not issue penalties determinations on SMS with a small preventability would be conflated with or sanctions on the basis of these data set. Continuing the program and fault, and that this confusion may cause determinations, and the determinations expanding crash types will allow negative impacts to insurance rates and do not establish any obligations or FMCSA to continue to conduct analysis outcomes in private litigation. MCCRC impose legal requirements on any motor with more crashes. carrier. These determinations also will and NASTC stated that the program Regarding reviewer qualifications, not change how the Agency will make would cause unfair harm to small FMCSA reviewed nearly 15,000 police enforcement decisions. carriers. accident reports (PAR) during the The Commercial Vehicle Safety FMCSA emphasizes that these demonstration program. Eligible crashes Alliance (CVSA) expressed multiple determinations do not establish legal will continue to reviewed by two concerns, including issues with the new liability, fault, or negligence by any reviewers and 10 percent of the crashes crash types, reviewers’ qualifications, party. Fault is generally determined in will also be reviewed for quality control. Federalism impacts, and the impact of the course of civil or criminal FMCSA recognizes that the law an FMCSA not preventable proceedings and results in the enforcement who respond to the crash determination on a State’s criminal assignment of legal liability for the have the most information on the event. charges. The Insurance Institute of consequences of a crash. By contrast, a That is why the CPDP requirements Highway Safety (IIHS) indicated the preventability determination is not a include submission of the PAR. program does not improve safety and proceeding to assign legal liability for a Additionally, the Agency notes that the recommended FMCSA incentivize best crash. Under 49 U.S.C. 504(f), FMCSA’s eligble crash types for the CPDP practices and reward carriers’ preventability determinations may not continue to be generally less complex investments in safety. be admitted into evidence or used in a crash events. The other commenters either asked civil action for damages and are not In response to IIHS’ suggestion to questions or provided comments that reliable for that purpose. incentivize best practices, the Agency made it difficult to discern their In response to MCRRC’s and NASTC’s position on the proposal. notes that its preventability standard at concerns about the potential conflation 49 CFR 385, Appendix B, assesses if a FMCSA Response of preventability and fault, and CVSA’s driver exercising normal judgment and concern about the impact on State FMCSA declined to extend the foresight could have avoided the crash criminal proceedings, FMCSA added a comment period in response to by taking steps within his/her control disclaimer to the SMS website that MCRRC’s September 13, 2019, request without causing another kind of mishap. states: because MCRRC failed to show good The CPDP already takes into account cause for its request. FMCSA has A crash preventability determination does whether the driver or vehicle was provided ample notice and not assign fault or legal liability for the crash. operating in violation of an out of opportunities to comment throughout These determinations are made on the basis service regulation at the time of the of information available to FMCSA by the development of this program, from persons with no personal knowledge of the crash, which encourages carrier-wide the publication of its initial crash crash and are not reliable evidence in a civil best practices. The PAR generally does weighting analysis in 2015 (80 FR 3719), or criminal action. Under 49 U.S.C. 504(f), not contain sufficient information to through the announcement of the these determinations are not admissible in a account for best practices in the demonstration program in 2017 (82 FR civil action for damages. The absence of a not manufacturing of vehicles at this time.

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Changes to Eligible Crash Types not support further expanding the crash carrier’s list of crashes on the publicly FMCSA proposed two changes to the types in the program at this time. The available SMS website. Crashes were original eight crash types. First, FMCSA proposed new types are a reasonable not removed from the calculation of the would combine the crash type involving extension of the demonstration program Crash Indicator BASIC in SMS but the infrastructure failures and debris with based on the volume of not eligible motor carrier was provided an crashes submitted and reviewed, and the crash type for CMVs struck by cargo alternative measure and percentile the Agency’s expected ability to and equipment. The distinction between without not preventable crashes. determine preventability based on the FMCSA proposed that for eligible these two crash types did not result in documentation received from crashes occurring on or after August 1, different determinations and, in some submitters. 2019, FMCSA would continue to cases, required submitters to resubmit FMCSA acknowledges that the text to display the crashes with preventability their Requests for Data Review (RDRs) include unattended vehicles was notations in the carrier’s list of crashes under the other crash type. In addition, inadvertently omitted from the August on the public SMS website, but would FMCSA proposed changing the 2019 notice and the final list of crashes remove crashes with not preventable ‘‘Motorist Under the Influence’’ crash has been revised to reflect this. determinations from the SMS Crash type to ‘‘Individual Under the In addition, as FMCSA noted in the Indicator BASIC calculation. FMCSA Influence’’ to include crashes involving August 2019 notice, all not preventable would also note the not preventable pedestrians, bicyclists and others. crashes will be removed from the determinations in the driver’s record in In the August 2019 notice, FMCSA calculation of the Crash Indicator PSP. proposed to test the eight additional BASIC. However, the Agency will crash types. These crashes were analyze the new crash types for 24 Comments frequently submitted during the months but may announce changes Numerous commenters supported demonstration program, but did not earlier if certain crash types cannot be both the removal of not preventable qualify for one of the original crash consistently reviewed. If the new crash crashes from SMS entirely and the types. types are able to be consistently notation of these crashes on PSP. Lori Comments reviewed, the Agency may consider Fisher, Jeff Loggins, Larry Nestor, and expanding the program to include Stacey Johnson and OOIDA all Victor Van Kuilenburg asked that the additional crash types in the future. supported removing the not preventable Agency review all crashes. Some Regarding reviewer qualifications, crashes from the SMS calculation. commenters provided additional crash FMCSA is building on its experience in MCRRC and NASTC opposed this types for consideration in the program. reviewing nearly 15,000 PARs during change, noting that all other crashes will The National Motor Freight Traffic the demonstration program. Because the be ‘‘presumed preventable.’’ Association and United Motorcoach eligible crash types are, by design, less Association noted that the proposal complex crash events, FMCSA does not FMCSA Response made it unclear if unoccupied vehicles believe these reviews require extensive FMCSA is implementing the were still being included in the crash expertise. In addition, FMCSA has built associated changes to these information type that includes parked vehicles. in a quality control process to ensure systems. The SMS public display is CVSA expressed concern about the consistency and quality of these being revised to list not preventable expanding the crash types because of reviews. Eligible crashes will continue crashes occurring on or after August 1, concerns about the reviewers’ training to be reviewed by two reviewers, and 10 2019, separately from other crashes to and experience. Specifically, CVSA said percent of the crashes will also be make it clear they are not included in that the additional crash types require reviewed for quality control. FMCSA the Crash Indicator BASIC. The carrier’s higher standards of training and will also require the submission of the list of crashes and the notations education. CVSA noted the extensive PAR because FMCSA recognizes that associated with not preventable crashes training that crash reconstructionists the law enforcement official who will remain publicly available. Crashes receive. CVSA also requested responds to the crash will have the most deemed not preventable will not be clarification of the ‘‘under the information on the event. used to prioritize motor carriers for influence’’ standard. Regarding the ‘‘under the influence’’ safety interventions. FMCSA will An anonymous commenter asked if standard used, FMCSA is requiring the continue to display one of three the crash type of ‘‘When the CMV is PAR or other document submitted to determinations for the eligible crashes struck by a driver who experiences a demonstrate that the other driver was that it reviews: medical issue which causes the crash’’ charged with or arrested for driving 1. Reviewed—Not Preventable— includes when the CMV driver has the under the influence (or a related charge ‘‘FMCSA reviewed this crash and medical issue. such as operating while intoxicated), determined that it was not preventable.’’ OOIDA recommended adding a ‘‘Rare document a failed field sobriety test, 2. Reviewed —Preventable—‘‘FMCSA or Unusual Crash’’ type and noted the document a blood alcohol level of .08 reviewed this crash and determined that recent crash between a CMV and a for non-CMV drivers or .04 for a CMV it was preventable.’’ skydiver. driver, or documentation of a refusal to 3. Reviewed —Undecided—‘‘FMCSA reviewed this crash and could not make FMCSA Response test. To respond to the anonymous a preventability determination based on FMCSA supports OOIDA’s proposal question about medical issues, the crash the evidence provided.’’ for a ‘‘Rare or unusual crash’’ type and is not eligible if the submitter’s driver Crashes with ‘‘Reviewed— added this type to DataQs. However, the was the person with the medical Preventable’’ and ‘‘Reviewed— Agency expects that most crashes condition. Undecided’’ will continue to be submitted to this type will not meet the included in the Crash Indicator BASIC. standard and will be common, recurring SMS and PSP Changes The absence of a not preventable crash types. When this occurs, the RDR During the demonstration program, determination does not indicate that a will be found to be not eligible and notations of the preventability crash was preventable. The Crash closed upon review. The Agency does determinations were made in the motor Indicator BASIC percentiles will remain

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available only to motor carriers who log FMCSA Response Process Information in to view their own data, as well as to FMCSA will discontinue the 30-day FMCSA proposed to develop the FMCSA and law enforcement users. public input period in the CPDP. functionality in DataQs to allow FMCSA Determination notations for crashes However, as reflected in the August to change the crash type on behalf of the reviewed in the previous demonstration 2019 notice, the Agency will continue to submitter to another eligible crash type, program will remain in SMS for 2 years accept information about any crash by when appropriate. The Agency also from the date of the crash. The Agency email to [email protected]. proposed streamlining the review previously announced that crashes Any information received will be fully process and using only one stage of reviewed during the demonstration considered and could result in a change contract reviewers to provide a program would not be removed from the in the determination. recommendation. In addition, FMCSA Crash Indicator BASIC, and some Document Requirement proposed allowing the contract carriers may have decided not to reviewers to close RDRs for crashes that participate on that basis. Therefore, FMCSA proposed requiring are not one of the eligible crash types. crashes reviewed during the submitters to provide the complete PAR FMCSA proposed to rely on the Motor demonstration program will not be to participate in the program. Carrier Management Information System removed from calculation of the SMS Comments (MCMIS) crash report to confirm the Crash Indicator BASIC but motor driver’s license and medical carriers will still have access to the MCRRC objected to the Agency’s reliance on PARs in the CPDP because certification status as part of alternative measures and percentiles. implementation. Crashes remain in SMS for 2 years PARs are hearsay that are entitled to little or no weight in a fault or legal FMCSA proposed to continue from the date of the crash and remain reviewing post-crash inspection reports in PSP for 5 years from the date of the liability determination. Alex Scott of Michigan State University stated that and if the inspection shows that the crash. As a result, FMCSA will not CMV or driver was in violation of an out review crashes that are more than 5 the program contradicts FMCSA’s previous position on the sufficiency and of service (OOS) regulation under the years old. reliability of the information in PARs. North American Standard OOS Criteria End of Demonstration Program and prior to the crash or that the driver was FMCSA Response Start of New Program not properly licensed, the crash will be The demonstration program did not deemed preventable. In addition, The demonstration program accepted require any specific documents be FMCSA proposed to continue to request crashes in the eight original eligible submitted with the RDR so that the post-crash drug and alcohol test results crash types that occurred from June 1, Agency could determine which when the crash results in a fatality. 2017, through July 31, 2019. RDRs for documents were the strongest for future Comments these crashes were accepted through use. Based on the more than 14,000 September 30, 2019. RDRs reviewed, FMCSA determined Several commenters noted that it took Comments that the PAR is the best single source of longer than expected for RDRs to be crash information. FMCSA’s experience reviewed in the demonstration program There were no comments specifically thoughout the demonstration program and supported changes to improve the about the end of the demonstration was that the majority of PARs submitted process. program or start date for the CPDP. With contained sufficient detail to complete a FMCSA Response the publication of this notice, FMCSA’s preventability review. As noted above, DataQs sytem is available to accept preventability determinations do not As a result, FMCSA is implementing RDRs for the expanded list of eligible assign fault or legal liability for a crash. these process improvements. However, crashes occurring on or after August 1, In addition, FMCSA notes that previous FMCSA is making one clarification 2019. studies of PAR accuracy were based on regarding the use of MCMIS to confirm proper licensing on the date of the Public Input Changes fatal crashes and were not limited to the generally less complex crash types in crash. If this information is missing FMCSA proposed to cease the 30-day the demonstration program. The from the MCMIS report or MCMIS public input period and cease the reviewers will continue to rely on PARs indicates the wrong license class for the practice of publishing preliminary not and other documents submitted to vehicle being operated, the Commercial preventable determinations. This conduct the review. Driver’s License Information System change allows RDRs to be closed with Therefore, when submitting RDRs to report will be used to verify the driver’s not preventable determinations without the CPDP, the submitter must provide license. If the driver has renewed his/ the 30-day delay and will reduce the PAR and is encouraged to submit her license and/or medical certificate resources to take additional action on other documentation providing since the date of the crash, evidence of the RDR. In addition, FMCSA proposed compelling evidence that the crash is licensing and/or medical certification to stop publishing a list of not eligible and was not preventable. The on the date of the crash will be preventable determinations on the DataQs system continues to accept requested from the submitter. Failure to Agency’s website. The Agency will documents, photos, and videos that do provide this information will continue continue to publish quarterly statistics, not exceed 5 MB in formats including to preclude a not preventable as was done during the demonstration MP4, MPG, MKV, AVI, MPEG, and determination and will result in an program. WMV file types. undecided determination. If If only the PAR is submitted and it documentation shows that the driver Comments contains conflicting information about was not qualified, the crash will be Angela Petry, Doug Anonymous, and the crash (e.g., the narrative is different deemed preventable. Greyhound Lines commented that the than the diagram or point of impact If drug and alcohol testing results, or 30-day public input period should be information), the crash may found to be the required explanation of why the eliminated. No commenters opposed not eligible or the determination may be tests were not completed, are not this change. undecided. submitted, this will also preclude a not

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preventable determination and will non-participating carriers, 134 carriers Comments result in an undecided determination. If gain alert status and 136 carriers lose Alex Scott of Michigan State the drug and/or alcohol test results were alert status as a result of excluding not University indicated that the program is positive, the crash will be deemed preventable crashes from the Crash biased to large carriers, does not preventable. Indicator BASIC. The third analysis improve identification of high risk FMCSA will continue to make found that removing not preventable carriers, and does not provide any preventable determinations if there is crashes from the Crash Indicator BASIC evidence it improves crash evidence that the driver and/or carrier should not have an impact on the predictability. was legally prohibited from operating effectiveness of FMCSA’s prioritization Justin Smoot, MCRRC, and NASTC the CMV at the time of the crash. programs (SMS, High-Risk). This is due also expressed concern that large Specfically, if a post-crash inspection to the relatively low number (about 2%) carriers were over represented in the identifies a driver or vehicle violation of of crashes determined to be not demonstration program. an OOS regulation and the violation preventable and removed from the existed before the crash and was not calculation. FMCSA Response attributed to the crash, or if the MCMIS In conclusion, the evaluation of the FMCSA notes that participation by crash report or other documents effectiveness of the demonstration small carriers with fewer than 15 power reviewed as part of the determination program found that while carriers who units in the demonstration program was indicate that the driver was not have had not preventable crashes only 6 percent of the submissions. qualified to drive on the date of the removed via the demonstration program crash, the crash is not eligible for a not saw a reduction on their Crash BASIC However, overall DataQs use by this preventable determination because the percentiles, there was negligible impact same population is 45.5 percent. As a driver and/or carrier were legally on the overall SMS effectiveness. result, the Agency expects that the new prohibited from operating the CMV at On average, carriers that had not program, and the removal of crashes the time of the crash. preventable crashes removed from the from the SMS Crash Indicator BASIC, Also, to improve program efficiencies calculation of their Crash Indicator will result in an increased use by small and facilitate postings with SMS, the BASIC had a percentile drop of 9 points carriers with eligible crashes. updated DataQs system will not allow a in that BASIC. The decrease in Because SMS segments carriers into submitter to complete the process if percentiles was slightly greater for safety event groups, SMS does not there is not a MCMIS crash report smaller carriers, primarily due to the directly compare the crash records of submitted by the State. However, the low participation by carriers in smaller large carriers to those of small carriers. submitter may enter the required safety event groups. In addition, after The greater participation by large information and save the RDR in DataQs the removal of not preventable crashes, carriers in the demonstration program and then submit once the crash is in small carriers were less likely have a therefore had no impact on the MCMIS. A State’s delay in submitting sufficient number of crashes to be percentiles of small carriers. the crash to FMCSA does not delay the evaluated in the BASIC under the data The Agency’s effectiveness analysis removal of a not preventable crash from sufficiency standards used in SMS. discussed above concluded that SMS because SMS uses only crashes To evaluate the impact of these removing the not preventable crashes that are in MCMIS. changes on FMCSA’s ability to identify does not impede the Agency’s ability to high risk motor carriers for safety identify high risk carriers. This program Effectiveness Analysis interventions, the analysis compared the offers all carriers and drivers the During the demonstration program, future crash rate of the group of carriers opportunity to request and obtain the 4,089 unique motor carriers submitted in alert status before and after the removal of eligible not preventable more than 14,700 RDRs. FMCSA removal of the not preventable crashes crashes from their SMS calculations to conducted an analysis of the 2-year from the Crash Indicator BASIC. more accurately reflect their crash demonstration program and a copy is in Although the group of carriers in alert history. the docket. For purposes of the updated status after removal of the not Lastly, FMCSA has never indicated analysis, FMCSA looked at the data for preventable crashes had a slightly that SMS predicts crashes. FMCSA uses the 2,124 participating carriers that had higher future crash rate than the group SMS to identify and prioritize motor at least one crash determined to be not in alert status before removal of the not carriers for safety interventions before preventable. The report includes three preventable crashes, the analysis team crashes occur, using risk management primary analyses: (1) Summary of safety found a negligible impact on the ability techniques for high consequence, low profiles of carriers that participate in the of the Crash Indicator BASIC to identify likelihood events and considering program; (2) impact on carriers’ Crash high risk carriers. The effectiveness carrier exposure across carriers of all Indicator BASIC percentiles; and (2) analysis determined that when not sizes. Therefore, there was no impact on SMS effectiveness. preventable crashes were removed, the expectation that this program would The first analysis found that group of carriers identified in SMS, improve crash prediction. participating carriers are more likely to when considering all BASICs, had a Impact of SMS Changes be large combination carriers (greater future crash rate 97% higher than the than 51 Power Units (PU)), have more group of carriers not identified. Although the removal of not inspections per PU, and have a crash The lack of an impact on SMS preventable crashes from the Crash risk that does not differ from non- effectiveness is mainly a result of the Indicator BASIC will not impact the participants. The second analysis found relatively small number of carriers that Agency’s ability to identify high risk that, on average, carriers with not participated in the demonstration carriers, some carriers will see changes preventable crashes removed have a program. Only 169 and 208 carriers to their Crash Indicator BASIC percentile drop of 9 points in the were projected to gain and lose alerts in percentiles. The Agency points out recalculated Crash Indicator BASIC. the Crash Indicator BASIC, respectively, again that because SMS is a relative Only a small number of carriers change which is a small fraction (2 percent) of system, the removal of not preventable alert status in the Crash Indicator the 8,634 carriers identified in the Crash crashes will decrease the Crash BASIC—out of both participating and Indicator BASIC. Indicator BASIC percentiles of some

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carriers and may increase the Crash crashes to group like crash events Rare or Unusual type of crash when Indicator BASIC percentiles of other together. As a result, the final list of the CMV: carriers in the same safety event group. eligible crash types is: • Was involved in a crash type that As a result, a motor carrier that does not Struck in the Rear type of crash when seldom occurs and does not meet have any additional crashes may see its the CMV was struck: • another eligible crash type (e.g., being Crash Indicator BASIC percentile In the rear; or struck by an airplane or skydiver or • on the side at the rear. increase because its peers submitted being struck by a deceased driver). RDRs and the not preventable crashes Wrong Direction or Illegal Turns type were removed from the calculations. In of crash when the CMV was struck: DataQs • By a motorist driving in the wrong addition, even a motor carrier that has With publication of this notice, not preventable crashes removed may direction; or • by another motorist in a crash when DataQs is available to accept RDRs for see its Crash Indicator BASIC percentile a driver was operating in the wrong eligible crashes occurring on or after increase if its peers had a greater direction; or August 1, 2019. Submitters must number of not preventable crashes • by a vehicle that was making a U- provide a PAR and are encouraged to removed. turn or illegal turn. provide other documents, photos, and The Crash Indicator BASIC Parked or Legally Stopped type of videos to present compelling evidence percentiles have never been publicly crash when the CMV was struck: that the crash is eligible and not available and will remain available only • While legally stopped at a traffic preventable. FMCSA may request to motor carriers who log in to view control device (e.g., stop sign, red light additional information on the crash, their own data, as well as to FMCSA or yield); or while parked, including which may include any documentation and law enforcement users. This while the vehicle was unattended. the carrier is required to maintain under program will not change any carrier’s Failure of the other vehicle to Stop the Agency’s regulations. Failure to safety fitness rating or ability to operate, type of crash when the CMV was struck: submit documents requested by the • nor will it establish any obligations or By a vehicle that did not stop or Agency may cause the RDR to be closed impose legal requirements on any motor slow in traffic; or without a preventability determination • carrier. This program also will not by a vehicle that failed to stop at a or with an undecided determination. change how the Agency makes traffic control device. enforcement decisions. Under the Influence type of crash Only eligible crashes submitted to when the CMV was struck: FMCSA’s CPDP will be reviewed. RDRs National Academy of Sciences’ (NAS) • By an individual under the for crash preventability reviews should Correlation Study influence (or related violation, such as not be submitted to the States or other FMCSA is making these changes to operating while intoxicated), according organizations through DataQs and will SMS separately from its ongoing work to the legal standard of the jurisdiction be closed. in response to the June 27, 2017, NAS where the crash occurred; where the As during the demonstration program, report, ‘‘Improving Motor Carrier Safety individual was charged or arrested, if a submitter receives a determination Measurement.’’ The NAS report noted failed a field sobriety or other test, or that the crash was preventable or that the crash preventability program refused to test; or undecided, or if the RDR is closed for was of interest but did not issue a • by another motorist in a crash failure to submit additional requested recommendation directly relating to the where an individual was under the documents, the RDR may be re-opened program. influence (or related violation such as once. FMCSA will reconsider the operating while intoxicated), according request if the submitter provides Implementation to the legal standard of the jurisdiction additional documentation to support the Preventability Standard where the crash occurred where the request. individual was charged or arrested, The standard for making a Agency Websites failed a field sobriety test or other tests, preventability determination is or refused to test. provided in 49 CFR part 385, Appendix FMCSA established a new website for Medical Issues, Falling Asleep or B, section II.B(e): ‘‘If a driver, who the CPDP at www.fmcsa.dot.gov/crash- Distracted Driving type of crash when exercises normal judgment and foresight preventability-determination-program. the CMV was struck: This website includes frequently asked could have foreseen the possibility of • By a driver who experienced a questions and tools to help submitters the accident that in fact occurred, and medical issue which contributed to the avoided it by taking steps within his/her complete the RDR process in DataQs. crash; or This website will be updated quarterly control which would not have risked • by a driver who admitted falling causing another kind of mishap, the to provide information on the RDRs asleep or admitted distracted driving received and reviewed by the Agency. accident was preventable.’’ This (e.g., cellphone, GPS, passengers, other). continues to be the standard used by the Cargo/Equipment/Debris or The website for the demonstration Agency for all preventability reviews. Infrastructure Failure type of crash program will continue to be available at The burden continues to be on the when the CMV: www.fmcsa.dot.gov/crash- submitter to show by compelling • Was struck by cargo, equipment or preventability-demonstration-program. evidence that the crash was not debris (e.g., fallen rock, fallen trees, The Agency’s Motor Carrier Safety preventable. unidentifiable items in the road); or Planner at https://www.fmcsa.dot.gov/ Crash Types crash was a result of an infrastructure safety/carrier-safety/motor-carrier- failure. safety-planner also includes information FMCSA is implementing all crash Animal Strike type of crash when the about the CPDP. types proposed in the August 2019 CMV: notice and adding a ‘‘Rare or unusual • Struck an animal James A. Mullen, crash’’ type. However, to help Suicide type of crash when the CMV: Acting Administrator. submitters find the correct eligible crash • Struck an individual committing or [FR Doc. 2020–09679 Filed 5–5–20; 8:45 am] type, FMCSA rearranged the order of attempting to commit suicide BILLING CODE 4910–EX–P

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DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Where do I go to read public comments, Bianca Carr, U.S. Department of and find supporting information? Maritime Administration Transportation, Maritime Go to the docket online at http:// Administration, 1200 New Jersey www.regulations.gov, keyword search [Docket No. MARAD–2020–0069] Avenue SE, Room W23–453, MARAD–2020–0069 or visit the Docket Washington, DC 20590. Telephone 202– Management Facility (see ADDRESSES for Requested Administrative Waiver of 366–9309, Email [email protected]. hours of operation). We recommend that the Coastwise Trade Laws: Vessel you periodically check the Docket for STELLAR (Jetboat); Invitation for SUPPLEMENTARY INFORMATION: As new submissions and supporting Public Comments described by the applicant the intended service of the vessel STELLAR is: material. AGENCY: Maritime Administration, DOT. —Intended Commercial Use of Vessel: Will my comments be made available to ACTION: Notice. ‘‘Hauling passengers for recreation on the public? rivers and near coastal waters of SUMMARY: The Secretary of Yes. Be aware that your entire Southcentral and Interior Alaska. Transportation, as represented by the comment, including your personal Alaska Backcountry Access jetboats Maritime Administration (MARAD), is identifying information, will be made are primarily utilized to carry authorized to grant waivers of the U.S.- publicly available. sightseeing passengers on the build requirements of the coastwise Twentymile and Glacier Rivers near May I submit comments confidentially? trade laws to allow the carriage of no Portage Alaska. Vessel is NOT utilized more than twelve passengers for hire on If you wish to submit comments in Southeast Alaska.’’ vessels, which are three years old or under a claim of confidentiality, you more. A request for such a waiver has —Geographic Region Including Base of should submit three copies of your been received by MARAD. The vessel, Operations: ‘‘Alaska excluding complete submission, including the and a brief description of the proposed Southeast Alaska’’ (Base of information you claim to be confidential service, is listed below. Operations: Anchorage, AK) business information, to the Department of Transportation, Maritime DATES: Submit comments on or before —Vessel Length and Type: 20’ jetboat Administration, Office of Legislation June 5, 2020. The complete application is available and Regulations, MAR–225, W24–220, ADDRESSES: You may submit comments for review identified in the DOT docket 1200 New Jersey Avenue SE, identified by DOT Docket Number as MARAD–2020–0069 at http:// Washington, DC 20590. Include a cover MARAD–2020–0069 by any one of the www.regulations.gov. Interested parties letter setting forth with specificity the following methods: may comment on the effect this action basis for any such claim and, if possible, • Federal eRulemaking Portal: Go to may have on U.S. vessel builders or a summary of your submission that can http://www.regulations.gov. Search businesses in the U.S. that use U.S.-flag be made available to the public. MARAD–2020–0069 and follow the vessels. If MARAD determines, in Privacy Act instructions for submitting comments. accordance with 46 U.S.C. 12121 and • Mail or Hand Delivery: Docket MARAD’s regulations at 46 CFR part In accordance with 5 U.S.C. 553(c), Management Facility is in the West 388, that the issuance of the waiver will DOT solicits comments from the public Building, Ground Floor of the U.S. have an unduly adverse effect on a U.S.- to better inform its rulemaking process. Department of Transportation. The vessel builder or a business that uses DOT posts these comments, without Docket Management Facility location U.S.-flag vessels in that business, a edit, to www.regulations.gov, as address is: U.S. Department of waiver will not be granted. Comments described in the system of records Transportation, MARAD–2020–0069, should refer to the vessel name, state the notice, DOT/ALL–14 FDMS, accessible 1200 New Jersey Avenue SE, West commenter’s interest in the waiver through www.dot.gov/privacy. To Building, Room W12–140, Washington, application, and address the waiver facilitate comment tracking and DC 20590, between 9 a.m. and 5 p.m., criteria given in section 388.4 of response, we encourage commenters to Monday through Friday, except on MARAD’s regulations at 46 CFR part provide their name, or the name of their Federal holidays. 388. organization; however, submission of Note: If you mail or hand-deliver your names is completely optional. Whether comments, we recommend that you Public Participation or not commenters identify themselves, include your name and a mailing How do I submit comments? all timely comments will be fully address, an email address, or a considered. If you wish to provide telephone number in the body of your Please submit your comments, comments containing proprietary or document so that we can contact you if including the attachments, following the confidential information, please contact we have questions regarding your instructions provided under the above the agency for alternate submission submission. heading entitled ADDRESSES. Be advised instructions. Instructions: All submissions received that it may take a few hours or even (Authority: 49 CFR 1.93(a), 46 U.S.C. 5103, must include the agency name and days for your comment to be reflected 46 U.S.C. 12121) specific docket number. All comments on the docket. In addition, your Dated: May 1, 2020. received will be posted without change comments must be written in English. to the docket at www.regulations.gov, We encourage you to provide concise By Order of the Maritime Administrator. including any personal information comments and you may attach T. Mitchell Hudson, Jr., provided. For detailed instructions on additional documents as necessary. Secretary, Maritime Administration. submitting comments, see the section There is no limit on the length of the [FR Doc. 2020–09646 Filed 5–5–20; 8:45 am] entitled Public Participation. attachments. BILLING CODE 4910–81–P

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DEPARTMENT OF TRANSPORTATION limit to the length of necessary U.S.C. 30118 and 30120 and does not attachments to the comments. If represent any Agency decision or other National Highway Traffic Safety comments are submitted in hard copy exercise of judgment concerning the Administration form, please ensure that two copies are merits of the petition. provided. If you wish to receive II. Vehicles Involved: Approximately [Docket No. NHTSA–2020–0010; Notice 1] confirmation that comments you have 27,375 of the following MY 2019–2020 Mercedes-Benz USA, LLC, Receipt of submitted by mail were received, please Mercedes-Benz CLA-Class, A-Class, Petition for Decision of enclose a stamped, self-addressed GLA-Class, and GLB-Class motor Inconsequential Noncompliance postcard with the comments. Note that vehicles manufactured between August all comments received will be posted 20, 2018, and January 16, 2020, are AGENCY: National Highway Traffic without change to https:// potentially involved: Safety Administration (NHTSA), www.regulations.gov, including any • Mercedes-Benz A220 Department of Transportation (DOT). personal information provided. • Mercedes-Benz A220 4MATIC ACTION: Receipt of petition. All comments and supporting • Mercedes-Benz A35 AMG 4MATIC materials received before the close of • Mercedes-Benz CLA250 SUMMARY: Mercedes-Benz AG business on the closing date indicated • Mercedes-Benz CLA250 4MATIC (‘‘MBAG’’) and Mercedes-Benz USA, above will be filed in the docket and • Mercedes-Benz CLA35 AMG 4MATIC LLC (‘‘MBUSA’’) (collectively, will be considered. All comments and • Mercedes-Benz CLA45 AMG 4MATIC ‘‘Mercedes-Benz’’) has determined that supporting materials received after the • Mercedes-Benz GLA250 4MATIC certain model year (MY) 2019–2020 closing date will also be filed and will • Mercedes-Benz GLB250 Mercedes-Benz CLA-Class, A-Class, be considered to the fullest extent • Mercedes-Benz GLB250 4MATIC GLA-Class, and GLB-Class motor possible. III. Noncompliance: Mercedes-Benz vehicles do not fully comply with When the petition is granted or explains that the noncompliance is that Federal motor vehicle safety standard denied, notice of the decision will also the instrument panel in the subject (FMVSS) No. 135, Light Vehicle Brake be published in the Federal Register vehicles displays the braking indicators Systems. Mercedes-Benz filed a pursuant to the authority indicated at in a slightly smaller size than required noncompliance report dated January 27, the end of this notice. by paragraph S5.5.5 of FMVSS No. 135. 2020, and subsequently petitioned All comments, background Specifically, the size of the text for the NHTSA on February 10, 2020, for a documentation, and supporting brake indicators in the subject vehicles decision that the subject noncompliance materials submitted to the docket may ranges between 2.92 mm to 3.17 mm is inconsequential as it relates to motor be viewed by anyone at the address and when the minimum required is 3.2 mm. vehicle safety. This notice announces times given above. The documents may IV. Rule Requirements: Paragraph receipt of Mercedes-Benz’s petition. also be viewed on the internet at https:// S5.5.5 of FMVSS No. 135, includes the DATES: Send comments on or before www.regulations.gov by following the requirements relevant to this petition. June 5, 2020. online instructions for accessing the Each visual indicator shall display a ADDRESSES: Interested persons are dockets. The docket ID number for this word or words in accordance with the invited to submit written data, views, petition is shown in the heading of this requirements of FMVSS No. 101 and and arguments on this petition. notice. S5.5 of FMVSS 135, which shall be Comments must refer to the docket and DOT’s complete Privacy Act legible to the driver under all daytime notice number cited in the title of this Statement is available for review in a and nighttime conditions when notice and submitted by any of the Federal Register notice published on activated. Unless otherwise specified, following methods: April 11, 2000 (65 FR 19477–78). the words shall have letters not less 1 • Mail: Send comments by mail SUPPLEMENTARY INFORMATION: than 3.2 mm ( ⁄8 inch) high. addressed to the U.S. Department of I. Overview: Mercedes-Benz has V. Summary of Mercedes-Benz’s Transportation, Docket Operations, M– determined that certain MY 2019–2020 Petition: The following views and 30, West Building Ground Floor, Room Mercedes-Benz CLA-Class, A-Class, arguments presented in this section, V. W12–140, 1200 New Jersey Avenue SE, GLA-Class, and GLB-Class motor Summary of Mercedes-Benz’s petition, Washington, DC 20590. vehicles do not fully comply with the are the views and arguments provided • Hand Delivery: Deliver comments requirements of paragraph S5.5.5 of by Mercedes-Benz. They have not been by hand to the U.S. Department of FMVSS No. 135, Light Vehicle Brake evaluated by the Agency and do not Transportation, Docket Operations, M– Systems (49 CFR 571.135). Mercedes- reflect the views of the Agency. 30, West Building Ground Floor, Room Benz filed a noncompliance report Mercedes-Benz described the subject W12–140, 1200 New Jersey Avenue SE, dated January 27, 2020, pursuant to 49 noncompliance and stated their belief Washington, DC 20590. The Docket CFR part 573, Defect and that the noncompliance is Section is open on weekdays from 10 Noncompliance Responsibility and inconsequential as it relates to motor a.m. to 5 p.m. except for Federal Reports, and subsequently petitioned vehicle safety. Holidays. NHTSA on February 10, 2020, for an In support of its petition, Mercedes- • Electronically: Submit comments exemption from the notification and Benz submitted the following reasoning: electronically by logging onto the remedy requirements of 49 U.S.C. 1. Mercedes-Bends believes that the letter Federal Docket Management System Chapter 301 on the basis that this height of the braking indicators, in this (FDMS) website at https:// noncompliance is inconsequential as it instance is slightly smaller than the www.regulations.gov/. Follow the online relates to motor vehicle safety, pursuant requirement, does not expose an occupant to instructions for submitting comments. to 49 U.S.C. 30118(d) and 30120(h) and any greater risk of injury than an occupant • in a vehicle with slightly larger font size. Comments may also be faxed to 49 CFR part 556, Exemption for 2. Mercedes-Benz alleges that the purpose (202) 493–2251. Inconsequential Defect or of the standardized size requirement for the Comments must be written in the Noncompliance. brake system warning indicators is to ensure English language, and be no greater than This notice of receipt of Mercedes- they are visually perceptible to drivers under 15 pages in length, although there is no Benz’s petition is published under 49 all operating conditions. Mercedes-Benz says

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that the Agency has a long and consistent indicators are located adjacent to the noncompliance is inconsequential as it history of granting petitions for speedometer and, therefore, remain within relates to motor vehicle safety, and that inconsequentiality for discrepancies the driver’s direct line of sight. This slight its petition request to be exempted from involving a letter height requirement where difference in size is not visually perceptible providing notification of the the text appeared somewhat smaller than and does not affect the driver’s ability to read required. In fact, NHTSA has granted or understand the indicators. Indeed, the noncompliance, as required by 49 petitions where the indicators displayed indicators are clearly illuminated and remain U.S.C. 30118, and a remedy for the included lettering that was as much as a full visible under all driving conditions. noncompliance, as required by 49 millimeter less than the minimum size. See 5. Mercedes-Benz stated that all of the U.S.C. 30120, should be granted. 47 FR 31347 (July 19, 1982) (granting a indicators at issue here are accurately petition of Subaru of America, Inc., where NHTSA notes that the statutory depicted and are displayed in the correct provisions (49 U.S.C. 30118(d) and the brake system indicator lettering was only colors, consistent with FMVSS No. 101, 2.2 mm high, but the ISO symbol indicators Table 1. Thus, there should not be any 30120(h)) that permit manufacturers to were located within the driver’s line of sight confusion about the meaning of the file petitions for a determination of and continued to be ‘‘easily identifiable and indicators, and the standard symbol that is inconsequentiality allow NHTSA to very readable’’). displayed continues to convey the intended exempt manufacturers only from the 3. Mercedes-Benz asserts that in addressing meaning of the indicator. Further, although duties found in sections 30118 and similar noncompliances in the past, the the lettering that appears below the ISO 30120, respectively, to notify owners, Agency has determined that ‘‘it is very symbols is slightly smaller than 3.2 mm purchasers, and dealers of a defect or unlikely that a vehicle user would either fail minimum height, the overall height of the to see or fail to understand the meaning of noncompliance and to remedy the ABS and Parking Brake symbols is more than defect or noncompliance. Therefore, any the brake . . . warning light’’ where the 3.2 mm and exceeds the height requirement ‘‘information presented by the telltales is of the standard. Finally, the functionality of decision on this petition only applies to correct.’’ See 81 FR 92963 (December 20, the brake indicators themselves is not the subject vehicles that Mercedes-Benz 2016) (granting General Motors’ petition of affected by the software issue. The indicators no longer controlled at the time it over 46,000 vehicles where the ‘‘Park’’ properly display during both the instrument determined that the noncompliance indicator displayed at 2.44 mm). In the cluster warning lamp operation check and in existed. However, any decision on this General Motors decision, the Agency found the event a brake malfunction were to occur. petition does not relieve vehicle the discrepancy ‘‘pose[d] little, if any, risk to 6. Mercedes-Benz says that it has not motor vehicle safety’’ where all other braking distributors and dealers of the received any reports related to the prohibitions on the sale, offer for sale, indicator requirements were met and the performance of the indicators included on indicators were located in the instrument or introduction or delivery for the 10.25-inch displays in the subject cluster, adjacent to the speedometer and in vehicles. Nor has it received any reports introduction into interstate commerce of direct view of the driver); 69 FR 41568 (July related to customers’ inability to read or the noncompliant vehicles under their 9, 2004) (granting a petition of Hyundai decipher the brake telltales. control after Mercedes-Benz notified Motor Company involving more than 237,000 them that the subject noncompliance vehicles, where the FMVSS No. 105 braking Mercedes-Benz’s complete petition existed. system indicator letter height varied from 2.5 and all supporting documents are mm to 3.1 mm). available by logging onto the Federal Authority: (49 U.S.C. 30118, 30120: 4. In this case, the letter height for the Docket Management System (FDMS) delegations of authority at 49 CFR 1.95 and braking indicators is only slightly smaller website at https://www.regulations.gov 501.8). than the 3.2 mm minimum. Depending on and by following the online search the particular indicator, the text size can be Otto G. Matheke III, smaller by a range of 0.03 mm up to a instructions to locate the docket number Director, Office of Vehicle Safety Compliance. maximum of .28 mm. The electronic as listed in the title of this notice. instrument cluster is located within the Mercedes-Benz concluded by [FR Doc. 2020–09694 Filed 5–5–20; 8:45 am] driver’s direct field of vision, and the braking expressing the belief that the subject BILLING CODE 4910–59–P

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 219 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southeast Fisheries Science Center Fisheries Research; Final Rule

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DEPARTMENT OF COMMERCE research conducted by the SEFSC (in • Limit gear set times (varies based on the Atlantic Ocean and associated gear type). National Oceanic and Atmospheric estuaries, Gulf of Mexico and associated • Haul gear immediately if marine Administration estuaries, and Caribbean Sea). SEFSC mammals may interact with gear. fisheries research has the potential to • Utilize dedicated marine mammal 50 CFR Part 219 take marine mammals due to possible observations during select surveys. • Prohibit chumming. [Docket No. 200409–0108] physical interaction with fishing gear • (e.g., trawls, gillnets, hook-and-line Continue investigation on the RIN 0648–BG44 gear) and exposure to noise generated by effectiveness of modifying lazy lines to SEFSC sonar devices (e.g., reduce bottlenose dolphin entanglement Taking and Importing Marine echosounders, side-scan sonar). The risk. Mammals; Taking Marine Mammals • SEFSC submitted an application to Establish and convene the South Incidental to Southeast Fisheries NMFS requesting 5-year regulations and Carolina Department of Natural Science Center Fisheries Research a letter of authorization (LOA) to take Resources (SCDNR) Working Group to better understand bottlenose dolphin AGENCY: National Marine Fisheries multiple species and stocks of marine entanglement events and apply effective Service (NMFS), National Oceanic and mammals in the three specified research areas (Atlantic, Gulf of Mexico, and mitigation strategies. Atmospheric Administration (NOAA), We note that in the proposed rule (84 Caribbean). The SEFSC requested, and Commerce. FR 6576, February 27, 2019), we NMFS has authorized, take, by ACTION: Final rule, notification of proposed regulations that would have mortality, serious injury, and Level A issuance. applied separately both to the SEFSC harassment, incidental to the use of and Texas Parks and Wildlife SUMMARY: NMFS’s Office of Protected various types of fisheries research gear Department (TPWD). Since that time, Resources (OPR), upon request from and Level B harassment incidental to new information has emerged regarding NMFS’s Southeast Fisheries Science the use of active acoustic survey TPWD’s activity that NMFS is Center (SEFSC), hereby issues sources. The regulations are valid from considering before making final regulations to govern the unintentional June 5, 2020, through June 5, 2025. taking of marine mammals incidental to decisions regarding the take of marine fisheries research conducted in the Legal Authority for the Action mammals incidental to TPWD’s gillnet fishing. Here, we announce issuance of Atlantic Ocean along the southeastern Section 101(a)(5)(A) of the MMPA (16 regulations for SEFSC only. U.S. coast and select estuaries, the Gulf U.S.C. 1371(a)(5)(A)) directs the of Mexico and select estuaries, and the Secretary of Commerce to allow, upon Background Caribbean Sea over the course of 5 request, the incidental, but not Sections 101(a)(5)(A) and (D) of the years. These regulations, which allow intentional taking of small numbers of MMPA (16 U.S.C. 1361 et seq.) direct for the issuance of Letters of marine mammals by U.S. citizens who the Secretary of Commerce (as delegated Authorization (LOA) for the incidental engage in a specified activity (other than to NMFS) to allow, upon request, the take of marine mammals during the commercial fishing) within a specified incidental, but not intentional, taking of described activities and specified geographical region for up to 5 years if, small numbers of marine mammals by timeframes, prescribe the permissible after notice and public comment, the U.S. citizens who engage in a specified methods of taking and other means of agency makes certain findings and activity (other than commercial fishing) effecting the least practicable adverse issues regulations that set forth within a specified geographical region if impact on marine mammal species or permissible methods of taking pursuant certain findings are made and either stocks and their habitat, as well as to that activity, as well as monitoring regulations are issued or, if the taking is requirements pertaining to the and reporting requirements. limited to harassment, a notice of a monitoring and reporting of such taking. Section 101(a)(5)(A) of the MMPA and proposed authorization is provided to DATES: Effective from June 5, 2020, the implementing regulations at 50 CFR the public for review. through June 5, 2025. part 216, subpart I provide the legal An authorization for incidental ADDRESSES: A copy of the SEFSC’s basis for issuing these final rules takings shall be granted if NMFS finds application and supporting documents, containing 5-year regulations and that the taking will have a negligible as well as a list of the references cited subsequent Letters of Authorization. As impact on the species or stock(s), will in this document, may be obtained directed by this legal authority, these not have an unmitigable adverse impact online at: www.fisheries.noaa.gov/ final rules contain mitigation, on the availability of the species or action/incidental-take-authorization- monitoring, and reporting requirements. stock(s) for subsistence uses (where noaa-fisheries-afsc-fisheries-and- Summary of Major Provisions Within relevant), and if the permissible ecosystem-research. In case of problems the Regulations methods of taking and requirements accessing these documents, please call pertaining to the mitigation, monitoring the contact listed below. Following is a summary of the major and reporting of such takings are set FOR FURTHER INFORMATION CONTACT: provisions for the SEFSC within the forth. Jaclyn Daly, Office of Protected final rulemaking. The SEFSC is required NMFS has defined ‘‘negligible Resources, NMFS, (301) 427–8401. to: impact’’ in 50 CFR 216.103 as an impact • SUPPLEMENTARY INFORMATION: Delay setting or haul in gear if resulting from the specified activity that marine mammal interaction may occur. cannot be reasonably expected to, and is Purpose and Need for Regulatory • Monitor prior to and during sets for not reasonably likely to, adversely affect Action signs of potential marine mammal the species or stock through effects on These regulations, issued under the interaction. annual rates of recruitment or survival. authority of the MMPA (16 U.S.C. 1361 • Implement the ‘‘move-on rule’’ The MMPA states that the term ‘‘take’’ et seq.), establishes a framework for mitigation strategy during select surveys means to harass, hunt, capture, kill or authorizing the take of marine mammals (note: this measure does not apply to attempt to harass, hunt, capture, or kill incidental to fisheries-independent bottlenose dolphins). any marine mammal.

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Except with respect to certain chartered vessels in the state and funded based on proposals developed activities not pertinent here, the MMPA Federal waters of the Atlantic Ocean by many independent researchers and defines ‘‘harassment’’ as any act of south of Virginia, Gulf of Mexico, and fishing industry participants. The exact pursuit, torment, or annoyance which (i) Caribbean Sea. All work will occur location of survey effort also varies year has the potential to injure a marine within the Exclusive Economic Zone to year (albeit in the same general area) mammal or marine mammal stock in the (EEZ), except for two surveys which because they are often based on wild (Level A harassment); or (ii) has may occur outside the EEZ. randomized sampling designs. Year- the potential to disturb a marine The SEFSC plans to administer, fund, round, in all research areas, one or more mammal or marine mammal stock in the or conduct 74 fishery-independent of the surveys planned has the potential wild by causing disruption of behavioral survey programs over the 5-year period to take marine mammals. patterns, including, but not limited to, the regulations are effective (see Table Specified Geographic Region migration, breathing, nursing, breeding, 1–1 in the SEFSC’s application). The feeding, or sheltering (Level B SEFSC works with 18 Federal, state, or The SEFSC conducts research in three harassment). academic partners to conduct these research areas: The Atlantic Ocean from surveys (see Table 1–1 in SEFSC’s North Carolina to Florida and associated Summary of Request application for a list of cooperating estuaries (ARA), the Gulf of Mexico and On May 4, 2015, NMFS OPR received research partners). Of the 74 surveys, associated estuaries (GOMRA), and the an application from the SEFSC for a only 38 involve gear and equipment Caribbean around Puerto Rico and the rulemaking and associated 5-year Letter with the potential to take marine US Virgin Islands (CRA). Research of Authorization (LOA) to take marine mammals. Gear types include towed surveys occur both inside and outside mammals incidental to fisheries trawl nets fished at various levels in the the U.S. Exclusive Economic Zone research activities conducted by the water column, seine nets, traps, longline (EEZ), and sometimes span across SEFSC and 18 cooperating research and other hook and line gear. Surveys multiple ecological, physical, and partners in the Atlantic Ocean Research using any type of seine net (e.g., political boundaries (see Figure1–2 in Area (ARA), Gulf of Mexico Research gillnets), trawl net, or hook and line the SEFSC’s application for map). With Area (GOMRA), and Caribbean Research (e.g., longlines) have the potential for respect to gear, Appendix B in the Area (CRA). The SEFSC submitted a marine mammal interaction (e.g., NMFS PEA includes a table and figures revised draft in October 2015, followed entanglement, hooking) resulting in M/ showing the spatial and temporal by another revision on April 6, 2016, SI harassment. In addition, the SEFSC distribution of fishing gear used during which we deemed adequate and conducts hydrographic, oceanographic, SEFSC research. and meteorological sampling concurrent complete. On April 22, 2016 (81 FR The three research areas fully or 23677), we published a notice of receipt with many of these surveys which requires the use of active acoustic partially encompass four Large Marine of the SEFSC’s application and, Ecosystems (LMEs): The Northeast U.S. subsequently, on February 27, 2019, a devices (e.g., side-scan sonar, echosounders). These active sonars Continental Shelf LME (NE LME), the notice of proposed rulemaking in the Southeast U.S. Continental Shelf LME Federal Register (84 FR 6576) that result in elevated sound levels in the water column, resulting in the potential (SE LME), the Gulf of Mexico LME, requested comments and information (GOM LME), and the Caribbean Sea related to the SEFSC’s request for 30 to behaviorally disturb marine mammals resulting in Level B harassment. LME (CS LME). LMEs are large areas of days. The SEFSC request is for the take coastal ocean space, generally include of 15 species of marine mammals by Many SEFSC surveys only occur at certain times of the year to align with greater than 200,000 square kilometers mortality, serious injury, and Level A (km2) of ocean surface area and are harassment (hereafter referred to as ‘‘M/ the target species and age class being researched (see Table 1–1 in SEFSC’s located in coastal waters where primary SI’’) and 34 species of marine mammals productivity is typically higher than in by Level B harassment. application). However, in general, the SEFSC conducts some type of sampling open ocean areas. LME physical Description of the Specified Activity year round in various locations. Specific boundaries are based on four ecological dates and duration of individual surveys criteria: Bathymetry, hydrography, Overview are inherently uncertain because they productivity, and trophic relationships. The SEFSC is the research arm of are based on congressional funding NOAA has implemented a management NMFS in the Southeast Region. The levels, weather conditions, and ship approach designed to improve the long- SEFSC plans, develops, and manages a contingencies. For example, some term sustainability of LMEs and their multidisciplinary program of basic and surveys are only conducted every 2 or resources by using practices that focus applied research to generate the 3 years or when funding is available. on ensuring the sustainability of the information necessary for the Timing of the surveys is a key element productive potential for ecosystem conservation and management of the of their design. Oceanic and goods and services. Figure 2–1 in the region’s living marine resources, atmospheric conditions, as well as ship SEFSC’s application shows the location including the region’s marine and contingencies, often dictate survey and boundaries of the three research anadromous fish and invertebrate schedules even for routinely-conducted areas with respect to LME boundaries. populations to ensure they remain at surveys. In addition, cooperative We note here that, while the SEFSC sustainable and healthy levels. The research is designed to provide specified geographical region extends SEFSC collects a wide array of flexibility on a yearly basis in order to outside of the U.S. EEZ, into the information necessary to evaluate the address issues as they arise. Some Mexican EEZ (not including Mexican status of exploited fishery resources and cooperative research projects last territorial waters), the MMPA’s the marine environment from fishery multiple years or may continue with authority does not extend into foreign independent (i.e., non-commercial or modifications. Other projects only last territorial waters. A complete recreational fishing) platforms. Surveys one year and are not continued. Most description of the SEFSC’s three are conducted from NOAA-owned and cooperative research projects go through research areas is provided in the operated vessels, NOAA chartered an annual competitive selection process proposed rule (84 FR 6576, February 27, vessels, or research partner-owned or to determine which projects should be 2019) and Chapter 3 of the Final PEA.

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Detailed Description of Activities or have received other support (e.g., SEFSC survey activities. Appendix A of To carry out this research, the SEFSC gear) by the SEFSC. SEFSC scientists the SEFSC’s application contains proposes to administer or conduct 74 conduct fishery-independent research detailed descriptions, pictures, and survey programs during the 5-year onboard NOAA-owned and operated diagrams of all research gear and vessels period the proposed regulations would vessels or chartered vessels while used by the SEFSC and partners under be effective. However, only 44 surveys partners conduct research aboard this rulemaking. We provided a detailed have the potential to take marine NOAA, their own or chartered vessels. description of the SEFSC planned mammals from gear interaction or Table 1 provides a summary of annual research activities, gear types, fishing acoustic harassment. Surveys would be projects including survey name, entity methods, and active acoustic sound carried out by SEFSC scientists alone or conducting the survey, location, gear sources used in the notice of rulemaking in combination with Federal, state, or type, and effort. The information (84 FR 6576; February 27, 2019) and do academic partners while some surveys presented here augments the more not repeat that information here. There would be carried out solely by detailed table included in the SEFSC’s are no changes to the specified cooperating research partners. Surveys application. In the subsequent section, activities, gear types, fishing methods, not conducted by SEFSC staff are we describe relevant active acoustic or active acoustic sound sources included here because they are funded devices, which are commonly used in described in that document. TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

Gulf of Mexico Research Area

HMS–GOM Shark SEFSC—FL Panhandle Annual Apr–Oct, 30 DAS, USCG Class I: R/V Set gillnet ...... SEFSC—16–20 sets/ Pupping & Nursery Sur- in St. Andrew Bay and (approximately 4 days/ Mokarran, R/V Pristis. month, up to 120 sets vey (GULFSPAN), St. Joseph Bay, 1–10 month), daytime oper- total. (SEFSC, USM/GCRL, m depths. ations only. UWF, FSU/ CML) 1* UWF is inactive. Mississippi Sound, 1–9 m Annual Apr–Oct, 8 DAS USCG Class I: Small Set gillnet ...... 3 sets/month 21 sets depths. (1/month), daytime op- vessel. total. erations only. Perdido Bay, Pensacola Annual May–Sep, 10 USCG Class I: State ves- Set gillnet ...... 10 sets/month 50 sets Bay, Choctawhatchee DAS (2/month), day- sel. total. Bay, and Santa Rosa time operations only. Sound, 1.5–6 m depths. Northwest FL state Annual ...... USCG Class I: R/V Set gillnet ...... 74 sets/yr total. waters, 0.7–7 m ...... Naucrates. (A) 24 sets. depths...... (B) 50 sets. (A) Apalachee Bay ...... (A) Jan–Dec, 12 DAS (1/ Bottom longline ...... 74 sets/yr total. month). (A) 24 total. (B) Alligator Pt.—Anclote (B) June & July, 20 DAS, (B) 50 total. Keys. daytime operations only. State waters of south- Annual May–Sep, 15 USCG Class I: State ves- Set gillnet ...... 16 sets/month (within two west FL within Pine Is- DAS, daytime oper- sel. designated 10 km2 land Sound in the ations only. grids), 80 sets total. Charlotte Harbor estu- ary. Depth ranges 0.6– 4.6 m depth. IJA Coastal Finfish Gillnet Mississippi Sound and Annual, Jan–Dec, 24 USCG Class I: Small Sinking gillnet, shallow 8 sets/month, 96 sets Survey, (MDMR) 1. estuaries; 0.2–2 m DAS, daytime oper- vessel. deployment. total. depths. ations only. Smalltooth Sawfish Abun- Ten Thousand Islands, Annual, Mar–Nov, 56 USCG Class I: R/V Set gillnet, shallow de- ∼20 sets/month, 180–200 dance Survey, FL backcountry region, DAS (6–7 DAS/trip), Pristis. ployment. sets total. (SEFSC) 1. including areas in Ev- daytime operations erglades National Park only. and Ten Thousand Is- land National Wildlife Refuge in 0.2–1.0 m depths. Pelagic Longline Survey- U.S. GOM ...... Intermittent, Feb–May, 30 USCG R/V: R/V Oregon Pelagic longline ...... 100–125 sets. GOM, (SEFSC) 1. DAS, 24 hour oper- II. CTD profiler ...... 100–125 casts. ations (set/haul any- time day or night). Shark and Red Snapper Randomly selected sites Annually, July–Sep, 60 USCG R/V: R/V Oregon Bottom longline ...... 175 sets. Bottom Longline Sur- from FL to Brownsville, DAS, 24 hour oper- II, R/V Gordon Gunter;. CTD profiler and rosette 175 casts. vey-GOM, (SEFSC) 1. TX between bottom ations (set/haul any- USCG Small R/V: R/V water sampler. depths 9–366 m. time day or night). Caretta, R/V Gandy. SEAMAP—GOM Bottom AL—MS Sound, Mobile Annually, Apr–May, USCG Class III: R/V E.O. Bottom longline ...... AL—32 sets. Longline Survey Bay, and near Dauphin June–July, Aug–Sep;. Wilson, R/V Alabama CTD Profiler ...... MS—40. (ADCNR, USM–GCRL, Island. AL—8 DAS, day oper- Discovery, R/V De- LA—98. LDWF, TPWD) 1. MS—MS Sound, south of ations only. fender I, R/V Tom TX—20. the MS Barrier Islands, MS—16 DAS, day oper- McIlwain, RV Jim AL—32 casts. Chandeleur, and Bret- ations only. Franks, R/V Nueces, LA—40. on Sound, and the R/V SanJacinto; USCG area east of the R/V: R/V Blazing Chandeleur Islands. Seven (2011–2014).

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

LA—LA waters west of LA—30 DAS, day oper- ...... Water quality and chem- MS—40 casts. the MS River. ations only. istry (YSI instruments, TX—20. TX—near Aransas Pass TX—10 DAS, day oper- Niskin bottles, turbidity and Bolivar Roads ations only. meter). Ship Channel. IJA Biloxi Bay Beam MS state waters in Biloxi Annually, Jan–Dec, 25 USCG Class I: R/V Grav Modified beam trawl ...... 11 trawls/month, 132 Trawl Survey (MDMR) 1. Bay, 1–2 m depths. DAS, day operations I, R/V Grav II, R/V trawls total. only. Grav IV. IJA Inshore Finfish Trawl MS state waters from Annually, Jan–Dec, 12 USCG Class I: Small Otter trawl ...... 72 trawls. Survey (MDMR)1. Bay St. Louis, to ap- DAS, day operations vessel R/V Geoship. proximately 2 miles only. south Cat Island, 1–8 m depths. IJA Open Bay Shellfish TX state waters in Gal- Annually, Jan–Dec, 120 USCG Class I: Small Otter trawl ...... 90 trawls/month, 1080 Trawl Survey (TPWD) 1. veston, Matagorda, DAS, day operations vessel. Water quality and chem- trawls total. Aransas, and Corpus only. USCG Class II: R/V Trin- istry (YSI instruments, Christi Bays and the ity Bay, R/V Copano Niskin bottles, turbidity lower Laguna Madre, Bay, R/V RJ Kemp. meter). 1–10 m depths. Oceanic Deep-water U.S. GOM waters >500 Intermittent due to fund- USCG R/V: R/V Gunter, High Speed Midwater 60 trawls (2–3 per day). Trawl—GOM, m deep. ing, 20 DAS, 24 hour R/V Pisces. Trawl, Aleutian Wing 60 casts. (SEFSC) 1. operations, * conducted Trawl. Tow speed: 0. in 2009 & 2010 and in CTD profiler and rosette Duration: 60–90 min. the future as funding water sampler. allows. St. Andrew Bay Juvenile St. Andrew Bay, FL, up Annually, May–Nov, 28 USCG Class I: Boston Benthic Trawl ...... 13 trawls per week, 24 Reef Fish Trawl Sur- to 2 m depths. DAS, day operations Whaler. weeks, 312 trawls vey, (SEFSC) 1. only, (one day/week). total. Small Pelagics Trawl Sur- U.S. GOM in depths of Annually, Oct–Nov, 40 USCG R/V: R/V Gordon High-opening bottom 150–200 trawls. vey, (SEFSC) 1. 50–500 m. DAS, 24 hour oper- Gunter, R/V Pisces. trawl. Continuous. ations (set/haul any- Simrad ME70 Multi-Beam time day or night). echosounder. EK60 Multi-frequency Continuous. single-beam active acoustics. ADCP ...... Continuous. CTD profiler and rosette 250 casts. water sampler. SEAMAP–GOM Shrimp/ U.S. GOM from FL to Annually, summer (June USCG Class II: R/V Trin- Otter trawl ...... Effort evenly divided be- Groundfish Trawl Sur- Mexico in depths of 9– & July) and fall (Oct– ity Bay, R/V Copano CTD profiler and rosette tween seasons unless vey (SEFSC, FFWCC, 110–360 m. Nov), effort evenly di- Bay, R/V RJ Kemp. water sampler\uses noted. ADCNR, USM/GCRL, vided between sea- USCG Class III: R/V A.E. YSI Datasonde 6600 SEFSC—345 trawls LDWF) 1. sons unless noted; all Verrill, R/V Alabama v2–4. (summer), 325 (fall). surveys have 24 hour Discovery, R/V Sabine FL—160 (summer only). operations-set/haul Lake, R/V Nueces, R/V AL—16–24. anytime day or night;. San Jacinto, R/V San MS—60. SEFSC—80 DAS ...... Antonio, R/V LA—32. FL—20 DAS (summer Matagorda Bay. SEFSC—395 casts only). USCG R/V: R/V Oregon (summer), 305 (fall). AL—6 DAS ...... II, R/V Tommy Munro, FL—200 (summer only). MS—6 DAS ...... R/V Weatherbird II, R/ AL—20. LA—5 DAS ...... V Pelican, R/V Blazing MS—81. Seven (2011–2014), R/ LA—39. V Point Sur. SEFSC BRD Evaluations State and Federal near- Annually, May & Aug USCG Class III: R/V Western jib shrimp trawls 20 paired trawls each (SEFSC) 1. shore and offshore (one week/month), 14 Caretta. season, 40 paired waters off FL, AL, MS, DAS, night operations trawls total. and LA at depths of only. 10–35 m. Also Mis- sissippi Sound at depths of 3–6 m. SEFSC–GOM TED Eval- State and Federal near- Annually, May, Aug, & USCG Class I & II: Western jib shrimp trawls 30 paired trawls per sea- uations, (SEFSC) 1. shore and offshore Sep (one week/month), NOAA small boats. son, 90 paired trawls waters off FL, AL, MS, 21 DAS, day oper- USCG Class III: R/V total. and LA at depths of ations only. Caretta. 10–35 m. Also Mis- sissippi Sound at depths of 3–6 m. SEFSC Skimmer Trawl Conducted in Mississippi Annually until 2016 (ten- USCG Class III: R/V Skimmer trawls ...... 600 paired trawls. TED Testing (SEFSC) 1. Sound, Chandeleur tative depending on Caretta. Sound, and Breton funding and need) Sound at depths of 2– May–Dec, 5–15 DAS/ 6 m. month, 60 DAS total, 24 hour operations-set/ haul anytime day or night.

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

SEFSC Small Turtle TED State waters in St. An- Annually, 21 DAS, day USCG Class III: R/V Western jib shrimp trawls 100 paired trawls. Testing and Gear Eval- drews Bay, FL and off operations only. Caretta. are utilized during TED uations (SEFSC) 1. Shell Island and/or evaluations. Panama City Beach, FL at depths of 7–10 m. IJA Biloxi Bay Seine Sur- MS state waters in Biloxi Annually, Jan–Dec, 25 USCG Class I & II: R/V Bag seine ...... 11 sets/month, 132 sets vey, (MDMR)1. Bay, 1–2 m depths. DAS, day operations Grav I, R/V Grav II, R/ total. only. V Grav IV, small ves- sel. IJA Oyster Dredge Moni- MS state waters, at com- Annually, Jan-Dec, 12 USCG Class I: R/V Oyster dredge ...... 38 tows. toring Survey, (MDMR). mercially important DAS, day operations Rookie USCG Class II: oyster reefs: Pass only. R/V Silvership. Christian Complex, Pass Marianne Reef, Telegraph Reef and St. Joe Reef, in 5–15 ft depths. IJA Shoreline Shellfish TX state waters in Gal- Annually, Jan–Dec, 120 N/A ...... Bag seine ...... 100 sets/month, 1200 Bag Seine Survey, veston, Matagorda, DAS, day operations total. (TPWD) 1. Aransas, and Corpus only. Christi Bays and the lower Laguna Madre, 0–6 ft depths. Marine Mammal and Eco- Northern GOM ...... Every three years, June- USCG R/V: R/V Gordon CTD profiler and rosette 60 casts. system Assessment Sep, 60 DAS, 24 hour Gunter. water sampler. Survey-GOM, operations (set/haul Expendable bathy- 300 units. (SEFSC) 1. anytime day or night). thermographs. ADCP ...... Continuous. Simrad ME70 Multi-Beam Continuous. echosounder. EK60 Multi-frequency Continuous. single-beam active acoustics. Passive acoustic arrays Continuous. Northeast GOM MPA Sur- Madison-Swanson, Annually, Feb–Mar, 60 USCG Class III: R/V 4-camera array ...... 100–200 deployments. vey, (SEFSC) Steamboat Lumps, and DAS, day operations Caretta. CTD Profiler ...... 100–200 casts. * Currently Inactive. The Edges marine re- only. serves on the West Florida Shelf. Panama City Laboratory Penscecola, FL to Cedar Annually, May–Sep, 40 USCG Class II: R/V Har- 4-camera array ...... 200 deployments. Reef Fish (Trap/Video) Key, FL. DAS, day operations old B, USCG Class III: Chevron fish trap out- 100 sets. Survey, (SEFSC). only. R/V Caretta , R/V De- fitted with one GoPro fender, R/V Apalachee. video camera. CTD profiler ...... 200 casts. SEAMAP–GOM Finfish State and Federal waters AL: Annually, two inter- USCG Class III: R/V Es- Bandit gear ...... AL: 120 sets per season, Vertical Line Survey, off Alabama at sam- vals: Spring (Apr/May) cape, R/V Lady Ann, 240 sets total. (ADCNR, LDWF, USM/ pling depths from 60 to and summer (July– R/V Defender I USCG LA: 100 sets total. GCRL). 500 ft and LA waters Sep), 9 DAS, day op- R/V: R/V Blazing TX: 165 sets total. west of the Mississippi erations only LA and Seven (2011–2014), River across three TX: Annually, April–Oct. Poseidon, Trident R/V depth strata (60–120 ft, Sabine, San Jacinto, 120–180 ft, and 180– San Antonio, Nueces, 360 ft) and selected Laguna. areas of Texas at three depth strata (33–66 ft, 66–132 ft, and 132– 495 ft). Stations are sampled during day- light hours. State and Federal waters Annually, Mar–Oct, 16 USCG Class III: R/V Jim Bandit gear ...... 15 stations/season—45 off MS. Sampling DAS (4 days/month), Franks. stations total, 3 sets depths 5–55 fathoms. day operations only. per station, 135 sets Stations are sampled total. during daylight hours. SEAMAP–GOM Plankton State and Federal waters AL: Annually, Aug–Sep, USCG Class III: R/V A.E. Bongo net ...... AL: 6 tows. Survey, (ADCNR, off the coast of AL, 2 DAS, day operations Verrill, R/V Alabama LA: 9 tows. LDWF, USM/GCRL). MS, LA, and FL. only. Discovery, R/V MS: 20 tows. Acadiana. LA: Annually, June, Sep, USCG R/V: R/V Blazing Neuston net ...... AL: 6 tows...... 2 DAS, day operations Seven (2011–2014), R/ LA: 9 tows...... only. V Point Sur; R/V De- MS/FL: 20 tows.. fender. MS: Annually, May and CTD Profiler ...... AL: 6 casts. Sep, 4 DAS, 24 hour LA: 9 casts. operations. MS/FL: 20 casts.

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

SEAMAP–GOM Plankton Coastal, shelf and open Annually, Feb–Mar (win- USCG R/V: R/V Oregon Bongo net ...... 650 tows. Survey, (SEFSC). ocean waters of the ter), 30 DAS;. II, R/V Gordon Gunter, Neuston net ...... 650 tows. GOM. Apr–May (spring), 60 R/V Pisces. MOCNESS ...... 378 tows. DAS. Methot juvenile fish net .. 126 tows. Aug–Sep (fall), 36 DAS .. CTD profiler and rosette 756 casts. 24 hour operations (set/ water sampler. haul anytime day or night). SEAMAP–GOM Reef Fish West FL shelf from 26°N Annual, July–Sep, 50 USCG Class I & II: R/V 2-camera array ...... 150 deployments. Monitoring, (FFWCC). to Dry Tortugas, FL. DAS, daylight hours. No Frills, R/V Gulf Mariner, R/V Sonic, R/ V Johnson, chartered fishing vessels. USCG Small R/V: R/V Chevron fish trap ...... 300–450 sets. Bellows, R/V Apalachee USCG R/V:. R/V Weatherbird ...... CTD profiler ...... 300 casts. SEAMAP–GOM Reef Fish Gulf-wide survey from Annual, Apr–July, 60 USCG Class III: R/V 4-camera array ...... 400–600 deployments. Survey, (SEFSC). Brownsville, TX to Key DAS, 24 hour oper- Caretta, R/V Gandy. Chevron trap (discon- 50–100 sets. West, FL, in depths of ations on large vessels USCG R/V: R/V Pisces, tinued use in 2013). 400–600 casts. 15–500 ft. Approxi- (cameras, traps, ban- R/V Oregon II. CTD Profiler ...... 120 sets. mately 7.0% of this dit—daytime only), 12 USCG R/V: Southern Bandit Reels ...... survey effort (458 sta- hour operations on Journey. Acoustic Doppler Current Continuous. tions) occurs within the small vessels (daytime NOAA Ship: Gordon Profiler. Florida Garden Banks only). Hunter. Simrad ME70 Multi-beam Continuous. NMS. echosounder. EK60 Multi-frequency Continuous. single-beam active acoustics. IJA Oyster Visual Moni- MS state waters, 5–15 ft Annually, Sep/Oct to Apr/ USCG Class I & II: R/V SCUBA divers ...... ∼20 dives. toring Survey, (MDMR). depths. May of following year, Silvership, R/V Rookie. 12 DAS, day oper- ations only. Reef Fish Visual Census Dry Tortugas area in the Biannually, May–Sept, 25 USCG Class II & III: SCUBA divers with meter 300 stations (4dives per Survey—Dry Tortugas, GOM, <33m deep. DAS, day operations Chartered dive vessel. sticks, 30 cm rule and station). Flower Gardens only. digital camera. (SEFSC). Tortugas Ecological Re- Tortugas South Ecologi- Biannually, summer USCG Class II & III: SCUBA divers, transect 16 stations, each station serve Survey, cal Reserve, Florida (June or July), 6 days, Chartered vessel. tape, clipboards/pencils. done 2–3 times. (SEFSC) *. Keys National Marine day and night 12 hour * Currently inactive since Sanctuary. operations. 2015. * Survey has been dis- continued since 2015.

Atlantic Research Area

ACFCMA American Eel Goose Creek Reservoir Annually, Feb–Apr, 32 USCG Class A: John Fyke net ...... 1 station per day, 40 col- Fyke Net Survey, or the Cooper River, DAS, day operations Boat—no motor, walk/ lections total. (SCDNR). near Charleston, SC, only. wade to work net. 1–7 ft depths. Thermometer ...... 32 casts. ACFCMA American Shad Santee, Edisto, Annual, Jan–Apr, (2–3 USCG Class I: R/V Ba- Drift gillnet ...... 4–5 sets/trip, 120 sets Drift Gillnet Survey, Waccamaw, trips/week), 40 DAS, teau, R/V McKee Craft. total. (SCDNR) 1. Combahee Rivers, SC. day operations only. RecFIN Red Drum Tram- Coastal estuaries and riv- Annually, Jan–Dec, 120– USCG Class I: Florida Trammel net ...... 1000 sets/yr covering mel Net Survey, ers of SC in depths of 144 DAS (14–18 days/ Mullet Skiffs. 225 stations/yr. Oper- (SCDNR). 6 ft or less along month), day operations ates in 7–9 strata/ shoreline. only. month. HMS Chesapeake Bay Chesapeake Bay and Annually, May–Oct (5 USCG Class III: R/V Bay Bottom longline ...... 50 sets. and Coastal Virginia state and Federal days/month), 30 DAS, Eagle. Bottom Longline Shark waters off Virginia. day operations only. Survey, (VIMS) 1. Hydrolab MS5 Sonde ..... 50 casts. MARMAP Reef Fish Long South Atlantic Bight (be- Annually 1996–2012 *, USCG Small R/V: R/V Bottom longline ...... 60 sets. Bottom Longline Sur- tween 27° N and 34° Aug–Oct, 10–20 DAS, Lady Lisa. CTD profiler ...... 60 casts. vey, (SCDNR) 1. N, but mostly off GA day operations only. and SC). Sampling oc- *Halted in 2012 but will curs in Federal waters. resume annually if Depths from ∼500 to funding obtained. 860 ft. MARMAP/SEAMAP–SA South Atlantic Bight (be- Annually, year-round but USCG R/V: R/V Palmetto Chevron fish trap out- 600 sets. Reef Fish Survey, tween 27° N and 34° primarily Apr–Oct, 70– fitted with two cameras. 60 sets. (SCDNR) 1 * Inactive N). 120 DAS, day oper- Bottom longline ...... 400 sets. 2012–2014. ations only. Bandit reels ...... 300 casts. CTD profiler ......

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

Pelagic Longline Survey- Cape Hatteras, NC to Intermittent, Feb–May, 30 USCG R/V: R/V Oregon Pelagic Longline ...... 100–125 sets. SA, (SEFSC) 1. Cape Canaveral, FL. DAS, 24 hour oper- II. CTD profiler ...... 100–125 casts. (See also effort con- ations (set/haul any- ducted in the GOMRA). time day or night). Shark and Red Snapper Cape Hatteras, NC to Annually, July–Sep, 60 USCG Class III: R/V Bottom longline ...... 70 sets. Bottom Longline Sur- Cape Canaveral, FL DAS, 24 hour oper- Caretta. CTD profiler and rosette 70 casts. vey-SA, (SEFSC) 1. between bottom depths ations (set/haul any- USCG R/V: R/V Oregon water sampler. 0–20 tows. (See also effort con- 9–183 m. time day or night). II, R/V Gordon Gunter. Neuston and bongo effort ducted in the GOMRA). if needed to augment SEAMAP plankton ob- jectives. SEAMAP–SA Red Drum NC: Pamlico Sound or in Annually ...... USCG Class II: 26 ft out- Bottom longline ...... NC: 75–100 sets total. Bottom Longline Sur- the nearshore waters NC: mid–July to mid–Oct board. YSI (Dissolved oxygen, SC: 360 sets. vey, (NCDEQ, SCDNR, of Ocracoke Inlet. (2 days/week for 12 USCG Class III: R/V salinity, temperature). GA: 200–275 sets. GDNR) 1. SC: Estuaries out to 10 weeks), 24 DAS, 12 Marguerite,R/V Silver NC: 75–100 casts. miles in Winyah Bay, hour operations, begin- Crescent. SC: 360 casts. Charleston Harbor, St. ning at dusk. GA: 200–275 casts. Helena Sound, and Port Royal Sound. GA: State and Federal SC: Aug–Dec, day oper- waters off the coast of ations only. GA and NE FL, 36 DAS ...... (∼32°05′ N latitude to GA: Apr–Dec (6 days/ the north, 29°20′ N lati- month), 54 DAS, day tude to the south, operations only. 80°30′ W longitude to the east, and the coastline to the west). ACFCMA Ecological Mon- Georgia state waters out Annually, Jan–Dec (7 USCG Class III: R/V Otter trawl ...... 42 trawls/month, 504 itoring Trawl Survey, to 3 nm, 10–35 ft days/month), 84 DAS, Anna. YSI 85 (Dissolved oxy- trawls total. (GDNR) 1. depths. day operations only. gen, salinity, tempera- 504 casts total. ture). ACFCMA Juvenile Stage Creeks and rivers of Annually, Dec–Jan (3 USCG Class I: 19 ft Otter trawl ...... 18 trawls/month, 216 Trawl Survey, (GDNR) 1. three Georgia sound days/month), 36 DAS, Cape Horn; 25 ft YSI 85 (Dissolved oxy- trawls total. systems (Ossabaw, Al- day operations only. Parker. gen, salinity, tempera- 216 casts total. tamaha, and St. An- ture). drew). Atlantic Striped Bass Tag- North of Cape Hatteras, Annually, Jan–Feb, 14 USCG R/V: R/V Oregon 65 ft high-opening bottom 200–350 trawls. ging Bottom Trawl Sur- NC, in state and Fed- DAS, 24 hour oper- II, R/V Cape Hatteras, trawls. vey, (USFWS) 1. eral waters, 30–120 ft ations (set/haul any- R/V Savannah. depths. time day or night). Juvenile Sport Fish Trawl Florida Bay, FL ...... Annually, May–Nov, 35 USCG Class I: R/V Otter trawl ...... ∼500 trawls. Monitoring in Florida DAS, day operations Batou. Bay, (SEFSC) 1. only. Oceanic Deep-water Southeastern U.S. Atlan- Intermittent due to fund- USCG R/V: NOAA ships High Speed Midwater 60 trawls (2–3 per day). Trawl Survey tic waters >500 m ing, 20 DAS, 24 hour Trawl, Aleutian Wing 60 casts. (SEFSC) 1 * Currently deep. operations (trawls may Trawl. Inactive. be set and retrieved CTD profiler and rosette day or night). water sampler. * conducted as funding allows. SEAMAP–SA NC Pamlico Pamlico Sound and the Annually, June & Sep, 20 USCG Class III: R/V Otter trawl: Paired mon- 54 trawls each month, Sound Trawl Survey, Pamlico, Pungo, and DAS (10 days/month), Carolina Coast. goose-type Falcon bot- 108 trawls total. (NCDENR) 1. Neuse rivers in waters day operations only. tom trawls. 54 casts each month, ≥6 ft deep. Ponar grab ...... 108 total. YSI 556 (Dissolved oxy- 54 casts each month, gen, salinity, tempera- 108 total. ture). Secchi disk ...... 54 casts each month, 108 total. SEAMAP–SA Coastal Cape Hatteras, NC to Annually, Apr–May USCG Small R/V: R/V Otter trawl: Paired mon- 300–350 trawls total, Trawl Survey, Cape Canaveral, FL in (spring), July–Aug Lady Lisa. goose-type Falcon bot- evenly divided between (SCDNR) 1. nearshore oceanic (summer), and Oct– tom trawls. seasons. waters of 15–30 ft Nov (fall), 60–65 DAS, depth. day operations only. SEABIRD electronic CTD 300–350 casts. SEFSC–SA TED Evalua- State and Federal waters Annually, Nov–Apr, 10 USCG Class III: R/V Otter trawl: Mongoose 50 paired trawls. tions, (SEFSC) 1. off Georgia and east- DAS, 24 hour oper- Georgia Bulldog. shrimp trawls. ern FL. ations—set/haul any- time day or night. In-Water Sea Turtle Re- Winyah Bay, SC to St. Annually, mid-May USCG Class III: R/V Paired flat net bottom 400–450 trawls. search (SCDNR) 1. Augustine, FL in water through late Jul to Georgia Bulldog. trawls (NMFS Turtle depths of 15–45 ft. early Aug, 24–30 DAS, USCG Small R/V: R/V Nets per Dickerson et day operations only. Lady Lisa. al. 1995) with tickler chains.

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

ACFCMA American Eel Georgia state waters in Annually. Sampling USCG Class I: 19 ft Eel traps/pots with float .. 30 stations (180 sets/ Pot Survey for Yellow- the Altamaha River monthly Nov–Apr. Cape Horn, 18 ft skiff. month; 30 traps set phase Eels, (GADNR). System. Sampling is based on water temp. each of 6 days). conducted during day- 36 DAS (6 days/ light hours. Depth month), day operations ranges from 2 to 20 ft. only. Beaufort Bridgenet Plank- Pivers Island Bridge, Annually, Nov–May None ...... Plankton net ...... 125 tows. ton Survey, (SEFSC). NOAA Beaufort facility, (some years monthly Beaufort, NC. Jan–Dec), night oper- ations only sampling occurs once per week, n+4 tows per night. Integrated Biscayne Bay Western shoreline of Bis- Twice annually, May–Oct USCG Class II & III ves- Human divers ...... 100 dives. Ecological Assessment cayne Bay, FL. (wet season) and Nov– sels. Throw trap ...... 372 casts. and Monitoring Project Apr (dry season), 14 (IBBEAM) Project, DAS, day operations (SEFSC). only. Intraspecific Diversity in Florida Bay, Whitewater Annually, June–Aug, 16 USCG Class I: R/V Pri- Miniature roller-frame 40 trawls. Pink Shrimp Survey, Bay, Fakahatchee Bay, DAS, day operations vateer. trawl. 40 samples. (SEFSC) * Currently in- Biscayne Bay, Sanibel only. Dip net ...... 40 sets. active. shrimp fishery, Bag seine ...... Tortugas shrimp fish- ery. Marine Mammal and Eco- Southeastern U.S. Atlan- Every three years, June– USCG R/V: R/V Gordon CTD profiler and rosette 60 casts. system Assessment tic. Sep, 60 DAS, 24 hour Gunter. water sampler. 300 units. Survey–SA (SEFSC) 1. operations. Expendable bathy- thermographs. Acoustic Doppler Current Continuous. Profiler. Simrad ME70 Multi-Beam Continuous. echosounder. EK60 Multi-frequency Continuous. single-beam active acoustics. Passive acoustic arrays Continuous. RecFIN Red Drum Coastal estuaries and riv- Annually, Jan–Dec, 60– USCG Class I: Small 18 ft elecrofishing boat ... 360 stations per year (30 Electrofishing Survey, ers of SC in depths of 72 DAS (5–6 days/ vessels. sites/month). (SCDNR). 6 ft or less in low salin- month), day operations ity waters (0–12 ppt). only. St. Lucie Rod-and-Reel Nearshore reef, inlet, and Annually, Jan–Dec, USCG Class I: Small Rod and reel gear ...... 468 stations per year: 3/ Fish Health Study, estuary of St. Lucie weekly, 156 DAS, day vessels. day × 3 day/wk. (SEFSC) 1 * Currently River, FL inlet system operations only. inactive. (Jupiter or Ft. Pierce, FL). SEAMAP–SA Gag In- In the vicinity of Annually, Mar–June, 100 USCG Class I: Small Witham collectors ...... 15 sets (4 collectors at gress Study, (SCDNR) Swansboro, NC; Wil- DAS, day operations vessels. each set), 60 sets * Inactive since 2016. mington, NC; George- only. total. town, SC; Charleston, SC; Beaufort, SC; Sa- vannah, GA; and Brunswick, GA. Southeast Fishery Inde- Cape Hatteras, NC, to Annually, Apr–Oct, 30–80 USCG R/V: R/V Nancy Chevron fish trap out- 1,000 deployments. pendent Survey St. Lucie Inlet, FL. DAS, 24 hour oper- Foster, R/V Pisces, R/ fitted with 2 high-defini- (SEFIS) (SEFSC) 1. Fifteen survey stations ations (cameras & V Savannah. tion video cameras.. occur within Gray’s traps—daytime oper- CTD profiler ...... 100–200 casts. Reef NMS. ations, acoustics—any- Simrad ME70 Multi-Beam Continuous. time day or night). echosounder. Multi-frequency single- Continuous. beam active acoustics. U.S. South Atlantic MPA Jacksonville, FL to Cape Annually, May–Aug, 14 USCG R/V: R/V Pisces, ROV Phantom S2 vehicle 10–40 deployments. Survey, (SEFSC) 1. Fear, NC on or near DAS, 24 hour oper- R/V Nancy Foster, R/V with tether attached to the continental shelf ations (ROV daytime Spree. CTD cable. edge at depths be- operations, acoustics— CTD profiler ...... 28 casts. tween 80 and 600 m. anytime day or night). Simrad ME70 Multi-Beam Every other night for 6– echosounder. 12 hrs. EK60 Multi-frequency Every other night for 6– single-beam active 12 hrs. acoustics. FL/Dry Tortugas Coral Survey area encom- Quarterly–annually, May– USCG Class I & II: Small SCUBA divers with 300 dives. Reef Benthic Survey, passes Federal and Oct, 100 DAS. vessels. measuring devices, (SEFSC). territorial waters from cameras, and hand Dry Tortugas to Martin tools. County, FL. Surveys occur within the Florida Keys NMS (150 sta- tions).

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TABLE 1—SUMMARY DESCRIPTION OF FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES CONDUCTED OR FUNDED BY THE SEFSC IN THE GOMRA, ARA, AND CRA—Continued

Season, frequency, Survey name General area of yearly days at sea Vessel used Gear used Number of stations (research agency) operation (DAS)

Demographic Monitoring Florida Keys National 3 × per year, ∼35 DAS ... USCG Class I ...... SCUBA divers ...... 30 fixed plots. of Acropora Species, Marine Sanctuary. (SEFSC). Reef Fish Visual Census Florida Keys NMS and Annually, May–Sep, 25 USCG Class I: R/V Aldo SCUBA divers with meter 300 dives. Survey—Florida Keys/ SE Florida Shelf, <33 DAS, day operations Leopold. sticks, 30 cm rule and SE Florida Shelf, m deep. only. digital camera. (SEFSC).

Caribbean Research Area

Caribbean Plankton Re- Caribbean and Mexican Bi-annually, Feb or June, USCG R/V: R/V Gordon Bongo net ...... 75 tows. cruitment Experiment, waters. 15 DAS, 24 hour oper- Gunter, R/V Nancy MOCNESS ...... 75 tows. (SEFSC). ations, anytime day or Foster. CTD profiler and rosette 75 casts. night. water sampler. Caribbean Reef Fish Sur- PR and USVI, continental Every two years, Mar– USCG R/V: R/V Pisces, Bandit Reels ...... 300 sets. vey, (SEFSC) 1. shelf waters. June, 40 DAS, 24 hour R/V Oregon II. 4-camera array ...... 150 deployments. operations. Chevron traps ...... 100 sets. CTD profiler ...... 300 casts. Simrad ME70 Multi-Beam Continuous. echosounder. Acoustic Doppler Current Continuous. Profiler. EK60 Multi-frequency Continuous. single-beam active acoustics. Marine Mammal and Eco- U.S. Caribbean Sea ...... Every three years, June– USCG R/V: R/V Gordon CTD profiler and rosette 60 casts. system Assessment Sep, 60 DAS, 24 hour Gunter. water sampler. Survey-C, (SEFSC) 1. operations-acoustics- Expendable bathy- anytime day or night. thermographs. 300 units. Acoustic Doppler Current Continuous. Profiler. Simrad ME70 Multi-Beam Continuous. echosounder. EK60 Multi-frequency Continuous. single-beam active acoustics. Passive acoustic arrays Continuous. SEAMAP–C Reef Fish USVI and PR territorial Annually, Jan–Dec, (Day USCG Class I & III: Camera array—two PR: 120 per coast total Survey (PR–DNER, and Federal waters at operations only). Three chartered ves- GoPro cameras and of 240. USVI–DFW). 15–300 ft depths. PR: 70 DAS for each sels. four lasers set on an USVI: 72 per island, 144 * Began 2017 ...... coast. aluminum frame. total. USVI: ∼30 DAS. SEAMAP–C Lane Snap- East, west, and south Annually beginning July USCG Class III: Two Bottom longline ...... 45 sets/season, 180 sets per Bottom Longline coasts of PR in terri- 2015, (summer, winter, chartered vessels. total. Survey, (PR–DNER) 1. torial and Federal fall, spring), 120 DAS waters at depths rang- (30 days/season), night ing from 15–300 ft. operations only. SEAMAP–C Yellowtail East, west, and south Annually beginning 2014, USCG Class I & III: Rod-and-reel gear ...... 120 stations (360 lines Snapper Rod-and-Reel coasts of PR in terri- (4 sampling seasons), Three chartered ves- total). Survey, (PR–DNER) 1. torial and Federal 120 DAS, night oper- sels. waters at depths rang- ations only. ing from 15–300 ft. Caribbean Coral Reef Federal and territorial Annual to triennial, May– USCG Class I & II: Small SCUBA divers with 300 dives. Benthic Survey, waters around PR, Oct, 30 DAS, day op- vessel <28 ft. measuring devices and (SEFSC). USVI, and Navassa. erations only. hand tools. Reef Fish Visual Census PR and USVI waters < Annually, May-Sept, 25 USCG Class I & II: Small SCUBA divers with meter 300 dives. Survey-U.S. Caribbean, 100 ft deep. DAS, day operations vessel <24 ft. sticks, 30 cm rule and (SEFSC). only. digital camera. SEAMAP–C Queen PR and USVI territorial Annually, ...... USCG Class I & III:Three SCUBA divers, SCUBA PR: 100 dives Conch Visual Survey, waters in 10–90 ft PR: July–Nov, 35 DAS ... chartered vessels. gear and underwater USVI: 62 dives. (PR–DNER, USVI– depths, some sampling USVI: June–Oct, 62 scooters. DFW). occurs in Federal DAS, day operation waters. only. SEAMAP–C Spiny Lob- PR territorial waters in 6– Every four years ...... USCG Class I & III: Fifty-six modified Witham 6 stations along the west ster Post Larvae Settle- 90 ft depths. West cost of PR: Jan– Three chartered ves- pueruli collectors. coast platform per ment Surveys, (PR– Dec, 84 DAS. sels. depth and distance DNER). R/V Erdman ...... from the shoreline. SEAMAP–C Spiny Lob- PR and USVI territorial Annually, ...... USCG Class I & III:Three Juvenile lobster artificial 10 shelters, continuous ster Artificial Habitat waters in 6–90 ft PR: Jan–Dec, 84 DAS ... chartered vessels. shelters. deployment. Survey, (PR–DNER, depths. USVI: Jan–Dec, 20 DAS, SCUBA divers, SCUBA PR: 60 dives USVI–DFW). day operations only. gear and underwater USVI: 20 dives. scooters. 1 These surveys have the potential to take marine mammals through M/SI and/or Level B harassment. * Inactive projects are currently not conducted but could resume if funds became available.

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Description of Fishing Gear—A Description of Active Acoustic Sound February 27, 2019) and the PEA. We complete description of fishery- Sources—A wide range of active refer the reader to those documents for independent survey gear and vessels acoustic devices are used in SEFSC a detailed description of gear, fishing used by the SEFSC is provided in the fisheries surveys for remotely sensing methods, and acoustic source proposed rule (84 FR 6576, February 27, bathymetric, oceanographic, and characteristics. A summary table of 2019) and Appendix A of the PEA. We biological features of the environment. source operational parameters is below refer the reader to those documents for A complete description of acoustic (Table 2). a detailed description of gear and sources used by the SEFSC is provided fishing methods. in the proposed rule (84 FR 6576,

TABLE 2—OPERATING CHARACTERISTICS OF SEFSC ACTIVE ACOUSTIC SOURCES

Effective Effective exposure Maximum exposure area: Sea Operating source level Nominal area: Sea surface to Active acoustic system frequencies (dB re: 1μPa beamwidth surface to 160 dB (kHz) @1 m) 200 m depth threshold (km2) depth (km2)

Simrad EK60 narrow beam echosounder ...... 18, 38, 70, 224 11° @18 kHz 0.0142 0.1411 120, * 200, 7° @38 kHz ... * 333 Simrad ME70 multibeam echosounder ...... 70–120 205 140° ...... 0.0201 0.0201 Teledyne RD Instruments ADCP, Ocean Surveyor ...... 75 223.6 N/A ...... 0.0086 0.0187 Simrad EQ50 ...... 50, * 200 210 16 @50kHz .... 0.0075 0.008 7 @200kHz .... Simrad ITI Trawl Monitoring System ...... 27–33 <200 40° × 100° ...... 0.0032 0.0032 * Devices working at this frequency is outside of known marine mammal hearing range and is not considered to have the potential to result in marine mammal harassment.

Comments and Responses al., 2001 when claiming Bryde’s whales taking by Level B harassment resulting NMFS published a notice of proposed also have been observed in waters off from the use of echosounders, other rulemaking in the Federal Register on Puerto Rico and the U.S. Virgin Islands sonars, and subbottom profilers. February 27, 2019 (84 FR 6576) and and generally occur in nearshore and NMFS Response: NMFS is currently requested comments and information shelf edge waters. However, both NMFS in the process of developing guidance to from the public. During the 30-day and the SEFSC reviewed the referenced assist potential applicants in assessing public comment period, we received documents and cannot find this whether a take is likely to result from letters from the Marine Mammal information. Whitt et al. (2011) particular activities. In the meanwhile, Commission (Commission) and confirmed one (likely extralimital) we provide assistance and guidance as comments from four public citizens. We northeastern Caribbean stranding record requested to interested parties on a case- provide a summary of the comments from the Dominican Republic in July by-case basis. and our full responses here and have 1974 (Mead, 1977). Sightings designated Comment 3: The Commission posted the public comments on our as sei whales in the northeastern recommends that NMFS require SEFSC website: https://www.fisheries.noaa.gov/ Caribbean (Erdman, 1970; Erdman et al., to estimate the numbers of marine permit/incidental-take-authorizations- 1973; Mignucci-Giannoni, 1989) are not mammals taken by Level B harassment under-marine-mammal-protection-act confirmed records. Neither photos nor incidental to the use of active acoustic and on the Federal e-Rulemaking Portal clear diagnostic features were provided sources (e.g., echosounders) based on at www.regulations.gov (enter 0648– for these unconfirmed records; the the 120-decibel (dB) rather than the 160- BG44 in the ‘‘Search’’ box and scroll species identification was based on dB root mean square (rms) sound down to the Comments section). behavioral characteristics. Likewise, pressure level (SPL) threshold. They Comment 1: The Commission there are no confirmed records of sei alternatively suggest that NMFS require recommends that NMFS revise Table 3a whales in Cuban waters. There is also the SEFSC to estimate take based on in the Federal Register notice to include no indication that fin whales are not acoustic thresholds developed by the fin, sei, and Bryde’s whales as marine rare in the CRA. Based on this review, U.S. Navy, including the Navy’s mammals that potentially occur in the NMFS determined the Commission’s unweighted 120 dB re 1 mPa threshold CRA and revise its analyses and take recommendation was not supported and for harbor porpoises and the various estimates as necessary. we did not include take of fin, sei, and biphasic dose response functions for the NMFS Response: Fin, sei and Bryde’s Bryde’s whales in the final rule. other marine mammal species. whales are extralimital or rarely sighted Comment 2: The Commission Response: The Commission repeats a in the CRA. While Bryde’s whales provides general recommendations—not recommendation made in prior letters routinely occur in the southern specific to the proposed SEFSC concerning the proposed authorization Caribbean off (e.g., off the coast of rulemaking—that NMFS provide of take incidental to use of scientific Venezuela), they are rare in the SEFSC’s interim guidance based on various sonars (such as echosounders). As we CRA in the northern Caribbean. There is criteria (e.g., source level, peak have described in responding to those one record from Puerto Rico (Mignucci- frequency, bandwidth, signal duration prior comments (e.g., 83 FR 36370), our Giannoni et al. 1998) and one from Cuba and duty cycle, affected species or evaluation of the available information (Whitt et al. 2011). The Commission stocks) for determining when leads us to disagree with this cited Erdman et al., 1973 and Ward et prospective applicants should request recommendation. We provide a full

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response to this comment in our notice sound sources. In support of their on acoustic sources with frequencies of issuance of an IHA to Alaska statement that numerous researchers above 180 kHz (i.e., Deng et al., 2014; Fisheries Science Center Final Rule (84 have observed marine mammals Hastie et al., 2014) and recommends FR 46788, September 5, 2019) with a responding to sound from sources that we estimate numbers of takes summary here. First, the Commission claimed to be similar to those associated with those acoustic sources misinterprets how NMFS characterizes considered herein, the Commission (or similar acoustic sources) with scientific sonars and claims that we are indeed cites numerous studies. frequencies above 180 kHz that have using an incorrect threshold because However, the vast majority of these been shown to elicit behavioral scientific sonars do not produce address responses of harbor porpoise or responses above the 120-dB threshold. impulse noise. Sound sources can be beaked whales to various types of Response: As the Commission divided into broad categories based on acoustic alarms or deterrent devices. acknowledges, we considered the cited various criteria or for various purposes. With respect to the Commission’s information in our Notice of Proposed As discussed by Richardson et al. recommendation that the SEFSC adopt Rulemaking. NMFS’ response regarding (1995), source characteristics include the Navy’s dose-response models to the appropriateness of the 120-dB strength of signal amplitude, estimate take, we find several reasons versus 160-dB rms thresholds was distribution of sound frequency and, why this suggestion should not be provided above in the response to importantly in context of these implemented. First, the data on which Comment #3. In general, the referenced thresholds, variability over time. With the Navy’s dose-response curves are literature indicates only that sub- regard to temporal properties, sounds based are primarily from marine harmonics could be detectable by are generally considered to be either mammal exposure to military tactical certain species at distances up to several continuous or transient (i.e., sonar, a source not relevant to the hundred meters. As we have noted in intermittent). Continuous sounds, SEFSC. Second, for reasons referenced previous responses, behavioral response which are produced by the industrial above, we do not agree that a 120 dB to a stimulus does not necessarily noise sources for which the 120-dB threshold is appropriate, especially the indicate that Level B harassment, as behavioral harassment threshold was step-function created for harbor defined by the MMPA, has occurred. selected, are simply those whose sound porpoise considering that this species is Source levels of the secondary peaks pressure level remains above ambient non-existent in the GOMRI and CRA considered in these studies—those sound during the observation period and limited in the ARA. Lastly, NMFS within the hearing range of some marine (ANSI, 2005). Intermittent sounds are does not require applicants to adopt mammals—mean that these sub- defined as sounds with interrupted another applicant’s model, especially harmonics would either be below the levels of low or no sound (NIOSH, complex biphastic models, when the threshold for Level B harassment or 1998). Simply put, a continuous noise proposed take estimate approach is would attenuate to such a level within source produces a signal that continues appropriate, which it was in this case. a few meters. Beyond these important over time, while an intermittent source Therefore, NMFS did not adopt the study details, these high-frequency (i.e., produces signals of relatively short Navy’s dose-response model to estimate Category 1) sources and any energy they duration having an obvious start and take. may produce below the primary Finally, we acknowledge that the end with predictable patterns of bursts frequency that could be audible to Commission presents legitimate points of sound and silent periods (i.e., duty marine mammals would be dominated in support of defining a threshold by a few primary sources (e.g., EK60) cycle) (Richardson and Malme, 1993). It specific to non-impulsive, intermittent that are operated near-continuously— is this fundamental temporal distinction sources and that, among the large much like other Category 2 sources that is most important for categorizing number of cited studies, there are a few considered in our assessment of sound types in terms of their potential that show relevant results of individual potential incidental take from SEFSC’s to cause a behavioral response. animals responding to exposure at lower use of active acoustic sources—and the The Commission relies heavily on the received levels in ways that could be potential range above threshold would use of examples pertaining to the most considered harassment. As noted in a be so small as to essentially discount sensitive species, which does not previous comment response, NMFS is them. Further, recent sound source support an argument that the 120-dB currently engaged in an ongoing effort verification testing of these and other threshold should be applied to all towards developing updated guidance similar systems did not observe any sub- species. NMFS has acknowledged that regarding the effects of anthropogenic harmonics in any of the systems tested the scientific evidence indicates that sound on marine mammal behavior. under controlled conditions (Crocker certain species are, in general, more However, prior to conclusion of this and Fratantonio, 2016). While this can acoustically sensitive than others. In effort, NMFS will continue using the occur during actual operations, the particular, harbor porpoise and beaked historical Level B harassment thresholds phenomenon may be the result of issues whales are considered to be (or derivations thereof) and will with the system or its installation on a behaviorally sensitive, and it may be appropriately evaluate behavioral vessel rather than an issue that is appropriate to consider use of lower harassment due to intermittent sound inherent to the output of the system. behavioral harassment thresholds for sources relative to the 160-dB threshold. There is no evidence to suggest that these species. NMFS is considering this Comment 4: The Commission notes Level B harassment of marine mammals issue in its current work of developing that NMFS has delineated two should be expected in relation to use of new guidelines for assessing behavioral categories of acoustic sources, largely active acoustic sources at frequencies harassment. However, until this work is based on frequency, with those sources exceeding 180 kHz. completed and new guidelines are operating at frequencies greater than the Comment 5: The Commission identified (if appropriate), the existing known hearing ranges of any marine recommended that, in the preamble to generic thresholds are retained. mammal (i.e., >180 kilohertz (kHz)) the final rule, NMFS (1) specify in Table Moreover, as is discussed above for lacking the potential to disturb marine 11 which species were lacking density other reasons, the majority of examples mammals by causing disruption of data and clarify whether densities were cited by the Commission are of limited behavioral patterns. The Commission available for blue, sei, and killer whales relevance in terms of comparison of describes the recent scientific literature in ARA and humpback and minke

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whales in the GOMRA and (2) ensure considered in light of other known management measures are being taken Tables 13 and 18 include all species and causes of mortality, meets or exceeds to address serious injuries and stocks proposed to be taken by SEFSC’s PBR. As described in more detail in the mortalities from the other activities (i.e., proposed activities. The Commission Negligible Impact Analysis and other than the specified activities understands that NMFS did not Determination section later in this covered by the incidental take intentionally omit this information. document, consistent with the authorization under consideration). We NMFS Response: Species for which interpretation of PBR across the rest of must also determine, though, that density data are not available were the agency, NMFS’ Permits and impacts on the species or stock from included in a footnote in Table 11 in the Conservation Division has been using other types of take (i.e., harassment) proposed rule. However, NMFS has PBR as a tool to inform the negligible caused by the applicant do not combine updated that footnote to include blue impact analysis under section with the impacts from mortality or whales, sei whales, and killer whales in 101(a)(5)(A), recognizing that it is not a serious injury to result in adverse effects the ARA and humpback whales and dispositive threshold that automatically on the species or stock through effects minke whales in the GOMRA. NMFS determines whether a given amount of on annual rates of recruitment or also updated the relevant tables in this M/SI either does or does not exceed a survival. Wade et al. (1998), authors of final rule to ensure all species for which negligible impact on the affected species the paper from which the current PBR take is authorized are included in both or stock. In 1999, NMFS published equation is derived, note that tables. While these changes provide criteria for making a negligible impact ‘‘Estimating incidental mortality in one clarity, NMFS did not change species determination pursuant to section year to be greater than the PBR taken or amount of take from the 101(a)(5)(E) of the MMPA in a notice of calculated from a single abundance proposed rule. Therefore, there is no proposed permits for certain fisheries survey does not prove the mortality will modification to our analysis or (64 FR 28800; May 27, 1999). Criterion lead to depletion; it identifies a determinations. 2 stated ‘‘If total human-related serious population worthy of careful future Comment 6: The Commission monitoring and possibly indicates that recommends that NMFS ensure that the injuries and mortalities are greater than PBR, and fisheries-related mortality is mortality-mitigation efforts should be final rule includes details similar to initiated.’’ less than 0.1 PBR, individual fisheries those specified in the preamble for the In addition to a quantitative approach may be permitted if management various mitigation, monitoring, and comparing the issued M/SI against PBR, reporting measures. measures are being taken to address a number of other factors influence our NMFS Response: NMFS has included non-fisheries-related serious injuries negligible impact determination. These all the mitigation, monitoring and and mortalities. When fisheries-related are described in detail in our Negligible reporting measures in the regulatory text serious injury and mortality is less than Impact Analysis and Determination as discussed in the preamble in this 10 percent of the total, the appropriate section below, but we also summarize final rule. management action is to address them here. First, the amount of M/SI Comment 7: The Commission components that account for the major take authorized for estuarine bottlenose recommends that NMFS authorize portion of the total.’’ This criterion dolphins stocks is the lowest amount taking by M/SI only for those stocks for addresses when total human-caused possible (one over 5 years). Therefore, in which a negligible impact determination mortality is exceeding PBR, but the 4 of those 5 years, no effect to rates of can be made when looking at overall activity being assessed is responsible for recruitment or survival would occur. removals from each stock as a whole. only a small portion of the mortality. Second, literature suggests the The Commission is concerned that it Accordingly, we applied a similar interaction with fishing gear (including appears that removal of an animal from criterion in our negligible impact trawls which account for the majority of some bottlenose dolphin stocks meet or analysis under section 101(a)(5)(A) to SEFSC fisheries research) is biased exceed PBR and that any additional evaluate the relative role of an towards males. The loss of a male from mortalities from those stocks should not applicant’s incidental take when other the population is less likely, if at all, to be considered as having negligible sources of take are causing PBR to be have an effect on population rates of impact. Specifically, the Commission exceeded, but the take of the specified recruitment or survival. Third, there are indicates the proposed number of takes activity is comparatively small. Where a number of ongoing management that could result in M/SI for SEFSC this occurs, we may find that the actions, including development and would not equal or exceed PBR for most impacts of the taking from the specified implementation of a Gulf-wide strategic stocks. However, the proposed takes by activity may (those impacts alone, framework to restore for injuries M/SI for SEFSC would equal PBR for before we have considered the associated with the Deepwater Horizon the Northern South Carolina Estuarine combined effects from any harassment (DWH) oil spill under a Natural (NSCE) stock of bottlenose dolphins and take) be negligible even when total Resource Damage Assessment (NRDA). would exceed PBR for the Mobile Bay, human-caused mortality from all This framework is designed to reduce Bonsecour Bay (Mobile Bay) stock and activities exceeds PBR if (in the context human-induced causes of mortality and the MS Sound stock. Although NMFS of a particular species or stock) the serious injury other than SEFSC proposed to authorize the taking by M/ authorized mortality or serious injury fisheries research over the 5 years the SI of only one bottlenose dolphin during would be less than or equal to 10 LOA would be effective. the proposed 5-year period (or 0.2 percent of PBR and management Comment 8: One commenter noted dolphins per year) from each of the measures are being taken to address the SEFSC has taken substantial three stocks, when considered in light of serious injuries and mortalities from the measures to minimize the impacts on other known causes of mortality, PBR other activities (i.e., other than the marine mammals. However, the would either be met or exceeded. specified activities covered by the commenter recommended prohibiting NMFS Response: The Commission incidental take authorization under long-lining, trawling, or gill netting due appears to assert that NMFS cannot consideration). Here, pursuant to the to the associated high bycatch rates and make a negligible impact determination criteria, the authorized mortality or the impacts of these fishing methods on when the proposed or authorized M/SI serious injury would be less than or cetacean populations. The commenter take from a marine mammal stock, when equal to 10 percent of PBR, and recommended strict monitoring

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protocols and that the SEFSC use active assessment or other research purposes. Resources (SCDNR). None of these acoustics (i.e., sonar) and other However, some collection of plankton modifications affect our negligible detection methods to ensure the and oceanographic and acoustic data to impact or small numbers avoidance of taking marine mammals. characterize the marine environment determinations. NMFS Response: Issuance of an does occur. As described in the SEFSC’s incidental take authorization allows for application, proposed rule, and LOA, Description of Marine Mammals in the the taking of marine mammals plankton is sampled in very small Area of the Specified Activity incidental to a specified activity, it does quantities, is minor relative to that taken We presented a detailed discussion of not authorize or permit the activity through commercial fisheries, and is an marine mammals, their occurrence, and itself. Therefore NMFS cannot require even smaller percentage of total biomass important habitat (e.g., Biologically an applicant to not conduct an activity. available as marine mammal prey. To issue an authorization, NMFS must Comment 10: One commenter was Important Areas) in the planned action prescribe, among other things, concerned the proposed rule would area detailed in the Federal Register mitigation and monitoring measures result in fish catch limits. notice of proposed rulemaking (84 FR effecting the least practicable adverse NMFS Response: This rule, issued 6576; February 27, 2019). Please see that impact on a species or stock. In this pursuant to the MMPA, has no notice of proposed rulemaking or the case, the commenter agrees NMFS has connection to the Magnuson-Stevens SEFSC’s application for more taken substantial measures to minimize Fishery Management Act process by information (see ADDRESSES). We impacts on marine mammals. However, which fish limits are determined. provide a summary of marine mammal to restrict fishing using the proposed Comment 11: One commenter occurrence in the study areas in Table methods would be impracticable and believed the major provisions in the 3. outside of NMFS’ authority under the proposed regulation seem adequate and Species that could occur in a given MMPA. that the regulations can be implemented research area but are not expected to Regarding impacts to cetacean well and with no complications. have the potential for interaction with populations, the commenter appears to NMFS Response: NMFS agrees that all SEFSC research gear or that are not be associating bycatch rates of practicable mitigation measures have likely to be harassed by SEFSC’s use of been incorporated into the proposed commercial fisheries to those from active acoustic devices are listed here rule and will continue to work with the research surveys. As described in the but omitted from further analysis. These SEFSC to ensure the SEFSC and all proposed rule, the taking of marine include extralimital species, which are partners are aware of and understand mammals incidental to SEFSC fisheries species that do not normally occur in a the monitoring, mitigation, and research is very low and NMFS has given area but for which there are one reporting measures. authorized only one marine mammal or more occurrence records that are mortality per stock over the course of 5 Changes From Proposed to Final Rule considered beyond the normal range of years (with the exception of coastal the species. Extralimital or rarely bottlenose dolphins wherein we are The most substantive change from the sighted species within the SEFSC’s ARA authorizing the take, by serious injury or proposed to final rule is the baseline include the North Atlantic bottlenose mortality, of three animals over 5 years) evaluation of the Mobile Bay stock of whale (Hyperoodon ampullatus), in its final rule. The rule also has a suite bottlenose dolphins. In the proposed Bryde’s whale (B. edeni), Atlantic white- of mitigation and monitoring measures rule, NMFS used outdated (1992) survey designed to further reduce risk of data which indicated the Mobile Bay sided dolphins (Lagenorhynchus netting or hooking an animal. The rule stock abundance was approximately 122 acutus), white-beaked dolphins does not require SEFSC use active dolphins. However, we determined a (Lagenorhynchus albirostris), Sowerby’s acoustics to detect and deter marine more accurate representative abundance beaked whale (Mesoplodon bidens), mammals, as use of those sources in that estimate is 1,393 based on more recent harp seal (Pagophilus groenlandicus), manner would be a source of DWH oil spill injury assessments (DHW and hooded seal (Cystophora cristata). harassment in itself. MMIQT, 2015). We also updated the Extralimital or rarely sighted species in Comment 9: One commenter final regulations to reflect the entirety of the GOMRA include the North Atlantic suggested the lack of acknowledgement the mitigation, monitoring, and right whale (Eubalaena glacialis), blue towards the plankton populations is reporting measures described in the whale, fin whale (B. physalus), sei capricious and recommended an preamble of the proposed rule as some whale, minke whale (B. acutorostrata), environmental assessment be were inadvertently not replicated in the humpback whale (Megaptera completed. regulatory text. We also updated a novaeangliae), and Sowerby’s beaked NMFS Response: All impacts from the discussion regarding the consideration whale. In the CRA, extralimital or rarely SEFSC’s fishery-independent research of PBR in our negligible impact sighted species include blue whale, fin activities, including those on plankton, determination to more fully reflect how whale, sei whale, Bryde’s whale, minke have been analyzed in a PEA which was the metric is appropriately considered whale, harbor seal (Phoca vitulina), gray made available to the public for in the negligible impacts determination seal (Halichoerus grypus), harp seal, and comment on April 20, 2016 and for a specified activity. We also updated hooded seal. In addition, Caribbean finalized prior to issuing this rule. See a previous dolphin gear interaction table manatees (Trichechus manatus) may be ADDRESSES section. As described in and related discussion to reflect the found in all three research areas. those documents, the SEFSC’s primary entanglement of a single bottlenose However, manatees are managed by the survey methods use fishing gear to dolphin on October 13, 2019, by the U.S. Fish and Wildlife Service and are capture fish and invertebrates for stock South Carolina Department of Natural not considered further in this document.

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TABLE 3a—MARINE MAMMALS POTENTIALLY PRESENT IN THE ATLANTIC, GULF OF MEXICO, AND CARIBBEAN RESEARCH AREAS DURING FISHERY RESEARCH

Research area ESA status (L/NL), Stock abundance Common name Scientific name MMPA stock MMPA PBR 3 Annual M/SI 4 (CV, N ) 2 ARA GOM CRA Strategic min (Y/N) 1

Order Cetartiodactyla—Cetacea—Suborder Mysticeti (baleen whales)

Family Balaenopteridae (rorquals): North Atlantic Eubalaena Western North At- X ...... L, Y 451 (0, 445) ...... 0.9 ...... 5.56. right whale. glacialis. lantic. Humpback Megaptera Gulf of Maine 5 .... X X X NL, Y 896 (0, 896 ) ...... 14.6 ...... 9.8. whale. novaeangliae. Blue whale .... Balaenoptera Western North At- X ...... L, Y unk (unk, 440, 0.9 ...... unk. musculus. lantic. 2010). Fin whale ...... Balaenoptera Western North At- X ...... L, Y 1,618 (0.33, 2.5 ...... 2.65. physalis. lantic. 1,234). Minke whale .. Balaenoptera Canadian East X X X NL, N 2,591 (0.81, 14 ...... 7.5. acutorostrata. Coast. 1,425). Bryde’s whale Balaenoptera Northern Gulf of ...... X ...... L, Y 33 (1.07, 16) ...... 0.03 ...... 0.7. edeni. Mexico. Sei whale ...... Balaenoptera bo- Nova Scotia ...... X ...... L, Y 357 (0.52, 236) ... 0.5 ...... 0.6. realis.

Order Cetartiodactyla—Cetacea—Suborder Odontoceti (toothed whales)

Family Physeteridae: Sperm whale Physeter North Atlantic ...... X ...... L, Y 2,288 (0.28,1,815) 3.6 ...... 0.8. macrocephalus. Northern Gulf of ...... X ...... L, Y 763 (0.38, 560) ... 1.1 ...... 0. Mexico. Puerto Rico and ...... X L, Y unk ...... unk ...... unk. U.S. Virgin Is- lands. Family Kogiidae: Pygmy sperm Kogia breviceps .. Western North At- X ...... X NL, N 3,785 (0.47, 21 ...... 3.5. whale. lantic. 2,598) 6. Northern Gulf of ...... X ...... NL, N 186 (1.04, 90) 7 ... 0.9 ...... 0.3. Mexico. Dwarf sperm K. sima ...... Western North At- X ...... X NL, N 3,785 (0.47, 21 ...... 3.5. whale. lantic. 2,598) 6. Northern Gulf of ...... X ...... NL, N 186 (1.04, 90) 8 ... 0.9 ...... 0. Mexico. Family Ziphiidae (beaked whales): Cuvier’s Ziphius cavirostris Western North At- X ...... NL, N 6,532 (0.32, 50 ...... 0.4. beaked lantic. 5,021). whale. Northern Gulf of ...... X ...... NL, N 74 (1.04, 36) ...... 0.4 ...... 0. Mexico. Puerto Rico and ...... X NL, N Unk ...... unk ...... unk. U.S. Virgin Is- lands. Blainville’s Mesoplodon Western North At- X ...... X NL, N 7,092 (0.54, 46 ...... 0.2. beaked densirostris. lantic. 4,632) 8. whale. Northern Gulf of ...... X ...... NL, N 149 (0.91, 77) ..... 0.8 ...... 0. Mexico. Gervais’ Mesoplodon Western North At- X ...... X NL, N 7,092 (0.54, 46 ...... 0. beaked europaeus. lantic. 4,632) 8. whale. Northern Gulf of ...... X ...... NL, N 149 (0.91, 77) ..... 0.8 ...... 0. Mexico. Sowerby’s Mesoplodon Western North At- X ...... X NL, N 7,092 (0.54, 46 ...... 0. beaked bidens. lantic. 4,632) 8. whale. True’s beaked Mesoplodon mirus Western North At- X ...... X NL, N 7,092 (0.54, 46 ...... 0. whale. lantic. 4,632) 8. Family Delphinidae (dolphins): Melon-headed Peponocephala Western North At- X ...... X NL, N Unk ...... unk ...... 0. whales. electra. lantic. Northern Gulf of ...... X ...... NL, N 2,235 (0.75, 13 ...... 0. Mexico. 1,274). Risso’s dol- Grampus griseus Western North At- X ...... X NL, N 18,250 (0.46, 126 ...... 49.9. phin. lantic. 12,619).

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TABLE 3a—MARINE MAMMALS POTENTIALLY PRESENT IN THE ATLANTIC, GULF OF MEXICO, AND CARIBBEAN RESEARCH AREAS DURING FISHERY RESEARCH—Continued

Research area ESA status (L/NL), Stock abundance Common name Scientific name MMPA stock MMPA PBR 3 Annual M/SI 4 (CV, N ) 2 ARA GOM CRA Strategic min (Y/N) 1

Northern Gulf of ...... X ...... NL, N 2,442 (0.57, 16 ...... 7.9. Mexico. 1,563). Short-finned Globicephala Western North At- X ...... NL, N 28,924 (0.24, 236 ...... 168. pilot whales. macrorhynchus. lantic. 23,637). Northern Gulf of ...... X ...... NL, N 2,415 (0.66, 15 ...... 0.5. Mexico. 1,456). Puerto Rico and ...... X NL, N unk ...... unk ...... unk. U.S. Virgin Is- lands. Long-finned Globicephala Western North At- X ...... NL, N 5,636 (0.63, 35 ...... 27. pilot whales. melas. lantic. 3,464).

Bottlenose Tursiops truncatus See table 3b. dolphin.

Common dol- Delphinus delphis Western North At- X ...... NL, N 70,184 (0.28, 557 ...... 406. phin. lantic. 55,690). Atlantic spot- Stenella frontalis Western North At- X ...... NL, N 44,715 (0.43, 316 ...... 0. ted dolphin. lantic. 31,610). Northern Gulf of ...... X ...... NL, N unk ...... unk ...... 42. Mexico. Puerto Rico and ...... X NL, N unk ...... unk ...... unk. U.S. Virgin Is- lands. Pantropical Stenella attenuata Western North At- X ...... X NL, N 3,333 (0.91, 17 ...... 0. spotted dol- lantic. 1,733). phin. Northern Gulf of ...... X ...... 50,880 (0.27, 407 ...... 4.4. Mexico. 40,699). Striped dol- Stenella Western North At- X ...... X NL, N 54,807 (0.3, 428 ...... 0. phin. coeruleoalba. lantic. 42,804). Northern Gulf of ...... X ...... NL, N 1,849 (0.77, 10 ...... 0. Mexico. 1,041). Fraser’s dol- Lagenodelphis Western North At- X ...... X NL, N unk ...... unk ...... 0. phin. hosei. lantic. Gulf of Mexico ...... X ...... NL, N unk ...... undet ...... 0. Rough- Steno Western North At- X ...... X NL, N 136 (1.0, 67) ...... 0.7 ...... 0. toothed dol- bredanensis. lantic. phin. Northern Gulf of ...... X ...... NL, N 624 (0.99, 311) ... 2.5 ...... 0.8. Mexico. Clymene dol- Stenella clymene Western North At- X ...... X NL, N unk ...... undet ...... 0. phin. lantic. Northern Gulf of ...... X ...... NL, N 129 (1.0, 64) ...... 0.6 ...... 0. Mexico. Spinner dol- Stenella Western North At- X ...... NL, N unk ...... unk ...... 0. phin. longirostris. lantic. Northern Gulf of ...... X ...... NL, N 11,441 (0.83, 62 ...... 0. Mexico. 6,221). Puerto Rico and ...... X NL, N unk ...... unk ...... unk. U.S. Virgin Is- lands. Killer whale ... Orcinus orca ...... Western North At- X ...... X NL, N unk ...... unk ...... 0. lantic. Northern Gulf of ...... X ...... NL, N 28 (1.02, 14) ...... 0.1 ...... 0. Mexico. Pygmy killer Feresa attenuata Western North At- X ...... X NL, N unk ...... unk ...... 0. whale. lantic. Northern Gulf of ...... X ...... NL, N 152 (1.02, 75) ..... 0.8 ...... 0. Mexico. False killer Pseudorca Western North At- X ...... X NL, N 442 (1.06, 212) ... 2.1 ...... unk. whale. crassidens. lantic. Northern Gulf of ...... X ...... NL, N unk ...... undet ...... 0. Mexico. Family Phocoenidae (porpoises): Harbor por- Phocoena Gulf of Maine/Bay X ...... NL, N 79,833 (0.32, 706 ...... 255. poise. phocoena of Fundy. 61,415). vomerina.

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals): Harbor seal ... Phoca vitulina Western North At- X ...... NL, N 75,834 (0.15, 2,006 ...... 345. richardii. lantic. 66,884).

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TABLE 3a—MARINE MAMMALS POTENTIALLY PRESENT IN THE ATLANTIC, GULF OF MEXICO, AND CARIBBEAN RESEARCH AREAS DURING FISHERY RESEARCH—Continued

Research area ESA status (L/NL), Stock abundance Common name Scientific name MMPA stock MMPA PBR 3 Annual M/SI 4 (CV, N ) 2 ARA GOM CRA Strategic min (Y/N) 1

Gray seal ...... Halichoerus Western North At- X ...... NL, N 27,131 (0.19, 1,389 ...... 5,688. grypus. lantic. 23,158). 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). NL indicates that the species is not listed under the ESA and is not 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 des- ignated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3 PBR indicates Potential Biological Removal as referenced from the SARs. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. It is the product of minimum population size, one-half the maximum net productivity rate and a recovery factor for endangered, depleted, threatened stocks, or stocks of un known status relative to OSP. 4 These values, 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 often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as pre- sented in the draft 2019 SARs. 5 Humpback whales present off the southeastern U.S. are thought to be predominantly from the Gulf of Maine stock. However, these could include animals from Canadian stocks (e.g., Nova Scotia) (NMFS, 2017). Here we provide estimates for the Gulf of Maine stock only as a conservative value. 6 This estimate includes both dwarf and pygmy sperm whales in the N. Atlantic stock. 7 This estimate includes both dwarf and pygmy sperm whales in the Gulf of Mexico stock. 8 This estimate includes all species of Mesoplodon in the N. Atlantic stock.

TABLE 3b—BOTTLENOSE DOLPHIN STOCKS POTENTIALLY PRESENT IN THE ATLANTIC, GULF OF MEXICO, AND CARIBBEAN RESEARCH AREAS AND TEXAS DURING FISHERY RESEARCH

1 Stock MMPA status Stock abundance (CV, Nmin) PBR Annual M/SI

Atlantic Research Area

Western North Atlantic, Offshore ...... Not Strategic ...... 77,532 (0.40, 56,053) ...... 561 ...... 39.4. Northern Migratory Coastal ...... Depleted ...... 6,639 (0.41, 4,759) ...... 48 ...... 6.1–13.2. Southern Migratory Coastal ...... Depleted ...... 3,751 (0.06, 2,353) ...... 23 ...... 0–14.3. South Carolina & Georgia Coastal ...... Depleted ...... 6,027 (0.34, 4,569) ...... 46 ...... 1.4–1.6. Northern Florida Coastal ...... Depleted ...... 877 (0.0.49, 595) ...... 6 ...... 0.6. Central Florida Coastal ...... Depleted ...... 1,218 (0.71, 2,851) ...... 9.1 ...... 0.4. Northern North Carolina Estuarine System Strategic ...... 823 (0.06, 782) ...... 7.8 ...... 0.8–18.2. Southern North Carolina Estuarine System Strategic ...... unk ...... undet ...... 0.4–0.6. Northern South Carolina Estuarine System Strategic ...... unk ...... undet ...... 0.2. Charleston Estuarine System ...... Strategic ...... unk ...... undet ...... unk. Northern Georgia/Southern South Carolina Strategic ...... unk ...... undet ...... 1.4. Estuarine System. Central Georgia Estuarine System ...... Strategic ...... 192 (0.04, 185) ...... 1.9 ...... unk. Southern Georgia Estuarine System ...... Strategic ...... 194 (0.05, 185) ...... 1.9 ...... unk. Jacksonville Estuarine System ...... Strategic ...... unk ...... undet ...... 1.2. Indian River Lagoon ...... Strategic ...... unk ...... undet ...... 4.4. Biscayne Bay ...... Strategic ...... unk ...... undet ...... unk. Florida Bay ...... Not Strategic ...... unk ...... undet ...... unk.

Gulf of Mexico Research Area

Oceanic ...... Not Strategic ...... 5,806 (0.39, 4,230) ...... 42 ...... 6.5. Continental Shelf ...... Not Strategic ...... 51,192 (0.1, 46,926) ...... 469 ...... 0.8. Western Coastal ...... Not Strategic ...... 20,161 (0.17, 17,491) ...... 175 ...... 0.6. Northern Coastal ...... Not Strategic ...... 7,185 (0.21, 6,004) ...... 60 ...... 0.4. Eastern Coastal ...... Not Strategic ...... 12,388 (0.13, 11,110) ...... 111 ...... 1.6.

Northern Gulf of Mexico Bay, Sound, and Estuary 23

Laguna Madre ...... Strategic ...... 80 (1.57, unk) ...... undet ...... 0.4. Nueces Bay, Corpus Christi Bay ...... Strategic ...... 58 (0.61, unk) ...... undet ...... 0. Copano Bay, Aransas Bay, San Antonio Strategic ...... 55 (0.82, unk) ...... undet ...... 0.2. Bay, Redfish Bay, Espirtu Santo Bay. Matagorda Bay, Tres Palacios Bay, Lavaca Strategic ...... 61 (0.45, unk) ...... undet ...... 0.4. Bay. West Bay ...... Strategic ...... 48 (0.03, 46) ...... 0.5 ...... 0.2. Galveston Bay, East Bay, Trinity Bay ...... Strategic ...... 152 (0.43, unk) ...... undet ...... 0.4. Sabine Lake ...... Strategic ...... 0 (-,-) ...... undet ...... 0.2. Calcasieu Lake ...... Strategic ...... 0 (-,-) ...... undet ...... 0.2. Vermillion Bay, West Cote Blanche Bay, Strategic ...... 0 (-,-) ...... undet ...... 0. Atchafalaya Bay. Terrebonne Bay, Timbalier Bay ...... Strategic ...... 3,870 (0.15, 3,426) ...... 27 ...... 0.2. Barataria Bay ...... Strategic ...... 2306 (0.09, 2,138) ...... 17 ...... 160. Mississippi River Delta ...... Strategic ...... 332 (0.93, 170) ...... 1.4 ...... 0.2.

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TABLE 3b—BOTTLENOSE DOLPHIN STOCKS POTENTIALLY PRESENT IN THE ATLANTIC, GULF OF MEXICO, AND CARIBBEAN RESEARCH AREAS AND TEXAS DURING FISHERY RESEARCH—Continued

1 Stock MMPA status Stock abundance (CV, Nmin) PBR Annual M/SI

Mississippi Sound, Lake Borgne, Bay Strategic ...... 3,046 (0.06, 2,896) ...... 23 ...... 310. Boudreau. Mobile Bay, Bonsecour Bay ...... Strategic ...... 1,393 (unk, unk) ...... undet ...... 1. Perdido Bay ...... Strategic ...... 0 (-,-) ...... undet ...... 0.6. Pensacola Bay, East Bay ...... Strategic ...... 33 ( ...... undet ...... unk. Choctawhatchee Bay ...... Strategic ...... 179 (0.04, unk) ...... undet ...... 0.4. St. Andrews Bay ...... Strategic ...... 124 (0.57, unk) ...... undet ...... 0.2. St. Joseph Bay ...... Strategic ...... 152 (0.08, unk) ...... undet ...... unk. St. Vincent Sound, Apalachicola Bay, St. Strategic ...... 439 (0.14,-) ...... undet ...... 0. Georges Sound. Apalachee Bay ...... Strategic ...... 491 (0.39, unk) ...... undet ...... 0. Waccasassa Bay, Withlacoochee Bay, Strategic ...... unk ...... undet ...... 0. Crystal Bay. St. Joseph Sound, Clearwater Harbor ...... Strategic ...... unk ...... undet ...... 0.4. Tampa Bay ...... Strategic ...... unk ...... undet ...... 0.6. Sarasota Bay, Little Sarasota Bay ...... Strategic ...... 158 (0.27, 126) ...... 1.3 ...... 0.6. Pine Island Sound, Charlotte Harbor, Strategic ...... 826 (0.09, -) ...... undet ...... 1.6. Gasparilla Sound, Lemon Bay. Caloosahatchee River ...... Strategic ...... 0 (-,-) ...... undet ...... 0.4. Estero Bay ...... Strategic ...... unk ...... undet ...... 0.2. Chokoloskee Bay, Ten Thousand Islands, Strategic ...... unk ...... undet ...... 0. Gullivan Bay. Whitewater Bay ...... Strategic ...... unk ...... undet ...... 0. Florida Keys (Bahia Honda to Key West) ... Strategic ...... unk ...... undet ...... 0.

Carribean Research Area

Puerto Rico and U.S. Virgin Islands ...... Strategic ...... unk ...... undet ...... unk.

1 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance). 2 Details for these 25 stocks are included in the report: Common bottlenose dolphin (Tursiops truncatus truncatus), Northern Gulf of Mexico Bay, Sound, and Estuary Stocks. 3 The total annual human-caused mortality and serious injury for these stocks of common bottlenose dolphins is unknown because these stocks may interact with unobserved fisheries. Also, for Gulf of Mexico BSE stocks, mortality estimates for the shrimp trawl fishery are calculated at the state level and have not been included within mortality estimates for individual BSE stocks. Therefore, minimum counts of human-caused mortality and serious injury for these stocks are presented.

Potential Effects of Specified Activities marine mammals may be affected by and discussion of recent scientific on Marine Mammals and Their Habitat these activities in the form of serious studies not included in the proposed injury or mortality, physical trauma, rulemaking, we direct the reader to the We provided a summary and sensory impairment (permanent and NMFS PEA. discussion of the potential effects of the temporary threshold shifts and acoustic Since 2002, NMFS Science Centers specified activity on marine mammals masking), physiological responses have been documenting and recording and their habitat in our Federal Register (particular stress responses), behavioral notice of proposed rulemaking (84 FR disturbance, or habitat effects. We also all fishery research related incidental 6576; February 27, 2019). In the describe historical taking by the SEFSC takes of marine mammals in PSIT Potential Effects of Specified Activities and the circumstances surrounding database. There is also a documented on Marine Mammals and Their Habitat those takes. We do not reprint the take on record from 2001. We present all section of the proposed rule, NMFS information here but refer the reader to takes documented by the SEFSC in provided a description of the ways that document. For additional summary Table 4.

TABLE 4—SEFSC RESEARCH GEAR INTERACTIONS WITH MARINE MAMMALS SINCE 2001

Number Survey name Species taken Gear type Date taken Number released Total taken (lead organization) (stock) killed 1 alive 2

Atlantic research area

SEAMAP–SA Coastal Bottlenose dolphin Bottom 13 Oct 2019 ...... 0 1 1 Trawl Survey_Fall (South Carolina/ trawl. (SCDNR). Georgia coastal). SEFSC In-Water Sea Bottlenose dolphin Bottom 20 July 2016 ...... 1 0 1 Turtle Research (South Carolina/ trawl. (SCDNR 3). Georgia coastal). SEAMAP–SA Coastal Bottlenose dolphin Bottom 11 April 2014 ...... 1 0 1 Trawl Survey_Spring (Northern Florida trawl. (SCDNR). coastal).

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TABLE 4—SEFSC RESEARCH GEAR INTERACTIONS WITH MARINE MAMMALS SINCE 2001—Continued

Number Survey name Species taken Gear type Date taken Number released Total taken (lead organization) (stock) killed 1 alive 2

SEAMAP–SA Coastal Bottlenose dolphin Bottom 2 Aug 2012 ...... 1 0 1 Trawl Survey_Sum- (South Carolina/ trawl. mer (SCDNR). Georgia coastal). In-Water Sea Turtle Bottlenose dolphin Bottom 11 July 2012 ...... 0 1 1 Trawl Survey (South Carolina/ trawl. (SCDNR). Georgia coastal). SEAMAP–SA Coastal Bottlenose dolphin Bottom 5 October 2006 ...... 1 0 1 Trawl Survey_Fall (southern migratory). trawl. (SCDNR). SEAMAP–SA Coastal Bottlenose dolphin Bottom 28 July 2006 ...... 1 0 1 Trawl Survey_Sum- (South Carolina/ trawl. mer (SCDNR). Georgia coastal). RecFIN Red Drum Bottlenose dolphin Trammel 22 August 2002 ...... 2 0 2 Trammel Net Survey (Charleston Estua- net. (SCDNR). rine System). In-Water Sea Turtle Bottlenose dolphin Bottom 2001 3 ...... 0 1 1 Trawl Survey (unk). Trawl. (SCDNR).

ARA Total ...... 7 3 10

Gulf of Mexico Research Area

Gulf of Mexico Shark Bottlenose dolphin Gillnet ...... 3 July 2018 ...... 0 1 1 Pupping and Nursery (Sarasota Bay). GULFSPAN (SEFSC). Gulf of Mexico Shark Bottlenose dolphin Gillnet ...... 15 July 2016 ...... 1 0 1 Pupping and Nursery (northern Gulf of GULFSPAN (USA/ Mexico). DISL2). Skimmer Trawl TED Bottlenose dolphin (MS Skimmer 1 October 2014 ...... 1 0 1 Testing (SEFSC). Sound, Lake Borgne, trawl. Bay Boudreau). Skimmer Trawl TED Bottlenose dolphin (MS Skimmer ... 23 October 2013 ...... 0 1 1 Testing (SEFSC). Sound, Lake Borgne, trawl ...... Bay Boudreau). SEAMAP–GOM Bottom Bottlenose dolphin (Mo- Bottom 6 August 2013 ...... 0 1 (SI) 1 Longline Survey bile Bay, Bonsecour longline. (ADCNR). Bay). Gulf of Mexico Shark Bottlenose dolphin (MS Gillnet ...... 18 April 2011 ...... 1 0 1 Pupping and Nursery Sound, Lake Borgne, GULFSPAN (USA/ Bay Boudreau). DISL).

GOMRA Total ...... 3 3 6

Total all 10 6 16 areas 3. 1 If there was question over an animal’s fate after it was released (e.g., it was struggling to breath/swim), it was considered ‘‘killed’’. Serious injury determinations were not previously made for animals released alive, but they are now part of standard protocols for released animals and will be reported in stock assessment reports. 2 Animals released alive but considered seriously injured aew marked as SI. 3 This take occurred prior to development of the PSIT database, but we include it here because it is documented. 4 There have been no SEFSC fishery research-related takes of marine mammals in the CRA.

Estimated Take while injury refers to injury that does including, but not limited to, migration, not lead to mortality. Except with breathing, nursing, breeding, feeding, or This section provides an estimate of respect to certain activities not pertinent sheltering (Level B harassment). the number of incidental takes proposed here, the MMPA defines ‘‘harassment’’ for authorization through this IHA, As previously described, the SEFSC as any act of pursuit, torment, or which will inform both NMFS’ has a history of take of marine mammals consideration of whether the number of annoyance which (i) has the potential to incidental to fisheries research. The takes is ‘‘small’’ and the negligible injure a marine mammal or marine degree of take resulting from gear impact determination. When discussing mammal stock in the wild (Level A interaction can range from mortality, take, we consider three manners of take: harassment); or (ii) has the potential to serious injury, Level A harassment Mortality, serious injury, and disturb a marine mammal or marine (injury), or released unharmed with no harassment. Serious injury is defined as mammal stock in the wild by causing observable injury. However, given that an injury that could lead to mortality, disruption of behavioral patterns, we cannot predict the degree of take, we

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conservatively assume that any through October. However, this is likely According to the SEFSC’s application, interaction may result in mortality or a result of research effort concentrated three trawl surveys and two bottom serious injury and have issued take as during this time period and there does longline surveys conducted by the such. In the case of the Mississippi not appear to be any trend in increased SEFSC or research partner overlap Sound stock, we have also authorized a vulnerability throughout the year. spatially with the NNCES stock (Table single take from Level A harassment In the ARA, the SEFSC has 10 1). These are the Atlantic Striped Bass (injury) only. The amount of research documented takes of bottlenose Tagging Bottom Trawl Survey (USFWS), conducted in Mississippi Sound using dolphins (in 9 instances) from fishing SEAMAP–SA Coastal Trawl Survey gear with the potential for marine gear (Table 5) and 1 take of an Atlantic (SCDNR), SEAMAP–SA North Carolina mammal interaction increases the spotted dolphin since 2001. The Pamlico Sound Trawl Survey potential for interaction above other Atlantic spotted dolphin take was a calf (NCDENR), Shark and Red Snapper estuarine systems. However, there is struck by a propeller during a marine Bottom Longline Survey (SEFSC), and evidence that, even without the mammal research cruise. Given the the SEAMAP–SA Red Drum Bottom proposed prescribed mitigation and anomalous nature of the incident and Longline Survey (NCDNR). No gillnet monitoring measures, take may not proposed mitigation measures, NMFS is surveys would take place in waters result in mortality or serious injury (e.g., not proposing to authorize take by ship overlapping with this stock. Based on the October 13, 2013 skimmer trawl take strike. Therefore, this take is not data in the PSIT database, no dolphins which did not result in serious injury or discussed further. Of the 10 gear-related from the NNCES stock have been taken mortality). The proposed mitigation and takes, two animals were taken at once in from SEFSC or partner fishery research monitoring measures described in this a trammel net by the SCDNR in 2002. surveys, including those described proposed rulemaking are designed to However, the SCDNR has since changed above which have taken place for many further reduce risk of take and degree of fishing methods and implemented years. take. monitoring and mitigation measures Despite the lack of historical take, we essentially eliminating the potential for further investigated the potential for Estimated Take Due to Gear Interaction take during this survey. No other future interaction. Based on commercial Given the complex stock structure of trammel net-related takes have occurred fishery and SEFSC fishery survey bottlenose dolphins throughout the since these changes were implemented. bycatch rates of marine mammals, we ARA and GOMRA, as well as the Therefore, we believe the potential for a would expect the trawl surveys to be vulnerability of this species to be taken take in SCDNR trammel nets is more likely to take a dolphin than the incidental to fishery research, we have discountable. The remaining eight gear- bottom longline surveys. An evaluation partitioned this section into two related takes have been a result of of each occurring survey type is categories to present requested and interaction with bottom trawl gear provided below to more thoroughly proposed take in an organized manner. during SEAMAP and TED research evaluate the potential for taking a Below we present our analysis surveys, resulting in an average 0.42 bottlenose dolphin belonging to the informing the proposed take of estuarine takes per year (8 takes/19 years). NNCES stock. and coastal bottlenose dolphins To further assess the potential for take The Atlantic Striped Bass Bottom followed by pelagic marine mammals in any given year, we considered where Trawl Survey (conducted by the which includes all relevant non- takes have occurred and the possible USFWS) is limited to 2 weeks (200–350 bottlenose dolphin species and open stock origin from which an animal was trawls) during January and February in ocean stocks of bottlenose dolphins. taken. The July 2006 take occurred coastal waters north of Cape Hatteras offshore of Fripp Island, SC; the October ranging from 30 to 120 ft (9–37 m) in Estuarine and Coastal Bottlenose 2006 take occurred Oak Island, NC; the depth. The USFWS uses dual 65-ft trawl Dolphin Take—SEFSC July 2012 take occurred off Little Tybee nets with 3.75 in. stretch nylon In order to estimate the number of Island, GA; the August 2012 take multifilament mesh codend. Tow speed potential bottlenose dolphin takes in occurred off Pawley’s Island, SC; the is 3 kts and tow time does not exceed estuarine and coastal waters, we April 2014 take occurred just off the 30 minutes at depth. Trawl operations considered the SEFSC’s record of such coast of Florida between St. Augustine are conducted day and night from the R/ past incidents and other sources of take and Daytona Beach; the July 2016, take V Oregon II, R/V Oregon, or R/V (e.g., commercial fisheries and non- occurred off Sea Island, Georgia which Savannah (please refer to the PEA for SEFSC affiliated research). We is nestled between Little St. Simon’s detailed vessel descriptions). The winter consulted the SARs, marine mammal Island and St. Simon’s Island; and the operations of this survey overlaps in experts at the SEFSC, and information October 2019 take occurred time with when some animals move out emerging from the BDTRT to identify approximately 10 km off Dewey’s of Pamlico Sound and into coastal these other sources of mortality. We Island, South Carolina. Therefore, the waters. However, photo-ID studies, then assessed the similarities and dolphins taken could have originated available tag data and stable isotope differences between fishery research from any of the five coastal stocks (the data indicate that the portion of the and commercial fisheries gear and Northern Migratory and Southern stock that moves out of Pamlico Sound fishing practices. Finally, we evaluated Migratory stock, South Carolina/Georgia into coastal waters remain south of Cape means of affecting the least practicable Coastal stock, Northern Florida Coastal Hatteras during cold water months adverse impact on bottlenose dolphins stock and a Central Florida stock), (Waring et al. 2016). The USFWS has through the proposed mitigation and although they were assigned to the stock historically conducted surveys north of additional mitigation developed during based on the location where the take Cape Hatteras. However, the survey is the proposed rulemaking process. occurred. Taking the average rate of 0.42 currently inactive due to funding In total, since 2001 and over the animals per year across five stocks constraints. If funding becomes course of thousands of hours of research equates to an average taking of 0.08 available, they may undertake this effort, 16 marine mammals (all animals per stock per year. This average survey. However, the spatial and bottlenose dolphins) have been would be even less if one considers an temporal specifications described above entangled in SEFSC-affiliated research estuarine stock may be the stock of greatly reduce the likelihood of a take gear. All takes occurred between April origin (although unlikely). from the NNCES stock. In addition,

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given the short duration of the survey (2 Despite spatial and temporal overlap type Falcon bottom trawls. All takes of weeks) and short tow time durations (up with the NNCES stock, this survey has dolphins have occurred in coastal to 30 minutes), the chance of marine no record of interacting with a marine waters (none from estuarine waters), mammal interaction is limited. This mammal. Given the lack of historical and all assigned takes have been from logic is supported by the lack of take interaction, limited number of tows, and coastal stocks. However, because from this survey. At this time, for the implementation of the proposed estuarine stocks may venture into reasons described above, we believe the monitoring and mitigation measures, we coastal waters, there is a small likelihood of an animal from the NNCES do not believe there is reasonable possibility that takes from this survey stock being taken during Atlantic likelihood that of take from this survey. could have been from the SNCES (n = Striped Bass Bottom Trawl Survey is The SEAMAP–SA Coastal Trawl 1), Northern South Carolina Estuarine unlikely. Survey (SCDNR) operates 300–350 The SEAMAP–SA Pamlico Sound trawls annually from Cape Hatteras, NC System (n = 1), Northern Georgia/ Trawl Survey (NCDENR) is conducted to Cape Canaveral, FL in nearshore Southern South Carolina Estuarine to support stock assessments and oceanic waters of 15–30 ft (4–10 m) System (n = 2), and Southern Georgia management of finfish, shrimp, and crab depth. Its goal is to collect long-term Estuarine System (n = 1) (Table 5). This species in Pamlico Sound and its bays fishery independent data on is the only survey which may and rivers. The otter trawl survey takes ecologically, commercially, and potentially overlap with the NNCES and place for 10 days in June and 10 days recreationally important fish and SNCES stock, but it does so in coastal in September during daylight hours. Up invertebrates, including shrimp and waters where coastal stocks overlap in to 54 trawls are completed each month blue crab. Tow time is approximately 20 time and space. It is most likely that a (total = 108 trawls) aboard the R/V minutes. This survey is not associated take from this survey would be from a Carolina Coast. The general area of with sea turtle research surveys, which coastal stock. Therefore, we are not operation is Pamlico Sound and the have longer tow times. SCDNR uses the proposing to authorize take from the Pamlico, Pungo, and Neuse rivers in R/V Lady Lisa outfitted with an otter NNCES or SNCES stock. waters greater than or equal to 6 ft. trawl comprised of paired mongoose-

TABLE 5—POSSIBLE STOCK ORIGIN OF BOTTLENOSE DOLPHINS TAKEN IN THE ARA

Possible stocks Date Location taken Coastal Estuarine

2001 ...... Unknown ...... Unknown ...... unknown July 2006 ...... Off Fripp Island, GA ...... W.N. Atlantic South Carolina-Georgia Northern Georgia/Southern South Coastal. Carolina Estuarine System. October 2006 ...... Off Oak Island, NC ...... Southern Migratory ...... Southern North Carolina Estuarine System. July 2012 ...... Off Little Tybee Island, GA ...... W.N. Atlantic South Carolina-Georgia Northern Georgia/Southern South Coastal. Carolina Estuarine System. August 2012 ...... Off Pawley’s Island, SC ...... W.N. Atlantic South Carolina-Georgia Northern South Carolina Estuarine Coastal. System: April 2014 ...... off the coast of Florida between St. Au- W.N. Atlantic Northern Florida Coastal W.N. Atlantic Central Florida Coastal. gustine and Daytona Beach. July 2016 ...... off Sea Island, Georgia ...... W.N. Atlantic South Carolina-Georgia Southern Georgia Estuarine System. Coastal. October 2019 ...... 10 kms off Dewey’s Island, SC ...... W.N. Atlantic South Carolina-Georgia N/A—too far offshore. Coastal.

The only survey overlapping with the 5 years by M/SI (Table 7). We are take place during the proposed 5-year Indian River Lagoon (IRL) stock is the proposing to issue the requested three regulations. For example, at time of the St. Lucie Rod-and-Reel Fish Health M/SI takes per stock of each of the application, only one survey conducted Study. There are no documented coastal stocks and the offshore stock in by TPWD was planned to occur in instances of the SEFSC taking a dolphin the ARA over 5 years (Table 7). Sabine Lake. However, that specific from this survey. Therefore, we believe In the GOMRA, the SEFSC is survey has been discontinued. the likelihood of take is low and requesting to take one dolphin from Therefore, no fisheries research by mitigation measures (e.g. quickly reeling each of the 21 estuarine stocks, three SEFSC or its partners would occur in in line if dolphins are likely to interact dolphins from the Mississippi Sound Sabine Lake. Therefore, no take is with gear) would be effective at further stock, and three dolphins per year from expected to occur, and we did not reducing take potential to discountable. the coastal stocks (Table 7). Similar to include take of dolphins in Sabine Lake In consideration of this, we are not the ARA, NMFS examined the SEFSC’s in the rule. proposing to issue take of the IRL stock. request and assessed authorizing take When examining the survey gear used In summary, we are not proposing to based on fishing effort and stock spatial and fishing methods, we determined authorize requested take in the ARA for and temporal parameters, the potential that the IJA Open Bay Shellfish Trawl the NNCES, SNCES, and Indian River for take based on fishing practices (e.g., Survey (conducted by TPWD) has a very Lagoon stocks due to low to gear description, tow/soak times). In low potential to take dolphins. This discountable potential for take. For all addition, the SEFSC has provided survey has no documented dolphin/gear other estuarine stocks for which take supplemental information indicating interactions despite high fishing effort was requested (n = 7), we are proposing some surveys are discontinued or (90 trawls for month/1080 trawls per to authorize the requested one take over currently inactive and are not likely to year). This is likely because TPWD uses

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a very small (20 ft (6 m) wide) otter Caminada Bay, Barataria Bay east to stock (MS Sound stock): four trawl, shrimp trawl which is towed for only 10 Bastian Bay, Bay Coquette, and Gulf three gillnet, and two hook and line. minutes in 3–30 ft (1–10 m) of water. coastal waters extending 1 km from the While there are three documented takes The nets can be retrieved within 1 to 2 shoreline. The SEFSC has committed to from this stock since 2011 (from gillnet minutes. The IJA Open Bay Shellfish avoiding conducting fisheries and trawl surveys), there are none none Trawl Survey is the only survey independent monitoring in these waters. prior to that year. The SEFSC requested conducted by the SEFSC that overlaps Hence, we find the potential for take three M/SI takes from the MS Sound with the following BSE bottlenose from the Barataria Bay stock is stock due to the amount of fishing effort dolphin stocks: Laguna Madre; Nueces discountable and we are not proposing in this waterbody. However, we find Bay, Corpus Christi Bay; Copano Bay, to authorize the requested take. two takes are warranted over the life of On December 22, 2017, the SEFSC Aransas Bay, San Antonio Bay, Redfish the 5-year regulations given the lack of indicated the Gulfspan shark survey Bay, Espirtu Santo Bay; Matagorda Bay, take prior to 2011 and implementation Tres Palacios Bay, Lavaca Bay; West conducted by University of West Florida of the mitigation and monitoring Bay, and Galveston Bay, East Bay, (UWF) is considered inactive as of 2017 measures. Further, previous takes Trinity Bay. TPWD has no documented and would not likely take place over the take of dolphins from the IJA Open Bay course of the regulations due to staffing indicate there is potential that a marine Shellfish Trawl Survey despite years of changes. This is the only survey mammal may not die or be seriously research effort. Due to the discountable overlapping with the Perdido Bay, injured in fishing gear but be injured. potential for take from the IJA Open Bay Pensacola Bay, Choctawhatchee Bay Therefore, we are proposing to authorize Shellfish Trawl Survey, we are not stocks. Therefore, we find the potential one take by M/SI and one take by Level proposing to authorize take of these for take from these stocks is A harassment for the Mississippi Sound Texas bottlenose dolphin stocks to the discountable, and we are not proposing stock over the 5-year regulations (Table SEFSC. to authorize the requested take. 6). No takes of bottlenose dolphins by Another stock with a discountable There are nine surveys in the GOMRA the SEFSC have been documented in the potential for take is the Barataria Bay overlapping with the Mississippi CRA. However, we authorize one take stock. This stock’s habitat includes Sound, Lake Borgne, Bay Boudreau over 5 years at the request of the SEFSC.

TABLE 6—SEFSC TOTAL REQUESTED AND AUTHORIZED TAKE OF BOTTLENOSE DOLPHINS IN ARA, GOMRA, AND CRA OVER THE LIFE OF THE PROPOSED 5-YEAR REGULATIONS

Total requested take Total authorized take Stock (M/SI or level (M/SI or level A) A )

Northern North Carolina Estuarine System Stock ...... 1 0 1 Southern North Carolina Estuarine System Stock ...... 1 0 1 Northern South Carolina Estuarine Stock ...... 1 1 Charleston Estuarine System Stock ...... 1 1 Northern Georgia/Southern South Carolina Estuarine System Stock ...... 1 1 Central Georgia Estuarine System ...... 1 1 Southern Georgia Estuarine System Stock ...... 1 1 Jacksonville Estuarine System Stock ...... 1 1 Indian River Lagoon Estuarine System Stock ...... 1 01 Biscayne Bay Stock ...... 0 0 Florida Bay Stock ...... 1 1 Western North Atlantic South Carolina/Georgia Coastal Stock ...... 3 3 Western North Atlantic Northern Florida Coastal Stock ...... 3 3 Western North Atlantic Central Florida Coastal Stock ...... 3 3 Western North Atlantic Northern Migratory Coastal Stock ...... 3 3 Western North Atlantic Southern Migratory Coastal Stock ...... 3 3 Western North Atlantic Offshore Stock ...... 3 3 Puerto Rico and US Virgin Islands Stock ...... 1 1 Laguna Madre ...... 1 0 1 Nueces Bay, Corpus Christi Bay ...... 1 0 1 Copano Bay, Aransas Bay, San Antonio Bay, Redfish Bay, Espirtu Santo Bay ...... 1 0 1 Matagorda Bay, Tres Palacios Bay, Lavaca Bay ...... 1 0 1 West Bay ...... 1 0 1 Galveston Bay, East Bay, Trinity Bay ...... 1 0 1 Sabine Lake ...... 1 0 1 Calcasieu Lake ...... 0 0 Atchalfalaya Bay, Vermilion Bay, West Cote Blanche Bay ...... 0 0 Terrabonne Bay, Timbalier Bay ...... 1 1 Barataria Bay Estuarine System ...... 1 0 2 Mississippi River Delta ...... 1 1 Mississippi Sound, Lake Bornge, Bay Boudreau ...... 3 1 M/SI, 1 Level A 3 Mobile Bay, Bonsecour Bay ...... 1 1 Perdido Bay ...... 1 0 2 Pensacola Bay, East Bay ...... 1 0 2 Choctwhatchee Bay ...... 1 0 2 St. Andrew Bay ...... 1 1 St. Joseph Bay ...... 1 1 St. Vincent Sound, Apalachiola Bay, St. George Sound ...... 1 1 Apalachee Bay ...... 1 1

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TABLE 6—SEFSC TOTAL REQUESTED AND AUTHORIZED TAKE OF BOTTLENOSE DOLPHINS IN ARA, GOMRA, AND CRA OVER THE LIFE OF THE PROPOSED 5-YEAR REGULATIONS—Continued

Total requested take Total authorized take Stock (M/SI or level (M/SI or level A) A )

Waccasassa Bay, Withlacoochee Bay, Crystal Bay ...... 1 1 St. Joseph Sound, Clearwater Harbor ...... 0 0 Tampa Bay ...... 0 0 Sarasota Bay, Little Sarasota Bay ...... 0 0 Pine Island Sound, Charlotte Harbor, Gasparilla Sound, Lemon Bay ...... 1 1 Caloosahatchee River ...... 0 0 Estero Bay ...... 0 0 Chokoloskee Bay, Ten Thousand Islands, Gullivan Bay ...... 1 1 Whitewater Bay ...... 0 0 Florida Keys-Bahia Honda to Key West ...... 0 0 Northern Gulf of Mexico Western Coastal Stock ...... 3 3 Northern Gulf of Mexico Northern Coastal Stock ...... 3 3 Northern Gulf of Mexico Eastern Coastal Stock ...... 3 3 1 Surveys overlapping these stocks have a low to discountable potential to take marine mammals due to temporal and spatial overlap with stock, fishing methods, and/or gear types. The SEFSC has no history of taking individuals from these stocks. 2 No surveys are proposed that overlap with these stocks. 3 The SEFSC has the potential to take one marine mammal by M/SI or Level A harassment and one marine mammal by Level A harassment (injury) only for the Mississippi Sound stock.

Pelagic Marine Mammals Take—SEFSC species of marine mammals, we fisheries), participating in a fishery compared with similar commercial listed on the LOF must report to NMFS Since systematic record keep began in fisheries by way of the 2017 List of all incidental mortalities and injuries of 2002, the SEFSC and affiliated research Fisheries (LOF) and the record of marine mammals that occur during partners have taken no marine mammals interactions from non-SEFSC affiliated commercial fishing operations, species other than bottlenose dolphins research. regardless of the category in which the by gear interaction. However, NMFS has NMFS LOF classifies U.S. commercial fishery is placed. The LOF for 2016 was assessed other sources of M/SI for these fisheries into one of three categories based on, among other things, stranding species (e.g., commercial fishing) to according to the level of incidental data; fisher self-reports; and SARs, inform the potential for incidental takes marine mammal M/SI that is known to primarily the 2014 SARs, which are of marine mammals in the ARA, have occurred on an annual basis over GOMRA, and CRA under this rule. the most recent 5-year period (generally) generally based on data from 2008– These species have not been taken for which data has been analyzed: 2012. Table 7 indicates which species historically by SEFSC research activities Category I, frequent incidental M/SI; (other than bottlenose dolphins) have but inhabit the same areas and show Category II, occasional incidental M/SI; been known to interact with commercial similar types of behaviors and and Category III, remote likelihood of or fishing gear in the three research areas vulnerabilities to such gear used in no known incidental M/SI. In based on the 2016 LOF (81 FR 20550; other contexts. To more accordance with the MMPA (16 U.S.C. April 8, 2016). More information on the comprehensively identify where 1387(e)) and 50 CFR 229.6, any vessel 2016 LOF can be found at http:// vulnerability and potential exists for owner or operator, or gear owner or www.nmfs.noaa.gov/pr/interactions/ take between SEFSC research and other operator (in the case of non-vessel fisheries/lof.html.

TABLE 7—GEAR TYPES IMPLICATED FOR INTERACTION WITH MARINE MAMMALS IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN COMMERCIAL FISHERIES

Fishery by gear type 1 Species Gillnet fisheries Trawl fisheries Trap/pot Longline

N. Atlantic right whale ...... Y ...... Y ...... Humpback whale ...... Y ...... Y ...... Fin whale ...... Y ...... Y ...... Minke whale ...... Y Y Y Y Risso’s dolphin ...... Y Y ...... Y Cuvier’s beaked whale ...... Y Gervais beaked whale ...... Y Beaked whale (Mesoplodon spp) ...... Y False killer whale ...... Y Killer whale ...... Y Pygmy sperm whale ...... Y Sperm Whale ...... Y Long-finned pilot whale ...... Y Y ...... Y Short-finned pilot whale ...... Y White-sided dolphin ...... Y Y ......

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TABLE 7—GEAR TYPES IMPLICATED FOR INTERACTION WITH MARINE MAMMALS IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN COMMERCIAL FISHERIES—Continued

Fishery by gear type 1 Species Gillnet fisheries Trawl fisheries Trap/pot Longline

Atlantic spotted dolphin ...... Y ...... Y Pantropical spotted dolphin ...... Y ...... Y Common dolphin ...... Y Y ...... Y Harbor porpoise ...... Y Y ...... Harbor seal ...... Y Y Y ...... Gray seal ...... Y ...... 1 Only fisheries with gear types used by the SEFSC during the course of the regulations are included here. For example, purse seine and aquaculture fisheries are also known to interact with marine mammals in the specified geographic region. However, the SEFSC would not use those gears during their research.

In addition to examining known (e.g., relative survey effort, survey research gear whenever crew and vessel interaction, we also considered a location, similarity in gear type, animal safety are not jeopardized. number of activity-related factors (e.g., behavior, prior history of SEFSC With respect to trawling, both gear size, set duration, etc.) and species- interactions with longline gear etc.). commercial fisheries and non-SEFSC specific factors (e.g., species-specific First we examined species known to be affiliated research trawls in the Gulf of knowledge regarding animal behavior, taken in longline fisheries but for which Mexico have taken pelagic marine overall abundance in the geographic the SEFSC has not requested take. For mammals. For example, a mid-water region, density relative to SEFSC survey example, the SEFSC is not requesting effort, feeding ecology, propensity to take of large whales in longline gear. research trawl conducted to monitor the travel in groups commonly associated Although large whale species could effects of the Deepwater Horizon oil with other species historically taken) to become entangled in longline gear, the spill in the Gulf of Mexico took three determine whether a species may have probability of interaction with SEFSC pantropical spotted dolphins in one a similar vulnerability to certain types longline gear is extremely low trawl in 2012. Additionally, an Atlantic of gear as historically taken species. For considering a far lower level of survey spotted dolphin was taken in non- example, despite known take in effort relative to that of commercial SEFSC research bottom trawl in 2014. commercial trap/pot fisheries, here we fisheries, as well as much shorter set Known takes in commercial trawl rule out the potential for traps/pots to durations, shorter line lengths, and fisheries in the ARA and GOMRA take marine mammals incidental to monitoring and mitigation measures include a range of marine mammal SEFSC research for a number of reasons. implemented by the SEFSC (e.g., the species (Table 8). NMFS examined the Commercial fisheries often involve move-on rule). Although data on similarities between species known to hundreds of unattended traps that are commercial fishing efforts comparable be taken in commercial and non-SEFSC located on a semi-permanent basis, to the known SEFSC research protocols research trawls with those species that usually with long, loose float lines, in (net size, tow duration and speed, and overlap in time and space with SEFSC shallow waters close to shore. In total number of tows) are not publically research trawls in the open ocean. contrast, SEFSC research gear is fished available, based on the amount of fish Because some species exhibit similar in deeper waters, and typically only one caught by commercial fisheries versus behavior, distribution, abundance, and pot is fished at a time and monitored SEFSC fisheries research, the vulnerability to research trawl gear to continuously for short soak times (e.g., ‘‘footprint’’ of research effort compared these species, NMFS proposes to one hour). These differences in fishing to commercial fisheries is very small authorize take of eight species of pelagic practices, along with the fact no marine (see Section 9 in the SEFSC’s cetaceans and two pinniped species in mammals have been taken in a SEFSC application). As such, the SEFSC has the ARA and nine species of cetaceans trap/pot, negate the potential for take to not requested, nor is NMFS proposing, in the GOMRA (Table 9). In addition, a level NMFS does not believe warrants to authorize take of large whales (i.e., NMFS provides allowance of one take of authorization of take, and there is no mysticetes) incidental to longline historical documentation of take from research. There are situations with an unidentified species in the ARA, this gear incidental to SEFSC surveys. hook-and-line (e.g., longline) fisheries GOMRA, and CRA over the life of these Therefore, we do not expect take research gear when a caught animal regulations to account for any animal incidental to SEFSC research activities cannot be identified to species with that cannot be identified to a species using trap/pot gear. certainty. This might occur when a level. Takes would occur incidental to It is well documented that multiple hooked or entangled dolphin frees itself trawl and hook and line (including marine mammal species are taken in before being identified or when longline) research in the ARA and commercial longline fisheries (Table 8). concerns over crew safety, weather, or GOMRA. However, because the SEFSC We used this information to help make sea state conditions necessitate quickly does not use trawl gear in the CRA, take an informed decision on the probability releasing the animal before is incidental to hook and line gear in the of specific cetacean and large whale identification is possible. The top Caribbean (see Tables 6.4–6.6 in interactions with longline gear and priority for live animals is to release SEFSC’s application for more detail). other hook-and-line gear while taking them as quickly and safely as possible. We are proposing to authorize the into account many other factors The SEFSC ship’s crew and research amount of take requested by the affecting the vulnerability of a species to personnel make concerted efforts to SEFSC’s for these stocks listed in Table be taken in SEFSC research surveys identify animals incidentally caught in 8.

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TABLE 8—TOTAL TAKE, BY SPECIES AND STOCK, OF PELAGIC MARINE MAMMALS IN THE ARA AND GOMRA INCIDENTAL TO TRAWL AND HOOK AND LINE RESEARCH AND, IN THE CRA, INCIDENTAL TO HOOK AND LINE RESEARCH ACTIVITIES OVER THE 5 YEAR REGULATIONS

Total M&SI Species Stock take

Risso’s dolphin ...... Western North Atlantic ...... 1 N. Gulf of Mexico ...... 1 Melon headed whale ...... N. Gulf of Mexico ...... 3 Short-finned pilot whale ...... Western North Atlantic ...... 1 N. Gulf of Mexico ...... 1 Long-finned pilot whale ...... Western North Atlantic ...... 1 Short-beaked common dolphin ...... Western North Atlantic ...... 4 Atlantic spotted dolphin ...... Western North Atlantic ...... 4 N. Gulf of Mexico ...... 4 Pantropical spotted dolphin ...... Western North Atlantic ...... 1 N. Gulf of Mexico ...... 4 Striped dolphin ...... Western North Atlantic ...... 3 N. Gulf of Mexico ...... 3 Spinner dolphin ...... N. Gulf of Mexico ...... 3 Rough-toothed dolphin ...... N. Gulf of Mexico ...... 1 Bottlenose dolphin ...... Western North Atlantic Oceanic ...... 4 N. Gulf of Mexico Oceanic ...... 4 N. Gulf of Mexico Continental Shelf ...... 4 Puerto Rico/USVI ...... 1 Harbor porpoise ...... Gulf of Maine/Bay of Fundy ...... 1 Undetermined delphinid ...... Western North Atlantic ...... 1 N. Gulf of Mexico ...... 1 Harbor seal ...... Western North Atlantic ...... 1 Gray seal ...... Western North Atlantic ...... 1

Estimated Take Due to Acoustic Acoustic Thresholds and measurable for most activities, Harassment Using the best available science, NMFS uses a generalized acoustic NMFS has developed acoustic threshold based on received level to As described previously (Potential estimate the onset of Level B Effects of Specified Activities on Marine thresholds that identify the received level of underwater sound above which harassment. NMFS predicts that marine Mammals and their Habitat), we believe mammals are likely to be behaviorally that SEFSC use of active acoustic exposed marine mammals would be reasonably expected to be behaviorally harassed in a manner we consider Level sources has, at most, the potential to harassed (equated to Level B B harassment when exposed to cause Level B harassment of marine harassment) or to incur PTS of some underwater anthropogenic noise above mammals. In order to attempt to degree (Level A harassment). We note received levels of 120 dB re 1 mPa (rms) quantify the potential for Level B NMFS has begun efforts to update its for continuous (e.g., vibratory pile- harassment to occur, NMFS (including behavioral thresholds, considering all driving, drilling) and above 160 dB re 1 the SEFSC and acoustics experts from available data, and is formulating a mPa (rms) for non-explosive impulsive other parts of NMFS) developed an strategy for updating those thresholds (e.g., seismic airguns) or intermittent analytical framework considering for all types of sound sources (e.g., scientific sonar) sources. Neither characteristics of the active acoustic considered in incidental take threshold is used for military sonar due systems described previously under authorizations. It is NMFS intention to to the unique source characteristics. Description of Active Acoustic Sound conduct both internal and external The Marine Mammal Commission Sources, their expected patterns of use, review of any new thresholds prior to (Commission) has previously suggested and characteristics of the marine finalizing. In the interim, we apply the NMFS apply the 120 dB continuous mammal species that may interact with traditional thresholds. threshold to scientific sonar such as the them. This quantitative assessment Level B Harassment for non-explosive ones proposed by the SEFSC. NMFS has benefits from its simplicity and sources—Though significantly driven by responded to this comment in multiple consistency with current NMFS acoustic received level, the onset of behavioral Federal Register notices of issuance for guidance regarding Level B harassment disturbance from anthropogenic noise other NMFS science centers. However, but we caution that, based on a number exposure is also informed to varying we provide more clarification here on of deliberately precautionary degrees by other factors related to the why the 160 dB threshold is appropriate assumptions, the resulting take source (e.g., frequency, predictability, when estimating take from acoustic estimates may be seen as an duty cycle), the environment (e.g., sources used during SEFSC research overestimate of the potential for Level B bathymetry), and the receiving animals activities. NMFS has historically harassment to occur as a result of the (hearing, motivation, experience, referred to the 160 dB threshold as the operation of these systems. Additional demography, behavioral context) and impulsive threshold, and the 120 dB details on the approach used and the can be difficult to predict (Southall et threshold as the continuous threshold, al., 2007, Ellison et al., 2011). Based on which in and of itself is conflicting as assumptions made that result in these what the best available science indicates one is referring to pulse characteristics estimates are described below. and the practical need to use a threshold and the other is referring to the temporal based on a factor that is both predictable component. A more accurate term for

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the impulsive threshold is the (based on hearing sensitivity) as a result (3) A method for quantifying the intermittent threshold. This distinction of exposure to noise from two different resulting sound fields around these is important because, when assessing types of sources (impulsive or non- sources; and the potential for hearing loss (PTS or impulsive). However, as described in (4) An estimate of the average density TTS) or non-auditory injury (e.g., lung greater detail in the Potential Effects of for marine mammal species in each area injury), the spectral characteristics of Specified Activities on Marine of operation. source (impulsive vs. non-impulsive) is Mammals and their Habitat section, Quantifying the spatial and temporal critical to assessing the potential for given the highly directional beam, dimension of the sound exposure such impacts. However, for behavior, NMFS does not anticipate animals footprint (or ‘‘swath width’’) of the the temporal component is more would be exposed to noise levels active acoustic devices in operation on appropriate to consider. Gomez et al. resulting in PTS. Therefore, the Level A moving vessels and their relationship to (2016) conducted a systematic literature criteria do not apply here and are not the average density of marine mammals review (370 papers) and analysis (79 discussed further; NMFS is proposing enables a quantitative estimate of the studies, 195 data cases) to better assess take by Level B harassment only. number of individuals for which sound probability and severity of behavioral The operating frequencies of active levels exceed the relevant threshold for responses in marine mammals exposed acoustic systems used by the SEFSC each area. The number of potential to anthropogenic sound. They found a sources range from 18–333 kHz (see incidents of Level B harassment is significant relationship between source Table 2). These frequencies are within ultimately estimated as the product of type and behavioral response when the very upper hearing range limits of the volume of water ensonified at 160 sources were split into broad categories baleen whales (7 Hz to 35 kHz). The dB rms or higher and the volumetric that reflected whether sources were Simrad EK60 may operate at frequency density of animals determined from continuous, sonar, or seismic (the latter of 18 kHz which is the only frequency simple assumptions about their vertical two of which are intermittent sources). that might be detectable by baleen stratification in the water column. Moreover, while Gomez et al. (2017) whales. However, the beam pattern is Specifically, reasonable assumptions acknowledges acoustically sensitive extremely narrow (11 degrees) at that based on what is known about diving species (beaked whales and harbor frequency. The Simrad ME70 behavior across different marine mammal species were made to segregate porpoise), the authors do not echosounder, EQ50, and Teledyne RD those that predominately remain in the recommend an alternative method for ADCP operate at 50–200 kHz which are upper 200 m of the water column, categorizing sound sources for these all outside of baleen whale hearing versus those that regularly dive deeper species when assessing behavioral capabilities. Therefore, we would not during foraging and transit. Methods for impacts from noise exposure. expect any exposures to these signals to estimating each of these calculations are To apply the continuous 120 dB result in Level B harassment. The described in greater detail in the threshold to all species based on data Simrad EK60 lowest operating following sections, along with the from known acoustically sensitive frequency (18 kHz) is within baleen species (one species of which is the simplifying assumptions made, and whale hearing capabilities. harbor porpoise which is likely to be followed by the take estimates. The assessment paradigm for active rarely encountered in the ARA and do Sound source characteristics—An acoustic sources used in SEFSC not inhabit the GOMRA or CRA) is not initial characterization of the general fisheries research mirrors approaches by warranted as it would be unnecessarily source parameters for the primary active conservative for non-sensitive species. other NMFS Science Centers applying acoustic sources operated by the SEFSC Qualitatively considered in our effects for regulations. It is relatively was conducted, enabling a full analysis below is that beaked whales straightforward and has a number of key assessment of all sound sources used by and harbor porpoise are more simple and conservative assumptions. the SEFSC and delineation of Category acoustically sensitive than other NMFS’ current acoustic guidance 1 and Category 2 sources, the latter of cetacean species, and thus are more requires in most cases that we assume which were carried forward for analysis likely to demonstrate overt changes in Level B harassment occurs when a here. This auditing of the active acoustic behavior when exposed to such sources. marine mammal receives an acoustic sources also enabled a determination of Further, in absence of very sophisticated signal at or above a simple step-function the predominant sources that, when acoustic modeling, our propagation threshold. For use of these active operated, would have sound footprints rates are also conservative. Therefore, acoustic systems used during SEFSC exceeding those from any other the distance to the 160 dB threshold is research, NMFS uses the threshold is simultaneously used sources. These likely much closer to the source than 160 dB re 1 mPa (rms) as the best sources were effectively those used calculated. In summary, the SEFSC’s available science indicates the temporal directly in acoustic propagation proposed activity includes the use of characteristics of a source are most modeling to estimate the zones within intermittent sources (scientific sonar). influential in determining behavioral which the 160 dB rms received level Therefore, the 160 dB re 1 mPa (rms) impacts (Gomez et al., 2016), and it is would occur. threshold is applicable when NMFS’ long standing practice to apply Many of these sources can be operated quantitatively estimating take by Level the 160 dB threshold to intermittent in different modes and with different B harassment incidental to SEFSC sources. Estimating the number of output parameters. In modeling their scientific sonar for all marine mammal exposures at the specified received level potential impact areas, those features species. requires several determinations, each of among those given previously in Table Level A harassment for non-explosive which is described sequentially below: 2 (e.g., lowest operating frequency) that sources—NMFS’ Technical Guidance (1) A detailed characterization of the would lead to the most precautionary for Assessing the Effects of acoustic characteristics of the effective estimate of maximum received level Anthropogenic Sound on Marine sound source or sources in operation; ranges (i.e., largest ensonified area) were Mammal Hearing (Technical Guidance, (2) The operational areas exposed to used. The effective beam patterns took 2018) identifies dual criteria to assess levels at or above those associated with into account the normal modes in which auditory injury (Level A harassment) to Level B harassment when these sources these sources are typically operated. five different marine mammal groups are in operation; While these signals are brief and

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intermittent, a conservative assumption calculating Level B harassment events. in the calculation of effective line- was taken in ignoring the temporal Operating characteristics of each of the kilometers and area of exposure for each pattern of transmitted pulses in predominant sound sources were used source in each survey (Table 9).

TABLE 9—EFFECTIVE EXPOSURE AREAS FOR PREDOMINANT ACOUSTIC SOURCES ACROSS TWO DEPTH STRATA

Effective Effective exposure exposure area: Sea area: Sea surface to Active acoustic system surface depth at to 200 m which 160-dB depth threshold (km2) is reached (km2)

Simrad EK60 narrow beam echosounder ...... 0.0142 0.1411 Simrad ME70 multibeam echosounder ...... 0.0201 0.0201 Teledyne RD Instruments ADCP, Ocean Surveyor ...... 0.0086 0.0187 Simrad ITI trawl monitoring system ...... 0.0032 0.0032

Calculating effective line-kilometers— simple spherical spreading model of total volume characterizing the area As described below, based on the sound propagation loss (20 log R) such ensonified when each predominant operating parameters for each source that there would be 60 dB of attenuation source is operated and accounts for the type, an estimated volume of water over 1000 m. The spherical spreading fact that deeper-diving species may ensonified at or above the 160 dB rms model accounted for the frequency encounter a complex sound field in threshold was calculated. In all cases dependent absorption coefficient and different portions of the water column. where multiple sources are operated the highly directional beam pattern of Marine mammal densities—One of simultaneously, the one with the largest most of these sound sources. For the primary limitations to traditional estimated acoustic footprint was absorption coefficients, the most estimates of Level B harassment from considered to be the effective source. commonly used formulas given by acoustic exposure is the assumption that Two depth zones were defined for each Francois and Garrison (1982) were used. animals are uniformly distributed in research area: a Continental Shelf The lowest frequency was used for time and space across very large Region defined by having bathymetry 0– systems that are operated over a range geographical areas, such as those being 200 m and an Offshore Region with of frequencies. The vertical extent of considered here. There is ample bathymetry >200 m. Effective line this area is calculated for two depth evidence that this is in fact not the case, distance and volume insonified was strata (surface to 200 m, and for deep and marine species are highly calculated for each depth stratum (0– water operations >200 m, surface to heterogeneous in terms of their spatial 200 m and > 200 m), where appropriate range at which the on-axis received distribution, largely as a result of (i.e. in the Continental Shelf region, level reaches 160 dB RMS). This was species-typical utilization of where depth is <200 m, only the applied differentially based on the heterogeneous ecosystem features. Some exposure area for the 0–200 m depth typical vertical stratification of marine more sophisticated modeling efforts stratum was calculated). In some cases, mammals (see Tables 6–9 and 6–10 in have attempted to include species- this resulted in different sources being SEFSC’s application). typical behavioral patterns and diving predominant in each depth stratum for parameters in movement models that For each of the three predominant more adequately assess the spatial and all line km when multiple sources were sound sources, the volume of water in operation. This was accounted for in temporal aspects of distribution and ensonified is estimated as the cross- thus exposure to sound (e.g., Navy, estimating overall exposures for species sectional area (in square kilometers) of that utilize both depth strata (deep 2013). While simulated movement sound at or above 160 dB rms models were not used to mimic divers). For each ecosystem area, the multiplied by the total distance traveled total number of line km that would be individual diving or aggregation by the ship (see Table 6a and 6b in parameters in the determination of surveyed was determined, as was the SEFSC’s application). Where different relative percentage of surveyed linear animal density in this estimation, the sources operating simultaneously would vertical stratification of marine km associated with each source. The be predominant in each different depth mammals based on known or reasonably total line km for each vessel, the strata (e.g., ME70 and EK60 operating assumed diving behavior was integrated effective portions associated with each simultaneously may be predominant in into the density estimates used. of the dominant sound types, and the the shallow stratum and deep stratum, The marine mammal abundance effective total km for operation for each respectively), the resulting cross- estimates used for the ARA and GOM sound type is given in Tables 6–8a and sectional area calculated took this into were obtained from Stock Assessment 6–8b in SEFSC’s application. In account. Specifically, for shallow-diving Reports for the Atlantic and the Gulf of summary, line transect kms range from species this cross-sectional area was Mexico ecosystem areas (Waring et al. 1149 to 3352 in the ARA and 16,797 to determined for whichever was 2012, 2013, 2014, and 2015), and the 30,146 km with sources operating 20– predominant in the shallow stratum, best scientific information available to 100 percent of the time depending on whereas for deeper-diving species, this SEFSC staff. We note abundances for the source. area was calculated from the combined cetacean stocks in western North Calculating volume of water effects of the predominant source in the Atlantic U.S. waters are the combined ensonified—The cross-sectional area of shallow stratum and the (sometimes estimates from surveys conducted by water ensonified to a 160 dB rms different) source predominating in the the NMFS Northeast Fisheries Science received level was calculated using a deep stratum. This creates an effective Center (NEFSC) from central Virginia to

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the lower Bay of Fundy and surveys The time of year when data were and Rommel, 1999; Perrin et al., 2009). conducted by the SEFSC from central collected and from which densities were Animals in the shallow-diving stratum Virginia to central Florida. The SEFSC estimated may not always overlap with were assumed, on the basis of empirical primary area of research is south of the timing of SEFSC fisheries surveys measurements of diving with central Virginia. Therefore, densities are (detailed previously in Detailed monitoring tags and reasonable based on abundance estimates from Description of Activities). assumptions of behavior based on other central Virginia to central Florida and (2) The densities used for purposes of indicators, to spend a large majority of are reported in the stock assessment estimating acoustic exposures do not their lives (i.e., greater than 75 percent) report for each stock. For example, the take into account the patchy at depths shallower than 200 m. Their fin whale abundance estimate for the distributions of marine mammals in an volumetric density and thus exposure to stock is 1,618. However, most of those ecosystem, at least on the moderate to sound is therefore limited by this depth animals occur in the northeast with only fine scales over which they are known boundary. In contrast, species in the about 23 individuals in the southeast to occur. Instead, animals are deeper-diving stratum were assumed to where SEFSC would occur. Therefore, considered evenly distributed regularly dive deeper than 200 m and an abundance estimate of 23 was used throughout the assessed area, and spend significant time at these greater to estimate density. Density estimates in seasonal movement patterns are not depths. Their volumetric density, and areas where a species is known to occur, taken into account. thus potential exposure to sound at or but where published density data is In addition, and to account for at least above the 160 dB rms threshold, is absent, were calculated based on values some coarse differences in marine extended from the surface to the depth published for the species in adjacent mammal diving behavior and the effect at which this received level condition regions by analogy and SEFSC expertise. this has on their likely exposure to these occurs (i.e., corresponding to the 0 to For example, in the CRA there are kinds of often highly directional sound greater than 200 m depth stratum). records of marine mammal species sources, a volumetric density of marine The volumetric densities are estimates occurrence (e.g., Mignucci-Giannoni mammals of each species was of the three-dimensional distribution of 1998, Roden and Mullin 2000). determined. This value is estimated as animals in their typical depth strata. For However, area specific abundance the abundance averaged over the two- shallow-diving species, the volumetric estimates are unavailable so the density dimensional geographic area of the density is the area density divided by estimates for the GOMRA were used as surveys and the vertical range of typical 0.2 km (i.e., 200 m). For deeper diving proxies where appropriate to estimate habitat for the population. Habitat species, the volumetric density is the acoustic take in the CRA. There are a ranges were categorized in two area density divided by a nominal value number of caveats associated with these generalized depth strata (0–200 m and 0 of 0.5 km (i.e., 500 m). The two- estimates: to greater than 200 m) based on gross dimensional and resulting three- (1) They are often calculated using differences between known generally dimensional (volumetric) densities for visual sighting data collected during one surface-associated and typically deep- each species in each ecosystem area are season rather than throughout the year. diving marine mammals (e.g., Reynolds provided in Table 10.

TABLE 10—ABUNDANCES AND VOLUMETRIC DENSITIES CALCULATED FOR EACH SPECIES IN SEFSC RESEARCH AREAS USED IN TAKE ESTIMATION

Typical dive depth Continental Continental 3 Offshore area strata 2 Offshore area shelf area 1 shelf area volumetric Species Abundance density density volumetric density (#/km2) density 0–200 m >200 m (#/km2) (#/km3) (#/km3)

Atlantic Research Area 4

Fin whale ...... 23 ...... X ...... 0.00005 ...... 0.00025 Sperm whale ...... 695 ...... X ...... 0.00148 ...... 0.00296 Pygmy/dwarf sperm 2,002 ...... X ...... 0.00426 ...... 0.00852 whales 5. False killer whale ...... 442 ...... X ...... 0.00094 ...... 0.00470 Beaked whales 5 ...... 3,163 ...... X ...... 0.00673 ...... 0.01346 Risso’s dolphin ...... 3,053 ...... X ...... 0.00650 ...... 0.03248 Short-finned pilot whale 16,964 ...... X ...... 0.03610 ...... 0.07219 Short-beaked common 2,993 ...... X ...... 0.00637 ...... 0.03184 dolphin. Atlantic spotted dolphin 17,917 ...... X ...... 0.39209 0.03812 ...... 1.96043 0.19062 Pantropical spotted 3,333 ...... X ...... 0.00709 ...... 0.03546 dolphin. Striped dolphin ...... 7,925 ...... X ...... 0.01686 ...... 0.08431 Rough-toothed dolphin 271 ...... X ...... 0.00058 ...... 0.00288 Bottlenose dolphin ...... 50,766 (offshore); X ...... 0.25006 0.10802...... 1.25028 0.54010 31,212 (cont. shelf).

Gulf of Mexico Research Area

Bryde’s whale ...... 33 ...... X ...... 0.00011 ...... 0.00054 Sperm whale ...... 763 ...... X ...... 0.00438 ...... 0.00876 Pygmy/dwarf sperm 184 ...... X ...... 0.01857 ...... 0.00101 whales 5. Pygmy killer whale ...... 152 ...... X ...... 0.00080 ...... 0.00400

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TABLE 10—ABUNDANCES AND VOLUMETRIC DENSITIES CALCULATED FOR EACH SPECIES IN SEFSC RESEARCH AREAS USED IN TAKE ESTIMATION—Continued

Continental Typical dive depth Continental Offshore area strata Offshore area 3 shelf area shelf area 2 volumetric 1 density volumetric Species Abundance density density (#/km2) density 0–200 m >200 m (#/km2) (#/km3) (#/km3)

False killer whale ...... Unk ...... X ...... 0.00086 ...... 0.00432 Beaked whales 56 ...... 149 ...... X ...... 0.00925 ...... 0.00081 Melon-headed whale ... 2,235 ...... X ...... 0.00487 ...... 0.02434 Risso’s dolphin ...... 2,442 ...... X ...... 0.00523 ...... 0.02613 Short-finned pilot whale 2,415 ...... X ...... 0.00463 ...... 0.00925 Atlantic spotted dol- 37,611 ...... X ...... 0.09971 unk...... 0.49854 Unk phin 7. Pantropical spotted 50,880 ...... X ...... 0.09412 ...... 0.47062 dolphin. Striped dolphin ...... 1,849 ...... X ...... 0.00735 ...... 0.03677 Rough-toothed dolphin 624 ...... X ...... 0.00401 0.00664 ...... 0.02006 0.03322 Clymene dolphin 8 ...... 129 ...... X ...... 0.00907 ...... 0.04537 Spinner dolphin ...... 11,441 ...... X ...... 0.01888 ...... 0.09439 Bottlenose dolphin ...... 5,806 (oceanic); X ...... 0.29462 0.02347 ...... 1.47311 0.11735 51,192 (cont. shelf).

Caribbean Research Area 9

Sperm whale ...... 763 ...... X na 0.00438 ...... na 0.008761 Pygmy/dwarf sperm 186 ...... X na 0.01857...... na 0.00101 whales 56. Killer whale...... 184 ...... X ...... na 0.00000 ...... na 0 Pygmy killer whale ...... 152 ...... X ...... na 0.00080 ...... na 0.003998 False killer whale ...... Unk ...... X ...... na 0.00086 ...... na 0.004324 Beaked whales 56 ...... 149 ...... X na 0.00925 ...... na 0.00081 Melon-headed whale... 2,235 ...... X ...... na 0.00487 ...... na 0.024343 Risso’s dolphin...... 2,442 ...... X ...... na 0.00523 ...... na 0.026132 Short-finned pilot whale 2,415 ...... X na 0.00463 ...... na 0.009255 Pantropical spotted 50,880 ...... X ...... na 0.09412 ...... na 0.470615 dolphin. Striped dolphin ...... 1,849 ...... X ...... na 0.00735 ...... na 0.036771 Fraser’s dolphin ...... X ...... na 0.00000 ...... na 0 Rough-toothed dolphin 624 ...... X ...... na 0.00664 ...... na 0.03322 Clymene dolphin...... 129 ...... X ...... na 0.00907 ...... na 0.045365 Spinner dolphin ...... 11,441 ...... X ...... Na 0.01888 ...... na 0.094389 Bottlenose dolphin ...... 5,806 (oceanic); X ...... Na 0.02347...... na 0.117349 51,192 (cont. shelf). 1 Those species known to occur in the ARA and GOMRA with unknown volumetric densities have been omitted from this table. Those omitted include: For the ARA—North Atlantic right whale, blue whale, sei whale, minke whale, humpback whale, melon-headed whale, killer whale, pygmy killer whale, long-finned pilot whale, Fraser’s dolphin, spinner dolphin, Clymene dolphin, harbor porpoise, gray seal, and harbor seal; for the GOMRA—killer whale, Fraser’s dolphin, humpback whale and minke whale. This does not mean they were all omitted for take as proxy spe- cies provided in this table were used to estimate take, where applicable. 2 Continental shelf area means 0–200 m bottom depth. 3 Offshore area means 200 m bottom depth. 4 Abundances for cetacean stocks in western North Atlantic U.S. waters are the combined estimates from surveys conducted by the NEFSC from central Virginia to the lower Bay of Fundy and surveys conducted by the SEFSC from central Virginia to central Florida. The SEFSC pri- mary area of research is south of central Virginia. Therefore, acoustic take estimates are based on abundance estimates from central Virginia to central Florida and are reported in the stock assessment report for each stock. However, these acoustic takes are compared to the abundance for the entire stock. 5 Density estimates are based on the estimates of dwarf and pygmy sperm whale SAR abundances and the combined abundance estimates of all beaked whales (Mesoplodon spp. + Cuvier’s beaked whale). These groups are cryptic and difficult to routinely identify to species in the field. 6 Data from acoustic moorings in the Gulf of Mexico suggest that both beaked whales and dwarf/pygmy sperm whales are much more abun- dant than visual surveys suggest. Therefore, acoustic take estimates for these groups were based on abundance estimates extrapolated from acoustic mooring data (DWH–NRDAT 2016). 7 The most reasonable estimate Atlantic spotted dolphin abundance is in the Gulf of Mexico is based on ship surveys of continental shelf waters conducted from 2000–2001. In the Gulf of Mexico, the continental shelf is the Atlantic spotted dolphin’s primary habitat. Ship surveys have not been conducted in shelf waters since 2001. 8 Three previous abundance estimates for the Clymene dolphin in the Gulf of Mexico were based on surveys conducted over several years, and estimates ranged from 5,000 to over 17,000 dolphins. The current estimate is based on one survey in 2009 from the 200 m isobaths to the EEZ and is probably negatively biased. 9 Estimates for the CRA are based on proxy values taken from the GOMRA where available and appropriate. Species omitted due to lack of data were humpback whale, minke whale, Bryde’s whale, and Atlantic spotted dolphin.

Using area of ensonification and potential exposure to levels of sound at characteristics of each source and volumetric density to estimate or exceeding the 160 dB rms threshold) identification of the predominant exposures—Estimates of potential are then calculated by using (1) the sources in terms of acoustic output; (2) incidents of Level B harassment (i.e., combined results from output their relative annual usage patterns for

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each operational area; (3) a source- subtracted the cross-sectional ensonified (1) ME70 ensonified volume (0–200 specific determination made of the area area of the shallow stratum (which is m) = 0.0201 km2. of water associated with received already accounted for) from that of the (2) Total Linear kms = 1794 km (no sounds at either the extent of a depth deep stratum. Source- and stratum- pantropical spotted dolphins are found boundary or the 160 dB rms received specific exposure estimates are the on the shelf so those trackline distances sound level; and (4) determination of a product of these ensonified volumes are not included here). volumetric density of marine mammal and the species-specific volumetric species in each area. Estimates of Level densities (Table 11). The general take (3) Pantropical spotted dolphin B harassment by acoustic sources are estimate equation for each source in density (0–200 m) = 0.47062 dolphins/ the product of the volume of water each depth statrum is density * km3. ensonified at 160 dB rms or higher for (ensonified volume * linear kms). If (4) Estimated exposures to sound ≥ the predominant sound source for each there are multiple sources of take in 160 dB rms = 0.47062 pantropical portion of the total line-kilometers for both depth stata, individual take spotted dolphin/km3 * (0.0201 km2 * which it is used and the volumetric estimates were summed. To illustrate, 1794 km) = 16.9 (rounded up) = 17 density of animals for each species. we use the ME70 and the pantropical estimated pantropical spotted dolphin However, in order to estimate the spotted dolphin, which are found only exposures to SPLs ≥ 160 dB rms additional volume of ensonified water in the 0–200 m depth stratum, as an resulting from use of the ME70. in the deep stratum, the SEFSC first example:

TABLE 11—ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT

Estimated level B harassment (#s of animals) in Estimated level B harassment in 0–200 m dive depth stratum >200 m dive depth stratum Total Species 1 calculated EK60 ME70 EQ50 EK60 EQ50 take

Atlantic Continental Shelf

Bottlenose dolphin...... 67.00 21.43 21.43 0.00 0.00 110

Atlantic Offshore

Fin whale ...... 0.02 0.00 0.00 0.00 0.00 1 Sperm whale ...... 0.18 0.02 0.01 1.75 0.00 2 Pygmy/dwarf sperm whales ...... 0.52 0.06 0.02 5.03 0.00 6 False killer whale ...... 0.29 0.03 0.01 0.00 0.00 1 Beaked whales ...... 0.83 0.09 0.03 7.95 0.00 9 Risso’s dolphin ...... 2.00 0.21 0.08 0.00 0.00 3 Short-finned pilot whale ...... 4.43 0.48 0.17 42.65 0.00 48 Short-beaked common dolphin ...... 1.96 0.21 0.07 0.00 0.00 3 Atlantic spotted dolphin ...... 11.71 1.26 0.45 0.00 0.00 14 Pantropical spotted dolphin ...... 2.18 0.23 0.08 0.00 0.00 3 Striped dolphin ...... 5.18 0.56 0.20 0.00 0.00 6 Rough-toothed dolphin ...... 0.18 0.02 0.01 0.00 0.00 1 Bottlenose dolphin ...... 33.18 3.57 1.27 0.00 0.00 39

Gulf of Mexico Continental Shelf

Atlantic spotted dolphin ...... 161.80 12.95 22.75 0.00 0.00 198 Bottlenose dolphin ...... 269.16 21.55 37.84 0.00 0.88 329

Gulf of Mexico Offshore

Bryde’s whale ...... 0.23 0.02 0.01 0.00 0.00 1 Sperm whale...... 1.58 00.15 0.06 15.04 0.06 17 Pygmy/dwarf sperm whales ...... 0.38 0.04 0.01 3.66 0.01 5 Pygmy killer whale ...... 0.79 0.07 0.03 0.00 0.00 1 False killer whale ...... 1.63 0.15 0.06 0.00 0.00 2 Beaked whales ...... 0.31 0.03 0.01 2.93 0.01 4 Melon-headed whale ...... 11.55 1.09 0.41 0.00 0.00 13 Risso’s dolphin ...... 15.78 1.49 0.55 0.00 0.00 18 Short-finned pilot whale ...... 4.99 0.47 0.18 0.00 0.00 4 Pantropical spotted dolphin ...... 179.45 16.97 6.31 0.00 0.00 203 Striped dolphin ...... 14.02 1.33 0.49 0.00 0.00 16 Rough-toothed dolphin ...... 3.23 0.30 0.11 0.00 0.00 4 Clymene dolphin ...... 0.67 0.06 0.02 0.00 0.00 1 Spinner dolphin ...... 59.13 5.59 2.08 0.00 0.00 67 Bottlenose dolphin ...... 44.75 4.23 1.57 0.00 0.00 51

Caribbean Offshore

Sperm whale ...... 0.18 0.01 0.00 1.66 0.00 2 Pygmy/dwarf sperm whales ...... 0.38 0.04 0.01 3.66 0.01 5 Pygmy killer whale ...... 0.09 0.00 0.00 0.00 0.00 1 False killer whale ...... 0.19 0.00 0.00 0.00 0.00 1

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TABLE 11—ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT— Continued

Estimated level B harassment (#s of animals) in Estimated level B harassment in 0–200 m dive depth stratum >200 m dive depth stratum Total Species 1 calculated EK60 ME70 EQ50 EK60 EQ50 take

Beaked whales ...... 0.31 0.03 0.01 2.93 0.01 4 Melon-headed whale ...... 1.34 0.03 0.01 0.00 0.00 2 Risso’s dolphin ...... 1.83 0.04 0.02 0.00 0.00 2 Short-finned pilot whale ...... 0.58 0.01 0.01 0.00 0.00 1 Pantropical spotted dolphin ...... 20.80 0.50 0.23 0.00 0.00 22 Striped dolphin ...... 1.63 0.04 0.02 0.00 0.00 2 Rough-toothed dolphin ...... 1.47 0.04 0.02 0.00 0.00 1 Clymene dolphin ...... 0.08 0.05 0.02 0.00 0.00 1 Spinner dolphin ...... 6.85 0.16 0.07 0.00 0.00 8 Bottlenose dolphin ...... 5.19 0.12 0.06 0.00 0.00 6 1 Those species known to occur in the ARA and GOMRA with unknown volumetric densities have been omitted from this table. Those omitted include: For the ARA—North Atlantic right whale, blue whale, sei whale, minke whale, humpback whale, melon-headed whale, killer whale, pygmy killer whale, long-finned pilot whale, Fraser’s dolphin, spinner dolphin, Clymene dolphin, harbor porpoise, gray seal, and harbor seal; for the GOMRA—killer whale, Fraser’s dolphin, humpback whale and minke whale. This does not mean they were all omitted for take as proxy spe- cies provided in this table were used to estimate take, where applicable.

In some cases, the calculated Level B gregarious or travel in group sizes larger requested take to reflect those groups take estimates resulted in low numbers than the calculated take estimate. In sizes (see take column in Table 12). of animals which are known to be those cases, we have adjusted the

TABLE 12—CALCULATED AND AUTHORIZED LEVEL B TAKE ESTIMATES

Authorized Common name MMPA stock Calculated Avg. group take size 1 take

Fin whale ...... Western North Atlantic ...... 1 ...... 2 ...... 4 Blue whale ...... Western North Atlantic ...... N/A 2 ...... 2 ...... 4 N. Atlantic right whale ...... Western North Atlantic ...... N/A 2 ...... 2 ...... 4 Sei whale ...... Western North Atlantic ...... N/A 1 ...... 2 ...... 4 Bryde’s whale ...... Northern Gulf of Mexico ...... 1 ...... 2 ...... 4 Humpback whale ...... Gulf of Maine ...... 2 ...... 4 Sperm whale ...... North Atlantic ...... 2 ...... 2.1 ...... 4 Northern Gulf of Mexico ...... 17 ...... 2.6 ...... 17 Puerto Rico and US Virgin Islands ...... 4 ...... unk ...... 4 Pygmy/dwarf sperm whale 1 .. Western North Atlantic ...... 6 ...... 1.9 ...... 10 Northern Gulf of Mexico ...... 5 ...... 2 ...... 6 Northern Gulf of Mexico (CRA) ...... 5 ...... 2 ...... 6 Beaked whale 2 ...... Western North Atlantic ...... 9 ...... 2.3 ...... 9 Northern Gulf of Mexico (GOMRA) ...... 4 ...... 2 ...... 4 Northern Gulf of Mexico (CRA) ...... 4 ...... 2 ...... 4 Melon-headed whales ...... Northern Gulf of Mexico ...... 13 ...... 99.6 ...... 100 Risso’s dolphin ...... Western North Atlantic ...... 3 ...... 15.4 ...... 15 Northern Gulf of Mexico ...... 18 ...... 10.2 ...... 18 Puerto Rico and U.S. Virgin Island ...... 2 ...... 10.2 ...... 10 Short-finned pilot whales ...... Western North Atlantic ...... 48 ...... 16.6 ...... 48 Northern Gulf of Mexico ...... 6 ...... 24.9 ...... 25 Puerto Rico and U.S. Virgin Islands ...... 1 ...... unk ...... 20 Common dolphin ...... Western North Atlantic ...... 3 ...... 267.2 ...... 267 Atlantic spotted dolphin ...... Western North Atlantic ...... 14 ...... 37 ...... 37 Northern Gulf of Mexico ...... 198 ...... 22 ...... 198 Puerto Rico and U.S. Virgin Islands ...... unk ...... unk ...... 50 Pantropical spotted dolphin ... Western North Atlantic ...... 4 ...... 77.5 ...... 78 Northern Gulf of Mexico ...... 203 ...... 71.3 ...... 203 Striped dolphin ...... Western North Atlantic ...... 6 ...... 74.6 ...... 75 Northern Gulf of Mexico ...... 16 ...... 46.1 ...... 46 Bottlenose dolphin ...... Western North Atlantic (offshore) ...... 39 ...... 11.8 ...... 39 Western North Atlantic (coastal/continental shelf) ...... 110 ...... 10 ...... 110 Northern Gulf of Mexico (coastal) ...... N/A 3 ...... 10 ...... 350 3 Northern Gulf of Mexico (continental shelf) ...... 329 ...... 10 ...... 350 Northern Gulf of Mexico (oceanic) ...... 51 ...... 20.6 ...... 100 Puerto Rico and U.S. Virgin Islands ...... 6 ...... unk ...... 50 Rough-toothed dolphin ...... Western North Atlantic ...... 1 ...... 8 ...... 10 Northern Gulf of Mexico ...... 4 ...... 14.1 ...... 20 Clymene dolphin ...... Western North Atlantic ...... 20 ...... 110 ...... 110 Northern Gulf of Mexico ...... 1 ...... 89.5 ...... 100 Spinner dolphin ...... Western North Atlantic ...... unk ...... unk ...... 100 Northern Gulf of Mexico ...... 16 ...... 151.5 ...... 200

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TABLE 12—CALCULATED AND AUTHORIZED LEVEL B TAKE ESTIMATES—Continued

Common name MMPA stock Calculated Avg. group Authorized take size 1 take

Puerto Rico and U.S. Virgin Islands ...... n/a ...... unk ...... 50 Pygmy killer whale ...... Northern Gulf of Mexico ...... 1 ...... 18.5 ...... 20 False killer whale ...... Western North Atlantic ...... 1 ...... unk ...... 20 Northern Gulf of Mexico ...... n/a ...... 27.6 ...... 28 Harbor porpoise ...... Gulf of Maine/Bay of Fundy ...... n/a ...... 8 4 ...... 16 1 Groups sizes based on Fulling et. al., 2003; Garrison et al., 2011; Mullin et al., 2003; and Mullin et al., 2004. 2 Take estimates are based on take calculations using fin whales as a proxy. 3 We note the SEFSC’s application did not request take, by Level B harassment, of bottlenose dolphins belonging to coastal stocks. However, because surveys occur using scientific sonar in waters where coastal dolphins may occur, we are proposing to issue the same amount of Level B take as requested for the continental shelf stock. 4 The American Cetacean Society reports average group size of harbor porpoise range from 6 to 10 individuals. We propose an average group size of 8 for the ARA which is likely conservative given the low density of animals off North Carolina. Given the short and confined spatio-tem- poral scale of SEFSC surveys in North Carolina during winter months, we assume two groups per year could be encountered.

Mitigation of a military readiness activity, When SEFSC-funded surveys are In order to issue an incidental take personnel safety, practicality of conducted aboard cooperative platforms authorization under Section 101(a)(5)(A implementation, and impact on the (i.e., non-NOAA vessels), ultimate or D) of the MMPA, NMFS must set effectiveness of the military readiness responsibility and decision authority forth the permissible methods of taking activity. again rests with non-SEFSC personnel pursuant to such activity, ‘‘and other SEFSC Mitigation for Marine Mammals (i.e., vessel’s master or captain). means of effecting the least practicable and Their Habitat Decision authority includes the impact on such species or stock and its implementation of mitigation measures The SEFSC has invested significant (e.g., whether to stop deployment of habitat, paying particular attention to time and effort in identifying rookeries, mating grounds, and areas of trawl gear upon observation of marine technologies, practices, and equipment mammals). The scientific party involved similar significance, and on the to minimize the impact of the proposed availability of such species or stock for in any SEFSC survey effort is composed, activities on marine mammal species in part or whole, of SEFSC staff and is taking’’ for certain subsistence uses. and stocks and their habitat. The NMFS regulations require applicants for led by a Chief Scientist (CS). Therefore, mitigation measures discussed here because the SEFSC—not OMAO or any incidental take authorizations to include have been determined to be both other entity that may have authority information about the availability and effective and practicable and, in some over survey platforms used by the feasibility (economic and technological) cases, have already been implemented SEFSC—is the applicant to whom any of equipment, methods, and manner of by the SEFSC. In addition, the SEFSC is incidental take authorization issued conducting such activity or other means actively conducting research to of effecting the least practicable adverse determine if gear modifications are under the authority of these regulations impact upon the affected species or effective at reducing take from certain would be issued, we require that the stocks and their habitat (50 CFR types of gear. Any potentially effective SEFSC take all necessary measures to 216.104(a)(11)). and practicable gear modification coordinate and communicate in advance In evaluating how mitigation may or mitigation measures will be discussed of each specific survey with OMAO, and may not be appropriate to ensure the as research results are available as part other relevant parties, to ensure that all least practicable adverse impact on of the adaptive management strategy mitigation measures and monitoring species or stocks and their habitat, as included in this rule. As for other parts requirements described herein, as well well as subsistence uses where of this rule, all references to the SEFSC, as the specific manner of applicable, we carefully consider two unless otherwise noted, include implementation and relevant event- primary factors: requirements for all partner institutions contingent decision-making processes, (1) The manner in which, and the identified in the SEFSC’s application. are clearly understood and agreed-upon. degree to which, the successful Coordination and communication— This may involve description of all implementation of the measure(s) is When SEFSC survey effort is conducted required measures when submitting expected to reduce impacts to marine aboard NOAA-owned vessels, there are cruise instructions to OMAO or when mammals, marine mammal species or both vessel officers and crew and a completing contracts with external stocks, and their habitat. This considers scientific party. Vessel officers and crew entities. The SEFSC will coordinate and the nature of the potential adverse are not composed of SEFSC staff, but are conduct briefings at the outset of each impact being mitigated (likelihood, employees of NOAA’s Office of Marine survey and, as necessary, between ship’s scope, range). It further considers the and Aviation Operations (OMAO), crew (CO/master or designee(s), as likelihood that the measure will be which is responsible for the appropriate) and scientific party in effective if implemented (probability of management and operation of NOAA order to explain responsibilities, accomplishing the mitigating result if fleet ships and aircraft and is composed communication procedures, marine implemented as planned), and the of uniformed officers of the NOAA mammal monitoring protocol, and likelihood of effective implementation Commissioned Corps as well as operational procedures. SEFSC will also (probability implemented as planned); civilians. The ship’s officers and crew coordinate as necessary on a daily basis and provide mission support and assistance during survey cruises with OMAO (2) the practicability of the measures to embarked scientists, and the vessel’s personnel or other relevant personnel for applicant implementation, which Commanding Officer (CO) has ultimate on non-NOAA platforms to ensure that may consider such things as cost, responsibility for vessel and passenger requirements, procedures, and decision- impact on operations, and, in the case safety and, therefore, decision authority. making processes are understood and

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properly implemented. The CS will be While at sea, best professional on rule (when applicable), meaning responsible for coordination with the judgement is used to determine if a delaying setting gear when marine Officer on Deck (OOD; or equivalent on marine mammal is at risk of mammals are observed at or non-NOAA platforms) to ensure that entanglement/hooking and, if so, what approaching the sampling site, and are requirements, procedures, and decision- type of actions should be taken to deemed to be at-risk of becoming making processes are understood and decrease risk of interaction. To improve entangled or hooked on any type of properly implemented. judgement consistency across the fishing gear, and immediately pulling For fisheries research being region, the SEFSC will initiate a process gear from the water when marine conducted by partner entities, it remains for SEFSC and partner institution FPCs, mammals are deemed to be at-risk of the SEFSC’s responsibility to ensure SWLs, scientists, and vessel captains becoming entangled or hooked on any those partners are communicating and and crew to communicate with each type of fishing gear. SEFSC will, at all coordinating with the SEFSC, receiving other about their experiences with times, monitor for any unusual all necessary marine mammal mitigation protected species interactions during circumstances that may arise at a and monitoring training, and research work, with the goal of sampling site and use best professional implementing all required mitigation improving decision-making regarding judgment to avoid any potential risks to and monitoring in a manner compliant avoidance of adverse interactions. The marine mammals during use of all with the rule and LOA. The SEFSC will SEFSC will host at least one training research equipment. incorporate specific language into its annually (may be combined with other In some cases, marine mammals may contracts that specifies training training requirements) to inform be attracted to the vessel during fishing. requirements, operating procedures, and decision-makers of various To avoid increased risk of interaction, reporting requirements for protected circumstances that may arise during the SEFSC will conduct fishery research species that will be required for all surveys, necessary action, and follow-up sampling as soon as practicable upon surveys conducted by research partners, coordination and reporting of instances arriving at a sampling station and prior including those conducted on chartered of take or possible take. The intent of to conducting environmental sampling. vessels. To facilitate this requirement, this new training program would be to If fishing operations have been SEFSC would be required to hold at draw on the collective experience of suspended because of the presence of least one training per year with at least people who have been making those marine mammals, SEFSC may resume one representative from each partner decisions, provide a forum for the fishing operations when interaction institution (preferably CSs of the fishery exchange of information about what with marine mammals is deemed independent surveys discussed in this went right and what went wrong, and unlikely. SEFSC may use best rule) to review the mitigation, try to determine if there are any rules- professional judgment in making this monitoring and reporting requirements. of-thumb or key factors to consider that determination. SEFSC shall coordinate The SEFSC would also provide would help in future decisions with all research partners, at least once consistent, timely support throughout regarding avoidance practices. The annually, to ensure mitigation, the year to address any questions or SEFSC would coordinate, not only monitoring and reporting requirements, concerns researchers may have among its staff and vessel captains and procedures and decision-making regarding these measures. crew, but also with those from other SEFSC would also be required to processes contained within the fisheries science centers, research regulations and LOA are understood. establish and maintain cooperating partners, the Southeast Regional Office, partner working group(s) to identify All vessels must comply with applicable and other institutions with similar and relevant take reduction plans, circumstances of a take should it occur experience. including any required soak time limits and any action necessary to avoid future The SEFSC will coordinate with the and gear length restrictions. take. Each working group shall consist local Southeast Regional Stranding of at least one SEFSC representative Coordinator and the NMFS Stranding Trawl Mitigation Measures knowledgeable of the mitigation, Coordinator for any unusual protected The SEFSC and research partners use monitoring and reporting requirements species behavior and any stranding, a variety of bottom trawl gears for contained within these regulations, one beached live/dead, or floating protected or more research institution or SEFSC species that are encountered during different research purposes. These trawl representative(s) (preferably field research activities. If a large whale types include various shrimp trawls researcher(s) aboard vessel when take or is alive and entangled in fishing gear, (otter, western jib, mongoose, Falcon), risk of take occurred), one or more staff the vessel will immediately call the U.S. high-opening bottom trawls, and flat net from NMFS Southeast Regional Coast Guard at VHF Ch. 16 and/or the bottom trawls (see Table 1–1 and OPRDivision, and one or more staff from appropriate Marine Mammal Health and Appendix A in the DPEA). The SEFSC NMFS OPR. At the onset of these Stranding Response Network for and its research partners also use regulations, SEFSC shall maintain the instructions. All entanglements (live or modified beam trawls and benthic recently established SCDNR working dead) and vessel strikes must be trawls pulled by hand that are not group to identify actions necessary to reported immediately to the NOAA considered to pose a risk to protected reduce the amount of take from SCDNR Fisheries Marine Mammal Stranding species due to their small size and very trawling. If a partner takes more than Hotline at 1–877–433–8299. short tow durations. Therefore, these one marine mammal within 5-years, smaller, hand pulled trawls are not other working groups shall be General Fishing Gear Measures subject to the mitigation measures established to identify circumstances of The following measures describe provided here. marine mammal take and necessary mitigation application to all SEFSC The following mitigation measures action to avoid future take. Each surveys while measures specific to gear apply for trawl surveys: working group shall meet at least once types follow. SEFSC will take all • Limit tow times to 30 minutes annually. The SEFSC will maintain a necessary measures to avoid marine (except for sea turtle research trawls); centralized repository for all working mammal interaction with fishing gear • open codend close to deck/sorting group findings to facilitate sharing and used during fishery research surveys. table during haul back to avoid damage coordination. This includes implementing the move- to animals that may be caught in gear

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and empty gear as quickly as possible These exceptions to the short tow delineation of foraging and nursery after retrieval haul back; duration protocols are necessary to meet areas; and examine how sea turtle • delay gear deployment if marine research objectives. TEDs are used in distributions correlate with temporal mammals are believed to be at-risk of nets that are towed in excess of 55 trends and environmental data interaction; minutes as required by 50 CFR 223.206. (Scientific Research Permit 16733–04). • retrieve gear immediately if marine When research objectives prevent the That research permit includes a number mammals is believed to be entangled or installation of TEDs, tow time limits of marine mammal conditions that must at-risk of entanglement; will match those set by commercial be followed and are incorporated into • implement marine mammal fishing regulations such as the skimmer this rule by reference: mitigation measures included in the trawl fishery which has a 55 minute tow • Trawl tow times must not exceed 30 NMFS ESA Scientific Research permit time limit. This research is covered minutes (bottom time) except in cases under which a survey may be operating; under the authority of the ESA and the when the net is continuously monitored • dedicated marine mammal regulations governing the taking, with a real-time video camera or multi- observations shall occur at least 15 importing, and exporting of endangered beam sonar system; minutes to beginning of net deployment; and threatened species (50 CFR parts • Haul back must begin once a sea this watch may include approach to the 222–226). The SEFSC began using turtle or marine mammal enters the net sampling station; skimmer trawls in their TED testing in • regardless of time limits; at least one scientist will monitor 2012. Mitigation measures in Scientific • Seine net pulls must not exceed 45 for marine mammals while the trawl is Research permit 20339, issued May 23, minutes as part of a 2-hour deployment; deployed and upon haul-back; 2017, include: • Nets must not be put in the water • minimize ‘‘pocketing’’ in areas of • Trawling must not be initiated and trawls must not be initiated when the net where dolphin depredation when marine mammals (except marine mammals are observed within evidence is commonly observed; dolphins or porpoises) are observed • the vicinity of the research; continue investigation into gear within the vicinity of the research, and • modifications (e.g., stiffening lazy lines) Marine mammals must be allowed the marine mammals must be allowed to to either leave or pass through the area and the effectiveness of gear either leave or pass through the area modification; and safely before net setting or trawling is safely before trawling is initiated; initiated; • reduce vessel speed and/or • Researchers must make every effort • Researchers must make every effort implement appropriate course to prevent interactions with marine to prevent interactions with marine alteration. mammals, and researchers must be mammals; In 2008, standard tow durations for aware of the presence and location of • Researchers must be aware of the fishery bottom trawl surveys were these animals at all times as they presence and location of these animals reduced from 55 minutes to 30 minutes conduct trawling activities; or less at target depth (excluding • at all times as they conduct activities; During skimmer trawl surveys, a • deployment and retrieval time). These minimum of two staff, one on each side During skimmer trawl surveys, a short tow durations decrease the (port/starboard) of the vessel, must minimum of two staff, one on each side opportunity for curious marine inspect the gear every 5 minutes to (port/starboard) of the vessel, must mammals to find the vessel and monitor for the presence of marine inspect the gear every five minutes to investigate. Tow times are less than the mammals; monitor for the presence of marine 55 minute tow time restriction required • Prior to retrieving the skimmer mammals; • for commercial shrimp trawlers not trawl tail bags, the vessel must be Prior to retrieving the skimmer using turtle excluder devices (TEDs) (50 slowed from the active towing speed to trawl tail bags, the vessel must be CFR 223.206). The resulting tow 0.5–1.0 kn; slowed from the active towing speed to distances are typically one to two nm or • If a marine mammal enters the net, 0.5–1.0 kn; less, depending on the survey and trawl becomes entangled or dies, researchers • Should marine mammals enter the speed. Short tow times reduce the must (a) Stop trawling activities and research area after the seine or tangle likelihood of entangling protected immediately free the animal, (b) notify nets have been set, the lead line must be species. the appropriate NMFS Regional raised and dropped in an attempt to The move-on rule will be applied to Stranding Coordinator as soon as make marine mammals in the vicinity all oceanic deep water trawls if possible and (c) report the incident aware of the net; sightings occur anywhere around vessel (permitted activities will be suspended • If marine mammals remain within (within 2 nm) during a 30 minute pre- until the Permits Division has granted the vicinity of the research area, tangle gear deployment monitoring timeframe. approval to continue research); and or seine nets must be removed; and Vessels will move away if animals • Video monitoring of the TED must • If a marine mammal enters the trawl appear at risk or trawling will be be used when trawling around Duck, net, becomes entangled or captured, delayed until marine mammals have not North Carolina, to reduce take of researchers must stop activities and been sighted for 30 minutes or Atlantic sturgeon (although this immediately free the animal, notify the otherwise determined to no longer be at requirement is not geared toward NMFS Southeast Regional Stranding risk. If animals are still at risk after marine mammals, the camera feed can Coordinator as soon as possible, report moving or 30 minutes have lapsed, the be used to observe marine mammals to the incident within 2 weeks and, in vessel will move again or the station inform decisions regarding addition to the written report, the will be skipped. implementing mitigation). Permit Holder must contact the Permits Bottom trawl surveys conducted for The SEFSC also holds an ESA- Division. purposes of researching gears designed research permit to assess sea turtle Other mitigation measures are to reduce sea turtle interaction (e.g., abundance, stock identification, life included in research permit 16733–04 turtle exclusion device (TED) testing) history, and impacts of human that are designed for sea turtles but also and develop finfish bycatch mitigation activities; determine sea turtle have benefits to minimizing measures for commercial trawl fisheries movements, fine-scale habitat entanglement of marine mammals. may have tow times of up to 4 hours. characteristics and selection, and These include:

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• Highly visible buoys must be not absorb water but has a higher (the full report can be found at https:// attached to the float line of each net and specific gravity (1.38), which causes it www.fisheries.noaa.gov/node/23111). be spaced at intervals of 10 mor less. to sink. Polyester can be constructed Gearhart and Hathaway (2018) provide Nets must be checked at intervals of less using a process that results in a medium the following summary of research than 30 minutes, and more frequently or hard lay rope that is stiff, avoids methods and findings: From June 9–22, whenever turtles or other organisms are hockling (a twist in the line which gets 2017, HSU conducted gear evaluations observed in the net. If water caught in a block), and is self-coiling in Panama City, Florida, with various temperatures are ≤ 10oC or ≥ 30oC, nets when loaded or unloaded off a capstan lazy lines and configurations. In must be checked at less than 20-minute or gear hauler. The high specific gravity addition to traditional polypropylene, intervals (‘‘net checking’’ is defined as of this type of rope may pose a snagging three types of 3 strand rope were a complete and thorough visual check of or hang-up hazard when used as a lazy examined; Samson Ultra-Blue Medium the net either by snorkeling the net in line in trawl operations. However, the Hard Lay (MHL); Samson SSR 100 MHL; clear water or by pulling up on the top smooth feel of the rope compared to and Samson XLR. Vertical and line such that the full depth of the net polypropylene may reduce the horizontal profiles of each rope type is viewed along the entire length). The attractiveness of the line to the rubbing were measured with and without a float line of all nets must be observed at behavior of bottlenose dolphin. ‘‘sugar line’’ attached in a twin-rigged all times for movements that indicate an In 2007, the HSU conducted trawl configuration. In addition, animal has encountered the net (when preliminary NOAA diver assisted trials dolphin interactions were simulated by this occurs the net must be immediately with High Density Polyethylene (HDPE) NMFS divers with an aluminum checked). During diver-assisted gear rope as a replacement for traditional dolphin fluke model. Results indicate evaluations (SEFSC Small Turtle TED polypropylene. Compared to that the vertical profiles were reduced Testing and Gear Evaluations), dive polypropylene, HDPE rope has similar and horizontal profiles increased for all teams are deployed on the trawls while properties including negligible water rope types when a 25 ft (7.6 m) ‘‘sugar they are being towed. During this absorption, UV resistance, and low line’’ was added. Due to differences in research, divers actively monitor the specific gravity, which allows it to float. elasticity when compared to gear for protected species interactions However, HDPE rope may be polypropylene, the alternative rope and use emergency signal floats to constructed with a harder lay than types experienced greater tension with notify the vessel if an interaction occurs. traditional polypropylene rope. Divers vertical profiles flattening, while the When the signal float is deployed, the found that half-hitching the line was polypropylene rope maintained vertical vessel terminates the tow and slows the more difficult than traditional relief. Results of simulated dolphin gear down to a minimal forward speed polypropylene line. However, interactions were inconclusive with of less than 0.5 knots which allows operational trials were not conducted to divers able to introduce half-hitch loops divers to assist the protected species to examine performance and usability around the model fluke with both escape. aboard the vessel during extended polypropylene and the stiffest fishing operations. alternative rope, Samson SSR 100 MHL. Live feed video or sonar monitoring of Another alternative may be However, divers commented that it was the trawl may be used in lieu of tow replacement of the lazy line with 3⁄8 in. more difficult to introduce the loop in time limits. This mitigation measure is stainless steel cable or replacement of the stiffer Samson SSR 100 MHL than also used in addition to TEDs during the aft portion of the lazy line with 3⁄8 the polypropylene line and more some projects. Video or sonar feeds are in. stainless steel cable. Replacement of difficult to introduce the loop along the monitored for the duration of the tow. the entire lazy line with cable would outer portion of the lazy line with the If a TED is not installed in the trawl and require block replacement and the use a protected species is observed in the of dedicated winches for hauling the sugar line attached, due to the increased trawl then the tow is immediately gear. Replacing the aft portion of the tension on the line. Use of an alternative terminated. If a TED is installed and a lazy line, where bottlenose dolphins stiffer line with low stretch in marine mammal is observed to have typically interact with the line, would combination with a short sugar line may difficulty escaping through the TED not require any changes as long as the reduce the potential for bottlenose opening, or the individual is lost from rope to cable connection is able to dolphin takes on lazy lines. However, the video or sonar feed then the tow is smoothly pass through existing blocks. additional usability research is needed immediately terminated. For all trawl However, each of these changes would with these alternative rope types to see types, the lazy line is a source of result in sinking and potential snagging how they perform under commercial entanglement. In particular, dolphins or hang-up hazards. These conditions. Finally, more directed like to rub the line. Loose lines are modifications are also not without dolphin/lazy line interaction behavior prone to create a half-hitch around their consequences. Lazy line modifications research is needed to better understand tail. Therefore, to mitigate this type of may require vessel equipment changes the modes of interaction and provide interaction, the SEFSC Harvesting (e.g., blocks on research vessels) or may conservation engineers with the Systems Unit (HSU) has conducted change the effectiveness of the catch, knowledge required to better formulate limited research examining the potential precluding the comparison of new data potential solutions. use of lazy lines constructed of with long-term data sets. In 2017, the Given the report’s results and alternative materials designed to reduce HSU conducted a follow-up study, recommendations, NMFS is not marine mammal entanglement with funded by NMFS Office of Science and requiring the SEFSC implement lazy respect to material, thickness, and Technology, to further investigate gear line modifications at this time. stiffness. Polyester rope, also known as modification and the potential However, as an adaptive management Dacron, may be a suitable alternative to effectiveness at reducing dolphin strategy, NMFS will be periodically traditionally used polypropylene. entanglement. assessing lazy line modification as a Polyester rope is UV and abrasion The following summarizes HSU’s potential mitigation measure in this and resistant and has less elasticity than 2017 research efforts on shrimp trawl future regulations. NMFS will continue nylon but does not lose strength when gear modification which was carried out to work with the SEFSC to determine if wet. Polyester, like polypropylene, does to inform the development of this rule gear modifications such as stiffer lazy

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lines are both warranted and practicable dedicated marine mammal observer incidental take of protected species is to implement. Should the SEFSC would observe around the vessel for no determined by the professional volunteer to modify trawl lazy lines, less than 30 minutes prior to gear judgment of the FPC or SWL based on NMFS will work with the researchers to deployment. If a marine mammal is all situation variables, even if the identify any potential benefits and costs observed within 2 nm of the vessel, gear choices compromise the value of the of doing so. deployment would be delayed until that data collected at the station. Care is In addition to interactions with the animal is deemed to not be at risk of taken when emptying the trawl, lazy line, the SEFSC has identified that entanglement (e.g., the animal is moving including opening the codend as close holes in trawl nets resulting from on a path away from the vessel) or the as possible to the deck of the checker (or dolphin depredation are most numerous vessel would move to a location absent sorting table) in order to avoid damage around net ‘‘pockets’’ where fish of marine mammals and deploy gear. If to protected species that may be caught congregate. Reinforcing these more trawling operations have been delayed in the gear but are not visible upon vulnerable sections of the net could because of the presence of protected retrieval. The gear is emptied as quickly help reduce entanglement. Similar to species, the vessel resumes trawl as possible after retrieval in order to lazy line modification investigations, operations (when practicable) only determine whether or not protected this potential mitigation measure will be when these species have not been species are present. further examined to determine its sighted within 30 minutes or are Seine Nets effectiveness and practicability. The determined to no longer be at risk (e.g., regulations provide that ‘‘pocketing’’ of moving away from deployment site). If The SEFSC will implement the the net should be minimized. the vessel moves, the required 30- following mitigation measures when Finally, marine mammal monitoring minute monitoring period begins again. fishing with seine nets (e.g., gillnets, will occur during all trawls. Bottlenose In extreme circumstances, the survey trammel nets): • dolphins are consistently interacting station may need to be cancelled if Conduct gillnet and trammel net with research trawls in the estuary and animals (e.g., delphinids) follow the research activities during daylight hours nearshore waters and are seemingly vessel. In addition to implementing the only; • attracted to the vessel, with most ‘‘move-on’’ rule, all trawling would be Limit soak times to the least amount dolphins converging around the net of time required to conduct sampling; conducted first to reduce the • during haul-back (SCDNR Working opportunity to attract marine mammals Conduct dedicated marine mammal Group, pers. comm., February 2, 2016). to the vessel. However, the order of gear observation monitoring beginning 15 This makes it difficult to ‘‘lose’’ deployment is at the discretion of the minutes prior to deploying the gear and dolphins, even while moving stations. FPC or SWL based on environmental continue through deployment and Due to the known persistent behavior of conditions. Other activities, such as haulback; dolphins around trawls in the estuary • water sampling or plankton tows, are Hand-check the net every 30 and nearshore waters, the move-on rule conducted in conjunction with, or upon minutes if soak times are longer than 30 will not be required for such surveys. completion of, trawl activities. minutes or immediately if disturbance is However, the CS and/or vessel captain observed; will be required to take immediate Once the trawl net is in the water, the • Pull gear immediately if action to reduce dolphin interaction officer on watch, FPC or SWL, and/or disturbance in the nets is observed; should animals appear to be at risk or crew standing watch continue to • Reduce net slack and excess are entangled in the net. For skimmer monitor the waters around the vessel floating and trailing lines; trawl research, both the lazy line and and maintain a lookout for protected • Repair damaged nets prior to net can be monitored from the vessel. species as far away as environmental deploying; and However, this is not possible for bottom conditions allow. If protected species • Delay or pull all gear immediately trawls. Therefore, for bottom trawls, are sighted before the gear is fully and implement the move-on rule if researchers should use best professional retrieved, the most appropriate response marine mammal is at-risk of judgement to determine if gear to avoid incidental take is determined entanglement. deployment should be delayed or by the professional judgment of the FPC The dedicated observation will be hauled. For example, the SCDNR has or SWL, in consultation with the officer made by scanning the water and marsh noted one instance upon which on watch. These judgments take into edge (if visible when working in dolphins appeared distressed, evident consideration the species, numbers, and estuarine waters) 360 degrees around by the entire group converging on the behavior of the animals, the status of the the vessel where the net would be set. net during haul-back. They quickly trawl net operation (net opening, depth, If a marine mammal is sighted during discovered a dolphin was entangled in and distance from the stern), the time it this observation period, nets would not the net. This, and similar types of overt would take to retrieve the net, and be deployed until the animal has left the distress behaviors, should be used by safety considerations for changing speed area, is on a path away from where the researchers monitoring the net to or course. Most marine mammals have net would be set, or has not been re- identify potential entanglement, been caught during haul-back sighted within 15 minutes. requiring the net be hauled-in operations, especially when the trawl Alternatively, the research team may immediately and quickly. doors have been retrieved and the net is move the vessel to an area clear of Pelagic trawls conducted in deep near the surface and no longer under marine mammals. If the vessel moves, water (500–800 m deep) are typically tension. In some situations, risk of the 15 minute observation period is mid-water trawls and occur in oceanic adverse interactions may be diminished repeated. Monitoring by all available waters where marine mammal species by continuing to trawl with the net at crew would continue while the net is diversity is greater when compared to depth until the protected species have being deployed, during the soak, and the coast or estuaries. Oceanic species left the area before beginning haul-back during haulback. often travel in very large groups and are operations. In other situations, swift If marine mammals are sighted in the less likely to have prior encounters and retrieval of the net may be the best peripheral sampling area during active experience with trawl gear than inshore course of action. The appropriate course netting, the SEFSC will raise and lower bottlenose dolphins. For these trawls, a of action to minimize the risk of the net leadline. If marine mammals do

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not immediately depart the area and the pelagic longline surveys and 15 minutes the Atlantic EEZ. These procedures animal appears to be at-risk of prior for other surveys. Binoculars will would also be implemented in the entanglement (e.g, interacting with or on be used as necessary to survey the area GOMRA and CRA. a path towards the net), the SEFSC will while approaching and upon arrival at Other gears—The SEFSC deploys a delay or pull all gear immediately and, the station, while the gear is deployed, wide variety of gear to sample the if required, implement the move-on rule and during haulback. Additional marine environment during all of their if marine mammal is at-risk of monitoring is conducted 15 minutes research cruises. Many of these types of entanglement. prior to setting longline gear by gear (e.g., chevron fish trap, eel traps, If protected species are not sighted members of the scientific crew that dip nets, video cameras and ROV during the 15 minute observation monitor from the back deck while deployments) are not considered to pose period, the gear may be set. Waters baiting hooks. If protected species are any risk to marine mammals due to their surrounding the net and the net itself sighted prior to setting the gear or at any size, deployment methods, or location, would be continuously monitored time the gear is in the water, the bridge and therefore are not subject to during the soak. If protected species are crew and SWL are alerted immediately. mitigation. However, at all times when sighted during the soak and appear to be Environmental conditions (e.g., lighting, the SEFSC is conducting survey at risk of interaction with the gear, then sea state, precipitation, fog, etc.) often operations at sea, the OOD and/or CS the gear is pulled immediately. If fishing limit the distance for effective visual and crew will monitor for any unusual operations are halted, operations resume monitoring of protected species. If circumstances that may arise at a when animal(s) have not been sighted marine mammals are sighted during any sampling site and use best professional within 15 minutes or are determined to monitoring period, the ‘‘move-on’’ rule, judgment to avoid any potential risks to no longer be at risk, as determined by as described in the trawling mitigation marine mammals during all vessel the judgment of the FPC or SWL. In section above would be implemented. If operation and use of research other instances, the station is moved or longline operations have been delayed equipment. cancelled. If any disturbance in the gear because of the presence of protected Electrofishing—Electrofishing occurs is observed in the gear, it is immediately species, the vessel resumes longline on small vessels and operates with a checked or pulled. operations only when these species 3,000 watt pulsed direct current for 15 have not been sighted within 15 minutes. The electric field is less than Hook and Line Gear Mitigation minutes or otherwise determined to no 20 feet (6 m) around the electrofishing In addition to the general mitigation longer be at risk. The risk decision is at vessel. Before the electrofishing vessel measures listed above, the SEFSC will the discretion of the FPC or SWL and is begins operating, a dedicated marine implement the following mitigation dependent on the situation. After the mammal observer would scan the measures: required monitoring period, longline surrounding waters for at least 15 • Monitor area for marine mammals gear is always the first equipment or minutes prior to fishing. If a marine and, if present, delay setting gear until fishing gear to be deployed when the mammal is observed within 50 m of the the animal is deemed not at risk. vessel arrives on station. vessel or on a path toward the vessel, • Immediately reel in lines if marine If marine mammals are detected electrofishing would be delayed. mammals are deemed to be at risk of during setting operations or while the Fishing would not begin until the interacting with gear. gear is in the water and are considered animal is outside of the 50 m safety • Follow existing Dolphin Friendly to be at risk (e.g., moving towards zone or on a consistent path away from Fishing Tips: http://sero.nmfs.noaa.gov/ deployment site, displaying behaviors of the vessel. Alternatively, if animals do protected_resources/outreach_and_ potentially interacting with gear, etc.), not leave the area, the vessel could education/documents/dolphin_friendly_ the FPC or SWL in conjunction with the move to another sampling station. If the fishing_tips.pdf. officer on watch may halt the setting vessel moves, the 15 minutes • Not discard leftover bait overboard operation or call for retrieval of gear observation period is repeated. During while actively fishing. already set. The species, number, and electrofishing, the research crew would • Inspect tackles daily to avoid behavior of the protected species are also monitor for marine mammals. If unwanted line breaks. considered along with the status of the animals are observed within or on a When fishing with bottom or pelagic ship and gear, weather and sea path toward the 50 m safety zone, longlines, the SEFSC will: (1) Limit conditions, and crew safety factors electrofishing would be terminated and longline length and soak times to the when making decisions regarding gear not resume until the animal is clear of minimum amount possible; (2) deploy deployment delay or retrieval. and on a path away from the 50 m safety longline gear first (after required There are also a number of standard zone. All samples collected during monitoring) prior to conducting measures designed to reduce hooking electrofishing are to remain on the environmental sampling; (3) if any potential and minimize injury. In all vessel and not discarded until all marine mammals are observed, delay pelagic longline sets, gangions are 110 electrofishing is completed to avoid deploying gear unless animal is not at percent as long as the drop line depth. attracting protected species. risk of hooking; (4) pull gear Therefore, this gear configuration allows Vessel speed—Vessel speed during immediately and implement the move- a potentially hooked marine mammal to active sampling is less than 5 kn on rule if any marine mammal is hooked reach the surface. SEFSC longline (average 2–3 kn). Transit speeds to and or is at risk of being hooked; (5) deploy protocols specifically prohibit from sampling sites vary from 6–14 kn longline gear prior to environmental chumming, thereby reducing any but average 10 kn. These low vessel sampling; and (6) avoid chumming (i.e., attraction. Further, no stainless steel speeds minimize the potential for ship baiting water). More detail on these hooks are used, so that in the event a strike (see Potential Effects of Specified measures are described below. hook can not be retrieved from an Activities on Marine Mammals and Prior to arrival on station (but within animal, it will corrode. Per PLTRP, the Their Habitat for an in-depth discussion 0.5 nautical mile), the officer, crew SEFSC pelagic longline survey uses the of ship strikes). At any time during a members, and scientific party on watch Pelagic Longline Marine Mammal survey or in transit, if a crew member visually scan for protected species for Handling and Release Guidelines for standing watch or dedicated marine 30 minutes prior to station arrival for any pelagic longline sets made within mammal observer sights marine

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mammals that may intersect with the right whale are reported from aerial that pinger use had eliminated beaked vessel course, that individual will surveys, shipboard surveys, whale whale bycatch. Carretta and Barlow immediately communicate the presence watch vessels, and opportunistic (2011) assessed the long-term of marine mammals to the bridge for sources (U.S. Coast Guard, commercial effectiveness of pingers in reducing appropriate course alteration or speed ships, fishing vessels, and the general marine mammal bycatch in the reduction, if possible, to avoid public). Whale sightings are reported in California drift gillnet fishery by incidental collisions. real time to the Right Whale Early evaluating fishery data from 1990–2009 While transiting in areas subject to the Warning System network and (with pingers in use beginning in 1996), North Atlantic ship strike rule, all information is disseminated to mariners finding that bycatch rates of cetaceans SEFSC- affiliated research vessels within a half hour of a sighting. The were reduced nearly fifty percent in sets (NOAA vessels, NOAA chartered program was designed to reduce using a sufficient number of pingers. vessels, and research partner vessels) collisions between ships and North However, in a behavioral response study will abide by the required speed Atlantic right whales by alerting investigating bottlenose dolphin restrictions and sighting alert protocols. mariners to the presence of the whales behavior around gillnets outfitted with The ship strike rule for the southeast in near real time. Under the rule, all acoustic alarms in North Carolina, there U.S. seasonal management area (SMA) NOAA-affiliated vessels operating in was no significant difference in number requires that, from November 15 North Atlantic right whale habitat will of dolphins or closest approach between through April 15, all vessels 65 feet (20 be required to participate in the Right nets with alarms and nets without m) or longer must slow to 10 kn or less Whale Early Warning System. alarms (Cox et al., 2003). Studies of in the right whale calving and nursery Acoustic and Visual Deterrent acoustic deterrents in a trawl fishery in grounds which are bounded to the north Devices—Acoustic and visual deterrents Australia concluded that pingers are not by latitude 31°27′ N, to the south by include, but are not limited; to pingers, likely to be effective in deterring 29°45′ N, and to the east by 80°51′36″ recordings of predator vocalizations, bottlenose dolphins, as they are already W. Mid-Atlantic SMAs include several light sticks, and reflective twine/rope. aware of the gear due to the noisy nature port or bay entrances from northern Pingers are underwater sound-emitting of the fishery (Stephenson and Wells Georgia to Rhode Island between 2008, Allen et al. 2014). Acoustic devices attached to gear that have been November 1 and April 30. In addition, deterrents were also ineffective in shown to decrease the probability of dynamic management areas (DMAs) are reducing bycatch of common dolphins interactions with certain species of temporary areas created around right in the U.K. bass pair trawl fishery marine mammals. Pingers have been whale sightings, the size of which (Mackay and Northridge 2006). depends on the number of whales shown to be effective in deterring some The use and effectiveness of acoustic sighted. Voluntary speed reductions marine mammals, particularly harbor deterrent devices in fisheries in which may apply when no SMA is in effect. porpoises, from interacting with gillnet bottlenose dolphins have the potential All NOAA research vessels operating in gear (Nowacek et al. 2007, Carretta and to interact has been approached with North Atlantic right whale habitat Barlow 2011). Multiple studies have caution. Two primary concerns participate in the Right Whale Early reported large decreases in harbor expressed with regard to pinger Warning System. porpoise mortality (approximately 80 to effectiveness in reducing marine SEFSC research vessel captains and 90 percent) in bottom-set gillnets (nets mammal bycatch relate to habituation crew watch for marine mammals while composed of vertical panes of netting, (i.e., marine mammals may become underway during daylight hours and typically set in a straight line and either habituated to the sounds made by the take necessary actions to avoid them. anchored to the bottom or drifting) pingers, resulting in increasing bycatch There are currently no Marine Mammal during controlled experiments (e.g., rates over time; Dawson, 1994; Cox et Observers (MMOs) aboard the vessels Kraus et al., 1997; Trippel et al., 1999; al., 2001; Carlstro¨m et al., 2009) and the dedicated to watching for marine Gearin et al., 2000). Using commercial ‘‘dinner bell effect’’ (Dawson, 1994; mammals to minimize the risk of fisheries data rather than a controlled Richardson et al., 1995), which implies collisions, although the large NOAA experiment, Palka et al. (2008) reported that certain predatory marine mammal vessels (e.g., NOAA Ship Pisces) that harbor porpoise bycatch rates in the species may come to associate pingers operated by the NOAA Office of Marine northeast U.S gillnet fishery when with a food source (e.g., fish caught in and Aviation Operations (OMAO) fishing without pingers was about two nets), with the result that bycatch rates include one bridge crew dedicated to to three times higher compared to when may be higher in nets with pingers than watching for obstacles at all times, pingers were used. After conducting a in those without. including marine mammals. At any time controlled experiment in a California The BDTRP, after years of directed during a survey or in transit, any bridge drift gillnet fishery during 1996–97, investigation, found that pingers are not personnel that sights marine mammals Barlow and Cameron (2003) reported effective at deterring bottlenose that may intersect with the vessel course significantly lower bycatch rates when dolphins from depredating on fish immediately communicates their pingers were used for all cetacean captured by trawls and gillnets. During presence to the helm for appropriate species combined, all pinniped species research driven by the BDTRT efforts to course alteration or speed reduction as combined, and specifically for short- better understand the effectiveness of soon as possible to avoid incidental beaked common dolphins (85 percent pingers on bottlenose dolphins, one collisions, particularly with large reduction) and California sea lions (69 became entangled and drowned in a net whales (e.g., North Atlantic right percent reduction). While not a outfitted with a pinger. Dolphins can whales). statistically significant result, catches of become attracted to the sound of the The Right Whale Early Warning Pacific white-sided dolphins (which are pinger because they learn it signals the System is a multi-agency effort that historically one of the most frequently presence of fish (i.e., the ‘‘dinner bell includes the SEFSC, the Florida Fish captured species in SEFSC surveys; see effect’’), raising concerns about potential and Wildlife Conservation Commission Table 4) were reduced by 70 percent. increased entanglement risks (Cox et al., (FWCC), U.S. Coast Guard, U.S. Navy, Carretta et al. (2008) subsequently 2003; Read et al., 2004 and 2006; and and volunteer observers. Sightings of examined 9 years of observer data from Read and Waples 2010). Due to the lack the critically endangered North Atlantic the same drift gillnet fishery and found of evidence that pingers are effective at

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deterring bottlenose dolphins coupled Release, and Identification Workshop • Individual marine mammal with the potential dinner-bell effect, the www.nmfs.noaa.gov/sfa/hms/ responses (behavioral or physiological) BDTRP does not recommend them for compliance/workshops/protected_ to acoustic stressors (acute, chronic, or use in SEFSC for bottlenose dolphins. species_workshop/index.html or other cumulative), other stressors, or The effectiveness of acoustic and similar training. The SEFSC shall cumulative impacts from multiple visual deterrents for species provide SEFSC scientists and partner stressors; encountered in the ARA, GOMRA, and institutions with the Protected Species • How anticipated responses to CRA is uncertain. Therefore, the SEFSC Safe Handling and Release Manual (see stressors impact either: (1) Long-term will not be required to outfit gear with Appendix D is SEFSC’s application) and fitness and survival of individual deterrent devices but is encouraged to advise researchers to follow this marine mammals; or (2) populations, undertake investigations on the efficacy manual, in addition to lessons learned species, or stocks; of these measures where unknown (i.e., during training, should a marine • not for surveys in which bottlenose mammal become entangled during a Effects on marine mammal habitat dolphins are primary bycatch) in order survey. For those scientists conducting (e.g., marine mammal prey species, to minimize the potential for takes. longline surveys, the SEFSC shall acoustic habitat, or other important Disentanglement Handling provide training on the Pelagic Longline physical components of marine Procedures—The SEFSC will implement Take Reduction Team Marine Mammal mammal habitat); and a number of handling protocols to Handling and Release Guidelines. • Mitigation and monitoring minimize the potential harm to marine Based on our evaluation of the effectiveness. mammals that are incidentally taken SEFSC’s proposed measures, as well as The SEFSC plans to make more during the course of fisheries research other measures considered by NMFS, systematic its training, operations, data activities. In general, protocols have NMFS has preliminarily determined collection, animal handling and already been prepared for use on that the mitigation measures provide the sampling protocols, etc. in order to commercial fishing vessels. Although means of effecting the least practicable improve its ability to understand how commercial fisheries are known to take impact on the affected species or stocks mitigation measures influence a larger number of marine mammals and their habitat, paying particular interaction rates and ensure its research than fisheries research, the nature of attention to rookeries, mating grounds, operations are conducted in an entanglements are similar. Therefore, and areas of similar significance. informed manner and consistent with the SEFSC would adopt commercial Monitoring and Reporting lessons learned from those with fishery disentanglement protocols, experience operating these gears in In order to issue an incidental take which are expected to increase post- close proximity to marine mammals. We authorization for an activity, section release survival. Handling or propose the monitoring requirements 101(a)(5)(A) of the MMPA states that disentangling marine mammals carries described below. inherent safety risks, and using best NMFS must set forth ‘‘requirements professional judgment and ensuring pertaining to the monitoring and Marine mammal watches are a human safety is paramount. reporting of such taking.’’ The MMPA standard part of conducting fisheries Captured live or injured marine implementing regulations at 50 CFR research activities and are implemented mammals are released from research 216.104 (a)(13) require that requests for as described previously in the gear and returned to the water as soon incidental take authorizations must Mitigation section. Dedicated marine as possible with no gear or as little gear include the suggested means of mammal observations occur as remaining on the animal as possible. accomplishing the necessary monitoring described (1) for some period prior to Animals are released without removing and reporting that will result in deployment of most research gear; (2) them from the water if possible, and increased knowledge of the species and throughout deployment and active data collection is conducted in such a of the level of taking or impacts on fishing of all research gears; (3) for some manner as not to delay the release of the populations of marine mammals that are period prior to retrieval of gear; and (4) animal(s) or endanger the crew. SEFSC expected to be present in the action throughout retrieval of research gear. is responsible for training SEFSC and area. Observers should record the species and partner researchers on how to identify Monitoring and reporting estimated number of animals present different species; handle and bring requirements prescribed by NMFS and their behaviors, which may be marine mammals aboard a vessel; assess should contribute to improved valuable information towards an the level of consciousness; remove understanding of one or more of the understanding of whether certain fishing gear; and return marine following: species may be attracted to vessels or mammals to water. Human safety is • Occurrence of marine mammal certain survey gears. Separately, on always the paramount concern. species or stocks in the action area (e.g., white boats, marine mammal watches At least two persons aboard SEFSC presence, abundance, distribution, are conducted by watch-standers (those ships and one person aboard smaller density); navigating the vessel and other crew; vessels, including vessels operated by • Nature, scope, or context of likely these will typically not be SEFSC partners where no SEFSC staff are marine mammal exposure to potential personnel) at all times when the vessel present, will be trained in marine stressors/impacts (individual or is being operated. The primary focus for mammal handling, release, and cumulative, acute or chronic), through this type of watch is to avoid striking disentanglement procedures. If a marine better understanding of: (1) Action or marine mammals and to generally avoid mammal is entangled or hooked in environment (e.g., source navigational hazards. These watch- fishery research gear and discovered characterization, propagation, ambient standers typically have other duties alive, the SEFSC or affiliate will follow noise); (2) affected species (e.g., life associated with navigation and other safe handling procedures. To facilitate history, dive patterns); (3) co-occurrence vessel operations and are not required to this training, SEFSC would be required of marine mammal species with the record or report data to the scientific to ensure relevant researchers attend the action; or (4) biological or behavioral party on marine mammal sightings, NMFS Highly Migratory Species/ context of exposure (e.g., age, calving or except when gear is being deployed or Protected Species Safe Handling, feeding areas); retrieved.

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Training decision-maker (i.e., responsible for mammals that are encountered during The SEFSC anticipates that additional decisions regarding the avoidance of field research activities. The SEFSC will information on practices to avoid marine mammal interactions with follow a phased approach with regard to marine mammal interactions can be survey gear through the application of the cessation of its activities and/or gleaned from training sessions and more best professional judgment) learns from reporting of such events, as described in systematic data collection standards. the prior experience of all relevant the regulatory text following this The SEFSC will conduct annual SEFSC personnel (rather than from preamble. In addition, CS (or cruise trainings for all CS and other personnel solely their own experience). The leader) will provide reports to SEFSC who may be responsible for conducting outcome should be increased leadership and to the OPR. As a result, dedicated marine mammal visual transparency in decision-making when marine mammals interact with observations to explain mitigation processes where best professional survey gear, whether killed or released measures and monitoring and reporting judgment is appropriate and, to the alive, a report provided by the CS will extent possible, some degree of requirements, mitigation and fully describe any observations of the standardization across common monitoring protocols, marine mammal animals, the context (vessel and situations, with an ultimate goal of identification, recording of count and conditions), decisions made and reducing marine mammal interactions. disturbance observations (relevant to rationale for decisions made in vessel It is the responsibility of the SEFSC to AMLR surveys), completion of and gear handling. The circumstances of facilitate such exchange. datasheets, and use of equipment. Some these events are critical in enabling the of these topics may be familiar to SEFSC Handling Procedures and Data SEFSC and OPR to better evaluate the staff, who may be professional Collection conditions under which takes are most biologists. The SEFSC shall determine likely occur. We believe in the long term Improved standardization of handling this will allow the avoidance of these the agenda for these trainings and procedures was discussed previously in ensure that all relevant staff have types of events in the future. the Mitigation section. SEFSC believes The SEFSC will submit annual necessary familiarity with these topics. that implementing these protocols will The first such training will include summary reports to OPR including: benefit animals through increased post- (1) Annual line-kilometers surveyed three primary elements: release survival. In addition, SEFSC during which the EK60, ME70, SX90 (or First, the course will provide an believes that adopting these protocols overview of the purpose and need for equivalent sources) were predominant for data collection will also increase the (see ‘‘Estimated Take’’ for further the authorization, including mandatory information on which ‘‘serious injury’’ mitigation measures by gear and the discussion), specific to each region; determinations (NMFS, 2012a, b) are (2) Summary information regarding purpose for each, and species that the based and improve scientific knowledge use of all trawl, net, and hook and line SEFSC is authorized to incidentally about marine mammals that interact gear, including number of sets, tows, take. Second, the training will provide with fisheries research gears and the hook hours, etc., specific to each detailed descriptions of reporting, data factors that contribute to these research area and gear; collection, and sampling protocols. This interactions. SEFSC personnel will be (3) Accounts of all incidents of marine portion of the training will include provided standard guidance and mammal interactions, including instruction on how to complete new training regarding handling of marine circumstances of the event and data collection forms such as the marine mammals, including how to identify descriptions of any mitigation mammal watch log, the incidental take different species, bring an individual procedures implemented or not form (e.g., specific gear configuration aboard a vessel, assess the level of implemented and why; and details relevant to an interaction consciousness, remove fishing gear, (4) Summary information related to with protected species), and forms used return an individual to water and log any disturbance of marine mammals for species identification and biological activities pertaining to the interaction. and distance of closest approach; sampling. The biological data collection The SEFSC will record interaction (5) A written description of any and sampling training module will information on either existing data mitigation research investigation efforts include the same sampling and forms created by other NMFS programs and findings (e.g., lazy line necropsy training that is used for the or will develop their own standardized modifications); Southeast Regional Observer training. forms. To aid in serious injury (6) A written evaluation of the The SEFSC will also dedicate a determinations and comply with the effectiveness of SEFSC mitigation portion of training to discussion of best current NMFS Serious Injury strategies in reducing the number of professional judgment (which is Guidelines, researchers will also answer marine mammal interactions with recognized as an integral component of a series of supplemental questions on survey gear, including best professional mitigation implementation; see the details of marine mammal judgment and suggestions for changes to Mitigation), including use in any interactions. the mitigation strategies, if any; incidents of marine mammal interaction Finally, for any marine mammals that (7) Details on marine mammal-related and instructive examples where use of are killed during fisheries research training taken by SEFSC and partner best professional judgment was activities, when practicable, scientists scientists; and determined to be successful or will collect data and samples pursuant (8) A summary of meeting(s) and unsuccessful. We recognize that many to Appendix D of the SEFSC DEA, workshop(s) outcomes with any partner factors come into play regarding ‘‘Protected Species Handling Procedures working group, including, the South decision-making at sea and that it is not for SEFSC Fisheries Research Vessels.’’ Carolina Department of Natural practicable to simplify what are Resources, designed to reduce the inherently variable and complex SEFSC Reporting number of marine mammal interactions. situational decisions into rules that may As is normally the case, SEFSC will The period of reporting will be be defined on paper. However, it is our coordinate with the relevant stranding annually, beginning one year post- intent that use of best professional coordinators for any unusual marine issuance of any LOA, and the report judgment be an iterative process from mammal behavior and any stranding, must be submitted not less than ninety year to year, in which any at-sea beached live/dead, or floating marine days following the end of a given year.

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Submission of this information is in marine mammals that might be ‘‘taken’’ PBR when evaluating lethal takes in the service of an adaptive management by mortality, serious injury, and Level A negligible impact analysis under section framework allowing NMFS to make or Level B harassment, we consider 101(a)(5)(A) violated the requirement to appropriate modifications to mitigation other factors, such as the likely nature use the best available science. and/or monitoring strategies, as of any behavioral responses (e.g., PBR is defined in section 3 of the necessary, during the 5-year period of intensity, duration), the context of any MMPA as ‘‘the maximum number of validity for these regulations and LOA. such responses (e.g., critical animals, not including natural Should an incidental take occur, the reproductive time or location, mortalities, that may be removed from a SEFSC, or affiliated partner involved in migration), as well as effects on habitat, marine mammal stock while allowing the taking, shall follow the NMFS Final and the likely effectiveness of that stock to reach or maintain its Take Reporting and Response mitigation. We also assess the number, optimum sustainable population’’ (OSP) Procedures, dated January 15, 2016. intensity, and context of estimated takes and, although not controlling, can be NMFS has established a formal by evaluating this information relative one measure considered among other incidental take reporting system, the to population status. Consistent with the factors when evaluating the effects of M/ PSIT database, requiring that incidental 1989 preamble for NMFS’s SI on a marine mammal species or stock takes of protected species be reported implementing regulations (54 FR 40338; during the section 101(a)(5)(A) process. within 48 hours of the occurrence. The September 29, 1989), the impacts from OSP is defined in section 3 of the PSIT generates automated messages to other past and ongoing anthropogenic MMPA as ‘‘the number of animals NMFS leadership and other relevant activities are incorporated into this which will result in the maximum staff, alerting them to the event and to analysis via their impacts on the productivity of the population or the the fact that updated information environmental baseline (e.g., as species, keeping in mind the carrying describing the circumstances of the reflected in the regulatory status of the capacity of the habitat and the health of event has been inputted to the database. species, population size and growth rate the ecosystem of which they form a The PSIT and CS reports represent not where known, ongoing sources of constituent element.’’ Through section only valuable real-time reporting and human-caused mortality, and specific 2, an overarching goal of the statute is information dissemination tools but also consideration of take by M/SI to ensure that each species or stock of serve as an archive of information that previously authorized for other NMFS marine mammal is maintained at or may be mined in the future to study research activities). returned to its OSP. why takes occur by species, gear, region, We note here that the takes from PBR values are calculated by NMFS as etc. potential gear interactions enumerated the level of annual removal from a stock The SEFSC will also collect and below could result in non-serious injury that will allow that stock to equilibrate report all necessary data, to the extent or no injury, but their worst potential within OSP at least 95 percent of the practicable given the primacy of human outcome (M/SI) is analyzed for the time, and is the product of factors safety and the well-being of captured or purposes of the negligible impact relating to the minimum population entangled marine mammals, to facilitate determination. estimate of the stock (Nmin), the serious injury (SI) determinations for We discuss here the connection, and productivity rate of the stock at a small marine mammals that are released alive. differences, between the legal population size, and a recovery factor. The SEFSC will require that the CS mechanisms for authorizing incidental Determination of appropriate values for complete data forms and address take under section 101(a)(5) for these three elements incorporates supplemental questions, both of which activities such as the SEFSC fishery significant precaution, such that have been developed to aid in SI research activities, and for authorizing application of the parameter to the determinations. The SEFSC understands incidental take from commercial management of marine mammal stocks the critical need to provide as much fisheries. In 1988, Congress amended may be reasonably certain to achieve the relevant information as possible about the MMPA’s provisions for addressing goals of the MMPA. For example, marine mammal interactions to inform incidental take of marine mammals in calculation of the minimum population decisions regarding SI determinations. commercial fishing operations. Congress estimate (Nmin) incorporates the level of In addition, the SEFSC will perform all directed NMFS to develop and precision and degree of variability necessary reporting to ensure that any recommend a new long-term regime to associated with abundance information, incidental M/SI is incorporated as govern such incidental taking (see while also providing reasonable appropriate into relevant SARs. MMC, 1994). The need to develop a assurance that the stock size is equal to system suited to the unique or greater than the estimate (Barlow et Negligible Impact Analysis and circumstances of commercial fishing al., 1995), typically by using the 20th Determination operations led NMFS to suggest a new percentile of a log-normal distribution Introduction—NMFS has defined conceptual means and associated of the population estimate. In general, negligible impact as an impact resulting regulatory framework. That concept, the three factors are developed on a from the specified activity that cannot PBR, and a system for developing plans stock-specific basis in consideration of be reasonably expected to, and is not containing regulatory and voluntary one another in order to produce reasonably likely to, adversely affect the measures to reduce incidental take for conservative PBR values that species or stock through effects on fisheries that exceed PBR were appropriately account for both annual rates of recruitment or survival incorporated as sections 117 and 118 in imprecision that may be estimated, as (50 CFR 216.103). A negligible impact the 1994 amendments to the MMPA. In well as potential bias stemming from finding is based on the lack of likely Conservation Council for Hawaii v. lack of knowledge (Wade, 1998). adverse effects on annual rates of National Marine Fisheries Service, 97 F. Congress called for PBR to be applied recruitment or survival (i.e., population- Supp.3d 1210 (D. Haw. 2015), which within the management framework for level effects). An estimate of the number concerned a challenge to NMFS’ commercial fishing incidental take of takes alone is not enough information regulations and LOAs to the Navy for under section 118 of the MMPA. As a on which to base an impact activities assessed in the 2013–2018 result, PBR cannot be applied determination. In addition to HSTT MMPA rulemaking, the Court appropriately outside of the section 118 considering estimates of the number of ruled that NMFS’ failure to consider regulatory framework without

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consideration of how it applies within fishing, it did not alter the standards for ‘‘strategic’’ as defined in section 3). But the section 118 framework, as well as authorizing non-commercial fishing nothing in the statute requires the how the other statutory management incidental take under section 101(a)(5), application of PBR outside the frameworks in the MMPA differ from implicitly acknowledging that the management of commercial fisheries the framework in section 118. PBR was negligible impact standard under interactions with marine mammals. not designed and is not used as an section 101(a)(5) is separate from the Nonetheless, NMFS recognizes that as a absolute threshold limiting commercial PBR metric under section 118. In fact, quantitative metric, PBR may be useful fisheries. Rather, it serves as a means to in 1994 Congress also amended section as a consideration when evaluating the evaluate the relative impacts of those 101(a)(5)(E) (a separate provision impacts of other human-caused activities on marine mammal stocks. governing commercial fishing incidental activities on marine mammal stocks. Even where commercial fishing is take for species listed under the ESA) to Outside the commercial fishing context, causing M/SI at levels that exceed PBR, add compliance with the new section and in consideration of all known the fishery is not suspended. When M/ 118 but retained the standard of the human-caused mortality, PBR can help SI exceeds PBR in the commercial negligible impact finding under section inform the potential effects of M/SI fishing context under section 118, 101(a)(5)(A) (and section 101(a)(5)(D)), requested to be authorized under NMFS may develop a take reduction showing that Congress understood that 101(a)(5)(A). As noted by NMFS and the plan, usually with the assistance of a the determination of negligible impact U.S. Fish and Wildlife Service in our take reduction team. The take reduction and application of PBR may share implementation regulations for the 1986 plan will include measures to reduce certain features but are, in fact, amendments to the MMPA (54 FR and/or minimize the taking of marine different. 40341, September 29, 1989), the mammals by commercial fisheries to a Since the introduction of PBR in Services consider many factors, when level below the stock’s PBR. That is, 1994, NMFS had used the concept available, in making a negligible impact where the total annual human-caused almost entirely within the context of determination, including, but not M/SI exceeds PBR, NMFS is not implementing sections 117 and 118 and limited to, the status of the species or required to halt fishing activities other commercial fisheries management- stock relative to OSP (if known); contributing to total M/SI but rather related provisions of the MMPA. Prior whether the recruitment rate for the utilizes the take reduction process to to the Court’s ruling in Conservation species or stock is increasing, further mitigate the effects of fishery Council for Hawaii v. National Marine decreasing, stable, or unknown; the size activities via additional bycatch Fisheries Service and consideration of and distribution of the population; and reduction measures. In other words, PBR in a series of section 101(a)(5) existing impacts and environmental under section 118 of the MMPA, PBR rulemakings, there were a few examples conditions. In this multi-factor analysis, does not serve as a strict cap on the where PBR had informed agency PBR can be a useful indicator for when, operation of commercial fisheries that deliberations under other MMPA and to what extent, the agency should may incidentally take marine mammals. sections and programs, such as playing take an especially close look at the a role in the issuance of a few scientific circumstances associated with the Similarly, to the extent PBR may be research permits and subsistence potential mortality, along with any other relevant when considering the impacts takings. But as the Court found when factors that could influence annual rates of incidental take from activities other reviewing examples of past PBR of recruitment or survival. than commercial fisheries, using it as consideration in Georgia Aquarium v. When considering PBR during the sole reason to deny (or issue) Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. evaluation of effects of M/SI under incidental take authorization for those 2015), where NMFS had considered section 101(a)(5)(A), we first calculate a activities would be inconsistent with PBR outside the commercial fisheries metric for each species or stock that Congress’s intent under section context, ‘‘it has treated PBR as only one incorporates information regarding 101(a)(5), NMFS’ long-standing ‘quantitative tool’ and [has not used it] ongoing anthropogenic M/SI from all regulatory definition of ‘‘negligible as the sole basis for its impact sources into the PBR value (i.e., PBR impact,’’ and the use of PBR under analyses.’’ Further, the agency’s minus the total annual anthropogenic section 118. The standard for thoughts regarding the appropriate role mortality/serious injury estimate in the authorizing incidental take for activities of PBR in relation to MMPA programs SAR), which is called ‘‘residual PBR.’’ other than commercial fisheries under outside the commercial fishing context (Wood et al., 2012). We first focus our section 101(a)(5) continues to be, among have evolved since the agency’s early analysis on residual PBR because it other things that are not related to PBR, application of PBR to section 101(a)(5) incorporates anthropogenic mortality whether the total taking will have a decisions. Specifically, NMFS’ denial of occurring from other sources. If the negligible impact on the species or a request for incidental take ongoing human-caused mortality from stock. Nowhere does section authorization for the U.S. Coast Guard other sources does not exceed PBR, then 101(a)(5)(A) reference use of PBR to in 1996 seemingly was based on the residual PBR is a positive number, and make the negligible impact finding or potential for lethal take in relation to we consider how the anticipated or authorize incidental take through multi- PBR and did not appear to consider potential incidental M/SI from the year regulations, nor does its companion other factors that might also have activities being evaluated compares to provision at 101(a)(5)(D) for authorizing informed the potential for ship strike in residual PBR using the framework in the non-lethal incidental take under the relation to negligible impact (61 FR following paragraph. If the ongoing same negligible-impact standard. NMFS’ 54157; October 17, 1996). anthropogenic mortality from other MMPA implementing regulations state The MMPA requires that PBR be sources already exceeds PBR, then that take has a negligible impact when estimated in SARs and that it be used residual PBR is a negative number and it does not ‘‘adversely affect the species in applications related to the we consider the M/SI from the activities or stock through effects on annual rates management of take incidental to being evaluated as described further of recruitment or survival’’—likewise commercial fisheries (i.e., the take below. without reference to PBR. When reduction planning process described in When ongoing total anthropogenic Congress amended the MMPA in 1994 section 118 of the MMPA and the mortality from the applicant’s specified to add section 118 for commercial determination of whether a stock is activities does not exceed PBR and

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residual PBR is a positive number, as a calculation) is underestimated because were not exceeded, there would not be simplifying analytical tool, we first marine mammal survey data within the adverse effects on the affected species or consider whether the specified activities U.S. EEZ are used to calculate the stocks. Nonetheless, it is equally clear could cause incidental M/SI that is less abundance, even when the stock range that in some cases the time to reach this than 10 percent of residual PBR (the extends well beyond the U.S. EEZ. An aspirational OSP level could be slowed ‘‘insignificance threshold,’’ see below). underestimate of abundance could by more than 10 percent (i.e., total If so, we consider M/SI from the result in an underestimate of PBR. human-caused mortality in excess of specified activities to represent an Alternatively, we sometimes may not PBR could be allowed) without insignificant incremental increase in have complete M/SI data beyond the adversely affecting a species or stock ongoing anthropogenic M/SI for the U.S. EEZ to compare to PBR, which through effects on its rates of marine mammal stock in question, that could result in an overestimate of recruitment or survival. Thus, even in alone (i.e., in the absence of any other residual PBR. The accuracy and situations where the inputs to calculate take) will not adversely affect annual certainty around the data that feed any PBR are thought to accurately represent rates of recruitment and survival. As PBR calculation, such as the abundance factors such as the species’ or stock’s such, this amount of M/SI would not be estimates, must be carefully considered abundance or productivity rate, it is still expected to affect rates of recruitment or to evaluate whether the calculated PBR possible for incidental take to have a survival in a manner resulting in more accurately reflects the circumstances of negligible impact on the species or stock than a negligible impact on the affected the particular stock. M/SI that exceeds even where M/SI exceeds residual PBR stock unless there are other factors that PBR may still potentially be found to be or PBR. could affect reproduction or survival, negligible in light of other factors that As noted above, in some cases the such as Level A and/or Level B offset concern, especially when robust ongoing human-caused mortality from harassment, or other considerations mitigation and adaptive management activities other than those being such as information that illustrates the provisions are included. evaluated already exceeds PBR. uncertainty involved in the calculation In Conservation Council for Hawaii v. Therefore, residual PBR is negative. In of PBR for some stocks. In a few prior NMFS, 97 F.Supp.3d 1210 (D. Haw. these cases (specifically two GoM BSE incidental take rulemakings, this 2015), which involved the challenge to stocks: Mississippi Sound and Mobile threshold was identified as the NMFS’ issuance of LOAs to the Navy in Bay), any additional mortality, no ‘‘significance threshold,’’ but it is more 2013 for activities in the HSTT Study matter how small, and no matter how accurately labeled an insignificance Area, the Court reached a different small relative to the mortality caused by threshold. Thus, we use that conclusion, stating, ‘‘Because any other human activities, would result in terminology here, as we did in the mortality level that exceeds PBR will greater exceedance of PBR. PBR is AFTT Proposed and Final Rules (83 FR not allow the stock to reach or maintain helpful in informing the analysis of the 57076; November 14, 2018). Assuming its OSP, such a mortality level could not effects of mortality on a species or stock that any additional incidental take by be said to have only a ‘negligible because it is important from a biological Level A or Level B harassment from the impact’ on the stock.’’ As described perspective to be able to consider how activities in question would not above, the Court’s statement the total mortality in a given year may combine with the effects of the fundamentally misunderstands the two affect the population. However, section authorized M/SI to exceed the negligible terms and incorrectly indicates that 101(a)(5)(A) of the MMPA indicates that these concepts (PBR and ‘‘negligible NMFS shall authorize the requested impact level, the anticipated M/SI impact’’) are directly connected, when incidental take from a specified activity caused by the activities being evaluated in fact nowhere in the MMPA is it if we find that ‘‘the total of such taking would have a negligible impact on the indicated that these two terms are [i.e., from the specified activity] will species or stock. However, M/SI above equivalent. have a negligible impact on such species the 10 percent insignificance threshold Specifically, PBR was designed as a or stock.’’ In other words, the task under does not indicate that the M/SI tool for evaluating mortality and is the statute is to evaluate the applicant’s associated with the specified activities defined as the number of animals that anticipated take in relation to their is approaching a level that would can be removed while ‘‘allowing that take’s impact on the species or stock, necessarily exceed negligible impact. stock to reach or maintain its [OSP].’’ not other entities’ impacts on the Rather, the 10 percent insignificance OSP is defined as a population that falls species or stock. Neither the MMPA nor threshold is meant only to identify within a range from the population level NMFS’ implementing regulations call instances where additional analysis of that is the largest supportable within the for consideration of other unrelated the anticipated M/SI is not required ecosystem to the population level that activities and their impacts on the because the negligible impact standard results in maximum net productivity, species or stock. In fact, in response to clearly will not be exceeded on that and thus is an aspirational management public comments on the implementing basis alone. goal of the overall statute with no regulations, NMFS explained that such Where the anticipated M/SI is near, specific timeframe by which it should effects are not considered in making at, or above residual PBR, consideration be met. PBR is designed to ensure negligible impact findings under section of other factors (positive or negative), minimal deviation from this overarching 101(a)(5). However, the extent to which including those outlined above, as well goal, with the formula for PBR typically a species or stock is being impacted by as mitigation is especially important to ensuring that growth towards OSP is not other anthropogenic activities is not assessing whether the M/SI will have a reduced by more than 10 percent (or ignored. Such effects are reflected in the negligible impact on the species or equilibrates to OSP 95 percent of the baseline of existing impacts as reflected stock. PBR is a conservative metric and time). As PBR is applied by NMFS, it in the species’ or stock’s abundance, not sufficiently precise to serve as an provides that growth toward OSP is not distribution, reproductive rate, and absolute predictor of population effects reduced by more than 10 percent, which other biological indicators. upon which mortality caps would certainly allows a stock to ‘‘reach or NMFS guidance for commercial appropriately be based. For example, in maintain its [OSP]’’ in a conservative fisheries provides insight when some cases stock abundance (which is and precautionary manner—and we can evaluating the effects of an applicant’s one of three key inputs into the PBR therefore clearly conclude that if PBR incidental take as compared to the

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incidental take caused by other entities. under section 101(a)(5)(A) focuses on mortality or serious injury could occur Parallel to section 101(a)(5)(A), section the activity being evaluated, it is follows. All mortality authorized for 101(a)(5)(E) of the MMPA provides that appropriate to utilize the parallel some of the same species or stocks over NMFS shall allow the incidental take of concept from the framework for section the next several years pursuant to our ESA-listed endangered or threatened 101(a)(5)(E). final rulemaking for the NMFS marine mammals by commercial Accordingly, we are using a similar Southwest and Pacific Islands Fisheries fisheries if, among other things, the criterion in our negligible impact Science Centers has been incorporated incidental M/SI from the commercial analysis under section 101(a)(5)(A) to into the residual PBR. fisheries will have a negligible impact evaluate the relative role of an We first consider maximum potential on the species or stock. As discussed applicant’s incidental take when other incidental M/SI for each stock (Table 13 earlier, the authorization of incidental sources of take are causing PBR to be and 14) in consideration of NMFS’s take resulting from commercial fisheries exceeded, but the take of the specified threshold for identifying insignificant and authorization for activities other activity is comparatively small. Where M/SI take (10 percent of residual PBR than commercial fisheries are under two this occurs, we may find that the (69 FR 43338; July 20, 2004)). By separate regulatory frameworks. impacts of the taking from the specified considering the maximum potential However, when it amended the statute activity may (alone) be negligible, even incidental M/SI in relation to residual in 1994 to provide a separate incidental when total human-caused mortality PBR and ongoing sources of take authorization process for from all activities exceeds PBR if (in the anthropogenic mortality, we begin our commercial fisheries, Congress kept the context of a particular species or stock) evaluation of whether the potential the authorized mortality or serious incremental addition of M/SI through requirement of a negligible impact injury would be less than or equal to 10 SEFSC research activities may affect the determination for ESA-listed species, percent of PBR and management species’ or stock’s annual rates of thereby applying the standard to both measures are being taken to address recruitment or survival. We also programs. While the structure and other serious injuries and mortalities from the consider the interaction of those standards of the two programs differ other activities (i.e., other than the mortalities with incidental taking of that such that evaluation of negligible specified activities covered by the species or stock by harassment pursuant impact under one program may not be incidental take authorization under to the specified activity. fully applicable to the other program consideration). We must also determine, We methodically examined each stock (e.g., the regulatory definition of though, that impacts on the species or above the insignificance threshold to ‘‘negligible impact’’ at 50 CFR 216.103 stock from other types of take (i.e., determine if the amount and degree of applies only to activities other than harassment) caused by the applicant do authorized taking would have effects to commercial fishing), guidance on not combine with the impacts from annual rates of recruitment or survival determining negligible impact for mortality or serious injury to result in (i.e., have a negligible impact on the commercial fishing take authorizations adverse effects on the species or stock species or stock). These rates are can be informative when considering through effects on annual rates of inherently difficult to quantify for incidental take outside the commercial recruitment or survival. marine mammals because adults of fishing context. In 1999, NMFS As discussed above, however, while long-lived, birth-pulse populations (e.g., published criteria for making a PBR is useful in informing the many cetaceans, polar bears and walrus) negligible impact determination evaluation of the effects of M/SI in may not breed every year because of pursuant to section 101(a)(5)(E) of the section 101(a)(5)(A) determinations, it is parental care, long gestation periods or MMPA in a notice of proposed permits just one consideration to be assessed in nutritional constraints (Taylor et al., for certain fisheries (64 FR 28800; May combination with other factors. It is not 1987). Therefore, we pursued a 27, 1999). Criterion 2 stated ‘‘If total determinative including because, as combination of quantitative and human-related serious injuries and explained above, the accuracy and qualitative analyses to inform our mortalities are greater than PBR, and certainty of the data used to calculate determinations. fisheries-related mortality is less than PBR for the species or stock must be First, we compiled data to assess the 0.1 PBR, individual fisheries may be considered. And we reiterate the baseline population status of each stock permitted if management measures are considerations discussed above for why for which the SEFSC is requesting take. being taken to address non-fisheries- it is not appropriate to consider PBR an These data were pulled from the most related serious injuries and mortalities. absolute cap in the application of this recent SARs (Hayes et al., 2017) and, When fisheries-related serious injury guidance. Accordingly, we use PBR as a where information was unknown or and mortality is less than 10 percent of trigger for concern while also undetermined in the SARs, we the total, the appropriate management considering other relevant factors to consulted marine mammal experts at action is to address components that provide a reasonable and appropriate the SEFSC and on TRTs to fill data gaps account for the major portion of the means of evaluating the effects of to the best of our ability based on the total.’’ This criterion addresses when potential mortality on rates of best available science. Data pulled from total human-caused mortality is recruitment and survival, while these sources include population size exceeding PBR, but the activity being acknowledging that it is possible to and demographics (where known), PBR, assessed is responsible for only a small exceed PBR (or exceed 10 percent of known mortality and serious injury portion of the mortality. In the SEFSC PBR in the case where other human- from commercial and recreational proposed rule, NMFS’ description of caused mortality is exceeding PBR but fishing and other human-caused sources how we consider PBR in the section the specified activity being evaluated is (e.g., direct shootings), stock trends (i.e., 101(a)(5) authorization process did not an incremental contributor, as described declining, stable, or increasing), threats, include consideration of this scenario. in the last paragraph) by some small and other sources of potential take M/ However, the analytical framework we amount and still make a negligible SI (e.g., MMPA 101(a)(5)(A or D) use here appropriately incorporates impact determination under section applications and scientific research elements of the one developed for use 101(a)(5)(A). permit applications). In addition, we under section 101(a)(5)(E). And because Our evaluation of the M/SI for each of looked at ongoing management actions the negligible impact determination the species and stocks for which (e.g., TRT gear restrictions) to identify

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where efforts are being focused and are surveys in Barataria Bay and Terrebonne crab pot/trap fisheries. The authorized successful at reducing incidental take. Bay revealed stock numbers were in the M/SI take (0.2/year) of the Northern thousands compared to the previously South Carolina stock is 50 percent of Estuarine and Coastal Bottlenose estimated populations of approximately PBR. However, considering an average Dolphins 200–300 animals (Hayes et al., 2018). In of one animal every 5 years is taken in For estuarine bottlenose dolphin addition, three stocks, including the commercial fisheries (likely gillnet or stocks, reaching our negligible impact Perdido Bay stock have population crab pot/trap), the authorized take and determination required a hard estimates showing zero. However, it is annual M/SI constitute 100 percent of r- examination of the status of each of the well documented that dolphins inhabit PBR. The Northern South Carolina 7 ARA and 11 GOMRA stocks for which these areas. We also consulted with the Estuarine System stock is delimited as we authorized take. We recognize that NMFS Southeast Regional Office (SERO) dolphins inhabiting estuarine waters PBR is technically undetermined for bottlenose dolphin conservation from Murrells Inlet, South Carolina, many stocks because abundance data is coordinator to better understand the southwest to Price Inlet, South Carolina, more than 8 years old. Therefore, we nature of the takes identified in the the northern boundary of Charleston consulted with marine mammal experts SARs M/SI values (i.e., the source of Estuarine System stock. The region has at the SEFSC to derive best estimates of take such as commercial fishery or little residential, commercial, and PBR based on the available data. research). That is, if we relied solely on industrial development and contains the Overall, PBR is low (less than one the SAR annual M/SI values reported in Cape Romain National Wildlife Refuge. animal) because stock sizes are the SARs and added the authorized M/ As such, the stock is not facing heavy generally small (tens to hundreds) in SI take to these numbers, we would be anthropogenic pressure, and there are southeast estuaries (with notable double-counting M/SI as some takes no identified continuous indirect exceptions such as Mississippi Sound were attributed to the research for stressors threatening the stock. and Mobile Bay). Stock sizes are which we are proposing to authorize For the nine estuarine stocks in the expected to be small because the take. Therefore, where M/SI takes were GOMRA for which we are proposing to abundance of a dolphin stock in an contributed to SEFSC research, we have authorize take by M/SI, take is below estuary is bounded by the capabilities of adjusted annual M/SI values from Table the insignificance threshold (10 percent the bays and estuarine systems to 3b above so as not to ‘‘double count’’ r-PBR) for four stocks: Mobile Bay, support that stock (i.e., carrying potential take. Table 13 reflects these Terrebonne Bay/Timbalier Bay; St. capacity of the system) due to the adjustments. Vincent Sound/Apalachicola Bay/St. residential nature of these stocks, among In the ARA, the amount of take from George Sound, and Apalachee Bay. As other things. With respect to rates of all M/SI (both authorized here and other described above, we have updated the annual M/SI, we note some fisheries in sources) does not exceed PBR. M/SI take population estimate and PBR of the the GoM (e.g., shrimp fishery) do not for ARA stocks is below the Mobile Bay stock in this final rule to have full observer coverage. Estimates of insignificance threshold (10 percent r- reflect data presented in the DWH take from these fisheries are both PBR) except for the Northern South Trustees quantification of injury report extrapolated and aggregated to the state Carolina Estuarine, Northern Georgia/ (DWH MMIQT 2015), which more level. Thus, calculating total M/SI rates Southern South Carolina Estuarine, accurately describes the Mobile Bay from commercial fisheries applicable to Central Georgia Estuarine, and Southern stock abundance than the proposed rule any given stock, rather than all stocks Georgia Estuarine stocks (Table 13). as that estimate was based on outdated within a state, not possible. Authorized M/SI take for the latter two (1991) survey data. The authorized M/ We approached the issue of outdated stocks are only slightly above the SI take for three coastal stocks are also abundance information by working insignificance threshold (11.76 and below the insignificance threshold. The closely with SEFSC experts and have 10.35 percent, respectively). The authorized M/SI take for four BSE stocks developed estimated abundance data authorized take for the Northern are between 14 and 40 percent r-PBR. and PBR values. The resulting values Georgia/Southern South Carolina stock Ongoing M/SI take attributed to the follow the general trend of small stock constitutes 28.57 percent of r-PBR. Mississippi Sound stock is already sizes and are very conservative in some Sources of anthropogenic mortality for above PBR in absence of the authorized cases. For example, recent abundance this stock include hook and line and M/SI take. (Table 13).

TABLE 13—SUMMARY INFORMATION OF ESTUARINE AND COASTAL BOTTLENOSE DOLPHIN STOCKS RELATED TO SEFSC AUTHORIZED M/SI TAKE IN THE ARA, GOMRA, AND CRA

NEFSC Stock M/SI take Annual authorized M/SI Stock abundance PBR r-PBR 2 take/r-PBR (annual) M/SI take by M/SI 3 (Nbest) (annual) (%)

Atlantic

Northern South Carolina Estuarine 1 50 0.2 ...... 1 0.4 0.2 0 0.2 100.00. Stock. Charleston Estuarine System Stock ... 1 289 0.2 ...... 1 2.8 0.2 0 2.6 7.69. Northern Georgia/Southern South 1 250 0.2 ...... 1 2.1 1.4 0 0.7 28.57. Carolina Estuarine. Central Georgia Estuarine ...... 192 0.2 ...... 1.9 0.2 0 1.7 11.76. Southern Georgia Estuarine ...... 194 0.2 ...... 1.9 0 0 1.9 10.53. Jacksonville Estuarine System ...... 1 412 0.2 ...... 1 3.9 1.2 0 2.7 7.41. Florida Bay ...... 1 514 0.2 ...... 1 4.5 0 0 4.5 4.44. South Carolina/Georgia Coastal ...... 6,027 0.6 ...... 46 1.0–1.4 0 44.6–45 1.35. Northern Florida Coastal ...... 877 0.6 ...... 6 0.6 0 5.4 11.11.

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TABLE 13—SUMMARY INFORMATION OF ESTUARINE AND COASTAL BOTTLENOSE DOLPHIN STOCKS RELATED TO SEFSC AUTHORIZED M/SI TAKE IN THE ARA, GOMRA, AND CRA—Continued

NEFSC M/SI Stock M/SI take Annual authorized 2 take/r-PBR Stock abundance (annual) PBR M/SI take by M/SI r-PBR (%) 3 (Nbest) (annual)

Central Florida Coastal ...... 1,218 0.6 ...... 9.1 0.2 0 8.9 6.74. Northern Migratory Coastal ...... 6,639 0.6 ...... 48 6.1–13.2 1.6 33.2–43.5 0.4–0.6. Southern Migratory Coastal ...... 3,751 0.6 ...... 23 14.3 1.6 7.1 8.45.

Gulf of Mexico

Terrebonne Bay, Timbalier Bay ...... 3,870 0.2 ...... 27 0.2 0 26.8 0.75. Mississippi River Delta ...... 332 0.2 ...... 1.4 4 0 0 1.4 14.29. Mississippi Sound, Lake Borgne, Bay 3,046 .02 (M/SI), 0.2 23 310 0 ¥287 Neg. Boudreau 5. (Level A). Mobile Bay, Bonsecour Bay ...... 1,393 0.2 ...... 6 13 5 0.8 0 12.2 1.6. St. Andrew Bay ...... 199 0.2 ...... 1.5 0.2 0 1.3 15.4. St. Joseph Bay ...... 142 0.2 ...... 1.0 0 0 1.0 20.0. St. Vincent Sound, Apalachicola Bay, 439 0.2 ...... 1 3.91 0 0 3.91 5.12. St. George Sound. Apalachee Bay ...... 491 0.2 ...... 1 3.61 0 0 3.61 5.54. Waccasassa Bay, Withlacoochee Bay, 1 100 0.2 ...... 1 0.5 0 0 0.5 40.00. Crystal Bay. Northern Gulf of Mexico Western 20,161 0.6 ...... 175 0.6 0 174.4 0.34. Coastal Stock. Northern Gulf of Mexico Northern 7,185 0.6 ...... 60 0.4 0 59.6 1.01. Coastal Stock. Northern Gulf of Mexico Eastern 12,388 0.6 ...... 111 1.6 0 109.4 0.55. Coastal Stock. 1 For many estuarine stocks, the draft 2019 SAR has unknown abundance estimates and undetermined PBRs. Where this occurred, we used either the most recent estimates (even if more than 8 years old) or we consulted with SEFSC marine mammal experts for best judgement (pers. comm., K. Mullin). 2 r-BPR = PBR—(annual M/I + NEFSC authorized take). For example, for the southern migratory coastal stock r-PBR = 23¥(14.3 + 1.6). 3 Values in the column reflect what the take represents as a percentage of r-PBR. The insignificance threshold is 10 percent. 4 The annual M/SI in the draft 2019 SAR is 0.2 for the Mississippi River stock. However, the takes considered were from gillnet fishery re- search. Therefore, we reduced M/SI to 0. 5 The annual M/SI in the draft 2019 SAR is 1.0. However, one take used in those calculations is from fisheries research for which we propose to authorize take. Therefore, we reduced M/SI to 0.8. 6 PBR for the Mobile Bay stock was derived from the lower 95 percent confidence interval presented in DHW MIQTT 2015 (Nmin = 1252). We calculated PBR as 1252 * 0.02 * 0.4 = 13.

For the Mississippi Sound stock, we annual mortality and serious injury mammals across the diverse habitats evaluated various aspects of stock status during 2011–2015 due to other human- and geographic ranges they occupy. and considered the amount of SEFSC caused actions (fishery research, sea • Identify and implement restoration M/SI compared to PBR. As described turtle relocation trawling, gunshot activities that mitigate key stressors to above, we may find that the impacts of wounds, and DWH oil spill) is 309 with support resilient populations. Collect the taking from the specified activity the majority sourced from DWH. and use monitoring information, such as may be negligible even when total Projected annual M/SI over the next 5 population and health assessments and human-caused mortality from all years from commercial fishing and spatiotemporal distribution information. activities exceeds PBR if (in the context DWH are 6 and 1539 (or 1.2 and 308, • Identify and implement actions that of a particular species or stock) the annually), respectively. support ecological needs of the stocks; authorized mortality or serious injury Management and research actions, improve resilience to natural stressors; and address direct human-caused would be less than or equal to 10 including ongoing health assessments threats such as bycatch in commercial percent of PBR and management and Natural Resource Damage Plan measures are being taken to address fisheries, vessel collisions, noise, efforts designed to restore injury to the serious injuries and mortalities from the industrial activities, illegal feeding and stock, are anticipated to improve the other activities (i.e., other than the harassment, and hook-and-line fishery status of the stock moving forward. In specified activities covered by the interactions. June 2017, the Deepwater Horizon incidental take authorization under NMFS is also currently investigating a (DWH) oil spill Natural Resource consideration). In this case, authorized number of actions to reduce both Damage Assessment (NRDA) Trustees M/SI take is less than 10 percent of PBR intentional and incidental mortality and and management actions are in place to (Trustees) released a ‘‘Strategic serious injury for all GOM BSE stocks, address M/SI from other sources. Framework for Marine Mammal including Mississippi Sound and According to this stock’s 2017 SAR, the Restoration Activities.’’ The framework Mobile Bay. These efforts include mean annual fishery-related mortality outlines the following general actions: working collaboratively with shrimp and serious injury during 2012–2015 for • Implement an integrated portfolio fishermen to explore ways to modify observed fisheries and strandings and of restoration approaches to restore fishing gear that would reduce bycatch at-sea observations identified as fishery- injured Bay, Sound, and Estuary (BSE); of dolphins; enhancing observer caused related is 1.0. Additional mean coastal; shelf; and oceanic marine coverage & data collection on shrimp

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trawls; working collaboratively to al., 2014) and for in situ observations of Charleston, South Carolina reported an reduce dolphin mortality from fishery interaction (Corkeron et al., apparent annual survival rate of 95.1 intentional mortality (gunshot, arrows) 1990; Finn et al., 2008; Powell & Wells, percent (95 percent CI: 88.2–100) and illegal feeding activities by 2011). Byrd and Hohn (2017) examined (Speakman et al., 2010). In summary, enhancing state law enforcement and stranding data to determine whether survival rate and reproductive success conducting outreach; and building there was differential risk of bycatch of the Sarasota Bay stock is high and, capacity and preparedness of the marine based on sex and age class from gillnet except for those stocks for which we mammal stranding network. fisheries in North Carolina. They found know individual marine mammal health Further, marine mammal population more males than females stranded. and reproductive success are modeling indicates dolphin populations However, the relative gillnet bycatch compromised from the Deepwater should begin recovery nine years post risk was not different for males and Horizon oil spill (e.g., Mississippi spill (NRDA Trustees, 2016; DWH females. In summary, these data suggest Sound stock), we consider estuarine MMIQT 2015). Applying that model to the risk of gear interaction from trawls bottlenose stocks in the ARA and the Mississippi Sound stock, we should and hook and line is likely higher for GOMRA to have similar rates of begin to see the population recover males, while gillnet interactions may recruitment and survival. during the life of the regulations. pose equal risk for males and females. For stocks that are known to be Moreover, we note the three research- For this rulemaking, the majority of experiencing levels of stress from related mortalities discussed in the SAR historical gear interactions are from fishing and other anthropogenic for this stock are from the specified trawls. Therefore, we believe males sources, we look toward the ongoing activities for which we have authorized (which are less likely to influence management actions and research take. Therefore, the authorized take recruitment rate) are more likely at risk designed to reduce those pressures would not be in addition to, but would than females. when considering our negligible impact account for, these research-related takes. Understanding the population determination. Overall, many estuarine In addition to quantitative dynamics of each bottlenose dolphin bottlenose dolphin stocks are facing comparisons between the issued amount stock considered in this rulemaking is anthropogenic stressors such as of M/SI take to PBR and r-PBR, we not possible as the data simply do not commercial and recreational fishing, consider qualitative information such as exist for each stock. Therefore, we coastal development, habitat population dynamics and context to considered a well-studied population, degradation (e.g., oil spills, harmful determine if the authorized amount of the Sarasota Bay stock, as a proxy for take of estuarine and coastal bottlenose assessing population dynamics of other algal blooms), and directed violence dolphins in the ARA and GOMRA estuarine stocks throughout the ARA (intentional killing/injury) and have would adversely affect a stock through and GOMRA. The Sarasota Bay stock is some level of annual M/SI. NOAA, effects of annual rates of recruitment the most data rich population of including the SEFSC, is dedicated to and survival. Marine mammals are K- bottlenose dolphins in the United reducing fishery take, both in selected species, meaning they have few States. The Sarasota Bay Research commercial fisheries and research offspring, long gestation and parental Program (SBRP) possesses 40 years of surveys. For example, the Atlantic care periods, and reach sexual maturity data on the resident dolphin population. BDTRT is in place to decrease M/SI in later in life. Therefore, between years, Research topics include, but are not commercial fisheries and scientists at reproduction rates vary based on age limited to, population structure and NOAA’s National Center for Coastal and sex class ratios. As such, population dynamics, health and physiology, and Ocean Science (NCCOS) in Charleston, dynamics is a driver when looking at human interaction and impacts. South Carolina, are undertaking reproduction rates. We focus on The Sarasota Bay stock demonstrates research and working with local reproduction here because we high recruitment and survival rates. fishermen to reduce crab pot/trap and conservatively consider inter-stock Wells et al. (2014) found 83 percent (95 trawling entanglement (e.g., McFee et reproduction is the primary means of percent CI = 0.52 to 0.99) of detected al., 2006, 2007; Greenman and McFee, recruitment for these stocks. We note pregnancies were documented as 2014). In addition, through this this is a conservative assumption, as resulting in live births. Eight of the 10 rulemaking, the SEFSC has invested in some individuals are known to travel, calves (80 percent) resulting from developing measures that may be and there is some mixing between the documented pregnancies survived adopted by commercial fisheries to estuarine stocks and adjacent coastal through the calendar year of their birth reduce bycatch rates, thereby decreasing stocks (Hayes et al, 2017). Given and, therefore, were considered to have the rate of fishing-related M/SI. For reproduction is the primary means of been successfully recruited into the example, in 2017, the SEFSC executed recruitment and females play a Sarasota Bay bottlenose dolphin the previously described Lazy Line significantly larger role in their population. This value compares Modification Mitigation Work Plan (see offspring’s reproductive success (also favorably with the 81 percent first year Potential Effects of Specified Activities known as Bateman’s Principle), the survival reported by Wells & Scott on Marine Mammals and Their Habitat mortality of females rather than males (1990) for Sarasota Bay bottlenose section) and is investigating the is, in general, more likely to influence dolphins. Thus, approximately 66 feasibility of applying gear recruitment rate. Several studies have percent of documented pregnancies led modifications to select research trawl purported that male bottlenose dolphins to successful recruitment. Mann et al. surveys. Also, as a result of this are more likely to engage in depredation (2000) found dolphin interbirth rulemaking process, the SEFSC has a or related behaviors with trawls and intervals for surviving calves are heightened awareness of the risk of take recreational fishing (Corkeron et al., between 3 and 6.2 years, resulting in and a commitment to not only 1990; Powell & Wells, 2011) or become annual variability in reproductive rates. implement the mitigation measures in entangled in gear (Reynolds et al., 2000; With respect to survival, Wells and this rulemaking but to develop Adimey et al., 2014). Male bias has also Scott (1990) calculated a mean annual additional mitigation measures beyond been reported for strandings with survival rate of Sarasota Bay dolphins at this rule that they find effective and evidence of fishery interaction (Stolen et 96.2 percent. In comparison, a mark- practicable. Because all NMFS Science al., 2007; Fruet et al., 2012; Adimey et recapture study of dolphins near Centers are dedicated to decreasing gear

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interaction risk, each Science Center is border through Franklin County; n = 38) have far less, if any, effect on annual also committed to sharing information since February 1, 2019. As of January 2, rates of recruitment or survival. As about reducing marine mammal 2020, these 342 dolphin stranding rate described above, male bias has been bycatch, further educating fishery is approximately three times higher than documented for strandings with researchers on means by which is to the average. The UME investigation is evidence of fishery interaction (most make best professional judgements and ongoing and, to date, no specific causes notably trawls), and the majority of minimize risk of take. have been identified. However, a work assessed under this rule is Region-wide, Gulf of Mexico states, in number of the stranded dolphins have trawling. Therefore, there is likely a coordination with Federal agencies, are had visible skin lesions that are greater than 50 percent chance a male taking action to recover from injury consistent with freshwater exposure. could be taken, further decreasing the sustained during the DWH spill. Funds During the spring season, it is not likelihood of impact on annual rates of from the spill have been allocated uncommon to see a reduction of salinity recruitment or survival. specifically for marine mammal in bays, sounds, and estuaries and also In situations like this where potential restoration to the Florida, Alabama, an increase in dolphins (both live free M/SI take is fractional (e.g., 0.2 per Mississippi, Louisiana, Texas, Open swimming and stranded) exhibiting year), consideration must be given to the Ocean, and Region-wide Trustee visible skin lesions consistent with low lessened impacts anticipated due to the Implementation Groups (TIGs). As salinity exposure. These freshets may be absence of M/SI in four of the years and described above, in June 2017, the a result of local rainfall and/or due to the fact that a single M/SI from Trustees released their Strategic watershed flow from upstream snow gear interaction is more likely to be Framework for Marine Mammal melt or flood events emptying into the male. Lastly, we reiterate that PBR is a Restoration Activities. The framework bays, sounds and estuaries of the Gulf conservative metric and also not includes a number of marine mammal of Mexico. Last year (2019) was an sufficiently precise to serve as an restoration goals (listed above) which especially wet year with high levels of absolute predictor of population effects would improve marine mammal rainfall in addition to the opening of the upon which mortality caps would populations over the course of the spillways due to the extreme flooding appropriately be based. This is regulations by, among other things, upstream (e.g., the Bonnet-Carre especially important given the minor increasing marine mammal resilience to spillway was open 76 days (January– difference between zero and one across natural stressors and addressing direct June 11, 2019) affecting areas east of the the 5-year period covered by this rule, human-caused threats such as bycatch Mississippi River outflow). The majority which is the smallest distinction in commercial fisheries, vessel of strandings associated with this UME possible when considering mortality. collisions, noise, industrial activities, occurred prior to July with the stranding illegal feeding and harassment, and Wade (1998), authors of the paper from rate decreasing over the last several which the current PBR equation is hook-and-line fishery interactions. The months. For example, of the total 342 Alabama TIG has made the most derived, note (on page 29) that strandings since February 1, 2019, 289 ‘‘Estimating incidental mortality in one progress on executing this strategic occurred prior to July 5, 2019 (5 framework. In 2018, the Alabama TIG year to be greater than the PBR months). Between July 5, 2019 and calculated from a single abundance committed to three projects designed to October 3, 2019 (3 months), there were restore marine mammals: (1) Enhancing survey does not prove the mortality will 28 strandings and between October 4, lead to depletion; it identifies a Capacity for the Alabama Marine 2019 and January 2, 2020 (3 months), Mammal Stranding Network; (2) population worthy of careful future there were 25 strandings. Therefore, Assessment of Alabama Estuarine monitoring and possibly indicates that although the UME is ongoing, the rate Bottlenose Dolphin Populations & mortality-mitigation efforts should be of mortality is decreasing. Health (including the Mobile Bay stock); initiated.’’ and (3) Alabama Estuarine Bottlenose For all estuarine stocks, 0.2 M/SI Offshore Pelagic Stocks Dolphin Protection: Enhancement & annually means the potential for one Education. mortality in 1 of the 5 years and zero For all offshore pelagic stocks where Since publication of the proposed mortalities in 4 of those 5 years. PBR is known, except for gray seal, the rule, an unusual mortality event (UME) Therefore, the SEFSC would not be level of taking is less than 10 percent of has been declared for dolphins in the contributing to the total human-caused r-PBR after considering other sources of Gulf of Mexico, including BSE dolphins. mortality at all in 4 of the 5, or 80 human-caused mortality (Table 14). We consider this UME in the context of percent, of the years covered by this Again, for those stocks with total our negligible impact determination rule. That means that even if a dolphin incidental M/SI take less than the since it was (a) recent, (b) is ongoing, from any estuarine stock were to be significance threshold (i.e., ten percent and (c) most notably impacted BSE killed or seriously injured as a result of of residual PBR), we consider the effects stocks (e.g., Mobile Bay) for which we fisheries research, in 4 of the 5 years of the specified activity to represent an authorized M/SI take. Elevated there could be no effect on annual rates insignificant incremental increase in bottlenose dolphin strandings have been of recruitment or survival from SEFSC- ongoing anthropogenic M/SI and need occurring in the Northern Gulf of caused M/SI. Additionally, as noted not consider other factors in making a Mexico including Louisiana (n = 114), previously, the loss of a male, which we negligible impact determination except Mississippi (n = 139), Alabama (n = 58), have demonstrated is more likely when in combination with additional and the panhandle of Florida (Alabama trawling is the cause of take, would incidental take by acoustic harassment.

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TABLE 14—SUMMARY INFORMATION OF PELAGIC STOCKS RELATED TO AUTHORIZED M/SI TAKE TO THE SEFSC IN THE ARA, GOMRA, AND CRA

NEFSC Annual author- MI/SI Species Stock M/SI take PBR M/SI ized take r-PBR take/ (annual) (SAR) by M/SI r-PBR (annual) (%)

Risso’s dolphin ...... Western North Atlantic ...... 0.2 126 ...... 49.9 ...... 0.6 75.5 ...... 0.26. N. Gulf of Mexico ...... 0.2 16 ...... 7.9 ...... 0 8.1 ...... 2.47. Puerto Rico/USVI ...... 0.2 15 ...... 0.5 ...... 0 14.5 ...... 1.38. Melon headed whale ...... N. Gulf of Mexico ...... 0.6 13 ...... 0 ...... 0 13 ...... 4.62. Short-finned pilot whale ...... Western North Atlantic ...... 0.2 236 ...... 168 ...... 0 68 ...... 0.29. N. Gulf of Mexico ...... 0.2 15 ...... 0.5 ...... 0 14.5 ...... 1.38. Puerto Rico/USVI ...... 0.2 unk ...... unk ...... 0 unk ...... unk. Common dolphin ...... Western North Atlantic ...... 0.8 557 ...... 406 ...... 1.4 149.6 ...... 0.53. Atlantic spotted dolphin ...... Western North Atlantic ...... 0.8 316 ...... 0 ...... 0.4 315.6 ...... 0.25. N. Gulf of Mexico ...... 0.8 undet ...... 42 ...... 0 unk ...... unk. Puerto Rico/USVI ...... 0.2 unk ...... unk ...... 0 unk ...... unk. Pantropical spotted dolphin ...... Western North Atlantic ...... 0.2 17 ...... 0 ...... 0 17 ...... 1.18. N. Gulf of Mexico ...... 0.8 407 ...... 4.4 ...... 0 402.6 ...... 0.20. Striped dolphin ...... Western North Atlantic ...... 0.6 428 ...... 0 ...... 0 428 ...... 0.14. N. Gulf of Mexico ...... 0.6 10 ...... 0 ...... 0 10 ...... 6.00. Spinner dolphin ...... Western North Atlantic ...... 0 unk ...... 0 ...... 0 unk. N. Gulf of Mexico ...... 0.6 62 ...... 0 ...... 0 62 ...... 0. Puerto Rico/USVI...... 0 unk ...... unk ...... 0 unk ...... 0. Rough-toothed dolphin ...... Western North Atlantic ...... 0 1.3 ...... 0 ...... 0 1.3 ...... 0. N. Gulf of Mexico ...... 0.2 3 ...... 0.8 ...... 0 2.2 ...... 9.09. Bottlenose dolphin ...... Western North Atlantic Offshore .. 0.8 561 ...... 39.4 ...... 1.6 520 ...... 0.15. N. Gulf of Mexico Oceanic ...... 0.8 60 ...... 0.4 ...... 0 59.6 ...... 1.34. N. Gulf of Mexico Continental 0.8 469 ...... 0.8 ...... 0 468.2 ...... 0.17. Shelf. Puerto Rico/USVI ...... 0.2 unk ...... 0 ...... 0 unk ...... unk. Harbor porpoise ...... Gulf of Maine/Bay of Fundy ...... 0.2 706 ...... 437 ...... 0 269 ...... 0.07. Unidentified delphinid ...... Western North Atlantic ...... 0.2 ...... 0.6 n/a ...... n/a. N. Gulf of Mexico ...... 0.2 ...... 0 n/a ...... n/a. Puerto Rico/USVI ...... 0.2 ...... 0 n/a ...... n/a. Harbor seal ...... Western North Atlantic ...... 0.2 2,006 ...... 389 ...... 12 1,605 ...... 0.01. Gray seal ...... Western North Atlantic ...... 0.2 1,389 ...... 5,688 ...... ¥4,299 .. Neg.

Gray seals are the only stock where, We note that for all stocks, we have in detail in Estimated Take Due to at first look, annual M/SI is above PBR conservatively considered in this Acoustic Harassment, represents NMFS’ (but the authorized M/SI is less than 10 analysis that any gear interaction would best effort towards balancing the need to percent of PBR) (Table 14). However, result in mortality or serious injury quantify the potential for occurrence of the minimum abundance estimate when it has been documented that some Level B harassment due to production of provided in the SAR is based on the gear interactions may result in Level A underwater sound with a general lack of U.S. population estimate of 23,158 and harassment (injury) or no injury at all, information related to the specific way does not include the Canada population. as serious injury determinations are not that these acoustic signals, which are The total estimated Canadian gray seal made in all cases where the disposition generally highly directional and population in 2016 was estimated to be of the animal is ‘‘released alive’’ and, in transient, interact with the physical 424,300 (95 percent CI = 263,600 to some cases, animals are disentangled environment and to a meaningful 578,300) (DFO 2017). This would be from nets without any injury understanding of marine mammal acceptable except that the annual M/SI observations (e.g., no wounds, no blood perception of these signals and rate of 5,688 includes M/SI from both in water, etc). occurrence in the areas where the the U.S. and Canada populations. Level B Take From Acoustic Sources SEFSC operates. The sources considered Therefore, we should compare As described in greater depth here have moderate to high output population to population. The draft previously, we do not believe that frequencies (10 to 180 kHz), generally 2018 SAR indicates the annual M/SI for SEFSC use of active acoustic sources short ping durations, and are typically the U.S. population is 878. That equates has the likely potential to result in Level focused (highly directional with narrow to an r-PBR of 511. Considering the A harassment, serious injury, or beam width) to serve their intended SEFSC is requesting one take, by M/SI, mortality. In addition, for the majority purpose of mapping specific objects, of gray seal over 5 years (or 0.2 animals of species, the annual take by Level B depths, or environmental features. In per year), this results in a percentage of harassment is very low in relation to the addition, some of these sources can be 0.003, well under the 10 percent population abundance estimate (less operated in different output modes (e.g., insignificance threshold. Further, given than one percent). We have produced energy can be distributed among the authorized M/SI take of one animal what we believe to be precautionary multiple output beams) that may lessen over 5 years, this amount of take can be estimates of potential incidents of Level the likelihood of perception by and considered discountable given the large B harassment (Table 12). The procedure potential impacts on marine mammals population size. for producing these estimates, described in comparison with the quantitative

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estimates that guide our take Summary of Negligible Impact attributed to males and M/SI for all BSE authorization. Determination for SEFSC stocks is the lowest level practicable (1 As described previously, there is In summary, we consider the over 5 years) with no M/SI occurring in some minimal potential for temporary authorization would not impact annual 4 of those 5 years. effects to hearing capabilities within rates of recruitment or survival of any of Based on the analysis contained herein of the likely effects of the specific frequency ranges for select the stocks considered here because: (1) specified activity on marine mammals marine mammals, but most effects The possibility of injury, serious injury, and their habitat, and taking into would likely be limited to temporary or mortality from the use of active acoustic devices may reasonably be consideration the implementation of the behavioral disturbance. If individuals monitoring and mitigation measures, are in close proximity to active acoustic considered discountable; (2) the anticipated incidents of Level B NMFS preliminarily finds that the total sources, they may temporarily increase harassment from the use of active marine mammal take from SEFSC swimming speeds (presumably acoustic devices consist of, at worst, fisheries research activities will have a swimming away from the source) and temporary and relatively minor negligible impact on affected marine surface time or decrease foraging effort modifications in behavior; (3) the mammal species or stocks. (if such activity were occurring). These predicted number of incidents of Small Numbers reactions are considered to be of low potential mortality are at insignificant severity due to the short duration of the levels (i.e., below ten percent of residual As noted above, only small numbers reaction. Individuals may move away PBR) for select stocks; (4) consideration of incidental take may be authorized from the source if disturbed. However, of more detailed data for gray seals do under Section 101(a)(5)(D) of the MMPA because the source is itself moving and not reveal cause for concern; (5) for for specified activities other than because of the directional nature of the stocks above the insignificance military readiness activities. The MMPA sources considered here, it is unlikely threshold, the loss of one animal over 5 does not define small numbers and so, any temporary displacement from areas years, especially if it is male (the sex in practice, where estimated numbers of significance would occur, and any more likely to interact with trawls), is are available, NMFS compares the disturbance would be of short duration. not likely to contribute to measurable number of individuals taken to the most In addition, because the SEFSC survey changes in annual rates of recruitment appropriate estimation of abundance of effort is widely dispersed in space and or survival; (7) many stocks are the relevant species or stock in our time, repeated exposures of the same subjected to ongoing management determination of whether an individuals would be very unlikely. For actions designed to improve stock authorization is limited to small numbers of marine mammals. these reasons, we do not consider the understanding and reduce sources of M/ SI from other anthropogenic stressors Additionally, other qualitative factors level of take by acoustic disturbance to (e.g., BDTRT management actions, may be considered in the analysis, such represent a significant additional pelagic longline TRT); (8) the efforts by as the temporal or spatial scale of the population stressor when considered in the DHW Trustees are designed to activities. context with the level of take by restore for injury, including addressing Small Numbers Analysis—SEFSC M/SI for any species. Further, we note ongoing stressors such as commercial no take by harassment is for estuarine fishery entanglement which would The total amount of take authorized bottlenose dolphins. Therefore, only improve stock conditions; (9) for all estuarine and coastal bottlenose M/SI is incorporated into our negligible implementation of this rule would build dolphin stocks is less than one percent impact analysis for those stocks. For upon research designed to reduce of each estuarine stock and less than 12 Level B take of coastal stocks in both the fishery related mortality (e.g., NCCOS percent of all coastal stocks (Table 15; ARA and GOMRA, it is not possible to crab pot/trap and trawl interaction we note this 12 percent is quantify take per stock given overlap in research; HSU lazy line research); (10) conservatively high because it considers time and space. However, we consider the presumed efficacy of the planned that all Level B take would come from the anticipated amount of take to have mitigation measures in reducing the any given single stock). For pelagic the potential to occur from some effects of the specified activity to the stocks, the total amount of take is less combination of coastal stocks. level of least practicable adverse impact, than 13 percent of the estimated and (11) M/SI is more likely to be population size (Table 16).

TABLE 15—AMOUNT OF AUTHORIZED TAKE OF ESTUARINE AND COASTAL BOTTLENOSE DOLPHIN STOCKS IN THE ARA AND GOMRA RELATED TO STOCK ABUNDANCE

Stock M/SI take Take % Stock abundance Level B take (annual) population (Nbest)

Atlantic

Northern South Carolina Estuarine Stock ...... 50 0 0.2 ...... 0.40 Charleston Estuarine System Stock ...... 289 0.2 ...... 0.07 Northern Georgia/Southern South Carolina Estuarine System Stock ...... 250 0.2 ...... 0.08 Central Georgia Estuarine System ...... 192 0.2 ...... 0.10 Southern Georgia Estuarine System Stock ...... 194 0.2 ...... 0.10 Jacksonville Estuarine System Stock ...... 412 0.2 ...... 0.05 Florida Bay Stock ...... 514 0.2 ...... 0.04 South Carolina/Georgia Coastal Stock ...... 6,027 0.6 ...... 0.01 Northern Florida Coastal Stock ...... 877 110 0.6 ...... 12.61 Central Florida Coastal Stock ...... 1,218 0.6 ...... 9.08 Northern Migratory Coastal Stock ...... 6,639 0.6 ...... 1.67

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TABLE 15—AMOUNT OF AUTHORIZED TAKE OF ESTUARINE AND COASTAL BOTTLENOSE DOLPHIN STOCKS IN THE ARA AND GOMRA RELATED TO STOCK ABUNDANCE—Continued

Stock M/SI take Take % Stock abundance Level B take (annual) population (Nbest)

Southern Migratory Coastal Stock ...... 3,751 0.6 ...... 2.95

Gulf of Mexico

Terrebonne Bay, Timbalier Bay ...... 100 0 0.2 ...... 0.20 Mississippi River Delta ...... 332 0.2 ...... 0.06 Mississippi Sound, Lake Borgne, Bay Boudreau ...... 3,046 0.2 (M/SI), 0.2 0.01 (Level A). Mobile Bay, Bonsecour Bay ...... 1,393 0.2 ...... 0.16 St. Andrew Bay ...... 124 0.2 ...... 0.16 St. Joseph Bay ...... 152 0.2 ...... 0.13 St. Vincent Sound, Apalachicola Bay, St. George Sound ...... 439 0.2 ...... 0.05 Apalachee Bay ...... 491 0.2 ...... 0.04 Waccasassa Bay, Withlacoochee Bay, Crystal Bay ...... 100 0.2 ...... 0.20 Northern Gulf of Mexico Western Coastal Stock ...... 20,161 350 0.6 ...... 1.74 Northern Gulf of Mexico Northern Coastal Stock ...... 7,185 0.6 ...... 4.88 Northern Gulf of Mexico Eastern Coastal Stock ...... 12,388 0.6 ...... 2.83

TABLE 16—AMOUNT OF AUTHORIZED TAKE OF PELAGIC STOCKS IN THE ARA, GOMRA, AND CRA TO THE SEFSC RELATED TO STOCK ABUNDANCE

Species Stock Abundance Level B take M/SI take Total take % (Nbest) (annual) (annual) population

N. Atlantic right whale ...... Western North Atlantic ...... 451 ...... 4 0 0.89 Fin whale ...... Western North Atlantic ...... 1,618 ...... 4 0 0.25 Sei whale ...... Western North Atlantic ...... 357 ...... 4 0 1.12 Blue whale ...... Western North Atlantic ...... 33 ...... 4 0 12 Humpback whale ...... Gulf of Maine ...... 896 ...... 4 0 0.45 Minke whale ...... Western North Atlantic ...... 2,591 ...... 4 0 0.15 Bryde’s whale ...... Northern Gulf of Mexico ...... 33 ...... 4 0 12.12 Sperm whale ...... North Atlantic ...... 2,288 ...... 4 0 0.17 Northern Gulf of Mexico ...... 763 ...... 17 0 2.23 Puerto Rico/USVI ...... unk ...... 4 0 unk. Risso’s dolphin ...... Western North Atlantic ...... 18,250 ...... 15 0.2 0.08 N. Gulf of Mexico ...... 2,442 ...... 10 0.2 0.42 Puerto Rico/USVI ...... 21,515 ...... 10 0.2 0.05 Kogia ...... Western North Atlantic ...... 3,785 ...... 10 0 0.26 N. Gulf of Mexico ...... 186 ...... 12 0 6.45 Beaked whales ...... Western North Atlantic ...... 7,092 ...... 9 0 0.13 N. Gulf of Mexico ...... 149 ...... 8 0 5.37 Melon headed whale ...... N. Gulf of Mexico ...... 2,235 ...... 100 0.6 4.50 Short-finned pilot whale ..... Western North Atlantic ...... 28,924 ...... 48 0.2 0.17 N. Gulf of Mexico ...... 2,415 ...... 25 0.2 1.04 Puerto Rico/USVI ...... unk ...... 20 0.2 unk. Common dolphin ...... Western North Atlantic ...... 70,184 ...... 268 0.8 0.38 Atlantic spotted dolphin ..... Western North Atlantic ...... 44,715 ...... 37 0.8 0.08 N. Gulf of Mexico ...... unk ...... 198 0.8 unk. Puerto Rico/USVI ...... unk ...... 50 0.2 unk. Pantropical spotted dolphin Western North Atlantic ...... 3,333 ...... 78 0.2 2.35 N. Gulf of Mexico ...... 50,807 ...... 203 0.8 0.40 Striped dolphin ...... Western North Atlantic ...... 54,807 ...... 75 0.6 0.14 N. Gulf of Mexico ...... 1,849 ...... 46 0.6 2.52 Spinner dolphin ...... Western North Atlantic ...... unk ...... 100 0 unk. N. Gulf of Mexico ...... 11,441 ...... 200 0.6 1.75 Puerto Rico/USVI ...... unk ...... 50 0 unk. Rough-toothed dolphin ...... Western North Atlantic ...... 136 ...... 10 0 7.35 N. Gulf of Mexico ...... 624 ...... 20 0.2 3.24 Bottlenose dolphin ...... Western North Atlantic Offshore ...... 77,532 ...... 39 0.8 0.05 N. Gulf of Mexico Oceanic ...... 5,806 ...... 100 0.8 1.74 N. Gulf of Mexico Continental Shelf ...... 51,192 ...... 350 0.8 0.69 Puerto Rico/USVI ...... unk ...... 50 0.2 unk. Harbor porpoise ...... Gulf of Maine/Bay of Fundy ...... 79,833 ...... 0 0.2 0.00 Unidentified delphinid ...... Western North Atlantic ...... n/a ...... 0 0.2 n/a N. Gulf of Mexico ...... 0.2 Puerto Rico/USVI ...... 0.2 Harbor seal ...... Western North Atlantic ...... 75,834 ...... 0 0.2 0.00 Gray seal ...... Western North Atlantic ...... 27,131 ...... 0 0.2 0.00

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The majority of stocks would see take likelihood of reducing adverse effects to Region (Biological Opinion). The less than 5 percent of the population marine mammals and if the measures Biological Opinion found independent taken with the greatest being 12.12 are practicable. In addition, any M/SI fishery research is not likely to percent from Bryde’s whales in the Gulf takes by the SEFSC and affiliates are adversely affect the following ESA- of Mexico. However, this is assuming all required to be submitted within 48 listed species: Blue whales, sei whales, takes came from the same stock of hours to the PSIT database and OPR will sperm whales, fin whales, humpback beaked whales which is unlikely. Where be made aware of the take. If there is an whales, North Atlantic right whales, stock numbers are unknown, we would immediate need to revisit monitoring gulf sturgeon and all listed corals in the expect a similar small amount of take and mitigation measures based on any action area. NMFS amended this relative to population sizes. given take, OPR and SEFSC would meet Biological Opinion on June 4, 2018, Based on the analysis contained as needed. updating marine mammal hearing group herein of the proposed activity The following are some of the frequency ranges based on the best (including the mitigation and possible sources of applicable data to be available science, adding evaluation of monitoring measures) and the considered through the adaptive the effects of this proposed action on the authorized take of marine mammals, management process: (1) Results from Gulf of Mexico Bryde’s whale, and NMFS finds that small numbers of monitoring reports, as required by including NMFS’ issuance of marine mammals will be taken relative MMPA authorization; (2) results from regulations and a LOA to SEFSC as part to the population size of the affected general marine mammal and sound of the proposed action. Similar to the species or stocks. research; (3) any information which previous finding, the amended reveals that marine mammals may have Unmitigable Adverse Impact Analysis Biological Opinion concluded SEFSC been taken in a manner, extent, or and Determination independent fishery research is not number not authorized by these likely to adversely affect listed marine There are no relevant subsistence uses regulations or subsequent LOAs; and (4) mammals or adversely modify critical of the affected marine mammal stocks or findings from any mitigation research habitat. species implicated by the issuance of (e.g., gear modification). In addition, regulations to the SEFSC. Therefore, developments on the effectiveness of Classification NMFS has determined that the total mitigation measures as discovered Pursuant to the procedures taking of affected species or stocks through research (e.g., stiffness of lazy would not have an unmitigable adverse established to implement Executive lines) will inform adaptive management Order 12866, the Office of Management impact on the availability of such strategies. Finally, the SEFSC–SCDNR species or stocks for taking for and Budget has determined that this working group is investigating the rule is not significant. subsistence purposes. relationships between SCDNR research Pursuant to section 605(b) of the Adaptive Management surveys and marine mammal takes. Any report produced by that working group Regulatory Flexibility Act (RFA), the The regulations governing the take of will inform improvements to marine Chief Counsel for Regulation of the marine mammals incidental to SEFSC mammal monitoring and mitigation. Department of Commerce has certified fisheries research survey operations to the Chief Counsel for Advocacy of the contain an adaptive management National Environmental Policy Act Small Business Administration that this component which is both valuable and To comply with the National rule, if adopted, would not have a necessary within the context of 5-year Environmental Policy Act of 1969 significant economic impact on a regulations for activities that have been (NEPA; 42 U.S.C. 4321 et seq.) and substantial number of small entities. associated with marine mammal NOAA Administrative Order (NAO) The SEFSC is the sole entitiy that would mortality. The use of adaptive 216–6A, NMFS must review our action be subject to the requirements in these management allows OPR to consider (i.e., the issuance of an incidental regulations, and the SEFSC is not a new information from different sources harassment authorization) with respect small governmental jurisdiction, small to determine (with input from the to potential impacts on the human organization, or small business, as SEFSC regarding practicability) on an environment. defined by the RFA. Because of this annual or biennial basis if mitigation or Accordingly, NMFS prepared a PEA certification, a regulatory flexibility monitoring measures should be to consider the environmental impacts analysis is not required and none has modified (including additions or associated with the issuance of the been prepared. deletions). The coordination and regulations and LOA to SEFSC. The rule for the SEFSC does not reporting requirements in this rule are Subsequently, NMFS issued the Final contain a collection-of-information designed to provide OPR with data to PEA for Fisheries and Ecosystem requirement subject to the provisions of allow consideration of whether any Research Conducted and Funded by the the Paperwork Reduction Act (PRA) changes to mitigation and monitoring is Southeast Fisheries Science Center and because the applicant is a Federal necessary. OPR and the SEFSC will signed a Finding of No Significant agency. meet annually to discuss the monitoring Impact (FONSI) on March 23, 2020. The reports and current science and whether documents can be found at https:// List of Subjects in 50 CFR Part 219 mitigation or monitoring modifications www.fisheries.noaa.gov/permit/ Endangered and threatened species, are appropriate. Decisions will also be incidental-take-authorizations-under- Fish, Marine mammals, Reporting and informed by findings from any marine-mammal-protection-act. recordkeeping requirements, Wildlife. established working groups, investigations into gear modifications Endangered Species Act (ESA) Dated: April 10, 2020. and dolphin-gear interactions, new On May 9, 2016, NMFS SERO issued Samuel D. Rauch III, stock data, and coordination efforts a Biological Opinion on Continued Deputy Assistant Administrator for between all NMFS Fisheries Science Authorization and Implementation of Regulatory Programs, National Marine Centers. Mitigation measures could be National Marine Fisheries Service’s Fisheries Service. modified if new data suggest that such Integrated Fisheries Independent For reasons set forth in the preamble, modifications would have a reasonable Monitoring Activities in the Southeast 50 CFR part 219 is amended as follows:

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PART 219—REGULATIONS research gear including trawls, gillnets, group(s) to identify circumstances of a GOVERNING THE TAKING AND and hook and line, and Level B take should it occur and any action IMPORTING OF MARINE MAMMALS harassment associated with use of active necessary to avoid future take. acoustic systems provided the activity is (i) Working groups must be ■ 1. The authority citation for part 219 in compliance with all terms, established if a partner takes more than continues to read as follows: conditions, and requirements of the one marine mammal within 5 years to Authority: 16 U.S.C. 1361 et seq. regulations in this subpart and the identify circumstances of marine ■ relevant LOA. mammal take and necessary action to 2. Add subpart H to read as follows: avoid future take. Each working group Subpart H—Taking Marine Mammals § 219.74 Prohibitions. must meet at least once annually. Incidental to Southeast Fisheries Science Notwithstanding takings (ii) Each working group must consist Center Fisheries Research in the Atlantic contemplated in § 219.73 and of at least one SEFSC representative Ocean, Gulf of Mexico, and Caribbean Sea authorized by an LOA issued under knowledgeable of the mitigation, Sec. §§ 216.106 of this chapter and 219.77, monitoring and reporting requirements 219.71 Specified activity and specified no person in connection with the contained within these regulations, one geographical region. activities described in § 219.71 may: or more research institution or SEFSC 219.72 Effective dates. (a) Violate, or fail to comply with, the representative(s) (preferably 219.73 Permissible methods of taking. terms, conditions, and requirements of researcher(s) aboard vessel when take or 219.74 Prohibitions. 219.75 Mitigation requirements. this subpart or a LOA issued under risk of take occurred), one or more staff 219.76 Requirements for monitoring and §§ 216.106 of this chapter and 219.77; from NMFS Southeast Regional Office reporting. (b) Take any marine mammal species Protected Resources Division, and one 219.77 Letters of Authorization. or stock not specified in the LOA; or more staff from NMFS Office of 219.78 Renewals and modifications of (c) Take any marine mammal in any Protected Resources. Letters of Authorization. manner other than as specified in the (5) When deploying any type of 219.79–219.80 [Reserved] LOA; and sampling gear at sea, SEFSC must at all (d) Take a marine mammal specified times monitor for any unusual Subpart H—Taking Marine Mammals in an LOA in numbers exceeding those circumstances that may arise at a Incidental to Southeast Fisheries authorized. sampling site and use best professional Science Center Fisheries Research in judgment to avoid any potential risks to the Atlantic Ocean, Gulf of Mexico, and § 219.75 Mitigation requirements. marine mammals during use of all Caribbean Sea When conducting the activities research equipment. § 219.71 Specified activity and specified identified in § 219.71, the mitigation (6) SEFSC must implement handling geographical region. measures contained in any LOA issued and/or disentanglement protocols that under §§ 216.106 of this chapter and must be provided to survey personnel. (a) Regulations in this subpart apply 219.77 must be implemented. These During fishery surveys where there is a only to the National Marine Fisheries mitigation measures must include but potential for take, at least two persons Service’s (NMFS) Southeast Fisheries are not limited to: aboard SEFSC ships and one person Science Center (SEFSC) and those (a) General conditions. (1) SEFSC aboard smaller vessels, including persons it authorizes or funds to must take all necessary measures to vessels operated by partners where no conduct fishery-independent research coordinate and communicate in advance SEFSC staff are present, must be trained surveys on its behalf for the taking of of each specific survey with the in marine mammal handling, release, marine mammals that occurs in the area National Oceanic and Atmospheric and disentanglement procedures. outlined in paragraph (b) of this section Administration’s (NOAA) Office of (7) For research surveys using gear and that occurs incidental to SEFSC and Marine and Aviation Operations that has the potential to hook or partner research survey program (OMAO) or other relevant parties on entangle a marine mammal in open- operations. Hereafter, ‘‘SEFSC’’ refers to non-NOAA platforms to ensure that all ocean waters (as defined from the both the SEFSC and all designated mitigation measures and monitoring coastline seaward), the SEFSC must partners. implement move-on rule mitigation (b) The taking of marine mammals by requirements described herein, as well as the specific manner of protocol upon observation of any the SEFSC and partners may be marine mammal other than dolphins authorized in a 5-year Letter of implementation and relevant event- contingent decision-making processes, and porpoises attracted to the vessel Authorization (LOA) only if it occurs (see specific gear types below for marine during fishery research surveys in the are clearly understood and agreed upon; (2) SEFSC must coordinate and mammal monitoring details). Atlantic Ocean, Gulf of Mexico, and conduct briefings at the outset of each Specifically, if one or more marine Caribbean Sea and their associated survey and as necessary between ship’s mammals (other than dolphins and estuaries. crew (Commanding Officer/master or porpoises) are observed near the § 219.72 Effective dates. designee(s), as appropriate) and sampling area and are considered at risk This subpart is effective from June 5, scientific party in order to explain of interacting with the vessel or research 2020, through June 5, 2025. responsibilities, communication gear, or appear to be approaching the procedures, marine mammal monitoring vessel and are considered at risk of § 219.73 Permissible methods of taking. protocol, and operational procedures; interaction, SEFSC must either remain Under an LOA issued pursuant to (3) SEFSC must coordinate, on an onsite or move on to another sampling §§ 216.106 of this chapter and 219.77, annual basis, with all partners to ensure location. If remaining onsite, the set the Holder of the LOA (hereinafter that marine mammal-related must be delayed until the animal(s) ‘‘SEFSC’’) may incidentally, but not requirements, procedures, and decision- depart or appear to no longer be at risk intentionally, take marine mammals making processes are understood and of interacting with the vessel or gear. At within the areas described in § 219.71 properly implemented. such time, the SEFSC may deploy gear. by Level A harassment, serious injury, (4) SEFSC must establish and The SEFSC must use best professional or mortality associated with fisheries maintain cooperating partner working judgment, in accordance with this

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paragraph, in making decisions related safely before trawling is initiated. All immediately depart the area and the to deploying gear. marine mammal sightings must be animal appears to be at-risk of (8) Vessels Operation—While logged and reported per § 219.76 of this entanglement (e.g., interacting with or transiting in areas subjected to the North subpart. on a path towards the net), the SEFSC Atlantic right whale ship strike rule, all (7) The SEFSC must retrieve gear must delay or pull all gear immediately. SEFSC-affiliated research vessels immediately if marine mammals are (d) Hook and line (including longline) (NOAA vessels, NOAA chartered believed to be captured/entangled in a survey mitigation. In addition to the vessels, and research partner vessels) net or associated gear (e.g., lazy line) General Conditions provided in must abide by the required speed and follow disentanglement protocols; paragraph (a) of this section, the restrictions and sighting alert protocols. (8) The SEFSC must minimize following measures must be All NOAA research vessels operating in ‘‘pocketing’’ in areas of trawl nets where implemented during hook and line North Atlantic right whale habitat dolphin depredation evidence is surveys: participate in the Right Whale Early commonly observed; (1) SEFSC must deploy hook and line Warning System. (9) When conducting research under gear as soon as is practicable upon (9) The SEFSC must avoid baiting the an ESA section 10(a)(1)(A) scientific arrival at the sampling station. waters (i.e, chumming) during all research permit issued by NMFS, all (2) SEFSC must initiate marine surveys. marine mammal mitigation and mammal observations (visual (b) Trawl survey mitigation. In monitoring protocol contained within observation) no less than 30 minutes addition to the general conditions that permit must be implemented; prior to gear deployment if sampling is provided in § 219.75(a), the following (10) SEFSC must implement standard conducted in waters greater than 200 m. measures must be implemented during survey protocols to minimize potential If sampling in water less than 200 m, the trawl surveys: for marine mammal interactions, SEFSC must initiate marine mammal (1) SEFSC must conduct fishing including maximum tow durations at observations no less than 15 minutes operations as soon as practicable upon target depth and maximum tow prior to setting gear. Observations must arrival at the sampling station and, if distance, and must carefully empty the be conducted by scanning the practicable, prior to other trawl as quickly as possible upon surrounding waters with the naked eye environmental sampling; retrieval. Trawl nets must be cleaned and range-finding binoculars (or (2) The SEFSC must limit tow times prior to deployment; and monocular) when longlines exceed to 30 minutes (except for sea turtle (11) The SEFSC must continue observation distances using the naked research trawls); investigation into gear modifications eye. During nighttime operations, visual (3) The SEFSC must, during haul (e.g., stiffening lazy lines) and the observation must be conducted using back, open cod end close to deck/sorting effectiveness of gear modification at available vessel lighting. table to avoid damage to animals that avoiding entanglement, as funding (3) SEFSC must implement the move- may be caught in gear and empty gear allows. on rule mitigation protocol, as described as quickly as possible after retrieval (c) Seine net and gillnet survey in paragraph (a)(7) of this section. haul back; mitigation. In addition to the general (4) SEFSC must maintain visual (4) The SEFSC must delay gear conditions provided in paragraph (a) of monitoring effort, where practicable, deployment if any marine mammals are this section, the following measures during the entire period of gear believed to be at risk of interaction; must be implemented during seine and deployment and retrieval. If marine (5) The SEFSC must retrieve gear gillnet surveys: mammals are sighted before the gear is immediately if any marine mammals are (1) Conduct gillnet and trammel net fully deployed or retrieved, SEFSC must believed to be entangled or at risk of research activities during daylight hours take the most appropriate action to entanglement; only. avoid marine mammal interaction. (6) Dedicated marine mammal (2) Limit soak times to the least SEFSC may use best professional observations must occur at least 15 amount of time required to conduct judgment in making this decision. minutes prior to the beginning of net sampling; (5) If gear deployment or fishing has deployment when trawling occurs in (3) Conduct dedicated marine been suspended because of the presence waters less than 200 meters in depth. If mammal observation monitoring of marine mammals, SEFSC may resume trawling occurs in waters deeper than beginning 15 minutes prior to deploying such operations when practicable only 200 m, dedicated marine mammal the gear and continue through when the animals are believed to have observations must occur at least 30 deployment and haulback; departed the area in accordance with minutes prior to net deployment. This (4) Hand-check the net every 30 the move-on rule as described in watch may include approach to the minutes if soak times are longer than 30 paragraph (a)(7) of this section. If sampling station within 0.5 nm. Marine minutes or immediately if disturbance is longline operations have been delayed mammal watches should be conducted observed; because of the presence of protected by systematically scanning the (5) Reduce net slack and excess species, the vessel resumes longline surrounding waters and marsh edge (if floating and trailing lines; operations only when these species visible) 360 degrees around the vessel. (6) Repair damaged nets prior to have not been sighted within 15 If dolphin(s) are sighted and believed to deploying; minutes if in less than 200 m or 30 be at-risk of interaction (e.g., moving in (7) Delay setting net if a marine minutes if greater than 200 m of water, the direction of the vessel/gear; moms/ mammal is deemed to be at-risk of or otherwise determined to no longer be calves close to the gear; etc.), gear entanglement; at risk. SEFSC may use best professional deployment should be delayed until the (8) Pull net immediately if a marine judgment in making this decision. animal(s) are no longer at risk or have mammal is entangled and follow (6) SEFSC must implement standard left the area on their own. If species disentanglement procedures; and survey protocols, including maximum other than dolphins are sighted, (9) If marine mammals are sighted in soak durations and limiting longline trawling must not be initiated and the the sampling area during active netting, length to that necessary. marine mammal(s) must be allowed to the SEFSC must raise and lower the net (7) For pelagic, surface longlines, either leave or pass through the area leadline. If marine mammals do not gangion length must allow hooked

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animals to reach the surface. SEFSC (2) When vessels are transiting, the (4) At least two persons aboard SEFSC must immediately reel in lines if marine SEFSC must maintain marine mammal ships and one person aboard smaller mammals are deemed to be at risk of observations to avoid ship strike. vessels, including vessels operated by interacting with gear. (c) Training. (1) SEFSC must conduct partners where no SEFSC staff are (8) SEFSC must follow existing annual training for all SEFSC and present, must be trained in marine Dolphin Friendly Fishing Tips available affiliate chief scientists and other mammal handling, release, and at http://sero.nmfs.noaa.gov/protected_ personnel who may be responsible for disentanglement procedures. resources/outreach_and_education/ conducting dedicated marine mammal (5) SEFSC must record such data on documents/dolphin_friendly_fishing_ visual observations to explain standardized forms, which will be tips.pdf. mitigation measures, by gear and the subject to approval by OPR. SEFSC must (9) SEFSC must not discard leftover purpose for each measure, and also answer a standard series of bait overboard while actively fishing. monitoring and reporting requirements supplemental questions regarding the (10) SEFSC must inspect tackles daily in the LOA, mitigation and monitoring details of any marine mammal to avoid unwanted line breaks. protocols, and marine mammal interaction. (11) Pull gear immediately if a marine identification and species that the (6) For any marine mammals that are mammal is hooked and follow SEFSC is authorized to incidentally killed during fisheries research disentanglement procedures. take. SEFSC may determine the agenda activities, when practicable, scientists for these trainings. (12) Avoid using stainless steel hooks. will collect data and samples pursuant (2) The training must provide detailed to Appendix D of the SEFSC DEA, (13) For pelagic longline surveys in descriptions of reporting, data ‘‘Protected Species Handling Procedures the Atlantic Ocean, follow the Pelagic collection, and sampling protocols. This for SEFSC Fisheries Research Vessels. Longline Take Reduction Plan and portion of the training will include (e) Reporting. (1) The SEFSC must Longline Marine Mammal Handling and instruction on how to complete new follow protocol for reporting incidental Release Guidelines. data collection forms such as the marine takes: (d) Electrofishing. (1) SEFSC must mammal watch log, the incidental take (i) The SEFSC must notify the implement marine mammal monitoring form (e.g., specific gear configuration Southeast Marine Mammal Stranding 15 minutes prior to the onset of and details relevant to an interaction Network (877–433–8299) immediately electrofishing (this can include with protected species), and forms used following the incidental take of a marine approach to the survey site). If the for species identification and biological mammal. For injured/uninjured marine vessel moves to another survey site, the sampling. The biological data collection mammals, priority should be to release 15 minutes observation period must be and sampling training module will the animal before notifying the repeated. include the same sampling and Stranding Network. (2) SEFSC must implement a 50-m necropsy training that is used for the (ii) The SEFSC must report all marine safety zone. If a marine mammal is Southeast Regional Observer training. mammal gear interaction to NMFS’s observed within 50 m of the vessel or (3) SEFSC must also dedicate a Protected Species Incidental Take on a path toward the vessel, portion of training to discussion of best (PSIT) database within 48 hours of electrofishing must be delayed. professional judgment, including use in occurrence and must provide Electrofishing must not begin until the any incidents of marine mammal supplemental information to OPR and animal is outside of the 50 m safety interaction and instructive examples SERO upon request. Information related zone or on a consistent path away from where use of best professional judgment to marine mammal interaction (animal the vessel. was determined to be successful or captured or entangled in research gear) (3) All samples collected during unsuccessful. must include details of research survey, electrofishing must remain on the vessel (4) SEFSC must coordinate with monitoring conducted prior to and not be discarded until all NMFS’ Office of Science and interaction, full descriptions of any electrofishing is completed to avoid Technology to ensure training and observations of the animals, the context attracting protected species. guidance related to handling procedures (vessel and conditions), decisions made, and data collection is consistent with and rationale for decisions made in § 219.76 Requirements for monitoring and other fishery science centers. reporting. vessel and gear handling. (d) Handling procedures and data (2) The SEFSC must submit a draft (a) Compliance coordination. SEFSC collection. (1) SEFSC must implement annual report to NMFS OPR. The period must designate a compliance standardized marine mammal handling, of reporting must be annual, beginning coordinator who is responsible for disentanglement, and data collection one year post-issuance of any LOA and ensuring and documenting compliance procedures. These standard procedures the report must be submitted not less with all requirements of any LOA issued will be subject to approval by NMFS’ than ninety days following the end of a pursuant to §§ 216.106 of this chapter Office of Protected Resources (OPR). given year. and 219.77 and for preparing for any (2) For any marine mammal (i) SEFSC must provide a final report subsequent request(s) for incidental take interaction involving the release of a within thirty days following resolution authorization. All partners must report live animal, SEFSC must collect of comments on the draft report. to this SEFSC-based compliance necessary data to facilitate a serious (ii) These reports must contain, at coordinator. injury determination. minimum, the following: (b) Visual monitoring program. (1) (3) SEFSC must provide its relevant (A) Annual line-kilometers and Marine mammal visual monitoring must personnel with standard guidance and locations surveyed during which the occur prior to deployment of trawl, net, training regarding handling of marine EK60, ME70, and EQ50 (or equivalent and hook and line gear, respectively; mammals, including how to identify sources) operating below 200 kHz were throughout deployment of gear and different species, bring an individual predominant and associated pro-rated active fishing of research gears (not aboard a vessel, assess the level of estimates of actual take; including longline soak time); prior to consciousness, remove fishing gear, (B) Summary information regarding retrieval of longline gear; and return an individual to water, and log use of all trawl, gillnet, and hook and throughout retrieval of all research gear. activities pertaining to the interaction. line gear, including location, number of

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sets, hook hours, tows, etc., specific to partner, the report must also be (2) Means of effecting the least each gear; submitted to the SEFSC Environmental practicable adverse impact (i.e., (C) Accounts of surveys where marine Compliance Coordinator. The following mitigation) on the species, its habitat, mammals were observed during information must be provided: and on the availability of the species for sampling but no interactions occurred; (i) Time, date, and location (latitude/ subsistence uses; and (D) All incidents of marine mammal longitude) of the incident; (3) Requirements for monitoring and interactions, including circumstances of (ii) Description of the incident reporting. the event and descriptions of any including, but not limited to, (e) Issuance of the LOA must be based mitigation procedures implemented or monitoring prior to and occurring at on a determination that the level of not implemented and why and, if time of incident; taking will be consistent with the released alive, serious injury (iii) Environmental conditions (e.g., findings made for the total taking determinations; wind speed and direction, Beaufort sea allowable under these regulations. (E) Summary information related to state, cloud cover, visibility); (f) Notice of issuance or denial of an any disturbance of marine mammals (iv) Description of all marine mammal LOA must be published in the Federal and distance of closest approach; observations in the 24 hours preceding Register within 30 days of a (F) A written evaluation of the the incident; effectiveness of SEFSC mitigation (v) Species identification or determination. strategies in reducing the number of description of the animal(s) involved; § 219.78 Renewals and modifications of marine mammal interactions with (vi) Status of all sound source or gear Letters of Authorization. survey gear, including gear used in the 24 hours preceding the (a) An LOA issued under §§ 216.106 modifications and best professional incident; of this chapter and 219.77 for the (vii) Water depth; judgment and suggestions for changes to activity identified in § 219.71(a) must be the mitigation strategies, if any; (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured and moving, renewed or modified upon request by (G) A summary of all relevant training the applicant, provided that: provided by SEFSC and any blood or tissue observed in the water, (1) The specified activity and coordination with NMFS Office of status unknown, disappeared, etc.); and mitigation, monitoring, and reporting Science and Technology and the SERO; (ix) Photographs or video footage of (H) A summary of meeting(s) and the animal(s). measures, as well as the anticipated workshop(s) outcomes with any partner (3) In the event of a ship strike of a impacts, are the same as those described working group, including, the South marine mammal by any SEFSC or and analyzed for these regulations Carolina Department of Natural partner vessel involved in the activities (excluding changes made pursuant to Resources, designed to reduce the covered by the authorization, SEFSC or the adaptive management provision in number of marine mammal interactions; partner must immediately report the paragraph (c)(1) of this section), and and information in paragraph (f)(2) of this (2) OPR determines that the (I) A written description of any section, as well as the following mitigation, monitoring, and reporting mitigation research investigation efforts additional information: measures required by the previous LOA and findings (e.g., lazy line (i) Vessel’s speed during and leading under these regulations were modifications). up to the incident; implemented. (f) Reporting of injured or dead (ii) Vessel’s course/heading and what (b) For an LOA modification or marine mammals. (1) In the operations were being conducted; renewal requests by the applicant that unanticipated event that the activity (iii) Status of all sound sources in use; include changes to the activity or the defined in § 219.71(a) clearly causes the (iv) Description of avoidance mitigation, monitoring, or reporting take of a marine mammal in a measures/requirements that were in (excluding changes made pursuant to prohibited manner, SEFSC personnel place at the time of the strike and what the adaptive management provision in engaged in the research activity must additional measures were taken, if any, paragraph (c)(1) of this section) that do immediately cease such activity until to avoid strike; not change the findings made for the (v) Estimated size and length of such time as an appropriate decision regulations or result in no more than a animal that was struck; and regarding activity continuation can be minor change in the total estimated (vi) Description of the behavior of the made by the SEFSC Director (or number of takes (or distribution by marine mammal immediately preceding designee). The incident must be species or years), OPR may publish a and following the strike. reported immediately to OPR and SERO. notice of proposed LOA in the Federal OPR and SERO will review the § 219.77 Letters of Authorization. Register, including the associated circumstances of the prohibited take (a) To incidentally take marine analysis of the change, and solicit and work with SEFSC to determine mammals pursuant to these regulations, public comment before issuing the LOA. what measures are necessary to SEFSC must apply for and obtain an (c) An LOA issued under §§ 216.106 minimize the likelihood of further LOA. of this chapter and 219.77 for the prohibited take. The immediate decision (b) An LOA, unless suspended or activity identified in § 219.71(a) may be made by SEFSC regarding continuation revoked, may be effective for a period of modified by OPR under the following of the specified activity is subject to time not to exceed the expiration date circumstances: OPR concurrence. The report must of these regulations. (1) Adaptive management. OPR may include the information included in (c) In the event of projected changes modify or augment the existing paragraph (f)(2) of this section. to the activity or to mitigation and mitigation, monitoring, or reporting (2) SEFSC or partner must report all monitoring measures required by an measures (after consulting with SEFSC injured or dead marine mammals LOA, SEFSC must apply for and obtain regarding the practicability of the observed during fishery research a modification of the LOA as described modifications) if doing so creates a surveys that are not attributed to the in § 219.78. reasonable likelihood of more specified activity to the Southeast (d) The LOA must set forth: effectively accomplishing the goals of Regional Stranding Coordinator within (1) Permissible methods of incidental the mitigation and monitoring set forth 24 hours. If the discovery is made by a taking; in the preamble for these regulations.

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(i) If, through adaptive management, (2) Emergencies. If OPR determines notice or opportunity for public the modifications to the mitigation, that an emergency exists that poses a comment. Notification would be monitoring, or reporting measures are significant risk to the well-being of the published in the Federal Register substantial, OPR will publish species or stocks of marine mammals within 30 days of the action. notification of proposed LOA in the specified in LOAs issued pursuant to §§ 219.79–219.80 [Reserved] Federal Register and solicit public §§ 216.106 of this chapter and 219.77, comment. an LOA may be modified without prior [FR Doc. 2020–07933 Filed 5–5–20; 8:45 am] (ii) [Reserved] BILLING CODE 3510–22–P

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Part III

Department of Defense General Services Administration National Aeronautics and Space Administration

48 CFR Chapter 1 Federal Acquisition Regulations; Final Rules

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DEPARTMENT OF DEFENSE and National Aeronautics and Space ADDRESSES: The FAC, including the Administration (NASA). SECG, is available via the internet at GENERAL SERVICES ACTION: http://www.regulations.gov. ADMINISTRATION Summary presentation of final rules. FOR FURTHER INFORMATION CONTACT: The NATIONAL AERONAUTICS AND analyst whose name appears in the table SUMMARY: This document summarizes SPACE ADMINISTRATION below in relation to the FAR case. For the Federal Acquisition Regulation information pertaining to status or (FAR) rules agreed to by the Civilian 48 CFR Chapter 1 publication schedules, contact the Agency Acquisition Council and the Regulatory Secretariat Division at 202– Defense Acquisition Regulations [Docket No. FAR–2020–0051, Sequence No. 501–4755. 2] Council (Councils) in this Federal Acquisition Circular (FAC) 2020–06. A Federal Acquisition Regulation; companion document, the Small Entity Federal Acquisition Circular 2020–06; Compliance Guide (SECG), follows this Introduction FAC. AGENCY: Department of Defense (DoD), DATES: For effective date see the General Services Administration (GSA), separate documents, which follow.

RULE LISTED IN FAC 2020–06

Item Subject FAR case Analyst

I ...... Revocation of Executive Order on Nondisplacement of Qualified Workers ...... 2020–001 Delgado. II ...... Applicability of Inflation Adjustments of Acquisition-Related Thresholds ...... 2018–007 Delgado. III ...... Tax on Certain Foreign Procurement ...... 2016–013 Delgado. IV ...... Technical Amendments.

SUPPLEMENTARY INFORMATION: Item II—Applicability of Inflation Item IV—Technical Amendments Summaries for each FAR rule follow. Adjustments of Acquisition-Related For the actual revisions and/or Thresholds (FAR Case 2018–007) Editorial changes are made at FAR amendments made by these FAR rules, 4.1102, 19.102, 25.301–1, 25.301–4, refer to the specific item numbers and This final rule makes inflation 52.219–28, 52.223–15, and 52.225–19. subjects set forth in the documents adjustments of statutory acquisition- Federal Acquisition Circular (FAC) 2020– following these item summaries. FAC related thresholds under 41 U.S.C. 1908 06 is issued under the authority of the 2020–06 amends the FAR as follows: applicable to existing contracts and Secretary of Defense, the Administrator of subcontracts in effect on the date of the General Services, and the Administrator of Item I—Revocation of Executive Order adjustment. It implements section 821 National Aeronautics and Space on Nondisplacement of Qualified of the National Defense Authorization Administration. Workers (FAR Case 2020–001) Act for Fiscal Year 2018. Unless otherwise specified, all Federal This final rule removes subpart 22.12, This final rule will not have a Acquisition Regulation (FAR) and other directive material contained in FAC 2020–06 entitled ‘‘Nondisplacement of Qualified significant economic impact on a is effective May 6, 2020 except for Items I, Workers Under Service Contracts’’, and substantial number of small entities. II, and III, which are effective June 5, 2020. a related contract clause, from the FAR. Item III—Tax on Certain Foreign The final rule applies to service William F. Clark, Procurement (FAR Case 2016–013) contracts which succeed a contract for Director, Office of Government-wide performance by service employees of This final rule withholds a 2 percent Acquisition Policy, Office of Acquisition the same or similar work at the same tax on contract payments made by the Policy, Office of Government-wide Policy. location. It removes a requirement for United States (U.S.) Government to Kim Herrington, service contractors and their foreign persons pursuant to certain Acting Principal Director, Defense Pricing and subcontractors to offer employees of the contracts. This rule applies to Federal Contracting, Department of Defense. predecessor contractor and its Government contracts for goods or Jeffrey A. Koses, subcontractors a right of first refusal of services that are awarded to foreign employment for positions for which persons. It implements the Department Senior Procurement Executive/Deputy CAO, they are qualified. It implements Office of Acquisition Policy, U.S. General of the Treasury final regulations Services Administration. Executive Order 13897 of October 31, published in the Federal Register at 81 2019, Improving Federal Contractor FR 55133 on August 18, 2016, under William G. Roets, II, Operations by Revoking Executive section 5000C of the Internal Revenue Acting Assistant Administrator, Office of Order 13495. This final rule will not Code relating to the 2 percent tax on Procurement, National Aeronautics and have a significant impact on service payments made by the U.S. Government Space Administration. contractors and their subcontractors. to foreign entities pursuant to certain [FR Doc. 2020–07107 Filed 5–5–20; 8:45 am] However, as a result of eliminating the contracts. BILLING CODE 6820–EP–P language in FAR subpart 22.12, there will be fewer requirements imposed on This final rule will not have a contractors to keep records significant economic impact on a demonstrating compliance on successor substantial number of small entities. contractors.

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DEPARTMENT OF DEFENSE to delete references to the revoked E.O. Office of Information and Regulatory 13495, FAR subpart 22.12, and FAR Affairs under section 6(b) of E.O. 12866. GENERAL SERVICES 52.222–17. Contracting officers should This rule is not a major rule under 5 ADMINISTRATION not take any action on any complaints U.S.C. 804. filed under former FAR subpart 22.12. NATIONAL AERONAUTICS AND The Department of Labor (DOL) V. Executive Order 13771 SPACE ADMINISTRATION rescinded its implementing regulations on January 31, 2020 (85 FR 5567). This rule is not subject to E.O. 13771, 48 CFR Parts 1, 2, 22, and 52 because this rule is not a significant II. Applicability to Contracts at or regulatory action under E.O. 12866. [FAC 2020–06; FAR Case 2020–001; Item Below the Simplified Acquisition I; Docket No. FAR–2020–0001; Sequence Threshold and for Commercial Items, VI. Regulatory Flexibility Act No. 1] Including Commercially Available Off- Because a notice of proposed the-Shelf Items RIN 9000–AO03 rulemaking and an opportunity for This rule does not add any new public comment are not required to be Federal Acquisition Regulation: solicitation provisions or clauses. The given for this rule under 41 U.S.C. Revocation of Executive Order on FAR rule removes a requirement for Nondisplacement of Qualified Workers 1707(a)(1) (see section III. of this service contractors and their preamble), the analytical requirements AGENCY: Department of Defense (DoD), subcontractors to offer employees of the of the Regulatory Flexibility Act (5 predecessor contractor and its General Services Administration (GSA), U.S.C. 601 et seq.) are not applicable. subcontractors a right of first refusal of and National Aeronautics and Space Accordingly, no regulatory flexibility Administration (NASA). employment for positions for which they are qualified. analysis is required and none has been ACTION: Final rule. prepared. III. Publication of This Final Rule for SUMMARY: DoD, GSA, and NASA are Public Comment Is Not Required by VII. Paperwork Reduction Act issuing a final rule amending the Statute Federal Acquisition Regulation (FAR) to The Paperwork Reduction Act (44 remove the FAR subpart on The statute that applies to the U.S.C. Chapter 35) applies. The FAR nondisplacement of qualified workers. publication of the FAR is the Office of rule information collection This final rule implements an Executive Federal Procurement Policy statute requirements were collected under the order which revoked the previous (codified at Title 41 of the United States approval authority granted to the DOL Executive order on this topic. Code). Specifically, 41 U.S.C. 1707(a)(1) Wage and Hour Division currently requires that a procurement policy, cleared by the Office of Management DATES: Effective: June 5, 2020. regulation, procedure, or form FOR FURTHER INFORMATION CONTACT: Ms. and Budget (OMB) under 44 U.S.C. (including an amendment or 3501, et seq., under OMB control Zenaida Delgado, Procurement Analyst, modification thereof) must be published number 1235–0025, Nondisplacement of at 202–969–7207 or zenaida.delgado@ for public comment if it relates to the Qualified Workers Under Service gsa.gov for clarification of content. For expenditure of appropriated funds and Contracts, Executive Order 13495. The information pertaining to status or has either a significant effect beyond the publication schedules, contact the internal operating procedures of the Wage and Hour Division has requested Regulatory Secretariat Division at 202– agency issuing the policy, regulation, a discontinuation of this collection as a 501–4755. Please cite FAC 2020–06, procedure, or form, or has a significant result of E.O. 13897. FAR Case 2020–001. cost or administrative impact on List of Subjects in 48 CFR Parts 1, 2, 22, SUPPLEMENTARY INFORMATION: contractors or offerors. This final rule is and 52 not required to be published for public I. Background comment, because it is simply removing Government procurement. DoD, GSA, and NASA are issuing a a requirement that has become obsolete final rule amending the FAR to as a result of an executive action that William F. Clark, implement Executive Order (E.O.) 13897 compelled the Federal Acquisition Director, Office of Government-wide of October 31, 2019, Improving Federal Regulatory Council to rescind the Acquisition Policy, Office of Acquisition Contractor Operations by Revoking requirement. See section 2 of E.O. Policy, Office of Government-wide Policy. Executive Order 13495 (published in the 13897. Therefore, DoD, GSA, and NASA Federal Register on November 5, 2019, IV. Executive Orders 12866 and 13563 amend 48 CFR parts 1, 2, 22, and 52 as at 84 FR 59709). E.O. 13897 revokes set forth below: E.O. 13495 of January 30, 2009, E.O.s 12866 and 13563 direct agencies Nondisplacement of Qualified Workers to assess all costs and benefits of ■ 1. The authority citation for 48 CFR Under Service Contracts. available regulatory alternatives and, if parts 1, 2, 22, and 52 continues to read E.O. 13495 required service regulation is necessary, to select as follows: contractors and their subcontractors to regulatory approaches that maximize offer employees of the predecessor net benefits (including potential Authority: 40 U.S.C. 121(c); 10 U.S.C. contractor and its subcontractors a right economic, environmental, public health chapter 137; and 51 U.S.C. 20113. of first refusal of employment for and safety effects, distributive impacts, PART 1—FEDERAL ACQUISITION positions for which they are qualified. and equity). E.O. 13563 emphasizes the REGULATIONS SYSTEM This final rule amends the FAR to importance of quantifying both costs delete FAR subpart 22.12 in its entirety and benefits, of reducing costs, of 1.106 [Amended] as well as the corresponding clause at harmonizing rules, and of promoting FAR 52.222–17, Nondisplacement of flexibility. This rule is not a significant ■ 2. Amend section 1.106 by removing Qualified Workers. FAR 1.106, 2.101, regulatory action, and therefore, this from the table the entries ‘‘22.12’’ and and clause 52.212–5 are also amended rule was not subject to the review of the ‘‘52.222–17’’.

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PART 2—DEFINITIONS OF WORDS DEPARTMENT OF DEFENSE Wage Rate Requirements statute (Davis- AND TERMS Bacon Act), Service Contract Labor GENERAL SERVICES Standards statute, and trade agreements 2.101 [Amended] ADMINISTRATION thresholds. See FAR 1.109. The last FAR case that raised the thresholds for ■ 3. Amend section 2.101(b) in the NATIONAL AERONAUTICS AND inflation was 2014–022, a final rule definition ‘‘United States’’ by removing SPACE ADMINISTRATION published on July 2, 2015, effective paragraph (4) and redesignating October 1, 2015. The next inflation paragraphs (5) through (12) as 48 CFR Parts 1, 5, 8, 9, 12, 13, 15, 19, adjustment under 41 U.S.C. 1908 will be paragraphs (4) through (11). 22, 25, 30, 50, and 52 implemented through FAR Case 2019– 013 and planned to be effective October PART 22—APPLICATION OF LABOR [FAC 2020–06; FAR Case 2018–007; Item 1, 2020. One respondent submitted LAWS TO GOVERNMENT II; Docket No. FAR–2018–0007; Sequence No. 1] comments on the proposed rule. ACQUISITIONS RIN 9000–AN67 II. Discussion and Analysis Subpart 22.12 [Removed and The Civilian Agency Acquisition Federal Acquisition Regulation: Reserved] Council and the Defense Acquisition Applicability of Inflation Adjustments Regulations Council (the Councils) of Acquisition-Related Thresholds ■ 4. Remove and reserve subpart 22.12. reviewed the public comments in the AGENCY: Department of Defense (DoD), development of the final rule. A PART 52—SOLICITATION PROVISIONS General Services Administration (GSA), discussion of the comments is provided AND CONTRACT CLAUSES and National Aeronautics and Space as follows: Administration (NASA). ■ A. Summary of Changes 5. Amend section 52.212–5 by— ACTION: Final rule. ■ a. Revising the date of the clause; There are no changes as a result of SUMMARY: DoD, GSA, and NASA are comments on the proposed rule. ■ b. Removing paragraph (c)(1) and issuing a final rule amending the B. Analysis of Public Comments redesignating paragraphs (c)(2) through Federal Acquisition Regulation (FAR) to (10) as paragraphs (c)(1) through (9); and implement a section of the National Comment: One respondent supported ■ c. Removing paragraph (e)(1)(vi) and Defense Authorization Act for Fiscal the proposed rule and suggested to redesignating paragraphs (e)(1)(vii) Year 2018 to make inflation adjustments include a list, preferably in table form, through (xxiii) as paragraphs (e)(1)(vi) of statutory acquisition-related of the actual calendar dates of threshold through (xxii). thresholds applicable to existing effectiveness. Response: The Councils agree a table The revision reads as follows: contracts and subcontracts in effect on the date of the adjustment that contain might be a helpful reference tool and 52.212–5 Contract Terms and Conditions the revised clauses in this rulemaking. will add one at Acquisition.gov under https://www.acquisition.gov/ Required To Implement Statutes or DATES: Effective: June 5, 2020. Executive Orders—Commercial Items. tableofeffectivedatesforMPTandSAT. FOR FURTHER INFORMATION CONTACT: Ms. The table will only illustrate changes to * * * * * Zenaida Delgado, Procurement Analyst, the micro-purchase and simplified at 202–969–7207 or zenaida.delgado@ Contract Terms and Conditions acquisition thresholds, after they are gsa.gov for clarification of content. For Required To Implement Statutes or implemented through the rulemaking information pertaining to status or process. Executive Orders—Commercial Items publication schedules, contact the (JUN 2020) Regulatory Secretariat Division at 202– C. Other Changes * * * * * 501–4755. Please cite FAC 2020–06, Editorial changes are made to three FAR Case 2018–007. clauses to change the paragraph heading 52.222–17 [Removed and Reserved] SUPPLEMENTARY INFORMATION: of ‘‘Flowdown’’ to ‘‘Subcontracts’’ in ■ 6. Remove and reserve section I. Background order to conform to FAR drafting 52.222–17. conventions. See FAR clauses 52.203– DoD, GSA, and NASA published a 16, paragraph (d); 52.215–23, paragraph [FR Doc. 2020–07108 Filed 5–5–20; 8:45 am] proposed rule in the Federal Register on (f); and 52.226–6, paragraph (e). BILLING CODE 6820–EP–P June 24, 2019, at 84 FR 29482, to make inflation adjustments of statutory III. Applicability to Contracts at or acquisition-related thresholds under 41 Below the Simplified Acquisition U.S.C. 1908 applicable to existing Threshold and for Commercial Items, contracts and subcontracts in effect on Including Commercially Available Off- the date of the adjustment. This FAR the-Shelf Items change implements section 821 of the This rule does not add any new National Defense Authorization Act solicitation provisions or clauses, or (NDAA) for Fiscal Year (FY) 2018 (Pub. impact any existing provisions or L. 115–91). clauses, except for the added references Title 41 U.S.C. 1908, Inflation to acquisition-related thresholds in the adjustment of acquisition-related dollar FAR text. thresholds, requires an adjustment every five years of acquisition-related IV. Executive Orders 12866 and 13563 thresholds for inflation using the Executive Orders (E.O.s) 12866 and Consumer Price Index for all urban 13563 direct agencies to assess all costs consumers, except for the Construction and benefits of available regulatory

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alternatives and, if regulation is certified to meeting the size standard of small Compliance Programs Recordkeeping necessary, to select regulatory for their primary NAICS Code. Therefore, this and Reporting Requirements Under the approaches that maximize net benefits rule may be beneficial to 338,207 small Vietnam Era Veterans’ Readjustment business entities that submit proposals that (including potential economic, may now fall under the micro-purchase Assistance Act of 1974, as Amended; environmental, public health and safety threshold, the simplified acquisition and 1250–0005, Office of Federal effects, distributive impacts, and threshold, or other applicable acquisition Contract Compliance Programs equity). E.O. 13563 emphasizes the thresholds (e.g., contractor code of business Recordkeeping and Reporting importance of quantifying both costs ethics and conduct, reporting executive Requirements Under Rehabilitation Act and benefits, of reducing costs, of compensation and first-tier subcontract of 1973, as Amended Section 503. harmonizing rules, and of promoting awards, equal opportunity for veterans) as a List of Subjects in 48 CFR Parts 1, 5, 8, flexibility. This rule is not a significant result of this rule. The rule does not include additional 9, 12, 13, 15, 19, 22, 25, 30, 50, and 52 regulatory action, and therefore, this reporting or record keeping requirements. rule was not subject to the review of the There are no available alternatives to the Government procurement. Office of Information and Regulatory rule to accomplish the desired objective of William F. Clark, Affairs under section 6(b) of E.O. 12866. the statute. This rule is not a major rule under 5 Director, Office of Government-wide Interested parties may obtain a copy Acquisition Policy, Office of Acquisition U.S.C. 804. of the FRFA from the Regulatory Policy, Office of Government-wide Policy. V. Executive Order 13771 Secretariat Division. The Regulatory Therefore, DoD, GSA, and NASA This rule is not an E.O. 13771 Secretariat Division has submitted a amend 48 CFR parts 1, 5, 8, 9, 12, 13, regulatory action, because this rule is copy of the FRFA to the Chief Counsel 15, 19, 22, 25, 30, 50, and 52 as set forth not significant under E.O. 12866. for Advocacy of the Small Business below: Administration. VI. Regulatory Flexibility Act ■ 1. The authority citation for 48 CFR VII. Paperwork Reduction Act parts 1, 5, 8, 9, 12, 13, 15, 19, 22, 25, DoD, GSA, and NASA have prepared The Paperwork Reduction Act (44 30, 50, and 52 continues to read as a Final Regulatory Flexibility Analysis follows: (FRFA) consistent with the Regulatory U.S.C. Chapter 35) does apply; however, Flexibility Act, 5 U.S.C. 601, et seq. The the changes to the FAR do not impose Authority: 40 U.S.C. 121(c); 10 U.S.C. FRFA is summarized as follows: new information collection chapter 137; and 51 U.S.C. 20113. requirements that require the approval This rule is required to implement section of the Office of Management and Budget PART 1—FEDERAL ACQUISITION 821 of the National Defense Authorization (OMB) under 44 U.S.C. 3501, et seq. The REGULATIONS SYSTEM Act for Fiscal Year (FY) 2018. The objective changes do not impose additional is to make inflation adjustments of statutory ■ information collection requirements to 2. Amend section 1.109 by— acquisition-related thresholds under 41 ■ a. Removing from paragraph (a) ‘‘(CPI) U.S.C. 1908(d) applicable to existing the paperwork burden previously contracts and subcontracts in effect on the approved under the following OMB for all-urban consumers’’ and adding date of the adjustment that contain the Control Numbers: 9000–0007, ‘‘for All Urban Consumers (CPI–U)’’ in revised clauses. Subcontracting Plans; 9000–0018, its place; There were no significant issues raised by Certification Of Independent Price ■ b. Redesignating paragraph (d) as the public in response to the initial Determination, Contractor Code of paragraph (e); regulatory flexibility analysis. Business Ethics and Conduct, and ■ c. Adding new paragraph (d); and This rule will likely affect to some extent ■ d. Removing from the newly all small business concerns that submit offers Preventing Personal Conflicts of or are awarded contracts by the Federal Interest; 9000–0027, Value Engineering designated paragraph (e) ‘‘2014–022’’ Government. Requirements; 9000–0193, FAR Part 9 and adding ‘‘2014–022, open the docket However, this rule is not expected to have Responsibility Matters; 9000–0091, folder, and go to the supporting any significant economic impact on small Anti-Kickback Procedures; 9000–0097, documents file’’ in its place. business concerns because this rule: (1) Is not Federal Acquisition Regulation Part 4 The addition reads as follows: creating any new requirements with which Requirements; 9000–0136, Commercial small entities must comply, and (2) is only 1.109 Statutory acquisition-related dollar establishing the framework to apply the Item Acquisitions; 9000–0034, thresholds—adjustment for inflation. Examination of Records by Comptroller inflation adjustments of statutory acquisition- * * * * * General and Contract Audit; 9000–0013, related thresholds under 41 U.S.C. 1908 to (d) The statute, as amended by section existing contracts and subcontracts in effect Certified Cost or Pricing Data and Data on the date of the adjustment. Any impact on Other Than Certified Cost or Pricing 821 of the National Defense small business concerns will be beneficial by Data; 9000–0048, Authorized Authorization Act for Fiscal Year 2018 preventing burdensome requirements from Negotiators and Integrity of Unit Prices; (Pub. L. 115–91), requires the continuing to apply to smaller dollar value 9000–0078, Certain Federal Acquisition adjustment described in paragraph (a) of contracts when acquisition thresholds are Regulation Part 15 Requirements; 9000– this section be applied to contracts and increased during the period of performance. subcontracts without regard to the date As of September 30, 2017, there were 0096, Patents; 9000–0045, Bid Guarantees, Performance, and Payments of award of the contract or subcontract. 637,791 active entity registrations in Therefore, if a threshold is adjusted for SAM.gov. Of those active entity registrations, Bonds, and Alternative Payment 452,310 (71 percent) completed all four Protection; 9000–0010, Progress inflation as set forth in paragraph (a) of modules of the registration, in accordance Payments, SF 1443; 9000–0149, this section, then the changed threshold with FAR 52.204–7(a)(2), including Subcontract Consent and Contractors’ applies throughout the remaining term Assertions (where they enter their size Purchasing System Review; 1235–0007, of the contract, unless there is a metrics and select their NAICS Codes) and Labor Standards for Federal Service subsequent threshold adjustment. Reps & Certs (where they certify to the * * * * * information they provided and the size Contracts; 1235–0025, Nondisplacement indicator by NAICS). of Qualified Workers Under Service ■ 3. Amend section 1.110 in the table in Of the possible 452,310 active SAM.gov Contracts, Executive Order 13495; paragraph (c) by designating the table as entity registrations, 338,207 (75 percent) 1250–0004, Office of Federal Contract table 1 and revising the entry for

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‘‘Walsh-Healey Public Contracts Act’’ to 1.110 Positive law codification. (c) * * * read as follows: * * * * *

TABLE 1 TO PARAGRAPH (c)

Historical title of act Division/chapter/subchapter Title

******* Walsh-Healey Public Contracts Act 41 U.S.C. chapter 65 ...... Contracts for Materials, Supplies, Articles, and Equipment Exceeding $10,000.

* * * * * 13.003 Policy. contract to a small business under the * * * * * 8(a) Program, HUBZone Program, PART 5—PUBLICIZING CONTRACT (b)(1) Acquisitions of supplies or SDVOSB Program, or WOSB Program. ACTIONS services that have an anticipated dollar * * * * * 5.206 [Amended] value above the micro-purchase ■ 13. Amend section 19.502–1 by threshold, but at or below the simplified ■ revising paragraph (b) to read as follows: 4. Amend section 5.206 by removing acquisition threshold, shall be set aside from paragraph (a)(1) and (2) for small business concerns (see 19.000, 19.502–1 Requirements for setting aside ‘‘$150,000’’ and adding ‘‘the simplified 19.203, and subpart 19.5). acquisitions. acquisition threshold’’ in their places, * * * * * * * * * * respectively. (b) The requirement in paragraph (a) 13.501 [Amended] PART 8—REQUIRED SOURCES OF of this section does not apply to SUPPLIES AND SERVICES ■ 10. Amend section 13.501 by purchases at or below the micro- removing from paragraph (a)(2)(i) purchase threshold, or purchases from 8.1104 [Amended] ‘‘$150,000’’ and adding ‘‘the simplified required sources under part 8 (e.g., ■ 5. Amend section 8.1104 by removing acquisition threshold’’ in its place. Committee for Purchase From People from paragraph (e)(3) ‘‘Exceeding Who are Blind or Severely Disabled). $15,000’’. PART 15—CONTRACTING BY ■ 14. Amend section 19.502–2 by NEGOTIATION revising the second sentence of PART 9—CONTRACTOR paragraph (a) and removing from ■ QUALIFICATIONS 11. Amend section 15.403–4 by paragraph (b) introductory text adding in the introductory text of ‘‘$150,000’’ and adding ‘‘the simplified ■ 6. Amend section 9.405–2 by revising paragraph (a)(1) a new fourth sentence acquisition threshold’’ in its place to the second sentence in the introductory to read as follows: read as follows: text of paragraph (b) to read as follows: 15.403–4 Requiring certified cost or 19.502–2 Total small business set-asides. 9.405–2 Restrictions on subcontracting. pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35). (a) * * * Each acquisition of supplies * * * * * or services that has an anticipated dollar (a)(1) * * * When a clause refers to (b) * * * Contractors are prohibited value above the micro-purchase this threshold, and if the threshold is from entering into any subcontract in threshold, but not over the simplified adjusted for inflation pursuant to excess of $35,000, other than a acquisition threshold, shall be set aside 1.109(a), then pursuant to 1.109(d) the subcontract for a commercially available for small business unless the contracting changed threshold applies throughout off-the-shelf item, with a contractor that officer determines there is not a the remaining term of the contract, has been debarred, suspended, or reasonable expectation of obtaining unless there is a subsequent threshold proposed for debarment, unless there is offers from two or more responsible adjustment. * * * a compelling reason to do so. * * * small business concerns that are * * * * * * * * * * competitive in terms of fair market prices, quality, and delivery. * * * PART 12—ACQUISITION OF PART 19—SMALL BUSINESS COMMERCIAL ITEMS PROGRAMS * * * * * 12.503 [Amended] ■ 12. Amend section 19.203 by revising 19.507 [Amended] ■ ■ 7. Amend section 12.503 by removing paragraph (b) to read as follows: 15. Amend section 19.507 by removing from the first sentence in from paragraph (a)(1) ‘‘$15,000’’ and 19.203 Relationship among small adding ‘‘$10,000’’ in its place. paragraph (e) ‘‘$150,000’’ and adding business programs. ‘‘the simplified acquisition threshold’’ 12.504 [Amended] * * * * * in its place. (b) At or below the simplified ■ 8. Amend section 12.504 by removing acquisition threshold. For acquisitions PART 22—APPLICATION OF LABOR from paragraph (a)(4) ‘‘6505’’ and of supplies or services that have an LAWS TO GOVERNMENT ‘‘$15,000’’ and adding ‘‘chapter 65’’ and anticipated dollar value above the ACQUISITIONS ‘‘$10,000’’ in their places, respectively. micro-purchase threshold, but at or 22.102–2 [Amended] PART 13—SIMPLIFIED ACQUISITION below the simplified acquisition PROCEDURES threshold, the requirement at 19.502– ■ 16. Amend section 22.102–2 by 2(a) to set aside acquisitions for small removing from paragraph (c)(1)(iv) ■ 9. Amend section 13.003 by revising business concerns does not preclude the ‘‘$15,000’’ and adding ‘‘$10,000’’ in its paragraph (b)(1) to read as follows: contracting officer from awarding a place.

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22.202 [Amended] inflation in accordance with 41 U.S.C. this contract that exceed the threshold ■ 17. Amend section 22.202 by 1908. specified in Federal Acquisition Regulation removing from paragraph (a) ‘‘, 3.502–2(i) on the date of subcontract award. PART 50—EXTRAORDINARY Contracts for Materials, Supplies, (End of clause) Articles, and Equipment Exceeding CONTRACTUAL ACTIONS AND THE ■ 30. Amend section 52.203–12 by $15,000’’. SAFETY ACT revising the date of the clause, the first 22.305 [Amended] 50.103–7 [Amended] sentence of paragraph (g)(1), and ■ 18. Amend section 22.305 by ■ 26. Amend section 50.103–7 by paragraph (g)(3) to read as follows: removing from paragraph (e) ‘‘, removing from paragraph (b) ‘‘Exceeding $15,000’’. 52.203–12 Limitation on Payments to Contracts for Materials, Supplies, Influence Certain Federal Transactions. Articles, and Equipment Exceeding PART 52—SOLICITATION PROVISIONS * * * * * $15,000’’. AND CONTRACT CLAUSES ■ 19. Amend subpart 22.6 by revising Limitation on Payments To Influence the subpart heading to read as follows: ■ 27. Amend section 52.202–1 by— Certain Federal Transactions (JUN ■ a. Revising the date of the clause; 2020) Subpart 22.6—Contracts for Materials, ■ b. Removing the word ‘‘or’’ at the end * * * * * Supplies, Articles, and Equipment of paragraph (c); ■ (g) * * * (1) The Contractor shall obtain a c. Removing from paragraph (d) ‘‘FAR declaration, including the certification and 22.602 [Amended] Part’’ and ‘‘procedures.’’ and adding ■ disclosure in paragraphs (c) and (d) of the 20. Amend section 22.602 by ‘‘FAR part’’ and ‘‘procedures; or’’ in provision at FAR 52.203–11, Certification removing ‘‘, Contracts for Materials, their places, respectively; and and Disclosure Regarding Payments to Supplies, Articles, and Equipment ■ d. Adding paragraph (e). Influence Certain Federal Transactions, from Exceeding $15,000’’. The revision and addition read as each person requesting or receiving a follows: subcontract under this contract that exceeds 22.610 [Amended] the threshold specified in FAR 3.808 on the ■ 21. Amend section 22.610 by 52.202–1 Definitions. date of subcontract award.* * * removing ‘‘Exceeding $15,000’’. * * * * * * * * * * (3) The Contractor shall include the 22.1003–3 [Amended] Definitions (JUN 2020) substance of this clause, including this ■ 22. Amend section 22.1003–3 by * * * * * paragraph (g), in any subcontract that removing from paragraph (b) ‘‘, (e) The word or term defines an exceeds the threshold specified in FAR 3.808 Contracts for Materials, Supplies, acquisition-related threshold, and if the on the date of subcontract award. Articles, and Equipment Exceeding threshold is adjusted for inflation as set forth * * * * * $15,000’’. in FAR 1.109(a), then the changed threshold ■ applies throughout the remaining term of the 31. Amend section 52.203–13 by 22.1003–6 [Amended] contract, unless there is a subsequent revising the date of the clause and removing from paragraph (d)(1) ‘‘have a ■ 23. Amend section 22.1003–6(a) threshold adjustment; see FAR 1.109(d). value in excess of $5.5 million’’ and introductory text by: * * * * * ■ a. Removing ‘‘, Contracts for ■ 28. Amend section 52.203–6 by adding ‘‘exceed the threshold specified Materials, Supplies, Articles, and revising the date of the clause and in FAR 3.1004(a) on the date of Equipment Exceeding $15,000,’’; and removing from paragraph (c) subcontract award’’ in its place to read ■ b. Removing ‘‘paragraphs (a)(1) or ‘‘threshold.’’ and adding ‘‘threshold, as as follows: (a)(2) of this subsection’’ and adding defined in Federal Acquisition 52.203–13 Contractor Code of Business ‘‘paragraph (a)(1) or (2) of this section’’ Regulation 2.101 on the date of Ethics and Conduct. in its place. subcontract award.’’ in its place to read * * * * * as follows: PART 25—FOREIGN ACQUISITION Contractor Code of Business Ethics and 52.203–6 Restrictions on Subcontractor Conduct (JUN 2020) 25.703–4 [Amended] Sales to the Government. ■ 24. Amend section 25.703–4 by * * * * * * * * * * removing from paragraphs (c)(5)(ii), ■ 32. Amend section 52.203–14 by (c)(7)(iii), and (c)(8)(iii) ‘‘$3,500’’ and Restrictions on Subcontractor Sales to revising the date of the clause and the adding ‘‘the threshold at 25.703–2(a)(2)’’ the Government (JUN 2020) introductory text of paragraph (d) to in their places, respectively. * * * * * read as follows: ■ 29. Amend section 52.203–7 by 52.203–14 Display of Hotline Poster(s). PART 30—COST ACCOUNTING revising the date of the clause and STANDARDS ADMINISTRATION paragraph (c)(5) and adding an * * * * * undesignated parenthetical phrase at the ■ 25. Revise section 30.201–1 to read as Display of Hotline Poster(s) (JUN 2020) end to read as follows: follows: * * * * * 52.203–7 Anti-Kickback Procedures. (d) Subcontracts. The Contractor shall 30.201–1 CAS applicability. * * * * * include the substance of this clause, (a) See 48 CFR 9903.201–1 (FAR including this paragraph (d), in all appendix). Anti-Kickback Procedures (JUN 2020) subcontracts that exceed the threshold (b) In accordance with 41 U.S.C. specified in Federal Acquisition Regulation * * * * * 1502(b)(1)(B), the threshold for 3.1004(b)(1) on the date of subcontract (c) * * * award, except when the subcontract— determining the tentative applicability (5) The Contractor agrees to incorporate the of CAS at the contract level is the substance of this clause, including this * * * * * amount set forth in 10 U.S.C. paragraph (c)(5) but excepting paragraph ■ 33. Amend section 52.203–16 by 2306a(a)(1)(A)(i), as adjusted for (c)(1) of this clause, in all subcontracts under revising the date of the clause, the

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heading of paragraph (d), and paragraph 52.204–10 Reporting Executive (j) * * * (Applies to all offers that exceed (d)(1) to read as follows: Compensation and First-Tier Subcontract the micro-purchase threshold, and offers at or Awards. below the micro-purchase threshold if the 52.203–16 Preventing Personal Conflicts * * * * * solicitation requires the Contractor to be of Interest. registered in the System for Award * * * * * Reporting Executive Compensation and Management (SAM).) * * * The suffix is First-Tier Subcontract Awards (JUN assigned at the discretion of the Offeror to Preventing Personal Conflicts of 2020) establish additional SAM records for Interest (JUN 2020) identifying alternative EFT accounts (see * * * * * FAR subpart 32.11) for the same entity.* * * * * * * * ■ 36. Amend section 52.209–6 by— ■ * * * * * (d) Subcontracts. *** a. Revising the date of the clause; ■ ■ 39. Amend section 52.212–3 by— (1) That exceed the simplified acquisition b. Removing from paragraph (a)(1)(i) ■ threshold, as defined in Federal Acquisition a. Revising the date of the clause; and ‘‘FAR’’ and adding ‘‘Federal Acquisition ■ b. Removing from paragraph (o)(2)(iii) Regulation 2.101 on the date of subcontract Regulation (FAR)’’ in its place; award; and ■ ‘‘$3,500’’ and adding ‘‘the threshold at c. Removing from paragraphs (b) and FAR 25.703–2(a)(2)’’ in its place. * * * * * (c) ‘‘$35,000’’ and adding ‘‘the threshold The revision reads as follows: ■ 34. Amend section 52.203–17 by— specified in FAR 9.405–2(b) on the date ■ a. Revising the date of the clause; of subcontract award,’’ and ‘‘the 52.212–3 Offeror Representations and threshold specified in FAR 9.405–2(b) Certifications—Commercial Items. ■ b. Removing from paragraph (a) ‘‘FAR on the date of subcontract award’’ in * * * * * 3.908’’ and adding ‘‘Federal Acquisition their places, respectively; and Regulation (FAR) 3.908’’ in its place; ■ d. Revising paragraph (e)(1). Offeror Representations and ■ c. Removing from paragraph (b) The revisions read as follows: Certifications—Commercial Items (JUN ‘‘section 3.908 of the Federal 2020) Acquisition Regulation’’ and adding 52.209–6 Protecting the Government’s Interest When Subcontracting With * * * * * ‘‘FAR 3.908’’ in its place; and ■ Contractors Debarred, Suspended, or 40. Amend section 52.212–5 by— ■ ■ d. Removing from paragraph (c) Proposed for Debarment. a. Revising paragraphs (b)(1), (2), (4), and (8), (b)(17)(i), (iv), and (v), (b)(31)(i), ‘‘threshold.’’ and adding ‘‘threshold, as * * * * * defined in FAR 2.101 on the date of (b)(32)(i), (b)(33) and (44), and (c)(9); subcontract award.’’ in its place. Protecting the Government’s Interest ■ b. Removing from paragraph (d) The revision reads as follows: When Subcontracting With Contractors introductory text ‘‘threshold’’ and Debarred, Suspended, or Proposed for adding ‘‘threshold, as defined in FAR 52.203–17 Contractor Employee Debarment (JUN 2020) 2.101, on the date of award of this Whistleblower Rights and Requirement To contract’’ in its place; Inform Employees of Whistleblower Rights. * * * * * ■ c. Revising paragraph (e)(1)(i); (e) * * * ■ d. Removing from paragraph (e)(1)(v) * * * * * (1) Exceeds the threshold specified in ‘‘$700,000 ($1.5 million for construction FAR 9.405–2(b) on the date of Contractor Employee Whistleblower of any public facility)’’ and adding ‘‘the subcontract award; and Rights and Requirement To Inform applicable threshold specified in FAR Employees of Whistleblower Rights * * * * * 19.702(a) on the date of subcontract (JUN 2020) ■ 37. Amend section 52.210–1 by— ■ award’’ in its place; a. Revising the date of the clause; ■ e. Revising paragraphs (e)(1)(i) * * * * * ■ b. In paragraph (a), removing from the through (x) and the first sentence of ■ 35. Amend section 52.204–10 by— definition of ‘‘Commercial item’’ and ■ paragraph (xxi); and a. Revising the date of the clause; ‘‘nondevelopmental item’’ the word ■ f. In Alternate II, revising the date of ■ b. Removing from paragraph (d)(1) ‘‘Regulation’’ and adding ‘‘Regulation the alternate, paragraphs (e)(1)(ii)(A), introductory text ‘‘FAR provision’’ and (FAR)’’ in its place; and (E), (H), and (I), and the first sentence ■ c. Removing from the introductory adding ‘‘Federal Acquisition Regulation of paragraph (e)(1)(ii)(T). (FAR) provision’’ in its place; text of paragraph (b) ‘‘threshold’’ and The revisions read as follows: ■ c. Removing from paragraph (d)(2) adding ‘‘threshold, as defined in FAR introductory text ‘‘contracting officer’’ 2.101 on the date of subcontract award,’’ 52.212–5 Contract Terms and Conditions Required To Implement Statutes or and ‘‘with a value of $30,000 or more’’ in its place. The revision reads as follows: Executive Orders—Commercial Items. and adding ‘‘Contracting Officer’’ and * * * * * ‘‘valued at or above the threshold 52.210–1 Market Research. (b) * * * specified in FAR 4.1403(a) on the date * * * * * ll(1) 52.203–6, Restrictions on of subcontract award’’ in their places, Market Research (JUN 2020) Subcontractor Sales to the Government respectively; (JUN 2020), with Alternate I (OCT 1995) ■ d. Removing from paragraph (d)(3) * * * * * (41 U.S.C. 4704 and 10 U.S.C. 2402). introductory text ‘‘with a value of ■ 38. Amend section 52.212–1 by ll(2) 52.203–13, Contractor Code of $30,000 or more’’ and adding ‘‘valued at revising the date of the clause and the Business Ethics and Conduct (JUN 2020) or above the threshold specified in FAR first and fifth sentences of paragraph (j) (41 U.S.C. 3509). to read as follows: 4.1403(a) on the date of subcontract * * * * * award’’ in its place; and 52.212–1 Instructions to Offerors— ll(4) 52.204–10, Reporting ■ e. Removing from paragraph (e) ‘‘less Commercial Items. Executive Compensation and First-Tier than $30,000’’ and adding ‘‘below the * * * * * Subcontract Awards (JUN 2020) (Pub. L. threshold specified in FAR 4.1403(a), on 109–282) (31 U.S.C. 6101 note). Instructions to Offerors—Commercial the date of subcontract award,’’ in its * * * * * place. Items (JUN 2020) ll(8) 52.209–6, Protecting the The revision reads as follows: * * * * * Government’s Interest When

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Subcontracting with Contractors (E) 52.219–8, Utilization of Small Equipment (JUN 2020) (41 U.S.C. Debarred, Suspended, or Proposed for Business Concerns (OCT 2018) (15 chapter 65) (Applies to supply contracts Debarment. (JUN 2020) (31 U.S.C. 6101 U.S.C. 637(d)(2) and (3)), in all over the threshold specified in FAR note). subcontracts that offer further 22.602 on the date of award of this * * * * * subcontracting opportunities. If the contract, in the United States, Puerto ll(17)(i) 52.219–9, Small Business subcontract (except subcontracts to Rico, or the U.S. Virgin Islands). Subcontracting Plan (JUN 2020) (15 small business concerns) exceeds the (iv) 52.222–35, Equal Opportunity for U.S.C. 637(d)(4)). applicable threshold specified in FAR Veterans (JUN 2020) (38 U.S.C. 4212) * * * * * 19.702(a) on the date of subcontract (Applies to contracts valued at or above ll(iv) Alternate III (JUN 2020) of award, the subcontractor must include the threshold specified in FAR 52.219–9. 52.219–8 in lower tier subcontracts that 22.1303(a) on the date of award of this ll(v) Alternate IV (JUN 2020) of offer subcontracting opportunities. contract). 52.219–9. * * * * * (v) 52.222–36, Equal Employment for * * * * * (H) 52.222–35, Equal Opportunity for Workers with Disabilities (JUN 2020) ll(31)(i) 52.222–35, Equal Veterans (JUN 2020) (38 U.S.C. 4212). (29 U.S.C. 793) (Applies to contracts (I) 52.222–36, Equal Opportunity for Opportunity for Veterans (JUN 2020) (38 over the threshold specified in FAR Workers with Disabilities (JUN 2020) U.S.C. 4212). 22.1408(a) on the date of award of this (29 U.S.C. 793). * * * * * contract, unless the work is to be * * * * * ll(32)(i) 52.222–36, Equal performed outside the United States by (T) 52.226–6, Promoting Excess Food Opportunity for Workers with employees recruited outside the United Donation to Nonprofit Organizations. Disabilities (JUN 2020) (29 U.S.C. 793). States). * * * (JUN 2020) (42 U.S.C. 1792). * * * * * * * * (vi) 52.222–37, Employment Reports * * * * * ll(33) 52.222–37, Employment on Veterans (JUN 2020)(38 U.S.C. 4212) ■ 41. Amend section 52.213–4 by— (Applies to contracts valued at or above Reports on Veterans (JUN 2020) (38 ■ a. Revising the date of the clause; the threshold specified in FAR U.S.C. 4212). ■ b. Adding a period to the end of 22.1303(a) on the date of award of this * * * * * paragraph (a)(2)(iv); contract). ll(44) 52.223–18, Encouraging ■ c. Revising paragraphs (a)(2)(viii) and Contractor Policies to Ban Text (b)(1)(i) through (iv), the first sentence * * * * * Messaging While Driving (JUN 2020) of paragraph (b)(1)(v), and paragraph (xviii) 52.226–6, Promoting Excess (E.O. 13513). (b)(1)(vi); Food Donation to Nonprofit * * * * * ■ d. Removing from paragraph Organizations (JUN 2020) (42 U.S.C. (c) * * * (b)(1)(xvii) introductory text 1792) (Applies to contracts greater than ll(9) 52.226–6, Promoting Excess ‘‘threshold’’ and adding ‘‘threshold, as the threshold specified in FAR 26.404 Food Donation to Nonprofit defined in FAR 2.101 on the date of on the date of award of this contract, Organizations (JUN 2020) (42 U.S.C. award of this contract,’’ in its place; and that provide for the provision, the 1792). ■ e. Revising paragraphs (b)(1)(xviii) service, or the sale of food in the United * * * * * and (b)(2)(ii). States). (e)(1) * * * The revisions read as follows: * * * * * (i) 52.203–13, Contractor Code of 52.213–4 Terms and Conditions— (2) * * * Business Ethics and Conduct (JUN 2020) Simplified Acquisitions (Other Than (ii) 52.209–6, Protecting the (41 U.S.C. 3509). Commercial Items). Government’s Interest When * * * * * * * * * * Subcontracting with Contractors (viii) 52.222–35, Equal Opportunity Terms and Conditions—Simplified Debarred, Suspended, or Proposed for for Veterans (JUN 2020) (38 U.S.C. Acquisitions (Other Than Commercial Debarment (JUN 2020) (Applies to 4212). Items) (JUN 2020) contracts over the threshold specified in (ix) 52.222–36, Equal Opportunity for (a) * * * FAR 9.405–2(b) on the date of award of Workers with Disabilities (JUN 2020) (2) * * * this contract). (29 U.S.C. 793). (viii) 52.244–6, Subcontracts for * * * * * (x) 52.222–37, Employment Reports Commercial Items (JUN 2020) (b) * * * ■ 42. Amend section 52.214–26 by on Veterans (JUN 2020) (38 U.S.C. revising the date of the clause and 4212). (1) * * * (i) 52.204–10, Reporting Executive paragraph (e) to read as follows: * * * * * Compensation and First-Tier (xxi) 52.226–6, Promoting Excess 52.214–26 Audit and Records—Sealed Subcontract Awards (JUN 2020) (Pub. L. Bidding. Food Donation to Nonprofit 109–282) (31 U.S.C. 6101 note) (Applies * * * * * Organizations (JUN 2020) (42 U.S.C. to contracts valued at or above the 1792). * * * threshold specified in FAR 4.1403(a) on Audit and Records—Sealed Bidding * * * * * the date of award of this contract). (JUN 2020) Alternate II (JUN 2020). * * * (ii) 52.222–19, Child Labor— * * * * * Cooperation with Authorities and * * * * * (e) Subcontracts. The Contractor shall Remedies (JAN 2020) (E.O. 13126) insert a clause containing all the provisions (e)(1) * * * (Applies to contracts for supplies of this clause, including this paragraph (e), in (ii) ***** exceeding the micro-purchase all subcontracts expected to exceed the (A) 52.203–13, Contractor Code of threshold, as defined in FAR 2.101 on threshold for submission of certified cost or Business Ethics and Conduct (JUN 2020) the date of award of this contract). pricing data in FAR 15.403–4(a)(1) on the (41 U.S.C. 3509). (iii) 52.222–20, Contracts for date of subcontract award. * * * * * Materials, Supplies, Articles, and * * * * *

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■ 43. Amend section 52.214–27 by 52.215–2 Audit and Records—Negotiation. certified cost or pricing data in FAR 15.403– revising the date of the clause and * * * * * 4(a)(1), the Contractor shall insert either— paragraph (a) to read as follows: * * * * * Audit and Records—Negotiation (JUN ■ 48. Amend section 52.215–13 by— 52.214–27 Price Reduction for Defective 2020) ■ Certified Cost or Pricing Data— a. Revising the date of the clause and Modifications—Sealed Bidding. * * * * * paragraphs (a)(1) and (b); and ■ 46. Amend section 52.215–11 by ■ * * * * * b. Removing from paragraph (d) ‘‘at revising the date of the clause and FAR 15.403–4’’ and adding ‘‘in FAR Price Reduction for Defective Certified paragraph (a) to read as follows: 15.403–4(a)(1)’’ in its place. Cost or Pricing Data—Modifications— 52.215–11 Price Reduction for Defective The revisions read as follows: Sealed Bidding (JUN 2020) Certified Cost or Pricing Data— 52.215–13 Subcontractor Certified Cost or Modifications. (a) This clause shall become operative only Pricing Data—Modifications. for any modification to this contract * * * * * involving aggregate increases and/or * * * * * Price Reduction for Defective Certified decreases in costs, plus applicable profits, Subcontractor Certified Cost or Pricing Cost or Pricing Data—Modifications expected to exceed the threshold for the Data—Modifications (JUN 2020) submission of certified cost or pricing data in (JUN 2020) (a) * * * Federal Acquisition Regulation (FAR) (a) This clause shall become operative only 15.403–4(a)(1) on the date of execution of the for any modification to this contract (1) Become operative only for any modification, except that this clause does not involving a pricing adjustment expected to modification to this contract involving a apply to a modification if an exception under exceed the threshold for submission of pricing adjustment expected to exceed FAR 15.403–1(b) applies. certified cost or pricing data in Federal the threshold for submission of certified * * * * * Acquisition Regulation (FAR) 15.403–4(a)(1) cost or pricing data in Federal ■ 44. Amend section 52.214–28 by— on the date of execution of the modification, Acquisition Regulation (FAR) 15.403– ■ a. Revising the date of the clause; except that this clause does not apply to any modification if an exception under FAR 4(a)(1) on the date of execution of the ■ b. Removing from paragraph (a)(1) ‘‘at 15.403–1(b) applies. modification; and (FAR) 48 CFR 15.403–4(a)(1)’’ and * * * * * * * * * * adding ‘‘in Federal Acquisition ■ 47. Amend section 52.215–12 by (b) Before awarding any subcontract Regulation (FAR) 15.403–4(a)(1) on the revising the date of the clause and expected to exceed the threshold for date of execution of the modification’’ paragraphs (a) and (c) introductory text submission of certified cost or pricing in its place; to read as follows: data in FAR 15.403–4(a)(1), on the date ■ c. Removing from paragraph (b) ‘‘at of agreement on price or the date of FAR 15.403–4(a)(1)’’ everywhere it 52.215–12 Subcontractor Certified Cost or award, whichever is later; or before appears and adding ‘‘in FAR 15.403– Pricing Data. pricing any subcontract modification 4(a)(1)’’ in its place and adding a * * * * * involving a pricing adjustment expected sentence to the end of the paragraph; Subcontractor Certified Cost or Pricing to exceed the threshold for submission and Data (JUN 2020) of certified cost or pricing data in FAR ■ d. Removing from paragraph (d) ‘‘at 15.403–4(a)(1), the Contractor shall FAR 15.403–4(a)(1)’’ and adding ‘‘in (a) Before awarding any subcontract require the subcontractor to submit FAR 15.403–4(a)(1)’’ in its place. expected to exceed the threshold for certified cost or pricing data (actually or submission of certified cost or pricing data in The revision and addition read as Federal Acquisition Regulation (FAR) by specific identification in writing), in follows: 15.403–4(a)(1), on the date of agreement on accordance with FAR 15.408, Table 15– price or the date of award, whichever is later; 2 (to include any information 52.214–28 Subcontractor Certified Cost or or before pricing any subcontract Pricing Data—Modifications—Sealed reasonably required to explain the modification involving a pricing adjustment Bidding. subcontractor’s estimating process such expected to exceed the threshold for as the judgmental factors applied and * * * * * submission of certified cost or pricing data in the mathematical or other methods used FAR 15.403–4(a)(1), the Contractor shall Subcontractor Certified Cost or Pricing require the subcontractor to submit certified in the estimate, including those used in Data—Modifications—Sealed Bidding cost or pricing data (actually or by specific projecting from known data, and the (JUN 2020) identification in writing), in accordance with nature and amount of any contingencies * * * * * FAR 15.408, Table 15–2 (to include any included in the price), unless an information reasonably required to explain (b) * * * If the threshold for submission of exception under FAR 15.403–1(b) the subcontractor’s estimating process such certified cost or pricing data specified in FAR applies. If the threshold for submission as the judgmental factors applied and the of certified cost or pricing data specified 15.403–4(a)(1) is adjusted for inflation as set mathematical or other methods used in the forth in FAR 1.109(a), then pursuant to FAR estimate, including those used in projecting in FAR 15.403–4(a)(1) is adjusted for 1.109(d) the changed threshold applies from known data, and the nature and amount inflation as set forth in FAR 1.109(a), throughout the remaining term of the of any contingencies included in the price), then pursuant to FAR 1.109(d) the contract, unless there is a subsequent unless an exception under FAR 15.403–1(b) changed threshold applies throughout threshold adjustment. applies. If the threshold for submission of the remaining term of the contract, * * * * * certified cost or pricing data specified in FAR unless there is a subsequent threshold ■ 45. Amend section 52.215–2 by— 15.403–4(a)(1) is adjusted for inflation as set adjustment. ■ a. Revising the date of the clause; and forth in FAR 1.109(a), then pursuant to FAR 1.109(d) the changed threshold applies * * * * * ■ b. Removing from paragraph (g) throughout the remaining term of the ■ 49. Amend section 52.215–14 by introductory text ‘‘threshold’’ and contract, unless there is a subsequent revising the date of the clause and adding ‘‘threshold, as defined in FAR threshold adjustment. paragraph (c) to read as follows: 2.101 on the date of subcontract award,’’ * * * * * in its place. (c) In each subcontract that, when entered 52.215–14 Integrity of Unit Prices. The revision reads as follows: into, exceeds the threshold for submission of * * * * *

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Integrity of Unit Prices (JUN 2020) subcontracts under this contract that exceed Small Business Subcontracting Plan the simplified acquisition threshold, as (JUN 2020) * * * * * defined in FAR 2.101 on the date of (c) The Contractor shall insert the subcontract award, except if the contract is * * * * * substance of this clause, less paragraph (b) of with DoD, then insert in all cost- (b) * * * this clause, in all subcontracts for other than: reimbursement subcontracts and fixed-price Commercial item means a product or acquisitions at or below the simplified subcontracts, except those identified in FAR service that satisfies the definition of acquisition threshold, as defined in Federal 15.408(n)(2)(i)(B)(2), that exceed the commercial item in Federal Acquisition Acquisition Regulation (FAR) 2.101 on the threshold for obtaining cost or pricing data in Regulation (FAR) 2.101. date of subcontract award; construction or FAR 15.403–4(a)(1) on the date of * * * * * architect-engineer services under FAR part subcontract award. 36; utility services under FAR part 41; Alternate III (JUN 2020). * * * * * * * * services where supplies are not required; * * * * * commercial items; and petroleum products. ■ 52. Amend section 52.219–9 by— ■ a. Revising the date of the clause; * * * * * Alternate IV (JUN 2020). * * * ■ b. In paragraph (b), revising the ■ 50. Amend section 52.215–21 by * * * * * definition of ‘‘Commercial item’’; ■ 53. Amend section 52.222–20 by revising the date of the clause and the ■ c. Removing from paragraph (d)(9) revising the section heading, the clause introductory text of paragraph (a)(1) to ‘‘$700,000 ($1.5 million for construction heading, and the introductory text of the read as follows: of any public facility)’’ and adding ‘‘the clause to read as follows: 52.215–21 Requirements for Certified Cost applicable threshold specified in FAR or Pricing Data and Data Other Than 19.702(a) on the date of subcontract 52.222–20 Contracts for Materials, Certified Cost or Pricing Data— award,’’ in its place; Supplies, Articles, and Equipment. Modifications. ■ d. Removing from paragraph * * * * * * * * * * (d)(11)(iii) introductory text ‘‘$150,000’’ and adding ‘‘the simplified acquisition Contracts for Materials, Supplies, Requirements for Certified Cost or threshold, as defined in FAR 2.101 on Articles, and Equipment (JUN 2020) Pricing Data and Data Other Than the date of subcontract award’’ in its If this contract is for the manufacture or Certified Cost or Pricing Data— place; furnishing of materials, supplies, articles or Modifications (JUN 2020) ■ e. Removing from the first sentence of equipment in an amount that exceeds or may (a) * * * (1) In lieu of submitting certified paragraph (e)(6) ‘‘threshold’’ and adding exceed the threshold specified in Federal cost or pricing data for modifications under ‘‘threshold, as defined in FAR 2.101 on Acquisition Regulation 22.602 on the date of this contract, for price adjustments expected the date of subcontract award,’’ in its award of this contract, and is subject to 41 to exceed the threshold set forth in Federal place; U.S.C. chapter 65, the following terms and conditions apply: Acquisition Regulation (FAR) 15.403–4(a)(1) ■ f. Removing from paragraph (i) on the date of the agreement on price or the ‘‘threshold in’’ and adding ‘‘threshold in * * * * * date of the award, whichever is later, the ■ 54. Amend section 52.222–35 by— Contractor may submit a written request for FAR’’ in its place; ■ ■ exception by submitting the information g. Removing from paragraph a. Revising the date of the clause; described in paragraphs (a)(1)(i) and (ii) of (l)(2)(i)(C) ‘‘$700,000 (over $1.5 million ■ b. Removing from paragraph (a), in the this clause. If the threshold for submission of for construction of a public facility) definition ‘‘Active duty wartime or certified cost or pricing data specified in FAR and’’ and adding ‘‘the applicable campaign badge veteran,’’ ‘‘Armed 15.403–4(a)(1) is adjusted for inflation as set threshold specified in FAR 19.702(a), Forces service medal veteran,’’ forth in FAR 1.109(a), then pursuant to FAR and the contract’’ in its place; ‘‘disabled veteran,’’ ‘‘protected veteran,’’ 1.109(d) the changed threshold applies ■ h. In Alternate III— ‘‘qualified disabled veteran,’’ and throughout the remaining term of the ■ i. Revising the date of the alternate; ‘‘recently separated veteran’’, the contract, unless there is a subsequent and acronym ‘‘FAR’’ and adding ‘‘Federal threshold adjustment. The Contracting ■ ii. Removing from paragraph Officer may require additional supporting Acquisition Regulation (FAR)’’ in its information, but only to the extent necessary (l)(2)(i)(C) ‘‘$700,000 (over $1.5 million place; and to determine whether an exception should be for construction of a public facility) ■ c. Removing from paragraph (c) ‘‘of granted, and whether the price is fair and and’’ and adding ‘‘the applicable $150,000 or more’’ and adding ‘‘valued reasonable— threshold specified in FAR 19.702(a), at or above the threshold specified in * * * * * and the contract’’ in its place; and FAR 22.1303(a) on the date of ■ ■ 51. Amend section 52.215–23 by— i. In Alternate IV— subcontract award,’’ in its place. ■ a. Revising the date of the clause; ■ i. Revising the date of the alternate; ■ The revision reads as follows: ■ b. In paragraph (a), removing from the ii. Removing from paragraph (d)(9) definition ‘‘Subcontract’’ the acronym ‘‘$700,000 ($1.5 million for construction 52.222–35 Equal Opportunity for Veterans. ‘‘FAR’’ and adding ‘‘Federal Acquisition of any public facility)’’ and adding ‘‘the * * * * * Regulation (FAR)’’ in its place; and applicable threshold specified in FAR Equal Opportunity for Veterans (JUN ■ c. Revising paragraph (f). 19.702(a) on the date of subcontract 2020) The revisions read as follows: award,’’ in its place; and ■ iii. Removing from paragraph * * * * * 52.215–23 Limitations on Pass-Through (d)(11)(iii) introductory text ‘‘$150,000’’ ■ 55. Amend section 52.222–36 by— Charges. and adding ‘‘the simplified acquisition ■ a. Revising the date of the clause; and * * * * * threshold, as defined in FAR 2.101 on ■ the date of subcontract award’’ in its b. Removing from the first sentence in Limitations on Pass-Through Charges place. paragraph (b) ‘‘$15,000’’ and adding (JUN 2020) The revisions read as follows: ‘‘the threshold specified in Federal * * * * * Acquisition Regulation (FAR) 22.1408(a) (f) Subcontracts. The Contractor shall 52.219–9 Small Business Subcontracting on the date of subcontract award,’’ in its insert the substance of this clause, including Plan. place. this paragraph (f), in all cost-reimbursement * * * * * The revision reads as follows:

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52.222–36 Equal Opportunity for Workers 52.226–6 Promoting Excess Food Alternate III (JUN 2020). * * * with Disabilities. Donation to Nonprofit Organizations. * * * * * * * * * * * * * * * ■ 63. Amend section 52.228–15 by Equal Opportunity for Workers With Promoting Excess Food Donation to revising the date of the clause and the Disabilities (JUN 2020) Nonprofit Organizations (JUN 2020) introductory text of paragraph (b) to read as follows: * * * * * * * * * * ■ 56. Amend section 52.222–37 by— (e) Subcontracts. The Contractor shall 52.228–15 Performance and Payment ■ a. Revising the date of the clause; insert this clause in all contracts, task orders, Bonds—Construction. ■ b. Removing from paragraph (a) delivery orders, purchase orders, and other * * * * * ‘‘FAR’’ and adding ‘‘Federal Acquisition similar instruments that exceed the threshold Regulation (FAR)’’ in its place; and specified in Federal Acquisition Regulation Performance and Payment Bonds— ■ c. Removing from paragraph (g) ‘‘of 26.404 on the date of subcontract award with Construction (JUN 2020) its subcontractors or suppliers, at any tier, $150,000 or more’’ and adding ‘‘valued * * * * * at or above the threshold specified in who will perform, under this contract, the provision, service, or sale of food in the (b) Amount of required bonds. Unless the FAR 22.1303(a) on the date of United States. resulting contract price is valued at or below subcontract award,’’ in its place. the threshold specified in Federal The revision reads as follows: * * * * * Acquisition Regulation 28.102–1(a) on the ■ 60. Amend section 52.227–1 by date of award of this contract, the successful 52.222–37 Employment Reports on revising the date of the clause and offeror shall furnish performance and Veterans. paragraph (b) to read as follows: payment bonds to the Contracting Officer as * * * * * follows: 52.227–1 Authorization and Consent. Employment Reports on Veterans (JUN * * * * * * * * * * ■ 64. Amend section 52.230–1 by— 2020) ■ a. Revising the introductory text and Authorization and Consent (JUN 2020) * * * * * the date of the provision; ■ 57. Amend section 52.223–18 by— * * * * * ■ b. Removing from paragraph (a) ■ a. Revising the date of the clause; and (b) The Contractor shall include the ‘‘$750,000’’ and ‘‘Chapter’’ and adding ■ b. Removing from paragraph (d) substance of this clause, including this ‘‘the lower CAS threshold specified in ‘‘threshold.’’ and adding ‘‘threshold, as paragraph (b), in all subcontracts that are Federal Acquisition Regulation (FAR) defined in Federal Acquisition expected to exceed the simplified acquisition 30.201–4(b)’’ and ‘‘chapter’’ in their Regulation 2.101 on the date of threshold, as defined in Federal Acquisition Regulation (FAR) 2.101 on the date of places, respectively; and subcontract award.’’ in its place. ■ d. Revising the undesignated The revision reads as follows: subcontract award. However, omission of this clause from any subcontract, including those parenthetical paragraph following 52.223–18 Encouraging Contractor at or below the simplified acquisition paragraph (c)(1). Policies to Ban Text Messaging While threshold, as defined in FAR 2.101 on the The revisions read as follows: Driving. date of subcontract award, does not affect this authorization and consent. 52.230–1 Cost Accounting Standards * * * * * Notices and Certification. * * * * * Encouraging Contractor Policies To Ban As prescribed in 30.201–3(a), insert ■ 61. Amend section 52.227–2 by the following provision: Text Messaging While Driving (JUN revising the date of the clause and 2020) paragraph (c) to read as follows: Cost Accounting Standards Notices and * * * * * Certification (JUN 2020) 52.227–2 Notice and Assistance ■ 58. Amend section 52.225–25 by— * * * * * ■ a. Revising the clause heading; Regarding Patent and Copyright Infringement. (c) * * * ■ b. Removing from the introductory (Disclosure must be on Form No. CASB text of paragraph (c) ‘‘accordance with’’ * * * * * DS–1 or CASB DS–2, as applicable. Forms and adding ‘‘accordance with Federal Notice and Assistance Regarding Patent may be obtained from the cognizant ACO or Acquisition Regulation (FAR)’’ in its and Copyright Infringement (JUN 2020) Federal official.) place; and * * * * * ■ c. Removing from paragraph (c)(3) * * * * * ■ 65. Amend section 52.230–2 by— ‘‘$3,500’’ and adding ‘‘the threshold at (c) The Contractor shall include the ■ a. Revising the date of the clause; and FAR 25.703–2(a)(2)’’ in its place. substance of this clause, including this ■ b. Removing from paragraph (d) paragraph (c), in all subcontracts that are ‘‘Regulation shall’’ and ‘‘$750,000’’ and expected to exceed the simplified acquisition 52.225–25 Prohibition on Contracting with adding ‘‘Regulation (FAR) shall’’ and Entities Engaging in Certain Activities or threshold, as defined in Federal Acquisition Transactions Relating to Iran— Regulation (FAR) 2.101 on the date of ‘‘the lower CAS threshold specified in Representation and Certifications. subcontract award. FAR 30.201–4(b) on the date of * * * * * subcontract award’’ in their places, * * * * * respectively. ■ 62. Amend section 52.227–3 in Prohibition on Contracting With The revision read as follows: Alternate III by revising the date of the Entities Engaging in Certain Activities alternate and removing from the 52.230–2 Cost Accounting Standards. or Transactions Relating to Iran— undesignated paragraph ‘‘threshold’’ Representation and Certifications (JUN * * * * * and adding ‘‘threshold, as defined in 2020) Federal Acquisition Regulation 2.101 on Cost Accounting Standards (JUN 2020) * * * * * the date of subcontract award,’’ in its * * * * * ■ 59. Amend section 52.226–6 by place to read as follows: ■ 66. Amend section 52.230–3 by— revising the section heading, the date of ■ a. Revising the date of the clause; the clause, and paragraph (e) to read as 52.227–3 Patent Indemnity. ■ b. Removing from paragraph (d)(1) follows: * * * * * ‘‘subsection’’ and ‘‘Regulation shall’’

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and adding ‘‘section’’ and ‘‘Regulation ■ ii. Removing from paragraph (n) (c)(1) * * * (FAR) shall’’ in their places, ‘‘threshold.’’ and adding ‘‘threshold, as (i) 52.203–13, Contractor Code of Business respectively; and defined in FAR 2.101 on the date of Ethics and Conduct (Jun 2020) (41 U.S.C. ■ c. Revising paragraph (d)(2). individual order award.’’ in its place. 3509), if the subcontract exceeds the The revisions read as follows: The revisions read as follows: threshold specified in FAR 3.1004(a) on the date of subcontract award, and has a 52.230–3 Disclosure and Consistency of 52.232–16 Progress Payments. performance period of more than 120 days. Cost Accounting Practices. * * * * * *** * * * * * Progress Payments (JUN 2020) * * * * * (x) 52.222–35, Equal Opportunity for Disclosure and Consistency of Cost * * * * * Accounting Practices (JUN 2020) Veterans (Jun 2020) (38 U.S.C. 4212(a)). Alternate III (JUN 2020). * * * (xi) 52.222–36, Equal Opportunity for * * * * * Workers with Disabilities (Jun 2020) (29 (d) * * * * * * * * U.S.C. 793). (2) The requirement in this paragraph (d) ■ 70. Amend section 52.244–2 by— shall apply only to negotiated subcontracts in ■ a. Revising the date of the clause; (xii) 52.222–37, Employment Reports on excess of the lower CAS threshold specified ■ b. Removing from paragraphs (c)(2)(i) Veterans (Jun 2020) (38 U.S.C. 4212). in FAR 30.201–4(b) on the date of and (ii) ‘‘threshold’’ and adding * * * * * subcontract award. ‘‘threshold, as defined in FAR 2.101 on ■ 72. Amend section 52.246–26 by— * * * * * the date of subcontract award,’’ in their ■ ■ 67. Amend section 52.230–4 by— places; and a. Revising the date of the clause; and ■ a. Revising the date of the clause; ■ c. In Alternate I— ■ b. Removing from paragraph (g)(1)(iii) ■ b. Removing from paragraph (d)(1) ■ i. Revising the date of the alternate; ‘‘threshold’’ and adding ‘‘threshold, as ‘‘FAR’’ and adding ‘‘Federal Acquisition and defined in FAR 2.101 on the date of Regulation (FAR)’’ in its place; and ■ ii. Removing from paragraph (e)(2) subcontract award,’’ in its place. ■ c. Revising paragraph (d)(2). ‘‘threshold’’ and ‘‘paragraphs (e)(1)(i) The revision reads as follows: The revisions read as follows: through (e)(1)(iv)’’ and adding ‘‘threshold, as defined in FAR 2.101 on 52.246–26 Reporting Nonconforming 52.230–4 Disclosure and Consistency of the date of subcontract award,’’ and Items. Cost Accounting Practices—Foreign ‘‘paragraphs (e)(1)(i) through (iv)’’ in Concerns. * * * * * their places, respectively. * * * * * The revisions read as follows: Reporting Nonconforming Items (JUNE Disclosure and Consistency of Cost 52.244–2 Subcontracts. 2020) Accounting Practices—Foreign * * * * * * * * * * Concerns (JUN 2020) ■ 73. Amend section 52.248–1 by— * * * * * Subcontracts (JUN 2020) ■ (d) * * * * * * * * a. Revising the date of the clause; (2) The requirement in this paragraph (d) ■ b. Removing from paragraph (i)(5) Alternate I (JUN 2020). * * * shall apply only to negotiated subcontracts in ‘‘subsection’’ and ‘‘Regulation’’ and excess of the lower CAS threshold specified * * * * * adding ‘‘section’’ and ‘‘Regulation in FAR 30.201–4(b) on the date of ■ 71. Amend section 52.244–6 by— (FAR)’’ in their places, respectively; and subcontract award. ■ a. Revising the date of the clause; * * * * * ■ b. In paragraph (a), revising the ■ c. Revising the first sentence of ■ 68. Amend section 52.230–5 by definition ‘‘Commercial item’’ and paragraph (1). revising the date of the clause and ‘‘commercially available off-the-shelf The revisions read as follows: paragraph (d)(2) to read as follows: item’’; ■ c. Revising the first sentence in 52.248–1 Value Engineering. 52.230–5 Cost Accounting Standards— paragraph (c)(1)(i); * * * * * Educational Institution. ■ d. Removing from paragraph (c)(1)(vii) * * * * * ‘‘$700,000 ($1.5 million for construction Value Engineering (JUN 2020) Cost Accounting Standards— of any public facility)’’ and adding ‘‘the * * * * * Educational Institution (JUN 2020) applicable threshold specified in FAR (l) Subcontracts. The Contractor shall 19.702(a) on the date of subcontract * * * * * include an appropriate value engineering award’’ in its place; and clause in any subcontract-valued at or above (d) * * * ■ e. Revising paragraphs (c)(1)(x), (xi), (2) The requirement in this paragraph (d) the simplified acquisition threshold, as and (xii). defined in FAR 2.101 on the date of shall apply only to negotiated subcontracts in The revisions read as follows: excess of the lower CAS threshold specified subcontract award, and may include one in in Federal Acquisition Regulation (FAR) 52.244–6 Subcontracts for Commercial subcontracts of lesser value. * * * 30.201–4(b) on the date of subcontract award; Items. * * * * * and * * * * * [FR Doc. 2020–07109 Filed 5–5–20; 8:45 am] * * * * * BILLING CODE 6820–EP–P ■ 69. Amend section 52.232–16 by— Subcontracts for Commercial Items ■ a. Revising the date of the clause; (JUN 2020) ■ b. Removing from paragraph (a)(1) (a) * * * ‘‘FAR’’ and adding ‘‘Federal Acquisition Commercial item and commercially Regulation (FAR)’’ in its place; and available off-the-shelf item have the ■ c. In Alternate III— meanings contained in Federal Acquisition ■ i. Revising the date of the alternate; Regulation (FAR) 2.101. and * * * * *

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DEPARTMENT OF DEFENSE 29.204 and 29.402–3 give more prescription at FAR 29.402–3(a). If any information on the contracts that are of the conditions listed at FAR 29.402– GENERAL SERVICES covered, and exemptions or exceptions 3(a) are met, the payments under the ADMINISTRATION that might apply. No public comments contract will not be subject to the were submitted in response to the withholding. The remaining exemptions NATIONAL AERONAUTICS AND proposed rule. in that paragraph (d), at 26 CFR SPACE ADMINISTRATION On January 2, 2011, section 301 of the 1.5000C–1(d)(5) through (7), must be James Zadroga 9/11 Health and claimed by the offeror by submitting an 48 CFR Parts 1, 12, 25, 29, and 52 Compensation Act of 2010, Public Law IRS Form W–14 with the offer. If no 111–347 (the Act), added section 5000C [FAC 2020–06; FAR Case 2016–013; Item exemption applies or is claimed, III; Docket No. FAR–2016–0013; Sequence to the Internal Revenue Code (Code). contractors will be subject to the tax and No. 1] Title 26 U.S.C. 5000C, Imposition of tax will be required to complete IRS Form on certain foreign procurement, and its W–14, and submit this form with each RIN 9000–AN38 implementing regulations at 26 CFR voucher or invoice for the agency to 1.5000C–1 through 1.5000C–7, imposed, withhold the tax as appropriate. Federal Acquisition Regulation; Tax on unless exempted, a 2 percent excise tax Certain Foreign Procurement on the amount of a specified Federal This FAR final rule covers withholding, not the imposition of the AGENCY: Department of Defense (DoD), procurement payment on any foreign tax, which was implemented in the IRS General Services Administration (GSA), person receiving such payment. Title 26 regulation. and National Aeronautics and Space CFR 1.5000C–1(c) defines the term Administration (NASA). specified Federal procurement payment III. Applicability to Contracts at or ACTION: Final rule. as any payment made pursuant to a Below the Simplified Acquisition contract with the U.S. Government for Threshold and for Commercial Items, SUMMARY: DoD, GSA, and NASA are goods or services if the goods are Including Commercially Available Off- issuing a final rule amending the manufactured or produced, or the the-Shelf (COTS) Items Federal Acquisition Regulation (FAR) to services are provided, in any country withhold a 2 percent tax on contract that is not a party to an international Pursuant to 41 U.S.C. 1905–1907, a payments made by the United States procurement agreement with the United provision of law is not applicable to: Government to foreign persons pursuant States (see FAR 25.003 for the Contracts or subcontracts in amounts to certain contracts. This rule applies to definitions of ‘‘World Trade not greater than the simplified Federal Government contracts for goods Organization Government Procurement acquisition threshold (SAT)(as defined or services that are awarded to foreign Agreement (WTO GPA) country’’ and in FAR 2.101); and the acquisition of persons. ‘‘Free Trade Agreement country’’, per commercial items, including COTS DATES: Effective: June 5, 2020. the IRS definition at § 1.5000C–1(a)(8)). items. However, the provision of law is Section 301(a)(3) of the Act provides FOR FURTHER INFORMATION CONTACT: Ms. applicable when the law (i) contains that section 5000C applies to payments criminal or civil penalties; (ii) Zenaida Delgado, Procurement Analyst, received pursuant to contracts entered at 202–969–7207 or zenaida.delgado@ specifically refers to 41 U.S.C. 1905– into on and after the date of enactment 1907 and states that the law applies to gsa.gov for clarification of content. For of the Act, January 2, 2011. information pertaining to status or contracts or subcontracts in amounts not Additionally, section 301(c) of the Act greater than the SAT, or the acquisition publication schedules, contact the states that this section and the Regulatory Secretariat Division at 202– of commercial items including COTS amendments made by it must be applied items; (iii) the FAR Council makes a 501–4755. Please cite FAC 2020–06, in a manner consistent with U.S. FAR Case 2016–013. written determination that it is not in obligations under international the best interest of the Federal SUPPLEMENTARY INFORMATION: agreements. Section 5000C(d)(1) Government to exempt contracts or I. Background provides that the amount deducted and subcontracts at or below the SAT and withheld under chapter 3 shall be DoD, GSA, and NASA published a for acquisition of commercial items; or increased by the amount of tax imposed the Administrator for Federal proposed rule on September 20, 2019, at under 26 U.S.C. 5000C. 84 FR 49498, to implement the Procurement Policy makes a written DoD, GSA, and NASA issued a final determination that it would not be in Department of the Treasury final rule under FAR Case 2011–011, regulations published in the Federal the best interest of the Federal Unallowability of Costs Associated With Government to exempt contracts for the Register at 81 FR 55133 on August 18, Foreign Contractor Excise Tax, 2016, under section 5000C of the procurement of COTS items from this amending the FAR to disallow the cost law. United States tax laws in Title 26 Internal Revenue Code relating to the 2 associated with the 2 percent excise tax percent tax on payments made by the of the United States Code contain on certain foreign procurements. The criminal and civil penalties; thus, United States (U.S.) Government to final rule was published in the Federal foreign entities pursuant to certain commercial items, including Register at 78 FR 6189 on January 29, commercially available off-the-shelf contracts. This final rule only addresses 2013. the collection of the section 5000C tax items, are subject to the new provision from contract payments on certain II. Discussion and Analysis and clause unless otherwise exempted. foreign contracts by withholding up to There are no changes from the The new provision and clause are not 2 percent of the payment. The agency proposed rule made in the final rule. applicable to acquisitions using merely withholds the tax for the Internal Acquiring agencies are required to simplified acquisition procedures that Revenue Service (IRS). All substantive withhold the excise tax under 26 U.S.C. do not exceed the simplified acquisition issues regarding the underlying section 5000C. The exemptions from the threshold because the IRS regulations at 5000C tax, e.g., the imposition of, and withholding in the IRS regulations at 26 26 CFR 1.5000C–1(d)(1) exempted them exemption from the tax, are matters CFR 1.5000C–1(d)(1) through (4) are from the tax—see the prescriptions at under the jurisdiction of the IRS. FAR captured under the new provision FAR 29.402–3(a)(1) and (b)(1).

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IV. Executive Orders 12866 and 13563 The rule contains an information collection PART 12—ACQUISITION OF requirement that requires the approval of the COMMERCIAL ITEMS Executive Orders (E.O.s) 12866 and Office of Management and Budget (OMB) 13563 direct agencies to assess all costs under the Paperwork Reduction Act (44 ■ and benefits of available regulatory 3. Amend section 12.301 by U.S.C. chapter 35). However, the paperwork redesignating paragraph (d)(12) as alternatives and, if regulation is burden was previously approved for the IRS necessary, to select regulatory regulations under OMB Control Number paragraph (d)(13) and adding a new approaches that maximize net benefits 1545–2263, Tax on Certain Foreign paragraph (d)(12) to read as follows: (including potential economic, Procurement. There are no available alternatives to the 12.301 Solicitation provisions and environmental, public health and safety rule to accomplish the desired objective of contract clauses for the acquisition of effects, distributive impacts, and the statute. commercial items. equity). E.O. 13563 emphasizes the Interested parties may obtain a copy * * * * * importance of quantifying both costs (d) * * * and benefits, of reducing costs, of of the FRFA from the Regulatory Secretariat Division. The Regulatory (12) Insert the provision at 52.229–11, harmonizing rules, and of promoting Tax on Certain Foreign Procurements— flexibility. This is not a significant Secretariat Division has submitted a copy of the FRFA to the Chief Counsel Notice and Representation, in regulatory action and, therefore, this for Advocacy of the Small Business solicitations as prescribed in 29.402– rule was not subject to review under Administration. 3(a). The representation in the provision section 6(b) of E.O. 12866, Regulatory at 52.229–11 is not in the System for Planning and Review, dated September VII. Paperwork Reduction Act Award Management. 30, 1993. This rule is not a major rule The Paperwork Reduction Act (44 * * * * * under 5 U.S.C. 804. U.S.C. Chapter 35) does apply. V. Executive Order 13771 However, these changes to the FAR do PART 25—FOREIGN ACQUISITION not impose additional information This rule is not an E.O. 13771 ■ collection requirements to the 4. Add section 25.1003 to read as regulatory action, because this rule is paperwork burden previously approved follows: not significant under E.O. 12866. for the IRS, Department of the Treasury 25.1003 Tax on certain foreign VI. Regulatory Flexibility Act regulations under the Office of procurements. DoD, GSA, and NASA have prepared Management and Budget Control See 29.204 for the imposition of the a Final Regulatory Flexibility Analysis Number 1545–2263, Tax on Certain tax on certain foreign procurements (FRFA) consistent with the Regulatory Foreign Procurement (see 80 FR 22449, pursuant to the James Zadroga 9/11 Flexibility Act, 5 U.S.C. 601, et seq. The April 22, 2015 and 82 FR 41310 at Health and Compensation Act of 2010 FRFA is summarized as follows: 41312, August 30, 2017). (Pub. L. 111–347), 26 U.S.C. 5000C, and This rule is required to implement a final List of Subjects in 48 CFR Parts 1, 12, its implementing regulations at 26 CFR rule issued by the Department of the 25, 29, and 52 1.5000C–1 through 1.5000C–7. Treasury (published at 81 FR 55133) that Government procurement. implements section 301 of the James Zadroga PART 29—TAXES 9/11 Health and Compensation Act of 2010, William F. Clark, ■ Public Law 111–347 (the Act), adding section Director, Office of Government-wide 5. Add section 29.204 to read as 5000C to the Internal Revenue Code (Code). Acquisition Policy, Office of Acquisition follows: 26 U.S.C. 5000C, Imposition of tax on certain Policy, Office of Government-wide Policy. foreign procurement, and its implementing 29.204 Federal excise tax on specific regulations at 26 CFR 1.5000C–1 through Therefore, DoD, GSA, and NASA foreign contract payments. 1.5000C–7, imposed, unless exempted, a 2 amend 48 CFR parts 1, 12, 25, 29, and (a) Title 26 U.S.C. 5000C and its percent excise tax of the amount of a 52 as set forth below: implementing regulations at 26 CFR specified Federal procurement payment on ■ 1. The authority citation for 48 CFR 1.5000C–1 through 1.5000C–7 require any foreign person receiving such payment. parts 1, 12, 25, 29, and 52 continues to acquiring agencies to collect this excise There were no significant issues raised by read as follows: the public in response to the initial tax via withholding on applicable regulatory flexibility analysis. Authority: 40 U.S.C. 121(c); 10 U.S.C. contract payments (see 29.402–3, The rule will apply to Federal Government chapter 137; and 51 U.S.C. 20113. 31.205–41(b)(8)). Agencies merely contracts that are awarded to foreign persons withhold the tax (section 5000C tax) for for goods or services, if the goods are PART 1—FEDERAL ACQUISITION the Internal Revenue Service (IRS). All manufactured or produced or the services are REGULATIONS SYSTEM substantive issues regarding the provided in any country that is not a party ■ 2. In section 1.106, amend the table by underlying section 5000C tax, e.g., the to an international procurement agreement imposition of, and exemption from the with the United States (see FAR 25.003 for adding entries for ‘‘52.229–11’’ and the definitions of ‘‘World Trade Organization ‘‘52.229–12’’ in numerical order to read tax, are matters under the jurisdiction of Government Procurement Agreement (WTO as follows: 1.106 OMB approval under the IRS. The contracting officer will GPA) country’’ and ‘‘Free Trade Agreement the Paperwork Reduction Act. refer all questions relating to the country’’). Federal Procurement Data System interpretation of the IRS regulations to data for FY 2018 was obtained for contracts * * * * * https://www.irs.gov/help/tax-law- valued over $250,000 awarded to foreign questions. vendors. There were 7,518 total awards, FAR OMB segment control No. (b) In accordance with the clause 7,349 were to large vendors; 169 were to 52.229–12, Tax on Certain Foreign small vendors. Of these, 1,358 were unique Procurements, contractors that are large foreign entities while 10 were unique ***** small foreign entities for a total of 1,368 subject to the section 5000C tax will 52.229–11 ...... 1545–2263 complete IRS Form W–14, Certificate of unique foreign entities. Accordingly, the rule 52.229–12 ...... 1545–2263 is not expected to have a significant Foreign Contracting Party Receiving economic impact on a substantial number of ***** Federal Procurement Payments, and small entities based in the United States. submit this form with each voucher or

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invoice. In the absence of a completed assistance contracts which are payments (5) Any trust if— IRS Form W–14 accompanying a made by the U.S. Government agencies (i) A court within the United States is able payment request, the default pursuant to a contract with a foreign to exercise primary supervision over the withholding percentage is 2 percent for contracting party to obtain goods or administration of the trust; and the section 5000C withholding for that services described in or authorized (ii) One or more United States persons payment request. Information about IRS under 7 U.S.C. 1691, et seq., 22 U.S.C. have the authority to control all substantial Form W–14 is available via the internet 2151, et seq., 22 U.S.C 2601 et seq., 22 decisions of the trust. (b) Unless exempted, there is a 2 percent at www.irs.gov/w14. U.S.C. 5801 et seq., 22 U.S.C. 5401 et tax of the amount of a specified Federal (c)(1) Exemptions from the seq., 10 U.S.C. 402, 10 U.S.C. 404, 10 procurement payment on any foreign person withholding in the IRS regulations at 26 U.S.C. 407, 10 U.S.C. 2557, and 10 receiving such payment. See 26 U.S.C. 5000C CFR 1.5000C–1(d)(1) through (4) are U.S.C. 2561. and its implementing regulations at 26 CFR captured under the provision (b) Insert the clause at 52.229–12, Tax 1.5000C–1 through 1.5000C–7. prescription at 29.402–3(a) (i.e., the on Certain Foreign Procurements, in— (c) Exemptions from withholding under contracting officer will not include the (1) Solicitations that contain the this provision are described at 26 CFR provision when one of the 29.402–3(a) provision at 52.229–11, Tax on Certain 1.5000C–1(d)(5) through (7). The Offeror exceptions applies). Foreign Procurements—Notice and would claim an exemption from the (2) The exemptions at 26 CFR Representation; and withholding by using the Department of the 1.5000C–1(d)(5) through (7) must be (2) Resultant contracts in which the Treasury Internal Revenue Service Form W– claimed by the offeror when it submits contractor has indicated that it was a 14, Certificate of Foreign Contracting Party an IRS Form W–14 with the offer. If not foreign person in solicitation provision Receiving Federal Procurement Payments, submitted with the offer, exemptions 52.229–11, Tax on Certain Foreign available via the internet at www.irs.gov/w14. will not be applied to the contract. Procurements—Notice and Any exemption claimed and self-certified on (3) Any exemption claimed and self- Representation. the IRS Form W–14 is subject to audit by the certified on the IRS Form W–14 is IRS. Any disputes regarding the imposition subject to audit by the IRS. Any PART 52—SOLICITATION PROVISIONS and collection of the 26 U.S.C. 5000C tax are adjudicated by the IRS as the 26 U.S.C. disputes regarding the imposition and AND CONTRACT CLAUSES 5000C tax is a tax matter, not a contract issue. collection of the section 5000C tax are ■ 7. Amend section 52.212–5 by The IRS Form W–14 is provided to the adjudicated by the IRS as the section redesignating paragraphs (b)(55) through acquiring agency rather than to the IRS. 5000C tax is a tax matter, not a contract (62) as paragraphs (b)(56) through (63) (d) For purposes of withholding under 26 issue. and adding a new paragraph (b)(55) to U.S.C. 5000C, the Offeror represents that— (d) The exemptions in 29.201 through read as follows: (1) It [l]is [l]is not a foreign person; and 29.302 do not apply to this section (2) If the Offeror indicates ‘‘is’’ in 5000C tax. 52.212–5 Contract Terms and Conditions paragraph (d)(1) of this provision, then the (e) Additional information about this Required To Implement Statutes or Offeror represents that—I am claiming on the excise tax on specific foreign contract Executive Orders—Commercial Items. IRS Form W–14 [ll] a full exemption, or payments is available via the internet at * * * * * [ll] partial or no exemption [Offeror shall https://www.irs.gov/government- (b) * * * select one] from the excise tax. entities/excise-tax-on-specified-federal- ___ (55) 52.229–12, Tax on Certain (e) If the Offeror represents it is a foreign foreign-procurement-payments. Foreign Procurements (JUN 2020). person in paragraph (d)(1) of this provision, ■ then— 6. Add section 29.402–3 to read as * * * * * (1) The clause at FAR 52.229–12, Tax on follows: ■ 8. Add sections 52.229–11 and Certain Foreign Procurements, will be 52.229–12 to read as follows: 29.402–3 Tax on certain foreign included in any resulting contract; and (2) The Offeror shall submit with its offer procurements. 52.229–11 Tax on Certain Foreign the IRS Form W–14. If the IRS Form W–14 Procurements—Notice and Representation. (a) Insert the provision at 52.229–11, is not submitted with the offer, exemptions Tax on Certain Foreign Procurements— As prescribed in 29.402–3(a), insert will not be applied to any resulting contract Notice and Representation, in the following provision: and the Government will withhold a full 2 solicitations, including solicitations percent of each payment. using FAR part 12 procedures for the Tax on Certain Foreign Procurements— Notice and Representation (JUN 2020) (f) If the Offeror selects ‘‘is’’ in paragraph acquisition of commercial items, unless (d)(1) and ‘‘partial or no exemption’’ in one of the following exceptions applies: (a) Definitions. As used in this provision— paragraph (d)(2) of this provision, the Offeror (1) Acquisitions using simplified Foreign person means any person other will be subject to withholding in accordance acquisition procedures that do not than a United States person. with the clause at FAR 52.229–12, Tax on exceed the simplified acquisition Specified Federal procurement payment Certain Foreign Procurements, in any threshold (as defined in 2.101). means any payment made pursuant to a resulting contract. contract with a foreign contracting party that (2) Emergency acquisitions using the (g) A taxpayer may, for a fee, seek advice is for goods, manufactured or produced, or from the Internal Revenue Service (IRS) as to emergency acquisition flexibilities services provided in a foreign country that is defined in part 18. the proper tax treatment of a transaction. not a party to an international procurement This is called a private letter ruling. Also, the (3) Acquisitions using the unusual agreement with the United States. For IRS may publish a revenue ruling, which is and compelling urgency authority per purposes of the prior sentence, a foreign an official interpretation by the IRS of the country does not include an outlying area. 6.302–2. Internal Revenue Code, related statutes, tax (4) Contracts with a single individual United States person as defined in 26 U.S.C. 7701(a)(30) means— treaties, and regulations. A revenue ruling is for personal services that will not the conclusion of the IRS on how the law is exceed the simplified acquisition (1) A citizen or resident of the United States; applied to a specific set of facts. For threshold on an annual calendar year (2) A domestic partnership; questions relating to the interpretation of the basis for all years of the contract. (3) A domestic corporation; IRS regulations go to https://www.irs.gov/ (5) Acquisitions if the requiring (4) Any estate (other than a foreign estate, help/tax-law-questions. activity identifies that the requirement within the meaning of 26 U.S.C. 701(a)(31)); is for certain foreign humanitarian and (End of provision)

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52.229–12 Tax on Certain Foreign Form W–14, the result of Line 11 divided by 2nd Floor, Washington, DC 20405, 202– Procurements. Line 10, the Government will withhold from 501–4755. Please cite FAC 2020–06, As prescribed in 29.402–3(b), insert each payment an amount equal to 2 percent Technical Amendments. the following clause: multiplied by the contract ratio. If the Contractor marks box 9 of the IRS Form W– SUPPLEMENTARY INFORMATION: In order to Tax on Certain Foreign Procurements 14 (rather than completes Lines 10 through update certain elements in 48 CFR parts (JUN 2020) 12), the Contractor must identify and enter 4, 19, 25, and 52 this document makes the specific exempt and nonexempt amounts editorial changes to the FAR. (a) Definitions. As used in this clause— in Line 15 of the IRS Form W–14; the Foreign person means any person other Government will then withhold 2 percent List of Subjects in 48 CFR parts 4, 19, than a United States person. only from the nonexempt amount. See the 25, and 52 United States person, as defined in 26 IRS Form W–14 and its instructions. Government procurement. U.S.C. 7701(a)(30), means— (e) Exemptions from the withholding under (1) A citizen or resident of the United this clause are described at 26 CFR 1.5000C– William F. Clark, States; 1(d)(5) through (7). Any exemption claimed Director, Office of Government-wide (2) A domestic partnership; and self-certified on the IRS Form W–14 is Acquisition Policy, Office of Acquisition (3) A domestic corporation; subject to audit by the IRS. Any disputes Policy, Office of Government-wide Policy. (4) Any estate (other than a foreign estate, regarding the imposition and collection of within the meaning of 26 U.S.C. 7701(a)(31)); the 26 U.S.C. 5000C tax are adjudicated by Therefore, DoD, GSA, and NASA and the IRS as the 26 U.S.C. 5000C tax is a tax amend 48 CFR parts 4, 19, 25, and 52 (5) Any trust if— matter, not a contract issue. as set forth below: (i) A court within the United States is able (f) Taxes imposed under 26 U.S.C. 5000C ■ 1. The authority citation for 48 CFR to exercise primary supervision over the may not be— parts 4, 19, 25, and 52 continues to read administration of the trust; and (1) Included in the contract price; nor (ii) One or more United States persons (2) Reimbursed. as follows: have the authority to control all substantial (g) A taxpayer may, for a fee, seek advice Authority: 40 U.S.C. 121(c); 10 U.S.C. decisions of the trust. from the Internal Revenue Service (IRS) as to chapter 137; and 51 U.S.C. 20113. (b) This clause applies only to foreign the proper tax treatment of a transaction. persons. It implements 26 U.S.C. 5000C and This is called a private letter ruling. Also, the PART 4—ADMINISTRATIVE AND its implementing regulations at 26 CFR IRS may publish a revenue ruling, which is INFORMATION MATTERS 1.5000C–1 through 1.5000C–7. an official interpretation by the IRS of the (c)(1) If the Contractor is a foreign person Internal Revenue Code, related statutes, tax 4.1102 [Amended] and has only a partial or no exemption to the treaties, and regulations. A revenue ruling is ■ 2. Amend section 4.1102 by removing withholding, the Contractor shall include the the conclusion of the IRS on how the law is Department of the Treasury Internal Revenue from paragraph (a)(3)(ii) ‘‘http:// applied to a specific set of facts. For __ Service Form W–14, Certificate of Foreign questions relating to the interpretation of the aoprals.state.gov/Web920/danger Contracting Party Receiving Federal IRS regulations go to https://www.irs.gov/ pay__all.asp’’ and adding ‘‘https:// Procurement Payments, with each voucher or help/tax-law-questions. aoprals.state.gov/ ’’ in its place. invoice submitted under this contract throughout the period in which this status is (End of clause) PART 19—SMALL BUSINESS applicable. The excise tax withholding is [FR Doc. 2020–07110 Filed 5–5–20; 8:45 am] PROGRAMS applied at the payment level, not at the BILLING CODE 6820–EP–P contract level. The Contractor should revise 19.102 [Amended] each IRS Form W–14 submission to reflect ■ 3. Amend section 19.102 by removing the exemption (if any) that applies to that DEPARTMENT OF DEFENSE particular invoice, such as a different from paragraph (a)(1) ‘‘https:// www.sba.gov/content/table-small- exemption applying. In the absence of a GENERAL SERVICES completed IRS Form W–14 accompanying a business-size-standards’’ and adding payment request, the default withholding ADMINISTRATION ‘‘https://www.sba.gov/document/ percentage is 2 percent for the section 5000C support—table-size-standards’’ in its withholding for that payment request. NATIONAL AERONAUTICS AND place. Information about IRS Form W–14 and its SPACE ADMINISTRATION separate instructions is available via the PART 25—FOREIGN ACQUISITION internet at www.irs.gov/w14. 48 CFR Parts 4, 19, 25, and 52 (2) If the Contractor is a foreign person and 25.301–1 [Amended] [FAC 2020–06; Item IV; Docket No. FAR– has indicated in its offer in the provision ■ 4. Amend section 25.301–1 by 52.229–11, Tax on Certain Foreign 2020–0052; Sequence No. 1] Procurements—Notice and Representation, removing from paragraph (a)(2)(i) that it is fully exempt from the withholding, Federal Acquisition Regulation; ‘‘http://aoprals.state.gov/Web920/ and certified the full exemption on the IRS Technical Amendments danger__pay__all.asp’’ and adding Form W–14, and if that full exemption no ‘‘https://aoprals.state.gov/’’ in its place. AGENCY: longer applies due to a change in Department of Defense (DoD), circumstances during the performance of the General Services Administration (GSA), 25.301–4 [Amended] contract that causes the Contractor to become and National Aeronautics and Space ■ 5. Amend section 25.301–4 by subject to the withholding for the 2 percent Administration (NASA). removing from paragraph (b)(1) ‘‘http:// excise tax then the Contractor shall— ACTION: Final rule. aoprals.state.gov/Web920/danger__ (i) Notify the Contracting Officer within 30 __ days of a change in circumstances that causes SUMMARY: This document makes pay all.asp’’ and adding ‘‘https:// the Contractor to be subject to the excise tax amendments to the Federal Acquisition aoprals.state.gov/’’ in its place. withholding under 26 U.S.C. 5000C; and Regulation (FAR) in order to make PART 52—SOLICITATION PROVISIONS (ii) Comply with paragraph (c)(1) of this needed editorial changes. clause. AND CONTRACT CLAUSES DATES: (d) The Government will withhold a full 2 Effective: May 6, 2020. percent of each payment unless the FOR FURTHER INFORMATION CONTACT: Ms. ■ 6. Amend section 52.219–28 by Contractor claims an exemption. If the Lois Mandell, Regulatory Secretariat revising the date of the clause and Contractor enters a ratio in Line 12 of the IRS Division (MVCB), 1800 F Street NW, removing from paragraph (d) ‘‘http://

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www.sba.gov/content/table-small- their places, respectively, to read as and National Aeronautics and Space business-size-standards’’ and adding follows: Administration (NASA). ‘‘https://www.sba.gov/document/ ACTION: Small Entity Compliance Guide. support--table-size-standards’’ in its 52.225–19 Contractor Personnel in a Designated Operational Area or Supporting SUMMARY: place to read as follows: a Diplomatic or Consular Mission Outside This document is issued the United States. under the joint authority of DOD, GSA, 52.219–28 Post-Award Small Business and NASA. This Small Entity Program Rerepresentation. * * * * * Compliance Guide has been prepared in * * * * * Contractor Personnel in a Designated accordance with section 212 of the Post-Award Small Business Program Operational Area or Supporting a Small Business Regulatory Enforcement Rerepresentation MAY 2020 Diplomatic or Consular Mission Fairness Act of 1996. It consists of a Outside the United States MAY 2020 summary of the rules appearing in * * * * * Federal Acquisition Circular (FAC) ■ 7. Amend section 52.223–15 by * * * * * [FR Doc. 2020–07111 Filed 5–5–20; 8:45 am] 2020–06, which amends the Federal revising the date of the clause and Acquisition Regulation (FAR). An BILLING CODE 6820–EP–P removing from paragraph (d)(2) ‘‘http:// asterisk (*) next to a rule indicates that www1.eere.energy.gov/femp/ a regulatory flexibility analysis has been __ procurement/eep requirements.html’’ DEPARTMENT OF DEFENSE prepared. Interested parties may obtain and adding ‘‘https://www.energy.gov/ further information regarding these eere/femp/energy-efficient-products- GENERAL SERVICES rules by referring to FAC 2020–06, and-energy-saving-technologies’’ in its ADMINISTRATION which precedes this document. These place to read as follows: documents are also available via the 52.223–15 Energy Efficiency in Energy- NATIONAL AERONAUTICS AND internet at http://www.regulations.gov. Consuming Products. SPACE ADMINISTRATION DATES: May 6, 2020. * * * * * ADDRESSES: The FAC, including the 48 CFR Chapter 1 SECG, is available via the internet at Energy Efficiency in Energy-Consuming http://www.regulations.gov. Products MAY 2020 [Docket No. FAR–2020–0051, Sequence No. FOR FURTHER INFORMATION CONTACT: For * * * * * 2] clarification of content, contact the ■ 8. Amend section 52.225–19 by Federal Acquisition Regulation; analyst whose name appears in the table revising the date of the clause and Federal Acquisition Circular 2020–06; below. Please cite FAC 2020–06 and the removing from paragraphs (b)(1)(ii)(A) Small Entity Compliance Guide FAR Case number. For information and (q)(2)(i) ‘‘http://aoprals.state.gov/ pertaining to status or publication Web920/danger__pay__all.asp’’ and AGENCY: Department of Defense (DoD), schedules, contact the Regulatory adding ‘‘https://aoprals.state.gov/’’ in General Services Administration (GSA), Secretariat Division at 202–501–4755.

RULE LISTED IN FAC 2020–06

Item Subject FAR Case Analyst

I ...... Revocation of Executive Order on Nondisplacement of Qualified Workers ...... 2020–001 Delgado. *II ..... Applicability of Inflation Adjustments of Acquisition-Related Thresholds ...... 2018–007 Delgado. *III .... Tax on Certain Foreign Procurement ...... 2016–013 Delgado. IV ..... Technical Amendments.

SUPPLEMENTARY INFORMATION: subcontractors to offer employees of the Item II—Applicability of Inflation Summaries for each FAR rule follow. predecessor contractor and its Adjustments of Acquisition-Related For the actual revisions and/or subcontractors a right of first refusal of Thresholds (FAR Case 2018–007) amendments made by these FAR rules, employment for positions for which This final rule makes inflation refer to the specific item numbers and they are qualified. It implements adjustments of statutory acquisition- subjects set forth in the documents Executive Order 13897 of October 31, related thresholds under 41 U.S.C. 1908 following these item summaries. FAC 2019, Improving Federal Contractor applicable to existing contracts and 2020–06 amends the FAR as follows: Operations by Revoking Executive subcontracts in effect on the date of the Item I—Revocation of Executive Order Order 13495. This final rule will not adjustment. It implements section 821 on Nondisplacement of Qualified have a significant impact on service of the National Defense Authorization Workers (FAR Case 2020–001) contractors and their subcontractors. Act for Fiscal Year 2018. However, as a result of eliminating the This final rule will not have a This final rule removes subpart 22.12, language in FAR subpart 22.12, there significant economic impact on a entitled ‘‘Nondisplacement of Qualified will be fewer requirements imposed on substantial number of small entities. Workers Under Service Contracts’’, and contractors to keep records Item III—Tax on Certain Foreign a related contract clause, from the FAR. demonstrating compliance on successor The final rule applies to service Procurement (FAR Case 2016–013) contractors. contracts which succeed a contract for This final rule withholds a 2 percent performance by service employees of tax on contract payments made by the the same or similar work at the same United States (U.S.) Government to location. It removes a requirement for foreign persons pursuant to certain service contractors and their contracts. This rule applies to Federal

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Government contracts for goods or payments made by the U.S. Government Item IV—Technical Amendments services that are awarded to foreign to foreign entities pursuant to certain Editorial changes are made at FAR persons. It implements the Department contracts. 4.1102, 19.102, 25.301–1, 25.301–4, of the Treasury final regulations This final rule will not have a 52.219–28, 52.223–15, and 52.225–19. published in the Federal Register at 81 significant economic impact on a William F. Clark, FR 55133 on August 18, 2016, under substantial number of small entities. section 5000C of the Internal Revenue Director, Office of Government-wide Code relating to the 2 percent tax on Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. [FR Doc. 2020–07112 Filed 5–5–20; 8:45 am] BILLING CODE 6820–EP–P

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Reader Aids Federal Register Vol. 85, No. 88 Wednesday, May 6, 2020

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Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 17 CFR Presidential Documents 3 CFR 200...... 25962 Executive orders and proclamations 741–6000 Proclamations: 230...... 25962 The United States Government Manual 741–6000 10016...... 26585 232...... 25962 10017...... 26587 Other Services 239...... 25962 10018...... 26589 240...... 25962 Electronic and on-line services (voice) 741–6020 10019...... 26823 270...... 25962 Privacy Act Compilation 741–6050 10020...... 26825 274...... 25962 10021...... 26829 Proposed Rules: ELECTRONIC RESEARCH 10022...... 26831 10023...... 26833 4...... 26378 World Wide Web Executive Orders: 21 CFR 13917...... 26311 Full text of the daily Federal Register, CFR and other publications 13918...... 26313 888...... 26350 is located at: www.govinfo.gov. 13919...... 26591 Proposed Rules: Federal Register information and research tools, including Public 13920...... 26595 573...... 26902 Inspection List and electronic text are located at: Administrative Orders: 22 CFR www.federalregister.gov. Memorandums: Memorandum of April 120...... 25285 E-mail 28, 2020 ...... 26315 122...... 25285, 26847 123...... 25285 FEDREGTOC (Daily Federal Register Table of Contents Electronic 124...... 25285 Mailing List) is an open e-mail service that provides subscribers 10 CFR 129...... 25285 with a digital form of the Federal Register Table of Contents. The 50...... 26540 digital form of the Federal Register Table of Contents includes Proposed Rules: 25 CFR HTML and PDF links to the full text of each document. 430...... 25324, 26369 431...... 26626 Proposed Rules: To join or leave, go to https://public.govdelivery.com/accounts/ 82...... 26902 USGPOOFR/subscriber/new, enter your email address, then 1021...... 25338 follow the instructions to join, leave, or manage your 26 CFR 12 CFR subscription. 1...... 26848 50...... 26835 PENS (Public Law Electronic Notification Service) is an e-mail 54...... 26351 249...... 26835 service that notifies subscribers of recently enacted laws. 329...... 26835 Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 1024...... 25279 1...... 25376 and select Join or leave the list (or change settings); then follow 1026...... 26319 29 CFR the instructions. 13 CFR 2560...... 26351 FEDREGTOC and PENS are mailing lists only. We cannot 2590...... 26351 respond to specific inquiries. 120...... 26321, 26324 Reference questions. Send questions and comments about the 14 CFR 30 CFR Federal Register system to: [email protected] 21...... 26326 Proposed Rules: The Federal Register staff cannot interpret specific documents or 39...... 26842 935...... 26413 regulations. 61...... 26326 31 CFR 63...... 26326 FEDERAL REGISTER PAGES AND DATE, MAY 65...... 26326 208...... 25285 71 ...... 25283, 26601, 26602, 32 CFR 25279–26316...... 1 26604, 26605, 26607, 26608, 26319–26600...... 4 26609, 26845, 26846 199...... 26355 26601–26834...... 5 91...... 26326 33 CFR 26835–27104...... 6 97...... 26611, 26613 107...... 26326 100...... 26355 125...... 26326 117...... 26358 141...... 26326 165...... 26359, 26615 Proposed Rules: Proposed Rules: 39 ...... 25343, 25346, 25351, 100...... 26903 25354, 26374, 26375, 26888, 26891, 26893, 26896 36 CFR 71...... 26898, 26901 1253...... 26848 399...... 26633 1290...... 26848 15 CFR 37 CFR Proposed Rules: Proposed Rules: 922...... 25357 360...... 26906

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40 CFR 431...... 25508 2...... 26438 30...... 27088 9...... 26617, 26617 438...... 25508 18...... 26438 50...... 27088 52 ...... 25291, 25293, 25299, 457...... 25508 54...... 25380, 26653 52 ...... 27087, 27088, 27098, 482...... 25508 27101 25301, 25305, 26361 48 CFR 721...... 26617 485...... 25508 Ch. 1...... 27086, 27102 Proposed Rules: Proposed Rules: 49 CFR 1 ...... 27087, 27088, 27098 50...... 26634 Ch. IV...... 26438 1333...... 26858, 26866 2...... 27087 52 ...... 25377, 25379, 26418, 1570...... 25313 45 CFR 4...... 27101 26635, 26641, 26643, 26647, 156...... 25640 5...... 27088 Proposed Rules: 26907 170...... 25640 8...... 27088 Ch. X...... 26915 271...... 26911 171...... 25640 9...... 27088 721...... 26419 12...... 27088, 27098 50 CFR 47 CFR 13...... 27088 17...... 26786 42 CFR 64...... 26857 15...... 27088 219...... 27028 406...... 25508 76...... 26364 19...... 27088, 27101 300...... 25315 407...... 25508 96...... 25309 22...... 27087, 27088 635...... 26365 422...... 25508 Proposed Rules: 25 ...... 27088, 27098, 27101 648...... 26874 423...... 25508 1...... 26438 29...... 27098 665...... 26622

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