Vol. 85 Monday, No. 66 April 6, 2020

Pages 19077–19374

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 66

Monday, April 6, 2020

Agriculture Department Environmental Protection Agency See Animal and Plant Health Inspection Service RULES NOTICES Air Quality State Implementation Plans; Approvals and Agency Information Collection Activities; Proposals, Promulgations: Submissions, and Approvals, 19132 Florida; Infrastructure Requirements for the 2015 8-Hour Ozone National Ambient Air Quality Standard, Alcohol, Tobacco, Firearms, and Explosives Bureau 19089–19093 NOTICES New Hampshire; Negative Declaration for the Oil and Gas Agency Information Collection Activities; Proposals, Industry, 19087–19089 Submissions, and Approvals: Tennessee; Chattanooga Miscellaneous Revisions, 19093– Application for Alternate Means of Identification of 19096 Firearm(s) (Marking Variance), 19160–19161 Texas; Dallas-Fort Worth Area Redesignation and Initial Suitability Request, 19161–19162 Maintenance Plan for Revoked Ozone National Request for Background Investigation Information, 19160 Ambient Air Quality Standards: Air Plan Approval, 19096–19109 Animal and Plant Health Inspection Service PROPOSED RULES NOTICES Air Quality State Implementation Plans; Approvals and Agency Information Collection Activities; Proposals, Promulgations: Submissions, and Approvals: New Hampshire; Negative Declaration for the Oil and Gas Importation of Beef and Ovine Meat From Uruguay and Industry, 19116 Beef From Argentina and Brazil, 19132–19133 NOTICES Pesticide Reregistration Performance Measures and Goals; Annual Progress Report, 19146 Centers for Medicare & Medicaid Services RULES Federal Aviation Administration Medicare and Medicaid Programs: RULES Policy and Regulatory Revisions in Response to the Airworthiness Directives: COVID–19 Public Health Emergency, 19230–19292 Airbus Helicopters, 19077–19082 PROPOSED RULES Civil Rights Commission Airworthiness Directives: NOTICES Bell Textron, Inc. (Type Certificate Previously Held by Meetings: Bell Helicopter Textron, Inc.) Helicopters, 19113– Virginia Advisory Committee, 19133–19134 19114 Sikorsky Aircraft Corporation Helicopters, 19110–19112 Coast Guard NOTICES RULES Agency Information Collection Activities; Proposals, Safety Zone: Submissions, and Approvals: Annual Events in the Captain of the Port Buffalo Zone, Extended Operations of Multi-Engine Airplanes, 19211 19087 Waiver of Aeronautical Land Use Assurance Arlington Municipal Airport, Arlington, WA, 19211–19212 Commerce Department See Industry and Security Bureau Federal Communications Commission See International Trade Administration PROPOSED RULES See National Oceanic and Atmospheric Administration Human Exposure to Radiofrequency Electromagnetic Fields, 19117–19126 Comptroller of the Currency Federal Highway Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Buy America Waiver, 19212–19214 Submissions, and Approvals: Final Federal Agency Actions: Retail Foreign Exchange Transactions, 19227–19228 Proposed Highway in Utah, 19214–19215 Defense Department Federal Maritime Commission NOTICES NOTICES Meetings: Order: Military Family Readiness Council; Cancellation, 19143– International Ocean Transportation Supply Chain 19144 Engagement, 19146–19147

Energy Department Federal Motor Carrier Safety Administration See Western Area Power Administration NOTICES NOTICES Qualification of Drivers; Exemption Applications: Meetings: Epilepsy and Seizure Disorders, 19215–19218, 19222– State Energy Advisory Board, 19144 19224, 19226–19227

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Hearing, 19217–19220 Internal Revenue Service Vision, 19220–19222, 19224–19226 RULES Investing in Qualified Opportunity Funds; Correcting Federal Reserve System Amendments, 19082–19087 RULES International Trade Administration Policy on Payment System Risk: U.S. Branches and Agencies of Foreign Banking NOTICES Organizations, 19077 Antidumping or Countervailing Duty Investigations, Orders, NOTICES or Reviews: Change in Bank Control: Carbon and Certain Alloy Steel Wire Rod From the Acquisitions of Shares of a Bank or Bank Holding People’s Republic of China, 19136–19137 Company, 19147 Certain Hot-Rolled Steel Flat Products From the Republic of Korea, 19137–19138 Certain Steel Nails From Taiwan, 19138–19141 Federal Trade Commission Lightweight Thermal Paper From the People’s Republic NOTICES of China, 19135–19136 Proposed Consent Agreement: Small Diameter Graphite Electrodes From the People’s Federal-Mogul Motorparts LLC; Analysis To Aid Public Republic of China, 19134–19135 Comment, 19147–19149 International Trade Commission Food and Drug Administration NOTICES PROPOSED RULES Investigations; Determinations, Modifications, and Rulings, Laboratory Accreditation for Analyses of Foods; Extension etc.: of Comment Period, 19114–19116 Certain Electronic Candle Products and Components NOTICES Thereof, 19158–19159 Assessing the Resource Needs of the Prescription Drug User Fee Act and Biosimilar User Fee Act, 19149–19150 Judicial Conference of the United States NOTICES Health and Human Services Department Meetings: See Centers for Medicare & Medicaid Services Advisory Committee on Criminal Rules, 19160 See Food and Drug Administration Advisory Committee on Evidence Rules, 19159 See Health Resources and Services Administration Justice Department See National Institutes of Health NOTICES See Alcohol, Tobacco, Firearms, and Explosives Bureau Agency Information Collection Activities; Proposals, Labor Department Submissions, and Approvals, 19153–19154 See Mine Safety and Health Administration See Wage and Hour Division Health Resources and Services Administration NOTICES Mine Safety and Health Administration Meetings: NOTICES Council on Graduate Medical Education, 19150–19151 Agency Information Collection Activities; Proposals, National Advisory Council on Nurse Education and Submissions, and Approvals: Practice, 19151 Qualification/Certification Program Request for MSHA Statement of Organization, Functions and Delegations of Individual Identification Number, 19168–19169 Authority, 19151–19152 Petitions for Modification: Supplemental Award: Application of Existing Mandatory Safety Standards, Ryan White HIV/AIDS Program Part F; AIDS Education 19162–19168 and Training Centers National Coordinating Resource Center, 19153 National Institutes of Health NOTICES Homeland Security Department Meetings: See Coast Guard Center for Scientific Review, 19154–19155 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 19154 Housing and Urban Development Department National Institute of Arthritis and Musculoskeletal and NOTICES Skin Diseases, 19156 Agency Information Collection Activities; Proposals, National Institute of Diabetes and Digestive and Kidney Submissions, and Approvals: Diseases, 19155 Youth Homelessness Demonstration Application, 19156– National Institute on Aging, 19154–19156 19158 National Library of Medicine, 19154–19156

Industry and Security Bureau National Oceanic and Atmospheric Administration NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Fisheries of the Northeastern United States: Submissions, and Approvals: Northeast Multispecies Fishery; Removal of Regulations Five-Year Records Retention Requirement for Export Implementing the Closed Area I Hook Gear Haddock Transactions and Boycott Actions, 19134 Special Access Program, 19129–19131

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Recreational Management Measures for the Summer NYSE Arca, Inc., 19208–19210 Flounder Fishery; Fishing Year 2020, 19126–19129 NYSE Chicago, Inc., 19191–19194 NOTICES NYSE National, Inc., 19194–19196 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Surface Transportation Board Surveys To Collect Data on Use of the NOAA National NOTICES Weather Service Cone of Uncertainty, 19143 Discontinuance of Service Exemption: Meetings: Iowa Traction Railway Co. in Cerro Gordo County, IA, Pacific Fishery Management Council, 19142–19143 19210–19211 Western Pacific Fishery Management Council, 19141– 19142 Transportation Department Takes of Marine Mammals Incidental to Specified See Federal Aviation Administration Activities: See Federal Highway Administration Construction of the Port of Alaska’s Petroleum and See Federal Motor Carrier Safety Administration Cement Terminal, Anchorage, AK, 19294–19324 Treasury Department National Science Foundation See Comptroller of the Currency NOTICES See Internal Revenue Service Agency Information Collection Activities; Proposals, Submissions, and Approvals: Wage and Hour Division Survey of Graduate Students and Postdoctorates in RULES Science and Engineering, 19169–19171 Paid Leave under the Families First Coronavirus Response Personnel Management Office Act, 19326–19357 NOTICES Civil Service Retirement System: Western Area Power Administration Present Value Factors, 19171–19174 NOTICES Federal Employees’ Retirement System: Boulder Canyon Project, 19144–19146 Normal Cost Percentages, 19174–19175 Present Value Factors, 19175–19178 Separate Parts In This Issue Postal Regulatory Commission NOTICES Part II New Postal Products, 19178–19179 Health and Human Services Department, Centers for Medicare & Medicaid Services, 19230–19292 Presidential Documents PROCLAMATIONS Part III Special Observances: Commerce Department, National Oceanic and Atmospheric Cancer Control Month (Proc. 10001), 19359–19362 Administration, 19294–19324 National Child Abuse Prevention Month (Proc. 10002), 19363–19364 Part IV National Donate Life Month (Proc. 10003), 19365–19366 Labor Department, Wage and Hour Division, 19326–19357 National Sexual Assault Awareness and Prevention Month (Proc. 10004), 19367–19368 Part V Second Chance Month (Proc. 10005), 19369–19370 Presidential Documents, 19359–19370 ADMINISTRATIVE ORDERS Somalia; Continuation of National Emergency (Notice of Part VI April 3, 2020), 19371–19374 Presidential Documents, 19371–19374 Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 19181–19182, 19184–19185 Reader Aids Self-Regulatory Organizations; Proposed Rule Changes: Consult the Reader Aids section at the end of this issue for Cboe Exchange, Inc., 19182–19184, 19196–19198, 19200– phone numbers, online resources, finding aids, and notice 19203 of recently enacted public laws. Nasdaq ISE, LLC, 19198–19200 To subscribe to the Federal Register Table of Contents Nasdaq PHLX, LLC, 19185–19187, 19190–19191, 19203– electronic mailing list, go to https://public.govdelivery.com/ 19208 accounts/USGPOOFR/subscriber/new, enter your e-mail New York Stock Exchange, LLC, 19187–19190 address, then follow the instructions to join, leave, or NYSE American, LLC, 19179–19181 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.

3 CFR Proclamations: 10001...... 19361 10002...... 19363 10003...... 19365 10004...... 19367 10005...... 19369 Administrative Orders: Notices: Notice of April 3, 2020 ...... 19373 12 CFR Ch. II ...... 19077 14 CFR 39 (2 documents) ...... 19077, 19080 Proposed Rules: 39 (2 documents) ...... 19110, 19113 21 CFR Proposed Rules: 1...... 19114 11...... 19114 16...... 19114 129...... 19114 26 CFR 1...... 19082 29 CFR 826...... 19326 33 CFR 165...... 19087 40 CFR 52 (4 documents) ...... 19087, 19089, 19093, 19096 81...... 19096 Proposed Rules: 52...... 19116 42 CFR 400...... 19230 405...... 19230 409...... 19230 410...... 19230 412...... 19230 414...... 19230 415...... 19230 417...... 19230 418...... 19230 421...... 19230 422...... 19230 423...... 19230 425...... 19230 440...... 19230 482...... 19230 510...... 19230 47 CFR Proposed Rules: 1...... 19117 2...... 19117 18...... 19117 50 CFR Proposed Rules: 648 (2 documents) ...... 19126, 19129

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Rules and Regulations Federal Register Vol. 85, No. 66

Monday, April 6, 2020

This section of the FEDERAL REGISTER will remove references to the Strength of DEPARTMENT OF TRANSPORTATION contains regulatory documents having general Support Assessment (‘‘SOSA’’) ranking; applicability and legal effect, most of which remove references to FBOs’ financial Federal Aviation Administration are keyed to and codified in the Code of holding company (‘‘FHC’’) status; and Federal Regulations, which is published under 14 CFR Part 39 50 titles pursuant to 44 U.S.C. 1510. adopt alternative methods for determining an FBO’s eligibility for a [Docket No. FAA–2018–0019; Product The Code of Federal Regulations is sold by positive net debit cap, the size of its net Identifier 2017–SW–074–AD; Amendment the Superintendent of Documents. debit cap, and its eligibility to request 39–19881; AD 2020–06–12] a streamlined procedure to obtain RIN 2120–AA64 FEDERAL RESERVE SYSTEM maximum daylight overdraft capacity. The Board selected April 1, 2020, as the Airworthiness Directives; Airbus 12 CFR Chapter II implementation date for these Helicopters amendments in response to a comment [Docket No. OP–1589] AGENCY: Federal Aviation requesting that the Board delay Administration (FAA), DOT. implementation for at least 12 months. Federal Reserve Policy on Payment ACTION: Final rule. System Risk; U.S. Branches and The Board stated ‘‘that a transition Agencies of Foreign Banking period would help FBOs adjust to these SUMMARY: The FAA is adopting a new Organizations changes.’’ 11 airworthiness directive (AD) for Airbus The availability of intraday credit Helicopters Model AS332L2 and AGENCY: Board of Governors of the from the Federal Reserve Banks EC225LP helicopters. This AD requires Federal Reserve System. supports the smooth functioning of determining the accumulated hours ACTION: Notification of delay. payment systems and the settlement and time-in-service (TIS) of certain part- clearing of transactions across a range of numbered main gearbox (MGB) SUMMARY: The Board of Governors of the suspension bar attachment bolts and Federal Reserve System (‘‘Board’’) is credit markets. The coronavirus outbreak has disrupted economic fittings, applying a life limit add-on delaying the implementation date of factor, and inspecting the torque of activity and financial markets in the changes to part II of the Federal Reserve certain MGB suspension bar attachment United States. In light of these ongoing Policy on Payment System Risk (‘‘PSR nuts. This AD was prompted by a report disruptions, the Board believes that, out policy’’) related to procedures for of torque loss on an MGB suspension determining the net debit cap and of an abundance of caution, it should bar bolt. The actions of this AD are maximum daylight overdraft capacity of extend the transition period to October intended to address an unsafe condition a U.S. branch or agency of a foreign 1, 2020. This additional time will allow on these products. banking organization (‘‘FBO’’). FBOs and the Reserve Banks to focus on DATES: This AD is effective May 11, DATES: The implementation date of the other heightened priorities rather than 2020. amendments to the PSR policy establishing new arrangements for The Director of the Federal Register published on April 1, 2019 (84 FR accessing intraday credit. approved the incorporation by reference 12049), has been delayed from April 1, Accordingly, the Board is delaying the of certain documents listed in this AD 2020 to October 1, 2020. implementation date of the amendments as of May 11, 2020. FOR FURTHER INFORMATION CONTACT: to the PSR policy from April 1, 2020, to ADDRESSES: For service information Jeffrey Walker, Deputy Associate October 1, 2020. identified in this final rule, contact Director (202–721–4559), Jason Hinkle, Airbus Helicopters, 2701 N Forum Assistant Director (202–912–7805); or By order of the Board of Governors of the Federal Reserve System, March 24, 2020. Drive, Grand Prairie, TX 75052; Brajan Kola, Senior Financial Institution telephone 972–641–0000 or 800–232– Michele Taylor Fennell, and Policy Analyst (202–736–5683), 0323; fax 972–641–3775; or at https:// Division of Reserve Bank Operations Assistant Secretary of the Board. www.airbus.com/helicopters/services/ and Payment Systems; or Evan [FR Doc. 2020–06482 Filed 4–3–20; 8:45 am] technical-support.html. You may view Winerman, Senior Counsel (202–872– BILLING CODE 6210–01–P this referenced service information at 7578), Legal Division, Board of the FAA, Office of the Regional Counsel, Governors of the Federal Reserve Southwest Region, 10101 Hillwood System. For users of Pkwy., Room 6N–321, Fort Worth, TX Telecommunications Device for the Deaf 76177. It is also available on the internet (TDD) only, please call 202–263–4869. at https://www.regulations.gov by SUPPLEMENTARY INFORMATION: On April searching for and locating Docket No. 1, 2019, the Board approved FAA–2018–0019. amendments to part II of the PSR policy, which establishes the maximum levels Examining the AD Docket of daylight overdrafts that depository You may examine the AD docket on institutions may incur in their Federal the internet at https:// Reserve accounts.10 These amendments www.regulations.gov in Docket No. FAA–2018–0019; or in person at Docket 10 84 FR 12049 (April 1, 2019). 11 Id. at 12056. Operations between 9 a.m. and 5 p.m.,

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Monday through Friday, except Federal an add-on factor listed in the applicable replacing pins if an incorrect torque holidays. The AD docket contains this service information. For each fitting that value was applied and reporting the AD, the European Union Aviation meets or exceeds its life limit, the information to Airbus Helicopters. Safety Agency (previously European NPRM proposed to require removing the Comments Aviation Safety Agency) (EASA) AD, fitting from service before further flight. any service information that is For each fitting that has not exceeded its The FAA gave the public the incorporated by reference, any life limit, the NPRM proposed to require opportunity to participate in developing comments received, and other continuing to calculate and record the this AD, but the FAA did not receive information. The street address for life limit of each fitting on its any comments on the NPRM. Docket Operations is U.S. Department of component history card or equivalent FAA’s Determination Transportation, Docket Operations, M– record and removing the fitting from 30, West Building Ground Floor, Room service before reaching its life limit. These helicopters have been approved W12–140, 1200 New Jersey Avenue SE, For Model AS332L2 helicopters, the by EASA and are approved for operation Washington, DC 20590. NPRM proposed to require, within 150 in the United States. Pursuant to the FOR FURTHER INFORMATION CONTACT: Matt hours TIS (without applying an add on- FAA’s bilateral agreement with the Fuller, Senior Aviation Safety Engineer, factor), inspecting the torque of each European Union, EASA has notified the Safety Management Section, Rotorcraft MGB suspension bar fitting front and FAA of the unsafe condition described Standards Branch, FAA, 10101 rear nut. If the torque on any nut is in its AD. The FAA is issuing this AD Hillwood Pkwy., Fort Worth, TX 76177; higher than the maximum allowable after evaluating all information telephone 817–222–5110; email limit, the NPRM proposed to require provided by EASA and determining the removing the nut and its bolt from [email protected]. unsafe condition exists and is likely to service before further flight. If the torque SUPPLEMENTARY INFORMATION: exist or develop on other helicopters of on any nut is lower than the minimum these same type designs and that air Discussion allowable limit, the NPRM proposed to safety and the public interest require require tightening the nut before further On December 9, 2019, at 84 FR 67248, adopting the AD requirements as flight and removing the nut and its bolt proposed. the Federal Register published the from service within 150 hours TIS. FAA’s notice of proposed rulemaking The proposed requirements were Differences Between This AD and the (NPRM), which proposed to amend 14 intended prevent the MGB suspension EASA AD CFR part 39 by adding an AD that bar bolts and fittings remaining in The EASA AD allows an optional 150 would apply to Airbus Helicopters service beyond their fatigue life, which hours TIS extension to the life limit of Model AS332L2 and EC225LP could result in structural failure of the an affected fitting for Model AS 332 L2 helicopters, with an MGB suspension MGB suspension bar and loss of helicopters by performing dye-penetrant bar front attachment bolt (bolt) part helicopter control. number (P/N) 332A22–1613–21 or The NPRM was prompted by EASA inspections. This AD does not allow this 332A22–1613–20, MGB suspension bar AD No. 2017–0189, dated September 22, option. For Model AS 332 L2 rear bolt P/N 332A22–1614–20, MGB 2017, issued by EASA, which is the helicopters, the EASA AD requires suspension bar front attachment fitting Technical Agent for the Member States replacing pins (bolts) that are (fitting) P/N 332A22–1623–01, MGB of the European Union, to correct an replacement pins installed before the suspension bar rear left hand fitting P/ unsafe condition for Airbus Helicopters AD’s effective date with an incorrect N 332A22–1624–02 or 332A22–1624– (formerly Eurocopter, Eurocopter torque value applied. This AD requires 04, or MGB suspension bar rear right France, Aerospatiale) Model AS 332 L2 inspecting the torque for each nut for hand fitting P/N 332A22–1624–03 or and EC 225 LP helicopters. EASA Model AS 332 L2 helicopters instead 332A22–1624–05 installed. advises that the installation of the MGB and depending on the outcome, For Airbus Helicopters Model upper deck fittings of the three MGB removing the nut and its bolt from AS332L2 and EC225LP helicopters, the suspension bars could lead to tightening service. The EASA AD requires NPRM proposed to require, within 30 torque loss on the fittings’ attachment reporting certain information to Airbus hours time-in-service (TIS), re- pins (bolts). Due to design similarities, Helicopters, while this AD does not. calculating the life limit accumulated by Model AS 332 L2 helicopters could also Related Service Information Under 1 each front and rear bolt by applying an be affected by the same installation CFR Part 51 add-on factor listed in the applicable condition. An investigation determined service information. For each bolt that that the life limits in the Airworthiness The FAA reviewed Airbus Helicopters meets or exceeds its life limit, also Limitations Sections for the pins and Emergency Alert Service Bulletin known as service life limit (SLL), the fittings are valid if an ‘‘add-on penalty (EASB) No. 01.00.86 for Model AS332 NPRM proposed to require removing factor’’ is applied. helicopters and Airbus Helicopters each bolt from service before further EASA states that this condition, if not EASB No. 04A013 for Model EC225LP flight. For each bolt that has not corrected, could lead to structural helicopters, both Revision 1 and dated exceeded its life limit, the NPRM failure of the MGB suspension bar August 25, 2017. This service proposed to require continuing to attachment pins or fittings. Accordingly, information specifies applying an add- calculate and record the life limit of the EASA AD requires applying the add- on factor to the flying hours logged by each bolt on its component history card on penalty factor to the flight hours to the pins and fittings and replacing them or equivalent record and removing the re-calculate the life limits and replacing if the SLL is exceeded. If an incorrect bolt from service before reaching its life an affected part before exceeding its life tightening torque value was applied to limit. limit. EASA further advises that Airbus the pins, the service information For Model AS332L2 helicopters, the Helicopters’ initial service information specifies replacing the pins and NPRM proposed to require, within 30 contained an error that may have contacting Airbus Helicopters. hours TIS, re-calculating the life limit resulted in the installation of pins or This service information is reasonably accumulated by the front, rear left hand, fittings using an incorrect torque value. available because the interested parties and rear right hand fittings by applying As a result, the EASA AD also requires have access to it through their normal

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course of business or by the means under the criteria of the Regulatory Emergency Alert Service Bulletin No. identified in the ADDRESSES section. Flexibility Act. 04A013, Revision 1, dated August 25, 2017, as applicable to your model helicopter. Costs of Compliance List of Subjects in 14 CFR Part 39 Note 1 to paragraph (e)(1)(i) of this AD: The FAA estimates that this AD Air transportation, Aircraft, Aviation Airbus Helicopters refers to bolts as ‘‘pins.’’ (A) Before further flight, remove from affects 23 helicopters of U.S. Registry. safety, Incorporation by reference, service any bolt that has reached or exceeded The FAA estimates that operators may Safety. its life limit. incur the following costs in order to Adoption of the Amendment (B) For each bolt that has not exceeded its comply with this AD. Labor costs are life limit, continue to calculate and record estimated at $85 per work-hour. Accordingly, under the authority the life limit on its component history card Determining the adjusted life limit for delegated to me by the Administrator, or equivalent record by applying the add-on the bolts and fittings takes about 0.5 the FAA amends 14 CFR part 39 as factor each time the helicopter accumulates work-hour for an estimated cost of $43 follows: hours TIS, and remove from service any bolt per helicopter and $989 for the U.S. before reaching its life limit. (ii) Thereafter following paragraph (e)(1)(i) fleet. PART 39—AIRWORTHINESS DIRECTIVES of this AD, continue to calculate and record Replacing a bolt takes about 4 work- the life limit of each bolt on its component hours and parts cost about $89 for an ■ 1. The authority citation for part 39 history card or equivalent record by applying estimated cost of $429 per bolt. continues to read as follows: the add-on factor each time the helicopter There are no costs of compliance for accumulates hours TIS and remove from replacing a fitting and inspecting, and if Authority: 49 U.S.C. 106(g), 40113, 44701. service any bolt before reaching its life limit. necessary tightening, the torque for § 39.13 [Amended] (2) For Model AS332L2 helicopters, within Model AS332L2 helicopters by this AD 30 hours TIS, review records to determine ■ because there are no Model AS332L2 2. The FAA amends § 39.13 by adding the total hours TIS of each MGB suspension helicopters on the U.S. Registry. the following new airworthiness bar fitting. directive (AD): (i) Determine the life limit of each fitting Authority for This Rulemaking by applying the hours TIS by the add-on 2020–06–12 Airbus Helicopters: factor listed in Table No. 1 of EASB 01.00.86. Title 49 of the United States Code Amendment 39–19881; Docket No. (A) Before further flight, remove from specifies the FAA’s authority to issue FAA–2018–0019; Product Identifier service any fitting that has reached or 2017–SW–074–AD. rules on aviation safety. Subtitle I, exceeded its life limit. section 106, describes the authority of (a) Applicability (B) For each fitting that has not exceeded the FAA Administrator. Subtitle VII: This AD applies to Airbus Helicopters its life limit, continue to calculate and record Aviation Programs, describes in more Model AS332L2 and EC225LP helicopters, the life limit on its component history card detail the scope of the Agency’s certificated in any category, with a main or equivalent record by applying the add-on authority. gearbox (MGB) suspension bar front factor each time the helicopter accumulates The FAA is issuing this rulemaking attachment bolt (bolt) part number (P/N) hours TIS, and remove from service any fitting before reaching its life limit. under the authority described in 332A22–1613–21 or 332A22–1613–20, MGB suspension bar rear bolt P/N 332A22–1614– (ii) Thereafter following paragraph (e)(2)(i) Subtitle VII, Part A, Subpart III, Section of this AD, continue to calculate and record 44701: General requirements. Under 20, MGB suspension bar front attachment fitting (fitting) P/N 332A22–1623–01, MGB the life limit of each fitting on its component that section, Congress charges the FAA suspension bar rear left hand fitting P/N history card or equivalent record by applying with promoting safe flight of civil 332A22–1624–02 or 332A22–1624–04, or the add-on factor each time the helicopter aircraft in air commerce by prescribing MGB suspension bar rear right hand fitting P/ accumulates hours TIS and remove from regulations for practices, methods, and N 332A22–1624–03 or 332A22–1624–05 service any fitting before reaching its life procedures the Administrator finds installed. limit. necessary for safety in air commerce. (3) For Model AS332L2 helicopters, within (b) Unsafe Condition 150 hours TIS (without the add-on factor), This regulation is within the scope of inspect the torque of each MGB suspension that authority because it addresses an This AD defines the unsafe condition as MGB suspension bar bolts and fittings bar attachment front and rear nut. The unsafe condition that is likely to exist or remaining in service beyond their fatigue life allowable torque for each front nut is 602– develop on helicopters identified in this and loose MGB suspension bar bolts or 663 lbf. in (6.8–7.5 daN.m) and the allowable rulemaking action. fittings, which could result in structural torque for each rear nut is 337–398 lbf. in (3.8–4.5 daN.m). Regulatory Findings failure of the MGB suspension bar and loss of helicopter control. (i) If the torque on any nut is higher than This AD will not have federalism the maximum allowable torque stated in implications under Executive Order (c) Effective Date paragraph (e)(3) of this AD, before further 13132. This AD will not have a This AD becomes effective May 11, 2020. flight, remove from service the bolt and nut. substantial direct effect on the States, on (ii) If the torque on any nut is lower than (d) Compliance the minimum allowable torque value stated the relationship between the national You are responsible for performing each in paragraph (e)(3) of this AD, before further government and the States, or on the action required by this AD within the flight, tighten the nut to the allowable torque distribution of power and specified compliance time unless it has stated in paragraph (e)(3) of this AD. Within responsibilities among the various already been accomplished prior to that time. 150 hours TIS (without the add-on factor), levels of government. remove from service any bolt and nut that (e) Required Actions For the reasons discussed above, I were tightened as required by this paragraph. (1) Within 30 hours time-in-service (TIS), certify that this AD: (f) Alternative Methods of Compliance 1. Is not a ‘‘significant regulatory review records to determine the total hours TIS of each MGB suspension bar bolt. (AMOCs) action’’ under Executive Order 12866, (i) Determine the life limit of each bolt by (1) The Manager, Safety Management 2. Will not affect intrastate aviation in applying the hours TIS by the add-on factor Section, Rotorcraft Standards Branch, FAA, Alaska, and listed in Table No. 1 of Airbus Helicopters may approve AMOCs for this AD. Send your 3. Will not have a significant Emergency Alert Service Bulletin No. proposal to: Matt Fuller, Senior Aviation economic impact, positive or negative, 01.00.86, Revision 1, dated August 25, 2017 Safety Engineer, Safety Management Section, on a substantial number of small entities (EASB 01.00.86), or Airbus Helicopters Rotorcraft Standards Branch, FAA, 10101

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Hillwood Pkwy., Fort Worth, TX 76177; DEPARTMENT OF TRANSPORTATION Safety Management Section, Rotorcraft telephone 817–222–5110; email 9-ASW-FTW- Standards Branch, FAA, 10101 [email protected]. Federal Aviation Administration Hillwood Pkwy., Fort Worth, TX 76177; (2) For operations conducted under a 14 telephone 817–222–5110; email CFR part 119 operating certificate or under 14 CFR Part 39 [email protected]. 14 CFR part 91, subpart K, the FAA suggests [Docket No. FAA–2019–1015; Product SUPPLEMENTARY INFORMATION: that you notify your principal inspector, or Identifier 2018–SW–104–AD; Amendment Discussion lacking a principal inspector, the manager of 39–19882; AD 2020–06–13] the local flight standards district office or On December 9, 2019, at 84 FR 67246, certificate holding district office, before RIN 2120–AA64 the Federal Register published the operating any aircraft complying with this FAA’s notice of proposed rulemaking Airworthiness Directives; Airbus AD through an AMOC. (NPRM), which proposed to amend 14 Helicopters (g) Additional Information CFR part 39 by adding an AD that AGENCY: Federal Aviation would apply to Airbus Helicopters The subject of this AD is addressed in Administration (FAA), DOT. Model AS332C, AS332C1, AS332L, and European Union Aviation Safety Agency ACTION: Final rule. AS332L1 helicopters, with an MGB (previously European Aviation Safety suspension bar right-hand side (RH) rear Agency) (EASA) AD No. 2017–0189, dated SUMMARY: The FAA is adopting a new fitting part number (P/N) 330A22–2702– September 22, 2017. You may view the EASA airworthiness directive (AD) for Airbus 07 and bolt P/N 330A22–0135–20, MGB AD on the internet at https:// Helicopters Model AS332C, AS332C1, suspension bar left-hand side (LH) rear www.regulations.gov in Docket No. FAA– AS332L, and AS332L1 helicopters. This fitting P/N 330A22–2702–06 and bolt P/ 2018–0019. AD requires determining the N 330A22–0135–20, or MGB suspension (h) Subject accumulated hours time-in-service (TIS) bar front bolt P/N 330A22–0134–20 Joint Aircraft Service Component (JASC) of certain part-numbered main gearbox installed. The NPRM proposed to Code: 6320, Main Rotor Gearbox. (MGB) suspension bar attachment require within 50 hours TIS, reviewing fittings (fittings) and bolts, and the helicopter records to determine the (i) Material Incorporated by Reference establishes new life limits. This AD was total hours TIS of the MGB suspension (1) The Director of the Federal Register prompted by the outcome of tests and bar RH and LH rear fittings. The NPRM approved the incorporation by reference of analyses performed by Airbus also proposed to require removing from the service information listed in this Helicopters. The actions of this AD are service the RH rear fitting and its bolts paragraph under 5 U.S.C. 552(a) and 1 CFR intended to address an unsafe condition and the LH rear fitting and its bolts part 51. on these products. based on the accumulated total hours (2) You must use this service information DATES: This AD is effective May 11, TIS of the fittings and other conditions. as applicable to do the actions required by 2020. Thereafter, the NPRM proposed to this AD, unless the AD specifies otherwise. require removing from service the RH ADDRESSES: For service information (i) Airbus Helicopters Emergency Alert rear fitting and its bolts at intervals not Service Bulletin (EASB) No. 01.00.86, identified in this final rule, contact to exceed 1,470 hours TIS, removing Revision 1, dated August 25, 2017. Airbus Helicopters, 2701 N Forum from service the LH rear fitting at (ii) Airbus Helicopters EASB No. 04A013, Drive, Grand Prairie, TX 75052; intervals not to exceed 13,600 hours Revision 1, dated August 25, 2017. telephone 972–641–0000 or 800–232– TIS, and removing from service the LH (3) For service information identified in 0323; fax 972–641–3775; or at https:// rear bolts during each Major Inspection this AD, contact Airbus Helicopters, 2701 N www.airbus.com/helicopters/services/ ‘‘G.’’ Finally, the NPRM proposed to Forum Drive, Grand Prairie, TX 75052; technical-support.html. You may view require removing from service the front telephone 972–641–0000 or 800–232–0323; the referenced service information at the bolts during each Major Inspection ‘‘G.’’ fax 972–641–3775; or at https:// FAA, Office of the Regional Counsel, The proposed requirements were www.airbus.com/helicopters/services/ Southwest Region, 10101 Hillwood intended to prevent structural failure of technical-support.html. Pkwy., Room 6N–321, Fort Worth, TX the MGB suspension bar fittings and (4) You may view this service information 76177. bolts, possibly resulting in detachment at FAA, Office of the Regional Counsel, Examining the AD Docket of the MGB suspension bars. Southwest Region, 10101 Hillwood Pkwy., The NPRM was prompted by EASA Room 6N–321, Fort Worth, TX 76177. For You may examine the AD docket on AD No. 2018–0260, dated December 3, information on the availability of this the internet at https:// 2018, issued by EASA, which is the material at the FAA, call 817–222–5110. www.regulations.gov in Docket No. Technical Agent for the Member States (5) You may view this service information FAA–2019–1015; or in person at Docket of the European Union, to correct an that is incorporated by reference at the Operations between 9 a.m. and 5 p.m., unsafe condition for Airbus Helicopters National Archives and Records Monday through Friday, except Federal (formerly Eurocopter, Eurocopter Administration (NARA). For information on holidays. The AD docket contains this France, Aerospatiale) Model AS 332 C, the availability of this material at NARA, AD, the European Union Aviation AS 332 C1, AS 332 L, and AS 332 L1 email [email protected], or go to: https:// Safety Agency (previously European helicopters. From review of reported www.archives.gov/federal-register/cfr/ibr- Aviation Safety Agency) (EASA) AD, Model EC 225 LP data, EASA advises locations.html. any comments received, and other that the installation of the MGB upper information. The street address for Issued on March 25, 2020. deck fittings of the three MGB Docket Operations is U.S. Department of suspension bars could lead to tightening Lance T. Gant, Transportation, Docket Operations, M– torque loss on the fittings’ attachment Director, Compliance & Airworthiness 30, West Building Ground Floor, Room screws (bolts). Due to design Division, Aircraft Certification Service. W12–140, 1200 New Jersey Avenue SE, similarities, Model AS 332 C, AS 332 [FR Doc. 2020–07140 Filed 4–3–20; 8:45 am] Washington, DC 20590. C1, AS 332 L, and AS 332 L1 BILLING CODE 4910–13–P FOR FURTHER INFORMATION CONTACT: Matt helicopters could also be affected by the Fuller, Senior Aviation Safety Engineer, same installation condition.

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Investigations determined that a life thereafter. This service information also 2. Will not affect intrastate aviation in limit reduction of the MGB suspension establishes a life limit for the front MGB Alaska, and bar fittings and screws was necessary for attachment screws. 3. Will not have a significant these model helicopters. economic impact, positive or negative, Costs of Compliance EASA states that this condition, if not on a substantial number of small entities corrected, could lead to structural The FAA estimates that this AD under the criteria of the Regulatory failure of the MGB suspension bar affects 14 helicopters of U.S. Registry. Flexibility Act. The FAA estimates that operators may fittings and screws, possibly resulting in List of Subjects in 14 CFR Part 39 detachment of the MGB suspension incur the following costs in order to bars. Accordingly, the EASA AD comply with this AD. Labor costs are Air transportation, Aircraft, Aviation requires determining the accumulated estimated at $85 per work-hour. safety, Incorporation by reference, service life of the affected parts and Determining the total hours TIS of the Safety. introduced new life limits. rear MGB fittings takes about 0.5 work- Adoption of the Amendment hour for an estimated cost of $43 per Comments helicopter and $602 for the U.S. fleet. Accordingly, under the authority The FAA gave the public the Replacing a rear MGB fitting and its delegated to me by the Administrator, opportunity to participate in developing set of four bolts takes about 8 work- the FAA amends 14 CFR part 39 as this AD, but the FAA did not receive hours and parts cost about $12,937, for follows: any comments on the NPRM. an estimated cost of $13,617 per PART 39—AIRWORTHINESS replacement cycle. FAA’s Determination Replacing a set of four MGB DIRECTIVES These helicopters have been approved attachment bolts takes about 4 work- ■ 1. The authority citation for part 39 by EASA and are approved for operation hours and parts cost about $224, for an continues to read as follows: in the United States. Pursuant to the estimated cost of $564 per replacement FAA’s bilateral agreement with the cycle. Authority: 49 U.S.C. 106(g), 40113, 44701. European Union, EASA has notified the Replacing a LH rear MGB fitting takes § 39.13 [Amended] FAA of the unsafe condition described about 8 work-hours and parts cost about ■ in its AD. The FAA is issuing this AD $12,713, for an estimated cost of 2. The FAA amends § 39.13 by adding after evaluating all information $13,393 per replacement cycle. the following new airworthiness provided by EASA and determining the directive (AD): Authority for This Rulemaking unsafe condition exists and is likely to 2020–06–13 Airbus Helicopters: exist or develop on other helicopters of Title 49 of the United States Code Amendment 39–19882; Docket No. these same type designs and that air specifies the FAA’s authority to issue FAA–2019–1015; Product Identifier 2018–SW–104–AD. safety and the public interest require rules on aviation safety. Subtitle I, adopting the AD requirements as section 106, describes the authority of (a) Applicability proposed. the FAA Administrator. Subtitle VII: This AD applies to Airbus Helicopters Aviation Programs, describes in more Model AS332C, AS332C1, AS332L, and Interim Action detail the scope of the Agency’s AS332L1 helicopters, certificated in any The FAA considers this AD to be an authority. category, with a main gearbox (MGB) interim action. The design approval The FAA is issuing this rulemaking suspension bar right-hand side (RH) rear holder is currently developing a under the authority described in attachment fitting (fitting) part number (P/N) 330A22–2702–07 and bolt P/N 330A22– modification that will address the Subtitle VII, Part A, Subpart III, Section 0135–20, MGB suspension bar left-hand side unsafe condition identified in this AD. 44701: General requirements. Under (LH) rear fitting P/N 330A22–2702–06 and Once this modification is developed, that section, Congress charges the FAA bolt P/N 330A22–0135–20, or MGB approved, and available, the FAA might with promoting safe flight of civil suspension bar front bolt P/N 330A22–0134– consider additional rulemaking. aircraft in air commerce by prescribing 20 installed. regulations for practices, methods, and (b) Unsafe Condition Differences Between This AD and the procedures the Administrator finds EASA AD necessary for safety in air commerce. This AD defines the unsafe condition as The EASA AD allows an option for MGB suspension bar fittings and bolts This regulation is within the scope of remaining in service beyond their fatigue life. the first MGB RH rear fitting that authority because it addresses an This condition could result in failure of an replacement to inspect torque and unsafe condition that is likely to exist or MGB attachment assembly, detachment of an specifies different replacement develop on helicopters identified in this MGB suspension bar, and subsequent loss of compliance times based on the torque rulemaking action. helicopter control. inspection results, whereas this AD does (c) Effective Date not. Regulatory Findings This AD will not have federalism This AD becomes effective May 11, 2020. Related Service Information implications under Executive Order (d) Compliance The FAA reviewed Airbus Helicopters 13132. This AD will not have a You are responsible for performing each Alert Service Bulletin No. AS332– substantial direct effect on the States, on action required by this AD within the 01.00.90, Revision 0, dated November the relationship between the national specified compliance time unless it has 21, 2018. This service information government and the States, or on the already been accomplished prior to that time. specifies determining the accumulated distribution of power and (e) Required Actions hours TIS of certain part-numbered rear responsibilities among the various MGB suspension bar fittings and screws. (1) Within 50 hours time-in-service (TIS), levels of government. review records to determine the total hours This service information further For the reasons discussed above, I TIS of each MGB suspension bar RH and LH specifies criteria to determine the initial certify that this AD: rear fitting. replacement compliance time of those 1. Is not a ‘‘significant regulatory (i) For any RH rear fitting that has parts and a new life limit for those parts action’’ under Executive Order 12866, accumulated 1,470 or more total hours TIS,

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before further flight, remove from service the referenced service information at the FAA, Institutions and Products); concerning RH rear fitting and its bolts. Office of the Regional Counsel, Southwest issues related to investments by foreign (ii) For any RH rear fitting that has Region, 10101 Hillwood Pkwy., Room 6N– persons, Eric Florenz, (202) 317–6941, accumulated less than 1,470 total hours TIS, 321, Fort Worth, TX 76177. or Milton Cahn (202) 317–6937, of the remove from service the RH rear fitting and (2) The subject of this AD is addressed in its bolts before the fitting accumulates 1,470 European Union Aviation Safety Agency Office of Associate Chief Counsel total hours TIS. (previously European Aviation Safety (International); concerning issues (iii) For any LH rear fitting that has Agency) (EASA) AD No. 2018–0260, dated related to partnerships, S corporations accumulated 13,600 or more total hours TIS, December 3, 2018. You may view the EASA or trusts, Marla Borkson, Sonia Kothari, before further flight, remove from service the AD on the internet at https:// or Vishal Amin, at (202) 317–6850, and LH rear fitting and its bolts. www.regulations.gov in Docket No. FAA– concerning issues related to estates and (iv) For any LH rear fitting that has 2019–1015. gifts, Leslie Finlow or Lorraine Gardner, accumulated less than 13,600 total hours TIS: (h) Subject at (202) 317–6859, of the Office of (A) If a Major Inspection ‘‘G’’ has not been Associate Chief Counsel (Passthroughs completed since the LH rear fitting has been Joint Aircraft Service Component (JASC) installed, remove from service the LH rear Code: 6320 Main Rotor Gearbox. and Special Industries). These numbers are not toll-free numbers. bolts during the next Major Inspection ‘‘G’’ Issued on March 27, 2020. inspection; or SUPPLEMENTARY INFORMATION: Note 1 to paragraph (e)(1)(iv)(A) of this AD: Lance T. Gant, Major Inspection ‘‘G’’ (7,500 hours TIS Director, Compliance & Airworthiness Background between overhauls) is defined in Division, Aircraft Certification Service. The final regulations (TD 9889) that Maintenance Manual MET 05–29–00–601. [FR Doc. 2020–07138 Filed 4–3–20; 8:45 am] are the subject of this correction are (B) If a Major Inspection ‘‘G’’ has been BILLING CODE 4910–13–P under section 1400Z–2 of the Code. completed since the LH rear fitting has been installed, before further flight, remove from Need for Correction service the LH rear bolts; and DEPARTMENT OF THE TREASURY As published on January 13, 2020 (85 (C) Remove from service the LH rear fitting FR 1866) contained errors that may before the fitting accumulates 13,600 total hours TIS. Internal Revenue Service prove to be misleading and need to be (2) Thereafter following paragraph (e)(1) of corrected. 26 CFR Part 1 this AD, remove from service any RH rear List of Subjects in 26 CFR Part 1 fitting and its bolts at intervals not to exceed [TD 9889] 1,470 hours TIS, remove from service any LH Income taxes, Reporting and rear fitting at intervals not to exceed 13,600 RIN 1545–BO4 recordkeeping requirements. hours TIS, and remove from service any LH rear bolts during each Major Inspection ‘‘G.’’ Investing in Qualified Opportunity Correction of Publication (3) During the next Major Inspection ‘‘G,’’ Funds; Correcting Amendments Accordingly, 26 CFR part 1 is remove from service the MGB suspension bar corrected by making the following front bolts. Thereafter, remove from service AGENCY: Internal Revenue Service (IRS), correcting amendments: the front bolts during each Major Inspection Treasury. ‘‘G.’’ ACTION: Correcting amendments. PART 1—INCOME TAXES (f) Alternative Methods of Compliance ■ (AMOCs) SUMMARY: This document contains Paragraph 1. The authority citation corrections to Treasury Decision 9889, continues to read in part as follows: (1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, which was published in the Federal Authority: 26 U.S.C. 7805 * * * Register on Monday, January 13, 2020. may approve AMOCs for this AD. Send your ■ Par. 2. Section1.1400Z2–0 is proposal to: Matt Fuller, Senior Aviation Treasury Decision 9889 contained final regulations under the Internal Revenue amended: Safety Engineer, Safety Management Section, ■ a. By revising the entry for Rotorcraft Standards Branch, FAA, 10101 Code (the ‘‘Code) that govern the extent Hillwood Pkwy., Fort Worth, TX 76177; to which taxpayers may elect the § 1.1400Z2(a)–1(d)(2); ■ b. In the entry for § 1.1400Z2(b)–1(h) telephone 817–222–5110; email 9-ASW-FTW- Federal income tax benefits with respect introductory text, by removing the [email protected]. to certain equity interests in a qualified language ‘‘S corporations’’; and (2) For operations conducted under a 14 opportunity fund (QOF). CFR part 119 operating certificate or under ■ c. By revising the entry for 14 CFR part 91, subpart K, the FAA suggests DATES: These corrections are effective § 1.1400Z2(d)–1(a)(4). that you notify your principal inspector, or on April 1, 2020, and applicable as of The revisions read as follows: lacking a principal inspector, the manager of January 13, 2020. § 1.1400Z2–0 Table of Contents. the local flight standards district office or FOR FURTHER INFORMATION CONTACT: certificate holding district office, before Concerning section 1400Z–2 and these * * * * * operating any aircraft complying with this regulations generally, Alfred H. Bae, § 1.1400Z2(a)–1 Deferring tax on AD through an AMOC. (202) 317–7006, or Kyle C. Griffin, (202) capital gains by investing in opportunity (g) Additional Information 317–4718, of the Office of Associate zones. (1) Airbus Helicopters Alert Service Chief Counsel (Income Tax and * * * * * Bulletin No. AS332–01.00.90, Revision 0, Accounting); concerning issues related (d) * * * dated November 21, 2018, which is not to C corporations and consolidated (2) Annual reporting of qualifying incorporated by reference, contains groups, Jeremy Aron-Dine, (202) 317– investments. additional information about the subject of 6848, or Sarah Hoyt, (202) 317–5024, of * * * * * this AD. For service information identified in the Office of Associate Chief Counsel § 1.1400Z2(d)–1 Qualified this AD, contact Airbus Helicopters, 2701 N opportunity funds and qualified Forum Drive, Grand Prairie, TX 75052; (Corporate); concerning issues related to telephone 972–641–0000 or 800–232–0323; gains from financial contracts, REITs, or opportunity zone businesses. fax 972–641–3775; or at https:// RICs, Andrea Hoffenson or Pamela Lew, (a) * * * www.airbus.com/helicopters/services/ (202) 317–7053, of the Office of (4) [Reserved] technical-support.html. You may view the Associate Chief Counsel (Financial * * * * *

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■ Par. 3. Section 1.1400Z2(a)–1 is ■ Par. 4. Section 1.1400Z2(b)–1 is ■ h. By revising paragraphs (d)(6)(i) and amended: amended: (iii), (e)(2) introductory text, and ■ a. In paragraph (b)(3) by adding the ■ a. In the last sentence of paragraph (e)(2)(i). language ‘‘described in § 1.1400Z2(d)– (c)(6)(ii)(B), by removing ‘‘§ 1400Z2(c)– The revisions read as follows: 2(d)(4)(ii) that is’’ after the words 1(b)(1)(ii)’’ and adding in its place ‘‘§ 1.1400Z2(c)–1(b)(1)(ii)’’; and § 1.1400Z2(d)–1 Qualified opportunity ‘‘means the test’’; funds and qualified opportunity zone ■ ■ b. In the last sentence of paragraph b. By revising paragraphs (j)(2) businesses. (b)(11)(ix)(A)(2), by removing the introductory text and (j)(2)(i). * * * * * language ‘‘publications’’ and adding in The revisions read as follows: (b) * * * its place ‘‘instructions’’; § 1.1400Z2(b)–1 Inclusion of gains that (4) * * * ■ c. In paragraph (b)(32), by removing have been deferred under section 1400Z– (ii) Property owned by an eligible the word ‘‘business’’; 2(a) entity—(A) Property purchased or ■ d. In the last sentence of paragraph * * * * * constructed. The value of each property (c)(1)(iii)(A), by removing the word (j) * * * owned by an eligible entity that is ‘‘only’’ before ‘‘apply’’; and (2) Prior periods. With respect to the acquired by purchase for fair market ■ e. By revising paragraphs (d)(2), (g)(2) portion of a taxpayer’s first taxable year value or constructed for fair market introductory text, and (g)(2)(i). ending after December 21, 2017, and for value is the eligible entity’s unadjusted The revisions read as follows: taxable years beginning after December cost basis of the asset under section § 1.1400Z2(a)–1 Deferring tax on capital 21, 2017, and on or before March 13, 1012 or section 1013. Solely for gains by investing in opportunity zones. 2020, a taxpayer may choose either— purposes of this paragraph (b)(4)(ii)(A), To apply the section 1400Z–2 * * * * * the acquisition by a QOF of qualified regulations, if applied in a consistent (d) * * * opportunity zone stock or a qualified manner for all such taxable years (2) Annual reporting of qualifying opportunity zone partnership interest is (reliance by a taxpayer on paragraph investments. An eligible taxpayer must treated as a purchase of such interest by (j)(2)(ii) of this section, § 1.1400Z2(a)– report any qualifying investment held at the QOF. 1(g)(2)(ii), § 1.1400Z2(d)–1(e)(2)(ii), any point during the taxable year in * * * * * § 1.1400Z2(d)–2(e)(2)(ii), or accordance with guidance published in (d) * * * § 1.1400Z2(f)–1(d)(2)(ii), is disregarded the Internal Revenue Bulletin or in (3) * * * solely for purposes of the consistency forms and instructions (see (vi) Safe harbor for section 1397C requirement under this paragraph §§ 601.601(d)(2) and 601.602 of this requirements other than ‘‘sin business’’ (j)(2)(i)); or chapter). A failure to make this report prohibition—(A) Maximum 62-month for any given taxable year will result in * * * * * safe harbor for start-up businesses. Property described in paragraphs a rebuttable presumption that the § 1.1400Z2(c)–1 [Amended] taxpayer has had an inclusion event (d)(3)(vi)(B), (C), and (D) of this section ■ described in § 1.1400Z2(b)–1(c) during Par. 5. Section 1.1400Z2(c)–1 is may benefit from one or more 31-month that year. The presumption described in amended: periods, for a total of 62 months, in the ■ the previous sentence may be rebutted a. In the first sentence of paragraph form of multiple overlapping or a by the taxpayer making the report (b)(2)(ii)(A), by removing the language sequential application of the working described in the first sentence of this ‘‘one of more partnerships’’ and adding capital safe harbor if— paragraph (d)(2) or by the taxpayer in its place ‘‘one or more partnerships’’; (1) Each application independently and satisfies all of the requirements in establishing to the satisfaction of the ■ Commissioner that an inclusion event b. In the third sentence of paragraph paragraphs (d)(3)(v)(A) through (C) of described in § 1.1400Z2(b)–1(c) did not (b)(2)(ii)(B)(1), by removing this section; occur during that taxable year. ‘‘§ 1400Z2(b)–1(c)(6)(iv)(B)’’ and adding (2) The working capital assets from an in its place ‘‘§ 1.1400Z2(b)– expiring 31-month period were * * * * * 1(c)(6)(iv)(B)’’. expended in accordance with the (g) * * * ■ Par. 6. Section 1.1400Z2(d)–1 is requirements in paragraphs (d)(3)(v)(A) (2) Prior periods. With respect to amended: through (C) of this section; eligible gains that would be recognized ■ a. In the first sentence of paragraph (3) The subsequent infusions of (absent the making of a deferral (b)(2)(i)(C)(2)(ii), by removing the working capital assets form an integral election) during the portion of a language ‘‘not later than’’ and adding in part of the plan covered by the initial taxpayer’s first taxable year ending after its place ‘‘not earlier than’’; working capital safe harbor period; and December 21, 2017, and during taxable ■ b. By revising paragraph (b)(4)(ii); (4) Each overlapping or sequential years beginning after December 21, ■ c. In the first sentence of paragraph application of the working capital safe 2017, and on or before March 13, 2020, (c)(2)(i)(C)(2), by removing the language harbor includes a substantial amount of a taxpayer may choose either— ‘‘is made by’’ and adding in its place working capital assets (which may (i) To apply the section 1400Z–2 ‘‘may be made by’’; include debt instruments described in regulations, if applied in a consistent ■ d. In paragraph (d)(3)(v)(D), by section 1221(a)(4)). manner for all such taxable years removing the language ‘‘receive up to’’ (B) Safe harbor for gross income (reliance by a taxpayer under paragraph and adding in its place ‘‘receive not derived from the active conduct of (g)(2)(ii) of this section, § 1.1400Z2(b)– more than’’; business. Solely for purposes of 1(j)(2)(ii), § 1.1400Z2(d)–1(e)(2)(ii), ■ e. By removing paragraphs (d)(3)(v)(F) applying the 50-percent test in section § 1.1400Z2(d)–2(e)(2)(ii), or and (G); 1397C(b)(2) to the definition of a § 1.1400Z2(f)–1(d)(2)(ii), is disregarded ■ f. By revising paragraphs (d)(3)(vi) and qualified opportunity zone business in solely for purposes of the consistency (vii); section 1400Z–2(d)(3), if any gross requirement under this paragraph ■ g. By redesignating paragraphs income is derived from property that (g)(2)(i)); or (d)(3)(ix) and (x) as (d)(3)(viii) and (ix), paragraph (d)(3)(v) of this section treats * * * * * respectively; and as a reasonable amount of working

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capital, then that gross income is this cash to establish the restaurant. a qualified opportunity fund. QOF T counted toward satisfaction of the 50- Among the planned uses for the cash are immediately acquired from partnership percent test. identification of favorable locations in P a partnership interest in P, solely in (C) Safe harbor for use of intangible the qualified opportunity zone, leasing exchange for $w million of cash. P property. Solely for purposes of a building suitable for such a restaurant, immediately placed the $w million in applying the use requirement in section outfitting the building with appropriate working capital assets, which remained 1397C(b)(4) to the definition of a equipment and furniture (both owned in working capital assets until used. P qualified opportunity zone business and leased), necessary security deposits, had written plans to acquire land in a under section 1400Z–2(d)(3), intangible obtaining a franchise and local permits, qualified opportunity zone on which it property purchased or licensed by the and the hiring and training of kitchen planned to construct a commercial trade or business, pursuant to the and wait staff. Not-yet-disbursed building. Of the $w million, $x million reasonable written plan with a written amounts were held in assets described was dedicated to the land purchase, $y schedule for the expenditure of the in section 1397C(e)(1), and these assets million to the construction of the working capital, satisfies the use were eventually expended in a manner building, and $z million to ancillary but requirement during any period in which consistent with the plan and schedule. necessary expenditures for the project. the business is proceeding in a manner (2) Analysis. E’s use of the cash The written plans provided for purchase that is substantially consistent with qualifies for the working capital safe of the land within a month of receipt of paragraphs (d)(3)(v)(A) through (C) of harbor described in paragraph (d)(3)(v) the cash from QOF T and for the this section. of this section. remaining $y and $z million to be spent (D) Safe harbor for working capital (B) Example 2. Multiple applications within the next 30 months on and property on which working capital of working capital safe harbor—(1) construction of the building and on the is being expended—(1) Working capital. Facts. QOF G creates a domestic C ancillary expenditures. All expenditures If paragraph (d)(3)(v) of this section corporation H to start a new technology were made on schedule, consuming the treats property of an entity that would company and acquires equity of H in $w million. During the taxable years otherwise be nonqualified financial exchange for cash on Date 1. In addition that overlap with the first 31-month property as being a reasonable amount to H’s rapid deployment of capital period, P had no gross income other of working capital because of received from other equity investors, H than that derived from the amounts held compliance with the three requirements writes a plan with a 30-month schedule in those working capital assets. Prior to of paragraphs (d)(3)(v)(A) through (C) of for the use of the Date 1 cash. The plan completion of the building, P’s only this section, the entity satisfies the describes use of the cash to research and assets were the land it purchased, the requirements of section 1400Z– develop a new technology (Technology), unspent amounts in the working capital 2(d)(2)(D)(i) only during the working including paying salaries for engineers assets, and P’s work in process as the capital safe harbor period(s) for which and other scientists to conduct the building was constructed. the requirements of paragraphs research, purchasing, and leasing (d)(3)(v)(A) through (C) of this section equipment to be used in research and (2) Analysis—P met the three are satisfied; however such property is furnishing office and laboratory space. requirements of the safe harbor not qualified opportunity zone business Approximately 18 months after Date 1, provided in paragraphs (d)(3)(v)(A) property for any purpose. on Date 2, G acquires additional equity through (C) of this section. P had a (2) Tangible property acquired with in H for cash, and H writes a second written plan to spend the $w received covered working capital. If tangible plan. This new plan has a 25-month from QOF T for the acquisition, property referred to in paragraph schedule for the development of a new construction, and/or substantial (d)(3)(v)(A) of this section is expected to application of existing software improvement of tangible property in a satisfy the requirements of section (Application), to be marketed to qualified opportunity zone, as defined 1400Z–2(d)(2)(D)(i) as a result of the government agencies. Among the in section 1400Z–1(a). P had a written planned expenditure of working capital planned uses for the cash received on schedule consistent with the ordinary described in paragraph (d)(3)(v)(A), and Date 2 are paying development costs, start-up for a business for the is purchased, leased, or improved by the including salaries for software expenditure of the working capital trade or business, pursuant to the engineers, other employees, and third- assets. And, finally, P’s working capital written plan for the expenditure of the party consultants to assist in developing assets were actually used in a manner working capital, then the tangible and marketing the new application to that was substantially consistent with property is treated as qualified the anticipated customers. Not-yet- its written plan and the ordinary start- opportunity zone business property disbursed amounts that were scheduled up of a business. First, the $x million, satisfying the requirements of section for development of the Technology and the $y million, and the $z million are 1400Z–2(d)(2)(D)(i), during that and the Application were held in assets treated as reasonable in amount for subsequent working capital periods the described in section 1397C(e)(1), and purposes of sections 1397C(b)(2) and property is subject to, for purposes of these assets were eventually expended 1400Z–2(d)(3)(A)(ii). Second, because P the 70-percent tangible property in a manner substantially consistent had no other gross income during the 31 standard in section 1400Z–2(d)(3). with the plans and schedules for both months at issue, 100 percent of P’s gross (vii) Examples. The following the Technology and the Application. income during that time is treated as examples illustrate the rules of (2) Analysis. H’s use of both the cash derived from an active trade or business paragraphs (d)(3)(v) and (vi) of this received on Date 1 and the cash in the qualified opportunity zone for section. received on Date 2 qualifies for the purposes of satisfying the 50-percent (A) Example 1. General application of working capital safe harbor described in test of section 1397C(b)(2). Third, for working capital safe harbor—(1) Facts. paragraph (d)(3)(v) of this section. purposes of satisfying the requirement QOF F creates a domestic C corporation (C) Example 3. General application of of section 1397C(b)(4), during the period E to open a fast-food restaurant and working capital safe harbor—(1) Facts. of land acquisition and building acquires almost all of the equity of E in In 2019, Taxpayer H realized $w million construction a substantial portion of P’s exchange for cash. E has a written plan of capital gains and within the 180-day intangible property is treated as being and a 20-month schedule for the use of period invested $w million in QOF T, used in the active conduct of a trade or

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business in the qualified opportunity sections 1400Z–2(d)(2)(B)(i)(III), 1400Z– (ii) 70-percent use test. Tangible zone. Fourth, all of the facts described 2(d)(2)(C)(iii), and 1400Z– property held by a trade or business is are consistent with QOF T’s interest in 2(d)(2)(D)(i)(III), if a trade or business qualified tangible property to the extent, P being a qualified opportunity zone causes the QOF to fail the 90-percent based on the number of days between partnership interest for purposes of investment standard on a semiannual two consecutive semiannual testing satisfying the 90-percent investment testing date, the QOF may treat the stock dates, not less than 70 percent of the standard in section 1400Z–2(d)(1). or partnership interest in that trade or total utilization of the tangible property (3) Analysis if P had purchased an business as qualified opportunity zone by the trade or business occurs at a existing building. The conclusions property for that semiannual testing location within the geographic borders would also apply if P’s plans had been date provided the trade or business of a qualified opportunity zone (that is, to buy and substantially improve a pre- corrects the failure within 6 months of the 70-percent use test). existing commercial building. In the date on which the stock or * * * * * addition, the fact that P’s basis in the partnership interest lost its (e) * * * building has not yet doubled would not qualification. (2) Prior periods. With respect to the cause the building to fail to satisfy * * * * * portion of a taxpayer’s first taxable year section 1400Z–2(d)(2)(D)(i)(III). (iii) Each QOF is permitted only one ending after December 21, 2017, and for (D) Example 4. Multiple applications correction for a trade or business taxable years beginning after December of working capital safe harbor to pursuant to this paragraph (d)(6). If the 21, 2017, and on or before March 13, tangible property—(1) Facts. QOF A entity, at the end of the additional six- 2020, a taxpayer may choose either— forms a domestic C corporation B to month cure period, fails to qualify as a (i) To apply the section 1400Z–2 develop a large mixed-use real estate qualified opportunity zone business, regulations, if applied in a consistent development that will consist of then the QOF becomes subject to the manner for all such taxable years commercial and residential real penalty under section 1400Z–2(f)(1) for (reliance by a taxpayer on paragraph property, owning almost all of the each month the entity failed to qualify (e)(2)(ii) of this section, § 1.1400Z2(a)– equity of B in exchange for cash. To as a qualified opportunity zone business 1(g)(2)(ii), § 1.1400Z2(b)–1(j)(2)(ii), raise additional working capital for the beginning with the first month § 1.1400Z2(d)–1(e)(2)(ii), or mixed-use real estate development, B following the last month that the QOF § 1.1400Z2(f)–1(d)(2)(ii), is disregarded also will borrow cash under a new met the 90-percent investment standard. solely for purposes of the consistency revolving credit agreement with an (e) * * * requirement under this paragraph (2) Prior periods. With respect to the unrelated lender. B has a master written (e)(2)(i)); or plan for the completion of the portion of a taxpayer’s first taxable year ending after December 21, 2017, and for * * * * * commercial and residential real ■ property over a 55-month period. The taxable years beginning after December Par. 9. Section 1.1400Z2(f)–1 is 21, 2017, and on or before March 13, amended: plan provides that the commercial real ■ property will be completed over a 30 2020, a taxpayer may choose either— a. In paragraph (b)(2), by removing the month schedule and subsequently, the (i) To apply the section 1400Z–2 language ‘‘up to’’ and adding in its place regulations, if applied in a consistent residential real property will be ‘‘not more than’’; manner for all such taxable years ■ b. By revising paragraph (c)(3)(iii); completed over a 25 month schedule. (reliance by a taxpayer on paragraph ■ c. In the first sentence of paragraph The plan further provides that a portion (e)(2)(ii) of this section, § 1.1400Z2(a)– (c)(3)(v)(B), by adding a comma after of the commercial real property is 1(g)(2)(ii), § 1.1400Z2(b)–1(j)(2)(ii), ‘‘hog and pig farming’’ and removing the unable to be used in a trade or business § 1.1400Z2(d)–2(e)(2)(ii), or word ‘‘is’’ and adding in its place after the completion of the commercial § 1.1400Z2(f)–1(d)(2)(ii), is disregarded ‘‘comprise’’; and real property since that portion of the solely for purposes of the consistency ■ d. By revising paragraphs (d)(2) commercial real property will be requirement under this paragraph introductory text and (d)(2)(i). unusable during the residential (e)(2)(i)); or The revisions read as follows: construction phase. Pursuant to B’s original master plan for the completion * * * * * § 1.1400Z2(f)–1 Administrative rules- of the real estate development, QOF A ■ Par. 7. Section 1.1400Z2(d)–2 is penalties, anti-abuse, etc. acquires additional equity in B for cash amended by revising paragraphs (d)(4)(i) * * * * * after the completion of the commercial and (ii), (e)(2) introductory text, and (c) * * * development phase, and B commences (e)(2)(i) to read as follows: (3) * * * use of those working capital assets for § 1.1400Z2(d)–2 Qualified opportunity zone (iii) Example 3—(A) Facts. Entity C is residential development phase. business property. a QOF that meets the requirements of (2) Analysis. B’s use of the cash for * * * * * section 1400Z–2(d)(1). Entity C owns the commercial and residential phase (d) * * * qualified opportunity zone stock in a qualified for the working capital safe (4) * * * domestic corporation described in harbor described in paragraph (d)(3)(v) (i) Qualified tangible property. section 1400Z–2(d)(2)(B) (Corporation of this section. In addition, all of B’s Tangible property used in a trade or C), which operates a qualified commercial real property developed business of an eligible entity satisfies opportunity zone business. Entity C also pursuant to B’s original master plan is the substantially all requirement of owns Corporation D stock, which is not treated as qualified opportunity zone paragraph (d)(1) of this section if and qualified opportunity zone stock, which business property under paragraph only if the tangible property is qualified stock is less than 10% of the assets of (d)(3)(vi)(D) of this section. tangible property. Qualified tangible Entity C. Under section 1400Z–2(e)(2), * * * * * property is tangible property that these stock holdings cause Entity C to be (6) * * * satisfies the requirements of paragraph related to both Corporation C and (i) For purposes of the 90-percent (d)(4)(ii), (iii) (subject to the limitation Corporation D. On date 1, under section qualified opportunity zone business in paragraph (d)(4)(iv) of this section), 1400Z–2(e)(2), Individual S is not a holding period requirements set forth in or (v) of this section. related person with respect to Entity C,

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Corporation C, or Corporation D. On 142, 1983–2 C.B. 68; Rev. Rul. 78–397, existing’’ and adding in its place ‘‘a pre- that date, Individual S sells tangible 1978–2 C.B. 150. existing’’; property to Corporation C (Asset 1) for * * * * * ■ k. In the last sentence of paragraph use in Corporation C’s qualified (d) * * * (g)(3)(ii), by removing the language opportunity zone business and sells a (2) Prior periods. With respect to the ‘‘includable amount’’ and adding in its second asset to Corporation D (Asset 2). portion of a taxpayer’s first taxable year place ‘‘amount includable’’; Both items sold were capital assets (as ending after December 21, 2017, that ■ l. In the last sentence of paragraph defined in section 1221), and had an began on March 13, 2020, a taxpayer (h)(3)(iii)(A), by removing the closing adjusted basis of $0. As a result, may choose either— bracket at the end; Individual S realizes gain of $100 from (i) To apply the section 1400Z–2 ■ m. In the last sentence of paragraph the sale to Corporation C and $75 from regulations, if applied in a consistent (j)(1)(i), by removing the language ‘‘that the sale to Corporation D. At the time of manner for all such taxable years results in’’ and adding in its place ‘‘that the sale Individual S has a plan or intent (reliance by a taxpayer on paragraph result in’’; to invest $175 in Entity C and to make (d)(2)(ii) of this section, § 1.1400Z2(a)– ■ n. In the fourth sentence of paragraph deferral elections under section 1400Z– 1(g)(2)(ii), § 1.1400Z2(b)–1(j)(2)(ii), (j)(3)(ii)(A), by removing the language 2(a)(1) with respect to the gain from the § 1.1400Z2(d)–1(e)(2)(ii), or ‘‘taken into under’’ and adding in its two sales. On date 2, for $175 Individual § 1.1400Z2(d)–2(e)(2)(ii), is disregarded place ‘‘taken into account under’’; and S acquired an eligible interest in Entity for purposes of the consistency ■ o. By revising paragraph (k)(2) C, an acquisition that causes Individual requirement under this paragraph introductory text. S to become a related person with (d)(2)(i)); or The revisions read as follows: respect to Entity C within the meaning * * * * * of section 1400Z–2(e)(2). Analysis. ■ § 1.1502–14Z Application of opportunity Par. 10. Section 1.1502–14Z is zone rules to members of a consolidated Under paragraph (c)(1) of this section, amended: group. Individual S’s $175 gain is not an ■ a. In paragraph (b)(1)(iv)(A), by eligible gain and cannot be the subject removing the language ‘‘the QOF SAG’’ * * * * * a deferral election under section 1400Z– and adding in its place ‘‘a QOF SAG’’; (f) * * * 2(a)(1). The gain fails to satisfy ■ b. In the first sentence of paragraph (2) * * * § 1.1400Z2a–1(b)(11)(i)(C) because of (b)(1)(iv)(B), by removing the language (i) * * * For each pre-existing QOF Individual S’s plan to acquire sufficient ‘‘the QOF SAG’’ and adding in its place sub of a consolidated group, the equity in Entity C to become related to ‘‘a QOF SAG’’ and removing the consolidated group may make one of the Corporations C and D. Moreover, for the language ‘‘such QOF SAG’’ and adding alternative, irrevocable elections same reason, the tangible property that in its place ‘‘a single QOF SAG’’; provided in paragraphs (f)(2)(ii) through Corporation C purchased from ■ c. In paragraph (b)(1)(iv)(C), by (iv) of this section. * * * Individual S fails to satisfy the removing the language ‘‘the QOF SAG’’ * * * * * requirement that a purchase of qualified and adding in its place ‘‘a QOF SAG’’ (k) * * * opportunity zone business property and removing the language ‘‘such QOF (2) Prior periods. With respect to the must be from an unrelated person. See SAG’’ and adding in its place ‘‘that QOF portion of a consolidated group’s first sections 1400Z–2(d)(2)(D)(i)(I) and SAG’’; taxable year ending after December 21, 179(d)(2)(A). ■ d. In the first sentence of paragraph 2017, and for taxable years beginning (b)(1)(v), by removing the language ‘‘; (B) Circular movement of after December 21, 2017, and on or instead, the rules in this paragraph before March 13, 2020, a consolidated consideration. The facts are the same as (b)(1)(v) apply’’ and adding in its place in paragraph (c)(3)(iii)(A) of this section group may choose either— ‘‘. Instead, those investment standard * * * * * (this Example 3), except that Entity C rules apply’’; contributes the $100 and $75 (received ■ e. In the first sentence of paragraph ■ Par. 11. Section 1.1504–3 is amended: from Individual S) to Corporations C (c)(2)(i), by removing the language ‘‘the ■ a. In the paragraph (b) subject and D, respectively, as part of a plan investment’’ and adding in its place ‘‘an heading, by removing ‘‘affiliation’’ and that includes each transaction described investment’’; adding in its place ‘‘consolidation’’; in paragraph (c)(3)(iii)(A) (collectively, ■ f. In the fourth sentence of paragraph ■ b. In the first sentence of paragraph the transaction series). Under the step (c)(3) introductory text, by removing the (b)(1), by removing ‘‘the issuer’’ and transaction doctrine and circular cash language ‘‘§ 1.1400Z2(b)–1(b)’’ and adding in its place ‘‘any corporation’’; flow principles, this circular movement adding in its place ‘‘§ 1.1400Z2(a)– ■ c. In the last sentence of paragraph of consideration is disregarded for 1(a)(1)’’; (d)(1)(ii), by removing ‘‘–1.1502–100’’ Federal income tax purposes, including ■ g. By revising the first sentence of and adding in its place ‘‘1.1502–100’’; for purposes of section 1400Z–2 and the paragraph (f)(2)(i); and section 1400Z–2 regulations. Therefore, ■ h. In the first sentence of paragraph ■ d. By revising paragraph (e)(2) the transaction series is treated for (f)(2)(ii)(A), by removing the language introductory text. Federal income tax purposes as a ‘‘certain pre-existing QOF subs as QOF The revision reads as follows: contribution by Individual S of Assets 1 partnerships’’ and adding in its place ‘‘a and 2 to Entity C in exchange for an pre-existing QOF sub as a QOF § 1.1504–3 Treatment of stock in a QOF C eligible interest in Entity C, followed by partnership’’; corporation for purposes of consolidation. a contribution by Entity C of Assets 1 ■ i. In the first sentence of paragraph * * * * * and 2 to Corporations C and D, (f)(2)(ii)(D)(3)(i), by removing the (e) * * * respectively. This result also would language ‘‘same as paragraph’’ and (2) Prior periods. With respect to the obtain if Individual S were not related adding in its place ‘‘same as in portion of a consolidated group’s first to Entity C immediately following paragraph’’; taxable year ending after December 21, Individual S’s acquisition of its eligible ■ j. In paragraph (f)(2)(iii)(A), by 2017, and for taxable years beginning interest from Entity C. See Rev. Rul. 83– removing the language ‘‘the pre- after December 21, 2017, and on or

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before March 13, 2020, a consolidated directions of the Captain of the Port [email protected]. For group may choose either— Buffalo or her designated representative. comments submitted at Regulations.gov, * * * * * While within a safety zone, all vessels follow the online instructions for shall operate at the minimum speed submitting comments. Once submitted, Martin V. Franks, necessary to maintain a safe course. comments cannot be edited or removed Chief, Publications and Regulations Branch, This notice of enforcement is issued from Regulations.gov. For either manner Legal Processing Division, Associate Chief under authority of 33 CFR 165.939 and of submission, the EPA may publish any Counsel (Procedure and Administration). 5 U.S.C. 552 (a). In addition to this comment received to its public docket. [FR Doc. 2020–07013 Filed 4–1–20; 4:15 pm] notice of enforcement in the Federal Do not submit electronically any BILLING CODE 4830–01–P Register, the Coast Guard will provide information you consider to be the maritime community with advance Confidential Business Information (CBI) notification of this enforcement period or other information whose disclosure is DEPARTMENT OF HOMELAND via Broadcast Notice to Mariners or restricted by statute. Multimedia SECURITY Local Notice to Mariners. If the Captain submissions (audio, video, etc.) must be of the Port Buffalo determines that the accompanied by a written comment. Coast Guard safety zone need not be enforced for the The written comment is considered the full duration stated in this notice she official comment and should include 33 CFR Part 165 may use a Broadcast Notice to Mariners discussion of all points you wish to [Docket No. USCG–2020–0036] to grant general permission to enter the make. The EPA will generally not respective safety zone. consider comments or comment Safety Zones; Annual Events in the contents located outside of the primary Captain of the Port Buffalo Zone Lexia M. Littlejohn, submission (i.e. on the web, cloud, or Captain, U.S. Coast Guard, Captain of the other file sharing system). For AGENCY: Coast Guard, DHS. Port Buffalo. additional submission methods, please ACTION: Notice of enforcement of [FR Doc. 2020–07048 Filed 4–3–20; 8:45 am] contact the person identified in the FOR regulation. BILLING CODE 9110–04–P FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, SUMMARY: The Coast Guard will enforce information about CBI or multimedia a safety zone located in federal ENVIRONMENTAL PROTECTION submissions, and general guidance on regulations for a recurring marine event. AGENCY making effective comments, please visit This action is necessary and intended https://www.epa.gov/dockets/ for the safety of life and property on 40 CFR Part 52 commenting-epa-dockets. Publicly navigable waters during this event. available docket materials are available During the enforcement period, no [EPA–R01–OAR–2020–0150; FRL–10007– 40–Region 1] at https://www.regulations.gov or at the person or vessel may enter the U.S. Environmental Protection Agency, respective safety zone without the Air Plan Approval; New Hampshire; EPA Region 1 Regional Office, Air and permission of the Captain of the Port Negative Declaration for the Oil and Radiation Division, 5 Post Office Buffalo. Gas Industry Square—Suite 100, Boston, MA. EPA DATES: The regulations in 33 CFR AGENCY: Environmental Protection requests that if at all possible, you 165.939 listed in entry (b)(12) in Table Agency (EPA). contact the contact listed in the FOR 165.939 will be enforced from 6:45 a.m. FURTHER INFORMATION CONTACT section to ACTION: Direct final rule. through 10:45 a.m. on July 18, 2020. schedule your inspection. The Regional FOR FURTHER INFORMATION CONTACT: If SUMMARY: The Environmental Protection Office’s official hours of business are you have questions about this notice of Agency (EPA) is approving a State Monday through Friday, 8:30 a.m. to enforcement, call or email LT William Implementation Plan (SIP) revision 4:30 p.m., excluding legal holidays. Fitzgerald, Chief of Waterways submitted by the State of New FOR FURTHER INFORMATION CONTACT: Bob Management, U.S. Coast Guard Marine Hampshire. The revision provides the McConnell, Environmental Engineer, Safety Unit Cleveland; telephone 216– state’s determination, via a negative Air and Radiation Division (Mail Code 937–0124, email william.j.fitzgerald@ declaration, that there are no facilities 05–2), U.S. Environmental Protection uscg.mil. within its borders subject to EPA’s 2016 Agency, Region 1, 5 Post Office Square, SUPPLEMENTARY INFORMATION: The Coast Control Technique Guideline (CTG) for Suite 100, Boston, Massachusetts, Guard will enforce the section entitled the oil and gas industry. The intended 02109–3912; (617) 918–1046. Safety Zones; Annual Events in the effect of this action is to approve this [email protected]. Captain of the Port Buffalo Zone listed item into the New Hampshire SIP. This SUPPLEMENTARY INFORMATION: in in table 165.939 entry (b)(12) in 33 action is being taken in accordance with Throughout this document whenever CFR 165.939 for the Lake Erie Open the Clean Air Act (CAA). ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Water Swim. Pursuant to 33 CFR DATES: This direct final rule will be EPA. 165.23, entry into, transiting, or effective June 5, 2020, unless EPA Table of Contents anchoring within the safety zone during receives adverse comments by May 6, an enforcement period is prohibited 2020. If adverse comments are received, I. Background unless authorized by the Captain of the EPA will publish a timely withdrawal of II. Summary of SIP Revision and EPA the direct final rule in the Federal Analysis Port Buffalo or her designated III. Final Action representative. Those seeking Register informing the public that the IV. Statutory and Executive Order Reviews permission to enter the safety zone may rule will not take effect. request permission from the Captain of ADDRESSES: Submit your comments, I. Background Port Buffalo via channel 16, VHF–FM. identified by Docket ID No. EPA–R01– On October 27, 2016, EPA published Vessels and persons granted permission OAR–2020–0150 at https:// in the Federal Register the ‘‘Final to enter the safety zone shall obey the www.regulations.gov, or via email to Control Techniques Guidelines for the

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Oil and Natural Gas Industry.’’ See 81 should relevant adverse comments be in the Unfunded Mandates Reform Act FR 74798. The CTG provided filed. This rule will be effective June 5, of 1995 (Pub. L. 104–4); information to state, local, and tribal air 2020 without further notice unless the • Does not have Federalism agencies to assist them in determining Agency receives relevant adverse implications as specified in Executive reasonably available control technology comments by May 6, 2020. Order 13132 (64 FR 43255, August 10, (RACT) for volatile organic compounds If the EPA receives such comments, 1999); (VOC) emissions from select oil and then EPA will publish a notice • Is not an economically significant natural gas industry emission sources. withdrawing the final rule and regulatory action based on health or CAA section 182(b)(2)(A) requires that informing the public that the rule will safety risks subject to Executive Order for ozone nonattainment areas classified not take effect. All public comments 13045 (62 FR 19885, April 23, 1997); • as Moderate or above, states must revise received will then be addressed in a Is not a significant regulatory action their SIPs to include provisions to subsequent final rule based on the subject to Executive Order 13211 (66 FR proposed rule. The EPA will not 28355, May 22, 2001); implement RACT for each category of • VOC sources covered by a CTG institute a second comment period on Is not subject to requirements of document. CAA section 184(b)(1)(B) the proposed rule. All parties interested Section 12(d) of the National extends the RACT obligation to all areas in commenting on the proposed rule Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because of states within the Ozone Transport should do so at this time. If no such application of those requirements would Region (OTR). Pursuant to CAA section comments are received, the public is be inconsistent with the Clean Air Act; 184(a), New Hampshire is a member advised that this rule will be effective and state of the OTR. States subject to RACT on June 5, 2020 and no further action • will be taken on the proposed rule. Does not provide EPA with the requirements are required to adopt discretionary authority to address, as controls that are at least as stringent as Please note that if EPA receives adverse comment on an amendment, paragraph, appropriate, disproportionate human those found within the CTG either via health or environmental effects, using the adoption of regulations, or by or section of this rule and if that provision may be severed from the practicable and legally permissible issuance of single source Orders or methods, under Executive Order 12898 Permits that outline what the source is remainder of the rule, EPA may adopt as final those provisions of the rule that (59 FR 7629, February 16, 1994). required to do to meet RACT. If no In addition, the SIP is not approved source for a particular CTG exists within are not the subject of an adverse comment. to apply on any Indian reservation land a state, the state must submit as a SIP or in any other area where EPA or an revision a negative declaration IV. Statutory and Executive Order Indian tribe has demonstrated that a documenting this fact. Reviews tribe has jurisdiction. In those areas of II. Summary of SIP Revision and EPA Under the Clean Air Act, the Indian country, the rule does not have Analysis Administrator is required to approve a tribal implications and will not impose SIP submission that complies with the substantial direct costs on tribal Negative Declaration for the 2016 Oil governments or preempt tribal law as and Natural Gas Industry CTG provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); specified by Executive Order 13175 (65 On December 17, 2019, New 40 CFR 52.02(a). Thus, in reviewing SIP FR 67249, November 9, 2000). Hampshire submitted a negative submissions, EPA’s role is to approve The Congressional Review Act, 5 declaration for the 2016 Oil and Natural state choices, provided that they meet U.S.C. 801 et seq., as added by the Small Gas Industry CTG. The term ‘‘negative the criteria of the Clean Air Act. Business Regulatory Enforcement declaration’’ means that the state has Accordingly, this action merely Fairness Act of 1996, generally provides explored whether any facilities subject approves state law as meeting Federal that before a rule may take effect, the to the applicability requirements of the requirements and does not impose agency promulgating the rule must CTG exist within the state and additional requirements beyond those submit a rule report, which includes a concluded that there are no such imposed by state law. For that reason, copy of the rule, to each House of the sources within its borders. This is this action: Congress and to the Comptroller General consistent with EPA’s understanding of • Is not a significant regulatory action of the United States. Section 804, where sources subject to the Oil and subject to review by the Office of however, exempts from section 801 the Natural Gas Industry CTG are located, Management and Budget under following types of rules: Rules of and so we are approving New Executive Orders 12866 (58 FR 51735, particular applicability; rules relating to Hampshire’s negative declaration into October 4, 1993) and 13563 (76 FR 3821, agency management or personnel; and the SIP. January 21, 2011); rules of agency organization, procedure, • or practice that do not substantially III. Final Action Is not an Executive Order 13771 regulatory action because this action is affect the rights or obligations of non- We are approving a negative not significant under Executive Order agency parties. 5 U.S.C. 804(3). Because declaration for EPA’s 2016 CTG entitled 12866; this is a rule of particular applicability, ‘‘Control Techniques Guidelines for the • Does not impose an information EPA is not required to submit a rule Oil and Natural Gas Industry’’ into the collection burden under the provisions report regarding this action under New Hampshire SIP. of the Paperwork Reduction Act (44 section 801. The EPA is publishing this action U.S.C. 3501 et seq.); Under section 307(b)(1) of the Clean without prior proposal because the • Is certified as not having a Air Act, petitions for judicial review of Agency views this as a noncontroversial significant economic impact on a this action must be filed in the United amendment and anticipates no adverse substantial number of small entities States Court of Appeals for the comments. However, in the proposed under the Regulatory Flexibility Act (5 appropriate circuit by June 5, 2020. rules section of this Federal Register U.S.C. 601 et seq.); Filing a petition for reconsideration by publication, EPA is publishing a • Does not contain any unfunded the Administrator of this final rule does separate document that will serve as the mandate or significantly or uniquely not affect the finality of this action for proposal to approve the SIP revision affect small governments, as described the purposes of judicial review nor does

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it extend the time within which a List of Subjects in 40 CFR Part 52 Authority: 42 U.S.C. 7401 et seq. petition for judicial review may be filed, Environmental protection, Air Subpart EE—New Hampshire and shall not postpone the effectiveness pollution control, Incorporation by of such rule or action. Parties with reference, Ozone, Volatile organic ■ objections to this direct final rule are compounds. 2. In § 52.1520, amend the table in paragraph (e) by adding an entry for encouraged to file a comment in Dated: March 27, 2020. response to the parallel notice of ‘‘Negative declaration for the 2016 Dennis Deziel, proposed rulemaking for this action Control Techniques Guideline for the Regional Administrator, EPA Region 1. published in the proposed rules section Oil and Natural Gas Industry’’ at the end of today’s Federal Register, rather than Part 52 of chapter I, title 40 of the of the table, to read as follows: file an immediate petition for judicial Code of Federal Regulations is amended § 52.1520 Identification of plan. review of this direct final rule, so that as follows: * * * * * EPA can withdraw this direct final rule PART 52—APPROVAL AND and address the comment in the PROMULGATION OF (e) * * * proposed rulemaking. This action may IMPLEMENTATION PLANS not be challenged later in proceedings to enforce its requirements. (See section ■ 1. The authority citation for part 52 307(b)(2).) continues to read as follows:

NEW HAMPSHIRE NONREGULATORY

Applicable geographic or State 3 Explanations Name of nonregulatory SIP provision nonattainment submittal date/ EPA approved date area effective date

******* Negative declaration for the 2016 Control Tech- Statewide ...... 12/17/2019 4/6/2020 [Insert Federal Reg- Negative niques Guidelines for the Oil and Natural Gas ister citation]. declaration. Industry. 3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this col- umn for the particular provision.

[FR Doc. 2020–06809 Filed 4–3–20; 8:45 am] establish that the state’s implementation the Air Regulatory Management Section, BILLING CODE 6560–50–P plan meets infrastructure requirements Air Planning and Implementation for the implementation, maintenance, Branch, Air and Radiation Division, and enforcement of each such NAAQS. U.S. Environmental Protection Agency, ENVIRONMENTAL PROTECTION FDEP made the required SIP submission Region 4, 61 Forsyth Street SW, Atlanta, AGENCY to assure that the Florida SIP contains Georgia 30303–8960. EPA requests that provisions that ensure the 2015 8-hour if at all possible, you contact the person 40 CFR Part 52 ozone NAAQS is implemented, listed in the FOR FURTHER INFORMATION [EPA–R04–OAR–2019–0148; FRL–10007– enforced, and maintained in Florida. CONTACT section to schedule your 04–Region 4] EPA has in this action determined that inspection. The Regional Office’s Florida’s infrastructure SIP submission official hours of business are Monday Air Quality Plans; Florida; satisfies certain required infrastructure through Friday 8:30 a.m. to 4:30 p.m., Infrastructure Requirements for the elements for the 2015 8-hour ozone excluding Federal holidays. 2015 8-Hour Ozone National Ambient NAAQS. FOR FURTHER INFORMATION CONTACT: Air Quality Standard Sean Lakeman, Air Regulatory DATES: This rule is effective May 6, Management Section, Air Planning and AGENCY: Environmental Protection 2020. Agency (EPA). Implementation Branch, Air and ACTION: Final rule. ADDRESSES: EPA has established a Radiation Division, U.S. Environmental docket for this action under Docket Protection Agency, Region 4, 61 Forsyth SUMMARY: The Environmental Protection Identification No. EPA–R04–OAR– Street SW, Atlanta, 30303–8960. Mr. Agency (EPA) is approving portions of 2019–0148. All documents in the docket Lakeman can be reached via electronic the State Implementation Plan (SIP) are listed on the www.regulations.gov mail at [email protected] or via submission provided by the State of website. Although listed in the index, telephone at (404) 562–9043. Florida, through the Florida Department some information may not be publicly SUPPLEMENTARY INFORMATION: of Environmental Protection (FDEP), available, i.e., Confidential Business through a letter dated September 18, Information or other information whose I. Background 2018. This submission pertains to the disclosure is restricted by statute. On October 1, 2015 (80 FR 65292, infrastructure requirements of the Clean Certain other material, such as October 26, 2015), EPA promulgated Air Act (CAA or Act) for the 2015 8- copyrighted material, is not placed on revised primary and secondary NAAQS hour ozone national ambient air quality the internet and will be publicly for ozone revising the 8-hour ozone standards (NAAQS). Whenever EPA available only in hard copy form. NAAQS from 0.075 parts per million to promulgates a new or revised NAAQS, Publicly available docket materials are a new more protective level of 0.070 the CAA requires that each state adopt available either electronically through ppm. Pursuant to section 110(a)(1) of and submit a SIP submission to www.regulations.gov or in hard copy at the CAA, states are required to make a

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SIP submission meeting the applicable Emissions Reporting Rule.’’ The NEI is Prongs 3 or 4. As to the substance of the requirements of section 110(a)(2) within EPA’s central repository for air November 13, 2019 email, the three years after promulgation of a new emissions data and Florida made its Commenter claims that the State or revised NAAQS or within such latest update to the NEI on December wrongly attempts to suggest that prong shorter period as EPA may prescribe. 17, 2014. EPA compiles the emissions 3 and 4 are met by pointing to the prong Section 110(a)(2) requires states to data, supplementing it where necessary, 1 discussion in the September 18, 2018, address basic SIP elements such as and releases it to the general public SIP submission, and points to prior requirements for monitoring, basic through the website. In the December court cases pertaining to interstate program requirements and legal 17, 2019 (84 FR 68868), NPRM, EPA transport that indicate EPA is required authority that are designed to assure indicated the website was http:// to give independent analysis to each attainment and maintenance of the www.epa.gov/ttn/chief/ prong of the interstate transport NAAQS. This particular type of SIP eiinformation.html. However, as provisions of section 110(a)(2)(D). The submission is commonly referred to as identified by the Commenter, the correct Commenter also suggests that EPA has an ‘‘infrastructure SIP.’’ EPA required website is https://www.epa.gov/air- additional correspondence with the states to submit these infrastructure SIP emissions-inventories. State related to the State’s November 13, submissions for the 2015 8-hour ozone Comment 2: A Commenter asserts that 2019, clarification email that should be NAAQS to EPA no later than October 1, EPA cannot approve Florida’s included in the docket for the 2018.1 infrastructure SIP submission as rulemaking. This action is approving portions of demonstrating compliance with the Response 2: EPA disagrees with the Florida’s September 18, 2018 2 ozone CAA’s interstate transport requirements Commenter’s assertion that Florida did infrastructure SIP submission for the in 110(a)(2)(D)(i)(II) with respect to not address section 110(a)(2)(D)(i)(II) in applicable requirements of the 2015 8- interference with prevention of its September 18, 2018, infrastructure hour ozone NAAQS. EPA is not acting significant deterioration (PSD) and SIP submission. In its September 13, on the interstate transport requirements visibility programs for any other state 2013 ‘‘Guidance on Infrastructure State of section 110(a)(2)(D)(i)(I) related to because Florida’s September 18, 2018, Implementation Plan (SIP) Elements attainment and maintenance of the SIP submission did not address the under Clean Air Act Sections 110(a)(1) NAAQS. EPA will consider these interstate transport requirements of and 110(a)(2)’’ (2013 Guidance), EPA requirements for Florida for the 2015 8- section 110(a)(2)(D)(i)(II). By way of explains that a state may meet hour ozone NAAQS separately. background, CAA section 110(a)(2)(D)(i) 110(a)(2)(D)(i)(II) (prong 3) by In a notice of proposed rulemaking contains two subsections: (D)(i)(I) and establishing in its infrastructure SIP (NPRM) published on December 17, (D)(i)(II) that a state must address in submission that new major sources and 2019 (84 FR 68863), EPA proposed to infrastructure SIP submissions. Each of major modifications are already subject approve portions of Florida’s SIP these subsections has two subparts to a comprehensive EPA-approved PSD submission dated September 18, 2018, resulting in four distinct components, permitting program.3 EPA also notes in intended to address the applicable commonly referred to by EPA as the 2013 Guidance that sources in infrastructure SIP requirements for the ‘‘prongs.’’ The first two prongs, which nonattainment areas are not subject to 2015 8-hour ozone NAAQS. The NPRM are codified in section 110(a)(2)(D)(i)(I), PSD permitting and that states may rely provides additional detail regarding the are provisions that prohibit any source on an existing EPA-approved background and rationale for EPA’s or other type of emissions activity in nonattainment new source review action. one state from contributing significantly (NNSR) program with respect to sources to nonattainment of the NAAQS in located in nonattainment areas.4 For the II. Response to Comments another state (‘‘prong 1’’) and interfering visibility component of EPA received one comment seeking with maintenance of the NAAQS in 110(a)(2)(D)(i)(II) (prong 4), EPA clarification and one set of adverse another state (‘‘prong 2’’). The third and provides in the 2013 Guidance that comments which are summarized and fourth prongs, which are codified in states may meet this requirement by responded to below. The full set of section 110(a)(2)(D)(i)(II), are provisions establishing in its infrastructure SIP comments are in the docket for this final that prohibit emissions activity in one submission that it already has an EPA- rule. state from interfering with measures approved regional haze SIP that fully Comment 1: A Commenter notes that required for PSD of air quality in meets the requirements of 40 CFR EPA may have misidentified a website another state (‘‘prong 3’’), or to protect 51.308.5 in the NPRM and seeks a clarification. visibility in another state (‘‘prong 4’’). EPA’s analysis of Florida’s September Response 1: EPA agrees with the The Commenter asserts that Florida 18, 2018, infrastructure SIP submission Commenter. In the December 17, 2019, did not address section focused on whether the State provided NPRM, EPA noted that Florida is 110(a)(2)(D)(i)(II) for PSD and visibility relevant information to establish that required to submit emissions data to in the September 18, 2018, SIP Florida’s existing SIP adequately EPA for purposes of the National submission because the State does not prohibits emissions activities within the Emissions Inventory (NEI) pursuant to ‘‘even mention the words ‘Prong 3’ or State that will ‘‘interfere with measures subpart A to 40 CFR part 51—‘‘Air ‘Prong 4.’ ’’ As further evidence that the required to be included in the SIP submission does not address these applicable implementation plan for any 1 In these infrastructure SIP submissions, states requirements, the Commenter points to other State . . . to prevent significant generally certify evidence of compliance with the fact that the State sent an email to deterioration of air quality or to protect sections 110(a)(1) and (2) of the CAA through a EPA on November 13, 2019, to confirm combination of state regulations and statutes, some visibility,’’ consistent with the of which have been incorporated into the federally- that the State did intend the submission requirements of CAA section approved SIP. In addition, certain federally- to meet those substantive requirements. 110(a)(2)(D)(i)(II). Based on Florida’s approved, non-SIP regulations may also be The Commenter contends that ‘‘EPA transmittal letter for the September 18, appropriate for demonstrating compliance with cannot act on email messages from sections 110(a)(1) and (2). 2 The September 18, 2018, SIP submission states and pretend they are official SIP 3 2013 Guidance, p. 31. provided by FDEP was received by EPA on submissions from the states’’ and that 4 2013 Guidance, pp. 31–32. September 26, 2018. no state public notice was advertised on 5 2013 Guidance, p. 33.

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2018, SIP submission, and the actual NNSR permitting and thereby prong 4 requirements based on the content of the September 18, 2018, SIP demonstrate that it will not cause or State’s fully-approved regional haze SIP. submission, EPA believes Florida contribute to a violation of any NAAQS Not providing individual headings for satisfied these requirements. In its or PSD increment in Florida or any each requirement of 110(a)(2)(D)(i) or September 18, 2018, transmittal letter, other state’’ (emphasis added). This prong within the submission does not Florida states that the submission language from the SIP submission is support Commenter’s assertion that the ‘‘addresses each [emphasis added] of consistent with the language of CAA State or EPA failed to address each of the CAA infrastructure elements for the section 110(a)(2)(D)(i)(II) requiring that a these prongs independently. 2015 Revised National Ambient Air state’s plan demonstrate that emissions EPA also disagrees with the Quality Standards (NAAQS) for Ozone from the state will not interfere with Commenter’s assertion that, by (O3).’’ The State did not identify any another state’s PSD permitting plan, as proposing to approve the September 18, sections it did not intend to address and the PSD requirements are specifically 2018, SIP revision, EPA is further explained the provisions that it concerned with ensuring that the inappropriately relying on the did intend to address in the construction of new or modified major November 13, 2019, email from Florida introduction section of the September sources will not lead to new violations instead of requiring a supplemental SIP 18, 2018, SIP submission: ‘‘[FDEP] of the NAAQS or increments. See CAA submission. As previously Hereby confirms that the requirements section 165(a)(3). acknowledged, EPA agrees that the SIP of sections 110(a)(1) and the Similarly, the SIP submission is submission could have been clearer infrastructure elements required by consistent with the 2013 Guidance with respect to the infrastructure SIP sections 110(a)(2)(A) through (M) of the regarding how a state may address the requirements that the State was CAA are adequately addressed in prong 4 requirements because the SIP addressing, but the content of that SIP Florida’s existing approved SIP with revision explains at page 5 that Florida submission in fact did substantively respect to the implementation of the has a fully-approved regional haze SIP.7 address the requirements of section 2015 revised NAAQS.’’ Moreover, on The State further explained on the same 110(a)(2)(D)(i)(II). In an abundance of page 5 of the SIP submission, the State page that: ‘‘This plan ensures that caution, however, EPA requested properly describes the requirements of Florida will not interfere with visibility confirmation of that fact from the State CAA section 110(a)(2)(D)(i) to include protection in other states.’’ That to include in the docket during EPA’s the provisions of subparagraph (II) statement is clearly in reference to the public comment period for the proposed requiring states to prohibit emissions language describing the prong 4 approval of Florida’s September 18, activity from the State from ‘‘interfering requirements in 110(a)(2)(D)(i)(II). 2018, SIP submission. The email merely with any other state’s required plan EPA agrees with the Commenter that confirmed Florida’s intent regarding its under Part C of the CAA for prevention it would have been clearer if the State September 18, 2018, SIP submission and of significant deterioration and had provided sections in its September did not provide new information protection of visibility.’’ Thus, though 18, 2018, SIP submission explicitly regarding the Florida SIP or include broadly worded in some cases, there are labeled ‘‘prong 3’’ and ‘‘prong 4,’’ or new analysis to demonstrate that the several indications in the September 18, otherwise demarcated its analysis of Florida SIP meets the requirements of 2018, SIP submission that the State these specific requirements in the same 110(a)(2)(D)(i)(II). intended the submission to address all manner as the sections entitled ‘‘prong Additionally, the Commenter does not of the applicable requirements of CAA 1’’ and ‘‘prong 2,’’ but EPA does not provide support for its contention that section 110(a)(2), including the prong 3 agree that the exclusion of the terms ‘‘no state public notice was advertised and prong 4 requirements. ‘‘prong 3’’ and ‘‘prongs 4’’ in the on Prongs 3 and 4.’’ EPA has re- While EPA acknowledges that the submission means that the State did not examined the notice that the State September 18, 2018, SIP submission did in fact make a submission that addresses provided concerning the content of the not use the terms ‘‘prong 3’’ or ‘‘prong the interstate transport requirements SIP submission. The State’s September 4’’ to describe the requirements the with respect to the PSD and visibility 18, 2018, revision that underwent State was addressing in the SIP prongs for the 2015 8-hour ozone public notice clearly stated that it submission, these are not statutory NAAQS. addressed ‘‘each [emphasis added] of terms but rather EPA-developed EPA also agrees with the Commenter the CAA infrastructure elements for the shorthand for the two requirements in that each of the four prongs of section 2015 Revised National Ambient Air CAA section 110(a)(2)(D)(i)(II). Thus, 110(a)(2)(D)(i) are separate requirements Quality Standards (NAAQS) for Ozone EPA disagrees that it is a deficiency for that states and EPA must address, and (O3),’’ and did not exclude any the State not to include these specific that there are prior court decisions that infrastructure SIP requirements. EPA terms in its SIP submission nor is the confirm this basic point. EPA disagrees, does not agree that use of the specific absence of these terms an indication however, that the State has failed to terms prong 3 or prong 4 was necessary that the State failed to perform the address prong 3 and 4 in the September for public notice purposes, given the necessary analysis of these statutory 18, 2018, SIP submission, or that EPA broad statement concerning the subject requirements. Consistent with the 2013 has failed to evaluate the submission matter of the proposed SIP submission Guidance regarding how a state may with respect to these prongs. EPA and and given the actual substantive content address the prong 3 requirements,6 the the State have provided independent of that proposed SIP submission. SIP submission confirms on both pages analysis for prongs 3 and 4, as discussed Finally, the Commenter asserted that 5 and 7 of the section 110(a)(2)(D)(i) above. Florida’s SIP submission satisfies EPA has ‘‘emails, records, and analysis that the State has both PSD and the prong 3 requirements based on its correspondence (including meeting NNSR permitting programs already in SIP-approved PSD and NNSR permit minutes/notes)’’ related to Florida’s its existing SIP. In particular, the State programs, which require analysis and September 18, 2018, SIP submission, notes on those pages that the approved control of emissions that may impact and in particular, related to the SIP requires ‘‘any new major source or another state’s compliance with its own interstate transport requirements for major modification to undergo PSD or PSD requirements and satisfies the PSD and visibility, that it did not include in the rulemaking docket. In 6 2013 Guidance, pp. 30–32. 7 2013 Guidance, pp. 32–35. response to the comment, EPA has

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reviewed the docket and confirmed that of the Paperwork Reduction Act (44 the U.S. House of Representatives, and it contains the appropriate documents U.S.C. 3501 et seq.); the Comptroller General of the United necessary to reflect the basis for the • Is certified as not having a States prior to publication of the rule in agency’s proposed and final action on significant economic impact on a the Federal Register. A major rule the SIP submission. The relevant EPA substantial number of small entities cannot take effect until 60 days after it staff have checked their individual files under the Regulatory Flexibility Act (5 is published in the Federal Register. and have confirmed that they do not U.S.C. 601 et seq.); This action is not a ‘‘major rule’’ as have any additional documents that • Does not contain any unfunded defined by 5 U.S.C. 804(2). should be included in the docket for mandate or significantly or uniquely Under section 307(b)(1) of the CAA, this rulemaking. EPA notes that agency affect small governments, as described petitions for judicial review of this staff have regular communications with in the Unfunded Mandates Reform Act action must be filed in the United States the states concerning SIP submissions of 1995 (Public Law 104–4); • Court of Appeals for the appropriate and air quality planning generally. Such Does not have federalism circuit by June 5, 2020. Filing a petition communications between a state and implications as specified in Executive for reconsideration by the Administrator EPA are part of the normal SIP process. Order 13132 (64 FR 43255, August 10, of this final rule does not affect the III. Final Action 1999); finality of this action for the purposes of • Is not an economically significant With the exception of interstate judicial review nor does it extend the regulatory action based on health or time within which a petition for judicial transport provisions pertaining to safety risks subject to Executive Order contribution to nonattainment or review may be filed, and shall not 13045 (62 FR 19885, April 23, 1997); postpone the effectiveness of such rule interference with maintenance in other • Is not a significant regulatory action states of section 110(a)(2)(D)(i)(I) or action. This action may not be subject to Executive Order 13211 (66 FR challenged later in proceedings to (prongs 1 and 2), EPA is approving 28355, May 22, 2001); Florida’s infrastructure submission • enforce its requirements. See section Is not subject to requirements of 307(b)(2). provided on September 18, 2018, for the Section 12(d) of the National 2015 8-hour ozone NAAQS. EPA is Technology Transfer and Advancement List of Subjects in 40 CFR Part 52 approving Florida’s infrastructure SIP Act of 1995 (15 U.S.C. 272 note) because submission for certain elements for the application of those requirements would Environmental protection, Air 2015 8-hour ozone NAAQS because the be inconsistent with the CAA; and pollution control, Incorporation by submission is consistent with section • Does not provide EPA with the reference, Intergovernmental relations, 110 of the CAA for those elements. discretionary authority to address, as Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile IV. Statutory and Executive Order appropriate, disproportionate human organic compounds. Reviews health or environmental effects, using Dated: March 13, 2020. Under the CAA, the Administrator is practicable and legally permissible required to approve a SIP submission methods, under Executive Order 12898 Mary S. Walker, that complies with the provisions of the (59 FR 7629, February 16, 1994). Regional Administrator, Region 4. In addition, the SIP is not approved Act and applicable Federal regulations. Title 40 CFR part 52 is amended as See 42 U.S.C. 7410(k); 40 CFR 52.02(a). to apply on any Indian reservation land follows: Thus, in reviewing SIP submissions, or in any other area where EPA or an Indian tribe has demonstrated that a EPA’s role is to approve state choices, PART 52—APPROVAL AND provided that they meet the criteria of tribe has jurisdiction. In those areas of Indian country, the rule does not have PROMULGATION OF the CAA. Accordingly, this action IMPLEMENTATION PLANS merely approves state law as meeting tribal implications as specified by Federal requirements and would not Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose ■ 1. The authority citation for part 52 impose additional requirements beyond continues to read as follows: those imposed by state law. For that substantial direct costs on tribal reason, this action: governments or preempt tribal law. Authority: 42 U.S.C. 7401 et seq. • Is not a significant regulatory action The Congressional Review Act, 5 subject to review by the Office of U.S.C. 801 et seq., as added by the Small Subpart K—Florida Management and Budget under Business Regulatory Enforcement Executive Orders 12866 (58 FR 51735, Fairness Act of 1996, generally provides ■ 2. Section 52.520(e) is amended by October 4, 1993) and 13563 (76 FR 3821, that before a rule may take effect, the adding the entry ‘‘110(a)(1) and (2) January 21, 2011); agency promulgating the rule must Infrastructure Requirements for the 2015 • Is not an Executive Order 13771 (82 submit a rule report, which includes a 8-Hour Ozone NAAQS’’ at the end of FR 9339, February 2, 2017) regulatory copy of the rule, to each House of the the table to read as follows: Congress and to the Comptroller General action because SIP approvals are § 52.520 Identification of plan. exempted under Executive Order 12866; of the United States. EPA will submit a • Does not impose an information report containing this action and other * * * * * collection burden under the provisions required information to the U.S. Senate, (e) * * *

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EPA-APPROVED FLORIDA NON-REGULATORY PROVISIONS

State EPA Provision effective approval Federal Register notice Explanation date date

******* 110(a)(1) and (2) Infrastructure Re- 9/18/2018 4/6/2020 [Insert citation of publication] ... With the exception of Prongs 1 and 2 quirements for the 2015 8-Hour of section 110(a)(2)(D)(i)(I). Ozone NAAQS.

[FR Doc. 2020–06585 Filed 4–3–20; 8:45 am] www.regulations.gov or in hard copy at pollution control board; bureau of air BILLING CODE 6560–50–P the Air Regulatory Management Section, pollution control; persons required to Air Planning and Implementation comply with chapter,’’ 4 Section 4–7, Branch, Air and Radiation Division, ‘‘Powers and duties of the board; ENVIRONMENTAL PROTECTION U.S. Environmental Protection Agency, delegation,’’ 5 Paragraphs 4–8(a)(14), 4– AGENCY Region 4, 61 Forsyth Street SW, Atlanta, 8(c)(12), 4–8(d)(4) and 4–8(d)(6) in Georgia 30303–8960. EPA requests that Section 4–8, ‘‘Installation permit and 40 CFR Part 52 if at all possible, you contact the person certificate of operation,’’ 6 Paragraph 4– [EPA–R04–OAR–2019–0305; FRL–10007– listed in the FOR FURTHER INFORMATION 15–Region 4] CONTACT section to schedule your Ordinances for the remaining jurisdictions within inspection. The Regional Office’s the Bureau, which were locally effective as of the Air Plan Approval; Tennessee; relevant dates below: Hamilton County—Section 4 official hours of business are Monday (9/6/17); City of Collegedale—Section 14–304 (10/ Chattanooga Miscellaneous Revisions through Friday 8:30 a.m. to 4:30 p.m., 16/17); City of East Ridge—Section 8–4 (10/26/17); City of Lakesite—Section 14–4 (11/2/17); Town of AGENCY: Environmental Protection excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Lookout Mountain—Section 4 (11/14/17); City of Agency (EPA). Red Bank—Section 20–4 (11/21/17); City of ACTION: Final rule. Sean Lakeman, Air Regulatory Ridgeside—Section 4 (1/16/18); City of Signal Management Section, Air Planning and Mountain—Section 4 (10/20/17); City of Soddy- SUMMARY: The Environmental Protection Implementation Branch, Air and Daisy—Section 8–4 (10/5/17); and Town of Walden—Section 4 (10/16/17). The only Agency (EPA) is approving a revision to Radiation Division, U.S. Environmental substantive difference between the various the Chattanooga portion of the Protection Agency, Region 4, 61 Forsyth jurisdictions’ regulations is that Chattanooga Tennessee State Implementation Plan Street SW, Atlanta, Georgia 30303–8960. Ordinance Part II, Chapter 4, Section 4–4 contains (SIP) submitted by the State of The telephone number is (404) 562– an additional sentence regarding fines and fees, Tennessee through the Tennessee 9043. Mr. Lakeman can also be reached which is discussed later in this document. 4 In this final action, EPA is also approving Department of Environment and via electronic mail at lakeman.sean@ substantively similar changes in the following Conservation (TDEC) on behalf of the epa.gov. sections of the Air Pollution Control Regulations/ Ordinances for the remaining jurisdictions within Chattanooga/Hamilton County Air SUPPLEMENTARY INFORMATION: Pollution Control Bureau (Bureau) on the Bureau, which were locally effective as of the I. Background relevant dates below: Hamilton County—Section 6 September 12, 2018. The SIP submittal (9/6/17); City of Collegedale—Section 14–306 (10/ removes and replaces the Chattanooga Through a letter dated September 12, 16/17); City of East Ridge—Section 8–6 (10/26/17); City Code, Air Pollution Control 2018, TDEC submitted a SIP revision on City of Lakesite—Section 14–6 (11/2/17); Town of Lookout Mountain—Section 6 (11/14/17); City of Ordinances pertaining to the behalf of the Bureau requesting removal Red Bank—Section 20–6 (11/21/17); City of Chattanooga-Hamilton County Air and replacement of certain air quality Ridgeside—Section 6 (1/16/18); City of Signal Pollution Control Board (Board), powers rules in the Chattanooga portion of the Mountain—Section 6 (10/20/17); City of Soddy- and duties of the Board, penalties, Tennessee SIP.12 This rulemaking Daisy—Section 8–6 (10/5/17); and Town of enforcement and permit fees. The SIP Walden—Section 6 (10/16/17). approves the Chattanooga City Code 5 In this final action, EPA is also approving revision that EPA is approving is Part II, Chapter 4, Section 4–4, substantively similar changes in the following consistent with the requirements of the ‘‘Penalties for violation of chapter, sections of the Air Pollution Control Regulations/ Clean Air Act (CAA or Act). permit or order,’’ 3 Section 4–6, ‘‘Air Ordinances for the remaining jurisdictions within the Bureau, which were locally effective as of the DATES : This rule will be effective May 6, relevant dates below: Hamilton County—Section 7 2020. 1 The Bureau is comprised of Hamilton County (9/6/17); City of Collegedale—Section 14–307 (10/ ADDRESSES: EPA has established a and the municipalities of Chattanooga, Collegedale, 16/17); City of East Ridge—Section 8–7 (10/26/17); East Ridge, Lakesite, Lookout Mountain, Red Bank, docket for this action under Docket City of Lakesite—Section 14–7 (11/2/17); Town of Ridgeside, Signal Mountain, Soddy Daisy, and Lookout Mountain—Section 7 (11/14/17); City of Identification No. EPA–R04–OAR– Walden. The Bureau recommends regulatory Red Bank—Section 20–7 (11/21/17); City of 2019–0305. All documents in the docket revisions, which are subsequently adopted by the Ridgeside—Section 7 (1/16/18); City of Signal are listed on the www.regulations.gov eleven jurisdictions. The Bureau then implements Mountain—Section 7 (10/20/17); City of Soddy- and enforces the regulations, as necessary, in each Daisy—Section 8–7 (10/5/17); and Town of website. Although listed in the index, jurisdiction. Because the air pollution control Walden—Section 7 (10/16/17). some information is not publicly regulations/ordinances adopted by the jurisdictions 6 In this final action, EPA is also approving available, i.e., Confidential Business within the Bureau are substantively identical substantively similar changes in the following (except as noted later in this document), EPA refers sections of the Air Pollution Control Regulations/ Information or other information whose solely to Chattanooga and the Chattanooga rules disclosure is restricted by statute. Ordinances for the remaining jurisdictions within throughout the document as representative of the the Bureau, which were locally effective as of the Certain other material, such as other ten jurisdictions for brevity and simplicity. relevant dates below: Hamilton County—Section 8 copyrighted material, is not placed on See footnotes 3 through 8, later in this document. (9/6/17); City of Collegedale—Section 14–308 (10/ the internet and will be publicly 2 EPA received the SIP revision on September 18, 16/17); City of East Ridge—Section 8–8 (10/26/17); 2018. available only in hard copy form. City of Lakesite—Section 14–8 (11/2/17); Town of 3 In this final action, EPA is also approving Lookout Mountain—Section 8 (11/14/17); City of Publicly available docket materials are substantively similar changes in the following Red Bank—Section 20–8 (11/21/17); City of available either electronically through sections of the Air Pollution Control Regulations/ Continued

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10(a), ‘‘Records,’’ 7 and Section 4–17, persons required to comply with additional requirements beyond those ‘‘Enforcement of chapter; procedure for chapter;’’ Section 4–7, ‘‘Powers and imposed by state law. For that reason, adjudicatory hearings for violations’’ duties of the board; delegation;’’ this action: into the Chattanooga portion of the Paragraphs 4–8(a)(14), 4–8(c)(12), 4– • Is not a significant regulatory action Tennessee SIP.89 8(d)(4) and 4–8(d)(6) in Section 4–8, subject to review by the Office of In a notice of proposed rulemaking ‘‘Installation permit and certificate of Management and Budget under (NPRM) published on February 10, 2020 operation;’’ Paragraph 4–10(a) in Executive Orders 12866 (58 FR 51735, (85 FR 7491), EPA proposed to approve Section 4–10, ‘‘Records;’’ and Section 4– October 4, 1993) and 13563 (76 FR 3821, the revision to the Chattanooga portion 17, ‘‘Enforcement of chapter; procedure January 21, 2011); of the Tennessee SIP provided on for adjudicatory hearings for • Is not an Executive Order 13771 (82 September 18, 2018. The NPRM violations.’’ 10 EPA has made, and will FR 9339, February 2, 2017) regulatory provides additional detail regarding the continue to make, these materials action because SIP approvals are background and rationale for EPA’s generally available through exempted under Executive Order 12866; action. Comments on the NPRM were www.regulations.gov and at the EPA • Does not impose an information due on or before March 2, 2020. EPA Region 4 Office (please contact the collection burden under the provisions received no adverse comments on the person identified in the FOR FURTHER of the Paperwork Reduction Act (44 NPRM. INFORMATION CONTACT section of this U.S.C. 3501 et seq.); preamble for more information). • Is certified as not having a II. Incorporation by Reference Therefore, these materials have been significant economic impact on a In this document, EPA is finalizing approved by EPA for inclusion in the substantial number of small entities regulatory text that includes State implementation plan, have been under the Regulatory Flexibility Act (5 incorporation by reference. In incorporated by reference by EPA into U.S.C. 601 et seq.); accordance with requirements of 1 CFR that plan, are fully federally enforceable • Does not contain any unfunded 51.5, EPA is finalizing the incorporation under sections 110 and 113 of the CAA mandate or significantly or uniquely by reference of the following provisions as of the effective date of the final affect small governments, as described of Chattanooga City Code, Part II, rulemaking of EPA’s approval, and will in the Unfunded Mandates Reform Act Chapter 4, locally effective on October be incorporated by reference in the next of 1995 (Pub. L. 104–4); 3, 2017: Section 4–4, ‘‘Penalties for update to the SIP compilation.11 • Does not have federalism violation of chapter, permit or order;’’ implications as specified in Executive III. Final Action Section 4–6, ‘‘Air pollution control Order 13132 (64 FR 43255, August 10, board; bureau of air pollution control; EPA is approving the removal and 1999); replacement in the entirety of the • Is not an economically significant Ridgeside—Section 8 (1/16/18); City of Signal following rules in the Chattanooga- regulatory action based on health or Mountain—Section 8 (10/20/17); City of Soddy- Hamilton County portion of the safety risks subject to Executive Order Daisy—Section 8–8 (10/5/17); and Town of Tennessee SIP with the version of the 13045 (62 FR 19885, April 23, 1997); Walden—Section 8 (10/16/17). rules submitted on September 12, 2018: • Is not a significant regulatory action 7 In this final action, EPA is also approving substantively similar changes in the following Chapter 4, Section 4–4, ‘‘Penalties for subject to Executive Order 13211 (66 FR sections of the Air Pollution Control Regulations/ violation of chapter, permit or order,’’ 28355, May 22, 2001); Ordinances for the remaining jurisdictions within Section 4–6, ‘‘Air pollution control • Is not subject to requirements of the Bureau, which were locally effective as of the board; bureau of air pollution control; Section 12(d) of the National relevant dates below: Hamilton County—Section 10 Technology Transfer and Advancement (9/6/17); City of Collegedale—Section 14–310 (10/ persons required to comply with 16/17); City of East Ridge—Section 8–10 (10/26/17); chapter,’’ Section 4–7, ‘‘Powers and Act of 1995 (15 U.S.C. 272 note) because City of Lakesite—Section 14–10 (11/2/17); Town of duties of the board; delegation,’’ application of those requirements would Lookout Mountain—Section 10 (11/14/17); City of Paragraphs 4–8(a)(14), 4–8(c)(12), 4– be inconsistent with the CAA; and Red Bank—Section 20–10 (11/21/17); City of 8(d)(4) and 4–8(d)(6) in Section 4–8, • Does not provide EPA with the Ridgeside—Section 10 (1/16/18); City of Signal Mountain—Section 10 (10/20/17); City of Soddy- ‘‘Installation permit and certificate of discretionary authority to address, as Daisy—Section 8–10 (10/5/17); and Town of operation,’’ Paragraph 4–10(a), appropriate, disproportionate human Walden—Section 10 (10/16/17). ‘‘Records,’’ and Section 4–17, health or environmental effects, using 8 In this final action, EPA is also approving ‘‘Enforcement of chapter; procedure for practicable and legally permissible substantively similar changes in the following sections of the Air Pollution Control Regulations/ adjudicatory hearings for violations.’’ methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). Ordinances for the remaining jurisdictions within IV. Statutory and Executive Order the Bureau, which were locally effective as of the The SIP is not approved to apply on relevant dates below: Hamilton County—Section 17 Reviews any Indian reservation land or in any (9/6/17); City of Collegedale—Section 14–17 (10/16/ Under the CAA, the Administrator is other area where EPA or an Indian tribe 17); City of East Ridge—Section 8–17 (10/26/17); City of Lakesite—Section 14–17 (11/2/17); Town of required to approve a SIP submission has demonstrated that a tribe has Lookout Mountain—Section 17 (11/14/17); City of that complies with the provisions of the jurisdiction. In those areas of Indian Red Bank—Section 20–17 (11/21/17); City of Act and applicable Federal regulations. country, the rule does not have tribal Ridgeside—Section 17 (1/16/18); City of Signal See 42 U.S.C. 7410(k); 40 CFR 52.02(a). implications as specified by Executive Mountain—Section 17 (10/20/17); City of Soddy- Thus, in reviewing SIP submissions, Daisy—Section 8–17 (10/5/17); and Town of Order 13175 (65 FR 67249, November 9, Walden—Section 17 (10/16/17). The only EPA’s role is to approve state choices, 2000), nor will it impose substantial substantive difference between the various provided that they meet the criteria of direct costs on tribal governments or jurisdictions’ regulations is that Chattanooga City the CAA. This action merely approves preempt tribal law. Code Part II, Chapter 4, Section 4–17 contains an state law as meeting Federal additional paragraph concerning citation of The Congressional Review Act, 5 violators to municipal court, which is discussed requirements and does not impose U.S.C. 801 et seq., as added by the Small below. Business Regulatory Enforcement 9 EPA received other revisions to the Chattanooga 10 EPA’s approval also includes regulations/ Fairness Act of 1996, generally provides portion of the Tennessee SIP transmitted with the ordinances submitted for the other ten jurisdictions same September 12, 2018, cover letter. EPA will be within the Bureau. See footnotes 3 through 8, that before a rule may take effect, the considering action for those other SIP revisions in above. agency promulgating the rule must a separate rulemaking. 11 See 62 FR 27968 (May 22, 1997). submit a rule report, which includes a

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copy of the rule, to each House of the finality of this action for the purposes of PART 52—APPROVAL AND Congress and to the Comptroller General judicial review nor does it extend the PROMULGATION OF of the United States. EPA will submit a time within which a petition for judicial IMPLEMENTATION PLANS report containing this action and other review may be filed, and shall not required information to the U.S. Senate, postpone the effectiveness of such rule ■ 1. The authority citation for part 52 the U.S. House of Representatives, and or action. This action may not be continues to read as follows: challenged later in proceedings to the Comptroller General of the United Authority: 42 U.S.C. 7401 et seq. States prior to publication of the rule in enforce its requirements. See section the Federal Register. A major rule 307(b)(2). Subpart RR—Tennessee cannot take effect until 60 days after it List of Subjects in 40 CFR Part 52 is published in the Federal Register. ■ Environmental protection, Air 2. In § 52.2220(c), amend Table 4 by This action is not a ‘‘major rule’’ as revising the entries for ‘‘Section 4–4’’, defined by 5 U.S.C. 804(2). pollution control, Incorporation by reference, Intergovernmental relations. ‘‘Section 4–6’’, ‘‘Section 4–7’’, ‘‘Section Under section 307(b)(1) of the CAA, 4–8’’, ‘‘Section 4–10’’, ‘‘Section 4–17’’ petitions for judicial review of this Dated: March 17, 2020. under the heading ‘‘Article I. In action must be filed in the United States Mary S. Walker, General,’’ to read as follows: Court of Appeals for the appropriate Regional Administrator, Region 4. § 52.2220 Identification of plan. circuit by June 5, 2020. Filing a petition For the reasons set out in the for reconsideration by the Administrator preamble, 40 CFR part 52 is amended as * * * * * of this final rule does not affect the follows: (c) * * * TABLE 4—EPA-APPROVED CHATTANOOGA REGULATIONS

State section Title/subject Adoption date EPA approval date Explanation

Article I. In General

******* Section 4–4 ...... Penalties for violation of chap- 10/3/2017 4/6/2020, [Insert citation of EPA’s approval includes the corresponding sections of the ter, permit or order. publication]. Air Pollution Control Regulations/Ordinances for the re- maining jurisdictions within the Chattanooga-Hamilton County Air Pollution Control Bureau, which were locally ef- fective as of the relevant dates below: Hamilton County— Section 4 (9/6/17); City of Collegedale—Section 14–304 (10/16/17); City of East Ridge—Section 8–4 (10/26/17); City of Lakesite—Section 14–4 (11/2/17); Town of Lookout Mountain—Section 4 (11/14/17); City of Red Bank—Sec- tion 20–4 (11/21/17); City of Ridgeside—Section 4 (1/16/ 18); City of Signal Mountain—Section 4 (10/20/17); City of Soddy-Daisy—Section 8–4 (10/5/17); and Town of Wal- den—Section 4 (10/16/17).

******* Section 4–6 ...... Air pollution control board; bu- 10/3/2017 4/6/2020, [Insert citation of EPA’s approval includes the corresponding sections of the reau of air pollution control; publication]. Air Pollution Control Regulations/Ordinances for the re- persons required to comply maining jurisdictions within the Chattanooga-Hamilton with chapter. County Air Pollution Control Bureau, which were locally ef- fective as of the relevant dates below: Hamilton County— Section 6 (9/6/17); City of Collegedale—Section 14–306 (10/16/17); City of East Ridge—Section 8–6 (10/26/17); City of Lakesite—Section 14–6 (11/2/17); Town of Lookout Mountain—Section 6 (11/14/17); City of Red Bank—Sec- tion 20–6 (11/21/17); City of Ridgeside—Section 6 (1/16/ 18); City of Signal Mountain—Section 6 (10/20/17); City of Soddy-Daisy—Section 8–6 (10/5/17); and Town of Wal- den—Section 6 (10/16/17). Section 4–7 ...... Power and duties of the 10/3/2017 4/6/2020, [Insert citation of EPA’s approval includes the corresponding sections of the board; delegation. publication]. Air Pollution Control Regulations/Ordinances for the re- maining jurisdictions within the Chattanooga-Hamilton County Air Pollution Control Bureau, which were locally ef- fective as of the relevant dates below: Hamilton County— Section 7 (9/6/17); City of Collegedale—Section 14–307 (10/16/17); City of East Ridge—Section 8–7 (10/26/17); City of Lakesite—Section 14–7 (11/2/17); Town of Lookout Mountain—Section 7 (11/14/17); City of Red Bank—Sec- tion 20–7 (11/21/17); City of Ridgeside—Section 7 (1/16/ 18); City of Signal Mountain—Section 7 (10/20/17); City of Soddy-Daisy—Section 8–7 (10/5/17); and Town of Wal- den—Section 7 (10/16/17). Section 4–8 ...... Installation permit, temporary 10/3/2017 4/6/2020, [Insert citation of Except paragraphs 4–8(a)(1)–(13), (a)(15), (b)(1)–(5), (c)(1)– operating permit, certifi- publication]. (4), (d)(1)–(3), (d)(7), (d)(9), and (e)(1)–(2), approved 2/18/ cation of operation and solid 97, with an 8/16/95 local adoption date; and paragraphs fuel permit. 4–8(a)(16), (c)(5)–(11), (d)(5), (d)(8), (f), and (g), which are not approved into the SIP. Due to intervening numbering changes, the versions of para- graphs 4–8(a)(14), (d)(4), and (d)(6) with local adoption dates of both 8/16/95 and 10/3/17 are approved into the SIP.

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TABLE 4—EPA-APPROVED CHATTANOOGA REGULATIONS—Continued

State section Title/subject Adoption date EPA approval date Explanation

EPA’s approval includes the corresponding sections of the Air Pollution Control Regulations/Ordinances for the re- maining jurisdictions within the Chattanooga-Hamilton County Air Pollution Control Bureau, which were locally ef- fective as of the relevant dates below: Hamilton County— Section 8 (9/6/17); City of Collegedale—Section 14–308 (10/16/17); City of East Ridge—Section 8–8 (10/26/17); City of Lakesite—Section 14–8 (11/2/17); Town of Lookout Mountain—Section 8 (11/14/17); City of Red Bank—Sec- tion 20–8 (11/21/17); City of Ridgeside—Section 8 (1/16/ 18); City of Signal Mountain—Section 8 (10/20/17); City of Soddy-Daisy—Section 8–8 (10/5/17); and Town of Wal- den—Section 8 (10/16/17).

******* Section 4–10 ...... Records ...... 10/3/2017 4/6/2020, [Insert citation of Except paragraph 4–10(b) approved 5/10/90, with a 7/20/89 publication]. local adoption date. EPA’s approval includes the corresponding sections of the Air Pollution Control Regulations/Ordinances for the re- maining jurisdictions within the Bureau, which were locally effective as of the relevant dates below: Hamilton Coun- ty—Section 10 (9/6/17); City of Collegedale—Section 14– 310 (10/16/17); City of East Ridge—Section 8–10 (10/26/ 17); City of Lakesite—Section 14–10 (11/2/17); Town of Lookout Mountain—Section 10 (11/14/17); City of Red Bank—Section 20–10 (11/21/17); City of Ridgeside—Sec- tion 10 (1/16/18); City of Signal Mountain—Section 10 (10/ 20/17); City of Soddy-Daisy—Section 8–10 (10/5/17); and Town of Walden—Section 10 (10/16/17).

******* Section 4–17 ...... Enforcement of chapter; pro- 10/3/2017 4/6/2020, [Insert citation of EPA’s approval includes the corresponding sections of the cedure for adjudicatory publication]. Air Pollution Control Regulations/Ordinances for the re- hearings. maining jurisdictions within the Bureau, which were locally effective as of the relevant dates below: Hamilton Coun- ty—Section 17 (9/6/17); City of Collegedale—Section 14– 17 (10/16/17); City of East Ridge—Section 8–17 (10/26/ 17); City of Lakesite—Section 14–17 (11/2/17); Town of Lookout Mountain—Section 17 (11/14/17); City of Red Bank—Section 20–17 (11/21/17); City of Ridgeside—Sec- tion 17 (1/16/18); City of Signal Mountain—Section 17 (10/ 20/17); City of Soddy-Daisy—Section 8–17 (10/5/17); and Town of Walden—Section 17 (10/16/17).

*******

* * * * * that pertain to the Dallas-Fort Worth Information or other information whose [FR Doc. 2020–06582 Filed 4–3–20; 8:45 am] (DFW) area and the 1979 1-hour and disclosure is restricted by statute. BILLING CODE 6560–50–P 1997 8-hour ozone National Ambient Certain other material, such as Air Quality Standards (NAAQS or copyrighted material, is not placed on standard). The EPA is approving the the internet and will be publicly ENVIRONMENTAL PROTECTION plan for maintaining the 1-hour and available only in hard copy form. AGENCY 1997 ozone NAAQS through the year Publicly available docket materials are 2032 in the DFW area. The EPA is 40 CFR Parts 52 and 81 available either electronically through determining that the DFW area https://www.regulations.gov or in hard [EPA–R06–OAR–2019–0213; FRL–10006– continues to attain the 1979 1-hour and copy at the EPA Region 6 Office, 1201 97–Region 6] 1997 8-hour ozone NAAQS and has met Elm Street, Suite 500, Dallas, Texas the five CAA criteria for redesignation. 75270. Air Plan Approval; Texas; Dallas-Fort Therefore, the EPA is terminating all Worth Area Redesignation and anti-backsliding obligations for the DFW FOR FURTHER INFORMATION CONTACT: Maintenance Plan for Revoked Ozone area for the 1-hour and 1997 ozone Robert Todd, EPA Region 6 Office, National Ambient Air Quality NAAQS. Infrastructure & Ozone Section, 1201 Standards DATES: This rule is effective on May 6, Elm Street, Suite 500, Dallas, TX 75270, AGENCY: Environmental Protection 2020. 214–665–2156, [email protected]. To Agency (EPA). ADDRESSES: The EPA has established a inspect the hard copy materials, please ACTION: Final rule. docket for this action under Docket ID schedule an appointment with Mr. Todd No. EPA–R06–OAR–2019–0213. All or Mr. Bill Deese at 214–665–7253. SUMMARY: Pursuant to the Federal Clean documents in the docket are listed on SUPPLEMENTARY INFORMATION: Air Act (CAA or the Act), the the https://www.regulations.gov Environmental Protection Agency (EPA website. Although listed in the index, Throughout this document ‘‘we,’’ ‘‘us,’’ or Agency) is approving revisions to the some information is not publicly and ‘‘our’’ means the EPA. Texas State Implementation Plan (SIP) available, e.g., Confidential Business

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I. Background and Summary of Final (5) that the state containing such area 107(d)(3)(E)(ii) and (v) because areas Action has met all requirements applicable to that are applying for redesignation to The background for this action is the area under CAA section 110 attainment are already attaining the discussed in detail in our June 24, 2019 (Implementation plans) and part D (Plan standard. Proposal (84 FR 29471, ‘‘Proposal’’). In Requirements for Nonattainment Areas). Finally, we are fully approving the that document we proposed to: (1) As discussed in our Proposal, the maintenance plan for the DFW area. As Approve the plan for maintaining both Technical Support Document (TSD), discussed in the Proposal, we agree that the revoked 1979 1-hour and 1997 8- and in the remainder of this preamble, Texas has provided a plan that hour ozone NAAQS 1 through 2032 in the five criteria listed above have been demonstrates that the DFW area will the DFW area; (2) Determine that the met. In past actions, we have maintain attainment of the revoked 1- DFW area is continuing to attain both determined that the area has attained hour and 1997 standards until 2032. the revoked 1-hour and 1997 ozone the 1-hour and 1997 ozone NAAQS due The plan also includes contingency NAAQS; (3) Determine that Texas (‘‘the to permanent and enforceable measures measures that would be implemented in State’’) has met the CAA criteria for (Criteria 1 and 3). As discussed in the the DFW area should the area monitor redesignation of the DFW area for the 1- Proposal and in this final action, air a violation of these standards in the hour and 1997 8-hour ozone NAAQS; quality in the DFW area has been future. meeting the 1-hour standard since 2006 and, (4) Terminate all anti-backsliding II. Response to Comments obligations for the DFW area for both and the 1997 ozone standard since 2014. the 1-hour and 1997 ozone NAAQS. As documented in the Proposal and the We received comments from In this final action, we are approving TSD, numerous State, Federal and local Earthjustice (on behalf of Downwinders the plan for maintaining both the 1-hour measures have been adopted and at Risk and the Sierra Club); and the and 1997 ozone NAAQS through the implemented including, but not limited Texas Commission on Environmental year 2032 in the DFW area. We are also to, nitrogen oxide (NOX) limits on all Quality (TCEQ or State). These determining that the DFW area Portland cement kilns in Ellis County, comments are available for review in the continues to attain both the 1-hour and and federal on- and off-road emissions docket for this rulemaking. Our 1997 ozone NAAQS and has met the control programs. These programs have responses to all relevant comments five criteria in CAA section 107(d)(3)(E) resulted in significant reductions and follow. Any other comments received for redesignation for these Standards. resulted in attainment of the 1-hour and were either deemed irrelevant or beyond The EPA revoked the 1-hour and 1997 1997 ozone standards. the scope of this action, but are also ozone NAAQS along with associated We are also finding that the area has included in the docket for this action. designations and classifications (69 FR met all requirements under CAA section We proposed to find that the DFW 23951, April 30, 2004; and, 80 FR 110 and part D that are applicable for area met all five redesignation criteria in 12264, March 6, 2015), and thus, the purposes of redesignation, and all such CAA section 107(d)(3)(E) for the DFW area has no designation under requirements have been fully approved revoked ozone standards, and consistent both the 1-hour or 1997 ozone NAAQS (Criteria 2 and 5). As discussed in the with the decision of the U.S. Court of that can be changed through Proposal, for the revoked ozone Appeals for the District of Columbia redesignation as governed by CAA standards at issue here, over the past Circuit in South Coast Air Quality section 107(d)(3)(E). Therefore, we are three decades the State has submitted Management District v. EPA, 882 F.3d not promulgating a redesignation of the numerous SIPs for the DFW area to 1138 (D.C. Cir. 2018) (‘‘South Coast DFW area under CAA section implement those standards, improve air II’’),3 that the anti-backsliding 107(d)(3)(E). However, because the DFW quality with respect to those standards, obligations for the DFW area associated area has met the five criteria in section and address anti-backsliding with these standards should therefore be 107(d)(3)(E) for redesignation, we are requirements for those standards. The terminated. In the alternative, we terminating all anti-backsliding TSD documents many of these actions proposed to redesignate the DFW area to obligations for the DFW area for both and EPA approvals. However, EPA has attainment for the revoked ozone the revoked 1-hour and 1997 ozone consistently held the position that not standards, taking comment on whether NAAQS. every requirement to which an area is we had authority to do so. In this action, To determine the criteria under CAA subject is ‘‘applicable’’ for purposes of based upon comments received, we are section 107(d)(3)(E) are met, we redesignation. See, e.g., September 4, finalizing the first option. determine: (1) That the area has attained 1992, Memorandum from John Calcagni Comment: Earthjustice states that the NAAQS; (2) that we have fully (‘‘Calcagni Memorandum’’).2 As ozone is a serious health problem in approved the applicable described in this memo, some of the Dallas. implementation plan for the area under Part D requirements, such as Response: We agree that ozone is a CAA section 110(k); (3) that the demonstrations of reasonable further significant health issue in the DFW area, improvement in air quality is due to progress, are designed to ensure that but we also recognize that significant permanent and enforceable reductions nonattainment areas continue to make progress has been made in reducing in emissions resulting from progress toward attainment. EPA has ozone levels in the area. This action implementation of the applicable interpreted these requirements as not recognizes that the DFW area has implementation plan and Federal air ‘‘applicable’’ for purposes of attained both the revoked 1-hour and pollutant control regulations and other redesignation under CAA section 1997 ozone NAAQS. We also recognize permanent and enforceable reductions; that further air quality improvement is (4) that the area has a fully approved 2 As referenced in our Proposal, see ‘‘Procedures necessary in the area to meet the two maintenance plan meeting the for Processing Requests to Redesignate Areas to current 2008 and 2015 ozone NAAQS Attainment,’’ Memorandum from John Calcagni, and to protect public health. The DFW requirements of CAA section 175A; and, Director, Air Quality Management Division, September 4, 1992. To view the memo, please visit area was designated as nonattainment 1 Throughout this document, we refer to the 1979 https://www.epa.gov/sites/production/files/2016- 1-hour ozone NAAQS as the ‘‘1-hour ozone 03/documents/calcagni_memo_-_procedures_for_ 3 ‘‘South Coast I’’ refers to South Coast Air NAAQS’’ and the 1997 8-hour ozone NAAQS as the processing_requests_to_redesignate_areas_to_ Quality Management District v. EPA, 472 F.3d 882 ‘‘1997 ozone NAAQS.’’ attainment_090492.pdf. (D.C. Cir. 2006).

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for both the revoked 1-hour and 1997 authority for its application of the requirements under [CAA section 175A]; and ozone NAAQS and is designated as statutory provision for the purposes of (3) the state has met all relevant [CAA section nonattainment for the two current (2008 terminating anti-backsliding provisions 110 and Part D] requirements. 80 FR at and 2015) 8-hour ozone NAAQS.4 As a and has not purported to create 12,305. Because the ‘redesignation substitute’ does not include all five statutory result, the State and DFW area— regulations here under its general requirements, it violates the Clean Air Act. including local governments, business rulemaking authority of CAA section 882 F.3d at 1152. and industry—have implemented 301(a) to do so. Further, the commenter We disagree that the D.C. Circuit, as measures to reduce emissions of NOX alleges that the EPA’s reliance on South and volatile organic compounds (VOC) Coast II to support its authority to commenters suggest, said nothing with that form ozone (see, e.g., State terminate DFW’s anti-backsliding respect to how anti-backsliding controls Submittal, Section 2.4: Permanent and requirements for the two revoked ozone could be lawfully terminated for areas Enforceable Measures Reductions and NAAQS is unlawful and arbitrary. under a revoked NAAQS. The court the TSD for this action). Accordingly, Earthjustice argues that the D.C. Circuit stated that the Act ‘‘unambiguously’’ the DFW area has seen its 1-hour ozone in South Coast II held only that the requires that all five statutory design values decrease from 147 parts redesignation substitute was unlawful redesignation criteria be met before anti- per billion (ppb) in 1992 to 98 ppb in because it fell short of certain statutory backsliding controls (i.e., controls 2018. Likewise, the DFW area design requirements and did not address any associated with the nonattainment values for the 8-hour ozone NAAQS other reasons why the regulation was designation for a revoked NAAQS) have decreased from 100 ppb in 2003 to unlawful and arbitrary. The commenter could be shed. Id. The court’s express 76 ppb in 2018.5 Because the area has alleges that South Coast II ‘‘says basis for vacating the redesignation attained the revoked 1-hour and 1997 nothing’’ about whether EPA could substitute was that the mechanism ozone NAAQS, and has also met the lawfully authorize termination of anti- failed to incorporate all of the statutory other CAA statutory requirements for backsliding requirements in the criteria as preconditions. Id. (‘‘Because the ‘redesignation substitute’ does not redesignation for these standards, we circumstance addressed here, where the include all five statutory requirements, believe it is appropriate to terminate the area continues to violate the 2008 and it violates the Clean Air Act.’’). We do anti-backsliding requirements 2015 ozone NAAQS, and where not agree with the commenter’s associated with these revoked NAAQS. termination ‘‘weakens protections in the suggestion that the EPA may not rely on The area will remain designated area.’’ Earthjustice states that the South the court’s plain interpretation of the nonattainment for the 2008 and 2015 Coast II court’s holding with respect to Act and act in accordance with it. The ozone NAAQS. The DFW area was the EPA’s authority to reclassify areas EPA had previously approved recently reclassified as a Serious after revocation is irrelevant to the redesignation substitutes for the DFW nonattainment area for the 2008 ozone question of the EPA’s authority to area for the 1-hour ozone NAAQS and NAAQS, and therefore the State must change an area’s designation after the 1997 ozone NAAQS. As discussed submit SIP revisions and implement revocation. controls to satisfy the statutory and Response: We disagree that the EPA in our Proposal, this final action regulatory requirements for a Serious lacks authority to terminate an area’s replaces our previous approvals of the nonattainment area for the 2008 ozone anti-backsliding requirements for a DFW area redesignation substitutes for standard.6 revoked NAAQS and that we may not the 1-hour and 1997 ozone NAAQS. Furthermore, we reject the Comment: Earthjustice states that EPA do so here for the DFW area with commenter’s suggestion that cannot lawfully or rationally apply the respect to the two revoked ozone nonattainment of the newer, current criteria at CAA section 107(d)(3)(E) to NAAQS in question. The commenter’s NAAQS is a unique set of circumstances terminate anti-backsliding protections suggestion that the EPA may not look to that would reasonably alter the EPA’s for the DFW area, because that statutory the statutory redesignation criteria in ability to either redesignate an area or provision provides only minimum CAA section 107(d)(3)(E) for authority terminate anti-backsliding requirements criteria that must be satisfied before a to terminate the DFW area’s anti- for a prior NAAQS. Nothing in CAA designated nonattainment area may be backsliding requirements is section 107(d)(3) suggests that the EPA’s redesignated to attainment. Earthjustice contradicted by the D.C. Circuit’s approval of a redesignation or states that the provision provides no decision in South Coast II. In that termination of anti-backsliding for one authority to terminate anti-backsliding decision, the court faulted the NAAQS should include evaluation of on the basis of an area meeting its redesignation substitute, one of the attainment of another newer NAAQS. It criteria for a revoked standard. The EPA’s mechanisms for terminating anti- is common practice that areas commenter also states that EPA does not backsliding, but only because it had designated nonattainment for an earlier, and cannot identify a source of addressed only some, and not all, of the less stringent NAAQS come into statutory redesignation criteria: 4 For the 1-hour ozone NAAQS the DFW compliance with that NAAQS, meet the nonattainment area consists of Collin, Dallas, The redesignation substitute request ‘is requirements for redesignation for that Denton, and Tarrant Counties (56 FR 56694, based on’ the Clean Air Act’s ‘criteria for NAAQS, and are redesignated to November 6, 1991). For the 1997 ozone NAAQS, the redesignation to attainment’ under [CAA attainment for that NAAQS, while DFW nonattainment area included the four counties section 107(d)(3)(E)], 80 FR at 12,305, but it already listed, plus Ellis, Johnson, Kaufman, Parker, does not require full compliance with all five remaining nonattainment for a newer and Rockwall Counties (69 FR 23858, April 30, conditions in [CAA section 107(d)(3)(E)]. The more stringent standard for the same 2004). For the 2008 ozone NAAQS, the DFW Clean Air Act unambiguously requires pollutant. Indeed, with Congress’ nonattainment area included the nine counties nonattainment areas to satisfy all five of the already listed, plus Wise County (77 FR 30088, May directive that the EPA review and revise 21, 2012). For the 2015 8-hour ozone NAAQS the conditions under [CAA section 107(d)(3)(E)] the NAAQS as appropriate no less DFW nonattainment area consists of Collin, Dallas, before they may shed controls associated frequently than every five years, it Denton, Ellis, Johnson, Kaufman, Parker, Tarrant, with their nonattainment designation. The would be nearly impossible for areas to redesignation substitute lacks the following and Wise Counties (83 FR 25776, June 4, 2018). be redesignated to attainment for an 5 See the TCEQ ozone reports posted at https:// requirements of [CAA section 107(d)(3)(E)]: www.tceq.texas.gov/airquality/monops/ozone. (1) The EPA has ‘fully approved’ the [CAA older NAAQS if nonattainment of a 6 See (83 FR 25776, June 4, 2018), and (84 FR section 110(k)] implementation plan; (2) the newer (often more stringent) standard 44238, August 23, 2019). area’s maintenance plan satisfies all the barred EPA from approving

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redesignation requests for the older would ratify termination of key anti- environmental and demographic raw standard. backsliding protections, particularly the data (e.g., the estimated concentration of We also disagree that this action’s Serious area NNSR protections that ozone in the air), and shows what effects terminating anti-backsliding would otherwise apply to proposed new percentile each raw data value requirements are in any way ‘‘unique.’’ and modified stationary sources and represents. These percentiles provide Areas that are redesignated to work to impose more stringent limits on perspective on how the selected block attainment are permitted to stop harmful ozone-forming pollution group (Joppa) compares to the entire applying nonattainment area New attributable to those new and modified State, EPA region, and nation. For Source Review offsets and thresholds stationary sources. By authorizing DFW example, if Joppa is at the 95th and transition to the Prevention of to have weaker protections than it percentile nationwide, this means that Significant Deterioration program, otherwise would, while still having only 5 percent of the US population has which the EPA does not agree is an severely harmful levels of ozone air a higher block group value than the unwarranted ‘‘weakening’’ of pollution, Earthjustice claims that the average person in Joppa. The variables protections. In this case, because the EPA’s action irrationally deprives DFW included in the report are particulate DFW area remains nonattainment for communities of CAA public health matter (PM), ozone, diesel PM, several the newer ozone NAAQS, it will protections intended to bring the area categories within the National Air continue to be subject to nonattainment expeditiously into compliance with Toxics Assessment (NATA),8 lead paint, new source review (NNSR) emissions health-based ozone standards. wastewater discharge, and proximity to offsets and threshold requirements, Response: As stated previously, we the following: traffic and traffic volume; tailored to the current classifications are not in this action redesignating the Superfund sites; and Risk Management that apply to the area. EPA does not DFW area for the revoked NAAQS. Plan facilities (potential chemical agree with commenter’s suggestion that Rather, we find that all five CAA accident management plan). Earthjustice areas that have reached attainment statutory criteria for redesignation are states that the weakened NNSR should be subject to a more stringent met, and therefore anti-backsliding requirements will allow more VOC process to shed obligations under a obligations for the revoked NAAQS are emissions and emissions of listed revoked NAAQS than the process appropriately terminated. hazardous air pollutants than otherwise required to shed obligations for a We note that we have considered the would be permitted, and the community current NAAQS. We do not agree that it consequence of terminating anti- of Joppa would bear a disproportionate is arbitrary or unlawful to hold areas backsliding protections specifically burden of these emissions. that were nonattainment for a revoked raised by the commenter, i.e., the Response: The EPA appreciates the NAAQS to the same standards that Serious classification requirements for work the commenter has performed to apply to areas that are nonattainment for NNSR. The commenter submitted their evaluate potential disproportionate the current NAAQS. comments in a July 24, 2019 letter. In a impacts in vulnerable communities; in Finally, with respect to Earthjustice’s final rule published August 23, 2019 we this final action, however, we are comment that the South Coast II court’s reclassified the area to Serious for the addressing only the determination that holding regarding reclassification does 2008 ozone standard (84 FR 44238). the DFW area is attaining the revoked not support an interpretation that the Thus, the Serious NNSR and other standards and meets the five criteria for EPA has the authority to alter Serious ozone nonattainment redesignation, which leads to the designations, the EPA is not finalizing a requirements apply now and will termination of anti-backsliding change in designation for the area for continue to apply after this final rule.7 measures. We note that emissions of PM the two revoked NAAQS. Because we Comment: Earthjustice states that and all other variables in the are not redesignating the DFW area to unhealthy levels of ozone and other air Commenter’s EJSCREEN Report, with attainment no further response to this pollutants disproportionally affect the exception of ground-level ozone, are specific comment is required. communities of color in the DFW Comment: Earthjustice states that EPA outside the scope of this action. nonattainment area. Specifically, The EJSCREEN Report provided by cannot lawfully or rationally change Earthjustice expressed concern about the commenter examined the geographic DFW’s designation under revoked disproportionate impacts on the historic distribution of several pollutants and standards. freedman town of Joppa, which is other variables and whether the Response: The EPA is not changing located southeast of downtown Dallas. the designation for the DFW area under community in Joppa is Earthjustice includes a document with disproportionately impacted by these the 1-hour or 1997 ozone NAAQS in their submitted comments titled, this action. As noted above, the pollutants and variables. The ‘‘EJSCREEN Report (Version 2017),’’ approvability of this action is based on designations for these areas were dated March 05, 2018. The report shows revoked when the NAAQS were requirements for ozone and the revoked standards being considered here. As revoked. In this action, EPA is 7 The NNSR requirements in the existing Texas terminating the anti-backsliding discussed elsewhere, because EPA SIP contain a provision that cross references the reclassified the DFW area to Serious for requirements associated with the two designation of the area to 40 CFR part 81. See 30 revoked NAAQS in this area. TAC section 101.1(71). Because of the structure of the 2008 ozone NAAQS in 2019, new Comment: Earthjustice states that EPA this provision, the identification of an area’s sources built in the DFW area must meet classification, and thus the related major source NNSR requirements consistent with the arbitrarily fails to consider the thresholds and offset ratios, is updated without any consequences of terminating anti- additional revision to the SIP. The EPA approved Serious area classification (84 FR backsliding protections. The commenter Texas SIP includes 30 TAC Section 116.12 (Nonattainment and Prevention of Significant 8 NATA is EPA’s ongoing review of air toxics in asserts that the EPA is not legally Deterioration Review Definitions) and 30 TAC the United States. EPA developed NATA as a obligated to redesignate an area that Section 116.150 (New Major Source or Major screening tool for state, local and tribal air agencies. meets criteria of CAA section Modification in Ozone Nonattainment Area). These NATA’s results help these agencies identify which 107(d)(3)(E), and that additionally, the provisions require new major sources or major pollutants, emission sources and places they may modifications at existing sources in the DFW area wish to study further to better understand any EPA must also determine whether it to comply with the lowest achievable emission rate possible risks to public health from air toxics. For should redesignate the area. Earthjustice and obtain emission offsets at the Serious more information see https://www.epa.gov/ states that finalization of this Proposal classification ratio of 1.2 to 1. national-air-toxics-assessment.

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44238), just as they were required to do paragraph, including that the approval area for the two revoked ozone NAAQS, prior to the approval of the of the request to terminate anti- and therefore the comments regarding redesignation substitute for the 1997 backsliding does not impose new consequences of changing the area’s ozone NAAQS. Therefore, terminating requirements on sources (i.e., ‘‘For that designation are beyond the scope of this the NNSR requirements for either of the reason’’ more appropriately would have final action. We are revising the 40 CFR revoked NAAQS for the DFW area has read ‘‘For these reasons’’). part 81 tables for the DFW area, which no impact, much less a disproportionate With respect to the commenter’s currently reflect the approvals of the impact. Texas will continue to have to concern that EPA has not adequately area’s redesignation substitute from work to reduce ozone precursors to meet addressed environmental justice, we do 2016. For revoked standards, the sole the 2008 and 2015 ozone standards. not agree that Executive Order 12898 purpose of the part 81 table is to help Finally, we note that monitors applies to this action because this action identify applicable anti-backsliding throughout the DFW area have recorded does not affect the level of protection obligations. Therefore, we are revising concentrations meeting both the 1-hour provided to human health or the the part 81 tables to reflect that the DFW and 1997 ozone standards for some environment. In this action the level of area has met all the redesignation time.9 protection is provided by the ozone criteria for the two revoked ozone Comment: Earthjustice states that EPA NAAQS and this action does not revise NAAQS and therefore anti-backsliding arbitrarily concludes that relevant the NAAQS. As noted earlier in this obligations associated with those two statutory and executive order reviews final action, the DFW area will remain revoked NAAQS are terminated. are not required for this rule and EPA designated nonattainment for the 2008 Comment: Earthjustice states the DFW wrongly asserts that the proposed action and 2015 ozone NAAQS. The DFW area area did not attain by its Serious area would only accomplish a revision to the was recently reclassified as a Serious attainment date for the 1997 8-hour Texas SIP that EPA can only approve or nonattainment area for the 2008 ozone ozone NAAQS and EPA didn’t reclassify disapprove. Earthjustice states that NAAQS, and therefore the State must the area to Severe nonattainment, as through this rule, EPA proposes to submit SIP revisions and implement required by CAA section 181(b)(2). change and adopt national positions controls to satisfy the statutory and Earthjustice states that EPA thus has regarding its authority to redesignate regulatory requirements for a Serious overdue legal obligations to reclassify areas under CAA section 107(d)(3)(E) area for the 2008 ozone standard.10 the DFW area to Severe under the 1997 and terminate anti-backsliding With respect to commenter’s concern ozone standard in line with the D.C. protections for revoked standards. that we have not adequately addressed Circuit’s South Coast II decision. Earthjustice states these actions are not executive orders regarding children’s Earthjustice states that our Proposal SIP revisions and thus necessitate the health, we do not agree that Executive cannot proceed without the programs statutory and executive order reviews Order 13045 applies to this action. for the DFW area to address the CAA EPA avoids by citing only a portion of Executive Order 13045 applies to section 185 failure to attain fee the actions it is taking in this ‘‘economically significant rules under program 12 and the CAA section rulemaking. Earthjustice states that, in E.O. 12866 that concern an 182(d)(1) vehicle miles traveled (VMT) addition to the environmental justice environmental health or safety risk that program.13 Earthjustice also states that concerns relevant to the review required EPA has reason to believe may EPA has an overdue legal obligation to by Executive Order 12898, EPA ignores disproportionately affect children.’’ See promulgate a Federal Implementation other important considerations that are 62 FR 19885, April 23, 1997. As noted Plan (FIP) for these programs in the a part of rational decision-making like in the Proposal and below in section V DFW area. effects on children’s health and other of this preamble, this rule is not Response: To respond to this public health factors. ‘‘economically significant’’ under E.O. comment, it is useful to recount the Response: As stated previously, we 12866 because it will not have ‘‘an complicated history leading up to this are not in this action redesignating the annual effect on the economy of $100 action. The attainment deadline for the DFW area for the two revoked NAAQS. million or more or adversely affecting in DFW Serious area for the 1997 ozone Earthjustice has not provided much a material way the economy, a sector of NAAQS was June 15, 2013 (see 75 FR detail regarding which statutory and the economy, productivity, competition, 79302 (December 20, 2010)). EPA executive order reviews it believes are jobs, the environment, public health or proposed to determine that the DFW applicable and that the EPA has not safety, or State, local, or tribal area failed to attain by the June 15, 2013 addressed. In section V of this notice, governments or communities.’’ 62 FR attainment date and to reclassify the we discuss EPA’s assessment of each 19885.11 statutory and executive order that Comment: Earthjustice states that EPA 12 The CAA section 185 fee program requirements potentially applies to this action. We apply to ozone nonattainment areas classified as should not revise the attainment Severe or Extreme that fail to attain by the required note that the introductory paragraph to designations in 40 CFR 81 because it has attainment date. It requires each major stationary section V of the Proposal preamble failed to consider the consequences of source of VOC or NOX located in an area that fails contains a typographical error that may doing so, including whether changes in to attain by its attainment date to pay an annual fee have caused some of the commenter’s to the state for each ton of VOC or NOX the source the designations listing will affect emits in excess of 80 percent of a baseline amount. concern. The last sentence of that remaining maintenance plan and other The fees are paid until the area is redesignated to paragraph appears to indicate that the requirements after redesignation. attainment or in the case of a revoked ozone reason for EPA’s proposed assessment Response: In this action, we are not standard, until the anti-backsliding obligations for that the action is exempt from the revising the designations for the DFW the revoked standard area terminated. 13 The 182(d)(1) VMT program (CAA section enumerated statutory and executive 182(d)(1)(A)) applies to ozone nonattainment areas orders is solely that the action is a 10 See 83 FR 25576 and 84 FR 44238. classified as Severe or Extreme. It requires such review of a SIP. However, that sentence 11 See also ‘‘Guide to Considering Children’s areas to offset growth in emissions due to growth was intended to be inclusive of all the Health When Developing EPA Actions: in VMT, reduce motor vehicle emissions as Implementing Executive Order 13045 and EPA’s necessary to comply with RFP requirements, and reasons stated in the introductory Policy on Evaluating Health Risks to Children.’’ choose from among and implement transportation https://www.epa.gov/children/guide-considering- control strategies and transportation control 9 See https://www.epa.gov/air-trends/air-quality- childrens-health-when-developing-epa-actions- measures as necessary to demonstrate NAAQS design-values. implementing-executive-order. attainment.

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DFW area to Severe under the 1997 redesignation substitutes that had been period of time for Texas to submit the ozone NAAQS based upon monitoring approved for the DFW area. Within 13 section 185 fee program and the VMT data for 2010–2012 (80 FR 8274, months of the South Coast II decision, programs. Under EPA’s longstanding February 17, 2015). Less than a month Texas proposed and finalized at the interpretation of the CAA 107(d)(3)(E) later, EPA revoked the 1997 8-hour state-level a demonstration that all five criteria, states requesting redesignation ozone standard along with the statutory criteria for redesignation for to attainment must meet only the associated designations and each of the revoked NAAQS had been applicable requirements of the Act that classifications effective on April 6, 2015 met, including the preparation of a SIP come due prior to the submittal of a (80 FR 12264, 12296; March 6, 2015). It revision to address maintenance of both complete redesignation request. See was EPA’s interpretation at the time that NAAQS for the area through 2032. In September 4, 1992 Calcagni we could not revise the classification of this action, we are determining the DFW memorandum at 2. (‘‘For purposes of an area under a revoked ozone NAAQS area has met the five CAA criteria for redesignation, a State must meet all and reclassification of an area upon its redesignation for both NAAQS and requirements of section 110 and Part D failure to attain by the attainment date therefore we are terminating all anti- that were applicable prior to submittal was not retained as a regulatory anti- backsliding obligations for those of the complete redesignation request. backsliding measure (80 FR 12264, NAAQS. When evaluating a redesignation 12297; March 6, 2015). Therefore, EPA The commenter discusses two specific request, Regions should not consider did not finalize the February 2015 anti-backsliding measures associated whether the State has met requirements reclassification proposal. Beginning with a Severe classification, the CAA that come due under the Act after with the time period 2012–2014, section 185 failure to attain fee program submittal of a complete redesignation monitored levels in the DFW area have and the CAA section 182(d)(1) VMT request.’’); September 17, 1993 Michael met the revoked 1997 ozone standard. program. Earthjustice states that this Shapiro memorandum.14 (‘‘Specifically, We proposed to make a clean data proposal cannot proceed without such before EPA can act favorably upon any determination on April 28, 2015 (80 FR programs for the DFW area, because in State redesignation request, the 23487) and we finalized that clean data commenter’s view, the programs are statutorily-mandated control programs determination in September 2015 (see required because EPA ‘‘still has never of section 110 and part D (that were due 80 FR 52630), based upon the 2012– addressed its failure to reclassify the prior to the time of the redesignation 2014 monitoring data. A clean data area to severe.’’. To require these request) must have been adopted by the determination suspends the requirement programs at this time, however, when State and approved by EPA into the to submit SIPs that are designed to help the area has met the 1997 standard for SIP’’) (emphasis added). Given that for an area achieve attainment, such as more than five years and the State has a revoked NAAQS EPA is using the five demonstrations of how an area will provided a demonstration that all five statutory redesignation criteria to attain (attainment demonstrations) and criteria for redesignation have been met, determine whether anti-backsliding showings of reasonable further progress including a maintenance plan should be terminated, we think it is to attainment, because the stated demonstrating that the area will reasonable to apply the same purpose of those elements will have continue to meet the standard for 10 interpretations that we would in the already been fulfilled for an area that is more years, would be an unnecessary redesignation context. Here, EPA never attaining the standard. The current and unproductive exercise. The D.C. finalized a reclassification of the DFW preliminary 2017–2019 design value for Circuit’s rationale in requiring EPA to area to Severe and never established SIP the area is 77 ppb as air quality has continue to reclassify areas under a submission deadlines for Texas to continued to improve in the DFW area. revoked NAAQS and consequently submit a 185 program or a VMT On February 16, 2018, in the South impose more stringent emission program. Even if we were to do so now, Coast II decision, the D.C. Circuit controls, like those cited by because Texas has already submitted its determined that EPA erred in waiving commenters, was in service of demonstration that it is meeting all five the obligation to reclassify an area to a ‘‘constrain[ing] ozone pollution’’ in statutory redesignation criteria and its higher classification for the 1997 ozone order to attain that NAAQS. South Coast request to terminate the area’s anti- NAAQS based on a failure to meet the II, 882 F.3d at 1147 (‘‘If EPA were backsliding for the 1997 ozone NAAQS, 1997 attainment deadlines and as such allowed to remove the [attainment] under EPA’s long-standing EPA should continue to reclassify areas deadlines * * * a state could go interpretation of the 107(d)(3)(E) if they fail to attain the revoked 1997 unpenalized without ever attaining the criteria, those SIP programs are not standard. The court also vacated the NAAQS.’’) (emphasis added). within the scope of requirements portion of the rule that provided for the Moreover, even if EPA were to make considered by EPA in evaluating ‘‘redesignation substitute’’ approach to a determination today that the DFW area failed to attain by its 2013 Serious area whether the criteria have been met. terminating anti-backsliding measures. Other states have faced somewhat As discussed elsewhere, the court made attainment date and to reclassify the similar situations in the past. One clear that anti-backsliding measures DFW area to Severe, that determination analogous example is the St. Louis area, could only be terminated if all five alone would not immediately render which was designated as a Moderate criteria for redesignation under CAA Texas in default of the section 185 fee ozone nonattainment area for the 1979 section 107(d)(3)(E) have been met. At program and the section 182 VMT 1-hour ozone NAAQS. This area failed the time of the South Coast II decision, requirements, as commenters suggest. to attain by its attainment date, and EPA the DFW area had been monitoring When EPA makes a determination that attainment of the revoked 1997 ozone an area has failed to attain and 14 See the September 17, 1993 memorandum from standard for four years, and had reclassifies that area, the Act prescribes Michael Shapiro, ‘‘State Implementation Plan (SIP) obtained redesignation substitutes for that the Administrator may establish Requirements for Areas Submitting Requests for both revoked ozone NAAQS in 2016 (81 new deadlines for the submission of Redesignation to Attainment of the Ozone and FR 78688, November 8, 2016). SIPs to meet the requirements of the Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November In response to the court decision, new classification. CAA section 182(i). 15, 1992’’ at https://www3.epa.gov/ttn/naaqs/ Texas moved quickly to address the So were EPA to make such a aqmguide/collection/cp2_old/19930917_shapiro_ court’s concerns regarding the determination, we would establish some sips_redesignation_ozone_co_naa.pdf.

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did not timely issue its determination of Petitioners challenged this precise issue, of whether the DFW area has met the that fact. Petitioners challenging EPA’s arguing that Missouri was required to statutory criteria for redesignation eventual determination that the area did have submitted the Serious area would not include the section 185 fee not attain attempted to argue that EPA requirements for the St. Louis area program or the VMT requirements, had de facto made the determination before it was permitted to move on to because the deadlines to submit those years earlier than its actual 2001 redesignation. See Sierra Club v. EPA, requirements would necessarily be rulemaking, via statements made in a 375 F.3d 537 (7th Cir. 2004). The court established in the future, and Texas’ letter to the Governor suggesting that air flatly rejected petitioners’ position. The March 29, 2019 request to terminate its quality problems remained after the 7th Circuit recognized that St. Louis was anti-backsliding obligations for the DFW area’s attainment date or by the negative required to have been bumped up and area under the 1997 ozone NAAQS implication of not having included the treated as a Serious nonattainment area, would therefore pre-date any such St. Louis area on a list of areas that had and therefore subject to the more deadlines. attained by the attainment date. The stringent requirements of that Additionally, with respect to 185 fees, D.C. Circuit ruled that neither of these classification such as requiring sources we note that the Act is explicit that the actions constituted the requisite of more than 50 tons (rather than 100 program begins if a Severe or Extreme determination of whether the area tons) of precursor chemicals to install area is found to have failed to attain by attained, agreeing with the Agency that control measures, but that there would the applicable attainment deadline for ‘‘if there has not been a rulemaking be ‘‘some lead time’’ for covered sources those classifications. See CAA § 185(a) there has not been an attainment to limit their emissions. Id. And, (noting that the program will apply ‘‘if determination.’’ See Sierra Club v. ‘‘[b]efore that time arrived, St. Louis met the area . . . has failed to attain the Whitman, 285 F.3d 63, 66 (D.C. Cir. the national ozone standard,’’ and the [NAAQS] for ozone by the applicable 2002). Nor did the court endorse court viewed this as a critical point. See attainment date’’). The earliest possible environmental petitioners’ claim that id. It agreed with EPA that a reasonable Severe attainment deadline under the EPA’s 2001 determination that St. Louis interpretation of CAA section Act would have been June 15, 2019. As failed to attain should be ‘‘converted to 107(d)(3)(E) was to adjudge St. Louis’ the DFW area attained the 1997 ozone the date the statute envisioned [i.e., redesignation request based on standard long before any Severe 1997], rather than the actual date of ‘‘whatever actually was in the plan and attainment deadline, fees would never EPA’s action.’’ Id. at 68. The court ruled already implemented or due at the time be collected for failure to attain the 1997 that the Administrative Procedure Act of attainment.’’ Id. At the heart of the ozone standard. To require the State to prohibits retroactive rulemaking, that court’s disagreement with petitioners submit a program that could never be there is no indication that Congress was the petitioners’ view that triggered does not serve the ultimate intended the CAA to be an exception to reclassification ‘‘was some sort of goal of the CAA, which is to have areas that prohibition, and that back-dating punishment;’’ whereas the court attain the various NAAQS that EPA the effective date of EPA’s interpreted Congress’ reclassification establishes as expeditiously as determination of failure to attain would requirements as an instruction to practicable, not to create unnecessary be arbitrary. See id. Specifically, the reclassified areas ‘‘to take additional paperwork exercises that could never court stated, ‘‘Although EPA failed to steps . . . to achieve an adequate achieve any environmental benefit. With respect to the CAA section make the nonattainment determination reduction in ozone, [so] it would be odd 182(d)(1)(A) VMT requirements, we within the statutory time frame, Sierra to require them even when they turned note that such programs generally out to be unnecessary.’’ Id. In the court’s Club’s proposed solution only makes contain three elements: (1) Specific the situation worse. Retroactive relief view, ‘‘[r]eclassification was a enforceable transportation control would likely impose large costs on the combination of (a) goad (clean up or strategies and transportation control States, which would face fines and suits suffer expensive measures), and (b) measures to offset any growth in for not implementing air pollution palliative (sterner measures expedite emissions from growth in vehicle miles prevention plans in 1997, even though compliance). Once an area has meet traveled or numbers of vehicle trips in they were not on notice at the time.’’ Id. [sic] the national air quality standard, the Severe nonattainment area, (2) The situation faced in the St. Louis 1- neither rationale calls for extra reduction in motor vehicle emissions as hour ozone nonattainment area stringency; indeed the statutory system necessary (in combination with other resembles the current situation in the would not be much of a goad if the emission reduction requirements) to DFW area in another way. That is, after tighter controls must continue even after comply with the reasonable further EPA issued the determination that St. attainment.’’ Id. at 542. progress requirements of the Act, and Louis had failed to attain by the The St. Louis example is therefore (3) adoption and implementation of Moderate attainment deadline and informative to the current DFW measures specified in section 108(f) of reclassified the area to Serious, the St. situation in two ways. First, it suggests the Act as necessary to demonstrate Louis area came into attainment of the that the section 185 fee program SIP and attainment of the NAAQS. Even if EPA NAAQS and submitted its request to be the VMT SIP are not required had promulgated a final determination redesignated prior to the deadlines to submissions until EPA promulgates a that the DFW area failed to attain in submit the Serious area requirements rulemaking finding that the DFW area 2013, or if EPA were to promulgate such associated with the reclassification. In failed to attain by its attainment date a determination today, the Agency’s evaluating Missouri’s request to and reclassifies the area and that such action in 2015 clean data determination redesignate St. Louis, EPA followed its finding cannot be inferred without finding that the DFW area was attaining longstanding interpretation of CAA actual agency action. See Sierra Club v. the NAAQS 15 would have the effect of section 107(d)(3)(E) and evaluated the Whitman, 285 F.3d at 66. Second, the redesignation based on whether the St. Louis history indicates that even if 15 80 FR 52630, 52631 (September 1, 2015) state had all of its required Moderate EPA were to promulgate a finding today (‘‘Finalizing the CDD suspends the requirements for that the DFW area failed to attain by its the TCEQ to submit an attainment demonstration or SIPs approved, but not based on other SIPs related to attainment of the 1997 ozone whether the state had submitted and 2013 attainment date, the evaluation NAAQS in the DFW area for so long as the area is EPA had approved Serious area plans. being undertaken in this current action attaining the standard (40 CFR 51.1118)’’).

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suspending the second and third and consequently no requirement to Response: We are not redesignating elements—the RFP and attainment offset any such undetermined growth in the DFW area for the revoked 1-hour elements of the section 182(d)(1)(A) emissions through implementation of and 1997 ozone NAAQS. We disagree VMT SIP requirements.16 As noted TCMs has been triggered. Therefore, it is that EPA is required under the CAA to above, a clean data determination flatly incorrect for the commenter to consider the effect of this action on suspends the requirement to submit assert that a Severe area VMT program interstate and intrastate ozone transport attainment-related planning SIPs for so must be implemented before EPA can before it may terminate the DFW area’s long as the area continues to attain, and take final action in this rule. anti-backsliding requirements with those requirements are permanently The commenter additionally argues respect to the two revoked ozone terminated when EPA finds that the that EPA has an overdue legal obligation NAAQS in question, and we do not redesignation criteria have been met. to promulgate a FIP for the 185 fee and agree that such considerations are Therefore, even if we had reclassified VMT programs. EPA has no authority to relevant to this rulemaking. At the the DFW area to Severe for the 1997 issue a FIP for these Severe area outset, we note that the State is ozone NAAQS or were to do so now, requirements. We have authority to projecting DFW area ozone precursor and the first element of the VMT SIP at promulgate a FIP only after we (1) find emissions will decrease, reducing the that point became or would become a that a State has failed to make a required DFW area’s impact on other areas. required submission, these latter two SIP submission or find that the SIP Interstate ozone transport is addressed VMT elements would not have been submission does not satisfy the under CAA section 110(a)(2),19 and required to be submitted due to the minimum criteria found in 40 CFR 51, Texas’ interstate transport obligations clean data determination for the 1997 Appendix V (a ‘‘finding of failure to under the Act are not in any way altered ozone NAAQS, and they are terminated submit’’) or (2) disapprove a SIP by this action. To the extent that Texas now because the DFW area has met the submission in whole or in part. After has outstanding interstate ozone CAA five criteria for redesignation. making such a finding or disapproving transport obligations under CAA section If the State were now required to a SIP submission we are required to 110(a)(2)(D), they remain obligated to address section 182(d)(1)(A)’s first promulgate a FIP within 2 years unless address those statutory requirements element, the requirement to offset any we approve a SIP submission that after finalization of this action. growth in emissions from growth in corrects the deficiency. See CAA section The TCEQ has also adopted Serious VMT or numbers of vehicle trips, 110(c)(1). We have not made a finding Area attainment plans for the Houston following a bump up to a Severe of failure to submit for a 185 fee or VMT and DFW areas for the 2008 8-hour classification, the first step would be to program nor have we disapproved a SIP ozone standard, and those submittals— determine if there had been an increase revision addressing either of these including any obligation to address in motor vehicle emissions in the area programs for the DFW area. Thus, we do intrastate transport as necessary to due to growth in VMT or vehicle trips not have the authority to promulgate a attain the NAAQS—will also be between the base year used in SIP FIP for these programs in the DFW evaluated in separate actions. planning and 2014, the area’s area.18 Comment: Earthjustice states that attainment year. As EPA has explained Comment: Earthjustice states that EPA EPA’s Proposal leaves important in its guidance on the VMT offset arbitrarily flouts important modeling questions unaddressed. element,17 it would only be necessary to considerations relevant to this Earthjustice states EPA predicts that adopt and implement a program of rulemaking, and states that this action’s point source NOX emissions will offsetting transportation control consequences on interstate and increase slightly between 2014 and measures or other transportation control intrastate ozone transport are not 2020, then expects these NOX emissions strategies if it is determined that there considered. Earthjustice states that EPA to remain identical until 2032. In its had been an increase in motor vehicle failed to consider how redesignation TSD, EPA does not explain how it emissions due to increase in VMT or will affect Texas’ interstate ozone arrived at its modeling prediction and vehicle trips during that period. Again, transport obligations under existing given the tremendous growth of however, because the area has not been regulations and how redesignation of industrial facilities in the Dallas area reclassified as a Severe nonattainment the DFW area will affect attainment in due, in part, to oil and gas extraction area, no analysis of whether there has other Texas areas, such as San Antonio activities it is difficult to see how this been such an increase in emissions from and Houston, both of which struggle prediction holds. Similarly, EPA fails to growth in VMT is required under the with existing ozone pollution and are in explain how VOC emissions from point Act, no determination regarding such an nonattainment for several standards. sources will remain essentially identical analysis has been made or is required, Earthjustice states EPA must consider between 2014 and 2032. Earthjustice the interstate and intrastate also questions whether these consequences of redesignating and 16 ‘‘Reasonable Further Progress, Attainment predictions are technically sound or Demonstration, and Related Requirements for relaxing anti-backsliding controls in the with a ‘‘margin of error’’ that might Ozone Nonattainment Areas Meeting the Ozone DFW area. National Ambient Air Quality Standard’’ result in putting the Dallas area in Memorandum from John Seitz, Director, Office of nonattainment for either or both 18 Although the commenter does not explicitly Air Quality Planning and Standards, May 10, 1995. argue for this, they seem to suggest that EPA should standards if future relaxed new source To view the memo please visit https:// consider the VMT and 185 fee programs as having review permit controls are put in place. www.epa.gov/ground-level-ozone-pollution/ already been due in the past and Texas to be Response: As described in our reasonable-further-progress-attainment- delinquent in submitting such programs, even Proposal and TSD, EPA evaluated the demonstration-and-related. though EPA never finalized a reclassification for the 17 See page 7 of ‘‘Implementing Clean Air Act DFW area. Because of the complexity of the CAA’s Section 182(d)(1)(A): Transportation Control SIP provisions and the interrelationship between 19 See ‘‘Guidance on Infrastructure State Measures and Transportation Control Strategies to federal and state action, the EPA believes it is Implementation Plan (SIP) Elements under Clean Offset Growth in Emissions Due to Growth in inappropriate to impose any retroactive effect on Air Act sections 110(a)(1) and 110(a)(2),’’ Vehicle Miles Travelled’’, Office of Transportation decisions in a manner that would create deadlines Memorandum from Stephen D. Page, September 13, and Air Quality, EPA–420–B–12–053, August 2012. that have long passed. EPA has historically refused 2013. This document is available at https:// This guidance is available at https://nepis.epa.gov/ to do this, and courts have supported this position. www3.epa.gov/airquality/urbanair/sipstatus/docs/ Exe/ZyPDF.cgi/P100EZ4X.PDF? See, e.g., Sierra Club v. Whitman, 285 F.3d 63 (D.C. Guidance_on_Infrastructure_SIP_Elements_ Dockey=P100EZ4X.PDF. Cir. 2002). Multipollutant_FINAL_Sept_2013.pdf.

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emission inventories (EIs) submitted by the interim year NOX EIs were adjusted 182(c)(10). Whether a new or modified the State in its Maintenance Plan and to account for available, unused major source in the DFW area chooses we found the State’s approach and emissions credits. TCEQ also assumed to offset NOX or VOC or a combination methods of calculating the base year and that additional emissions would occur of the two, the offsets must be made in future year EIs appropriate.20 We based on the possible use of emission the same ozone nonattainment area. disagree that we or the State did not credits, which are banked emissions Finally, despite population and provide an explanation for holding the reductions that may return to the DFW economic growth, emissions of NOX and point source VOC emissions constant area in the future through the use of VOC in the DFW area have been for the projection years for the purposes emission reduction credits (ERCs) and decreasing since 1990. Emissions of of demonstrating that the standard discrete emissions reduction credits NOX in the DFW area have dropped would be maintained. As TCEQ (DERCs). All banked (i.e., available for from approximately 587.93 tons per day explains in its SIP, it was following EPA use in future years) and recently-used (tpd) (1990 base year under the 1-hour guidance (noting that emissions trends ERCs and DERCs were added 24 to the ozone NAAQS) to 442.08 tpd (2011 base for ozone precursors have generally future year inventories. We believe this year under the 2008 ozone NAAQS) and declined) and thus, for planning is a conservative estimate because emissions of VOC have dropped from purposes, TCEQ found it reasonable to historical use of the DERC has been less approximately 771.02 tpd (1990 base hold point source emissions constant, than 10 percent of the projected rate— year) to 475.65 tpd (2011 base rather than show such emissions as including all the banked ERCs and year) 26 See 59 FR 55586, November 8, declining.21 For projection year EIs, DERCs in the 2020 inventory assumes a 1994, and 80 FR 9204, February 20, TCEQ designated the 2016 EI as the scenario where all available banked 2015.27 The DFW SIP must be further baseline from which to project future- credits would be used in 2020, which is revised to meet the emission reductions year emissions because using the most inconsistent with past credit usage. required by CAA section 182(c)(2)(B) for recent point source emissions data Despite the conservative assumptions the Serious ozone nonattainment would capture the most recent for point source growth, the total classification under the 2008 ozone economic conditions and any recent emissions estimated by the State for all NAAQS.28 This progress reflects efforts applicable emissions controls. As TCEQ anthropogenic sources of NOX and VOC by the State, area governments and further describes in its SIP, TCEQ in the DFW area for 2020, 2026, and industry, federal measures, and noticed that the 2014 attainment year 2032 are lower than those estimated for others.29 VOC emissions are higher than future- 2014 (the attainment inventory year). Comment: Earthjustice states the DFW year emissions projected from the sum Consistent with the Calcagni area did not meet its Moderate of the 2016 baseline emissions plus Memorandum regarding a Maintenance attainment date under the 2008 NAAQS available emission credits.22 Therefore, Demonstration, ‘‘[a] State may generally and EPA will reclassify the area to future point source VOC emissions were demonstrate maintenance of the Serious nonattainment. Commenter projected by using the 2014 values as a NAAQS by either showing that future states that once EPA completes that conservative estimate for all future emissions of a pollutant or its action, ‘‘the new source review interim years. This approach is precursors will not exceed the level of requirements will snap back to serious consistent with EPA’s EI Guidance the attainment inventory or by modeling area level and other serious areas document at 21. to show that the future mix of sources requirements will again apply.’’ This For point source NOX emissions, and emission rates will not cause a will cause the area’s NSR requirements TCEQ took a different approach that is violation of the NAAQS.’’ Calcagni to ‘‘roller coaster’’ to no purpose. The also conservative and fully explained in memorandum at 2. Because the State’s commenter adds that if EPA insists on the SIP submittal. We disagree that there estimated future EIs for the DFW area do finalizing the proposal, it should wait to is any disparity. As explained in the SIP not exceed the 2014 attainment year EI, do so until after it reclassifies the DFW submittal, TCEQ held the most recent we do not expect the area to have area. year (2016) emissions constant and emissions sufficient to cause a violation Response: EPA appreciates the accounted for growth through of the 1-hour or 1997 ozone NAAQS. commenter’s attention to this process adjustments for cement kilns.23 Each of In addition, NNSR offsets will detail. We reclassified the DFW area to continue to be required in the DFW area Serious under the 2008 8-hour ozone 20 See https://www.epa.gov/moves/emissions- addressed in this action because all nine models-and-other-methods-produce-emission- counties are also designated 26 The 1990 base year includes 126.09 tpd in inventories#locomotive. biogenic VOC emissions. Biogenic emissions, i.e., 21 nonattainment, and currently classified See EPA’s ‘‘Emissions Inventory Guidance for emissions from natural sources such as plants and Implementation of Ozone and Particulate Matter as Serious, under the 2008 ozone trees, are not required to be included in the 2011 National Ambient Air Quality Standards (NAAQS) NAAQS.25 The required NNSR offset for base year. and Regional Haze Regulations’’ published May 27 We approved the area’s Reasonable Further 2017, EPA–454/b–17–002. Section 5, beginning on the DFW area at this time is 1.2:1 for p. 119 of this Guidance document addresses sources emitting at least 50 tons per Progress (RFP) plan for the Moderate ozone NAAQS Developing Projected Emissions Inventories. This year, consistent with the Serious area under the 2008 ozone NAAQS showing 15% emission reductions from 2011 through the Guidance document is available on EPA’s website requirements provided in CAA section at https://www.epa.gov/air-emissions-inventories/ attainment year (2017), plus an additional 3% air-emissions-inventory-guidance-documents. emission reductions to meet the contingency 24 22 Not to be confused with the 2016 baseline and The ERCs were divided by 1.15 before being measure requirement. as noted earlier in this action, the 2014 base year added to the future year EIs to account for the 28 The State recently adopted a SIP revision to EIs for NOX and VOC represent the first year in NNSR permitting offset ratio for Moderate ozone meet RFP Serious area requirements for the DFW which the DFW area is attaining both the 1-hour nonattainment areas. Since the area is now area with an additional average of 3% emission and 1997 ozone NAAQS and thus, the 2014 EI is classified as a Serious ozone nonattainment area reductions from 2017 through the attainment year also called the attainment inventory. The 2014 however, any ERCs actually used will have to be (2020), plus an additional 3% emissions reductions attainment inventory provides a starting point divided by 1.2. See the SIP submittal for more to meet the contingency measure requirement (see against which to evaluate the EI levels estimated for specific detail on how Texas assumed and https://www.tceq.texas.gov/airquality/sip/dfw/dfw- future years. calculated the ERC and DERC use for the future EI latest-ozone for the State’s Serious area RFP). See 23 Recently authorized emission limits from years. also 84 FR 44238. permits, consent decrees, and agreed orders were 25 Wise County is also included in the DFW 29 See also https://www.epa.gov/clean-air-act- used to project emissions, which is a representative Serious nonattainment area under the 2008 ozone overview/progress-cleaning-air-and-improving- and conservative approach to emissions growth. NAAQS (84 FR 44238). peoples-health.

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NAAQS effective September 23, 2019 wait for EPA to promulgate a national mechanism for termination of anti- (84 FR 44238). Therefore, the regulation codifying what the D.C. backsliding obligations for revoked commenter’s concern that we should Circuit has already indicated the CAA standards has created uncertainty and wait to finalize our proposal until the allows before we may replace the our reluctance to redesignate for the area is reclassified under the 2008 redesignation substitutes for the DFW revoked standards creates severe NAAQS is satisfied. area. economic consequences for the public, Comment: Earthjustice asserts that As such, we do not agree that this regulated industry, and states. TCEQ EPA must either create regulations to action is reviewable exclusively in the added that (1) certainty on the issue of authorize termination of anti- D.C. Circuit. See CAA section 307(b)(1). how the EPA must act to remove anti- backsliding protections when certain To the extent the commenter is asserting backsliding requirements is an absolute conditions are met or reverse its duly otherwise, we do not agree that this is necessity for states, potentially adopted, nationally applicable position a ‘‘nationally applicable’’ action under impacted regulated businesses, and that EPA lacks authority to redesignate CAA section 307(b)(1). This final action citizens and (2) continued areas under revoked standards. approves a request from the State of implementation of programs required Earthjustice states that either action Texas to find that the State has met all for revoked, less stringent standards is would be reviewable exclusively in the five of the statutory criteria for costly and takes resources away from D.C. Circuit. Earthjustice further asserts redesignation under CAA section states and localities that are necessary to that even if aspects of EPA’s action 107(d)(3)(E) for the DFW area and it meet more stringent standards. constitute a locally or regionally approves the submitted CAA section Response: We understand the value of applicable action that overbears the 175A(d) maintenance plan for the DFW regulatory certainty. We also understand nationally applicable aspects of the area into the Texas SIP. The legal and that there is a cost for implementing action, Earthjustice believes that EPA’s immediate effect of the action required programs for revoked, less action would still be ‘‘based on a terminates anti-backsliding controls for stringent standards. We have determination of nationwide scope and only the DFW area with respect to two endeavored to provide flexibility to effect’’ (citing CAA section 307(b)(1)). revoked NAAQS and amends the 40 states on implementation approaches Earthjustice asserts that ‘‘EPA expressly CFR part 81 tables accordingly for only and control measures. The D.C. Circuit proposed in its FR publication to base the DFW area. Nothing in this action has has upheld our revocation of previous action on that determination (via either legal effects in any area of the country ozone standards as long as sufficient pathway),’’ but also states that if a more outside of the DFW area or Texas on its anti-backsliding measures are specific finding and publication were face. See Dalton Trucking, Inc. v. EPA, maintained. In South Coast II, the court necessary, that EPA is obligated to make 808 F.3d 875, 881 (D.C. Cir. 2015) (‘‘To was clear that anti-backsliding measures the finding and publish it because EPA’s determine whether a final action is could be shed if all five requirements for action here is a determination of nationally applicable, ‘this Court need redesignation in CAA section nationwide scope and effect. The look only to the face of the rulemaking, 107(d)(3)(E) had been met. We are commenter concludes that the venue for rather than to its practical effects.’’’ finding here that Texas has met all judicial review of this action therefore (internal citations omitted)). The fact redesignation criteria necessary for necessarily lies in the D.C. Circuit. that this is the second area in the termination of the anti-backsliding Response: First, as noted earlier, the country for which EPA will have measures. EPA is not in this action changing approved termination of anti- Comment: TCEQ states that (1) we DFW’s designation, so Earthjustice’s backsliding per CAA requirements after continue to have authority to comments on that point are beyond the South Coast II does not entail that the redesignate areas from ‘‘nonattainment’’ scope of this final action. Second, we action itself is ‘‘nationally applicable.’’ to ‘‘attainment’’ post-revocation of a disagree that promulgation of a Earthjustice next contends that even if NAAQS and (2) if we determine we do regulation authorizing the action taken it is true that EPA’s final action is not not have authority to redesignate areas here is necessary or being undertaken in nationally applicable but is locally or to attainment post-revocation, we this notice. As mentioned earlier in this regionally applicable, that judicial clearly have authority to determine that final action, we believe the D.C. review of this action should still reside an area has met all redesignation Circuit’s decision in South Coast II in the D.C. Circuit because EPA’s action requirements necessary for termination regarding the vacatur of the is based on a determination of of anti-backsliding requirements. TCEQ redesignation substitute mechanism nationwide scope or effect. The states that EPA should redesignate the made clear that under the CAA, areas commenter alleges that ‘‘EPA has DFW area to attainment under the may shed anti-backsliding controls expressly proposed in its FR publication revoked 1-hour and 1997 ozone where all five redesignation criteria are to base action on that determination (via NAAQS. TCEQ states that EPA has the met. Through this final action, we are either pathway).’’ This is plainly untrue. authority to, and should, revise the replacing our previous approvals of the Nowhere in the Proposal or in this final listings in Part 81 of the Code of Federal redesignation substitutes for the DFW action did EPA make a finding that the Regulations to show the DFW area as an area for the revoked 1979 1-hour and action is based on a determination of attainment area under the revoked 1- 1997 ozone NAAQS, because that nationwide scope or effect. The hour and 1997 ozone NAAQS and make mechanism was rejected by the D.C. requirements under CAA section clarifying changes to the Part 81 tables Circuit for its failure to include all five 307(b)(1) that would allow for review of to promote public understanding of statutory redesignation criteria. Per the a locally or regionally applicable action what measures are required for areas D.C. Circuit’s direction, this action in the D.C. Circuit—i.e., that EPA makes under revoked standards. examines all five criteria, finds them to a finding that the action is based on a Response: EPA disagrees with be met in the DFW area, and terminates determination of nationwide scope or Commenter regarding our authority to the relevant anti-backsliding obligations effect and that EPA publishes such a redesignate an area under the revoked 1- for the DFW area, thereby replacing the finding—have not been met. See Dalton hour and 1997 ozone NAAQS. As prior invalid approvals for the DFW Trucking, 808 F.3d at 882. explained above, in revoking both the 1- area. We do not agree that given the Comment: The TCEQ states that our hour and 1997 ozone standards, EPA circumstances here, the parties must past failure to provide for a legally valid revoked the associated designations

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under those standards and stated we to the revoked 1-hour standard given between revoked and effective NAAQS had no authority to change designations. on-going implementation of the newer and the redesignation provision in See 69 FR 23951, April 30, 2004, 80 FR 8-hour 1997 NAAQS. Id. at 23985. We section 107 is no different. Nonetheless, 12264, March 6, 2015, and NRDC v. recognize that subsequent court as noted above, at the time that we EPA, 777 F.3d 456 (D.C. Cir. 2014) decisions, such as the South Coast II revoked the ozone NAAQS in question, (explaining that EPA revoked the 1-hour decision, have affected our view. The we also revoked all designations NAAQS ‘‘in full, including the South Coast II decision vacated our associated with that NAAQS. We associated designations’’ in the action at waiver of the statutory attainment therefore do not think a statutory issue in South Coast Air Quality deadlines associated with the revoked redesignation is available for an area Management District v. EPA, 472 F.3d at 1997 ozone NAAQS, for areas that fail that no longer has a designation. 882 (D.C. Cir, 2006 (‘‘South Coast I’’). to meet an attainment deadline for the However, in South Coast II, the D.C. The recent D.C. Circuit decision 1997 ozone standard, and we are Circuit found that the CAA allows areas addressing reclassification under a determining how to implement that under a revoked NAAQS to shed anti- revoked NAAQS did not address EPA’s decision going forward. backsliding controls if the statutory interpretation that it lacks the ability to Comment: TCEQ commented that if redesignation criteria are met. alter an area’s designation post- we interpreted revocation of ozone Comment: The TCEQ suggests that the revocation of a NAAQS. Moreover, the standards as limiting our authority to EPA should expand upon the rationale court’s reasoning for requiring EPA to implement all statutory rights and provided in our Proposal for our reclassify areas under revoked standards obligations, including the rights of states decision to take no action on the was that a reclassification to a higher to be redesignated to attainment, it maintenance motor vehicle emission classification is a control measure that would cause an absurd result: i.e., budgets (MVEBs) related to the 1-hour constrains ozone pollution by imposing implementing anti-backsliding measures and 1997 ozone NAAQS. stricter measures associated with the in perpetuity. The commenter added Response: The conformity discussion higher classification. The same logic that it would subvert one of the in our May 21, 2012 rulemaking (77 FR does not apply to redesignations, foundational principles of the CAA— 30160) to establish classifications under because redesignations do not impose restricting the right of states to be freed the 2008 ozone NAAQS explains that new controls and can provide areas the from obligations that apply to our revocation of the 1-hour standard opportunity to shed nonattainment area nonattainment areas upon the states under the 1997 ozone Phase I controls, provided doing so does not achieving the primary purpose of Title implementation rule and the associated interfere with maintenance of the I of the CAA—to attain the NAAQS. anti-backsliding provisions were the NAAQS. Therefore, we do not think it Response: The ‘‘absurd result’’ noted subject of the South Coast I litigation follows that the EPA is required to by the commenter is that an area would (South Coast Air Quality Management statutorily redesignate areas under a need to implement anti-backsliding District v. EPA, 472 F.3d at 882). The revoked standard simply because the measures in perpetuity. Through this Court in South Coast I affirmed that court held that the Agency is required action we are terminating anti- conformity determinations need not be to continue to reclassify areas to a backsliding controls for the DFW area made for a revoked standard. Instead, higher classification when they fail to upon a determination that the five areas would use adequate or approved attain. However, consistent with the statutory criteria of CAA section MVEBs that had been established for the South Coast II decision, we do have the 107(d)(3)(E) have been met. Therefore, now revoked NAAQS in transportation authority to determine that an area has although we are not redesignating the conformity determinations for the new met all the applicable redesignation DFW area to attainment for the revoked NAAQS until the area has adequate or criteria for a revoked ozone standard ozone standards, the ‘‘absurd result’’ approved MVEBs for the new NAAQS. and terminate the remaining anti- noted by the commenter does not As explained in our June 24, 2019 backsliding obligations for that remain. proposal, the DFW area already has NOX standard. We are therefore revising the The EPA does believe it is appropriate and VOC MVEBs for the 2008 ozone tables in 40 CFR part 81 to reflect that for states to be freed from anti- NAAQS, which are currently used to the DFW area has attained the revoked backsliding requirements in place for make conformity determinations for 1979 1-hour and revoked 1997 8-hour the revoked NAAQS in certain both the 2008 and 2015 ozone NAAQS NAAQS, and that all anti-backsliding circumstances, and we believe the court for transportation plans, transportation obligations with respect to those two in South Coast II was clear that this improvement programs, and projects NAAQS are terminated. could be done if all the CAA criteria for according to the requirements of the Comment: TCEQ stated that when we a redesignation had been met. transportation conformity regulations at began stating that we no longer make Comment: TCEQ commented that the 40 CFR part 93.30 findings of failure to attain or reclassify CAA makes no distinction between The TCEQ offers its own basis to areas for revoked standards, we revoked or effective standards regarding expand the rationale for EPA’s action by provided no rationale supporting why EPA’s authority to redesignate. TCEQ citing the transportation conformity we would no longer do so. also commented that reading the CAA regulations at 40 CFR 93.109(c), which Response: As noted above, in the section granting authority for provides that a regional emissions Phase I rule to implement the 1997 designations generally, it is apparent analysis for conformity is only required ozone standard, we revoked the 1-hour that Congress intended the same for a nonattainment or maintenance area NAAQS and designations for that procedures be followed regardless of the until the effective date of revocation of standard (see 69 FR 23951, 23969–70, status of the NAAQS in question. TCEQ the applicable NAAQS. The TCEQ April 30, 2004). Accordingly, there was added that nothing in CAA section 107 concludes that this sufficiently justifies neither a 1-hour standard against which creates differing procedures when we to make findings for failure to attain nor revoke a standard or qualifies our 30 Transportation Conformity Guidance for the 1-hour nonattainment areas to mandatory duty to act on redesignation South Coast II Court Decision, EPA–420–B–18–050. November 2018, available on EPA’s web page at reclassify. We also explained that it submittals from states. https://www.epa.gov/state-and-local- would be counterproductive to continue Response: None of the substantive transportation/policy-and-technical-guidance-state- to impose new obligations with respect provisions of the CAA make distinctions and-local-transportation.

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EPA’s determination not to act on the 107(d)(3)(E) for the DFW area have been action because actions that are MVEBs in this SIP submittal because the met for these two revoked standards. exempted under Executive Order 12866 effective date of revocation for both the are also exempted from Executive Order C. Termination of Anti-Backsliding 1-hour and 1997 ozone NAAQS has 13771; Obligations passed, and therefore a regional • Does not impose an information emissions analysis for conformity is no We are terminating the anti- collection burden under the provisions longer required for these NAAQS in the backsliding obligations for the DFW area of the Paperwork Reduction Act (44 DFW area. However, EPA notes that 40 with respect to the revoked 1-hour and U.S.C. 3501 et seq.); CFR 93.109 represents the criteria and 1997 ozone NAAQS. Consistent with • Is certified as not having a procedures for determining conformity the South Coast II decision, anti- significant economic impact on a in cases where a determination is backsliding obligations for the revoked substantial number of small entities required. As previously explained, the ozone standards may be terminated under the Regulatory Flexibility Act (5 DFW area is not required to demonstrate when the redesignation criteria for those U.S.C. 601 et seq.); conformity under the revoked 1-hour standards are met. This final action • Does not contain any unfunded and 1997 ozone NAAQS, hence 40 CFR replaces the redesignation substitute mandate or significantly or uniquely 93.109(c) is not an applicable rationale rules that were previously promulgated affect small governments, described in for the DFW area. for the revoked 1-hour and 1997 ozone the Unfunded Mandates Reform Act of Comment: TCEQ stated that we have NAAQS (81 FR 78688, November 8, 1995 (Pub. L. 104–4); the authority to, and should, revise the 2016.). • Does not have federalism designations listing in 40 CFR 81 to implications as specified in Executive IV. Statutory and Executive Order Order 13132 (64 FR 43255, August 10, better reflect the status of applicable Reviews anti-backsliding obligations for the 1999); • areas. A. General Requirements Is not an economically significant Response: We believe that we have regulatory action based on health or Under the CAA, redesignation of an safety risks subject to Executive Order the authority to revise the tables in 40 area to attainment and the CFR 81 to better reflect the status of 13045 (62 FR 19885, April 23, 1997); accompanying approval of the • Is not a significant regulatory action applicable anti-backsliding obligations, maintenance plan under CAA section particularly because those tables subject to Executive Order 13211 (66 FR 107(d)(3)(E) are actions that affect the 28355, May 22, 2001); currently reflect the invalid air quality designation status of • redesignation substitutes that this final Is not subject to requirements of geographical areas and do not impose section 12(d) of the National action is replacing. We are making any additional regulatory requirements ministerial changes to the tables for the Technology Transfer and Advancement on sources beyond those required by Act of 1995 (15 U.S.C. 272 note) because 1-hour and 1997 ozone standards in 40 state law. A redesignation to attainment CFR 81.344 to better reflect the status of application of those requirements would does not in and of itself impose any new be inconsistent with the CAA; and applicable anti-backsliding obligations requirements. While we are not in this • for the DFW area. Does not provide EPA with the action redesignating any areas to discretionary authority to address, as III. Final Action attainment, we are approving the state’s appropriate, disproportionate human demonstration that all five redesignation health or environmental effects, using A. Plan for Maintaining the Revoked criteria have been met. Similar to a Ozone Standards practicable and legally permissible redesignation, the termination of anti- methods, under Executive Order 12898 We are approving the maintenance backsliding requirements in this action (59 FR 7629, February 16, 1994). plan for both the revoked 1-hour and does not impose any new requirements. 1997 ozone NAAQS in the DFW area With regard to the SIP approval B. Submission to Congress and the because we find it demonstrates the two portions of this action, the Comptroller General ozone NAAQS (1979 1-hour and 1997 8- Administrator is required to approve a The Congressional Review Act, 5 hour) will be maintained for 10 years SIP submission that complies with the U.S.C. 801 et seq., as added by the Small following this final action (in fact, the provisions of the Act and applicable Business Regulatory Enforcement State’s plan demonstrates maintenance Federal regulations. 42 U.S.C. 7410(k); Fairness Act of 1996, generally provides of those two standards through 2032). 40 CFR 52.02(a). Thus, in reviewing SIP that before a rule may take effect, the As further explained in our Proposal submissions, EPA’s role is to approve agency promulgating the rule must and above, we are not approving the State choices, provided that they meet submit a rule report, which includes a submitted 2032 NOX and VOC MVEBs the criteria of the CAA. Accordingly, copy of the rule, to each House of the for transportation conformity purposes where EPA is acting on the SIPs in this Congress and to the Comptroller General because mobile source budgets for more action, we are merely approving State of the United States. EPA will submit a stringent ozone standards are in place in law as meeting Federal requirements report containing this action and other the DFW area. We are finding that the and are not imposing additional required information to the U.S. Senate, projected emissions inventory which requirements beyond those imposed by the U.S. House of Representatives, and reflects these budgets is consistent with State law. the Comptroller General of the United maintenance of the revoked 1-hour and For these reasons, this action as a States prior to publication of the rule in 1997 ozone standards. whole: the Federal Register. A major rule • Is not a ‘‘significant regulatory cannot take effect until 60 days after it B. Redesignation Criteria for the action’’ subject to review by the Office is published in the Federal Register. Revoked Standards of Management and Budget under This action is not a ‘‘major rule’’ as We are determining that the DFW area Executive Orders 12866 (58 FR 51735, defined by 5 U.S.C. 804(2). continues to attain the revoked 1-hour October 4, 1993) and 13563 (76 FR 3821, and 1997 ozone NAAQS. We are also January 21, 2011); C. Petitions for Judicial Review determining that all five of the • Is not an Executive Order 13771 (82 Under section 307(b)(1) of the Clean redesignation criteria at CAA section FR 9339, February 2, 2017) regulatory Air Act, petitions for judicial review of

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this action must be filed in the United reference, Nitrogen oxides, Ozone, Subpart SS—Texas States Court of Appeals for the Volatile organic compounds. appropriate circuit by June 5, 2020. ■ List of Subjects in 40 CFR Part 81 2. In § 52.2270(e), the second table Filing a petition for reconsideration by titled ‘‘EPA Approved Nonregulatory the Administrator of this final rule does Dated: March 19, 2020. Provisions and Quasi-Regulatory not affect the finality of this action for Kenley McQueen, Measures in the Texas SIP’’ is amended the purposes of judicial review nor does by adding an entry at the end of the it extend the time within which a Regional Administrator, Region 6. table for ‘‘Dallas-Fort Worth petition for judicial review may be filed 40 CFR part 52 is amended as follows: and shall not postpone the effectiveness Redesignation Request and Maintenance of such rule or action. This action may Plan for the 1-hour and 1997 8-hour PART 52—APPROVAL AND Ozone Standards’’. not be challenged later in proceedings to PROMULGATION OF enforce its requirements. (See section IMPLEMENTATION PLANS The addition reads as follows: 307(b)(2).) § 52.2270 Identification of plan. ■ 1. The authority citation for part 52 List of Subjects in 40 CFR Part 52 * * * * * continues to read as follows: Environmental protection, Air (e) * * * pollution control, Incorporation by Authority: 42 U.S.C. 7401 et seq.

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP

State Applicable geographic approval/ Name of SIP provision or nonattainment area effective EPA approval date Comments date

******* Dallas-Fort Worth Redesignation Request Dallas Fort-Worth, TX 3/29/2019 4/6/2020, [Insert Federal and Maintenance Plan for the 1-hour Register citation]. and 1997 8-hour Ozone Standards.

■ 3. Section 52.2275 is amended by revoked 1-hour and 1997 8-hour ozone ■ a. In the table titled ‘‘Texas—Ozone revising paragraph (m) to read as standards are terminated in the Dallas- (1-Hour Standard)’’ revise the entry for follows: Fort Worth area. ‘‘Dallas-Fort Worth Area’’ and footnote 3. § 52.2275 Control strategy and * * * * * regulations: Ozone. ■ b. In the table titled ‘‘Texas—1997 8- PART 81—DESIGNATION OF AREAS * * * * * Hour Ozone NAAQS (Primary and FOR AIR QUALITY PLANNING secondary)’’ revise the entry for ‘‘Dallas- (m) Termination of Anti-backsliding PURPOSES Obligations for the Revoked 1-hour and Fort Worth, TX’’ and footnote 5 and remove footnote 6. 1997 8-hour ozone standards. Effective ■ 4. The authority citation for Part 81 May 6, 2020 EPA has determined that continues to read as follows: The revisions read as follows: the Dallas-Fort Worth area has met the Clean Air Act criteria for redesignation. Authority: 42 U.S.C. 7401 et seq. § 81.344 Texas Anti-backsliding obligations for the ■ 5. In § 81.344: * * * * * TEXAS—OZONE [1-Hour standard] 1

Designation Classification Designated area Date 2 Type Date 2 Type

******* Dallas-Fort Worth Area: ...... See footnote 3 ...... See footnote 3 ...... See footnote 3 ...... See footnote 3. Collin County.3 Dallas County.3 Denton County.3 Tarrant County.3

******* ******* 3 The Dallas-Fort Worth Area was designated and classified as Moderate nonattainment on November 15, 1990. The area was classified as Serious nonattainment on March 20, 1998 and was so designated and classified when the 1-hour ozone standard, designations and classifications were revoked. The area has since at- tained the 1-hour ozone standard and met all the Clean Air Act criteria for redesignation. All 1-hour ozone standard anti-backsliding obligations for the area are termi- nated effective May 6, 2020.

* * * * *

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TEXAS—1997 8-HOUR OZONE NAAQS [Primary and secondary] 1

Designation a Category/classification Designated area Date 1 Type Date 1 Type

******* Dallas-Fort Worth, TX: ...... See footnote 5 ...... See footnote 5 ...... See footnote 5 ...... See footnote 5. Collin County.5 Dallas County.5 Denton County.5 Ellis County.5 Johnson County.5 Kaufman County.5 Parker County.5 Rockwall County.5 Tarrant County.5

******* ******* 5 The Dallas-Fort Worth, TX area was designated and classified as a Moderate nonattainment area effective June 15, 2004. The area was classified as Serious nonattainment effective January 19, 2011. The area has since attained the 1997 ozone standard and met all the Clean Air Act criteria for redesignation. All 1997 8-hour ozone standard anti-backsliding obligations for the area are terminated effective May 6, 2020.

* * * * * [FR Doc. 2020–06198 Filed 4–3–20; 8:45 am] BILLING CODE 6560–50–P

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Proposed Rules Federal Register Vol. 85, No. 66

Monday, April 6, 2020

This section of the FEDERAL REGISTER Field Representative or Sikorsky’s Discussion contains notices to the public of the proposed Service Engineering Group at Sikorsky issuance of rules and regulations. The Aircraft Corporation, 124 Quarry Road, The FAA has received reports of purpose of these notices is to give interested Trumbull, CT 06611; phone: 1–800– inaccurate MGB indications in flight. persons an opportunity to participate in the There have been seven inaccurate oil Winged–S; email: wcs_cust_service_ rule making prior to the adoption of the final pressure indications in-flight, including [email protected]. Operators may rules. one event in which the flight crew also log on to the Sikorsky 360 website called ‘‘Mayday,’’ and considered at https://www.sikorsky360.com. You ditching the helicopter. There have been may view this service information at the DEPARTMENT OF TRANSPORTATION no comprehensive root cause findings, FAA, Office of the Regional Counsel, but there have been multiple erroneous Federal Aviation Administration Southwest Region, 10101 Hillwood indications and annunciations, as well Pkwy., Room 6N–321, Fort Worth, TX as hardware subcomponent failures. 14 CFR Part 39 76177. For information on the There is a possibility of an elevated availability of this material at the FAA, [Docket No. FAA–2020–0212; Product operating temperature effect on call (817) 222–5110. Identifier 2018–SW–097–AD] subcomponent reliability, which causes instability in the power supply output. RIN 2120–AA64 Examining the AD Docket In at least one incident, the malfunction You may examine the AD docket on Airworthiness Directives; Sikorsky was due to a rare soft failure of a the internet at https:// Aircraft Corporation Helicopters capacitor in the +15Vdc power supply www.regulations.gov by searching for circuit on the engine processor board AGENCY: Federal Aviation and locating Docket No. FAA–2020– installed in channel B of the RDAU. Administration (FAA), DOT. 0212; or in person at Docket Operations This condition resulted in multiple ACTION: Notice of proposed rulemaking between 9 a.m. and 5 p.m., Monday erroneous values and annunciations on (NPRM). through Friday, except Federal holidays. channel B, and if not addressed, could The AD docket contains this NPRM, any cause the flight crew to land SUMMARY: The FAA proposes to adopt a comments received, and other immediately, and consequent possible new airworthiness directive (AD) for information. The street address for loss of the helicopter, injury, or fatality. certain Sikorsky Aircraft Corporation Docket Operations is listed above. To address this issue, this proposed AD Model S–76C helicopters. This Comments will be available in the AD would require updating the RDAU proposed AD was prompted by reports docket shortly after receipt. software and re-identifying the RDAU of inaccurate main gear box (MGB) FOR FURTHER INFORMATION CONTACT: Min and, for certain helicopters, updating indications in flight. This proposed AD Zhang, Aviation Safety Engineer, Boston the software of the DU and re- would require updating the remote data ACO Branch, 1200 District Avenue, identifying the DU. acquisition unit (RDAU) software and Burlington, MA 01803; phone: (781) re-identifying the RDAU and, for certain Related Service Information Under 1 238–7161; email: [email protected]. helicopters, updating the software of the CFR Part 51 display unit (DU) and re-identifying the SUPPLEMENTARY INFORMATION: The FAA reviewed the following DU. The FAA is proposing this AD to Comments Invited Sikorsky service information. address the unsafe condition on these Alert Service Bulletin 76–31–3, products. The FAA invites you to send any Revision B, dated June 26, 2018; Alert DATES: The FAA must receive comments written relevant data, views, or Service Bulletin 76–31–4, Revision A, on this proposed AD by May 21, 2020. arguments about this proposal. Send dated May 30, 2018; and Alert Service ADDRESSES: You may send comments, your comments to an address listed Bulletin 76–31–5, dated July 31, 2018. using the procedures found in 14 CFR under the ADDRESSES section. Include This service information describes 11.43 and 11.45, by any of the following ‘‘Docket No. FAA–2020–0212; Product procedures for updating the RDAU methods: Identifier 2018–SW–097–AD’’ at the software and re-identifying the RDAU. • Federal eRulemaking Portal: Go to beginning of your comments. The FAA This service information also describes https://www.regulations.gov. Follow the specifically invites comments on the procedures for sending the inspection instructions for submitting comments. overall regulatory, economic, results to Sikorsky Aircraft Corporation. • Fax: 202–493–2251. environmental, and energy aspects of These documents are distinct since they • Mail: U.S. Department of this NPRM. The FAA will consider all apply to specific helicopter models in Transportation, Docket Operations, M– comments received by the closing date different configurations (different part 30, West Building Ground Floor, Room and may amend this NPRM because of numbered RDAU units). W12–140, 1200 New Jersey Avenue SE, those comments. Service Bulletin 76–006, Revision A, Washington, DC 20590. The FAA will post all comments dated August 23, 2018. This service • Hand Delivery: Deliver to Mail received, without change, to https:// information describes procedures for address above between 9 a.m. and 5 www.regulations.gov, including any updating the software of DU part p.m., Monday through Friday, except personal information you provide. The number 76450–01098–101, and re- Federal holidays. FAA will also post a report identifying the DU as part number For service information identified in summarizing each substantive verbal 76450–01098–108. This service this NPRM, contact your local Sikorsky contact received about this NPRM. information also describes procedures

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for sending the inspection results to ‘‘Differences Between this Proposed AD manufacturer’s recommendation, the Sikorsky Aircraft Corporation. and the Service Information.’’ degree of urgency associated with the This service information is reasonably Differences Between This Proposed AD subject unsafe condition, and the available because the interested parties and the Service Information average utilization of the affected fleet. have access to it through their normal After considering these factors, the FAA The service information recommends course of business or by the means finds that a 500 hour time-in-service accomplishing the update of the RDAU identified in the ADDRESSES section. compliance time (which is software and re-identification of the approximately one year based on the FAA’s Determination RDAU and, for certain helicopters, average annual flight hours for Sikorsky update of the software of the DU and re- Aircraft Corporation Model S–76C The FAA is proposing this AD after identification of the DU, depending on helicopters) represents an appropriate evaluating all the relevant information service information, no later than a interval of time for affected helicopters and determining the unsafe condition specific calendar date (April 30, 2019 described previously is likely to exist or for Alert Service Bulletin 76–31–3, to continue to operate without develop in other products of the same Revision B, dated June 26, 2018; June compromising safety. type design. 30, 2019 for Alert Service Bulletin 76– Costs of Compliance Proposed AD Requirements 31–4, Revision A, dated May 30, 2018; or July 31, 2019 for Alert Service The FAA estimates that this proposed This proposed AD would require Bulletin 76–31–5, dated July 31, 2018). AD affects 99 helicopters of U.S. accomplishing the actions specified in In developing an appropriate registry. The FAA estimates the the service information described compliance time for this AD, the FAA following costs to comply with this previously, except as discussed under considered factors including the proposed AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

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

Update RDAU software (99 helicopters) ...... 3 work-hours × $85 per hour = $255 ...... * $255 $25,245 Update display units (52 helicopters) ...... 7 work-hours × $85 per hour = $595 ...... * 595 30,940 Reporting (99 helicopters) ...... 1 work-hour × $85 per hour = $85 ...... $0 85 8,415 * The FAA has received no definitive data that would enable the FAA to provide parts cost estimates for the actions specified in this proposed AD.

According to the manufacturer, some Aviation Administration, 10101 States, on the relationship between the or all of the costs of this proposed AD Hillwood Parkway, Fort Worth, TX national Government and the States, or may be covered under warranty, thereby 76177–1524. on the distribution of power and reducing the cost impact on affected responsibilities among the various Authority for This Rulemaking individuals. The FAA does not control levels of government. warranty coverage for affected Title 49 of the United States Code For the reasons discussed above, I individuals. As a result, the FAA has specifies the FAA’s authority to issue certify this proposed regulation: rules on aviation safety. Subtitle I, included all known costs in the cost (1) Is not a ‘‘significant regulatory section 106, describes the authority of estimate. action’’ under Executive Order 12866, the FAA Administrator. Subtitle VII: Paperwork Reduction Act Aviation Programs, describes in more (2) Will not affect intrastate aviation A federal agency may not conduct or detail the scope of the Agency’s in Alaska, and sponsor, and a person is not required to authority. (3) Will not have a significant respond to, nor shall a person be subject The FAA is issuing this rulemaking economic impact, positive or negative, to penalty for failure to comply with a under the authority described in on a substantial number of small entities collection of information subject to the Subtitle VII, Part A, Subpart III, Section under the criteria of the Regulatory requirements of the Paperwork 44701: General requirements. Under Flexibility Act. Reduction Act unless that collection of that section, Congress charges the FAA List of Subjects in 14 CFR Part 39 information displays a currently valid with promoting safe flight of civil OMB Control Number. The control aircraft in air commerce by prescribing Air transportation, Aircraft, Aviation number for the collection of information regulations for practices, methods, and safety, Incorporation by reference, required by this proposed AD is 2120– procedures the Administrator finds Safety. 0056. The paperwork cost associated necessary for safety in air commerce. The Proposed Amendment with this proposed AD has been This regulation is within the scope of detailed in the Costs of Compliance that authority because it addresses an Accordingly, under the authority section of this document and includes unsafe condition that is likely to exist or delegated to me by the Administrator, time for reviewing instructions, as well develop on products identified in this the FAA proposes to amend 14 CFR part as completing and reviewing the rulemaking action. 39 as follows: collection of information. Therefore, all reporting associated with this proposed Regulatory Findings PART 39—AIRWORTHINESS AD is mandatory. Comments concerning The FAA determined that this DIRECTIVES the accuracy of this burden and proposed AD would not have federalism suggestions for reducing the burden implications under Executive Order ■ 1. The authority citation for part 39 should be directed to Information 13132. This proposed AD would not continues to read as follows: Collection Clearance Officer, Federal have a substantial direct effect on the Authority: 49 U.S.C. 106(g), 40113, 44701.

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§ 39.13 [Amended] (4) For helicopters equipped with RDAU (k) Paperwork Reduction Act Burden ■ 2. The FAA amends § 39.13 by adding part number 76450–01098–106, update the Statement the following new airworthiness software of DU part number 76450–01098– A federal agency may not conduct or directive (AD): 101 and re-identify the DU as part number sponsor, and a person is not required to 76450–01098–108, in accordance with respond to, nor shall a person be subject to Sikorsky Aircraft Corporation: Docket No. Section 3., Paragraphs A. through J. of the a penalty for failure to comply with a FAA–2020–0212; Product Identifier Accomplishment Instructions of Sikorsky collection of information subject to the 2018–SW–097–AD. Service Bulletin 76–006, Revision A, dated requirements of the Paperwork Reduction (a) Comments Due Date August 23, 2018, except you are not required Act unless that collection of information to return the DU to Parker FSD. The FAA must receive comments by May displays a current valid OMB Control 21, 2020. (h) Parts Installation Limitations Number. The OMB Control Number for this information collection is 2120–0056. Public (b) Affected ADs As of the effective date of this AD, no reporting for this collection of information is None. person may install, on any helicopter, a DU estimated to be approximately 1 hour per part number 76450–01098–101, unless it has response, including the time for reviewing (c) Applicability been modified in accordance with the instructions, searching existing data sources, This AD applies to Sikorsky Aircraft requirements of paragraph (g)(4) of this AD. gathering and maintaining the data needed, Corporation Model S–76C helicopters, and completing and reviewing the collection (i) Reporting certificated in any category, equipped with of information. All responses to this remote data acquisition unit (RDAU) part At the applicable time specified in collection of information are mandatory. number 76450–01098–106, 76450–01098– paragraph (i)(1) or (2) of this AD, submit a Send comments regarding this burden 107, or 76450–01098–109. report of compliance with the actions estimate or any other aspect of this collection specified in paragraphs (g)(1) through (4) of (d) Subject of information, including suggestions for this AD, as applicable to your helicopter. The reducing this burden to Information Joint Aircraft Service Component (JASC) report must include the document number Collection Clearance Officer, Federal Code 3100, Indicating/recording system. and title of the service information used, the Aviation Administration, 10101 Hillwood (e) Unsafe Condition owner and/or operator of the helicopter, the Parkway, Fort Worth, TX 76177–1524. submitter’s name, date, and the helicopter This AD was prompted by reports of (l) Alternative Methods of Compliance serial number. Submit the report to Sikorsky inaccurate main gear box (MGB) indications (AMOCs) in flight. The FAA is issuing this AD to Aircraft Corporation in accordance with Section 3., Paragraph A. (Record of (1) The Manager, Boston ACO Branch, address inaccurate MGB indications in flight, FAA, has the authority to approve AMOCs resulting in multiple erroneous values/ Compliance) of the Accomplishment for this AD, if requested using the procedures annunciations on channel B, which could Instructions of Sikorsky Alert Service found in 14 CFR 39.19. In accordance with cause the flight crew to land immediately, Bulletin 76–31–3, Revision B, dated June 26, 14 CFR 39.19, send your request to your and consequent possible loss of the 2018; Section 3., Paragraph L. of the principal inspector or local Flight Standards helicopter, injury, or fatality. Accomplishment Instructions of Sikorsky Alert Service Bulletin 76–31–4, Revision A, District Office, as appropriate. If sending (f) Compliance dated May 30, 2018; Section 3., Paragraph M. information directly to the manager of the Comply with this AD within the of the Accomplishment Instructions of certification office, send it to the attention of the person identified in paragraph (m)(1) of compliance times specified, unless already Sikorsky Alert Service Bulletin 76–31–5, this AD. done. dated July 31, 2018; or Section 3., Paragraph (2) Before using any approved AMOC, L. of the Accomplishment Instructions of (g) RDAU and Display Unit (DU) Updates notify your appropriate principal inspector, Sikorsky Service Bulletin 76–006, Revision Within 500 hours time-in-service after the or lacking a principal inspector, the manager A, dated August 23, 2018, as applicable to of the local flight standards district office/ effective date of this AD, do the actions your helicopter. specified in paragraphs (g)(1) through (4) of certificate holding district office. (1) If the inspection was done on or after this AD, as applicable to your helicopter. the effective date of this AD: Submit the (m) Related Information (1) For helicopters equipped with RDAU report within 30 days after the inspection. part number 76450–01098–109, update the (1) For more information about this AD, (2) If the inspection was done before the RDAU software and re-identify the RDAU in contact Min Zhang, Aviation Safety Engineer, accordance with Section 3., Paragraphs A. effective date of this AD: Submit the report Boston ACO Branch, 1200 District Avenue, through J. of the Accomplishment within 30 days after the effective date of this Burlington, MA 01803; phone: (781) 238– Instructions of Sikorsky Alert Service AD. 7161; email: [email protected]. (2) For service information identified in Bulletin 76–31–3, Revision B, dated June 26, (j) Credit for Previous Actions 2018, except you are not required to return this AD, contact your local Sikorsky Field the RDAU to Parker Fluid Systems Division (1) This paragraph provides credit for the Representative or Sikorsky’s Service (FSD). actions required by paragraphs (g)(1) and (i) Engineering Group at Sikorsky Aircraft (2) For helicopters equipped with RDAU of this AD, if those actions were performed Corporation, 124 Quarry Road, Trumbull, CT _ part number 76450–01098–107, update the before the effective date of this AD using 06611; phone: 1–800–Winged–S; email: wcs _ _ RDAU software and re-identify the RDAU in Sikorsky Alert Service Bulletin 76–31–3, cust service [email protected]. Operators accordance with Section 3., Paragraphs A. dated March 2, 2018; or Sikorsky Alert may also log on to the Sikorsky 360 website through J. of the Accomplishment Service Bulletin 76–31–3, Revision A, dated at https://www.sikorsky360.com. You may Instructions of Sikorsky Alert Service March 29, 2018. view this service information at the FAA, Bulletin 76–31–4, Revision A, dated May 30, (2) This paragraph provides credit for the Office of the Regional Counsel, Southwest 2018, except you are not required to return actions required by paragraphs (g)(2) and (i) Region, 10101 Hillwood Pkwy., Room 6N– the RDAU to Parker FSD. of this AD, if those actions were performed 321, Fort Worth, TX 76177. For information (3) For helicopters equipped with RDAU before the effective date of this AD using on the availability of this material at the part number 76450–01098–106, update the Sikorsky Alert Service Bulletin 76–31–4, FAA, call (817) 222–5110. RDAU software and re-identify the RDAU in dated May 17, 2018. Issued on March 31, 2020. accordance with Section 3., Paragraphs A. (3) This paragraph provides credit for the Lance T. Gant, through K. of the Accomplishment actions required by paragraphs (g)(4) and (i) Instructions of Sikorsky Alert Service of this AD, if those actions were performed Director, Compliance & Airworthiness Bulletin 76–31–5, dated July 31, 2018, except before the effective date of this AD using Division, Aircraft Certification Service. you are not required to return the RDAU to Sikorsky Service Bulletin 76–006, dated July [FR Doc. 2020–07047 Filed 4–3–20; 8:45 am] Parker FSD. 26, 2018. BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION Examining the AD Docket design similarity, the FAA has included You may examine the AD docket on them in this proposed AD because Federal Aviation Administration the internet at https:// owners/operators may install the www.regulations.gov by searching for comfort clips post-delivery. Bell 14 CFR Part 39 and locating Docket No. FAA–2018– consequently reported in its service 0598; or in person at Docket Operations bulletins that it will stop delivering and [Docket No. FAA–2018–0598; Product between 9 a.m. and 5 p.m., Monday selling the comfort clips. Identifier 2018–SW–030–AD] through Friday, except Federal holidays. The actions of this proposed AD are The AD docket contains this NPRM, any intended to prevent the seat belt from RIN 2120–AA64 comments received, and other locking, potentially resulting in injury information. The street address for to the occupant during an emergency Airworthiness Directives; Bell Textron, Docket Operations is listed above. landing. Inc. (Type Certificate Previously Held Comments will be available in the AD Related Service Information by Bell Helicopter Textron, Inc.) docket shortly after receipt. Helicopters The FAA reviewed Bell Alert Service FOR FURTHER INFORMATION CONTACT: Bulletin (ASB) 204B–15–70 for Model AGENCY: Federal Aviation Kuethe Harmon, Safety Management 204B helicopters, Bell ASB 205–15–113 Administration (FAA), DOT. Program Manager, DSCO Branch, FAA, for Model 205A and 205A–1 10101 Hillwood Pkwy., Fort Worth, TX ACTION: Notice of proposed rulemaking helicopters, Bell ASB 205B–15–66 for (NPRM). 76177; telephone 817–222–5198; email: Model 205B helicopters, Bell ASB 212– [email protected]. 15–156 for Model 212 helicopters, Bell SUMMARY: The FAA proposes to adopt a SUPPLEMENTARY INFORMATION: ASB 412–15–170 for Model 412 and new airworthiness directive (AD) for Comments Invited 412EP helicopters, and Bell ASB certain Bell Textron, Inc. (Type 412CF–15–60 for Model 412CF Certificate previously held by Bell The FAA invites you to send any helicopters, all dated January 20, 2016. Helicopter Textron, Inc.) (Bell) Model written relevant data, views, or The FAA also reviewed Bell ASB 214– 204B, 205A, 205A–1, 205B, 212, 214B, arguments about this proposal. Send 15–76, dated January 11, 2016, for 214B–1, 412, 412CF, and 412EP your comments to an address listed Model 214B and 214B–1 helicopters. helicopters. This proposed AD was under the ADDRESSES section. Include This service information specifies prompted by a report of a shoulder ‘‘Docket No. FAA–2018–0598; Product removing the comfort clips from all harness seat belt comfort clip (comfort Identifier 2018–SW–030–AD’’ at the crew and passenger seat belt assemblies. clip) interfering with the seat belt inertia beginning of your comments. The FAA reel. This proposed AD would require specifically invites comments on the FAA’s Determination removing comfort clips from service and overall regulatory, economic, The FAA is proposing this AD after inspecting the seat belt shoulder harness environmental, and energy aspects of evaluating all the relevant information (harness) for a rip or an abrasion. The this NPRM. The FAA will consider all and determining that the unsafe FAA is proposing this AD to address the comments received by the closing date condition described previously is likely unsafe condition on these products. and may amend this NPRM because of to exist or develop in other products of those comments. DATES: The FAA must receive comments the same type design. The FAA will post all comments on this proposed AD by May 21, 2020. received, without change, to https:// Proposed AD Requirements ADDRESSES: You may send comments, www.regulations.gov, including any This proposed AD would require, using the procedures found in 14 CFR personal information you provide. The within 50 hours time-in-service (TIS), 11.43 and 11.45, by any of the following FAA will also post a report removing from service each comfort clip methods: summarizing each substantive verbal P/Ns D7LZ–6560286–A, D7LZ– • Federal eRulemaking Portal: Go to contact received about this NPRM. 6560286–B, and 504636–401, from the https://www.regulations.gov. Follow the seat belt assembly and inspecting each Discussion instructions for submitting comments. harness for a rip and an abrasion. If • Fax: 202–493–2251. The FAA proposes to adopt a new AD there is a rip or abrasion, this proposed • Mail: U.S. Department of for certain Bell Model 204B, 205A, AD would require removing the harness Transportation, Docket Operations, M– 205A–1, 205B, 212, 214B, 214B–1, 412, from service before further flight. 30, West Building Ground Floor, Room 412CF, and 412EP helicopters. This After the effective date of this AD, this W12–140, 1200 New Jersey Avenue SE, proposed AD was prompted by a series proposed AD would prohibit installing Washington, DC 20590. of service bulletins issued by Bell, any comfort clip P/Ns D7LZ–6560286– • Hand Delivery: Deliver to Mail reporting an issue with certain comfort A, D7LZ–6560286–B, or 504636–401 on address above between 9 a.m. and 5 clips part-numbers (P/Ns) D7LZ– any helicopter. p.m., Monday through Friday, except 6560286–A, D7LZ–6560286–B, and Federal holidays. 504636–401, which are installed on seat Differences Between This Proposed AD For service information identified in belt assemblies. A design review by and the Service Information this NPRM, contact Bell Textron, Inc., Leonardo S.p.A Helicopter (formerly The service information specifies a P.O. Box 482, Fort Worth, TX 76101; Agusta S.p.A., Finmeccanica S.p.A.) compliance time of within 100 flight telephone 817–280–3391; fax 817–280– indicates the use of the affected comfort hours or no later than February 21, 6466; or at https:// clips could jeopardize, in cases of 2016, and does not specify inspecting www.bellcustomer.com. You may impact or deceleration, the correct each harness for a rip or an abrasion. review the referenced service functionality of the seat belt or the seat This proposed AD would require a information at the FAA, Office of the belt inertia reel. compliance time of within 50 hours TIS Regional Counsel, Southwest Region, Bell Model 204B, 205A, 205A–1, and would require inspecting each 10101 Hillwood Pkwy., Room 6N–321, 205B, and 212 helicopters were not harness for a rip or an abrasion. The Fort Worth, TX 76177. delivered with comfort clips, but due to FAA determined that including an

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inspection for harness damage is under the criteria of the Regulatory before further flight, remove from service the necessary to correct the unsafe Flexibility Act. harness. condition. (2) After the effective date of this AD, do List of Subjects in 14 CFR Part 39 not install comfort clip P/Ns D7LZ–6560286– Costs of Compliance Air transportation, Aircraft, Aviation A, D7LZ–6560286–B, or 504636–401 on any helicopter. The FAA estimates that this proposed safety, Incorporation by reference, AD would affect 210 helicopters of U.S. Safety. (h) Alternative Methods of Compliance (AMOCs) registry. The FAA estimates that The Proposed Amendment operators may incur the following costs (1) The Manager, DSCO Branch, FAA, has in order to comply with this AD. Labor Accordingly, under the authority the authority to approve AMOCs for this AD, costs are estimated at $85 per work- delegated to me by the Administrator, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, hour. the FAA proposes to amend 14 CFR part 39 as follows: send your request to your principal inspector Removing a comfort clip would take or local Flight Standards District Office, as about 0.5 work-hour, for an estimated PART 39—AIRWORTHINESS appropriate. If sending information directly cost of $43 per clip. DIRECTIVES to the manager of the certification office, Inspecting a harness would take about send it to the attention of the person 0.25 work-hour, for an estimated cost of ■ 1. The authority citation for part 39 identified in paragraph (i)(1) of this AD. Information may be emailed to: 9-ASW-190- $21 per harness. continues to read as follows: [email protected]. If required, replacing a harness would Authority: 49 U.S.C. 106(g), 40113, 44701. (2) Before using any approved AMOC, take about 1 work-hour and parts would notify your appropriate principal inspector, cost about $1,050 for an estimated cost § 39.13 [Amended] or lacking a principal inspector, the manager of $1,135 per harness. ■ 2. The FAA amends § 39.13 by adding of the local flight standards district office/ the following new airworthiness certificate holding district office. Authority for This Rulemaking directive (AD): (i) Related Information Title 49 of the United States Code Bell Textron, Inc. (Type Certificate (1) For more information about this AD, specifies the FAA’s authority to issue Previously Held by Bell Helicopter contact Kuethe Harmon, Safety Management rules on aviation safety. Subtitle I, Textron, Inc.): Docket No. FAA–2018– Program Manager, DSCO Branch, FAA, 10101 section 106, describes the authority of 0598; Product Identifier 2018–SW–030– Hillwood Pkwy., Fort Worth, TX 76177; the FAA Administrator. Subtitle VII: AD. telephone 817–222–5198; email [email protected]. Aviation Programs, describes in more (a) Comments Due Date (2) For service information identified in detail the scope of the Agency’s The FAA must receive comments by May authority. this AD, contact Bell Textron, Inc., P.O. Box 21, 2020. 482, Fort Worth, TX 76101; telephone 817– The FAA is issuing this rulemaking (b) Affected ADs 280–3391; fax 817–280–6466; or at https:// under the authority described in www.bellcustomer.com. You may review Subtitle VII, Part A, Subpart III, Section None. service information at the FAA, Office of the 44701: General requirements. Under (c) Applicability Regional Counsel, Southwest Region, 10101 that section, Congress charges the FAA Hillwood Pkwy., Room 6N–321, Fort Worth, This AD applies to Bell Textron, Inc. (Type TX 76177. with promoting safe flight of civil Certificate previously held by Bell Helicopter aircraft in air commerce by prescribing Textron, Inc.) Model 204B, 205A, 205A–1, Issued on March 31, 2020. regulations for practices, methods, and 205B, 212, 214B, 214B–1, 412, 412CF, and Lance T. Gant, procedures the Administrator finds 412EP helicopters, certificated in any Director, Compliance & Airworthiness necessary for safety in air commerce. category, with a shoulder harness seat belt Division, Aircraft Certification Service. comfort clip (comfort clip) part numbers (P/ This regulation is within the scope of [FR Doc. 2020–07086 Filed 4–3–20; 8:45 am] that authority because it addresses an Ns) D7LZ–6560286–A, D7LZ–6560286–B, or 504636–401, installed. BILLING CODE 4910–13–P unsafe condition that is likely to exist or develop on products identified in this (d) Subject rulemaking action. Joint Aircraft System Component (JASC) DEPARTMENT OF HEALTH AND Code: 2500, Cabin Equipment/Furnishings. Regulatory Findings HUMAN SERVICES (e) Unsafe Condition The FAA determined that this Food and Drug Administration proposed AD would not have federalism This AD was prompted by a report of a comfort clip interfering with the seat belt implications under Executive Order inertia reel. The FAA is issuing this AD to 21 CFR Parts 1, 11, 16, and 129 13132. This proposed AD would not prevent the seat belt from locking. The unsafe [Docket No. FDA–2019–N–3325] have a substantial direct effect on the condition, if not addressed, could result in States, on the relationship between the injury to the occupant during an emergency RIN 0910–AH31 national government and the States, or landing. on the distribution of power and (f) Compliance Laboratory Accreditation for Analyses responsibilities among the various of Foods; Extension of Comment Comply with this AD within the Period levels of government. compliance times specified, unless already For the reasons discussed above, I done. AGENCY: Food and Drug Administration, certify this proposed regulation: HHS. (1) Is not a ‘‘significant regulatory (g) Required Actions (1) Within 50 hours time-in-service (TIS): ACTION: Proposed rule; extension of action’’ under Executive Order 12866, comment period for the proposed rule (2) Will not affect intrastate aviation (i) Remove from service each comfort clip P/Ns D7LZ–6560286–A, D7LZ–6560286–B, and for its information collection in Alaska, and or 504636–401 from the shoulder harness provisions. (3) Will not have a significant seat belt (harness). economic impact, positive or negative, (ii) Inspect each harness for a rip and an SUMMARY: The Food and Drug on a substantial number of small entities abrasion. If there is a rip or any abrasion, Administration (FDA or we) is

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extending for a second time the information, or other information that and other applicable disclosure law. For comment period for the proposed rule, identifies you in the body of your more information about FDA’s posting and for the information collection comments, that information will be of comments to public dockets, see 80 related to the proposed rule, entitled posted on https://www.regulations.gov. FR 56469, September 18, 2015, or access ‘‘Laboratory Accreditation for Analyses • If you want to submit a comment the information at: https:// of Foods’’ that appeared in the Federal with confidential information that you www.govinfo.gov/content/pkg/FR-2015- Register of November 4, 2019. We are do not wish to be made available to the 09-18/pdf/2015-23389.pdf. taking this action in response to a public, submit the comment as a Docket: For access to the docket to request from several food industry written/paper submission and in the read background documents or the associations to extend open comment manner detailed (see ‘‘Written/Paper electronic and written/paper comments periods while their members focus on Submissions’’ and ‘‘Instructions’’). received, go to https:// continuity of critical infrastructure Written/Paper Submissions www.regulations.gov and insert the operations due to the recent COVID–19 Submit written/paper submissions as docket number, found in brackets in the public health declaration. We also are heading of this document, into the taking this action to keep the comment follows: • Mail/Hand Delivery/Courier (for ‘‘Search’’ box and follow the prompts period for the information collection written/paper submissions): Dockets and/or go to the Dockets Management provisions associated with the rule Management Staff (HFA–305), Food and Staff, 5630 Fishers Lane, Rm. 1061, consistent with the comment period for Drug Administration, 5630 Fishers Rockville, MD 20852. the proposed rule. Lane, Rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: DATES: FDA is further extending the • For written/paper comments Timothy McGrath, Food and Feed comment period on the proposed rule submitted to the Dockets Management Laboratory Operations, Office of published November 4, 2019 (84 FR Staff, FDA will post your comment, as Regulatory Affairs, Food and Drug 59452), which was first extended well as any attachments, except for Administration, 12420 Parklawn Dr., February 28, 2020 (85 FR 11893). information submitted, marked and Rm. 3142, Rockville, MD 20857, 301– Submit either electronic or written identified, as confidential, if submitted 796–6591, email: timothy.mcgrath@ comments on the proposed rule by July as detailed in ‘‘Instructions.’’ fda.hhs.gov. 6, 2020. Submit comments on Instructions: All submissions received With regard to the information information collection issues under the must include the Docket No. FDA– collection: Domini Bean, Office of Paperwork Reduction Act of 1995 (PRA) 2019–N–3325 for ‘‘Laboratory Operations, Food and Drug by July 6, 2020 (see the ‘‘Paperwork Accreditation for Analyses of Foods.’’ Administration, Three White Flint Reduction Act of 1995’’ section of the Received comments, those filed in a North, 10A–12M, 11601 Landsdown St., proposed rule). timely manner (see ADDRESSES), will be North Bethesda, MD 20852, 301–796– ADDRESSES: You may submit comments placed in the docket and, except for 5733, email: [email protected]. as follows. Please note that late, those submitted as ‘‘Confidential untimely filed comments will not be Submissions,’’ publicly viewable at SUPPLEMENTARY INFORMATION: considered. Electronic comments must https://www.regulations.gov or at the I. Background be submitted on or before July 6, 2020. Dockets Management Staff between 9 The https://www.regulations.gov a.m. and 4 p.m., Monday through In the Federal Register of November electronic filing system will accept Friday. 4, 2019 (84 FR 59452), we published a comments until 11:59 p.m. Eastern Time • Confidential Submissions—To proposed rule entitled ‘‘Laboratory at the end of July 6, 2020. Comments submit a comment with confidential Accreditation for Analyses of Foods’’ received by mail/hand delivery/courier information that you do not wish to be with a 120-day comment period on the (for written/paper submissions) will be made publicly available, submit your provisions of the proposed rule and on considered timely if they are comments only as a written/paper the information collection provisions postmarked or the delivery service submission. You should submit two that are subject to review by the Office acceptance receipt is on or before that copies total. One copy will include the of Management and Budget under the date. information you claim to be confidential PRA (44 U.S.C. 3501–3521). In the with a heading or cover note that states Federal Register of February 28, 2020 Electronic Submissions ‘‘THIS DOCUMENT CONTAINS (85 FR 11893), we published an Submit electronic comments in the CONFIDENTIAL INFORMATION.’’ The extension of the comment period for the following way: Agency will review this copy, including proposed rule, and for the information • Federal eRulemaking Portal: the claimed confidential information, in collection related to the proposed rule, https://www.regulations.gov. Follow the its consideration of comments. The until April 6, 2020. The purpose of the instructions for submitting comments. second copy, which will have the first extension was to allow interested Comments submitted electronically, claimed confidential information persons an additional opportunity to including attachments, to https:// redacted/blacked out, will be available consider the proposal. www.regulations.gov will be posted to for public viewing and posted on After we extended the comment the docket unchanged. Because your https://www.regulations.gov. Submit period by 30 days, the outbreak of comment will be made public, you are both copies to the Dockets Management COVID–19, the disease caused by the solely responsible for ensuring that your Staff. If you do not wish your name and novel coronavirus, caused the World comment does not include any contact information to be made publicly Health Organization to declare a global confidential information that you or a available, you can provide this pandemic.1 The President subsequently third party may not wish to be posted, information on the cover sheet and not proclaimed that the COVID–19 outbreak such as medical information, your or in the body of your comments and you in the United States constitutes a anyone else’s Social Security number, or must identify this information as confidential business information, such ‘‘confidential.’’ Any information marked 1 See https://www.who.int/dg/speeches/detail/ as a manufacturing process. Please note as ‘‘confidential’’ will not be disclosed who-director-general-s-opening-remarks-at-the- that if you include your name, contact except in accordance with 21 CFR 10.20 media-briefing-on-covid-19---11-march-2020.

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national emergency.2 Soon thereafter ENVIRONMENTAL PROTECTION at https://www.regulations.gov or at the the U.S. Department of Homeland AGENCY U.S. Environmental Protection Agency, Security Cybersecurity and EPA Region 1 Regional Office, Air and Infrastructure Security Agency issued 40 CFR Part 52 Radiation Division, 5 Post Office guidance identifying, for the COVID–19 [EPA–R01–OAR–2020–0150; FRL–10007– Square—Suite 100, Boston, MA. EPA pandemic, which infrastructure sectors 41–Region 1] requests that if at all possible, you are critical to maintain necessary contact the contact listed in the FOR services and functions; one is the food Air Plan Approval; New Hampshire; FURTHER INFORMATION CONTACT section to 3 and agriculture sector. Negative Declaration for the Oil and schedule your inspection. The Regional Gas Industry FDA has received a request for a 120- Office’s official hours of business are day extension of all open comment AGENCY: Environmental Protection Monday through Friday, 8:30 a.m. to periods for food-related proposed Agency (EPA). 4:30 p.m., excluding legal holidays. regulations, draft guidance documents, ACTION: Proposed rule. and Federal Register notices to allow FOR FURTHER INFORMATION CONTACT: Bob the food industry to focus its efforts on SUMMARY: The Environmental Protection McConnell, Environmental Engineer, COVID–19 response efforts and assuring Agency (EPA) is proposing to approve a Air and Radiation Division (Mail Code that food production continues without State Implementation Plan (SIP) 05–2), U.S. Environmental Protection pause (Ref. 1). FDA has considered the revision submitted by the State of New Agency, Region 1, 5 Post Office Square, request in light of the role of the Food Hampshire. The revision provides the Suite 100, Boston, Massachusetts and Agriculture Sector in maintaining state’s determination, via a negative 02109–3912; (617) 918–1046. critical infrastructure and recognizing declaration, that there are no facilities [email protected]. that the comment period currently is within its borders subject to EPA’s 2016 SUPPLEMENTARY INFORMATION: In the scheduled to close during the acute Control Technique Guideline (CTG) for Final Rules Section of this Federal response to COVID–19. We have the oil and gas industry. The intended Register, EPA is approving the State’s concluded that it is reasonable to extend effect of this action is to propose for approximately 90 days the comment approval of these items into the New SIP submittal as a direct final rule period for the Laboratory Accreditation Hampshire SIP. This action is being without prior proposal because the for Analyses of Foods proposed rule. taken in accordance with the Clean Air Agency views this as a noncontroversial The Agency believes that this extension, Act. submittal and anticipates no adverse together with the original 30-day DATES: Written comments must be comments. A detailed rationale for the extension, allows adequate time for any received on or before May 6, 2020. approval is set forth in the direct final interested persons to consider the ADDRESSES: Submit your comments, rule. If no adverse comments are proposal fully and submit comments. identified by Docket ID No. EPA–R01– received in response to this action rule, We also are extending the comment OAR–2020–0150 at https:// no further activity is contemplated. If period for the information collection www.regulations.gov, or via email to EPA receives adverse comments, the provisions to make the comment period [email protected]. For direct final rule will be withdrawn and for the information collection provisions comments submitted at Regulations.gov, all public comments received will be the same as the comment period for the follow the online instructions for addressed in a subsequent final rule provisions of the proposed rule. To submitting comments. Once submitted, based on this proposed rule. EPA will clarify, FDA is requesting comment on comments cannot be edited or removed not institute a second comment period. all issues raised by the proposed rule. from Regulations.gov. For either manner Any parties interested in commenting of submission, the EPA may publish any II. Reference on this action should do so at this time. comment received to its public docket. Please note that if EPA receives adverse The following reference is on display Do not submit electronically any comment on an amendment, paragraph, at the Dockets Management Staff (see information you consider to be or section of this rule and if that Confidential Business Information (CBI) ADDRESSES) and is available for viewing provision may be severed from the or other information whose disclosure is by interested persons between 9 a.m. remainder of the rule, EPA may adopt and 4 p.m., Monday through Friday; it restricted by statute. Multimedia submissions (audio, video, etc.) must be as final those provisions of the rule that is also available electronically at https:// are not the subject of an adverse www.regulations.gov. accompanied by a written comment. The written comment is considered the comment. 1. Letter from Food & Beverage Issue official comment and should include For additional information, see the Alliance to Frank Yiannas, Deputy Commissioner for Food Policy and Response, discussion of all points you wish to direct final rule which is located in the and Susan T. Mayne, Director of the Center make. The EPA will generally not Rules Section of this Federal Register. for Food Safety and Applied Nutrition, consider comments or comment Dated: March 27, 2020. March 23, 2020. contents located outside of the primary Dennis Deziel, Dated: April 1, 2020. submission (i.e. on the web, cloud, or other file sharing system). For Regional Administrator, EPA Region 1. Lowell J. Schiller, additional submission methods, please [FR Doc. 2020–06810 Filed 4–3–20; 8:45 am] Principal Associate Commissioner for Policy. contact the person identified in the FOR BILLING CODE 6560–50–P [FR Doc. 2020–07171 Filed 4–3–20; 8:45 am] FURTHER INFORMATION CONTACT section. BILLING CODE 4164–01–P For the full EPA public comment policy, information about CBI or multimedia 2 See https://www.whitehouse.gov/presidential- submissions, and general guidance on actions/proclamation-declaring-national- making effective comments, please visit emergency-concerning-novel-coronavirus-disease- covid-19-outbreak/. https://www.epa.gov/dockets/ 3 See https://www.cisa.gov/identifying-critical- commenting-epa-dockets. Publicly infrastructure-during-covid-19. available docket materials are available

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FEDERAL COMMUNICATIONS [email protected]; or call the Office of must submit two additional copies for COMMISSION Engineering and Technology at (202) each additional docket or rulemaking 418–2470. For information regarding the number. 47 CFR Parts 1, 2, 18 Paperwork Reduction Act (PRA) Filings can be sent by hand or [ET Docket No. 19–226; FCC 19–126; FRS information collection requirements messenger delivery, by commercial 16618] contained in this document, contact overnight courier, or by first-class or Nicole Ongele, Office of Managing overnight U.S. Postal Service mail. All Human Exposure to Radiofrequency Director, at (202) 418–2991 or filings must be addressed to the Electromagnetic Fields [email protected]. Commission’s Secretary, Office of the SUPPLEMENTARY INFORMATION: This is a Secretary, Federal Communications AGENCY: Federal Communications summary of the Commission’s Notice of Commission. • Commission. Proposed Rulemaking (NPRM), ET Commercial overnight mail (other ACTION: Proposed rule. Docket No. 19–226, FCC 19–126, than U.S. Postal Service Express Mail adopted November 27, 2019 and and Priority Mail) must be sent to 9050 SUMMARY: In this document, the Federal released December 4, 2019. The Junction Dr., Annapolis Junction, Communications Commission complete text of the document is Annapolis, MD 20701. (Commission) seeks comment on • available for public inspection and U.S. Postal Service first-class, expanding the range of frequencies for copying from 8:00 a.m. to 4:30 p.m. Express, and Priority mail must be which its radiofrequency (RF) exposure Eastern Time (ET) Monday through addressed to 445 12th Street SW, limits apply; on applying localized Thursday or from 8:00 a.m. to 11:30 a.m. Washington, DC 20554. exposure limits above 6 GHz in parallel on Fridays in the FCC Reference Center, People with Disabilities: To request to the localized exposure limits already 445 12th Street SW, Room CY–A257, materials in accessible formats for established below 6 GHz; on specifying Washington, DC 20554. The complete people with disabilities (braille, large the conditions and methods for text of the document is also available print, electronic files, audio format), averaging the RF exposure, in both time electronically on the Commission’s send an email to [email protected] or call and area, during evaluation for website at https://www.fcc.gov/ the Consumer & Governmental Affairs compliance with the RF exposure limits engineering-technology or by using the Bureau at 202–418–0530 (voice), 202– in the rules; on addressing new RF search function on the Commission’s 418–0432 (tty). exposure issues raised by wireless Electronic Comment Filing System Ex Parte Rules—Permit-But-Disclose power transfer (WPT) devices; and on (ECFS) web page at https://fcc.gov/cgb/ the definition of a WPT device. Pursuant to § 1.1200(a) of the ecfs/ or on the FCC’s Electronic Commission’s rules, this NPRM shall be DATES: Comments are due on or before Document System (EDOCS) web page at treated as a ‘‘permit-but-disclose’’ May 6, 2020, and reply comments are https://apps.fcc.gov/edocs. Alternative proceeding in accordance with the due on or before May 21, 2020. formats (Braille, large print, electronic Commission’s ex parte rules. Persons ADDRESSES: Interested parties may files, audio format) are available to making ex parte presentations must file submit comments and replies, identified persons with disabilities by sending an a copy of any written presentation or a by ET Docket No. 19–226, by any of the email to [email protected] or by calling the memorandum summarizing any oral following methods: Consumer & Governmental Affairs • presentation within two business days Federal Communications Bureau at (202) 418–0530 (voice), (202) after the presentation (unless a different 418–0432 (tty). Commission’s Website: http:// deadline applicable to the Sunshine fjallfoss.fcc.gov/ecfs2/. Follow the Comment Filing Procedures period applies). Persons making oral ex instructions for submitting comments. parte presentations are reminded that • Mail: Filings can be sent by hand or Pursuant to §§ 1.415 and 1.419 of the Commission’s rules, 47 CFR 1.415, memoranda summarizing the messenger delivery, by commercial presentation must (1) list all persons overnight courier, or by first-class or 1.419, interested parties may file comments and reply comments on or attending or otherwise participating in overnight U.S. Postal Service mail. All the meeting at which the ex parte filings must be addressed to the before the dates indicated on the first page of this document. Comments may presentation was made, and (2) Commission’s Secretary, Office of the summarize all data presented and Secretary, Federal Communications be filed using the Commission’s Electronic Comment Filing System arguments made during the Commission. presentation. If the presentation • People with Disabilities: Contact the (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, consisted in whole or in part of the Commission to request reasonable presentation of data or arguments accommodations (accessible format 63 FR 24121 (1998). • Electronic Filers: Comments may be already reflected in the presenter’s documents, sign language interpreters, filed electronically using the internet by written comments, memoranda or other CART, etc.) by email: [email protected] accessing the ECFS: http:// filings in the proceeding, the presenter or phone: 202–418–0530 or TTY: 202– fjallfoss.fcc.gov/ecfs2/. Filers should may provide citations to such data or 418–0432. follow the instructions provided on the arguments in his or her prior comments, For detailed instructions on submitting website for submitting comments. In memoranda, or other filings (specifying comments and additional information completing the transmittal screen, filers the relevant page and/or paragraph on the rulemaking process, see the should include their full name, U.S. numbers where such data or arguments SUPPLEMENTARY INFORMATION section of Postal Service mailing address, and the can be found) in lieu of summarizing this document. applicable docket number, ET Docket them in the memorandum. Documents FOR FURTHER INFORMATION CONTACT: No. 19–226. shown or given to Commission staff Martin Doczkat, email: martin.doczkat@ • Paper Filers: Parties who choose to during ex parte meetings are deemed to fcc.gov of the Office of Engineering and file by paper must file an original and be written ex parte presentations and Technology Electromagnetic one copy of each filing. If more than one must be filed consistent with Compatibility Division; the docket or rulemaking number appears in § 1.1206(b). In proceedings governed by Commission’s RF Safety Program, the caption of this proceeding, filers § 1.49(f) or for which the Commission

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has made available a method of is deployed, and how RF sources are formalized in the Commission’s rules. electronic filing, written ex parte assessed for compliance with the Previously, the Commission sought presentations and memoranda Commission’s existing RF exposure comment on whether it should establish summarizing oral ex parte limits. These recent developments specific exposure limits and protocols presentations, and all attachments include using millimeter-wave and outside the frequency ranges presently thereto, must be filed through the submillimeter-wave frequencies for used for evaluation of SAR and/or MPE. electronic comment filing system mobile applications, devices that can Further, some inductive wireless available for that proceeding, and must time-average their power output to chargers operate at frequencies below be filed in their native format (e.g., .doc, increase transmission efficiency, 100 kHz, and Commission staff have .xml, .ppt, searchable .pdf). Participants adaptive array antennas used by been approached by parties seeking in this proceeding should familiarize fluctuating multi-beam sources, and guidance on how to determine themselves with the Commission’s ex devices that can transfer power compliance for wireless car chargers parte rules. wirelessly. These and other similar generally operating at similarly low applications of RF energy being frequencies. Initial Regulatory Flexibility Analysis developed raise questions as to how to 4. The Commission is aware of three As required by the Regulatory determine compliance with the RF existing guidelines for RF exposure that Flexibility Act of 1980 (‘‘RFA’’), the exposure limits. This NPRM seeks extend to frequencies below 100 kHz: Commission has prepared this present comment on the Commission’s International Commission on Non- Initial Regulatory Flexibility Analysis proposals to apply RF exposure limits in Ionizing Radiation Protection (ICNIRP) (‘‘IRFA’’) of the possible significant additional frequency ranges beyond Guidelines for Limiting Exposure to economic impact on a substantial those currently specified in the Time-Varying Electric and Magnetic number of small entities of the policies Commission’s RF exposure rules; on Fields (1Hz—100 kHz) (2010); Institute and rules proposed in the NPRM. The applying localized exposure limits of Electrical and Electronic Engineers, Commission requests written public above 6 GHz, in parallel with the Inc. (IEEE) Standard for Safety Levels comment on this IRFA. Comments must existing localized exposure limits below with Respect to Human Exposure to be filed in accordance with the same 6 GHz; on specifying the conditions and Radio Frequency Electromagnetic deadlines as comments filed in response methods for averaging RF exposure, in Fields, 3 kHz to 300 GHz (IEEE Std to the NRPM and must have a separate both time and area, during evaluation C95.1–2005) and Standard for Safety and distinct heading designating them for compliance with the rules; and on Levels with Respect to Human Exposure as responses to the IRFA. The addressing new issues raised by WPT to Electric, Magnetic, and Commission’s Consumer and devices. Electromagnetic Fields, 0 Hz to 300 GHz Governmental Affairs Bureau, Reference 2. This NPRM proposes methods and (IEEE Std C95.1–2019); and Health Information Center, will send a copy of seeks comment on how to best Canada Safety Code 6—Limits of Human this NPRM, including the IRFA, to the incorporate new RF technologies, new Exposure to Radiofrequency Chief Counsel for Advocacy of the Small methods and techniques for RF Electromagnetic Energy in the Business Administration, in accordance transmission, and new usages for a Frequency Range from 3 kHz to 300 GHz with the Regulatory Flexibility Act. variety of spectrum bands into the (2015). While these guidelines are Paperwork Reduction Act of 1995 Commission’s preexisting exposure aimed at prevention of framework. In particular, on the topic of electrostimulation due to electric fields The NPRM contains proposed new or body-worn spacing during testing of cell induced internally within the human modified information collection phones, the Commission continues to body in the presence of an external requirements. The Commission, as part strive to ensure that such spacing electromagnetic field outside the body of its continuing effort to reduce represents realistic values for present- and have similar values for limiting the paperwork burdens, invites the general day technology and common usage. As internal electric field (Ei), they have Public, the Office of Management and part of this effort, the Commission different approaches to the dosimetry Budget (OMB), and other federal explores the issue of approval for used to derive their respective MPE agencies to comment on the proposed equipment using new methods and limits on external fields from those Ei information collection requirements technologies. values. The Commission seeks comment contained in this document, as required on the significance of the difference A. Extension of Exposure Limits to by the Paperwork Reduction Act of between these guidelines. 1995, Public Law 104–13. In addition, Additional Frequencies 5. While each of the standards pursuant to the Small Business 3. The Commission’s existing RF appears to provide appropriate Ei Paperwork Relief Act of 2002, Public exposure rules provide for evaluation of guidelines, the ICNIRP 2010 guidelines Law 107–198, see 44 U.S.C. 3506(c)(4), the specific absorption rate (SAR) are the most widely accepted from an the Commission seeks specific comment exposure level within the frequency international perspective. The on how it might further reduce the range of 100 kHz to 6 GHz, and for Commission proposes to adopt limits on information collection burden for small evaluation of maximum permissible Ei similar to the ICNIRP 2010 guidelines business concerns with fewer than 25 exposure (MPE) field strength and into its rules for frequencies between 3 employees. power density within the frequency kHz to 10 MHz. The Commission does Synopsis range of 300 kHz to 100 GHz. The not propose to apply these guidelines standards for localized SAR that are below 3 kHz. The Commission seeks I. Introduction normally applied for testing compliance comments on these proposals and other 1. This NPRM focuses on developing of consumer devices operating below 6 relevant and authoritative standards that a record encompassing RF exposure GHz were derived from the whole body commenters deem appropriate for limits and compliance issues raised by limits; the Commission currently consideration. recent developments in technology that employs a similar derivation to apply 6. The Commission proposes to have changed the way wireless devices localized limits where appropriate for overlay ICNIRP 2010 electrostimulation are used, frequency bands of operation, testing consumer devices above 6 GHz. limits for Ei on its existing SAR limits how supporting wireless infrastructure However, this approach is not for frequencies between 100 kHz and 10

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MHz. Because of the fast response time existing exposure limits to 3,000 GHz (3 frequencies. The Commission seeks of neural stimulation relative to heating, THz) to stay ahead of the possibility of comment on all elements of this it is appropriate to apply technologies being introduced that are proposal, and on whether its lower- electrostimulation limits without time nascent or unknown today. The power exemptions above 6 GHz should averaging (in addition to time-averaged Commission notes that most of the be changed for a localized power SAR limits) to fields at frequencies well services being contemplated in the density limit in this frequency range. above 100 kHz. This proposal would Spectrum Horizons proceeding in ET 10. Recognizing the ongoing work in place Ei alongside SAR as a co-primary Docket No. 18–21 operate within the standards bodies to establish an in- limit between 100 kHz and 10 MHz (i.e., 95–275 GHz frequency range, but there tissue power density in lieu of free- both Ei and SAR limits must be met may be other potential applications or space power density—analogous to SAR between 100 kHz and 10 MHz). The services being contemplated above this below 6 GHz—the Commission also Commission does not propose to amend frequency range. The Commission seeks seeks comment on whether it should or extend its MPE limits on external comment on this proposal. Specifically, instead adopt such a limit, and if so fields. By not amending or extending it seeks comment on the frequency what that limit should be, or if it should MPE limits on external fields, the range over which these proposed limits withhold consideration of an in-tissue Commission’s policy that MPE limits would apply. power density limit until after the are secondary remains intact. Guidance standards have been published at a later B. Localized Exposure Limits for Higher date. Commenters may also propose on how to comply with both limits Frequencies within this frequency range may be other approaches for determining developed as necessary for particular 8. New technologies that employ appropriate exposure limits at higher applications. The Commission proposes techniques such as adaptive array frequencies, with an analysis and that its policy on recommended best antennas created by fluctuating multi- justification for using any such protocol. practices for evaluation techniques to beam sources create complex energy fields that present challenges for current C. Averaging Area for Higher comply with both Ei and SAR in the Frequencies frequency range between 100 kHz and RF measurement methods. Because 11. In the 2016 Spectrum Frontiers 10 MHz should be contained in its portable devices are being developed for R&O and FNPRM, the Commission Bulletins and in other supplemental operation at higher frequencies for acknowledged as reasonable a spatial materials, such as the Commission’s future 5G services, the Commission proposes a localized exposure limit averaging area of 20 cm2 for power Office of Engineering and Technology above 6 GHz of 4 mW/cm2 averaged density above 10 GHz—as provided by Laboratory’s Knowledge Database over 1 cm2 for the general population, ICNIRP for a whole-body exposure limit. (KDB). The Commission seeks comment applicable up to the upper frequency However, as the Commission continues on these proposed numerical limits and boundary of 3 THz, and seeks comment to consider this issue, it finds little on the guidance for demonstrating on this proposal. The Commission notes support in the technical literature for compliance with such limits. that both the ICNIRP guidelines and the specifying a large averaging area with 7. Although the radio spectrum is IEEE standards specify a spatial respect to the whole-body limit when an managed up to 3,000 GHz (3 THz), the maximum power density of 20 times the averaging area for a spatial maximum Commission’s exposure limits are whole-body MPE limit (e.g., between 3 limit for localized exposure is currently specified only up to 100 GHz. and 10 GHz), generally averaged over 1 stipulated. Moreover, ICNIRP maintains The Commission is unaware of any cm2. The Commission proposes a an averaging area of 1 cm2 for spatial reason the limits should be different localized exposure limit above 6 GHz maximum power densities over the above 100 GHz. As frequency increases for occupational settings of 20 mW/cm2 frequency range of 10 GHz to 300 GHz. up to 3,000 GHz (3 THz), body averaged over 1 cm2, which is There is growing consensus that a range penetration is reduced and ultimately consistent with the typical ratio of 5:1 of from one to a few square centimeters approaches zero. Accordingly, there is for the occupational limits relative to would be a more appropriate averaging no reason to expect that thermal effects the general population limits. The area for localized spatial maximum will effectively change at the Commission tentatively concludes not power density limits rather than the increasingly higher frequencies. to adopt an extremity limit at this time. much larger values (20 cm2 or 100 cm2) Accordingly, the Commission proposes 9. The proposed general population that are provided for the whole-body to extend the same constant exposure localized power density value of 4 mW/ limits in recent published versions of limits that presently apply from 6 GHz cm2 matches the exposure limit technical standards, e.g., ICNIRP and to 100 GHz up to an upper frequency of specified at 6 GHz in the IEEE Std IEEE. 3,000 GHz (3 THz), which is considered C95.1–1991 standard referenced in the 12. For the reasons noted, the to be the upper bound of existing Commission’s rules. Based on planar Commission proposes a 1 cm2 averaging radiofrequency bands. Starting at 300 models, this standard suggests that a area to be applicable to localized GHz or a wavelength of 1,000 power density of 4 mW/cm2 just above exposure conditions where the averaged micrometers (mm), standards have been 6 GHz is consistent with the power density would not exceed 4 mW/ developed for lasers primarily for Commission’s 1-gram SAR limit of 1.6 cm2 for the general population (20 mW/ application in industrial settings. In an W/kg at 6 GHz. Also, the thermal cm2 for occupational settings). The 1 effort by standards bodies to match the perception threshold at frequencies cm2 area is approximately the same size laser standards, RF limits have been approaching 100 GHz for large areas of as any of the surfaces of a 1-g cube used increased at millimeter wave exposure is indicated at about 4 mW/ for portable device SAR evaluation frequencies; however, the Commission cm2. Maintaining 4 mW/cm2 across the below 6 GHz in the Commission’s rules, does not feel it is appropriate to relax its entire frequency range of 6 GHz to 3 and the Commission notes that this is limits at higher frequencies for exposure THz will avoid any potential the guidance that the FCC Laboratory from consumer communication devices, discontinuity between SAR and power currently offers for pertinent equipment considering the already minimal skin density limits at 6 GHz, while also authorizations. The Commission invites depth at 100 GHz. Accordingly, the preventing the possibility of perception comment on this proposal. It also seeks Commission proposes to extend its of warmth at higher millimeter-wave comment on whether it may also be

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appropriate to specify a spatial peak transmitters, that the cumulative will the Commission determine that the limit coupled with this 1 cm2 averaging transmissions from all RF sources in the device software and/or firmware area to avoid significant excursions device be accounted for in the SAR achieve compliance? The Commission under actual non-uniform exposure margin calculations. The Commission seeks comment on the above and any conditions on a millimeter scale. The recognizes that a device may have a other factors as they may relate to Commission is aware that this 1 cm2 plurality of RF sources, some of which consideration of device-based time- averaging area is generally smaller than might be power-controlled by the device averaging in the equipment the actual size of antenna arrays being and others which might not, and so it authorization process. contemplated for use by millimeter- seeks comment on how to reliably and 17. With respect to the appropriate wave portable devices, and it seeks predictably distinguish any such device time-averaging period, the Commission comment on whether this factor from a conventional device intending to notes two references for specifying time- presents insuperable or significant be certified under its existing source- averaging limits: (1) The ICNIRP difficulties, and on other technically based time-averaging rules. standard that provides for averaging valid and practical alternatives. 15. The Commission seeks comment over 6 minutes at 10 GHz, and reduces on whether to permit this device-based to 10 seconds at 300 GHz on a complex D. Transmitter-Based and Device-Based time averaging where the instantaneous Time-Averaging basis; and (2) the IEEE standard that transmit power and duration of each provides for an averaging time of 25 13. Recent technology has been transmission burst can be managed by minutes at 6 GHz, dropping to 10 developed to allow for the optimization the device over some time period in a seconds at 300 GHz. However, since the of the time-averaged transmit power of way that will ensure compliance with Commission does not limit temporal- a device over a predefined time the RF exposure rules. It also seeks peak SAR or power density, all of the window, using past transmit power input as to what specifications it should energy available in a time-averaging levels as a reference to determine the adopt that will confirm compliance and period could be deposited in an instant, maximum time-averaged SAR over that be applied clearly and consistently to resulting in a well-defined temperature period. Based on the device’s own devices coming on the market. The rise, yet still be compliant with the management of time-averaged SAR, a Commission proposes to allow a rules. Thus, using the extended time- maximum allowable transmit power for practical extension of its existing averaging periods of 6 or 30 minutes as a future fixed time interval would be ‘‘source-based’’ definition in its rules to set forth in the Commission’s rules in determined. The device would then include ‘‘device-based’’ time averaging. operate at a power equal to or less than The Commission proposes to add this other contexts, or either of the the maximum allowable transmit power, definition to distinguish such a device alternative time windows specified by depending on factors such as the from those devices already being ICNIRP and IEEE, could allow for amount of data to be transmitted and authorized, and recognizes its inappropriate temperature rises in network conditions. The device would responsiveness and applicability to an extreme cases when intense exposure either back off from a higher transmit individual RF source while compliance occurs for only a brief period. By power to a lower power when the is ultimately controlled by the device reducing the time-averaging period, the calculated time-averaged SAR itself, based on the device tracking maximum possible temperature rise can approaches the SAR limit, or the device transmission bursts and power levels be limited to a reasonable magnitude. could transmit at a higher power when over time. The potential temperature rise (DT) due the device gains an additional margin 16. It is unclear how SAR to an impulse exposure is proportional between the calculated time-averaged measurement results based on static to the product of the allowed SAR and the SAR limit. The recent conditions at certain power levels may continuous-spatial-peak SAR (SARcsp) generation of wireless devices (e.g., 4G be applied to support device and the time-averaging period (Dt), so LTE) transmit in short bursts that are compliance for dynamic conditions that a maximum time-averaging period variable depending on operational where both operational and user (Dt) can be calculated from a specified network and user demands. The exposure conditions are continuously temperature rise (DT) from Dt = c·DT/ Commission’s current rules for source- changing. It will be necessary to select SARcsp where c is the specific heat of based time-averaging do not account for the various parameters for applying tissue. SARcsp at higher frequencies the variable nature of such source-based time-averaging to non- occurs at the skin surface, and it is transmissions. The technology being periodic transmissions that are random dependent on the SAR or power density developed utilizes both the power level and dynamic, which can be influenced limit (for this calculation 1.6 mW/g or and the time-averaging duration in a by device operating configurations, 4.0 mW/cm2), as well as the depth of dynamic manner, depending on the network and propagation conditions, energy absorption into tissue. In turn, operating conditions of the device, to and user operating conditions to ensure the depth of absorption is frequency- determine SAR compliance in real time. that the final measured exposure values dependent. Determination of SARcsp was For example, a device could temporarily still provide sufficient margins for approached with standard calculations increase power to accommodate a high various use configurations. The using a planar model of uniform dry upload rate and/or poor propagation Commission seeks comment on the skin. Based on this approach, 100 conditions, and then reduce power range and type of parameters that seconds is a supportable averaging time during less demanding periods based on should be considered to apply the up to about 3 GHz, with smaller the available SAR margin for the proposed time-averaging principles. For averaging times down to one second at designated time-averaging period. example, is it possible to develop one or higher frequencies. This would permit a 14. The Commission proposes that more standard transmission sequences device to actively track its RF emissions such active accounting and control of that would reasonably replicate typical while limiting potential temperature the instantaneous output power of the operating conditions? Alternatively, rise in tissue due to an impulse to a device be defined as device-based time would the averaging be demonstrated value of about 0.1°C, less than would be averaging in its rules, because the through modeling of the device’s perceptible by the general population. Commission expects, especially for software or firmware, and how would Therefore, the Commission proposes portable devices with multiple this modeling be implemented? How and seeks comment on the following

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maximum time windows to be allowed implement device-based time averaging for any frequency for devices seeking to techniques:

PROPOSED MAXIMUM AVERAGING TIMES FOR DEVICE-BASED TIME-AVERAGING

Frequency (GHz) ...... < 2.9 2.9–7.125 7.125–10.5 10.5–15.4 15.4–24 24–37 37–53 53–95 >95 Time (seconds) ...... 100 49 27 14 7 4 3 2 1

In deriving this table, as a matter of operation? The Commission invites wireless power transfer device, i.e., simplicity and practicality, the comments and input on these issues. within a proposed maximum distance Commission considered the bands and 20. Locally operated wireless power between the transmitting and receiving bandwidths it expects will be utilized transfer systems. Part 18 allows the use unit(s) as discussed above. Should the for various types of devices and of potentially unlimited power if a Commission consider the size and services, and developed distinct device operates within a designated coherence of the electromagnetic field parameters for each frequency range. Industrial, Scientific and Medical (ISM) created, rather than its distance from the The Commission seeks comment on this frequency band, so long as the device transmitting unit? The challenge with approach and whether it has best operates ‘‘locally.’’ Because the these types of wireless power transfer delineated these frequency ranges for Commission’s rules do not define what devices is that charging at a distance can the purpose of time-averaging limits. would constitute ‘‘local’’ usage, create an RF field distribution in three Any comment should include a rigorous measurement and compliance dimensions with an undefined or technical analysis in support of the challenges arise in assessing wireless varying beam shape depending on the position that is advocated. power transfer devices that provide design. Moreover, the location of charging of receiving units located at a E. Wireless Power Transfer Devices maximum RF exposure will be an area distance from the wireless power where various beams intersect, and the 18. Definition. WPT devices have transfer transmitting unit. The direction/location and intensity of the been authorized for several years under Commission seeks comment on whether beams can change with the location of the Commission’s Part 15 rules or Part the term ‘‘local’’ should be defined in the target receiving unit(s). Instead—or 18 rules, depending on whether any terms of distance between the in addition—should the size and/or communication functionality is transmitting and receiving units. If the shape of the maximum field determine provided between the transmitting unit Commission defines ‘‘local’’ based on whether the energy is used in reference (TU) and the receiving unit (RU). These this distance, what is the maximum to the distance between the transmitting new and enhanced WPT products will distance between the transmitting and unit and any receiving unit(s)? What seek an ubiquitous position in modern receiving units that should be parameters should be used for such a households and workplaces, and will considered as ‘‘local’’ operation? consideration? require unique considerations in the 21. The Commission notes that the equipment authorization process. International Special Committee on 23. The Commission further seeks Accordingly, the Commission proposes Radio Interference (CISPR) is comment on what factors it should to define WPT devices under Part 18 of considering a definition for the primary consider to ensure that the RF beam its rules as follows: A wireless power device of a wireless power transfer from the transmitting unit is closely transfer (WPT) device is a category of system that states that the term ‘‘local’’ concentrated at the receiving unit, such Industrial, Scientific, and Medical (ISM) is used differently in the context of that RF energy along the path(s) does equipment which generates and emits wireless power transfer from other ISM not exceed the applicable RF exposure RF energy for local use by inductive, devices: ‘‘for the case of WPT systems limit for any human that may be capacitive, or radiative coupling, for that operate inductively, ‘local’ may situated along the path(s), or create the transfer of electromagnetic energy imply that the separation distance potential for harmful interference to between a power transfer unit (TU) and between the primary (TU) and other services. How should the receiving unit(s) (RU) of a WPT system. secondary (RU) WPT devices should not Commission evaluate compliance of 19. The Commission seeks comment be greater than 50 centimeters (cm).’’ wireless power transfer at-a-distance on the proposed definition. Is there an Based on CISPR’s proposal, should the devices with potential movements of alternative definition that would better Commission use 50 cm as the maximum humans in the RF field and the potential reflect the technological developments distance for wireless power transfer for very close proximity of the receiving in this area? It also seeks to allow non- devices that operate ‘‘locally’’ unit to humans? The Commission communications feedback—for (excluding wireless power transfer at-a- believes that these devices should example, the RU modulates its distance devices, as discussed below) comply with its rules under all resistance to create a ‘‘feedback’’ to the under Part 18? operating conditions, including TU to indicate its charge level—as being 22. Wireless power transfer at-a- movements of people around and in the compliant with Part 18 rules. Based on distance. The Commission seeks field. Should the Commission propose the distinction between locally-operated comment on a suitable definition and to establish frequency bands and power wireless power transfer equipment and operating parameters for wireless power limits specifically for wireless power wireless power transfer equipment that transfer devices that provide charging of transfer at-a-distance devices either operates at a distance, should the receiving units located at a distance under Part 15 or Part 18 of its rules, Commission also consider a separate from the power transfer unit (i.e., 50 cm including operation in designated ISM definition for wireless power transfer or greater), with future developments frequency bands (instead of allowing equipment that provides for the intended at distances suitable for room- unlimited power in these bands, as Part charging of receiving units located at a size operation, and while the RU is in 18 currently permits)? If the distance from the transfer unit, as this motion. This would cover wireless Commission establishes power limits, type of equipment may not meet the power transfer devices that do not meet what should be the basis for such limits, above proposed definition for ‘‘local’’ the definition of a locally operated and should any consideration be given

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to potential harmful interference to rule to exempt such low-power wireless averaged, in both time and area, during other non-part 18 devices, given the power transfer devices from requiring evaluation for compliance with the popularity of these ISM frequency bands certification and instead allow them to rules; and on addressing new issues for consumer devices? With respect to continue to be authorized using its raised by Wireless Power Transfer the potential for harmful interference SDoC procedure. In addition, are there devices.The proposed action is from wireless power transfer devices to other criteria the Commission should authorized under Sections 1, 4(i), 4(j), active medical devices that may be worn consider when exempting wireless 301, 203, 303(r), 307, 308, 309, or implanted (e.g., body worn insulin power transfer devices from the 332(a)(1), 332(c)(7)(B)(iv), and 403 of the pumps, implantable cardiac certification requirement and, if so, Communications Act of 1934, as pacemakers, implantable deep brain what are they, and why? amended, 47 U.S.C. 151, 154(i), 154(j), stimulators (DBS), spinal cord 301, 302a, 303(r), 307, 308, 309, II. Initial Regulatory Flexibility stimulators, and the like), what 332(a)(1), 332(c)(7)(B)(iv), 403; the Analysis mitigation techniques should be National Environmental Policy Act of required? 27. As required by the Regulatory 1969, 42 U.S.C. 4321 et seq.; and 24. Finally, the Commission seeks Flexibility Act of 1980 (RFA), the Section 704(b) of the input on the following issues: Under Commission prepared an Initial Telecommunications Act of 1996, what category of spectrum use should Regulatory Flexibility Analysis (IRFA) Public Law 104–104. the Commission consider wireless of the possible significant economic 30. The Commission identified the power transfer, e.g., either ISM under impact on a substantial number of small small entities to which the proposed Part 18, Part 15, or new rule part? What entities by the policies and rules rules would apply as being made up of radio frequency bands are most suitable proposed in the NPRM. The entities from the following categories: for wireless power transfer? What steps Commission requests written public International Broadcast Stations; are required to ensure that comment on the IRFA, which is Satellite Telecommunications Providers; radiocommunication services, including contained in Appendix C to the NPRM. All Other Telecommunications; Fixed the radio astronomy service, as well as Comments must be identified as Satellite Small Transmit/Receive Earth active medical devices, as indicated responses to the IRFA and must be filed Stations; Fixed Satellite Very Small above, are protected from wireless by the deadline for comments provided Aperture Terminal (VSAT) Systems; power transfer operations? in this NPRM. Mobile Satellite Earth Stations; Wireless 25. Certification. Under Part 18, 28. In the IRFA, the Commission Telecommunications Carriers (except wireless power transfer equipment is noted that the National Environmental satellite); Licenses Assigned by Auction; currently authorized pursuant to the Policy Act of 1969 (NEPA) requires Paging Services; 2.3 GHz Wireless Supplier’s Declaration of Conformity agencies of the Federal Government to Communications Services; 1670–1675 (SDoC) rules (formerly the Declaration evaluate the effects of their actions on MHz Services; Wireless Telephony; of Conformity rules), with the option to the quality of the human environment. Broadband Personal Communications use the Certification rules. To meet its responsibilities under Service; Advanced Wireless Services; 26. Because of the continuing NEPA, the Commission has adopted Narrowband Personal Communications evolution of wireless power transfer requirements for evaluating the Services; Lower 700 MHz Band technology, and the potential use at environmental impact of its actions. Licensees; Upper 700 MHz Band higher power and in closer proximity to One of several environmental factors Licensees; 700 MHz Guard Band humans, the Commission proposes to addressed by these requirements is Licensees; Specialized Mobile Radio, require wireless power transfer human exposure to radiofrequency (RF) 220 MHz Radio Service—Phase I equipment for both consumer and non- energy emitted by FCC-regulated Licensees; 220 MHz Radio Service— consumer applications to be subject to transmitters, facilities, and devices. Phase II Licensees; Private Land Mobile its Certification rules. Certification will 29. The NPRM proposes to amend Radio; Fixed Microwave Services; 39 allow the Commission to ensure that a Parts 1, 2, and 18 of its rules relating to GHz Service; Local Multipoint wireless power transfer device complies the compliance of FCC-regulated Distribution Service; 218–219 MHz with its RF exposure rules which may transmitters, facilities, and devices with Service; Location and Monitoring be achieved by determining whether the the guidelines for human exposure to Service; Rural Radiotelephone Service; device qualifies for an RF exposure radiofrequency (RF) energy. Air-Ground Radiotelephone Service; exemption, or whether a routine RF Specifically, the Commission is Aviation and Marine Radio Services; exposure evaluation is required. The proposing to make certain revisions in Offshore Radiotelephone Service; FCC Laboratory presently provides its rules that it believes will result in Multiple Address Systems; 1.4 GHz guidance that requires applicants for more efficient, practical and consistent Band Licensees; Incumbent 24 GHz authorization of wireless power transfer application of its RF exposure Licensees; Future 24 GHz Licensees; devices to consult with the FCC compliance procedures. The NPRM Broadband Radio Service and Laboratory on measurement procedures seeks to develop a record that will Educational Broadband Service; prior to equipment authorization, but enable the Commission to meet the Television Broadcasting; Radio exempts certain low-power wireless challenges presented by evolving Broadcasting; Auxiliary, Special power transfer devices from this technological advances not resolved in Broadcast, and Other Program requirement (KDB Publication 680106). the previous RF exposure proceedings. Distribution Services; Multichannel These low-power wireless power The NPRM seeks comment on Video Distribution and Data Service; transfer devices include those that expanding the range of frequencies for Amateur Radio Service; Personal Radio operate on frequencies below 1 MHz, at which the RF exposure limits apply; on Services; Public Safety Radio Services; power levels less than 15 watts, only in applying localized exposure limits IMTS Resale Carriers; and Wireless mobile device exposure condition (>20 above 6 GHz in parallel with the Carriers and Service Providers. cm from the body), and only use single localized exposure limits already 31. The proposed rules in the NPRM primary and secondary coils in close established below 6 GHz; on specifying do not duplicate, overlap, or conflict proximity. The Commission seeks the conditions under which and the with other Federal rules. The proposals comment on whether it should adopt a methods by which the limits are being made in the NPRM may require

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additional analysis and mitigation § 1.1310 Radiofrequency radiation average limits. Evaluation with respect activities regarding compliance with the exposure limits. to both the SAR and PD limits in this Commission’s RF exposure limits for (a) Between 3 kHz and 10 MHz section and in § 2.1093 of this chapter, certain facilities, operations, and (inclusive), internal electric field limits as well as the internal electric field transmitters, such as some wireless base as set forth in paragraph (f) of this limits in this section where applicable, stations, particularly those on rooftops, section shall be used to evaluate the shall be done using technically and some antennas at multiple environmental impact of human supported measurement or transmitter sites. In other cases, current exposure to RF radiation as specified in computational methods and exposure analytical requirements are being § 1.1307(b). Specific absorption rate conditions in advance of authorization relaxed. The Commission also sought (SAR) shall be used to evaluate the (licensing or equipment certification) comments on potential alternatives. environmental impact of human and in a manner that facilitates exposure to radiofrequency (RF) independent assessment and, if Statement of Authority for the Actions radiation as specified in § 1.1307(b) appropriate, enforcement. Numerical Proposed within the frequency range of 100 kHz computation of SAR must be supported 32. Sections 1, 4(i), 4(j), 301, 303(r), to 6 GHz (inclusive). Power density (PD) by adequate documentation showing 307, 308, 309, 332(a)(1), 332(c)(7)(B)(iv), shall be used to evaluate the that the numerical method as and 403 of the Communications Act of environmental impact of human implemented in the computational 1934, as amended, 47 U.S.C. 151, 154(i), exposure to radiofrequency (RF) software has been fully validated; in 154(j), 301, 303(r), 307, 308, 309, radiation as specified in § 1.1307(b) for addition, the equipment under test and 332(a)(1), 332(c)(7)(B)(iv), 403; the the frequency range above 6 GHz. exposure conditions must be modeled National Environmental Policy Act of (b) The SAR limits for occupational/ according to protocols established by 1969, 42 U.S.C. 4321, et seq.; and controlled exposure are 0.4 W/kg, as FCC-accepted numerical computation section 704(b) of the averaged over the whole body, and a standards or available FCC procedures Telecommunications Act of 1996, peak spatial-average SAR of 8 W/kg, for the specific computational method. Public Law 104–104. averaged over any 1 gram of tissue (2) The limits for maximum (defined as a tissue volume in the shape permissible exposure (MPE) listed in List of Subjects in 47 CFR Parts 1, 2, of a cube). Exceptions are the parts of Table 1 to paragraph (e)(1) of this and 18 the human body treated as extremities, section, which have been derived from Communications equipment, Radio. such as hands, wrists, feet, ankles, and whole-body SAR limits, may be used Federal Communications Commission. pinnae, where the peak spatial-average instead of whole-body SAR and/or PD SAR limit for occupational/controlled Cecilia Sigmund, limits as set forth in paragraphs (a) exposure is 20 W/kg, averaged over any through (c) of this section to evaluate Federal Register Liaison Officer. 10 grams of tissue (defined as a tissue the environmental impact of human Proposed Rules volume in the shape of a cube). The PD exposure to RF radiation as specified in For the reasons discussed in the limits for occupational/controlled § 1.1307(b), except for portable devices 2 preamble, the Federal Communications exposure are 5 mW/cm , as averaged as defined in 47 CFR 2.1093 as these Commission proposed to amend 47 CFR over the whole body, and a peak spatial- evaluations shall be performed 2 parts 1, 2, and 18 as follows: average PD of 20 mW/cm , averaged according to the SAR and/or PD over any 1 cm2. Exposure may be provisions, and internal electric field PART 1—PRACTICE AND averaged over a time period not to provisions where applicable, in § 2.1093 PROCEDURE exceed 6 minutes to determine of this chapter. compliance with occupational/ (3) The MPE limits listed in Table 1 ■ 1. The authority citation for part 1 controlled SAR limits. to paragraph (e)(1) of this section, the continues to read as follows: (c) The SAR limits for general SAR and/or PD limits as set forth in Authority: 47 U.S. C chs. 2, 5, 9, 13; 28 population/uncontrolled exposure are paragraph (a) through (c) of this section U.S.C. 2461 note, unless otherwise noted. 0.08 W/kg, as averaged over the whole and in § 2.1093 of this chapter, and the body, and a peak spatial-average SAR of internal electric field limits listed in ■ 2. Section 1.1307 is amended by 1.6 W/kg, averaged over any 1 gram of Table 2 to paragraph (f) of this section adding in alphabetical order the tissue (defined as a tissue volume in the are for continuous exposure, that is, for definition of ‘‘Device-based time shape of a cube). Exceptions are the indefinite time periods. Except for averaging’’ to paragraph (b)(2) to read as parts of the human body treated as internal electric field, as described in (f) follows: extremities, such as hands, wrists, feet, of this section, exposure levels higher § 1.1307 Actions that may have a ankles, and pinnae, where the peak than the limits are permitted for shorter significant environmental effect, for which spatial-average SAR limit is 4 W/kg, exposure times, as long as the average Environmental Assessments (EAs) must be averaged over any 10 grams of tissue exposure over a period not to exceed the prepared. (defined as a tissue volume in the shape specified averaging time in Table 1 to * * * * * of a cube). The PD limits for general paragraph (e)(1) of this section or (b) * * * population/uncontrolled exposure are 1 source-based time averaging (2) * * * mW/cm2, as averaged over the whole requirement of §§ 2.1091(d)(2) and Device-based time averaging is where body, and a peak spatial-average PD of 2.1093(d)(5) for general population the instantaneous transmit power and 4 mW/cm2, averaged over any 1 cm2. exposure is less than the limits. Detailed duration of each transmission burst is Exposure may be averaged over a time information on our policies regarding managed by the device over some period not to exceed 30 minutes to procedures for evaluating compliance specified time-averaging period to determine compliance with general with all of these exposure limits can be ensure compliance with the RF population/uncontrolled SAR limits. found in the FCC’s OET Bulletin 65, exposure limits. (d)(1) Evaluation with respect to the ‘‘Evaluating Compliance with FCC * * * * * SAR and/or PD limits in this section Guidelines for Human Exposure to ■ 3. Section 1.1310 is revised to read as must demonstrate compliance with both Radiofrequency Electromagnetic follows: the whole-body and peak spatial- Fields,’’ and in supplements to Bulletin

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65, all available at the FCC’s internet exposure to RF electromagnetic energy. (NCRP) in NCRP Report No. 86, Section website: http://www.fcc.gov/rfsafety and These SAR limits to be used for evaluation 17.4.5. Limits for whole body SAR and peak in the Office of Engineering and in paragraphs (a) through (d) of this section spatial-average SAR are based on are based generally on criteria published by recommendations made in both of these Technology (OET) Laboratory Division the American National Standards Institute documents. Knowledge Database (KDB) (https:// (ANSI) for localized SAR in Section 4.2 of www.fcc.gov/kdb). ANSI/IEEE Std C95.1–1992 These criteria for (e)(1) Table 1 to paragraph (e)(1) sets SAR evaluation are similar to those forth limits for Maximum Permissible Note 1 to Paragraph (d): SAR is a measure recommended by the National Council on Exposure (MPE) to radiofrequency of the rate of energy absorption due to Radiation Protection and Measurements electromagnetic fields.

TABLE 1 TO PARAGRAPH (E)(1)—LIMITS FOR MAXIMUM PERMISSIBLE EXPOSURE (MPE)

Electric field Magnetic field Averaging time Frequency range strength strength Power density 2) (minutes) (MHz) (V/m) (A/m) (mW/cm

(A) Limits for Occupational/Controlled Exposure

0.3–3.0 ...... 614 1.63 *100 6 3.0–30 ...... 1842/f 4.89/f *900/f2 6 30–300 ...... 61.4 0.163 1.0 6 300–1,500 ...... f/300 6 1,500–3,000,000 ...... 5 6

(B) Limits for General Population/Uncontrolled Exposure

0.3–1.34 ...... 614 1.63 *100 30 1.34–30 ...... 824/f 2.19/f *180/f2 30 30–300 ...... 27.5 0.073 0.2 30 300–1,500 ...... f/1500 30 1,500–3,000,000 ...... 1.0 30 f = frequency in MHz. * = Plane-wave equivalent power density, electric and magnetic field strengths are root-mean-square (rms).

Note 2 to Paragraph (E)(1): The MPE limits TABLE 2 TO PARAGRAPH (F)—LIMITS 836, copyright 2010 by the Health Physics in Table 1 to paragraph (e)(1) of this section FOR INTERNAL ELECTRIC FIELD Society and available at http:// are based generally on criteria published by www.icnirp.org. 3. NCRP Report No. 86 ‘‘Biological Effects and Exposure Criteria for the NCRP in NCRP Report No. 86, Sections Internal electric 17.4.1, 17.4.1.1, 17.4.2 and 17.4.3 In the Frequency range (MHz) field strength Radiofrequency Electromagnetic Fields,’’ copyright 1986 by NCRP, Bethesda, Maryland frequency range from 100 MHz to 1500 MHz, (rms) (V/m) 20814. these MPE exposure limits for field strength and power density are also generally based (A) Limits for Occupational/Controlled Exposure on criteria recommended by the ANSI in PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; Section 4.1 of ‘‘ANSI/IEEE Std C95.1–1992. 0.003–10 ...... 270f Peak spatial-average PD limits of 4 mW/cm2 GENERAL RULES AND REGULATIONS for general population/uncontrolled exposure (B) Limits for General Population/ ■ 4. The authority citation for part 2 and 20 mW/cm2 for occupational/controlled Uncontrolled Exposure continues to read as follows: exposure in the frequency range from 6 GHz to 300 GHz are generally based on criteria 0.003–10 ...... 135f Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. recommended at 6 GHz by the ANSI in f = frequency in MHz. Section 4.4 of ANSI/IEEE Std C95.1–1992, ■ 5. Section 2.1091 is amended by and on thermal perception thresholds at Note 3 to paragraph (f): Internal electric revising paragraph (d) to read as frequencies above 6 GHz. field limits in Table 2 to paragraph (f) of this follows: section are generally based on guidelines * * * * * recommended by the International § 2.1091 Radiofrequency radiation Note 3 to paragraph (F): Internal electric Commission on Non-Ionizing Radiation exposure evaluation: mobile devices. field shall be used to evaluate the Protection (ICNIRP) in ‘‘ICNIRP Guidelines * * * * * for Limiting Human Exposure to Time- environmental impact of human exposure to (d)(1) Applications for equipment Varying Electric and Magnetic Fields (1 Hz radiofrequency (RF) radiation as specified in to 100 kHz).’’ authorization of mobile RF sources § 1.1307(b) within the frequency range of 3 subject to routine environmental kHz to 10 MHz (inclusive). Internal electric Note 4 to § 1.1310: Sources cited in this evaluation must contain a statement fields shall be determined as a vector average section. 1. ANSI/IEEE Std C95.1–1992 . confirming compliance with the limits in a contiguous tissue volume of 2 × 2 × 2 ‘‘IEEE Standard for Safety Levels with specified in § 1.1310 of this chapter as cubic millimeters. Internal electric fields Respect to Human Exposure to Radio part of their application. Technical induced by electric or magnetic fields Frequency Electromagnetic Fields, 3 kHz to information showing the basis for this including transient or very short-term peak 300 GHz,’’, copyright 1992 by the Institute of statement must be submitted to the fields shall be regarded as instantaneous Electrical and Electronics Engineers, Inc. (IEEE), New York, New York 10017. 2. Commission upon request. In general, values not to be time-averaged. ‘‘ICNIRP Guidelines for Limiting Human maximum time-averaged power levels Exposure to Time-Varying Electric and must be used for evaluation. All Magnetic Fields (1 Hz to 100 kHz),’’ unlicensed personal communications Published in Volume 99, Issue 6, Pages 818– service (PCS) devices and unlicensed

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NII devices shall be subject to the limits that the numerical method as from the exterior of the device. Visual for general population/uncontrolled implemented in the computational advisories must indicate that the device exposure. software has been fully validated; in is for occupational use only, refer the (2) For purposes of analyzing mobile addition, the equipment under test and user to specific information on RF transmitting devices under the exposure conditions must be modeled exposure, such as that provided in a occupational/controlled criteria according to protocols established by user manual and note that the advisory specified in § 1.1310 of this chapter, FCC-accepted numerical computation and its information is required for FCC time averaging provisions of the limits standards or available FCC procedures RF exposure compliance. Such may be used in conjunction with for the specific computational method. instructional material must provide the maximum duty factor to determine Guidance regarding SAR, PD, internal user with information on how to use the maximum time-averaged exposure electric field, and MPE measurement device in order to ensure compliance levels under normal operating techniques, where applicable, can be with the occupational/controlled conditions. found in the Office of Engineering and exposure limits. A sample of the visual (3) Such time averaging provisions Technology (OET) Laboratory Division advisory, illustrating its location on the based on maximum duty factor may not Knowledge Database (KDB). The staff device, and any instructional material be used in determining exposure levels guidance provided in the KDB does not intended to accompany the device when for devices intended for use by necessarily represent the only marketed, shall be filed with the consumers in general population/ acceptable methods for measuring RF Commission along with the application uncontrolled environments as defined exposure or RF emissions, and is not for equipment authorization. Details of in § 1.1310 of this chapter. However, binding on the Commission or any any special training requirements either ‘‘source-based’’ time averaging, interested party. pertinent to limiting RF exposure based on an inherent property of the RF (3) For purposes of analyzing portable should also be submitted. Holders of source, or ‘‘device-based’’ time RF sources under the occupational/ grants for portable devices to be used in averaging based on an inherent controlled SAR criteria specified in occupational settings are encouraged, capability of the device in direct control § 1.1310 of this chapter, the time but not required, to coordinate with of the RF source, is allowed. averaging provisions of these SAR end-user organizations to ensure * * * * * criteria may be used to determine appropriate RF safety training. maximum time-averaged exposure ■ 6. Section 2.1093 is amended by (6) General population/uncontrolled levels under normal operating revising paragraph (d) to read as exposure limits defined in § 1.1310 of follows: conditions. (4) The time averaging provisions for this chapter apply to portable devices § 2.1093 Radiofrequency radiation occupational/controlled SAR/PD intended for use by consumers or exposure evaluation: portable devices. criteria, based on maximum duty factor, persons who are exposed as a * * * * * may not be used in determining typical consequence of their employment and (d)(1) Applications for equipment exposure levels for portable devices may not be fully aware of the potential authorization of portable RF sources intended for use by consumers, such as for exposure or cannot exercise control subject to routine environmental cellular telephones, that are considered over their exposure. No communication evaluation must contain a statement to operate in general population/ with the consumer including either confirming compliance with the limits uncontrolled environments as defined visual advisories or manual instructions specified in § 1.1310 of this chapter as in § 1.1310 of this chapter. However, will be considered sufficient to allow part of their application. Technical either ‘‘source-based’’ time averaging, consumer portable devices to be information showing the basis for this based on an inherent property of the RF evaluated subject to limits for statement must be submitted to the source, or ‘‘device-based’’ time occupational/controlled exposure Commission upon request. In general, averaging based on an inherent specified in § 1.1310 of this chapter. maximum time-averaged power levels capability of the device in direct control (7) ‘‘Device-based’’ time averaging, must be used for evaluation. All of the RF source, is allowed, as based on an inherent capability of the unlicensed personal communications described in paragraph (d)(6) of this device in direct control of the RF service (PCS) devices and unlicensed section. source(s) within a device, is permitted NII devices shall be subject to the limits (5) Visual advisories (such as labeling, if the protocols established to track the for general population/uncontrolled embossing, or on an equivalent instantaneous transmit power over a exposure. electronic display) on portable devices time averaging period not to exceed the (2) Evaluation of compliance with the designed only for occupational use can values listed in Table 1 for the specific SAR limits can be demonstrated by be used as part of an applicant’s operating frequencies of each either laboratory measurement evidence of the device user’s awareness transmitter have been validated against techniques or by computational of occupational/controlled exposure available FCC procedures for the modeling. The latter must be supported limits. Such visual advisories shall be ‘‘device-based’’ time averaging method by adequate documentation showing legible and clearly visible to the user to be used by the device.

TABLE 1 TO PARAGRAPH (d)—MAXIMUM AVERAGING TIMES FOR DEVICE-BASED TIME AVERAGING

Frequency (GHz):...... <2.9 2.9–7.125 7.125–10.5 10.5–15.4 15.4–24 24–37 37–53 53–95 >95 Time (seconds): ...... 100 49 27 14 7 4 3 2 1

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* * * * * DEPARTMENT OF COMMERCE accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to PART 18—INDUSTRIAL, SCIENTIFIC, National Oceanic and Atmospheric remain anonymous). AND MEDICAL EQUIPMENT Administration FOR FURTHER INFORMATION CONTACT: ■ Emily Keiley, Fishery Policy Analyst, 7. The authority citation for part 18 50 CFR Part 648 continues to read as follows: (978) 281–9116. [Docket No. 200331–0095] Authority: 47 U.S.C. 4, 301, 302, 303, 304, SUPPLEMENTARY INFORMATION: 307. RIN 0648–BJ66 Background ■ 8. Amend § 18.107 by adding Fisheries of the Northeastern United Summer flounder is cooperatively paragraph (k) to read as follows: States; Recreational Management managed by the Mid-Atlantic Fishery § 18.107 Definitions. Measures for the Summer Flounder Management Council (Council) and the Fishery; Fishing Year 2020 Atlantic States Marine Fisheries * * * * * Commission (Commission). The Council (k) Wireless power transfer (WPT) AGENCY: National Marine Fisheries and the Commission’s Summer equipment. A category of ISM Service (NMFS), National Oceanic and Flounder Management Board (Board) equipment which generates and emits Atmospheric Administration (NOAA), meet jointly each year to recommend RF energy for local use by inductive, Commerce. recreational management measures for capacitive or radiative coupling, for ACTION: Proposed rule; request for summer flounder. NMFS must transfer of electromagnetic energy comments. implement coastwide measures or between a power transfer unit (TU) and approve conservation equivalent receiving unit(s) (RU) of a WPT system. SUMMARY: NMFS proposes management measures per 50 CFR 648.102(d) as soon * * * * * measures for the 2020 summer flounder as possible following the Council and ■ 9. Add § 18.123 to read as follows: recreational fishery. The implementing Commission’s recommendation. This regulations for this fishery require action proposes maintaining § 18.123 Transition Provisions for Wireless NMFS to publish recreational measures Power Transfer Equipment. conservation equivalency for 2020, as for the fishing year and to provide an jointly recommended by the Council All wireless power transfer equipment opportunity for public comment. The and Board. that are manufactured, imported, intent of this action is to constrain marketed or installed on or after [DATE recreational catch to the summer Recreational Management Measures 6 MONTHS AFTER EFFECTIVE DATE flounder recreational harvest limit and Process OF FINAL RULE] shall comply with all thereby, prevent overfishing on the The Summer Flounder, Scup, and the provisions for wireless power summer flounder stock. Black Sea Bass Fishery Management transfer devices of this part. DATES: Comments must be received by Plan (FMP) established a Monitoring ■ 10. Amend § 18.203 by adding April 21, 2020. Committee for summer flounder paragraph (d) to read as follows: ADDRESSES: You may submit comments consisting of representatives from the § 18.203 Equipment authorization. on this document, identified by NOAA– Commission, the Council, state marine NMFS–2020–0033, by either of the fishery agencies from Massachusetts to * * * * * following methods: North Carolina, and NMFS. The FMP’s (d) Wireless power transfer equipment Electronic submission: Submit all implementing regulations require the shall be authorized under the electronic public comments via the Monitoring Committee to review Certification procedure prior to use or Federal e-Rulemaking Portal. scientific and other relevant information marketing, in accordance with the • Go to www.regulations.gov/ annually. The objective of this review is relevant sections of part 2, subpart J of #!docketDetail;D=NOAA-NMFS-2020- to recommend management measures to this chapter. 0033, the Council that will constrain landings ■ 11. Amend § 18.207 by adding • Click the ‘‘Comment Now!’’ icon, within the recreational harvest limit paragraph (e)(6) to read as follows: complete the required fields, and (RHL) for the upcoming fishing year. • § 18.207 Technical report. Enter or attach your comments. The FMP limits the choices for the types * * * * * —OR— of measures to minimum and/or maximum fish size, per angler (e) * * * Mail: Submit written comments to Michael Pentony, Regional possession limit, and fishing season. (6) For wireless power transfer Administrator, Greater Atlantic Region, The Council and the Board then equipment, a statement confirming 55 Great Republic Drive, Gloucester, consider the Monitoring Committee’s compliance for radio frequency MA 01930. recommendations and any public radiation exposure in accordance with Instructions: Comments sent by any comment in making their the requirements in 47 CFR 1.1307(b), other method, to any other address or recommendations. The Council 1.1310, 2.1091, and 2.1093, as individual, or received after the end of forwards its recommendations to NMFS appropriate. Applications for equipment the comment period, may not be for review. The Commission similarly authorization of RF sources operating considered by NMFS. All comments adopts recommendations for the states. under this section must contain a received are a part of the public record NMFS is required to review the statement confirming compliance with and will generally be posted for public Council’s recommendations to ensure these requirements. Technical viewing on www.regulations.gov that they are consistent with the target information showing the basis for this without change. All personal identifying specified for summer flounder in the statement must be submitted to the information (e.g., name, address, etc.), FMP and all applicable laws and Commission upon request. confidential business information, or Executive Orders before ultimately * * * * * otherwise sensitive information implementing measures for Federal [FR Doc. 2020–06966 Filed 4–3–20; 8:45 am] submitted voluntarily by the sender will waters. Commission measures are final BILLING CODE 6712–01–P be publicly accessible. NMFS will at the time they are adopted.

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Summer Flounder Conservation measures that are not conservationally maintaining status quo measures if the Equivalency Process equivalent to the coastwide measures. coastwide percent standard error (PSE) The development of conservation around the recreational estimate Conservation equivalency, as equivalency measures happens at both encompasses the following year’s RHL. established by Framework Adjustment 2 the Commission and the individual state This was the case using projections (66 FR 36208; July 11, 2001), allows level. The selection of appropriate data through wave 4, and, therefore, the each state to establish its own and analytical techniques for technical Council and Board did not approve a recreational management measures review of potential state conservation liberalization in measures for 2020. The (possession limits, size limits, and equivalent measures and the process by revised projections using data through fishing seasons) to achieve its state which the Commission evaluates and wave 5 are also within the PSE; management target partitioned by the recommends proposed conservation therefore, no -adjustments are needed. Commission from the coastwide RHL, as equivalent measures are wholly a Based on the Council’s and the long as the combined effect of all of the function of the Commission and its Board’s recommendations, and as part states’ management measures achieves individual member states. Individuals of the conservation equivalency process, the same level of conservation as would seeking information regarding the NMFS also proposes a suite of non- Federal coastwide measures. Framework process to develop specific state or preferred coastwide measures identified Adjustment 6 (71 FR 42315; July 26, regional measures or the Commission by the Council and Board, which would 2006) allowed states to form regions for process for technical evaluation of be in effect should NMFS not approve conservation equivalency in order to proposed measures should contact the conservation equivalency. These minimize differences in regulations for marine fisheries agency in the state of measures are expected to constrain the anglers fishing in adjacent waters. interest, the Commission, or both. overall recreational landings to the 2020 The Council and Board annually Once the states and regions select recreational harvest limit, should recommend that either state- or region- their final 2020 summer flounder conservation equivalency be specific recreational measures be management measures through their disapproved based on the Commission’s developed (conservation equivalency) or respective development, analytical, and recommendation letter. For 2020, non- that coastwide management measures be review processes and submit them to preferred coastwide measures approved implemented to ensure that the RHL the Commission, the Commission will by the Council and Board are a 19-inch will not be exceeded. Even when the conduct further review and evaluation (48.3-cm) minimum fish size, a four-fish Council and Board recommend of the submitted proposals, ultimately per person possession limit, and an conservation equivalency, the Council notifying NMFS as to which proposals open season from May 15–September must specify a set of non-preferred have been approved or disapproved. 15. These measures are identical to the coastwide measures that would apply if NMFS has no overarching authority in non-preferred 2019 coastwide measures. conservation equivalency is not the development of state or Commission The coastwide measures become the approved for use in Federal waters. management measures but is an equal default management measures in the participant along with all the member When conservation equivalency is subsequent fishing year, in this case states in the review process. NMFS recommended, and following 2021, until the joint process establishes neither approves nor implements confirmation by the Commission that either coastwide or conservation individual states’ measures, but retains the proposed state or regional measures equivalency measures for the next year. the final authority either to approve or The 2020 precautionary default developed through its technical and to disapprove the use of conservation measures recommended by the Council policy review processes achieve equivalency in place of the coastwide and Board are identical to those in place conservation equivalency, NMFS may measures in Federal waters. NMFS will for 2019: A 20.0-inch (50.8-cm) waive, for the duration of the fishing publish its determination on 2020 minimum fish size; a two-fish per year, the permit condition found at 50 conservational equivalency as a final person possession limit; and an open CFR 648.4(b), which requires Federal rule in the Federal Register following season of July 1–August 31, 2020. These permit holders to comply with the more review of the Commission’s measures may be assigned by the restrictive management measures when determination and any other public Commission if conservation equivalency state and Federal measures differ. In comment on this proposed rule. is approved but a state or region does such a situation, federally permitted not submit a conservationally equivilent 2020 Summer Flounder Recreational summer flounder charter/party permit proposal. holders and individuals fishing for Management Measures Similar to 2016–2019, the 2020 summer flounder in the exclusive The 2020 summer flounder RHL is management program adopted by the economic zone (EEZ) are subject to the 7.69 million lb (3,488 mt), which is the Commission divides the coastline into recreational fishing measures same as the 2019 RHL. Based on six management regions: (1) implemented by the state in which they preliminary Marine Recreational Massachusetts; (2) Rhode Island; (3) land summer flounder, rather than the Information Program (MRIP) data Connecticut-New York; (4) New Jersey; coastwide measures. Conservation through October 2019 (wave 5) summer (5) Delaware-Virginia; and (6) North equivilency expires at the end of each flounder landings are projected to be Carolina. Each state within a region fishing year (December 31). 7.74 million lb (3,510 mt), which is 1 must implement identical or equivalent In addition, the Council and the percent above the 2019 and 2020 RHL measures (size limits, bag limit, and Board must recommend precautionary of 7.69 million lb (3,488 mt). At the time fishing season length), and the default measures when recommending the Council and Board approved 2020 combination of those measures must be conservation equivalency. The recreational measures, data were only sufficient to constrain landings to the Commission would require adoption of available through wave 4 (August 2019), recreational harvest limit. the precautionary default measures by which resulted in projected harvest of Through the Commission process, any state that either does not submit a 7.06 million lb (3,202 mt), 8 percent states may submit proposals for summer flounder management proposal below the 2020 RHL. The Council and conservationally equivalent measures to the Commission’s Summer Flounder Board consider the uncertainty around that would maintain status quo harvest Technical Committee, or that submits the recreational harvest estimates by levels relative to the preliminary 2019

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recreational harvest. Proposals for This proposed rule is not an number of small entities. Therefore, an conservationally equivalent state Executive Order 13771 regulatory action initial regulatory flexibility analysis is measures will be reviewed by the because this rule is not significant under not required and none has been Board’s Technical Committee in late Executive Order 12866. prepared. March, and the Board will consider final The Chief Counsel for Regulation of There are no new reporting or approval in early April 2020. Following the Department of Commerce certified recordkeeping requirements contained the Board’s consideration of final 2019 to the Chief Counsel for Advocacy of the in any of the alternatives considered for state measures, the Commission must Small Business Administration (SBA) this action. that this proposed rule, if adopted, submit a letter to NMFS stating whether List of Subjects in 50 CFR Part 648 the states have met the conservation would not have a significant economic objectives under Addendum XXXII to impact on a substantial number of small Fisheries, Fishing, Reporting and the Commission’s Interstate FMP and entities. The Council conducted an recordkeeping requirements. that catch is expected to constrain catch evaluation of the potential Dated: March 31, 2020. to the 2020 recreational harvest limit. socioeconomic impacts of the proposed Samuel D. Rauch III, Once that letter is received, NMFS will measures. According to the commercial ownership database, 389 for-hire Deputy Assistant Administrator for be able to publish a final recreational Regulatory Programs, National Marine management measures rule with a affiliate firms generated revenues from Fisheries Service. conservation equivalency determination recreational fishing for various species For the reasons set out in the for 2020. during the 2016–2018 period. All of those business affiliates are categorized preamble, 50 CFR part 648 is proposed Regulatory Corrections as small businesses. The SBA defines a to be amended as follows: small for-hire recreational fishing Additionally, this proposed rule PART 648—FISHERIES OF THE business is defined as a firm with includes a revision to the regulations NORTHEASTERN UNITED STATES implementing the FMP to update text receipts of up to $7.5 million. that is unnecessary, outdated, unclear, Estimating what proportion of the ■ 1. The authority citation for part 648 or otherwise could be improved. NMFS overall revenues for these for-hire firms continues to read as follows: came from fishing activities for an proposes these changes consistent with Authority: 16 U.S.C. 1801 et seq. section 305(d) of the Magnuson-Stevens individual species is not possible. ■ Fishery Conservation and Management Nevertheless, given the popularity of 2. In § 648.102, paragraph (d)(2) is Act (Magnuson-Stevens Act), which summer flounder as a recreational revised to read as follows: species in the Mid-Atlantic and New provides that the Secretary of Commerce § 648.102 Summer flounder specifications. may promulgate regulations necessary England, generated revenues are likely very important for many of these firms * * * * * to ensure that amendments to a fishery (d) * * * management plan (FMP) are carried out at certain times of the year. The 3-year average (2016–2018) combined gross (2) Conservation equivalent measures. in accordance with the FMP and the receipts (all for-hire fishing activity Individual states, or regions formed Magnuson-Stevens Act. The regulation combined) for these small entities was voluntarily by adjacent states (i.e., at § 648.102(d)(2) describes $52,156,152, ranging from less than multi-state conservation equivalency conservationally equivalent measures $10,000 for 119 entities (lowest value regions), may implement different that states or regions would develop for $124) to over $1,000,000 for 8 entities combinations of minimum and/or summer flounder. In a prior action (highest value $2.9 million). maximum fish sizes, possession limits, promulgating regulations for Framework This proposed action would waive and closed seasons that achieve Adjustment 14 (84 FR 65699; November Federal measures in lieu of state equivalent conservation as the 29, 2019), we intended to replace measures designed to reach the 2020 coastwide measures established under ‘‘minimum fish sizes’’ in this regulation harvest limit. The economic impacts of paragraph (e)(1) of this section. Each with ‘‘minimum and/or maximum fish the proposed measures in this action state or multi-state conservation sizes’’ to reflect Framework Adjustment will be affected in part by the specific equivalency region may implement 14’s addition of maximum size limits as set of measures implemented at the state measures by mode or area only if the a management measure available for level for summer flounder conservation proportional standard error of summer flounder recreational fisheries. equivalency. The impacts are likely to recreational landing estimates by mode This change was inadvertently left out vary by state, but are expected to be very or area for that state is less than 30 of the rule. To correct this error this similar to measures that were in place percent. action proposes to replace ‘‘minimum in 2019. The summer flounder * * * * * fish sizes’’ with ‘‘minimum and/or recreational measures under ■ 3. In § 648.107, the introductory text maximum fish sizes.’’ conservation equivalency are expected to paragraph (a) is revised to read as Classification to neither reduce nor increase follows: recreational satisfaction or for-hire Pursuant to section 304(b)(1)(A) of the revenues when compared to 2019. § 648.107 Conservation equivalent Magnuson-Stevens Act, the Assistant Demand for for-hire trips is expected to measures for the summer flounder fishery. Administrator has determined that this remain approximately the same as in (a) The Regional Administrator has proposed rule is consistent with the 2019. Thus, market demand is expected determined that the recreational fishing Summer Flounder, Scup, and Black Sea to be similar in 2020, although this is measures proposed to be implemented Bass FMP, other provisions of the likely to vary by state depending on by the states of Maine through North Magnuson-Stevens Act, and other each state’s current measures and how Carolina for 2020 are the conservation applicable law, subject to further they choose to modify them in 2020. equivalent of the season, size limits, and consideration after public comment. Because the 2020 measures are possession limit prescribed in This proposed rule has been expected to be mostly identical to 2019, §§ 648.104(b), 648.105, and 648.106. determined to be not significant for this rule will not have a significant This determination is based on a purposes of Executive Order 12866. economic impact on a substantial recommendation from the Summer

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Flounder Board of the Atlantic States generally be posted for public viewing are proposing to amend the regulations Marine Fisheries Commission. on www.regulations.gov without change. in § 648.14, § 648.81, § 648.82, and * * * * * All personal identifying information § 648.85 to remove references to the CAI [FR Doc. 2020–07061 Filed 4–3–20; 8:45 am] (e.g., name, address, etc.), confidential HGH SAP and to make a minor BILLING CODE 3510–22–P business information, or otherwise correction to a cross-reference. sensitive information submitted This action would not change the voluntarily by the sender will be allocation to the Incidental Catch Total DEPARTMENT OF COMMERCE publicly accessible. We will accept Allowable Catch (TAC) defined in anonymous comments (enter ‘‘N/A’’ in § 648.85(b)(5)(ii). Such a change would National Oceanic and Atmospheric the required fields if you wish to remain require a substantive change to prior Administration anonymous). Comments sent by any New England Fishery Management other method, to any other address or Council allocation decisions, and it is 50 CFR Part 648 individual, or received after the end of more appropriate for the New England [Docket No. 200331–0094] the comment period, may not be Fishery Management Council to considered by us. consider these changes in a future RIN 0648–BI28 FOR FURTHER INFORMATION CONTACT: action. During the biennial Magnuson-Stevens Act Provisions; Spencer Talmage, Fishery Management specifications process, 2 percent of the Fisheries of the Northeastern United Specialist, phone: (978) 281–9232; Georges Bank (GB) cod sub-Annual States; Northeast Multispecies email: [email protected]. Catch Limit for the common pool is Fishery; Removal of Regulations SUPPLEMENTARY INFORMATION: designated as the Incidental Catch TAC. The Incidental Catch TAC is split Implementing the Closed Area I Hook Background Gear Haddock Special Access between the Regular B Day-at-Sea Program NMFS published an interim final rule Program, the Eastern United States/ (69 FR 67779; November 19, 2004), Canada Haddock SAP, and the CAI HGH AGENCY: National Marine Fisheries implementing measures approved under SAP. The Incidental Catch TAC is a cap Service (NMFS), National Oceanic and Framework Adjustment 40–A to the on catch of GB Cod in these programs, Atmospheric Administration (NOAA), Northeast Multispecies Fishery and does not affect the overall amount Commerce. Management Plan (FMP). Among other of GB cod available to vessels fishing ACTION: Proposed rule; request for measures, Framework 40–A created the outside of these programs in the comments. Closed Area I Hook Gear Haddock common pool. Special Access Program (CAI HGH SAP) Because no changes are being made to SUMMARY: We propose to remove to provide vessels with additional this process, 16 percent of the Incidental regulations that implement the Closed opportunities in Closed Area I to target Catch TAC will continue to be allocated Area I Hook Gear Haddock Special healthy stocks. The CAI HGH SAP to the CAI HGH SAP during each Access Program. The Omnibus Essential allowed vessels to access the groundfish biennial specifications process. This Fish Habitat Amendment 2 eliminated year-round Closed Area I if they does not affect the quota available to the the year-round Closed Area I, rendering followed certain gear and other common pool groundfish fishery. The the Closed Area I Hook Gear Haddock restrictions. New England Fishery Management Special Access Program unnecessary. The Omnibus Essential Fish Habitat Council may choose to take further Eliminating the Closed Area I Hook Gear Amendment 2 (83 FR 15240, April 9, action on the allocation of the Incidental Haddock Special Access Program would 2018) eliminated the year-round closure Catch TAC. reduce confusion and inconsistency of Closed Area I. The area once covered On December 17, 2019, NMFS with other regulations. by Closed Area I is now open to vessels published a final rule (84 FR 68798) DATES: Written comments must be fishing with hook gear, with the prohibiting gillnet fishing in the received on or before May 6, 2020. exception of the Georges Bank Nantucket Lightship and Closed Area I ADDRESSES: You may submit comments, Dedicated Habitat Research Area and Closure Areas, in order to comply with identified by NOAA–NMFS–2019–0104, the seasonal Closed Area I North a Federal Court order. That rule only by either of the following methods: Closure (February 1—April 15). The CAI affects vessels fishing with gillnet gear, • Electronic Submission: Submit all HGH SAP does not overlap with either and vessels fishing with hook gear may electronic public comments via the the Georges Bank Dedicated Habitat still fish in Closed Area I without Federal eRulemaking Portal. Research Area or Closed Area I North declaring into the CAI HGH SAP. This 1. Go to www.regulations.gov/ Closure, and as such does not allow any action to eliminate the CAI HGH SAP #!docketDetail;D=NOAA-NMFS-2020- activity otherwise prohibited by these was not affected by the prohibition of 0026; areas. As a result, the CAI HGH SAP is gillnet fishing in Closed Area I. 2. Click the ‘‘Comment Now!’’ icon now unnecessary, redundant, and Classification and complete the required fields; and inconsistent with the changes made by 3. Enter or attach your comments. the Omnibus Essential Fish Habitat The National Marine Fisheries Service • Mail: Submit written comments to Amendment 2 because the program (NMFS) Assistant Administrator has Michael Pentony, Regional provides special access to an area that made a preliminary determination that Administrator, National Marine is already open to the groundfish fleet this proposed rule is consistent with Fisheries Service, 55 Great Republic in the time that the SAP is effective. section 305(d) and other provisions of Drive, Gloucester, MA 01930. Mark the Under section 305(d) of the the Magnuson-Stevens Act, and other outside of the envelope, ‘‘Comments on Magnuson-Stevens Fishery applicable law. In making the final the Closed Area I Hook Gear Haddock Conservation and Management Act, the determination, we will consider the SAP.’’ Regional Administrator is authorized to data, views, and comments received Instructions: All comments received make changes to regulations that are during the public comment period, that were timely and properly submitted necessary to carry out any fishery subject to further consideration after are a part of the public record and will management plan or amendment. We public comment.

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This proposed rule has been This proposed rule contains a § 648.85(a)(3)(iv)(D) or (E), unless determined to be not significant for collection-of-information requirement fishing in the Closed Area II Yellowtail purposes of Executive Order (E.O.) subject to review and approval by the Flounder/Haddock SAP specified in 12866. This proposed rule is expected to Office of Management and Budget § 648.85(b)(3) or the Eastern U.S./ be an Executive Order 13771 (OMB) under the PRA. This requirement Canada Haddock SAP Program specified deregulatory action. has been submitted to OMB for approval in § 648.85(b)(7). The Chief Counsel for Regulation of under Control Number 0648–0202. (12) * * * the Department of Commerce certified (i) * * * to the Chief Counsel for Advocacy of the List of Subjects in 50 CFR Part 648 (B) If a vessel is fishing under a Small Business Administration that this Fisheries, Fishing, Recordkeeping and Category B DAS in the Closed Area II proposed rule, if adopted, would not reporting requirements. Yellowtail Flounder SAP specified in have a significant economic impact on Dated: March 31, 2020. § 648.85(b)(3), the Regular B DAS a substantial number of small entities. Samuel D. Rauch III, Program specified in § 648.85(b)(6), or The factual determination for this the Eastern U.S./Canada Haddock SAP Deputy Assistant Administrator for determination follows. specified in § 648.85(b)(7), remove any For purposes of the Regulatory Regulatory Programs, National Marine Fisheries Service. fish caught with any gear, including Flexibility Act, NMFS established a dumping the contents of a net, except small business size standard for For the reasons stated in the on board the vessel. businesses, including their affiliates, preamble, 50 CFR part 648 is proposed (ii) General restrictions for vessel and whose primary industry is commercial to be amended as follows: operator permit holders. Discard legal- fishing (see 50 CFR 200.2). A business sized NE regulated multispecies, ocean primarily engaged in commercial fishing PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES pout, or Atlantic halibut while fishing (NAICS code 11411) is classified as a under a SAP, as described in small business if it is independently ■ 1. The authority citation for part 648 §§ 648.85(b)(3)(xi) or 648.85(b)(7)(v)(I). owned and operated, is not dominant in continues to read as follows: * * * * * its field of operation (including its ■ Authority: 16 U.S.C. 1801 et seq. 3. In § 648.81, revise paragraph affiliates), and has combined annual (a)(5)(ii)(C) to read as follows: receipts not in excess of $11 million for ■ 2. In § 648.14: all its affiliated operations worldwide. ■ a. Revise paragraphs (k)(6)(ii)(B), § 648.81 NE multispecies year-round and The determination of whether the entity (11)(i)(A)(4), (11)(vi), (12)(i)(B), and seasonal closed areas. is large or small is based on the average paragraph (12)(ii); (a) * * * annual revenue for the most recent 3 ■ b. Remove paragraph (k)(12)(vi); and (5) * * * years for which data are available (in ■ c. Redesignate paragraph (k)(12)(vii) (ii) * * * this case, from 2016 through 2018). as (vi). (C) Fishing in the CA II Yellowtail To participate in the CAI HGH SAP, The revisions read as follows: Flounder/Haddock SAP or the Eastern vessels must possess a limited access U.S./Canada Haddock SAP Program as multispecies permit (categories A, D, E, § 648.14 Prohibitions. specified in § 648.85(b)(3)(ii) or or F). Therefore, entities holding one or * * * * * (b)(7)(ii), respectively. (k) * * * more limited access multispecies * * * * * permits are the entities that have the (6) * * * ■ 4. In § 648.82, by revise paragraph (ii) * * * potential to be directly impacted by this (e)(3) to read as follows: action. According to the commercial (B) Hook gear. Fail to comply with the database, there were 557 entities that restrictions on fishing and gear specified § 648.82 Effort-control program for NE had at least one of the relevant limited in § 648.80(a)(3)(v), (a)(4)(v), (b)(2)(v), multispecies limited access vessels. access permits during 2018, the last year and (c)(2)(iv) if the vessel has been * * * * * for which affiliation information is issued a limited access NE multispecies (e) * * * available. Of these entities, 81 did not permit and fishes with hook gear in (3) Regular B DAS Program 24-hr have revenues. There were 476 entities areas specified in § 648.80(a), (b), or (c). clock. For a vessel electing to fish in the that reported revenues during 2018. Of * * * * * Regular B DAS Program, as specified at these, 6 were classified as large and 470 (11) * * * § 648.85(b)(6), that remains fishing were classified as small businesses. (i) * * * under a Regular B DAS for the entire A vessel that declares into the CAI (A) * * * fishing trip (without a DAS flip), DAS HGH SAP is subject to additional (4) If fishing both outside and inside shall accrue at the rate of 1 full DAS for notification, reporting requirements and of the areas specified for a SAP under each calendar day, or part of a calendar gear modification requirements, but § 648.85(b)(3) and (7), under a NE day fished. For example, a vessel that with the elimination of Closed Area I on multispecies DAS in the Eastern U.S./ fished on 1 calendar day from 6 a.m. to April 19, 2018, the CAI HGH SAP no Canada Area specified in § 648.85(a)(1), 10 p.m. would be charged 24 hr of longer provides special access to any fail to abide by the DAS and possession Regular B DAS, not 16 hr; a vessel that closed areas. There is no longer a restrictions under § 648.85(b)(7)(v)(A)(2) left on a trip at 11 p.m. on the first beneficial reason to participate in the through (4). calendar day and returned at 10 p.m. on program, and no vessels participated in * * * * * the second calendar day would be fishing year 2018. As a result, the (vi) Closure of the U.S./Canada Area charged 48 hr of Regular B DAS instead proposed elimination of the CAI HGH for all persons. If fishing under a NE of 23 hr, because the fishing trip would SAP would not have a significant multispecies DAS or on a sector trip, have spanned 2 calendar days. For the economic impact on a substantial declare into, enter, or fish in the Eastern purpose of calculating trip limits number of small entities. As a result, an U.S./Canada Area specified in specified under § 648.86, the amount of initial regulatory flexibility analysis is § 648.85(a)(1) if the area is closed under DAS deducted from a vessel’s DAS not required and none has been the authority of the Regional allocation shall determine the amount of prepared. Administrator as described in fish the vessel can land legally. For a

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vessel electing to fish in the Regular B accrual restrictions of paragraph (n)(1) § 648.85 [Amended] DAS Program, as specified at of this section for the entire trip. For ■ 5. Amend § 648.85 by: § 648.85(b)(6), while also fishing in an vessels electing to fish in both the area subject to differential DAS counting Regular B DAS Program, as specified in ■ a. Remove paragraph (b)(7); and pursuant to paragraph (n)(1)(i) of this § 648.85(b)(6), and in the Eastern U.S./ ■ b. Redesignate paragraph (b)(8) as section, Category B DAS shall accrue at Canada Area, as specified in § 648.85(a), (b)(7). the rate described in this paragraph DAS counting will begin and end [FR Doc. 2020–07070 Filed 4–3–20; 8:45 am] according to the DAS rules specified in (e)(3), unless the vessel flips to a BILLING CODE 3510–22–P Category A DAS, in which case the § 648.10(e)(5)(iv). vessel is subject to the pertinent DAS * * * * *

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Notices Federal Register Vol. 85, No. 66

Monday, April 6, 2020

This section of the FEDERAL REGISTER displays a currently valid OMB control Description of Respondents: Private contains documents other than rules or number. and Commercial Animal Breeders, and proposed rules that are applicable to the Veterinarians. Animal and Plant Health Inspection public. Notices of hearings and investigations, Number of Respondents: 50. Service committee meetings, agency decisions and Frequency of Responses: Reporting: rulings, delegations of authority, filing of Title: Interstate Movement of Certain petitions and applications and agency On occasion. statements of organization and functions are Land Tortoises. Total Burden Hours: 375. OMB Control Number: 0579–0156. examples of documents appearing in this Ruth Brown, section. Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is Departmental Information Collection the primary Federal law governing the Clearance Officer. DEPARTMENT OF AGRICULTURE protection of animal health. The law [FR Doc. 2020–07158 Filed 4–3–20; 8:45 am] gives the Secretary of Agriculture broad BILLING CODE 3410–34–P Submission for OMB Review; authority to prevent, control, and Comment Request eliminate domestic diseases such as DEPARTMENT OF AGRICULTURE April 1, 2020. tuberculosis, as well as to take actions The Department of Agriculture has to prevent and to manage exotic Animal and Plant Health Inspection submitted the following information diseases such as heartwater disease. The Service collection requirement(s) to OMB for regulations in 9 CFR part 93 prohibit the [Docket No. APHIS–2020–0002] review and clearance under the importation of the leopard tortoise, the African spurred tortoise, and the Bell’s Paperwork Reduction Act of 1995, Notice of Request for Revision to and Public Law 104–13. Comments are hingeback tortoise to prevent the introduction and spread of exotic ticks Extension of Approval of an requested regarding: Whether the Information Collection; Importation of collection of information is necessary known to be vectors of heartwater disease, an acute, infectious disease of Beef and Ovine Meat From Uruguay for the proper performance of the and Beef From Argentina and Brazil functions of the agency, including cattle and other ruminants. The whether the information will have regulations in 9 CFR part 74 prohibit the AGENCY: Animal and Plant Health practical utility; the accuracy of the interstate movement of those tortoises Inspection Service, USDA. that are already in the United States agency’s estimate of burden including ACTION: Revision to and extension of unless the tortoises are accompanied by the validity of the methodology and approval of an information collection; a health certificate or certificate of assumptions used; ways to enhance the comment request. quality, utility and clarity of the veterinary inspection. information to be collected; and ways to Need and Use of the Information: SUMMARY: In accordance with the minimize the burden of the collection of APHIS will collect information to Paperwork Reduction Act of 1995, this information on those who are to ensure that the interstate movement of notice announces the Animal and Plant respond, including through the use of these leopard, African spurred, and Health Inspection Service’s intention to appropriate automated, electronic, Bell’s hingeback tortoises poses no risk request a revision to and extension of mechanical, or other technological of spreading exotic ticks within the approval of an information collection collection techniques or other forms of United States. Owners and veterinarians associated with regulations for the information technology. are required to provide the following importation of beef and ovine meat from Comments regarding this information information to Federal or accredited Uruguay and beef from Argentina and collection received by May 6, 2020 will veterinarians for completion of the Brazil. be considered. Written comments and health certificate: Name, address, and DATES: We will consider all comments recommendations for the proposed telephone number of the owner; that we receive on or before June 5, information collection should be information identifying the animal such 2020. submitted within 30 days of the as collar or tattoo number; breed; age; publication of this notice on the sex; color; distinctive marks; ADDRESSES: You may submit comments following website www.reginfo.gov/ vaccination history; and certifications by either of the following methods: public/do/PRAMain. Find this from both the owner and the • Federal eRulemaking Portal: Go to particular information collection by veterinarian that all information is true http://www.regulations.gov/ selecting ‘‘Currently under 30-day and accurate. The collected information #!docketDetail;D=APHIS-2020-0002. Review—Open for Public Comments’’ or is used for the purposes of identifying • Postal Mail/Commercial Delivery: by using the search function. each specific tortoise and documenting Send your comment to Docket No. An agency may not conduct or the State of its health so that the animals APHIS–2020–0002, Regulatory Analysis sponsor a collection of information can be transported across State and and Development, PPD, APHIS, Station unless the collection of information national boundaries. 3A–03.8, 4700 River Road, Unit 118, displays a currently valid OMB control If the information is not collected Riverdale, MD 20737–1238. number and the agency informs APHIS would be forced to ban the Supporting documents and any potential persons who are to respond to interstate movement of all leopard, comments we receive on this docket the collection of information that such African spurred, and Bell’s hingeback may be viewed at http:// persons are not required to respond to tortoises. This would economically www.regulations.gov/#!docketDetail; the collection of information unless it harm U.S. tortoise breeders. D=APHIS-2020-0002 or in our reading

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room, which is located in room 1141 of United States to prevent the Done in Washington, DC, this 1st day of the USDA South Building, 14th Street introduction of FMD. These conditions April 2020. and Independence Avenue SW, involve information collection activities Mark Davidson, Washington, DC. Normal reading room such as the requirement that APHIS Acting Administrator, Animal and Plant hours are 8 a.m. to 4:30 p.m., Monday collect, for each shipment, certification Health Inspection Service. through Friday, except holidays. To be from an authorized veterinary official of [FR Doc. 2020–07146 Filed 4–3–20; 8:45 am] sure someone is there to help you, the country of export that the conditions BILLING CODE 3410–34–P please call (202) 799–7039 before in § 94.29 have been met. For some of coming. these conditions to be met, the facility FOR FURTHER INFORMATION CONTACT: For in which the bovines and sheep are COMMISSION ON CIVIL RIGHTS information on the regulations for the slaughtered must allow periodic on-site Notice of Public Meetings of the importation of beef and ovine meat from evaluation and subsequent inspection of Virginia Advisory Committee to the Uruguay and beef from Argentina and its facilities. In addition, this collection U.S. Commission on Civil Rights. Brazil, contact Dr. Lynette Williams, includes animal identification and Senior Staff Veterinarian, Animal testing of select lambs. AGENCY: U.S. Commission on Civil Product Imports, Strategy and Policy, We are asking the Office of Rights. Management and Budget to approve our VS, APHIS, 4700 River Road, Unit 40, ACTION: Announcement of meeting. Riverdale, MD 20737–1236; (301) 851– use of these information collection 3300 option 1. For more detailed activities, as described, for an additional SUMMARY: Notice is hereby given, information on the information 3 years. pursuant to the provisions of the rules The purpose of this notice is to solicit collection process, contact Mr. Joseph and regulations of the U.S. Commission comments from the public (as well as Moxey, APHIS’ Information Collection on Civil Rights (Commission) and the affected agencies) concerning our Coordinator, at (301) 851–2483. Federal Advisory Committee Act that information collection. These comments the Virginia Advisory Committee SUPPLEMENTARY INFORMATION: will help us: Title: Importation of Beef and Ovine (Committee) will hold a meeting on (1) Evaluate whether the collection of Friday May 1, 2020 at 3:00 p.m. Eastern Meat From Uruguay and Beef From information is necessary for the proper Argentina and Brazil. time. The Committee will discuss civil performance of the functions of the rights concerns in the state. OMB Control Number: 0579–0372. Agency, including whether the Type of Request: Revision to and DATES: The meeting will take place on information will have practical utility; Friday May 1, 2020 at 3:00 p.m. Eastern extension of approval of an information (2) Evaluate the accuracy of our collection. time. estimate of the burden of the collection Public Call Information: Dial: 888– Abstract: The Animal Health of information, including the validity of Protection Act (7 U.S.C. 8301 et seq.), 204–4368, Conference ID: 6333096. the methodology and assumptions used; FOR FURTHER INFORMATION CONTACT: authorizes the Secretary of Agriculture (3) Enhance the quality, utility, and Melissa Wojnaroski, DFO, at to, among other things, prohibit or clarity of the information to be restrict the importation and interstate [email protected] or 312–353– collected; and 8311. movement of animals and animal (4) Minimize the burden of the products into the United States to collection of information on those who SUPPLEMENTARY INFORMATION: Members prevent the introduction of animal are to respond, through use, as of the public can listen to these diseases and pests. The regulations for appropriate, of automated, electronic, discussions. Committee meetings are the importation of animals and animal mechanical, and other collection available to the public through the products are contained in 9 CFR parts technologies; e.g., permitting electronic above call in number. Any interested 92 through 98. submission of responses. member of the public may call this The regulations in part 94 provide the Estimate of burden: The public number and listen to the meeting. An requirements for the importation of burden for this collection of information open comment period will be provided specified animals and animal products is estimated to average 0.5 hours per to allow members of the public to make to prevent the introduction into the response. a statement as time allows. The United States of various animal Respondents: Authorized veterinary conference call operator will ask callers diseases, including foot-and-mouth officials employed by the governments to identify themselves, the organization disease (FMD). Among other things, the of Argentina, Brazil, and Uruguay and they are affiliated with (if any), and an regulations in § 94.1 place certain managers of foreign facilities that email address prior to placing callers restrictions on beef and ovine meat process meat and meat products. into the conference room. Callers can exported to the United States in Estimated annual number of expect to incur regular charges for calls accordance with § 94.29, when the beef respondents: 6,019. they initiate over wireless lines, or ovine meat enters a port or otherwise Estimated annual number of according to their wireless plan. The transits a region where FMD exists responses per respondent: 3.2. Commission will not refund any during shipment to the United States. Estimated annual number of incurred charges. Callers will incur no An authorized official of the exporting responses: 19,458. charge for calls they initiate over land- region must provide the Animal and Estimated total annual burden on line connections to the toll-free Plant Health Inspection Service (APHIS) respondents: 10,045 hours. (Due to telephone number. Persons with hearing with certification that specific averaging, the total annual burden hours impairments may also follow the conditions for importation listed in may not equal the product of the annual proceedings by first calling the Federal § 94.1 have been met. number of responses multiplied by the Relay Service at 1–800–877–8339 and Section 94.29 places certain reporting burden per response.) providing the Service with the restrictions on the importation of beef All responses to this notice will be conference call number and conference and ovine meat from Uruguay and fresh summarized and included in the request ID number. (chilled or frozen) beef from certain for OMB approval. All comments will Members of the public are also regions in Argentina and Brazil into the also become a matter of public record. entitled to submit written comments;

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the comments must be received in the Industry and Security, 1401 proposed collection of information; (c) regional office within 30 days following Constitution Avenue, Suite 2099B, ways to enhance the quality, utility, and the meeting. Written comments may be Washington, DC 20233 (or via the clarity of the information to be mailed to the Regional Programs Unit, internet at [email protected]). All collected; and (d) ways to minimize the U.S. Commission on Civil Rights, 230 S. comments received are part of the burden of the collection of information Dearborn, Suite 2120, Chicago, IL public record. Comments will generally on respondents, including through the 60604. They may also be faxed to the be posted without change. All use of automated collection techniques Commission at (312) 353–8324, or Personally Identifiable Information (for or other forms of information emailed to Corrine Sanders at csanders@ example, name and address) voluntarily technology. usccr.gov. Persons who desire submitted by the commenter may be Comments submitted in response to additional information may contact the publicly accessible. Do not submit this notice will be summarized and/or Regional Programs Unit at (312) 353– Confidential Business Information or included in the request for OMB 8311. otherwise sensitive or protected approval of this information collection; Records generated from this meeting information. You may submit they also will become a matter of public may be inspected and reproduced at the attachments to electronic comments in record. Regional Programs Unit Office, as they Microsoft Word, Excel, or Adobe PDF Dated: March 23, 2020. become available, both before and after file formats. Sheleen Dumas, the meeting. Records of the meeting will SUPPLEMENTARY INFORMATION: Department PRA Clearance Officer, Office of be available via www.facadatabase.gov the Chief Information Officer, Commerce under the Commission on Civil Rights, I. Abstract Department. Virginia Advisory Committee link. This collection is necessary under [FR Doc. 2020–07136 Filed 4–3–20; 8:45 am] Persons interested in the work of this Sections 760 and 762.6(a) of the Export BILLING CODE 3510–07–P Committee are directed to the Administration Regulations (EAR). The Commission’s website, http:// five-year retention requirement www.usccr.gov, or may contact the corresponds with the statute of DEPARTMENT OF COMMERCE Regional Programs Unit at the above limitations for violations and is email or street address. necessary to preserve potential evidence International Trade Administration for investigations. All parties involved Agenda [A–570–929] in the export, reexport, transshipment or Welcome and Roll Call diversion of items subject to the EAR Small Diameter Graphite Electrodes Civil Rights in Virginia and the U.S. party involved in the From the People’s Republic of China: Future Plans and Actions export transaction involving a Continuation of Antidumping Duty Public Comment reportable boycott request are required Order Adjournment to maintain records of these activities AGENCY: Enforcement and Compliance, for a period of five years. The frequency Dated: March 31, 2020. International Trade Administration, depends upon how often each entity is David Mussatt, Department of Commerce. Supervisory Chief, Regional Programs Unit. involved in an export transaction or one involving a reportable boycott request. SUMMARY: As a result of the [FR Doc. 2020–07072 Filed 4–3–20; 8:45 am] determinations by the Department of BILLING CODE P II. Method of Collection Commerce (Commerce) and the Submitted on paper or electronically. International Trade Commission (ITC) that revocation of the antidumping duty DEPARTMENT OF COMMERCE III. Data (AD) order on small diameter graphite OMB Control Number: 0694–0096. electrodes (SDGEs) from the People’s Bureau of Industry and Security Form Number(s): N/A. Republic of China (China) would likely Type of Review: Regular submission. lead to a continuation or recurrence of Proposed Information Collection; Affected Public: Business or other for- dumping and material injury to an Comment Request; Five-Year Records profit organizations. industry in the United States, Retention Requirement for Export Estimated Number of Respondents: Commerce is publishing a notice of Transactions and Boycott Actions 100,000. continuation of the AD order. AGENCY: Bureau of Industry and Estimated Time per Response: 1 DATES: Applicable April 6, 2020. Security, Department of Commerce. second to 1 minute. FOR FURTHER INFORMATION: Jinny Ahn, Estimated Total Annual Burden AD/CVD Operations, Office VIII, ACTION: Notice. Hours: 258. Enforcement and Compliance, Estimated Total Annual Cost to SUMMARY: The Department of International Trade Administration, Commerce, as part of its continuing Public: $0. U.S. Department of Commerce, 1401 Respondent’s Obligation: Voluntary. effort to reduce paperwork and Constitution Avenue NW, Washington, Legal Authority: Export Control respondent burden, invites the general DC 20230; telephone: (202) 482–0339. Reform Act 4812(b) and 4814(b)(1)(B). public and other Federal agencies to SUPPLEMENTARY INFORMATION: take this opportunity to comment on IV. Request for Comments Background proposed and/or continuing information Comments are invited on: (a) Whether On May 1, 2019, Commerce initiated collections, as required by the the proposed collection of information Paperwork Reduction Act of 1995. a five-year sunset review of the AD is necessary for the proper performance order on SDGEs from China, pursuant to DATES: To ensure consideration, written of the functions of the agency, including section 751(c) of the Tariff Act of 1930, comments must be submitted on or whether the information shall have as amended (the Act).1 As a result of its before June 5, 2020. practical utility; (b) the accuracy of the ADDRESSES: Direct all written comments agency’s estimate of the burden 1 See Initiation of Five-Year (Sunset) Review, 84 to Mark Crace, IC Liaison, Bureau of (including hours and cost) of the FR 18477 (May 1, 2019).

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review, Commerce determined that and 8545.11.0020.6 The HTSUS DEPARTMENT OF COMMERCE revocation of the AD order on SDGEs numbers are provided for convenience from China would likely lead to a and customs purposes, but the written International Trade Administration continuation or recurrence of dumping description of the scope is dispositive. [C–570–921] and, therefore, notified the ITC of the Continuation of the Order magnitude of the margins likely to Lightweight Thermal Paper From the prevail should the order be revoked.2 As a result of the determinations by People’s Republic of China: On March 27, 2020, the ITC published Commerce and the ITC that revocation Rescission of Countervailing Duty its determination, pursuant to section Administrative Review: 2018 751(c) of the Act, that revocation of the of the AD order would likely lead to a AD order on SDGEs from China would continuation or recurrence of dumping AGENCY: Enforcement and Compliance, likely lead to a continuation or and material injury to an industry in the International Trade Administration, recurrence of material injury to an United States, pursuant to section Department of Commerce. industry in the United States within a 751(d)(2) of the Act, Commerce hereby SUMMARY: The Department of Commerce reasonably foreseeable time.3 orders the continuation of the AD order (Commerce) is rescinding the on SDGEs from China. U.S. Customs Scope of the Order administrative review of the and Border Protection will continue to countervailing duty (CVD) order on The merchandise covered by the order collect AD cash deposits at the rates in certain lightweight thermal paper includes all small diameter graphite effect at the time of entry for all imports (thermal paper) from the People’s electrodes of any length, whether or not of subject merchandise. The effective Republic of China (China) for the period finished, of a kind used in furnaces, date of the continuation of the order of review (POR) January 1, 2018 through with a nominal or actual diameter of will be the date of publication in the December 31, 2018, based on the timely 400 millimeters (16 inches) or less, and Federal Register of this notice of withdrawal of the requests for review. whether or not attached to a graphite continuation. Pursuant to section DATES: Applicable April 6, 2020. pin joining system or any other type of 751(c)(2) of the Act, Commerce intends joining system or hardware. The FOR FURTHER INFORMATION CONTACT: merchandise covered by the order also to initiate the next five-year review of Dusten Hom, AD/CVD Operations, includes graphite pin joining systems the order not later than 30 days prior to Office I, Enforcement and Compliance, for small diameter graphite electrodes, the fifth anniversary of the effective date International Trade Administration, of any length, whether or not finished, of continuation. U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, of a kind used in furnaces, and whether Notification to Interested Parties or not the graphite pin joining system is DC 20230; telephone: (202) 482–5075. attached to, sold with, or sold separately This five-year sunset review and this SUPPLMENTARY INFORMATION: from, the small diameter graphite notice are in accordance with section Background electrodes. Small diameter graphite 751(c) of the Act and published electrodes and graphite pin joining pursuant to section 777(i)(1) of the Act. On November 1, 2019, Commerce systems for small diameter graphite published a notice of opportunity to electrodes are most commonly used in Dated: March 31, 2020. request an administrative review of the primary melting, ladle metallurgy, and Jeffrey I. Kessler, CVD order on thermal paper from China specialty furnace applications in Assistant Secretary for Enforcement and for the POR of January 1, 2018, through industries including foundries, smelters, Compliance. December 31, 2018.1 Commerce and steel refining operations. Small [FR Doc. 2020–07150 Filed 4–3–20; 8:45 am] received a timely-filed request from diameter graphite electrodes and BILLING CODE 3510–DS–P Appvion, Inc. (Appvion) for an graphite pin joining systems for small administrative review of Sailing diameter graphite electrodes that are International Limited, Shenzhen subject to the order are currently Formers Printing Co., Ltd., Suzhou classified under the Harmonized Tariff of the Antidumping Duty Order, 77 FR 47596 Xiandai Paper Production Co., Dong Schedule of the United States (HTSUS) (August 9, 2012) (first circumvention Nam Pack, Gold Shengpu Paper 4 5 determination). The products covered by the first subheadings 8545.11.0010, 3801.10, circumvention determination are graphite Products (Suzhou), Xiamen ATP electrodes (or graphite pin joining systems) that Technology Co., Ltd., Gold Huasheng 2 See Small Diameter Graphite Electrodes From were 1) produced by UK Carbon and Graphite Co., Paper (Suzhou IP) Co., Henan Jianghe the People’s Republic of China: Final Results of Ltd. (UKCG) from China-manufactured artificial/ Paper Co. Ltd., Wuxi Honglinxin Expedited Second Sunset Review of the synthetic graphite forms, of a size and shape (e.g., Antidumping Duty Order, 84 FR 44852 (August 27, International Trade, Shenzhen HDB blanks, rods, cylinders, billets, blocks, etc.), 2) 2019). Network Technology, Jinan Fuzhi Paper which required additional machining processes 3 See Small Diameter Graphite Electrodes from Co., Ltd., Avery Dennison (China) Co., (i.e., tooling and shaping) that UKCG performed in China: Determination, 85 FR 17363 (March 27, Ltd., Pax Technology Limited, 2020); see also Small Diameter Graphite Electrodes the United Kingdom (UK), and 3) were re-exported from China: Investigation No. 731–TA–1143 to the United States as UK-origin merchandise. Shenzhen Speedy Import & Export Co., (Second Review), USITC Publication 5035 (March 6 HTSUS subheading 8545.11.0020 was added to Ltd., SYCDA Company Limited, and 2020). the scope of the graphite electrodes order based on Prosper (HK) Co., Ltd., in accordance 4 The scope described in the order refers to the a determination in Small Diameter Graphite with section 751(a) of the Tariff Act of HTSUS subheading 8545.11.0000. We note that, Electrodes from the People’s Republic of China: 1930, as amended (the Act), and 19 CFR starting in 2010, imports of small diameter graphite Affirmative Final Determination of Circumvention 351.213(b).2 electrodes are classified in the HTSUS under of the Antidumping Duty Order and Rescission of subheading 8545.11.0010 and imports of large Later-Developed Merchandise Anticircumvention diameter graphite electrodes are classified under 1 See Antidumping or Countervailing Duty Order, subheading 8545.11.0020. Inquiry, 78 FR 56864 (September 16, 2013) (second Finding, or Suspended Investigation; Opportunity 5 HTSUS subheading 3801.10 was added to the circumvention determination). The products To Request Administrative Review, 84 FR 58690 scope of the graphite electrodes order based on a covered by the second circumvention determination (November 1, 2019). determination in Small Diameter Graphite are graphite electrodes produced and/or exported 2 See letter from Appvion, ‘‘Lightweight Thermal Electrodes from the People’s Republic of China: by Jilin Carbon Import and Export Company with Paper from the People’s Republic of China; Request Affirmative Final Determination of Circumvention an actual or nominal diameter of 17 inches. Continued

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On February 6, 2020, pursuant to protective order is hereby requested. review of the AD order on wire rod from these requests and in accordance with Failure to comply with the regulations China,2 pursuant to section 751(c) of the 19 CFR 351.221(c)(1)(i), Commerce and terms of an APO is a violation Tariff Act of 1930, as amended (the published a notice initiating an which is subject to sanction. Note that Act).3 Commerce received notices of administrative review of the Commerce has temporarily modified intent to participate from Charter Steel, countervailing duty order on thermal certain of its requirements for serving Commercial Metals Company, EVRAZ paper from China with respect to all of documents containing business Rocky Mountain Steel, Liberty Steel the companies for which Appvion had proprietary information, until May 19, USA, Nucor Corporation, and Optimus requested the review.3 On March 26, 2020, unless extended.5 Steel LLC (collectively, domestic 2020, Appvion withdrew its request for This notice is issued and published in interested parties), within the deadline an administrative review with respect to accordance with sections 751(a)(1) and specified in 19 CFR 351.218(d)(1)(i).4 all of the companies for which 777(i)(1) of the Act, and 19 CFR Each claimed interested party status Commerce had initiated the review.4 351.213(d)(4). under section 771(9)(C) of the Act, as domestic producers of wire rod in the Rescission of Review Dated: March 31, 2020. James Maeder, United States. Commerce received a substantive Pursuant to 19 CFR 351.213(d)(1), Deputy Assistant Secretary for Antidumping Commerce will rescind an and Countervailing Duty Operations. response from the domestic interested parties 5 within the 30-day deadline administrative review, in whole or in [FR Doc. 2020–07148 Filed 4–3–20; 8:45 am] part, if the party or parties that specified in 19 CFR 351.218(d)(3)(i). We BILLING CODE 3510–DS–P requested a review withdraws the received no substantive response from request within 90 days of the any other domestic or interested parties publication date of the notice of DEPARTMENT OF COMMERCE in this proceeding, nor was a hearing initiation of the requested review. requested. Appvion withdrew its request for International Trade Administration On January 22, 2020, Commerce review of all companies that were notified the U.S. International Trade [A–570–012] subject to the review within the Commission (ITC) that it did not receive an adequate substantive response from requisite 90 days. No other parties Carbon and Certain Alloy Steel Wire respondent interested parties.6 As a requested an administrative review of Rod From the People’s Republic of result, pursuant to section 751(c)(3)(B) the order. Therefore, in accordance with China: Final Results of the Expedited of the Act and 19 CFR 19 CFR 351.213(d)(1), we are rescinding First Five-Year Sunset Review of the 351.218(e)(1)(ii)(C)(2), Commerce this review in its entirety. Antidumping Duty Order conducted an expedited (120-day) Assessment AGENCY: Enforcement and Compliance, sunset review of this AD order. International Trade Administration, Commerce will instruct U.S. Customs Scope of the Order and Border Protection (CBP) to assess Department of Commerce. countervailing duties on all appropriate SUMMARY: As a result of this sunset The merchandise covered by this entries of thermal paper from China. review, the Department of Commerce order is certain hot-rolled products of Countervailing duties shall be assessed (Commerce) finds that revocation of the carbon steel and alloy steel, in coils, of at rates equal to the cash deposit of antidumping duty (AD) order on carbon approximately circular cross section, estimated countervailing duties required and certain alloy steel wire rod (wire less than 19.00 mm in actual solid cross- at the time of entry, or withdrawal from rod) from the People’s Republic of sectional diameter. Specifically warehouse, for consumption in China (China) would be likely to lead to excluded are steel products possessing accordance with 19 CFR continuation or recurrence of dumping the above-noted physical characteristics 351.212(c)(1)(i). Commerce intends to at the levels indicated in the ‘‘Final and meeting the Harmonized Tariff issue appropriate assessment Results of Review’’ section of this Schedule of the United States (HTSUS) instructions to CBP 15 days after the notice. definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball date of publication of this notice in the DATES: Applicable April 6, 2020. Federal Register. bearing steel; or (e) concrete reinforcing FOR FURTHER INFORMATION CONTACT: Ian bars and rods. Also excluded are free Notification Regarding Administrative Hamilton, AD/CVD Operations, Office cutting steel (also known as free Protective Orders II, Enforcement and Compliance, machining steel) products (i.e., products International Trade Administration, This notice also serves as a reminder that contain by weight one or more of U.S. Department of Commerce, 1401 to all parties subject to administrative Constitution Avenue NW, Washington, 2 protective order (APO) of their See Order. We applied the weighted-average DC 20230; telephone: (202) 482–4798. dumping margins of 106.19 percent to Rizhao Steel responsibility concerning the SUPPLEMENTARY INFORMATION: Wire Co., Ltd., Hunan Valin Xiangtan Iron & Steel disposition of proprietary information Co., Ltd., and Jiangsu Shagang International Trade disclosed under APO in accordance Background Co., Ltd., and 110.25 percent as the China-wide with 19 CFR 351.305. Timely written rate. Id. at 1017. On January 8, 2015, Commerce 3 notification of the return/destruction of See Initiation of Five-Year (Sunset) Review, 84 published its AD order on wire rod from FR 65968 (December 2, 2019). APO materials or conversion to judicial 4 China in the Federal Register.1 On See Domestic Interested Parties’ Letter, ‘‘Carbon December 2, 2019, Commerce published and Certain Alloy Steel Wire Rod from the People’s for Administrative Review,’’ dated December 2, Republic of China: Notice of Intent to Participate,’’ 2019. the notice of initiation of the first sunset dated December 17, 2019. 3 See Initiation of Antidumping and 5 See Domestic Interested Parties’ Letter, ‘‘Carbon Countervailing Duty Administrative Reviews, 85 FR 5 See Temporary Rule Modifying AD/CVD Service and Certain Alloy Steel Wire Rod from the People’s 6896 (February 6, 2020). Requirements Due to COVID–19, 85 FR 17006 Republic of China—Domestic Interested Parties’ 4 See letter from Appvion, ‘‘Lightweight Thermal (March 26, 2020). Substantive,’’ dated January 2, 2020. Paper from the People’s Republic of China/ 1 See Carbon and Certain Alloy Steel Wire Rod 6 See Commerce’s Letter, ‘‘Sunset Review Withdrawal for Request for Administrative from the People’s Republic of China: Antidumping Initiated on December 2, 2019,’’ dated January 22, Review,’’ dated March 26, 2020. Duty Order, 80 FR 1015 (January 8, 2015) (Order). 2020.

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the following elements: 0.1 percent or Decision Memorandum are identical in DEPARTMENT OF COMMERCE more of lead, 0.05 percent or more of content. bismuth, 0.08 percent or more of sulfur, International Trade Administration Final Results of Review more than 0.04 percent of phosphorus, [A–580–883] more than 0.05 percent of selenium, or Pursuant to sections 751(c)(1) and more than 0.01 percent of tellurium). 752(c)(1) and (3) of the Act, we Certain Hot-Rolled Steel Flat Products All products meeting the physical determine that revocation of the AD From the Republic of Korea: Partial description of subject merchandise that order on wire rod from China would be Rescission of the Antidumping Duty are not specifically excluded are likely to lead to continuation or Administrative Review; 2018–2019 included in this scope. recurrence of dumping at weighted- AGENCY: Enforcement and Compliance, The products subject to this order are average margins up to 110.25 percent. International Trade Administration, currently classifiable under subheadings Department of Commerce. 7213.91.3011, 7213.91.3015, Administrative Protective Order (APO) 7213.91.3020, 7213.91.3093; SUMMARY: The Department of Commerce 7213.91.4500, 7213.91.6000, This notice also serves as the only (Commerce) is partially rescinding the 7213.99.0030, 7227.20.0030, reminder to parties subject to an APO of administrative review of the 7227.20.0080, 7227.90.6010, their responsibility concerning the antidumping duty order on certain hot- 7227.90.6020, 7227.90.6030, and return or destruction of proprietary rolled steel flat products (hot-rolled 7227.90.6035 of the HTSUS. Products information disclosed under APO in steel) from the Republic of Korea entered under subheadings accordance with 19 CFR 351.305. (Korea) for the period October 1, 2018 7213.99.0090 and 7227.90.6090 of the Timely notification of the return or through September 30, 2019. HTSUS also may be included in this destruction of APO materials or DATES: Applicable April 6, 2020. scope if they meet the physical conversion to judicial protective order is FOR FURTHER INFORMATION CONTACT: description of subject merchandise hereby requested. Failure to comply Genevieve Coen, AD/CVD Operations, above. Although the HTSUS with the regulations and terms of an Office V, Enforcement and Compliance, subheadings are provided for APO is a violation which is subject to International Trade Administration, convenience and customs purposes, the sanction. U.S. Department of Commerce, 1401 written description of the merchandise Constitution Avenue NW, Washington, covered by the order is dispositive. For Notification to Interested Parties DC 20230; telephone: (202) 482–3251. a complete description of the scope of SUPPLEMENTARY INFORMATION: We are issuing and publishing these the Order, see the accompanying Issues final results and this notice in Background and Decision Memorandum.7 accordance with sections 751(c), 752(c), On October 1, 2019, Commerce Analysis of Comments Received and 777(i)(1) of the Act, and 19 CFR published a notice of opportunity to 351.218. Note that Commerce has All issues raised in this sunset review request an administrative review of the are addressed in the Issues and Decision temporarily modified certain of its antidumping duty order on hot-rolled Memorandum. The issues discussed in requirements for serving documents steel from Korea.1 Pursuant to requests the Issues and Decision Memorandum containing business proprietary from interested parties, Commerce are the likelihood of continuation or information, until May 19, 2020, unless initiated an administrative review with recurrence of dumping, and the extended.8 respect to ten companies, in accordance magnitude of the margins of dumping Dated: March 31, 2020. with section 751(a) of the Tariff Act of 1930, as amended (the Act).2 likely to prevail if this order were Jeffrey I. Kessler, revoked. The Issues and Decision Subsequent to the initiation of the Assistant Secretary for Enforcement and administrative review, the petitioners 3 Memorandum is a public document and Compliance. is on file electronically via the timely withdrew their request for an Enforcement and Compliance’s Appendix administrative review of nine Antidumping and Countervailing Duty companies for which a review had been List of Topics Discussed in the Issues and requested, as discussed below. No other Centralized Electronic Service System Decision Memorandum (ACCESS). ACCESS is available to party requested an administrative registered users at http:// I. Summary review of these companies. access.trade.gov, and to all parties in the II. Background III. Scope of the Order Partial Rescission of Administrative Central Records Unit, room B8024 of the Review main Commerce building. A list of IV. History of the Order topics discussed in the Issues and V. Legal Framework Pursuant to 19 CFR 351.213(d)(1), Decision Memorandum is included as VI. Discussion of the Issues Commerce will rescind an the appendix to this notice. In addition, 1. Likelihood of Continuation or 1 See Antidumping or Countervailing Duty Order, a complete version of the Issues and Recurrence of Dumping 2. Magnitude of the Dumping Margins Finding, or Suspended Investigation; Opportunity Decision Memorandum can be accessed Likely to Prevail to Request Administrative Review, 84 FR 52068 directly on the internet at http:// (October 1, 2019). VII. Final Results of Sunset Review enforcement.trade.gov/frn/. The signed 2 See Initiation of Antidumping and VIII. Recommendation and electronic versions of the Issues and Countervailing Duty Administrative Reviews, 84 FR [FR Doc. 2020–07149 Filed 4–3–20; 8:45 am] 67712 (December 11, 2019) (Initiation Notice); see also Initiation of Antidumping and Countervailing 7 See Memorandum, ‘‘Issues and Decision BILLING CODE 3510–DS–P Duty Administrative Reviews, 85 FR 3014 (January Memorandum for the Expedited First Sunset 17, 2020) at footnote 6, clarifying initiation as to Review of the Antidumping Duty Order on Carbon two of these companies. and Certain Alloy Steel Wire Rod from the People’s 3 The petitioners are AK Steel Corporation; Republic of China,’’ dated concurrently with, and 8 See Temporary Rule Modifying AD/CVD Service ArcelorMittal USA LLC; Nucor Corporation; SSAB hereby adopted by, this notice (Issues and Decision Requirements Due to COVID–19, 85 FR 17006 Enterprises, LLC; Steel Dynamics, Inc.; and United Memorandum). (March 26, 2020). States Steel Corporation.

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administrative review, in whole or in materials or conversion to judicial Co., LLC (Bonuts) and Create Trading part, if the party that requested a review protective order is hereby requested. Co., Ltd., (Create Trading), the two withdraws its request within 90 days of Failure to comply with the regulations companies accounting for the largest the date of publication of the notice of and terms of an APO is a violation volume of exports in the U.S. Customer initiation. The request for an which is subject to sanction. and Border Protection (CBP) data.2 As administrative review of the following Notification to Interested Parties Bonuts did not respond to Commerce’s companies was withdrawn within 90 questionnaire, or request any extensions days of the date of publication of the This notice is issued and published in to file its responses, and Commerce Initiation Notice: POSCO; POSCO accordance with sections 751(a)(1) and excused Create Trading from responding Daewoo Corporation; Dongbu Steel Co., 777(i)(l) of the Act, and 19 CFR to the questionnaire, Commerce selected Ltd.; Dongkuk Industries Co., Ltd.; 351.213(d)(4). an additional respondent to Dongkuk Steel Mill Co., Ltd.; Marubeni- Dated: April 1, 2020. individually examine. Subsequently, on Itochu Steel Korea Ltd.; Soon Hong James Maeder, Trading Co.; Snp Ltd.; and Sungjin Co., January 17, 2020, Commerce selected Ltd.4 As a result, Commerce is Deputy Assistant Secretary for Antidumping the next largest exporter, by volume, PT and Countervailing Duty Operations. rescinding this review with respect to Enterprise, Inc. (PT Enterprise) and its these nine companies, in accordance [FR Doc. 2020–07152 Filed 4–3–20; 8:45 am] affiliated producer Pro-Team Coil Nail with 19 CFR 351.213(d)(1). The review BILLING CODE 3510–DS–P Enterprise, Inc. (Pro-Team) (collectively, will continue with respect to Hyundai PT),3 as a replacement respondent for Steel Company.5 individual examination.4 DEPARTMENT OF COMMERCE Assessment For a complete description of the International Trade Administration events that followed the initiation of Commerce will instruct U.S. Customs [A–583–854] this administrative review, see the and Border Protection (CBP) to assess 5 antidumping duties on all appropriate Preliminary Decision Memorandum. entries. For the companies for which Certain Steel Nails From Taiwan: The Preliminary Decision Memorandum this review is rescinded, antidumping Preliminary Results of Antidumping is a public document and is on file duties shall be assessed at rates equal to Duty Administrative Review and electronically via the Enforcement and the cash deposit of estimated Preliminary Determination of No Compliance’s Antidumping and antidumping duties required at the time Shipments; 2018–2019 Countervailing Duty Centralized of entry, or withdrawal from warehouse Electronic Service System (ACCESS). AGENCY: Enforcement and Compliance, ACCESS is available to registered users for consumption, in accordance with 19 International Trade Administration, at http://access.trade.gov, and to all CFR 351.212(c)(l)(i). Commerce intends U.S. Department of Commerce. to issue appropriate assessment parties in the Central Records Unit, SUMMARY: instructions to CBP 15 days after The Department of Commerce room B8024 of the main Commerce (Commerce) preliminarily determines publication of this notice. building. In addition, a complete that certain steel nails from Taiwan version of the Preliminary Decision Notification to Importers were sold in the United States at less Memorandum can be accessed directly than normal value during the period of This notice serves as a final reminder on the internet at http:// to importers of their responsibility review (POR), July 1, 2018 to June 30, enforcement.trade.gov/frn/. The signed under 19 CFR 351.402(f)(2) to file a 2019. Interested parties are invited to certificate regarding the reimbursement comment on these preliminary results. and electronic versions of the Preliminary Decision Memorandum are of antidumping duties prior to DATES: Applicable April 6, 2020. identical in content. liquidation of the relevant entries FOR FURTHER INFORMATION CONTACT: during this review period. Failure to Irene Gorelik, AD/CVD Operations, 2 See Memorandum, ‘‘Administrative Review of comply with this requirement could Office VIII, Enforcement and result in the presumption that Certain Steel Nails from Taiwan: Respondent Compliance, International Trade Selection,’’ dated October 22, 2019. reimbursement of antidumping duties Administration, U.S. Department of 3 In a prior segment of the proceeding, Commerce occurred and the subsequent assessment Commerce, 1401 Constitution Avenue determined that Pro-Team and PT Enterprise of doubled antidumping duties. NW, Washington, DC 20230; telephone: comprise a single entity, and we find no new information in this segment of the proceeding that Notification Regarding Administrative (202) 482–6905. contradicts that finding. See Certain Steel Nails Protective Orders SUPPLEMENTARY INFORMATION: from Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission This notice also serves as a reminder Background of Administrative Review; 2015–2016, 82 FR 36744 to parties subject to administrative (August 7, 2017) and accompanying Preliminary protective order (APO) of their These preliminary results of review Decision Memorandum, unchanged in Certain Steel responsibility concerning the return or are issued in accordance with section Nails from Taiwan: Final Results of Antidumping destruction of proprietary information 751(a) of the Tariff Act of 1930, as Duty Administrative Review and Partial Rescission amended (the Act). On September 9, of Administrative Review; 2015–2016, 83 FR 6163 disclosed under APO in accordance (February 13, 2018). Accordingly, we have with 19 CFR 351.305, which continues 2019, in accordance with section 751(a) preliminarily continued to treat PT Enterprise and to govern business proprietary of the Act and 19 CFR 351.221(c)(1)(i), Pro-Team as a single entity. information in this segment of the Commerce published the notice of 4 See Memorandum, ‘‘Administrative Review of proceeding. Timely written notification initiation for the administrative review, Certain Steel Nails from Taiwan: Selection of 1 Additional Mandatory Respondent,’’ dated January of the return or destruction of APO covering 84 companies. On October 22, 2019, Commerce selected as mandatory 17, 2020. 5 See Memorandum, ‘‘Decision Memorandum for 4 See Petitioners’ Letter, ‘‘Hot-Rolled Steel Flat respondents, Bonuts Hardware Logistics Preliminary Results of Antidumping Duty Products from the Republic of Korea—Petitioners’ Administrative Review: Certain Steel Nails from Partial Withdrawal of Request for Review,’’ dated 1 See Initiation of Antidumping and Taiwan; 2017–2018,’’ dated concurrently with, and March 10, 2020. Countervailing Duty Administrative Reviews, 84 FR hereby adopted by, this notice (Preliminary 5 See Initiation Notice, 84 FR at 67715. 47242 (September 9, 2019). Decision Memorandum).

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Scope of the Order 6 companies’ no-shipment claims, Facts Available Commerce issued a no-shipment inquiry The merchandise covered by this Pursuant to section 776(a) of the Act, order is certain steel nails from Taiwan. to CBP and received no contradictory information.8 Therefore, we Commerce is preliminarily relying upon The certain steel nails subject to the facts otherwise available to assign order are currently classifiable under preliminarily determine that these five companies did not have any shipments estimated dumping margins to Bonuts Harmonized Tariff Schedule of the and PT because both respondents United States (HTSUS) subheadings of subject merchandise during the POR. Consistent with Commerce’s practice, withheld necessary information that 7317.00.55.02, 7317.00.55.03, was requested by Commerce, thereby 7317.00.55.05, 7317.00.55.07, we will not rescind the review with respect to these companies, but, rather, significantly impeding the conduct of 7317.00.55.08, 7317.00.55.11, the review. Further, Commerce 7317.00.55.18, 7317.00.55.19, will complete the review and issue instructions based on the final results.9 preliminarily determines that both 7317.00.55.20, 7317.00.55.30, Bonuts and PT failed to cooperate by 7317.00.55.40, 7317.00.55.50, Preliminary Determination of No not acting to the best of their abilities to 7317.00.55.60, 7317.00.55.70, Reviewable Entries comply with requests for information 7317.00.55.80, 7317.00.55.90, and, thus, Commerce is applying an 7317.00.65.30, 7317.00.65.60 and As noted above, Commerce selected Create Trading as a mandatory adverse inference in selecting among the 7317.00.75.00. Certain steel nails subject facts available, in accordance with to this order also may be classified respondent. Create Trading reported that it had no reviewable sales because section 776(b) of the Act. For a full under HTSUS subheadings description of the methodology 7907.00.60.00, 8206.00.00.00 or other its unaffiliated producers had knowledge of the final destination of the underlying our conclusions regarding HTSUS subheadings. Although the the application of adverse facts available HTSUS numbers are provided for subject merchandise that they produced and sold to Create Trading, and which (AFA), see the Preliminary Decision convenience and for customs purposes, Memorandum. the written product description, Create Trading resold to U.S. customers available in the Preliminary Decision during the POR. Create Trading Rate for Non-Selected Companies Memorandum, remains dispositive. provided sales documentation from its unaffiliated producers as evidence in In accordance with the U.S. Court of Methodology support of its claim.10 Because the Appeals for the Federal Circuit’s 12 Commerce is conducting this review evidence on the record demonstrates decision in Albemarle, we are in accordance with section 751(a)(1)(B) that Create Trading’s unaffiliated applying a rate based on the simple of the Act. For a full description of the suppliers had knowledge that the final average of the individual rates methodology underlying the destination of the subject merchandise preliminarily applied to Bonuts and PT preliminary results, see the Preliminary was to customers in the United States, in this administrative review (i.e., 78.17 Decision Memorandum. we find that Create Trading had no percent) to the companies not selected reviewable sales of subject merchandise for individual examination. For a Preliminary Determination of No during the POR. We intend to instruct detailed discussion, see the Preliminary Shipments CBP at the final results to liquidate any Decision Memorandum. Commerce received no shipment existing entries of merchandise Preliminary Results of Review certifications from five companies: produced by Create Trading’s Astrotech Steels Private Limited, Jinhai unaffiliated producers and exported by We preliminarily determine that, for Hardware Co., Ltd., Region International Create Trading at the rate applicable to the period July 1, 2018 through June 30, Co., Ltd., Region Industries, and Region the unaffiliated producers, i.e., the all- 2019, the following estimated dumping System Sdn Bhd.7 To confirm these others rate.11 margins exist:

Dumping Exporter/producer margin (percent)

Bonuts Hardware Logistics Co ...... 78.17 PT Enterprise, Inc./Pro-Team Coil Nail Enterprise, Inc ...... 78.17

Review-Specific Average Rate Applicable to Companies Under Review Not Selected for Individual Examination

See Appendix II for the 75 companies under review subject to the review-specific average rate ...... 78.17

6 See Certain Steel Nails from the Republic of 9 See, e.g., Certain Frozen Warmwater Shrimp 11 See Antidumping and Countervailing Duty Korea, Malaysia, the Sultanate of Oman, Taiwan, from Thailand; Preliminary Results of Antidumping Proceedings: Assessment of Antidumping Duties, 68 and the Socialist Republic of Vietnam: Duty Administrative Review, Partial Rescission of FR 23954, 23954 (May 6, 2003) (Assessment of Antidumping Duty Orders, 80 FR 39994 (July 13, Review, Preliminary Determination of No Antidumping Duties); see also Certain Pasta from Shipments; 2012–2013, 79 FR 15951, 15952 (March 2015) (Order). Turkey: Notice of Preliminary Results of 24, 2014), unchanged in Certain Frozen Warmwater 7 See certifications of no shipments filed by: (1) Shrimp from Thailand: Final Results of Antidumping Duty Administrative Review, 76 FR Astrotech Steels Private Limited, dated October 1, Antidumping Duty Administrative Review, Final 23974, 23977 (April 29, 2011), unchanged in Pasta 2019; (2) Jinhai Hardware Co., Ltd., dated October Determination of No Shipments, and Partial From Turkey: Notice of Final Results of the 14th 9, 2019; and (3) Region System Sdn Bhd; (4) Region Rescission of Review; 2012–2013, 79 FR 51306, Antidumping Duty Administrative Review, 76 FR Industries Co., Ltd.; and (5) Region International 51307 (August 28, 2014). 68399 (November 4, 2011). Co., Ltd., dated October 9, 2019. 10 See Create Trading’s Letter, ‘‘Statement of No 12 See Albemarle Corp. v. United States, 821 F. 3d 8 See No Shipment Inquiry, Message 9289301 Sales to the United States,’’ dated November 12, 1345 (Fed. Cir. 2016) (Albemarle). (ACCESS Barcode 3900308–01). 2019, at Exhibits 1 and 2.

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Assessment Rates rate applicable to the producer(s).16 Act, there are no calculations to disclose. Upon completion of the However, because none of the producers Interested parties may submit case administrative review, Commerce shall have their own rates, we will instruct briefs no later than 30 days after the determine, and CBP shall assess, CBP to liquidate entries at the all-others date of publication of this notice.19 antidumping duties on all appropriate rate from the investigation, as revised, of 17 Rebuttal briefs, the content of which is entries covered by this review.13 If the 2.16 percent, in accordance with the reseller policy. limited to the issues raised in the case preliminary results are unchanged for briefs, must be filed within five days the final results, we will instruct CBP to Cash Deposit Requirements from the deadline date for the apply an ad valorem assessment rate of submission of case briefs.20 Parties who The following cash deposit 78.17 percent to all entries of subject submit case or rebuttal briefs in this requirements will be effective upon merchandise during the POR which proceeding are requested to submit with were produced and/or exported by publication of the final results of this each argument: (1) A statement of the Bonuts and PT, and the companies administrative review for all shipments issue; (2) a brief summary of the which were not selected for individual of the subject merchandise entered, or argument; and (3) a table of examination. We intend to issue withdrawn from warehouse, for authorities.21 Case and rebuttal briefs liquidation instructions to CBP 15 days consumption on or after the publication should be filed via ACCESS.22 Note that after the date of publication of the final date of the final results of this Commerce has temporarily modified results of this review. administrative review, as provided by certain of its requirements for serving With respect to the five companies section 751(a)(2)(C) of the Act: (1) The documents containing business that certified they had no shipments, if cash deposit rate for Bonuts, PT, and the proprietary information, until May 19, we continue to find that they had no other companies listed in Appendix II 2020, unless extended.23 shipments of subject merchandise in the will be equal to the dumping margin Pursuant to 19 CFR 351.310(c), final results, we will instruct CBP to established in the final results of this interested parties who wish to request a liquidate any existing entries of subject administrative review; (2) for previously hearing must submit a written request to merchandise produced by the five reviewed or investigated companies not the Assistant Secretary for Enforcement companies, but exported by other listed above, the cash deposit rate will and Compliance, filed electronically via parties, at the rate for the intermediate continue to be the company-specific rate ACCESS by 5:00 p.m. Eastern Time reseller, if available, or at the all-others published for the most recently within 30 days after the date of rate.14 completed segment of this proceeding in publication of this notice.24 Requests We determined that Create Trading which they were reviewed; (3) if the should contain: (1) The party’s name, was not the first party in the transaction exporter is not a firm covered in this address and telephone number; (2) the chain to have knowledge that the review, a prior review, or in the number of participants; and (3) a list of merchandise was destined for the investigation, but the producer is, then issues parties intend to discuss. Issues United States, and thus Create Trading the cash deposit rate will be the rate raised in the hearing will be limited to is not considered the exporter of subject established for the most recently those raised in the respective case and merchandise during the POR for completed segment of this proceeding rebuttal briefs. If a request for a hearing purposes of this review. In our May 6, for the producer of the merchandise; is made, Commerce intends to hold the 2003, ‘‘automatic assessment’’ and the cash deposit rate for all other hearing at the U.S. Department of clarification, we explained that, where manufacturers or exporters will Commerce, 1401 Constitution Avenue respondents in an administrative review continue to be 2.16 percent, the all- NW, Washington, DC 20230, at a date demonstrate that they had no others rate. These cash deposit and time to be determined.25 Parties knowledge of sales through resellers to requirements, when imposed, shall should confirm the date, time, and the United States, we would instruct remain in effect until further notice. location of the hearing two days before CBP to liquidate such entries at the all- Disclosure and Public Comment the scheduled date. others rate applicable to the Final Results of Review proceeding.15 Here, Commerce finds Normally, Commerce discloses the that Create Trading had no shipments of calculations performed in connection Unless extended, Commerce intends subject merchandise to the United with preliminary results to interested to issue the final results of this States during the POR for which it was parties within five days after the date of administrative review, which will the first party with knowledge of U.S. publication of this notice.18 Because include the results of our analysis of all destination. Because ‘‘as entered’’ Commerce preliminarily applied a rate issues raised in the case and rebuttal liquidation instructions do not alleviate based on total AFA to each of the briefs, within 120 days of publication of the concerns which the May 2003 mandatory respondents in this review, these preliminary results in the Federal clarification was intended to address, in accordance with section 776 of the Register, pursuant to section we find it appropriate in this case to 751(a)(3)(A) of the Act. instruct CBP to liquidate any existing 16 See, e.g., Certain Frozen Warmwater Shrimp Notification to Importers entries of merchandise produced by from India: Partial Rescission of Antidumping Duty Create Trading’s unaffiliated producers Administrative Review, 73 FR 77610, 77612 This notice also serves as a and exported by Create Trading at the (December 19, 2008); see also Certain Pasta From preliminary reminder to importers of Turkey: Notice of Final Results of the 14th Antidumping Duty Administrative Review, 76 FR 19 See 19 CFR 351.309(c)(1)(ii). 13 See 19 CFR 351.212(b). 68399, 68400 (November 4, 2011). 20 See 19 CFR 351.309(d)(1) and (2). 14 See, e.g., Magnesium Metal from the Russian 17 The all-others rate from the underlying 21 Federation: Preliminary Results of Antidumping investigation was revised in Certain Steel Nails See 19 CFR 351.309(c)(2) and (d)(2). Duty Administrative Review, 75 FR 26922, 26923 from Taiwan: Notice of Court Decision Not in 22 See, generally, 19 CFR 351.303. (May 13, 2010), unchanged in Magnesium Metal Harmony with Final Determination in Less than 23 See Temporary Rule Modifying AD/CVD from the Russian Federation: Final Results of Fair Value Investigation and Notice of Amended Service Requirements Due to COVID–19, 85 FR Antidumping Duty Administrative Review, 75 FR Final Determination, 82 FR 55090, 55091 17006 (March 26, 2020). 56989 (September 17, 2010). (November 20, 2017). 24 See 19 CFR 351.310(c). 15 See Assessment of Antidumping Duties. 18 See 19 CFR 351.224(b). 25 See 19 CFR 351.310(d).

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their responsibility under 19 CFR 38. Liang Chyuan Industrial Co., Ltd. and agendas, see SUPPLEMENTARY 351.402(f)(2) to file a certificate 39. Linkwell Industry Co., Ltd. INFORMATION. regarding the reimbursement of 40. Locksure Inc. 41. Long Ngyuen Trading & Service Co. ADDRESSES: The meetings will be held antidumping duties prior to liquidation 42. Lu Kang Hand Tools Industrial Co., Ltd. by web conference. Audio and visual of the relevant entries during this (Prommer) portions of the web conference can be review period. Failure to comply with 43. Master United Corp. accessed at: https://wprfmc.webex.com/ this requirement could result in 44. Maytrans International Corp. join/info.wpcouncilnoaa.gov. Web Commerce’s presumption that 45. Ming Cheng Hardware Co., Ltd. conference access information will also reimbursement of antidumping duties 46. Nailermate Enterprise Corporation 47. Nailtech Co., Ltd. be posted on the Council’s website at occurred and the subsequent assessment www.wpcouncil.org. For assistance with of double antidumping duties. 48. Newrex Screw Corporation 49. NS International Ltd. the web conference connection, contact Notification to Interested Parties 50. Panther T&H Industry Co. the Council office at (808) 522–8220. 51. Patek Tool Co., Ltd. We are issuing and publishing this FOR FURTHER INFORMATION CONTACT: 52. Point Edge Corp. Kitty M. Simonds, Executive Director, notice in accordance with sections 53. President Industrial Inc. 751(a)(1) and 777(i)(1) of the Act, and 54. Quick Advance Inc. Western Pacific Fishery Management sections 19 CFR 351.213(h)(1) and 55. Romp Coil Nail Industries Inc. Council; phone: (808) 522–8220 (voice) 351.221(b)(4). 56. Shinn Chuen Corp. or (808) 522–8226 (fax). 57. Six-2 Fastener Imports Inc. Dated: March 31, 2020. SUPPLEMENTARY INFORMATION: The APT 58. Taiwan Shan Yin Int’l Co. Ltd. Jeffrey I. Kessler, meeting will be held on April 20–22, 59. Taiwan Wakisangyo Co. Ltd. 2020, from 1 p.m. to 5 p.m. Hawaii Assistant Secretary for Enforcement and 60. Techart Mechanical Corporation Compliance. 61. Test-Rite Int’l Co., Ltd. Standard Time (HST) (noon to 4 p.m. 62. Theps Co., Ltd. Samoa Standard Time (SST); 9 a.m. to Appendix I 63. Trans-Top Enterprise Co., Ltd. 1 p.m. on April 21- 23, 2020, Chamorro List of Topics Discussed in the Preliminary 64. Trim International Inc. Standard Time (ChST)). The FDCRC–TC Decision Memorandum 65. U-Can-Do Hardware Corp. DCSP meeting will be held on April 23– 66. UJL Industries Co., Ltd. 24, 2020, from 1 p.m. to 5 p.m. HST I. Summary 67. Unicatch Industrial Co. Ltd. II. Background (noon to 4 p.m. SST; 9 a.m. to 1 p.m. 68. VIM International Enterprise Co., Ltd. on April 24–25, 2020 ChST). III. Scope of the Order 69. Wattson Fastener Group Inc. IV. Discussion of the Methodology 70. Wictory Co. Ltd. Opportunities to present oral public V. Recommendation 71. Yeh Fong Hsin comment will be provided throughout the agendas. The order of the agenda Appendix II 72. Yehdyi Enterprise Co., Ltd. 73. Yu Chi Hardware Co., Ltd. may change, and will be announced in List of Companies Under Review Not 74. Zhishan Xing Enterprise Co., Ltd. advance at the meetings. The meetings Selected for Individual Examination 75. Zon Mon Co. Ltd. may run past the scheduled times noted 1. All Precision Co., Ltd. [FR Doc. 2020–07151 Filed 4–3–20; 8:45 am] above to complete scheduled business. 2. Aplus Pneumatic Corp. BILLING CODE 3510–DS–P 3. Basso Industry Corporation Agenda for the Archipelagic Plan Team 4. Challenge Industrial Co., Ltd. Meeting 5. Cheng Ch International Co. Ltd. DEPARTMENT OF COMMERCE Monday, April 20, 2020, 1 p.m. to 5 p.m. 6. Chia Pao Metal Co. Ltd. 7. China Staple Enterprise Corporation HST (noon–4 p.m. SST; Tuesday, April National Oceanic and Atmospheric 21, 2020, 9 a.m.–1 p.m. ChST) 8. Chite Enterprises Co., Ltd. Administration 9. Crown Run Industrial Corp. 1. Welcome and introductions 10. Da Yong Enterprise Co., Ltd. RIN 0648–XA105 2. Approval of draft agenda 11. Daejin Steel Company Ltd. 3. Report on previous Plan Team 12. De Fasteners Inc. Western Pacific Fishery Management recommendations and Council 13. Dragon Iron Factory Co., Ltd. Council; Public Meetings 14. Easylink Industrial Co., Ltd. actions 15. ECI Taiwan Co., Ltd. AGENCY: National Marine Fisheries 4. Plan Team 101: Who Are We, What 16. Encore Green Co., Ltd. Service (NMFS), National Oceanic and We Do, and Role in the Process? 17. Faithful Engineering Products Co. Ltd. Atmospheric Administration (NOAA), 5. 2019 Annual Stock Assessment and 18. Fastenal Asia Pacific Ltd. Commerce. Fishery Evaluation (SAFE) Report 19. Four Winds Corporation ACTION: Notice of public meetings. A. Fishery Performance 20. Gaun Ting Technology Co., Ltd. 1. Archipelagic fisheries modules 21. General Merchandise Consolidators SUMMARY: The Western Pacific Fishery a. American Samoa 22. Ginfa World Co. Ltd. Management Council (Council) will 23. Gloex Inc. 1. Bottomfish fishery 24. Home Value Co., Ltd. hold meetings of its Archipelagic Plan 2. Ecosystem component fisheries 25. Hor Liang Industrial Corp. Team (APT) and the Data Collection b. Guam 26. Hoyi Plus Co., Ltd. Subpanel (DCSP) of the Fishery Data 1. Bottomfish fishery 27. Integral Building Products Inc. Collection and Research Committee— 2. Ecosystem component fisheries 28. Interactive Corp. Technical Committee (FDCRC–TC) by c. Commonwealth of the Northern 29. J C Grand Corporation web conference to discuss fishery Mariana Islands (CNMI) 30. Jade Shuttle Enterprise Co., Ltd. management issues and develop 1. Bottomfish fishery 31. Jau Yeou Industry Co., Ltd. recommendations for future 2. Ecosystem component fisheries 32. Jen Ju Enterprise Co., Ltd. management of fisheries in the Western 33. Jet Crown International Co., Ltd. d. Hawaii 34. Jiajue Industrial Co. Ltd. Pacific Region. 1. Bottomfish fishery 35. Jinsco International Corp. DATES: The APT will be held on April 2. Crustacean fishery 36. Ko’s Nail Inc. 20–22, 2020. The DCSP will be held on 3. Precious coral fishery 37. Korea Wire Co., Ltd. April 23–24, 2020. For specific times 4. Ecosystem component fisheries

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5. Non-commercial fisheries 2. Approval of draft agenda Atmospheric Administration (NOAA), 2. Discussions 3. Report on previous TC Commerce. 3. Public Comment recommendations and Council ACTION: Notice of public online meeting. actions Tuesday, April 21, 2020, 1 p.m. to 5 4. Status of the fishery dependent data SUMMARY: The Groundfish and Coastal p.m. HST (noon–4 p.m. SST; collection improvement efforts Pelagic Species (CPS) Subcommittees of Wednesday, April 22, 2020, 9 a.m.–1 A. American Samoa the Pacific Fishery Management p.m. ChST) B. Guam Council’s (Pacific Council’s) Scientific B. Ecosystem Considerations C. CNMI and Statistical Committee (SSC) will 1. Protected species section D. Hawaii hold a meeting to review proposed 2. Climate, ecosystems and biological E. Small Boat E-Reporting App revisions to the Terms of Reference for section F. Western Pacific Fishery the Groundfish and Coastal Pelagic a. Environmental & climate variables Information Network (WPacFIN) Species Stock Assessment Review b. Life history and length-derived Initiatives Process for 2021 and 2022. The meeting 5. Marine Recreational Information variables is open to the public. c. Biomass estimates for Coral Reef Program (MRIP) Certification of DATES: The SSC Groundfish and CPS Ecosystem Components Non-Commercial Fisheries Surveys Subcommittees’ online meeting will be 3. Habitat section A. Hawaii Marine Recreational 4. Socioeconomics section Fishing Surveys held Tuesday, April 21, 2020 beginning 5. Marine Planning section B. Territory Shore-Based Creel at 1 p.m. and continuing until 4 p.m. 6. Discussions Surveys Pacific Daylight Time or until business 7. Public Comment 6. Discussions for the day has been completed. C. Administrative Reports 7. Public Comment ADDRESSES: The SSC’s Groundfish and 1. Number of federal permits Friday, April 24, 2020, 1 p.m.–5 p.m. CPS Subcommittees’ meeting will be an 2. Regulatory actions in 2019 HST (noon–4 p.m. SST; Saturday, April online meeting. 3. Discussions Instructions to attend the online 25, 2020, 9 a.m.–1 p.m. ChST) 4. Public Comment meeting: 8. Finalizing the Implementation Plan Wednesday, April 22, 2020, 1 p.m. to 5 Join from PC, Mac, Linux, iOS or for the Small-Boat E-Reporting App Android: https:// p.m. HST (noon–4 p.m. SST; Thursday, 9. Developing a Framework for April 23, 2020, 9 a.m.–1 p.m. ChST) meetings.ringcentral.com/j/ Calibration and Transition 1489984146. 6. Action agenda items 10. MRIP Related Agenda Items Or iPhone one-tap: US: +1(623)4049000, A. Review of the State Partnership A. American Samoa Bottomfish 1489984146# (U.S. West), Fishery Plan B. National Salt Water Angler Registry +1(720)9027700, 1489984146# (U.S. 1. P* Working Group Report Central), +1(773)2319226, 2. Social, Economic, Ecological and Memorandum of Agreement Review 1489984146# (U.S. North), Management Uncertainty (SEEM) Plan +1(469)4450100, 1489984146# (U.S. Working Group Report 11. Discussions South), +1(470)8692200, 1489984146# 3. Alternatives for Annual Catch 12. Other Business (U.S. East). Limits (ACLs) 13. Public Comment Or Telephone: Dial (for higher quality, B. Options for the Hawaii Small-Boat 14. FDCRC–TC–DSP Recommendations dial a number based on your current Fishery Management Special Accommodations C. Discussions location): US: +1(623) 404–9000 (U.S. D. Public Comment These meetings are accessible to West), +1(720) 902–7700 (U.S. 7. Standardized Bycatch Reporting people with disabilities. Please direct Central), +1 (773) 231–9226 (U.S. Methodology requests for sign language interpretation North), +1 (469) 445–0100 (U.S. 8. Report on Consultation on the or other auxiliary aids to Kitty M. South), +1 (470) 869–2200 (U.S. East). Revision of the Bottomfish Simonds (see FOR FURTHER INFORMATION Meeting ID: 148 998 4146. Management Unit Species (BMUS) CONTACT section above) at least 5 days International numbers available: Complex prior to the meeting date. https://meetings.ringcentral.com/ 9. Implementing Electronic Self- Authority: 16 U.S.C. 1801 et seq. teleconference. Reporting for the Small Boat Council address: Pacific Fishery Dated: April 1, 2020. Management Council, 7700 NE Fisheries Diane M. DeJames-Daly, A. Small Boat Reporting Application Ambassador Place, Suite 101, Portland, B. Coordination on Implementing the Acting Deputy Director, Office of Sustainable OR 97220. Fisheries, National Marine Fisheries Service. Reporting Apps in the Territories FOR FURTHER INFORMATION CONTACT: Mr. C. Discussions [FR Doc. 2020–07134 Filed 4–3–20; 8:45 am] John DeVore, Staff Officer, Pacific D. Public Comment BILLING CODE 3510–22–P Fishery Management Council; 13. General Discussions telephone: (503) 820–2413. 14. Fishery Ecosystem Plan Team DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: The Recommendations purpose of the SSC Groundfish and CPS 15. Other Business National Oceanic and Atmospheric Subcommittees’ meeting is to review Agenda for the Fishery Data Collection Administration proposed changes to the Terms of and Research Committee—Technical Reference for the Groundfish and RIN 0648–XA104 Committee: Data Collection Subpanel Coastal Pelagic Species Stock Assessment Review Process for 2021 Thursday, April 23, 2020, 1 p.m. to 5 Pacific Fishery Management Council; Public Meeting and 2022 that will inform the process p.m. HST (noon–4 p.m. SST; Friday, for conducting and reviewing April 24, 2020, 9 a.m.–1 p.m. ChST) AGENCY: National Marine Fisheries groundfish and CPS assessments in 1. Welcome and introductions Service (NMFS), National Oceanic and 2021 and 2022. Members of the Pacific

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Council’s groundfish and CPS advisory information under the provisions of the Legal Authority: bodies are encouraged to attend to Paperwork Reduction Act (44 U.S.C. This information collection request prepare their recommendations to the Chapter 35). may be viewed at www.reginfo.gov. Council. Proposed changes to the Terms Agency: National Oceanic and Follow the instructions to view the of Reference were first considered in an Atmospheric Administration (NOAA). Department of Commerce collections online webinar on December 13, 2019. Title: Surveys to Collect Data on Use currently under review by OMB. A report from that webinar was of the NOAA National Weather Service Written comments and discussed by the SSC at their March Cone of Uncertainty. recommendations for the proposed meeting and their recommended OMB Control Number: 0648–NEW. information collection should be changes to the ToR were adopted by the Form Number(s): None. submitted within 30 days of the Pacific Council for public review. The Type of Request: Regular submission publication of this notice on the Pacific Council is scheduled to adopt a (request for new information collection). following website www.reginfo.gov/ final Terms of Reference at their June Number of Respondents: 1,406. public/do/PRAMain. Find this meeting in San Diego, California. Average Hours per Response: 20 particular information collection by No management actions will be minutes per response. selecting ‘‘Currently under 30-day Burden Hours: 468.5 hours (1,406 × 20 decided by the SSC’s Groundfish and Review—Open for Public Comments’’ or CPS Subcommittees. The SSC = 28,120/60 = 468.5). Needs and Uses: The NOAA National by using the search function and Groundfish and CPS Subcommittees’ entering the title of the collection. members’ role will be development of Weather Service (NWS) National recommendations and reports for Hurricane Center (NHC) produces Sheleen Dumas, consideration by the SSC and Pacific tropical cyclone text and graphical Department PRA Clearance Officer, Office of Council at the June meeting in San products to provide critical information the Chief Information Officer, Commerce Diego, CA. about meteorological parameters of Department. Although nonemergency issues not tropical storms and hurricanes that [FR Doc. 2020–07060 Filed 4–3–20; 8:45 am] contained in the meeting agendas may could threaten the United States and BILLING CODE 3510–KE–P be discussed, those issues may not be other countries. While NOAA has a the subject of formal action during this good understanding of how many of its meeting. Action will be restricted to core partners (i.e., emergency DEPARTMENT OF DEFENSE those issues specifically listed in this management personnel and broadcast notice and any issues arising after meteorologists/members of the media) Office of the Secretary publication of this notice that require use these graphics, it is interested in emergency action under Section 305(c) how other professionals within key Department of Defense Military Family of the Magnuson-Stevens Fishery sectors (i.e., transportation, marine, Readiness Council; Notice of Federal Conservation and Management Act, tourism, energy) and international users Advisory Committee meeting; provided the public has been notified of perceive these products and use them in Cancellation the intent of the SSC Groundfish decision-making. In particular, NOAA is interested in input on the NHC Track AGENCY: Under Secretary of Defense for Subcommittee to take final action to Personnel and Readiness, Department of address the emergency. Forecast Cone (often referred to as the Cone of Uncertainty). In addition to Defense (DoD). Special Accommodations appearing on NHC’s website, the Cone ACTION: Notice of Federal Advisory This meeting is physically accessible is widely disseminated on social media, Committee meeting; cancellation. to people with disabilities. Requests for online (e.g., local and national news SUMMARY: On March 6, 2020, the DoD sign language interpretation or other websites), and on television—with published a notice that announced the auxiliary aids should be directed to Mr. broadcast meteorologists and private next meeting of the Department of Kris Kleinschmidt, (503) 820–2411, at weather industry often making their Defense Military Family Readiness least 10 days prior to the meeting date. own version of the graphic. Council, which was to take place on Authority: 16 U.S.C. 1801 et seq. This request is for a web-based survey to collect data about the interpretation Tuesday, March 24, 2020 from 10:00 Dated: April 1, 2020. and use of the Cone of Uncertainty in a.m. to 12:00 p.m. DoD is publishing Diane M. DeJames-Daly, the decision-making of key sectors that this notice to announce that this federal Acting Deputy Director, Office of Sustainable are at significant risk during a advisory committee meeting has been Fisheries, National Marine Fisheries Service. hurricane: energy/utilities, tourism, cancelled and will be re-scheduled at a [FR Doc. 2020–07133 Filed 4–3–20; 8:45 am] transportation, and marine. NOAA will later date. BILLING CODE 3510–22–P use the data from the survey to FOR FURTHER INFORMATION CONTACT: determine how embedded the Cone of William Story, (571) 372–5345 (Voice), Uncertainty is in these key stakeholders’ (571) 372–0884 (Facsimile), OSD DEPARTMENT OF COMMERCE decision-making, as well as to Pentagon OUSD P–R Mailbox Family determine what those decisions and Readiness Council, osd.pentagon.ousd- National Oceanic and Atmospheric implications look like (life and safety, p-r.mbx.family-readiness-council@ Administration loss reduction, other). It is vitally mail.mil (Email). Mailing address is: Submission for OMB Review; important for the NHC to understand Office of the Deputy Assistant Secretary Comment Request; Surveys To Collect this information before making any of Defense (Military Community & Data on Use of the NOAA National changes to the Cone graphic (e.g., Family Policy), Office of Military Weather Service Cone of Uncertainty visualization changes with the intent of Family Readiness Policy, 4800 Mark improving understanding). Center Drive, Alexandria, VA 22350– The Department of Commerce will Affected Public: Business or other for- 2300, Room 3G15. Website: https:// submit to the Office of Management and profit organizations. www.militaryonesource.mil/leaders- Budget (OMB) for clearance the Frequency: Once. service-providers/military-family- following proposal for collection of Respondent’s Obligation: Voluntary. readiness-council.

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SUPPLEMENTARY INFORMATION: Due to Secretary for the Office of Energy 2020 to $65.6 million for FY 2021. The circumstances beyond the control of the Efficiency and Renewable Energy reduction is primarily the result of an Department of Defense and the regarding goals and objectives, increase in prior year carryover funds Designated Federal Officer, the programmatic and administrative and non-power revenue projections for Department of Defense Military Family policies, and to otherwise carry out the the Hoover Dam visitor center. The Readiness Council, the Department of Board’s responsibilities as designated in proposed base charge and rates would Defense Military Family Readiness the State Energy Efficiency Programs go into effect on October 1, 2020, and Council was unable to provide public Improvement Act of 1990 (Pub. L. 101– remain in effect through September 30, notification required by 41 CFR 102– 440). 2021. Publication of this Federal 3.150(a) concerning the cancellation of Tentative Agenda: During this Virtual Register notice will initiate the public the previously noticed meeting for Meeting Assistant Secretary of EERE process. March 24, 2020. Accordingly, the will provide the charges to STEAB, DATES: The consultation and comment Advisory Committee Management Deputy Assistant Secretary of Energy period begins today and will end July 6, Officer for the Department of Defense, Efficiency will discuss opportunities 2020. WAPA will present a detailed pursuant to 41 CFR 102–3.150(b), and engagement with-in Energy explanation of the proposed FY 2021 waives the 15-calendar day notification Efficiency Sector, and EERE Technology base charge and rates at a public requirement. Offices will discuss various funding information forum that will be held on On March 6, 2020 (85 FR 13149– opportunities and ways the State Energy May 6, 2020, from 10:30 a.m. to 12:30 13150), the DoD published a notice that Office can access DOE resources. p.m. Mountain Standard Time. WAPA announced a March 24, 2020 meeting of Public Participation: The Virtual will also host a public comment forum the Department of Defense Military Meeting is open to the public. Written that will be held on June 5, 2020, from Family Readiness Council. DoD is statements may be filed with the Board 10:30 a.m. to 12:30 p.m. Mountain publishing this notice to announce that either before or after the meeting. Standard Time. WAPA will conduct this federal advisory committee meeting Members of the public who wish to both the public information forum and has been cancelled and will be re- make oral statements pertaining to the public comment forum via WebEx. scheduled at a later date. The re- agenda items should contact Jay Instructions for participating in the scheduled meeting will be announced Nathwani at the address or telephone forums via WebEx will be posted on in the Federal Register. number listed above. Requests to make WAPA’s website at least 14 days prior Dated: April 1, 2020. oral comments must be received five to the public information and comment days prior to the meeting; reasonable Aaron T. Siegel, forums at https://www.wapa.gov/ provision will be made to include regions/DSW/Rates/Pages/boulder- Alternate OSD Federal Register Liaison requested topic(s) on the agenda. The Officer, Department of Defense. canyon-rates.aspx. WAPA will accept Chair of the Board is empowered to written comments any time during the [FR Doc. 2020–07176 Filed 4–3–20; 8:45 am] conduct the meeting in a fashion that consultation and comment period. BILLING CODE 5001–06–P will facilitate the orderly conduct of ADDRESSES: Send written comments to business. Ms. Tracey A. LeBeau, Regional Minutes: The minutes of the meeting Manager, Desert Southwest Region, DEPARTMENT OF ENERGY will be available for public review and Western Area Power Administration, copying within 60 days on the STEAB State Energy Advisory Board P.O. Box 6457, Phoenix, Arizona 85005– website at: http://www.energy.gov/eere/ 6457, or email [email protected]. AGENCY: Office of Energy Efficiency and steab/state-energy-advisory-board. WAPA will post information concerning Renewable Energy, Department of Signed in Washington, DC, on April 1, the rate process and written comments Energy. 2020. received on its website at https:// ACTION: Notice of open teleconference. LaTanya Butler, www.wapa.gov/regions/DSW/Rates/ Deputy Committee Management Officer. Pages/boulder-canyon-rates.aspx. SUMMARY: This notice announces a [FR Doc. 2020–07155 Filed 4–3–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms. Virtual Meeting of the State Energy BILLING CODE 6450–01–P Tina Ramsey, Rates Manager, Desert Advisory Board (STEAB). The Federal Southwest Region, Western Area Power Advisory Committee Act requires that Administration, P.O. Box 6457, public notice of these meetings be DEPARTMENT OF ENERGY Phoenix, Arizona 85005–6457, (602) announced in the Federal Register. 605–2565, or [email protected]. DATES: Wednesday, May 6, 2020, from Western Area Power Administration SUPPLEMENTARY INFORMATION: Hoover 12:00 p.m. to 4:00 p.m. (ET). Dam,1 authorized by the Boulder To receive the Virtual Meeting Boulder Canyon Project Canyon Project Act of 1928, as amended information, please contact the Board’s AGENCY: Western Area Power (43 U.S.C 617 et seq.), sits on the Designated Federal Officer at the Administration, DOE. Colorado River along the Arizona- address or phone number listed below. ACTION: Notice of proposed fiscal year Nevada border. The Hoover Dam power FOR FURTHER INFORMATION CONTACT: Jay 2021 Boulder Canyon Project base plant has 19 generating units (two for Nathwani, Designated Federal Officer, charge and rates for electric service. plant use) and an installed capacity of Office of Energy Efficiency and 2,078.8 megawatts (4,800 kilowatts for Renewable Energy, US Department of SUMMARY: Western Area Power plant use). In collaboration with the Energy, 1000 Independence Ave. SW, Administration (WAPA) is proposing an Bureau of Reclamation (Reclamation), Washington, DC 20585. Phone number adjustment to the base charge and rates WAPA markets and delivers 202–586–9410, and email for fiscal year (FY) 2021 Boulder [email protected]. Canyon Project (BCP) electric service 1 Hoover Dam was known as Boulder Dam from 1933 to 1947, but was renamed Hoover Dam by an SUPPLEMENTARY INFORMATION: under Rate Schedule BCP–F10. The April 30, 1947 joint resolution of Congress. See Act Purpose of the Board: To make proposal would reduce the base charge of April 30, 1947, H.J. Res. 140, ch. 46, 61 Stat. 56– recommendations to the Assistant 1.2 percent from $66.4 million in FY 57.

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hydropower from the Hoover Dam maintenance, replacements, payments On June 6, 2018, the Federal Energy power plant through high voltage to States, and Hoover Dam visitor Regulatory Commission (FERC) transmission lines and substations to services. Non-power revenue confirmed and approved Rate Schedule Arizona, Southern California, and projections such as water sales, Hoover BCP–F10 for a five-year period ending Southern Nevada. Dam visitor revenue, ancillary services, September 30, 2022.2 Rate Schedule The rate-setting methodology for BCP and late fees help offset these projected BCP–F10 and the BCP Electric Service calculates an annual base charge rather costs. Hoover power customers are Contract require WAPA to determine than a unit rate for Hoover Dam billed a percentage of the base charge in the annual base charge and rates for the hydropower. The base charge recovers proportion to their power allocation. A next fiscal year before October 1 of each an annual revenue requirement that unit rate is calculated for comparative year. The FY 2020 BCP base charge and includes projected costs of investment purposes but is not used to determine rates expire on September 30, 2020. repayment, interest, operations, the charge for service.

COMPARISON OF BASE CHARGE AND RATES

Amount Percent FY 2020 FY 2021 change change

Base Charge ($) ...... $66,419,402 $65,606,080 ¥ $813,322 ¥ 1.2 Composite Rate (mills/kWh) ...... 18.08 18.83 0.75 4.1 Energy Rate (mills/kWh) ...... 9.04 9.42 0.38 4.2 Capacity Rate ($/kW-Mo) ...... $1.75 $1.73 ¥ $0.02 ¥ 1.1

Reclamation’s FY 2021 budget is forecast of non-power revenue effective January 15, 2020, the Secretary increasing $4.5 million to $80.2 million, projections associated with the Hoover of Energy delegated to the Under a 5.9 percent increase from FY 2020. Dam visitor center may require Secretary of Energy the authority vested Higher operations and maintenance modification due to social distancing in the Secretary with respect to WAPA. expenses ($2.6 million) and replacement requirements resulting from COVID–19. By Redelegation Order No. 00–002.10E, costs ($1.7 million) account for most of Legal Authority effective February 14, 2020, the Under this increase. The rate impact of these Secretary of Energy delegated to the This action constitutes a major rate increases to Reclamation’s budget are Assistant Secretary for Electricity the adjustment as defined by 10 CFR more than offset, however, by an same authority with respect to WAPA.3 increase in prior year carryover ($2.8 903.2(e). Pursuant to 10 CFR 903.15 and This rate action is issued under the million) and non-power revenue 10 CFR 903.16, WAPA will hold public Redelegation Order and DOE’s projections ($2 million) following information and public comment completion of the Hoover Dam visitor forums for this rate adjustment. WAPA procedures for public participation in center renovations. will review and consider all timely rate adjustments set forth at 10 CFR WAPA’s FY 2021 budget is decreasing public comments and adjust the parts 903 and 904.4 $400,000 to $8.4 million, a 4.2 percent proposal, as appropriate, at the Availability of Information reduction from FY 2020. Lower conclusion of the consultation and operations and maintenance expenses comment period. All studies, comments, letters, ($300,000) and the elimination of WAPA is establishing rates for BCP memoranda, and other documents WAPA’s contingency fund ($100,000) electric service in accordance with WAPA initiates or uses to develop the account for this decrease. section 302 of the Department of Energy proposed base charge and rates are While there is a 1.2 percent reduction (DOE) Organization Act (42 U.S.C. available for inspection and copying at to the FY 2021 base charge, the 7152). This provision transferred to, and the Desert Southwest Customer Service composite and energy rates are vested in, the Secretary of Energy Regional Office, Western Area Power increasing 4.1 and 4.2 percent certain functions of the Secretary of the Administration located at 615 South respectively from FY 2020. The Interior, along with the power marketing 43rd Avenue, Phoenix, Arizona 85009. composite and energy rates use a functions of Reclamation. Those Many of these documents and forecasted energy value, which functions include actions that supporting information are also decreased due to the long-term drought specifically apply to the BCP. available on WAPA’s website at https:// in the Lower Colorado River Basin. The The BCP Electric Service Contract capacity rate is a 1.1 percent reduction states that in years other than the first www.wapa.gov/regions/DSW/Rates/ from FY 2020 due to the decrease in the and fifth years of a rate schedule Pages/boulder-canyon-rates.aspx. base charge. Forecasted energy and approved by the FERC on a final basis, Ratemaking Procedure Requirements capacity values may be updated when adjustments to the base charge shall be determining the final base charge due to effective upon approval by the Deputy Environmental Compliance changing hydrological conditions. Secretary of Energy. Under the DOE This proposal, to be effective October Organization Act, the Secretary of WAPA is in the process of 1, 2020, is preliminary and subject to Energy holds plenary authority over determining whether an environmental change based on modifications to DOE affairs with respect to the Power assessment or an environmental impact forecasts before publication of the final Marketing Administrations. By statement should be prepared or if this base charge and rates. In particular, the Delegation Order No. 00–002.00S,

2 Order Confirming and Approving Rate Schedule 3 Delegation Orders No. 00–002–00S and 00– place into effect on an interim basis WAPA’s power on a Final Basis, FERC Docket No. EF18–1–000, 163 002.10E both clarify that this delegation of authority and transmission rates. FERC ¶ 62,154 (2018). is ‘‘in addition’’ to the authority to approve and 4 50 FR 37,835 (Sept. 18, 1985) and 84 FR 5347 (Feb. 21, 2019).

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action can be categorically excluded Additional instructions on review-programs-predating-pesticide- from those requirements.5 commenting or visiting the docket, registration. along with more information about Determination Under Executive Order V. Can I comment on this report? dockets generally, is available at http:// 12866 www.epa.gov/dockets. EPA welcomes input from stakeholders and the general public. WAPA has an exemption from FOR FURTHER INFORMATION CONTACT: centralized regulatory review under Rame´ Cromwell, Antimicrobials Any written comments received will be Executive Order 12866; accordingly, no Division (7510P), Office of Pesticide taken into consideration in the event clearance of this notice by the Office of Programs, Environmental Protection that EPA determines that further action Management and Budget is required. Agency, 1200 Pennsylvania Ave. NW, is warranted. EPA does not expect this Dated: March 25, 2020. Washington, DC 20460–0001; telephone report to lead to any particular action, and therefore is not seeking particular Mark A. Gabriel, number: (703) 308–9068; email address: public comment. Administrator. [email protected]. [FR Doc. 2020–07154 Filed 4–3–20; 8:45 am] SUPPLEMENTARY INFORMATION: VI. What should I consider as I prepare my comments for EPA BILLING CODE 6450–01–P I. Does this action apply to me? 1. Submitting CBI. Do not submit this This is directed to the public in information to EPA through ENVIRONMENTAL PROTECTION general and may be of interest to a wide regulations.gov or email. Clearly mark AGENCY range of stakeholders including the part or all of the information that environmental, farm worker, and you claim to be CBI. For CBI [EPA–HQ–OPP–2014–0125; FRL–10004–81] agricultural advocates; the chemical information in a disk or CD–ROM that Pesticide Reregistration Performance industry; pesticide users; and members you email to EPA, mark the outside of Measures and Goals; Annual Progress of the public interested in the the disk or CD–ROM as CBI then Report; Notice of Availability integration of tolerance reassessment identify electronically within the disk or with the reregistration process, and the CD–ROM the specific information that AGENCY: Environmental Protection status of various regulatory activities is claimed as CBI. In addition to one Agency (EPA). associated with reregistration and complete version of the comment that ACTION: Notice. tolerances reassessment. Given the includes information claimed as CBI, a broad interest, the Agency has not copy of the comment that does not SUMMARY: This notice announces the attempted to identify all the specific contain the information claimed as CBI availability of EPA’s progress report in entities that may be interested in this must be submitted for inclusion in the meeting its performance measures and action. public docket. Information so marked goals for pesticide reregistration during II. What action is the Agency taking? will not be disclosed except in fiscal year 2017. This progress report accordance with procedures set forth in also presents the total number of This document announces the 40 CFR part 2. products registered under the ‘‘fast- availability of EPA’s progress reports in 2. Tips for preparing your comments. track’’ provisions of the Federal meeting its performance measures and When preparing you comments, see the Insecticide Fungicide and Rodenticide goals for pesticide reregistration during commenting tips at http:// Act (FIFRA). fiscal year 2017. www.epa.gov//dockets/comments.html. DATES: Submit comments on or before III. What is the Agency’s authority for Authority: 7 U.S.C. 136a–1(l). June 5, 2020. taking this action? ADDRESSES: Submit your comments, Dated: March 31, 2020. identified by docket identification (ID) The Federal Insecticide, Fungicide, Alexandra Dapolito Dunn, number EPA–HQ–OPP–2014–0125, by and Rodenticide Act (FIFRA), 7 U.S.C. Assistant Administrator, Office of Chemical one of the following methods: 136 et seq., requires EPA to publish Safety and Pollution Prevention. • Federal eRulemaking Portal: http:// information about EPA’s annual [FR Doc. 2020–07135 Filed 4–3–20; 8:45 am] www.regulations.gov. Follow the online achievements in meeting its BILLING CODE 6560–50–P instructions for submitting comments. performance measures and goals for Do not submit electronically any pesticide reregistration. The report for information you consider to be fiscal year 2017 discusses the FEDERAL MARITIME COMMISSION Confidential Business Information (CBI) completion of tolerance reassessment [Fact Finding No. 29] or other information whose disclosure is and describes the status of various restricted by statute. regulatory activities associated with • International Ocean Transportation Mail: OPP Docket, Environmental reregistration. The 2017 report also Supply Chain Engagement; Order Protection Agency Docket Center (EPA/ provides the total number of products DC), (28221T), 1200 Pennsylvania Ave. reregistered and products registered Pursuant to the Shipping Act of 1984, NW, Washington, DC 20460–0001. under the ‘‘fast-track’’ provisions of 46 U.S.C. 40101 et seq. (Shipping Act), • Hand Delivery: To make special FIFRA. the Federal Maritime Commission arrangements for hand delivery or (Commission) is charged with regulating IV. How can I get a copy of the report? delivery of boxed information, please the U.S. international ocean follow the instructions at http:// 1. Docket. The 2017 report is available transportation system that supports the www.epa.gov/dockets/contacts.html. at http://www.regulations.gov, under transportation of goods by water in the docket ID number EPA–HQ–OPP–2014– foreign commerce of the United States 5 In compliance with the National Environmental 0125. (‘‘liner service’’). The purposes of the Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., 2. EPA website. The 2017 report is Shipping Act include the requirements the Council on Environmental Quality Regulations for implementing NEPA (40 CFR parts 1500–1508), also available on EPA’s website at to ‘‘provide an efficient and economic and DOE NEPA Implementing Procedures and https://www.epa.gov/pesticide- transportation system in the ocean Guidelines (10 CFR part 1021). reevaluation/reregistration-and-other- commerce of the United States that is,

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insofar as possible, in harmony with, leaders from all commercial sectors of 1. Julie A. Bartlett, Spring Green, and responsive to, international the U.S. international supply chain, to Wisconsin; Constance S. Maloney, shipping practices,’’ and also ‘‘to develop commercial solutions to port Wauwatosa, Wisconsin; James P. promote the growth and development of congestion and related supply chain Maloney, Wauwatosa, Wisconsin; United States exports through challenges; Michael N. Schneider, Milwaukee, competitive and efficient ocean It is further ordered, That, the Wisconsin; Joshua M. Bartlett, transportation and by placing a greater Commissioner provide periodic updates Waukesha, Wisconsin; Kathleen M. reliance on the marketplace.’’ 46 U.S.C. to the Commission on the results of Bartlett, Geneva, Illinois; Mary F. 40101. efforts undertaken by this Order; Maloney, Wauwatosa, Wisconsin; Maintaining the effectiveness and It is further ordered, That, the Patrick J. Maloney, Asheville, North reliability of the global freight delivery Commissioner have full authority under Carolina; James R. Maloney, Shorewood, system is critically important to the 46 CFR 502.281 to 502.291, to perform Wisconsin; and Kathleen A. Maloney, Nation’s continued economic vitality. such duties as may be necessary in Whitefish Bay, Wisconsin; as members Unfortunately, congestion and accordance with U.S. law and of a group acting in concert to retain bottlenecks at ports and other points in Commission regulations. The voting shares of Mitchell Bank Holding the Nation’s supply chain have become Commissioner will be assisted by staff Corporation and thereby indirectly a serious risk to the growth of the U.S. members as may be assigned by the retain voting shares of Mitchell Bank, economy, job growth, and to our Chairman; both of Milwaukee, Wisconsin. Nation’s competitive position in the It is further ordered, That, this 2. Julie A. Bartlett, Spring Green, world. Proceeding be discontinued as ordered Wisconsin, individually, and acting in In 2016, in response to challenges by the Commission; and concert with Constance S. Maloney, It is finally ordered, That, notice of created by unresolved supply chain Wauwatosa, Wisconsin; James P. this Order be published in the Federal issues, the Commission convened teams Maloney, Wauwatosa, Wisconsin; Register. of industry leaders to develop process Michael N. Schneider, Milwaukee, innovations that would enhance supply By the Commission. Wisconsin; Joshua M. Bartlett, chain reliability and resilience. Each of Rachel Dickon, Waukesha, Wisconsin; Kathleen M. the teams was composed of members Secretary. Bartlett, Geneva, Illinois; Mary F. representative of the supply chain, [FR Doc. 2020–07096 Filed 4–3–20; 8:45 am] Maloney, Wauwatosa, Wisconsin; including public port authorities, BILLING CODE 6730–02–P Patrick J. Maloney, Asheville, North marine terminal operators, beneficial Carolina; James R. Maloney, Shorewood, cargo owners, ocean transportation Wisconsin; Kathleen A. Maloney, intermediaries, liner shipping Whitefish Bay, Wisconsin; Lauren L. companies, drayage trucking companies, FEDERAL RESERVE SYSTEM Schneider, Madison, Wisconsin; and longshore labor representatives, rail Change in Bank Control Notices; Leigh N. Schneider, Greenfield, officials and chassis providers. The Acquisitions of Shares of a Bank or Wisconsin; to retain voting shares of conclusions of these meetings were Bank Holding Company M.S. Investment Co., New Berlin, summarized and developed into a final Wisconsin and thereby indirectly retain report issued in December 2017. The notificants listed below have voting shares of Mitchell Bank, Recent global events have only applied under the Change in Bank highlighted the economic urgency of Control Act (Act) (12 U.S.C. 1817(j)) and Milwaukee, Wisconsin. responsive port and terminal operations § 225.41 of the Board’s Regulation Y (12 Board of Governors of the Federal Reserve to the effectiveness of the United States CFR 225.41) to acquire shares of a bank System, April 1, 2020. international freight delivery system. or bank holding company. The factors Yao-Chin Chao, Given the Commission’s mandate to that are considered in acting on the Assistant Secretary of the Board. ensure an efficient and economic applications are set forth in paragraph 7 [FR Doc. 2020–07169 Filed 4–3–20; 8:45 am] transportation system for ocean of the Act (12 U.S.C. 1817(j)(7)). BILLING CODE P commerce, the Commission has a clear The applications listed below, as well and compelling responsibility to as other related filings required by the actively respond to current challenges Board, if any, are available for impacting the global supply chain and immediate inspection at the Federal FEDERAL TRADE COMMISSION the American economy. Accordingly, Reserve Bank indicated. The [File No. 172 3102] the Commission has determined there is applications will also be available for a compelling need to convene new inspection at the offices of the Board of Federal-Mogul Motorparts LLC; supply chain innovation teams to Governors. Interested persons may Analysis to Aid Public Comment address these challenges. express their views in writing on the Therefore it is ordered, That, pursuant standards enumerated in paragraph 7 of AGENCY: Federal Trade Commission. to 46 U.S.C. 41302, 40302, 41101 to the Act. ACTION: Proposed consent agreement; 41109, 41301 to 41309, and 40104, and Comments regarding each of these request for comment. 46 CFR 502.281 et seq., Commissioner applications must be received at the Rebecca F. Dye engage supply chain Reserve Bank indicated or the offices of SUMMARY: The consent agreement in this stakeholders in public or non-public the Board of Governors, Ann E. matter settles alleged violations of discussions to identify commercial Misback, Secretary of the Board, 20th federal law prohibiting unfair or solutions to certain unresolved supply Street and Constitution Avenue NW, deceptive acts or practices. The attached chain issues that interfere with the Washington, DC 20551–0001, not later Analysis to Aid Public Comment smooth operation of the U.S. than April 21, 2020. describes both the allegations in the international supply chain; A. Federal Reserve Bank of Chicago complaint and the terms of the consent It is further ordered, That, the (Colette A. Fried, Assistant Vice order—embodied in the consent Commissioner form one or more supply President) 230 South LaSalle Street, agreement—that would settle these chain innovation teams, composed of Chicago, Illinois 60690–1414: allegations.

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DATES: Comments must be received on If you prefer to file your comment on website, unless you submit a or before May 6, 2020. paper, write ‘‘Federal-Mogul Motorparts confidentiality request that meets the ADDRESSES: Interested parties may file LLC; File No. 172 3102’’ on your requirements for such treatment under comments online or on paper, by comment and on the envelope, and mail FTC Rule 4.9(c), and the General following the instructions in the your comment to the following address: Counsel grants that request. Request for Comment part of the Federal Trade Commission, Office of the Visit the FTC website at http:// SUPPLEMENTARY INFORMATION section Secretary, 600 Pennsylvania Avenue www.ftc.gov to read this Notice and the below. Write ‘‘Federal-Mogul NW, Suite CC–5610 (Annex D), news release describing it. The FTC Act Motorparts LLC; File No. 172 3102’’ on Washington, DC 20580; or deliver your and other laws that the Commission your comment, and file your comment comment to the following address: administers permit the collection of online at https://www.regulations.gov by Federal Trade Commission, Office of the public comments to consider and use in following the instructions on the web- Secretary, Constitution Center, 400 7th this proceeding, as appropriate. The based form. If you prefer to file your Street SW, 5th Floor, Suite 5610 (Annex Commission will consider all timely comment on paper, mail your comment D), Washington, DC 20024. If possible, and responsive public comments that it to the following address: Federal Trade submit your paper comment to the receives on or before May 6, 2020. For Commission, Office of the Secretary, Commission by courier or overnight information on the Commission’s 600 Pennsylvania Avenue NW, Suite service. privacy policy, including routine uses CC–5610 (Annex D), Washington, DC Because your comment will be placed permitted by the Privacy Act, see 20580, or deliver your comment to the on the publicly accessible website at https://www.ftc.gov/site-information/ following address: Federal Trade https://www.regulations.gov, you are privacy-policy. Commission, Office of the Secretary, solely responsible for making sure your comment does not include any sensitive Analysis of Proposed Consent Order to Constitution Center, 400 7th Street SW, Aid Public Comment 5th Floor, Suite 5610 (Annex D), or confidential information. In Washington, DC 20024. particular, your comment should not The Federal Trade Commission include any sensitive personal FOR FURTHER INFORMATION CONTACT: (‘‘FTC’’ or ‘‘Commission’’) has accepted, information, such as your or anyone Sydney Knight (202–326–2162), Bureau subject to final approval, an agreement else’s Social Security number; date of containing a consent order with Federal- of Consumer Protection, Federal Trade birth; driver’s license number or other Commission, 600 Pennsylvania Avenue Mogul Motorparts LLC (‘‘respondent’’). state identification number, or foreign The proposed consent order (‘‘order’’) NW, Washington, DC 20580. country equivalent; passport number; SUPPLEMENTARY INFORMATION: Pursuant has been placed on the public record for financial account number; or credit or 30 days for receipt of comments by to Section 6(f) of the Federal Trade debit card number. You are also solely interested persons. Comments received Commission Act, 15 U.S.C. 46(f), and responsible for making sure your during this period will become part of FTC Rule 2.34, 16 CFR 2.34, notice is comment does not include sensitive the public record. After 30 days, the hereby given that the above-captioned health information, such as medical Commission will again review the order consent agreement containing a consent records or other individually and the comments received, and will order to cease and desist, having been identifiable health information. In decide whether it should withdraw the filed with and accepted, subject to final addition, your comment should not order or make it final. approval, by the Commission, has been include any ‘‘trade secret or any placed on the public record for a period This matter involves the respondent’s commercial or financial information X of thirty (30) days. The following which . . . is privileged or advertising for Wagner OE brake pads. Analysis to Aid Public Comment confidential’’—as provided by Section The proposed complaint alleges that describes the terms of the consent 6(f) of the FTC Act, 15 U.S.C. 46(f), and Federal-Mogul violated Section 5(a) of agreement and the allegations in the FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— the FTC Act by disseminating a series of complaint. An electronic copy of the including in particular competitively false and unsubstantiated full text of the consent agreement sensitive information such as costs, advertisements claiming that: (1) In an package can be obtained from the FTC sales statistics, inventories, formulas, emergency, when a driver is trying to website (for March 25, 2020), at this web patterns, devices, manufacturing stop in the shortest distance possible, X address: https://www.ftc.gov/news- processes, or customer names. Wagner OE brake pads will stop a events/commission-actions. Comments containing material for pickup truck, SUV, or crossover up to You can file a comment online or on which confidential treatment is 50 feet sooner than competing brake paper. For the Commission to consider requested must be filed in paper form, pads; and (2) In an emergency, when a your comment, we must receive it on or must be clearly labeled ‘‘Confidential,’’ driver is trying to stop in the shortest before May 6, 2020. Write ‘‘Federal- and must comply with FTC Rule 4.9(c). distance possible, Wagner OEX brake Mogul Motorparts LLC; File No. 172 In particular, the written request for pads installed on a pickup truck, SUV, 3102’’ on your comment. Your confidential treatment that accompanies or crossover significantly reduce the risk comment—including your name and the comment must include the factual of collisions compared to competing your state—will be placed on the public and legal basis for the request, and must brake pads. record of this proceeding, including, to identify the specific portions of the The order includes injunctive relief the extent practicable, on the https:// comment to be withheld from the public that prohibits these alleged violations www.regulations.gov website. record. See FTC Rule 4.9(c). Your and fences in similar and related Due to the public health emergency in comment will be kept confidential only conduct. The product coverage would response to the COVID–19 outbreak and if the General Counsel grants your apply to any Federal-Mogul-branded or the agency’s heightened security request in accordance with the law and marketed aftermarket brake pads, screening, postal mail addressed to the the public interest. Once your comment including Wagner OEX aftermarket Commission will be subject to delay. We has been posted on the public FTC brake pads, as well as any third-party- strongly encourage you to submit your website—as legally required by FTC branded aftermarket brake pads for comments online through the https:// Rule 4.9(b)—we cannot redact or which the respondent provides www.regulations.gov website. remove your comment from the FTC marketing materials.

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Part I prohibits the respondent from DEPARTMENT OF HEALTH AND anyone else’s Social Security number, or making any representation about the HUMAN SERVICES confidential business information, such braking benefits, performance, or as a manufacturing process. Please note efficacy of any covered product, Food and Drug Administration that if you include your name, contact including that such product: (1) Will [Docket No. FDA–2020–N–0989] information, or other information that stop a vehicle significantly sooner than identifies you in the body of your competing brake pads; and (2) reduces Assessing the Resource Needs of the comments, that information will be the risk of collisions compared to Prescription Drug User Fee Act and posted on https://www.regulations.gov. • If you want to submit a comment competing brake pads, unless the Biosimilar User Fee Act; Publication of with confidential information that you representation is non-misleading, and, Report; Request for Comments do not wish to be made available to the at the time of making such AGENCY: Food and Drug Administration, public, submit the comment as a representation, the respondent HHS. written/paper submission and in the possesses and relies upon competent ACTION: Notice; request for comments. manner detailed (see ‘‘Written/Paper and reliable scientific evidence that is Submissions’’ and ‘‘Instructions’’). sufficient in quality and quantity based SUMMARY: The Food and Drug on standards generally accepted by Administration (FDA or Agency) is Written/Paper Submissions experts in the field of automotive announcing the publication of a report Submit written/paper submissions as braking, when considered in light of the providing options and follows: • entire body of relevant and reliable recommendations for a new Mail/Hand delivery/Courier (for methodology to accurately assess scientific evidence, to substantiate that written/paper submissions): Dockets changes in the resource and capacity the representation is true. Management Staff (HFA–305), Food and needs of the human drug and biosimilar Drug Administration, 5630 Fishers Part II requires the respondent to biologic review programs. FDA, in both Lane, Rm. 1061, Rockville, MD 20852. submit a signed acknowledgment that the Prescription Drug User Fee • For written/paper comments respondent received the order. Amendments of 2017 (PDUFA VI) and submitted to the Dockets Management Part III requires the respondent to file Biosimilar User Fee Amendments of Staff, FDA will post your comment, as compliance reports with the 2017 (BsUFA II) committed to obtaining well as any attachments, except for Commission, and to notify the this report through a contract with an information submitted, marked and Commission of bankruptcy filings or independent accounting or consulting identified, as confidential, if submitted changes in corporate structure that firm and publishing it before September as detailed in ‘‘Instructions.’’ 30, 2020. This was also codified in the Instructions: All submissions received might affect compliance obligations. respective authorizing statutory must include the Docket No. FDA– Part IV contains recordkeeping language. FDA is announcing 2020–N–0989 for ‘‘Assessing the requirements for accounting records, publication of this report and the Resource Needs of the Prescription Drug personnel records, consumer opening of a docket to receive public User Fee Act, Biosimilar User Fee Act, correspondence, advertising and comment on this report. Per the Report Publication; Request for marketing materials, and claim respective statutory sections, after Comments.’’ Received comments will be substantiation, as well as all records review of this report and receipt and placed in the docket and, except for necessary to demonstrate compliance or review of public comment thereon, FDA those submitted as ‘‘Confidential non-compliance with the order. Part V will establish a capacity planning Submissions,’’ publicly viewable at contains other requirements related to methodology for adjusting the annual https://www.regulations.gov or at the the Commission’s monitoring of the fee revenue amounts for the PDUFA and Dockets Management Staff between 9 respondent’s order compliance. Part VI BsUFA programs. a.m. and 4 p.m., Monday through provides the effective dates of the order, DATES: Submit either electronic or Friday. including that, with exceptions, the written comments on the report by May • Confidential Submissions—To order will terminate in 20 years. 6, 2020, to ensure that the Agency submit a comment with confidential The purpose of this analysis is to considers your comment on this report information that you do not wish to be made publicly available, submit your facilitate public comment on the order, before it implements the capacity comments only as a written/paper and it is not intended to constitute an planning adjustment methodology. submission. You should submit two official interpretation of the complaint ADDRESSES: You may submit comments on this report at any time as follows: copies total. One copy will include the or order, or to modify the order’s terms information you claim to be confidential in any way. Electronic Submissions with a heading or cover note that states By direction of the Commission. Submit electronic comments in the ‘‘THIS DOCUMENT CONTAINS April J. Tabor, following way: CONFIDENTIAL INFORMATION.’’ The • Acting Secretary. Federal eRulemaking Portal: Agency will review this copy, including https://www.regulations.gov. Follow the the claimed confidential information, in [FR Doc. 2020–07170 Filed 4–3–20; 8:45 am] instructions for submitting comments. its consideration of comments. The BILLING CODE 6750–01–P Comments submitted electronically, second copy, which will have the including attachments, to https:// claimed confidential information www.regulations.gov will be posted to redacted/blacked out, will be available the docket unchanged. Because your for public viewing and posted on comment will be made public, you are https://www.regulations.gov. Submit solely responsible for ensuring that your both copies to the Dockets Management comment does not include any Staff. If you do not wish your name and confidential information that you or a contact information to be made publicly third party may not wish to be posted, available, you can provide this such as medical information, your or information on the cover sheet and not

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in the body of your comments and you While this process creates a relatively industry/fda-user-fee-programs/ must identify this information as predictable source of UFA fee revenue resource-capacity-planning-and- ‘‘confidential.’’ Any information marked for FDA, it also requires a method for modernized-time-reporting, and FDA as ‘‘confidential’’ will not be disclosed adjustment to account for changes in will review public comments on the except in accordance with 21 CFR 10.20 workload. For example, without an report. After review of the public and other applicable disclosure law. For adjustment for workload, during a comments, FDA can then implement a more information about FDA’s posting period of growth in regulatory new robust methodology for assessing of comments to public dockets, see 80 submissions the target revenue will the resource needs of the program that FR 56469, September 18, 2015, or access remain fixed and a higher number of results from sustained increases in the information at: https:// submissions results in the same total PDUFA workload, as appropriate and www.govinfo.gov/content/pkg/FR-2015- revenue collected; in other words, the warranted in light of comments we 09-18/pdf/2015-23389.pdf. Agency would have more work while receive. Docket: For access to the docket to fee revenue remains fixed and would Within BsUFA II (fiscal years 2018 to read background documents or the not be able to afford hiring the 2022), FDA made a commitment to use electronic and written/paper comments additional staff required to maintain this same study to also assess options received, go to https:// review timeline performance. and recommendations for a new www.regulations.gov and insert the This issue was recognized by PDUFA- methodology to assess changes in the docket number, found in brackets in the program stakeholders, and in 2003, the resource and capacity needs of the first year of PDUFA III, a Workload heading of this document, into the biosimilar biological product review Adjustment was introduced. This ‘‘Search’’ box and follow the prompts program. Whereas PDUFA has an adjustment created a means to adjust the and/or go to the Dockets Management interim Capacity Planning Adjustment annual PDUFA target revenue to Staff, 5630 Fishers Lane, Rm. 1061, in place now, BsUFA does not have and account for long-term changes in the Rockville, MD 20852. has not had an adjustment designed to volume of certain regulatory accomplish similar goals for the BsUFA FOR FURTHER INFORMATION CONTACT: submissions. Although an important program. Like with the process outlined Graham Thompson, Center for Drug mechanism to help ensure that the with PDUFA, FDA can also implement Evaluation and Research, Food and PDUFA target revenue keeps pace with an adjustment methodology following Drug Administration, 10903 New regulatory submissions, the Workload the publication of the report and review Hampshire Ave., Bldg. 51, Rm. 1146, Adjustment has been a topic in each of any public comments, as appropriate Silver Spring, MD 20993–0002, 301– PDUFA reauthorization negotiation and warranted in light of comments we 796–5003, Fax: 301–847–8443, since its inception. As such, it has receive. [email protected]. undergone a number of changes, notably Dated: April 1, 2020. SUPPLEMENTARY INFORMATION: FDA is the addition and later removal of a announcing the publication of a report factor to adjust revenue based on the Lowell J. Schiller, providing options and complexity of submissions. It has also Principal Associate Commissioner for Policy. recommendations for a new been the subject of a number of studies. [FR Doc. 2020–07175 Filed 4–3–20; 8:45 am] A theme emerging from these studies methodology to accurately assess BILLING CODE 4164–01–P changes in the resource and capacity identified the Workload Adjuster methodology as suboptimal, but the best needs of the human drug and biosimilar method reasonably possible based on biologic review programs. FDA, in both DEPARTMENT OF HEALTH AND the data available to FDA at that time. HUMAN SERVICES the PDUFA VI and BsUFA II In PDUFA VI (fiscal years 2018 to commitment letters, committed to 2022), FDA made commitments to help Health Resources and Services obtaining this report and publishing it improve the available data and in turn Administration before September 30, 2020. These the adjuster methodology. These commitments were also codified in the commitments included establishing a Meeting of the Council on Graduate statute authorizing these programs Resource Capacity Planning capability Medical Education (sections 736(c)(2)(C) and 744H(c)(2)(B) and modernizing FDA’s activity-based of the Federal Food, Drug, and Cosmetic time reporting to provide better data to AGENCY: Health Resources and Services Act (21 U.S.C. 379h(c)(2)(C) and 379j– inform current and likely future Administration (HRSA), Department of 52(c)(2)(B)). resource needs. PDUFA VI changed the Health and Human Services. PDUFA and BsUFA, (referred to name of the adjustment to the Capacity ACTION: Notice; correction. collectively here as ‘‘UFA(s)’’) each Planning Adjustment, established an establish fee amounts for each fiscal interim methodology for the early years SUMMARY: The Council on Graduate year. Although the specifics for each of PDUFA VI, and outlined a process to Medical Education (COGME) meeting UFA are different, the process for each implement a new fee adjustment previously announced as in-person and generally involves the following: Taking methodology. webinar/conference call on Tuesday, an annual base revenue amount and The process calls for FDA to obtain, April 28, 2020, and Wednesday, April adjusting that base revenue amount for through a contract with an independent 29, 2020, has changed its format, date, inflation and other UFA-specific accounting or consulting firm, an and time. The meeting will now be a adjustments to establish a target revenue evaluation of options and one-day webinar and conference call amount for the fiscal year for the UFA. recommendations for a new only on Wednesday, April 29, 2020, The target revenue amount sets the total methodology to accurately assess from 12:00 p.m.–5:00 p.m. Eastern amount of fee revenue for the UFA that changes in the resource and capacity Time. The webinar link, conference FDA expects to collect for that fiscal needs of the human drug review dial-in number, meeting materials, and year. The target revenue amount is then program. Booz Allen Hamilton was agenda will be available on the COGME divided up based on UFA-specific commissioned to produce this report. website: https://www.hrsa.gov/advisory- processes to set the individual fee The report is publicly available on committees/graduate-medical-edu/ amounts for the fiscal year. FDA’s website at: https://www.fda.gov/ meetings/index.html.

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FOR FURTHER INFORMATION CONTACT: practice improvement. NACNEP also the Federal Office of Rural Health Policy Kennita Carter, MD, Senior Advisor and prepares and submits an annual report (RH). Designated Federal Official, Division of to the Secretary of HHS and Congress Chapter RH—Federal Office of Rural Medicine and Dentistry, Bureau of describing its activities, including Health Policy Health Workforce, HRSA, 5600 Fishers NACNEP’s findings and Lane, Rockville, Maryland 20857; 301– recommendations concerning activities Section RH.10 Organization 945–9505; or [email protected]. under Title VIII of the PHS Act. Delete the organization for FORHP During the April 20, 2020, meeting, Correction: Meeting will be a one-day (RH) in its entirety and replace with the the writing sub-committee of NACNEP webinar and conference call only rather following: than two-days and in-person as will review recent literature and hear The Federal Office of Rural Health previously announced. from an expert speaker on the topic of Policy is headed by the Associate its 17th Report to Congress, Preparing Administrator, who reports directly to Maria G. Button, Nurse Faculty, and Addressing the the Administrator, HRSA. FORHP Director, Executive Secretariat. Shortage of Nurse Faculty and Clinical includes the following components: [FR Doc. 2020–07147 Filed 4–3–20; 8:45 am] Preceptors. Agenda items are subject to (1) Office of the Associate BILLING CODE 4165–15–P change as priorities dictate. Refer to the NACNEP website for updated Administrator (RH) (2) Hospital State Division (RH1); information concerning the meeting. (3) Community-Based Division (RH2); DEPARTMENT OF HEALTH AND The final agenda will be posted at least HUMAN SERVICES (4) Office for the Advancement of 14 calendar days before the meeting. Telehealth (RH4); Members of the public will have the (5) Policy Research Division (RH5); Health Resources and Services opportunity to provide comments. Administration (6) Administrative Operations Division Public participants may submit written (RH6); and Meeting of the National Advisory statements in advance of the scheduled (7) Rural Strategic Initiatives Division Council on Nurse Education and meeting. Oral comments will be (RH7). Practice honored in the order they are requested and may be limited as time allows. Section RH.20 Function AGENCY: Health Resources and Services Requests to submit a written statement Delete the functional statement for Administration (HRSA), Department of or make oral comments to NACNEP FORHP (RH) and in its entirety and Health and Human Services (HHS). should be sent to Camillus Ezeike using replace with the following: ACTION: Notice. the contact information above at least 3 business days before the meeting. Federal Office of Rural Health Policy SUMMARY: In accordance with the (RH) Maria G. Button, Federal Advisory Committee Act, this Office of the Associate Administrator Director, Executive Secretariat. notice announces that the National (RH) Advisory Council on Nurse Education [FR Doc. 2020–07115 Filed 4–3–20; 8:45 am] and Practice (NACNEP) has scheduled a BILLING CODE 4165–15–P The Federal Office of Rural Health writing subcommittee public meeting. Policy (FORHP) is responsible for the Information about NACNEP, the agenda, overall leadership and management of and materials for this meeting can be DEPARTMENT OF HEALTH AND the Office. FORHP serves as a focal found on the NACNEP website at HUMAN SERVICES point within HHS for rural health- related issues and as a principal source https://www.hrsa.gov/advisory- Health Resources and Services committees/nursing/index.html. of advice to the Secretary for Administration coordinating efforts to strengthen and DATES: April 20, 2020, 10:00 a.m.–2:00 improve the delivery of health services p.m. Eastern Time (ET). Statement of Organization, Functions to populations in the nation’s rural ADDRESSES: This meeting will be held and Delegations of Authority areas. FORHP provides leadership by teleconference, and/or Adobe This notice amends Part R of the within HHS and with stakeholders in Connect webinar. Statement of Organization, Functions providing information and counsel • Webinar link. https:// and Delegations of Authority of the related to access to, and financing and www.hrsa.gov/advisory-committees/ Department of Health and Human quality of, health care to rural nursing/meetings.html. Services (HHS), Health Resources and populations. Specifically, the Office of • Conference call-in number: 1–888– Services Administration (HRSA) (60 FR the Associate Administrator (1) provides 455–4141; Passcode: FACA Meeting. 56605, as amended November 6, 1995; staff support to the National Advisory FOR FURTHER INFORMATION CONTACT: as last amended at 84 FR 49535–49540 Committee on Rural Health and Human Camillus Ezeike, Ph.D., LL.M. J.D., RN, dated September 20, 2019). Services; (2) stimulates and coordinates PMP, Designated Federal Official, HRSA is making changes within the interaction on rural health activities and NACNEP, Bureau of Health Workforce, Federal Office of Rural Health Policy programs in the agency, Department and HRSA, 5600 Fishers Lane, Rockville, (FORHP) in order to realign the with other federal agencies; (3) Maryland 20857; 301–443–2886; or functions for the management of establishes and maintains a resource [email protected]. emerging rural health program center for the collection and SUPPLEMENTARY INFORMATION: NACNEP initiatives, including rural substance dissemination of the latest information provides advice and recommendations abuse programs. and research findings related to the to the Secretary of HHS and the U.S. This reorganization updates the delivery of health services in rural areas; Congress on policy issues related to the organization, functions, and delegation (4) ensures successful dissemination of activities carried out under Title VIII of of authority of FORHP (RH). Specifically appropriate information technology the Public Health Service (PHS) Act, this reorganization (1) establishes the advances, such as telehealth or including the range of issues relating to Rural Strategic Initiatives Division; and electronic health records systems; (5) the nurse workforce, education, and (2) updates the functional statement for monitors the health information

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technology policy and activities of other weapons for cancer and other diseases; Administrative Operations Division HHS components for useful application and (5) provides technical assistance to (RH6) in rural areas; (6) provides overall grantees and rural communities. direction and leadership over the The Administrative Operations management of nationwide community- Office for the Advancement of Division collaborates with FORHP based rural health grants programs; (7) Telehealth (RH4) leadership to plan, coordinate, and direct FORHP-wide administrative provides overall direction and The Office for the Advancement of leadership over the management of a Telehealth serves as the operational management activities. Specifically, the program of state grants which supports focal point for coordinating and Administrative Operations Division (1) collaboration within state offices of advancing the use of telehealth develops, executes, and monitors rural health; (8) provides overall technologies across all of HRSA’s FORHP’s budget; (2) provides guidance direction and leadership over the programs including, but not limited to, and coordination of human resources; management of programs to advance the the provision of health care at a distance (3) plans, coordinates, and manages use of telehealth and coordination of (telemedicine); distance-based learning FORHP’s grant activities; (4) plans, health information technology; (9) coordinates, and manages FORHP’s provides overall direction and to improve the knowledge of agency grantees, and others; and improved procurement activities; (5) coordinates leadership over the Office’s the review and clearance of administrative and management information dissemination to both correspondence and official documents functions; and (10) provides overall consumers and providers about the to and from FORHP; and (6) provides direction and leadership over the latest developments in telemedicine. Office’s new rural health program The Office for the Advancement of additional management support services initiatives created as a result of agency, Telehealth carries out the following including, but not limited to, Department and/or administrative functions, specifically the Office (1) timekeeping, supplies, equipment, priorities. develops and coordinates telehealth space, records, and training. network and telehealth resource centers Hospital State Division (RH1) grant programs; (2) provides Rural Strategic Initiatives Division The Hospital State Division serves as professional assistance and support in (RH7) the focal point within FORHP to developing telehealth initiatives; and (3) The Rural Strategic Initiatives support rural hospital and state grant administers grant programs to Division serves as the focal point within programs focused on rural populations. promulgate and evaluate the use of FORHP to plan and coordinate new Specifically, the Hospital State Division appropriate telehealth technologies rural program initiatives created as a is organized around the following among HRSA grantees and others. result of agency, Department, and/or primary issue areas: (1) Plans and manages a program of state grants which Policy Research Division (RH5) Administration priorities. Specifically, support collaboration within state the Rural Strategic Initiatives Division The Policy Research Division serves (1) plans and manages rural health offices of rural health; (2) works with as the focal point within FORHP to states, state hospital associations, substance-abuse grant programs; (2) support health policy and research leads and manages new rural health private associations, foundations, and focused on rural populations. other organizations to focus attention program initiatives that emerge as a Specifically, the Policy Research on, and promote solutions to, problems result of agency, Department, or Division (1) supports rural health related to the delivery of health services Administration priorities; (3) provides research centers and keeps informed of in rural communities; and (3) provides technical assistance to grantees and research and demonstration projects coordinated technical assistance to rural communities; and (4) evaluates funded by states and foundations in the grantees and rural communities. new rural programs to determine the field of rural health care delivery; (2) impact of the resources invested in rural Community-Based Division (RH2) establishes and maintains a resource communities. The Community-Based Division center for the collection and serves as the focal point within FORHP dissemination of the latest information Section RH.30 Delegation of Authority to support rural community grant and research findings related to the programs. Specifically, the Community- delivery of health services in rural areas; All delegations of authority and re- Based Division is organized around the (3) maintains data and analytic delegations of authority made to following primary issue areas: (1) Plans capabilities to support office functions; officials and employees of affected and manages several nationwide rural (4) advises the agency, Administrator, organizational components will health grants programs; (2) supports and Department on the effects of current continue in them or their successors programs on rural health, public health, policies and proposed statutory, pending further redelegation, if allowed, and health status improvement; (3) regulatory, administrative, and provided they are consistent with this funds public and private non-profit budgetary changes in the programs reorganization. entities for the operation of clinics that established under titles XVIII and XIX of Alex M Azar II, provide diagnosis, treatment, and the Social Security Act, on the financial rehabilitation of active and retired coal viability of small rural hospitals and the Secretary. miners and others with respiratory ability of rural areas to attract and retain [FR Doc. 2020–07153 Filed 4–3–20; 8:45 am] ailments (black lung) and other physicians and other health BILLING CODE 4165–15–P occupational related respiratory disease professionals; and (5) monitors rural impairments; (4) funds radiation hospital impact analyses developed by exposure screening and education the Centers for Medicare & Medicaid programs that screen eligible Services whenever proposed regulations individuals adversely affected by the might have a significant impact on a mining, transport, and processing of substantial number of small rural uranium and the testing of nuclear hospitals.

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DEPARTMENT OF HEALTH AND network, to respond to the training and the document identifier 4040–0018–60D HUMAN SERVICES technical assistance needs in the and project title for reference to targeted EHE jurisdictions. The [email protected], or call (202) 690– Health Resources and Services recipient will use supplemental funds to 7569, the Reports Clearance Officer. Administration scale up their concentration on EHE SUPPLEMENTARY INFORMATION: Interested jurisdictions by conducting targeted persons are invited to send comments Ryan White HIV/AIDS Program Part F; outreach to ensure their awareness of, AIDS Education and Training Centers regarding this burden estimate or any and ability to access the breadth of other aspect of this collection of National Coordinating Resource services, technical assistance and Center information, including any of the curated materials available from the following subjects: (1) The necessity and AGENCY: Health Resources and Services AETC NCRC. The AETC NCRC’s current utility of the proposed information Administration (HRSA), Department of geographic coverage offers a strategic collection for the proper performance of Health and Human Services. opportunity to leverage this existing the agency’s functions; (2) the accuracy infrastructure to provide access to ACTION: Notice of Supplemental Award. of the estimated burden; (3) ways to critical, time sensitive training and enhance the quality, utility, and clarity SUMMARY: HRSA’s HIV/AIDS Bureau technical assistance and evidence- of the information to be collected; and will award $200,000 in supplemental informed interventions to providers in (4) the use of automated collection funding to Rutgers, the State University EHE targeted jurisdictions. Expanding techniques or other forms of information of New Jersey, Biomedical and Health the availability of state-of-the-art HIV technology to minimize the information Sciences (Rutgers), to support the Ryan care and treatment training resources collection burden. White HIV/AIDS Program Part F AIDS will help prepare for the projected Title of the Collection: SF–428 Education and Training Centers’ (AETC) increase in demand for well-trained HIV Tangible Personal Property Report. National Coordinating Resource Center care professionals as a result of the EHE Type of Collection: Reinstatement (NCRC) project in Fiscal Year (FY) 2020. rollout. This award recipient has the without change. Pending the availability of funds and demonstrated expertise and scalable satisfactory performance, HRSA will experience required to address these OMB No. 4040–0018 award up to $200,000 in each time-sensitive training and technical Abstract: Reporting on the status of succeeding fiscal year of their period of assistance needs. Federally-owned property, including performance. The NCRC is responsible FOR FURTHER INFORMATION CONTACT: disposition, is necessitated in 2 CFR for facilitating and coordinating AETC Sherrillyn Crooks, Chief, HIV Education part 215, the ‘‘Uniform Administrative training and technical assistance Branch, Office of Training and Capacity Requirements for Grants and activities, disseminating, and promoting Development, HRSA, 5600 Fishers Lane, Agreements with Institutions of Higher the work of AETC programs. This Room 9N110, Rockville, MD 20857, by Education, Hospitals, and Other Non- supplemental funding will enable the email at [email protected] or by phone Profit Organizations’’, and the ‘‘Uniform recipient to scale up their program at (301) 443–7662. Administrative Requirements for Grants efforts to ensure that HIV care and and Agreements with State and Local Thomas J. Engels, treatment professionals have the tools Governments’’. Additionally, Public and information needed to achieve the Administrator. Law 106–107, the Federal Financial goals of the Ending the HIV Epidemic: [FR Doc. 2020–07093 Filed 4–3–20; 8:45 am] Assistance Management Improvement A Plan for America (EHE). BILLING CODE 4165–15–P Act requires that agencies ‘‘simplify SUPPLEMENTARY INFORMATION: Federal financial assistance application and reporting requirements.’’ 31 U.S.C. Intended Recipient of the Award: DEPARTMENT OF HEALTH AND 6101, Section 3. Rutgers, the State University of New HUMAN SERVICES Jersey, Biomedical and Health Sciences, Agencies are currently using a variety the AETC NCRC. [Document Identifier OS 4040–0018] of forms to account for both Federally- Amount of Award: $200,000 available owned and grantee owned equipment in FY 2020. Agency Information Collection and property. During the public Project Period: March 1, 2020–June Request; 60-Day Public Comment consultation process mandated by 30, 2024. Request Public Law 106–107, grant recipients CFDA Number: 93.145. requested a standard form to help them AGENCY: Office of the Secretary, HHS. Authority: 42 U.S.C. 300ff–111(a) submit appropriate property (section 2692(a) of the Public Health ACTION: Notice. information when required. The Public Service (PHS) Act), 42 U.S.C. 300ff–121 SUMMARY: In compliance with the Law 106–107 Post Awards Subgroup (section 2693 of the PHS Act), and requirement of the Paperwork developed a new standard form, the Further Consolidated Appropriations Reduction Act of 1995, the Office of the Tangible Personal Property Report, for Act, 2020 (Pub. L. 116–94). Secretary (OS), Department of Health submission of the required data. The Justification: Rutgers, the State and Human Services, is publishing the form consists of the cover sheet (SF– University of New Jersey, Biomedical following summary of a proposed 428), three attachments to be used as and Health Sciences (Rutgers) currently collection for public comment. required: Annual Report, SF–428–A; operates the NCRC and provides Final Report, SF–428–B; Disposition coordination and management services DATES: Comments on the ICR must be Request/Report, SF–428–C and a for AETC HIV healthcare training and received on or before June 5, 2020. Supplemental Sheet, SF–428S to technical assistance activities and the ADDRESSES: Submit your comments to provide detailed individual item dissemination of AETC program [email protected] or (202) 690–7569. information when required. We are information. This supplemental funding FOR FURTHER INFORMATION CONTACT: requesting a three-year clearance of this will enable the recipient to build on When submitting comments or collection and that it be designated as a their existing framework within AETC requesting information, please include Common Form.

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ANNUALIZED BURDEN HOUR TABLE

Number of Average Forms Respondents Number of responses per burden per Total burden (if necessary) respondents respondents response hours

SF–428 Tangible Personal Property Report ...... Grant applicants ...... 2,000 1 1 2,000

Total ...... 2,000 1 1 2,000

Dated: March: 31, 2020. trade secrets or commercial property would constitute a clearly unwarranted Sherrette Funn, such as patentable material, and invasion of personal privacy. OS Report Clearance Officer. personal information concerning Name of Committee: National Institute on [FR Doc. 2020–07056 Filed 4–3–20; 8:45 am] individuals associated with the grant Aging Initial Review Group; Biological Aging BILLING CODE 4150–AE–P applications, the disclosure of which Review Committee. would constitute a clearly unwarranted Date: June 4–5, 2020. invasion of personal privacy. Time: 1:00 p.m. to 1:30 p.m. DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant Name of Committee: National Institute of applications. HUMAN SERVICES Child Health and Human Development Initial Place: National Institute on Aging, Review Group; Function, Integration, and Gateway Building, 7201 Wisconsin Avenue, National Institutes of Health Rehabilitation Sciences Subcommittee. Bethesda, MD 20892 (Telephone Conference Date: June 24–25, 2020. Call). Center for Scientific Review; Amended Time: 8:00 a.m. to 5:00 p.m. Contact Person: Bita Nakhai, Ph.D., Notice of Meeting Agenda: To review and evaluate grant Scientific Review Officer, Scientific Review applications. Branch, National Institute on Aging, National Notice is hereby given of a change in Place: National Institute of Child Health Institutes of Health, Gateway Bldg., 2C212, the meeting of the Center for Scientific and Human Development 6710B Rockledge 7201 Wisconsin Avenue, Bethesda, MD Review Special Emphasis Panel, April Drive Bethesda, MD 20892. 20892, (301) 402–7701, [email protected]. 14, 2020, 09:00 a.m. to April 14, 2020, Contact Person: Helen Huang, Ph.D. Name of Committee: National Institute on 02:00 p.m., National Institutes of Health, Scientific Review Officer, Scientific Review Aging Initial Review Group; Clinical Aging Rockledge II, 6701 Rockledge Dr., Branch, Eunice Kennedy Shriver National Review Committee. Bethesda, MD 20892, which was Institute of Child Health and Human Date: June 4–5, 2020. published in the Federal Register on Development, NIH, Bethesda, MD 20817, Time: 1:30 p.m. to 3:00 p.m. 301–435–8380, [email protected]. Agenda: To review and evaluate grant March 20, 2020, 85 FR 16105. applications. This notice is being amended to (Catalogue of Federal Domestic Assistance Program Nos. 93.865, Research for Mothers Place: National Institute on Aging, change the meeting format and time and Children, National Institutes of Health, Gateway Building, 7201 Wisconsin Avenue, from a teleconference call, 11:00 a.m. to HHS) Bethesda, MD 20892 (Telephone Conference 2:00 p.m. to a virtual meeting, 9:00 a.m. Call). to 2:00 p.m. The meeting is closed to the Dated: March 31, 2020. Contact Person: Isis S. Mikhail, MD, MPH, public. Ronald J. Livingston, Jr., DrPH, Scientific Review Officer, Scientific Program Analyst, Office of Federal Advisory Review Branch, National Institute on Aging, Dated: March 31, 2020. Committee Policy. National Institutes of Health, Gateway Miguelina Perez, [FR Doc. 2020–07067 Filed 4–3–20; 8:45 am] Building 2C212, 7201 Wisconsin Avenue, Program Analyst, Office of Federal Advisory Bethesda, MD 20892, (301) 402–7704, BILLING CODE 4140–01–P Committee Policy. [email protected]. [FR Doc. 2020–07066 Filed 4–3–20; 8:45 am] (Catalogue of Federal Domestic Assistance Program Nos. 93.866, Aging Research, BILLING CODE 4140–01–P DEPARTMENT OF HEALTH AND National Institutes of Health, HHS) HUMAN SERVICES Dated: April 1, 2020. DEPARTMENT OF HEALTH AND National Institutes of Health Miguelina Perez, HUMAN SERVICES Program Analyst, Office of Federal Advisory National Institute on Aging; Notice of Committee Policy. National Institutes of Health Closed Meetings [FR Doc. 2020–07129 Filed 4–3–20; 8:45 am] BILLING CODE 4140–01–P Eunice Kennedy Shriver National Pursuant to section 10(d) of the Institute of Child Health & Human Federal Advisory Committee Act, as Development; Notice of Closed amended, notice is hereby given of the DEPARTMENT OF HEALTH AND Meeting following meetings. HUMAN SERVICES Pursuant to section 10(d) of the The meetings will be closed to the Federal Advisory Committee Act, as public in accordance with the National Institutes of Health amended, notice is hereby given of the provisions set forth in sections National Library of Medicine; Notice of following meeting. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meetings; Amended Notice of Meeting The meeting will be closed to the as amended. The grant applications and public in accordance with the the discussions could disclose Notice is hereby given of a change in provisions set forth in sections confidential trade secrets or commercial the meeting of the Biomedical Library, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., property such as patentable material, Informatics and Data Science Review as amended. The grant applications and personal information concerning Committee, June 18–19, 2020, 8:00 a.m. and/or contract proposals and the individuals associated with the grant to 5:00 p.m. at the Bethesda Hyatt, 1 discussions could disclose confidential applications, the disclosure of which Metro Center, Bethesda, MD 20814

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which was published in the Federal Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Register on February 4, 2020, 85 FR 23, applications. Program Nos. 93.306, Comparative Medicine; Page 6208. Place: National Institutes of Health, Two 93.333, Clinical Research, 93.306, 93.333, This notice is being amended to Democracy Plaza, 6707 Democracy 93.337, 93.393–93.396, 93.837–93.844, change the meeting location from the Boulevard, Bethesda, MD 20892 (Telephone 93.846–93.878, 93.892, 93.893, National Conference Call). Institutes of Health, HHS) Bethesda Hyatt, 1 Metro Center, Contact Person: Najma S. Begum, Ph.D., Bethesda, MD 20814 to a video assisted Scientific Review Officer, Review Branch, Dated: March 31, 2020. meeting and to change the start time on DEA, NIDDK, National Institutes of Health, Tyeshia M. Roberson, June 18 to 9:30 a.m. The meeting is Room 7349, 6707 Democracy Boulevard, closed to the public. Bethesda, MD 20892–5452, (301) 594–8894, Program Analyst, Office of Federal Advisory [email protected]. Committee Policy. Dated: March 31, 2020. (Catalogue of Federal Domestic Assistance [FR Doc. 2020–07065 Filed 4–3–20; 8:45 am] Ronald J. Livingston, Jr., Program Nos. 93.847, Diabetes, BILLING CODE 4140–01–P Program Analyst, Office of Federal Advisory Endocrinology and Metabolic Research; Committee Policy. 93.848, Digestive Diseases and Nutrition [FR Doc. 2020–07068 Filed 4–3–20; 8:45 am] Research; 93.849, Kidney Diseases, Urology DEPARTMENT OF HEALTH AND BILLING CODE 4140–01–P and Hematology Research, National Institutes HUMAN SERVICES of Health, HHS) Dated: April 1, 2020. National Institutes of Health DEPARTMENT OF HEALTH AND Miguelina Perez, HUMAN SERVICES Program Analyst, Office of Federal Advisory National Institute on Aging; Notice of Committee Policy. Closed Meeting National Institutes of Health [FR Doc. 2020–07132 Filed 4–3–20; 8:45 am] Pursuant to section 10(d) of the National Institute of Diabetes and BILLING CODE 4140–01–P Digestive and Kidney Diseases; Notice Federal Advisory Committee Act, as of Closed Meetings amended, notice is hereby given of the DEPARTMENT OF HEALTH AND following meeting. Pursuant to section 10(d) of the HUMAN SERVICES The meeting will be closed to the Federal Advisory Committee Act, as public in accordance with the amended, notice is hereby given of the National Institutes of Health provisions set forth in sections following meetings. The meetings will be closed to the Center for Scientific Review; Notice of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., public in accordance with the Closed Meeting as amended. The grant applications and provisions set forth in sections the discussions could disclose Pursuant to section 10(d) of the confidential trade secrets or commercial 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as as amended. The grant applications and property such as patentable material, amended, notice is hereby given of the and personal information concerning the discussions could disclose following meeting. confidential trade secrets or commercial individuals associated with the grant The meeting will be closed to the applications, the disclosure of which property such as patentable material, public in accordance with the would constitute a clearly unwarranted and personal information concerning provisions set forth in sections invasion of personal privacy. individuals associated with the grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which as amended. The grant applications and Name of Committee: National Institute on would constitute a clearly unwarranted the discussions could disclose Aging Special Emphasis Panel; Regeneration invasion of personal privacy. confidential trade secrets or commercial and Aging. Name of Committee: National Institute of property such as patentable material, Date: May 6, 2020. Diabetes and Digestive and Kidney Diseases and personal information concerning Time: 9:00 a.m. to 12:00 p.m. Special Emphasis Panel; PAR19–319: NIDDK individuals associated with the grant Agenda: To review and evaluate grant Biorepository Non-Renewable Sample Access applications, the disclosure of which applications. (X01). would constitute a clearly unwarranted Place: National Institute on Aging, Date: May 28, 2020. invasion of personal privacy. Gateway Building, 7201 Wisconsin Avenue, Time: 11:00 a.m. to 1:00 p.m. Bethesda, MD 20892 (Telephone Conference Agenda: To review and evaluate grant Name of Committee: Center for Scientific Call). applications. Review Special Emphasis Panel; PAR Panel: Contact Person: Anita H. Undale, MD, Place: National Institutes of Health, Two Fogarty Global Brain Disorders II. Democracy Plaza, 6707 Democracy Date: April 16, 2020. Ph.D., Scientific Review Officer, Scientific Boulevard, Bethesda, MD 20892 (Telephone Time: 10:30 a.m. to 7:00 p.m. Review Branch, National Institute on Aging, Conference Call). Agenda: To review and evaluate grant National Institutes of Health, Gateway Contact Person: Najma S. Begum, Ph.D., applications. Building, Suite 2W200, 7201 Wisconsin Scientific Review Officer, Review Branch, Place: National Institutes of Health, 6701 Avenue, Bethesda, MD 20892, (301) 827– DEA, NIDDK, National Institutes of Health, Rockledge Drive, Bethesda, MD 20892 7428, [email protected]. Room 7349, 6707 Democracy Boulevard, (Virtual Meeting). (Catalogue of Federal Domestic Assistance Bethesda, MD 20892–5452, (301) 594–8894, Contact Person: Suzan Nadi, Ph.D., Program Nos. 93.866, Aging Research, [email protected]. Scientific Review Officer, Center for National Institutes of Health, HHS) Name of Committee: National Institute of Scientific Review, National Institutes of Diabetes and Digestive and Kidney Diseases Health, 6701 Rockledge Drive, Room 5217B, Dated: April 1, 2020. Special Emphasis Panel; PAR17–123: MSC 7846, Bethesda, MD 20892, 301–435– Miguelina Perez, Biomarkers for Diabetes, Digestive, Kidney 1259, [email protected]. Program Analyst, Office of Federal Advisory and Urologic Diseases Using Biosamples This notice is being published less than 15 Committee Policy. from the NIDDK Repository (R01). days prior to the meeting due to the timing Date: June 3, 2020. limitations imposed by the review and [FR Doc. 2020–07131 Filed 4–3–20; 8:45 am] Time: 11:00 a.m. to 2:30 p.m. funding cycle. BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND Contact Person: Maurizio Grimaldi, MD, Dated: April 1, 2020. HUMAN SERVICES Ph.D., Scientific Review Officer, Scientific Miguelina Perez, Review Branch, National Institute on Aging, Program Analyst, Office of Federal Advisory National Institutes of Health National Institutes of Health, 7201 Wisconsin Committee Policy. Avenue, Gateway Building, Suite 2W200, [FR Doc. 2020–07128 Filed 4–3–20; 8:45 am] National Institute on Aging; Notice of Bethesda, MD 20892, (301) 496–9374, Closed Meetings [email protected]. BILLING CODE 4140–01–P (Catalogue of Federal Domestic Assistance Pursuant to section 10(d) of the Program Nos. 93.866, Aging Research, Federal Advisory Committee Act, as National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND HUMAN SERVICES amended, notice is hereby given of the Dated: April 1, 2020. following meetings. Miguelina Perez, The meetings will be closed to the National Institutes of Health Program Analyst, Office of Federal Advisory public in accordance with the Committee Policy. Amended Notice of Meeting provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., [FR Doc. 2020–07130 Filed 4–3–20; 8:45 am] Notice is hereby given of a change in as amended. The grant applications and BILLING CODE 4140–01–P the meeting of the Special Emphasis the discussions could disclose Panel Scholarly Works (G13), June 4, confidential trade secrets or commercial DEPARTMENT OF HEALTH AND 2020, 10:00 a.m. to 3:00 p.m. This notice property such as patentable material, HUMAN SERVICES was published in the Federal Register and personal information concerning on February 4, 2020, 85 FR 23, Page individuals associated with the grant National Institutes of Health 6208. applications, the disclosure of which This notice is being amended to would constitute a clearly unwarranted National Institute of Arthritis and change the time to 10:00 a.m. to 4:30 invasion of personal privacy. Musculoskeletal and Skin Diseases; p.m. The meeting is closed to the Name of Committee: National Institute on Notice of Closed Meeting public. Aging Initial Review Group; Clinical and Pursuant to section 10(d) of the Dated: March 31, 2020. Translational Research of Aging Review Federal Advisory Committee Act, as Ronald J. Livingston, Jr., Committee. Program Analyst, Office of Federal Advisory Date: June 3–4, 2020. amended, notice is hereby given of a Committee Policy. Time: 10:00 a.m. to 3:00 p.m. meeting of the Board of Scientific Agenda: To review and evaluate grant Counselors, NIAMS. [FR Doc. 2020–07069 Filed 4–3–20; 8:45 am] applications. The meeting will be closed to the BILLING CODE 4140–01–P Place: National Institute on Aging, public as indicated below in accordance Gateway Building, 7201 Wisconsin Avenue, with the provisions set forth in section Bethesda, MD 20892 (Telephone Conference 552b(c)(6), Title 5 U.S.C., as amended DEPARTMENT OF HOUSING AND Call). for the review, discussion, and URBAN DEVELOPMENT Contact Person: Greg Bissonette, Ph.D., evaluation of individual intramural Scientific Review Officer, Scientific Review programs and projects conducted by the [Docket No. FR–7024–N–12; OMB Control Branch, National Institute on Aging, National No. 2506–0210] Institutes of Health, 7201 Wisconsin Avenue, NATIONAL INSTITUTE OF ARTHRITIS Gateway Building, Suite 2W200, Bethesda, AND MUSCULOSKELETAL AND SKIN 30-Day Notice of Proposed Information MD 20892, (301) 402–1622, bissonettegb@ DISEASES, including consideration of Collection: Youth Homelessness mail.nih.gov. personnel qualifications and Demonstration Application Name of Committee: National Institute on performance, and the competence of Aging Initial Review Group; Behavior and individual investigators, the disclosure AGENCY: Office of the Chief Information Social Science of Aging Review Committee. of which would constitute a clearly Officer, HUD. Date: June 3–4, 2020. unwarranted invasion of personal ACTION: Notice. Time: 10:00 a.m. to 2:00 p.m. privacy. Agenda: To review and evaluate grant SUMMARY: HUD is seeking approval from applications. Name of Committee: Board of Scientific the Office of Management and Budget Place: National Institute on Aging, Counselors, NIAMS. Date: April 21–22, 2020. (OMB) for the information collection Gateway Building, 7201 Wisconsin Avenue, described below. In accordance with the Bethesda, MD 20892 (Telephone Conference Time: 3:00 p.m. to 10:30 a.m. Call). Agenda: To review and evaluate program Paperwork Reduction Act, HUD is Contact Person: Carmen Moten, Ph.D., performance and investigators. requesting comment from all interested MPH, Scientific Review Officer, Scientific Place: National Institutes of Health, parties on the proposed collection of Review Branch, National Institute on Aging, Clinical Center, 10 Center Drive, Bethesda, information. The purpose of this notice National Institutes of Health, Gateway Bldg., MB 20892 (Teleconference Call). is to allow for 30 days of public 2C212, 7201 Wisconsin Avenue, Bethesda, Contact Person: John J. O’Shea, MD, Ph.D., comment. MD 20814, (301) 402–7703, cmoten@ Scientific Director National Institute of mail.nih.gov. Arthritis & Musculoskeletal and Skin DATES: Comments Due Date: May 6, Name of Committee: National Institute on Diseases, Building 10, Room 9N228, MSC, 2020. 1820 Bethesda, MD 20892, (301) 496–2612, Aging, Initial Review Group; Basic ADDRESSES: [email protected]. Interested persons are Neuroscience of Aging, Review Committee. invited to submit comments regarding Date: June 3–4, 2020. This notice is being published less than 15 days prior to the meeting due to the urgent this proposal. Written comments and Time: 10:00 a.m. to 2:00 p.m. recommendations for the proposed Agenda: To review and evaluate grant need to meet timing limitations imposed by applications. the intramural research review cycle. information collection should be sent Place: National Institute on Aging, (Catalogue of Federal Domestic Assistance within 30 days of publication of this Gateway Building, 7201 Wisconsin Avenue, Program Nos. 93.846, Arthritis, notice to www.reginfo.gov/public/do/ Bethesda, MD 20892 (Telephone Conference Musculoskeletal and Skin Diseases Research, StartPrinted Page 15501PRAMain. Find Call). National Institutes of Health, HHS) this particular information collection by

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selecting ‘‘Currently under 30-day seeking approval from OMB for the Description of the need for the Review—Open for Public Comments’’ or information collection described in information and proposed use: The by using the search function. Section A. information to be collected will be used FOR FURTHER INFORMATION CONTACT: The Federal Register notice that to rate applications, to determine Anna P. Guido, Reports Management solicited public comment on the eligibility for the Youth Homelessness Officer, QMAC, Department of Housing information collection for a period of 60 Demonstration Program and establish and Urban Development, 451 7th Street days was published on January 28, 2020 grant amounts. Applicants, which must SW, Washington, DC 20410; email her at at 85 FR 5013. be state or local governments, or [email protected] or telephone nonprofit organizations will respond to A. Overview of Information Collection 202–402–5535. This is not a toll-free narrative prompts to demonstrate their number. Persons with hearing or speech Title of Information Collection: Youth experience and expertise in providing impairments may access this number Homelessness Demonstration Program. housing and services to youth through TTY by calling the toll-free OMB Approval Number: 2506–0210. experiencing homelessness and to Federal Relay Service at (800) 877–8339. Type of Request: Revision of currently describe their intended program design, Copies of available documents approved collection. that will address the needs for housing submitted to OMB may be obtained Form Number: Youth Homelessness and services that will result in housing from Ms. Guido. Demonstration Application (all parts), placement and sufficient income to SUPPLEMENTARY INFORMATION: This SF 424, HUD–2991, HUD–2993, HUD– ensure housing is maintained once notice informs the public that HUD is 2880, SF–LLL. assistance discontinues.

Submission Responses Total Burden Burden documents Number of frequency annual hours per Total Hours Hourly rate cost per information collection respondents (average) responses response instrument

Component 1. Site Selection

YHDP Site Selection Narratives ...... 150.00 1.00 150.00 24.00 3,600.00 47.52 $171,072.00 SF–424—Application for Federal Assist- ance ...... 150.00 1.00 150.00 .50 75.00 47.52 3,564.00 OMB–SF–LLL—Disclo- sure of Lobbying Ac- tivities (where appli- cable) ...... 10.00 1.00 10.00 .17 1.70 47.52 80.78 Nonprofit Certification .. 150.00 1.00 150.00 0.00 0.00 47.52 0.00 Organizations Code of Conduct ...... 150.00 1.00 150.00 0.00 0.00 47.52 0.00 Youth Advisory Board Participation Letter ... 150.00 1.00 150.00 .50 75.00 47.52 3,564.00 Public Child Welfare Agency Commitment Letter ...... 150.00 1.00 150.00 0.50 75.00 47.52 3,564.00 Acknowledgement of Application Receipt (HUD–2993) (only applicants granted waiver to submit a paper application)..... 10.00 1.00 10.00 0.17 1.70 47.52 80.78

Subtotal ...... 150.00 ...... 150.00 ...... 3,828.40 ...... 181,925.57

Component 2. Project Application

YHDP Project Applica- tion Questions ...... 25.00 5.00 125.00 8.00 1,000.00 47.52 47,520.00 SF–424—Application for Federal Assist- ance ...... 25.00 5.00 125.00 .08 10.00 47.52 475.20 HUD–2880—Applicant/ Recipient Disclosure/ Update Report (2510–0011) ...... 25.00 5.00 125.00 .17 21.25 47.52 1,009.80 OMB–SF–LLL—Disclo- sure of Lobbying Ac- tivities (where appli- cable) ...... 1.00 5.00 5.00 .17 .85 47.52 40.39

Subtotal ...... 25.00 ...... 125.00 ...... 1,032.10 ...... 49,045.39

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Submission Responses Total Burden Burden documents Number of frequency annual hours per Total Hours Hourly rate cost per information collection respondents (average) responses response instrument

Component 3. Coordinated Community Plan

YHDP Plan Narrative ... 25.00 1.00 25.00 240.00 6,000.00 47.52 285,120.00 Logic Model ...... 25.00 1.00 25.00 8.00 200.00 47.52 9,504.00 Certification of Consist- ency with the Con- solidated Plan (HUD– 2991) ...... 25.00 1.00 25.00 .17 4.25 47.52 201.96

Subtotal ...... 25.00 1.00 25.00 248.17 6,204.25 ...... 294,825.96

Total Applica- tion Collec- tion ...... 150.00 ...... 11,064.75 ...... 525,796.92

B. Solicitation of Public Comment INTERNATIONAL TRADE at https://edis.usitc.gov. For help COMMISSION accessing EDIS, please email This notice is soliciting comments [email protected]. Hearing impaired [Investigation No. 337–TA–1195] from members of the public and affected individuals are advised that information parties concerning the collection of Certain Electronic Candle Products on this matter can be obtained by information described in Section A on and Components Thereof; Notice of contacting the Commission’s TDD the following: Institution of Investigation terminal on (202) 205–1810. Persons (1) Whether the proposed collection with mobility impairments who will of information is necessary for the AGENCY: U.S. International Trade need special assistance in gaining access proper performance of the functions of Commission. to the Commission should contact the the agency, including whether the ACTION: Notice. Office of the Secretary at (202) 205– information will have practical utility; 2000. General information concerning SUMMARY: Notice is hereby given that a the Commission may also be obtained (2) The accuracy of the agency’s complaint was filed with the U.S. by accessing its internet server at estimate of the burden of the proposed International Trade Commission on https://www.usitc.gov. collection of information; March 2, 2020, under section 337 of the FOR FURTHER INFORMATION CONTACT: (3) Ways to enhance the quality, Tariff Act of 1930, as amended, on Pathenia M. Proctor, The Office of utility, and clarity of the information to behalf of L&L Candle Company LLC of Unfair Import Investigations, U.S. be collected; and Brea, California, and Sotera Tschetter, International Trade Commission, Inc. of St. Paul, Minnesota. telephone (202) 205–2560. (4) Ways to minimize the burden of Supplements to the complaint were the collection of information on those SUPPLEMENTARY INFORMATION: filed on March 18 and 20, 2020. The Authority: The authority for who are to respond; including through complaint, as supplemented, alleges the use of appropriate automated institution of this investigation is violations of section 337 based upon the contained in section 337 of the Tariff collection techniques or other forms of importation into the United States, the Act of 1930, as amended, 19 U.S.C. information technology, e.g., permitting sale for importation, and the sale within 1337, and in section 210.10 of the electronic submission of responses. the United States after importation of Commission’s Rules of Practice and (5) ways to minimize the burden of certain electronic candle products and Procedure, 19 CFR 210.10 (2020). the collection of information on those components thereof by reason of Scope of Investigation: Having who are to respond, including the use infringement of certain claims of United considered the complaint, the U.S. of automated collection techniques or States Patent Nos. 8,550,660 (‘‘the ’660 International Trade Commission, on other forms of information technology. patent’’), 9,366,402 (‘‘the ’402 patent’’), March 30, 2020, ordered that— 9,512,971 (‘‘the ’971 patent’’), 9,523,471 (1) Pursuant to subsection (b) of HUD encourages interested parties to (‘‘the ’471 patent’’), and 10,533,718 section 337 of the Tariff Act of 1930, as submit comment in response to these (‘‘the ’718 patent’’). The complaint amended, an investigation be instituted questions. further alleges that an industry in the to determine whether there is a C. Authority United States exists as required by the violation of subsection (a)(1)(B) of applicable Federal Statute. section 337 in the importation into the Section 3507 of the Paperwork The complainants request that the United States, the sale for importation, Reduction Act of 1995, 44 U.S.C. Commission institute an investigation or the sale within the United States after Chapter 35. and, after the investigation, issue a importation of certain products general exclusion order, or in the Dated: March 31, 2020. identified in paragraph (2) by reason of alternative a limited exclusion order, infringement of one or more of claims Anna P. Guido, and cease and desist orders. 1–6, 10, 12–15, 17–19, and 28 of the Department Reports Management Officer, ADDRESSES: The complaint, except for ’660 patent; claims 1–15 of the ’402 Office of the Chief Information Officer. any confidential information contained patent; claims 1–4, 6–12, 14–18, 20–25, [FR Doc. 2020–07059 Filed 4–3–20; 8:45 am] therein, may be viewed on the 27, and 28 of the ’971 patent; claims 1– BILLING CODE 4210–67–P Commission’s electronic docket (EDIS) 7, 10–14, 17, 18, 22, 24, 25, 27, and 29

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of the ’471 patent; and claims 1–5, 7, 8, Decorware International Inc. dba submitting responses to the complaint 10–12, 15, 17, 21, and 22 of the ‘718 Decorware Inc., 10220 4th Street, and the notice of investigation will not patent; and whether an industry in the Rancho Cucamonga, CA 91730 be granted unless good cause therefor is United States exists as required by Shenzhen Goldenwell Smart shown. subsection (a)(2) of section 337; Technology Co., Ltd., Room 56, 10F, Failure of a respondent to file a timely (2) Pursuant to section 210.10(b)(1) of West Building 2, Saige Technology response to each allegation in the the Commission’s Rules of Practice and Industrial Park, Huaqiang North Road, complaint and in this notice may be Procedure, 19 CFR 210.10(b)(1), the Futian District, Shenzhen City, deemed to constitute a waiver of the plain language description of the Guangdong Province 518023, China right to appear and contest the accused products or category of accused Shenzhen Ksperway Technology Co., allegations of the complaint and this products, which defines the scope of the Ltd., Room 58, 1–7R, 10F, Building 2, notice, and to authorize the investigation, is ‘‘artificial candles that Saige Technology Industrial Park, administrative law judge and the simulate a flame effect using electronic Huaqiang North Road, Futian District, Commission, without further notice to components’’; Shenzhen City, Guangdong Province the respondent, to find the facts to be as (3) For the purpose of the 518023, China alleged in the complaint and this notice investigation so instituted, the following Ningbo Shanhuang Electric Appliance and to enter an initial determination are hereby named as parties upon which Co., No. 115 Xinggongyi Road, and a final determination containing this notice of investigation shall be Xinxing Industrial Area, Ninghai such findings, and may result in the served: County, Ningbo City, Zhejiang issuance of an exclusion order or a cease (a) The complainants are: Province 315600, China and desist order or both directed against L&L Candle Company LLC, 621 Lunar Yiwu Shengda Art Co., Ltd., (ID No. the respondent. Avenue, Brea, CA 92821 913307827429106799), No. 16, Tianji By order of the Commission. Sotera Tschetter, Inc., 755 Prior Avenue Road, Yinan Industrial Zone, Fotang Issued: March 31, 2020. N, St. Paul, MN 55104 Town, Yiwu City, Zhejiang Province Lisa Barton, 322002, China (b) The respondents are the following Secretary to the Commission. Shenzhen Tongfang Optoelectronic entities alleged to be in violation of [FR Doc. 2020–07074 Filed 4–3–20; 8:45 am] section 337, and are the parties upon Technology Co., Ltd., No. 1191 BILLING CODE 7020–02–P which the complaint is to be served: Guanguang Road, Longhua District, The Gerson Company, 1450 S Lone Elm Shenzhen City, Guangdong Province Road, Olathe, KS 66061 518110, China TFL Candles, No. 1191 Guanguang Gerson International (H.K.) Ltd., (CR No. JUDICIAL CONFERENCE OF THE Road, Longhua District, Shenzhen 0880157), Unit 1310, Harbour Center, UNITED STATES Tower 1, 1 Hok Cheung Street, Hung City, Guangdong Province 518110, Hom, Kowloon, Hong Kong China Advisory Committee on Evidence Sterno Home Inc., 1 Burbidge Street, Guangdong Tongfang Lighting Co., Ltd., Rules; Meeting of the Judicial Suite 101, Coquitlam, BC V3K 7B2, Unit 3312, 33/F, Shui On Center, 6– Conference Canada 8 Harbour Road, Wan Chai, Hong Ningbo Huamao International Trading Kong, Hong Kong AGENCY: Judicial Conference of the Co., Ltd., (ID NO. Tongfang Optoelectric Company, 388 United States, Advisory Committee on 91330212058264439W), 17th Floor Kwun Tong Road, 7F Standard Evidence Rules. Heng Fu Building 1, No. 828 Fuming Chartered Tower, Kwun Tong, Hong ACTION: Notice of cancellation of open Road, Jiangdong District, Ningbo City, Kong, Hong Kong meeting. Zhejiang Province 315041, China Virtual Candles Limited, Church Farm, Ningbo Yinzhou Langsheng Artware Ulcombe, Maidstone, Kent ME17 IDN, SUMMARY: The following open meeting Co., Ltd., No. 3 Langsheng Road, United Kingdom has been canceled: Advisory Committee Yinzhou District, Ningbo City, (c) The Office of Unfair Import on Evidence Rules on May 8, 2020, in Zhejiang Province 315158, China Investigations, U.S. International Trade Washington, DC. Lifetime Brands, Inc., 1000 Stewart Commission, 500 E Street SW, Suite FOR FURTHER INFORMATION CONTACT: Avenue, Garden City, NY 11530 401, Washington, DC 20436; and Rebecca A. Womeldorf, Secretary, Scott Brothers Entertainment, Inc., 8022 (4) For the investigation so instituted, Committee on Rules of Practice and S Rainbow Blvd., Suite 421, Las the Chief Administrative Law Judge, Procedure of the Judicial Conference of Vegas, NV 89139 U.S. International Trade Commission, the United States, Thurgood Marshall Nantong Ya Tai Candle Arts & Crafts shall designate the presiding Federal Judiciary Building, One Co., Ltd., 1835 South Del Mar Administrative Law Judge. Columbus Circle NE, Suite 7–300, Avenue, #203, San Gabriel, CA 91776 Responses to the complaint and the Washington, DC 20544, Telephone (202) NapaStyIe, Inc., 2650 Napa Valley notice of investigation must be 502–1820, RulesCommittee_Secretary@ Corporate Drive, Suite B, Napa, CA submitted by the named respondents in ao.uscourts.gov. 94588 accordance with section 210.13 of the SUPPLEMENTARY INFORMATION: An Veraflame International, Inc., 1383 8th Commission’s Rules of Practice and announcement for this meeting was Ave. W, Vancouver, BC V6H 3W4, Procedure, 19 CFR 210.13. Pursuant to previously published in 85 FR 13923. Canada 19 CFR 201.16(e) and 210.13(a), as MerchSource, LLC, 7755 Irvine Center amended in 85 FR 15798 (March 19, Dated: March 31, 2020. Drive, Irvine, CA 92618 2020), such responses will be Rebecca A. Womeldorf, Ningbo Mascube Import Export considered by the Commission if Secretary, Committee on Rules of Practice Company, (ID No. received not later than 20 days after the and Procedure, Judicial Conference of the 913302067133149827), No. 58 Dagang date of service by complainants of the United States. Middle Road, Beilun District, Ningbo complaint and the notice of [FR Doc. 2020–07088 Filed 4–3–20; 8:45 am] City, Zhejiang Province 315826, China investigation. Extensions of time for BILLING CODE 2210–55–P

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JUDICIAL CONFERENCE OF THE submit the following information Primary: State, Local or Tribal UNITED STATES collection request to the Office of Government. Management and Budget (OMB) for Other: Federal Government. Advisory Committee on Criminal review and approval in accordance with Abstract: Other Federal, state and Rules; Meeting of the Judicial the Paperwork Reduction Act of 1995. local agency representatives requesting Conference DATES: Comments are encouraged and ATF background investigation information, must complete the Request AGENCY: Judicial Conference of the will be accepted for an additional 30 days until May 6, 2020. for ATF Background Investigation United States, Advisory Committee on Information—ATF Form 8620.65, as an Criminal Rules. FOR FURTHER INFORMATION CONTACT: Written comments and official request for the information. ATF ACTION: Revised notice of open meeting. recommendations for the proposed will make an authorized disclosure determination based on the type of SUMMARY: The Advisory Committee on information collection should be sent agency requesting the information and Criminal Rules will hold a remote within 30 days of publication of this the reason for the request. ATF will meeting on May 5, 2020. The meeting notice to www.reginfo.gov/public/do/ maintain the completed form as an will be open to public via telephonic PRAMain. Find this particular official record of the request for conference for listening but not information collection by selecting ‘‘Currently under 30-day Review—Open information from the other agency. participation. An agenda and supporting (5) An estimate of the total number of materials will be posted at least 7 days for Public Comments’’ or by using the search function. respondents and the amount of time in advance of the meeting at: http:// estimated for an average respondent to www.uscourts.gov/rules-policies/ SUPPLEMENTARY INFORMATION: Written comments and suggestions from the respond: An estimated 300 respondents records-and-archives-rules-committees/ will utilize the form once annually, and agenda-books. The announcement for public and affected agencies concerning the proposed collection of information it will take each respondent this meeting was previously published approximately 5 minutes to complete in 85 FR 13924. are encouraged. Your comments should address one or more of the following their responses. DATES: May 5, 2020. (6) An estimate of the total public Time: 10:00 a.m.–5:00 p.m. four points: —Evaluate whether the proposed burden (in hours) associated with the ADDRESSES: N/A. collection of information is necessary collection: The estimated annual public FOR FURTHER INFORMATION CONTACT: for the proper performance of the burden associated with this collection is Rebecca A. Womeldorf, Secretary, functions of the agency, including 25 hours, which is equal to 300 (# of Committee on Rules of Practice and whether the information will have respondents) * 1 (# of responses per Procedure of the Judicial Conference of practical utility; respondent) * .083333 (5 minutes). the United States, Thurgood Marshall —Evaluate the accuracy of the agency’s If additional information is required Federal Judiciary Building, One estimate of the burden of the contact: Melody Braswell, Department Columbus Circle NE, Suite 7–300, proposed collection of information, Clearance Officer, United States Washington, DC 20544, Telephone (202) including the validity of the Department of Justice, Justice 502–1820, RulesCommittee_Secretary@ methodology and assumptions used; Management Division, Policy and ao.uscourts.gov. —Evaluate whether and if so how the Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Authority: 28 U.S.C. 2073. quality, utility, and clarity of the information to be collected can be Washington, DC 20530. Dated: March 31, 2020. enhanced; and Dated: April 1, 2020. Rebecca A. Womeldorf, —Minimize the burden of the collection Melody Braswell, Secretary, Committee on Rules of Practice of information on those who are to Department Clearance Officer for PRA, U.S. and Procedure, Judicial Conference of the respond, including through the use of Department of Justice. United States. appropriate automated, electronic, [FR Doc. 2020–07160 Filed 4–3–20; 8:45 am] [FR Doc. 2020–07087 Filed 4–3–20; 8:45 am] mechanical, or other technological BILLING CODE 4410–14–P BILLING CODE 2210–55–P collection techniques or other forms of information technology, e.g., permitting electronic submission of DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE responses. Bureau of Alcohol, Tobacco, Firearms Bureau of Alcohol, Tobacco, Firearms Overview of This Information and Explosives and Explosives Collection [OMB Number 1140–0104] [OMB Number 1140–0105] (1) Type of Information Collection: Extension with change of a currently Agency Information Collection Agency Information Collection approved collection. Activities; Proposed eCollection Activities; Proposed eCollection (2) The Title of the Form/Collection: eComments Requested; Application eComments Requested; Request for Request for ATF Background for Alternate Means of Identification of ATF Background Investigation Investigation Information. Firearm(s) (Marking Variance)—ATF (3) The agency form number, if any, Information—ATF Form 8620.65 Form 3311.4 and the applicable component of the AGENCY: Bureau of Alcohol, Tobacco, Department sponsoring the collection: AGENCY: Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Form number: ATF Form 8620.65. Firearms and Explosives, Department of Justice. Component: Bureau of Alcohol, Justice. ACTION: 30-Day notice. Tobacco, Firearms and Explosives, U.S. ACTION: 30-Day notice. Department of Justice. SUMMARY: The Department of Justice (4) Affected public who will be asked SUMMARY: The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, or required to respond, as well as a brief (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will abstract: Firearms and Explosives (ATF), will

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submit the following information (4) Affected public who will be asked DATES: Comments are encouraged and collection request to the Office of or required to respond, as well as a brief will be accepted for an additional 30 Management and Budget (OMB) for abstract: days until May 6, 2020. review and approval in accordance with Primary: Business or other for-profit. FOR FURTHER INFORMATION CONTACT: the Paperwork Reduction Act of 1995. Other: Federal Government. Written comments and DATES: Comments are encouraged and Abstract: The Application for recommendations for the proposed will be accepted for an additional 30 Alternate Means of Identification of information collection should be sent days until May 6, 2020. Firearm(s) (Marking Variance)—ATF within 30 days of publication of this Form 3311.4 provides a uniform mean FOR FURTHER INFORMATION CONTACT: notice to www.reginfo.gov/public/do/ for industry members with a valid Written comments and PRAMain. Find this particular Federal importer or manufacturer recommendations for the proposed information collection by selecting license, to request firearms marking information collection should be sent ‘‘Currently under 30-day Review—Open variance. within 30 days of publication of this for Public Comments’’ or by using the (5) An estimate of the total number of notice to www.reginfo.gov/public/do/ search function. respondents and the amount of time PRAMain. Find this particular SUPPLEMENTARY INFORMATION: Written estimated for an average respondent to information collection by selecting comments and suggestions from the respond: An estimated 2,064 ‘‘Currently under 30-day Review—Open public and affected agencies concerning respondents will utilize the form for Public Comments’’ or by using the the proposed collection of information annually, and it will take each search function. are encouraged. Your comments should respondent approximately 30 minutes to SUPPLEMENTARY INFORMATION: Written address one or more of the following complete their responses. four points: comments and suggestions from the (6) An estimate of the total public —Evaluate whether the proposed public and affected agencies concerning burden (in hours) associated with the collection of information is necessary the proposed collection of information collection: The estimated annual public for the proper performance of the are encouraged. Your comments should burden associated with this collection is functions of the agency, including address one or more of the following 1,032 hours, which is equal to 2,064 (# whether the information will have four points: of respondents) * 1 (# of responses per practical utility; —Evaluate whether the proposed respondent) * .5 (30 minutes). —Evaluate the accuracy of the agency’s collection of information is necessary If additional information is required estimate of the burden of the for the proper performance of the contact: Melody Braswell, Department proposed collection of information, functions of the agency, including Clearance Officer, United States including the validity of the whether the information will have Department of Justice, Justice methodology and assumptions used; practical utility; Management Division, Policy and —Evaluate whether and if so how the —Evaluate the accuracy of the agency’s Planning Staff, Two Constitution quality, utility, and clarity of the estimate of the burden of the Square, 145 N Street NE, 3E.405A, information to be collected can be proposed collection of information, Washington, DC 20530. enhanced; and including the validity of the Dated: April 1, 2020. —Minimize the burden of the collection methodology and assumptions used; Melody Braswell, of information on those who are to —Evaluate whether and if so how the Department Clearance Officer for PRA, U.S. respond, including through the use of quality, utility, and clarity of the Department of Justice. appropriate automated, electronic, information to be collected can be [FR Doc. 2020–07161 Filed 4–3–20; 8:45 am] mechanical, or other technological enhanced; and BILLING CODE 4410–14–P collection techniques or other forms —Minimize the burden of the collection of information technology, e.g., of information on those who are to permitting electronic submission of respond, including through the use of DEPARTMENT OF JUSTICE responses. appropriate automated, electronic, mechanical, or other technological Bureau of Alcohol, Tobacco, Firearms Overview of This Information collection techniques or other forms and Explosives Collection of information technology, e.g., (1) Type of Information Collection: [OMB Number 1140–NEW] permitting electronic submission of New collection. responses. Agency Information Collection (2) The Title of the Form/Collection: Overview of This Information Activities; Proposed eCollection Initial Suitability Request. Collection eComments Requested; Initial (3) The agency form number, if any, Suitability Request—ATF 3252.4 and the applicable component of the (1) Type of Information Collection: Department sponsoring the collection: Extension, without change, of a AGENCY: Bureau of Alcohol, Tobacco, Form number: ATF Form 3252.4. currently approved collection. Firearms and Explosives, Department of Component: Bureau of Alcohol, (2) The Title of the Form/Collection: Justice. Tobacco, Firearms and Explosives, U.S. Application for Alternate Means of ACTION: 30-Day notice. Department of Justice. Identification of Firearm(s) (Marking (4) Affected public who will be asked Variance). SUMMARY: The Department of Justice or required to respond, as well as a brief (3) The agency form number, if any, (DOJ), Bureau of Alcohol, Tobacco, abstract: and the applicable component of the Firearms and Explosives (ATF), will Primary: Individuals or households. Department sponsoring the collection: submit the following information Other: None. Form number: ATF Form 3311.4. collection request to the Office of Abstract: The Initial Suitability Component: Bureau of Alcohol, Management and Budget (OMB) for Request—ATF Form 3252.4 will be used Tobacco, Firearms and Explosives, U.S. review and approval in accordance with by ATF’s Confidential Informant (CI) Department of Justice. the Paperwork Reduction Act of 1995. handlers to collect personally

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identifiable information (PII), criminal Regulations, and Variances, 201 12th method of compliance to allow the use history and other background Street South, Suite 4E401, Arlington, of battery-powered nonpermissible information, in order to determine an Virginia 22202–5452, Attention: Roslyn surveying equipment including, but not individual’s suitability to serve as an B. Fontaine, Deputy Director, Office of limited to, portable battery-operated ATF CI. Standards, Regulations, and Variances. mine transits, total station surveying (5) An estimate of the total number of Persons delivering documents are equipment, distance meters, and data respondents and the amount of time required to check in at the receptionist’s loggers, in or inby the last open estimated for an average respondent to desk in Suite 4E401. Individuals may crosscut. respond: An estimated 300 respondents inspect copies of the petition and The petitioner states that: will utilize the form annually, and it comments during normal business (1) The operator is seeking a will take each respondent hours at the address listed above. modification of this standard, which approximately 120 minutes to complete MSHA will consider only comments relates to battery powered, non- their responses. postmarked by the U.S. Postal Service or permissible surveying equipment, (6) An estimate of the total public proof of delivery from another delivery including battery operated mine burden (in hours) associated with the service such as UPS or Federal Express transits, total station surveying collection: The estimated annual public on or before the deadline for comments. equipment, distance meters and data loggers. burden associated with this collection is FOR FURTHER INFORMATION CONTACT: (2) The operator seeks a petition for 600 hours, which is equal to 300 (# of Roslyn B. Fontaine, Office of Standards, respondents annually) * 1 (# of modification relating to battery- Regulations, and Variances at 202–693– powered, non-permissible surveying responses per respondent) * 2 hours 9440 (voice), [email protected] (120 minutes). equipment. (email), or 202–693–9441 (facsimile). (3) To comply with requirements for If additional information is required [These are not toll-free numbers.] contact: Melody Braswell, Department mine ventilation maps and mine maps Clearance Officer, United States SUPPLEMENTARY INFORMATION: Section in 30 CFR 75.372 and 75.1200, use of Department of Justice, Justice 101(c) of the Federal Mine Safety and the most practical and accurate Management Division, Policy and Health Act of 1977 and Title 30 of the surveying equipment is necessary. Planning Staff, Two Constitution Code of Federal Regulations part 44 (4) Application of the existing Square, 145 N Street NE, 3E.405A, govern the application, processing, and standard would result in a diminution Washington, DC 20530. disposition of petitions for modification. of safety to miners. Underground mining by its nature, size, and I. Background Dated: April 1, 2020. complexity of mine plans requires that Melody Braswell, Section 101(c) of the Federal Mine accurate and precise measurements be Department Clearance Officer for PRA, U.S. Safety and Health Act of 1977 (Mine completed in a prompt and efficient Department of Justice. Act) allows the mine operator or manner. [FR Doc. 2020–07162 Filed 4–3–20; 8:45 am] representative of miners to file a (5) The alternative method will at all BILLING CODE 4410–14–P petition to modify the application of any times guarantee no less than the same mandatory safety standard to a coal or measure of protection afforded by this other mine if the Secretary of Labor standard. DEPARTMENT OF LABOR determines that: As an alternative to the existing 1. An alternative method of achieving standard, the petitioner proposes the Mine Safety and Health Administration the result of such standard exists which following: will at all times guarantee no less than (a) The operator may use the Petitions for Modification of the same measure of protection afforded following total stations and theodolites Application of Existing Mandatory the miners of such mine by such and similar low-voltage battery-operated Safety Standards standard; or total stations and theodolites if they AGENCY: Mine Safety and Health 2. The application of such standard to have an ingress protection (IP) rating of Administration, Labor. such mine will result in a diminution of 66 or greater in or inby the last open crosscut, subject to this petition: ACTION: Notice. safety to the miners in such mine. In addition, the regulations at 30 CFR —Sokkia CX–105LN SUMMARY: This notice is a summary of 44.10 and 44.11 establish the (b) The nonpermissible electronic three petitions for modification requirements for filing petitions for surveying equipment is low-voltage or submitted to the Mine Safety and Health modification. battery-powered nonpermissible total Administration (MSHA) by the parties II. Petitions for Modification stations and theodolites. All listed below. nonpermissible electronic total stations DATES: All comments on the petitions Three petitions for modifications are and theodolites will have an IP 66 or must be received by MSHA’s Office of summarized below. greater rating. Standards, Regulations, and Variances Docket Number: M–2020–002–C. (c) The operator will maintain a on or before May 6, 2020. Petitioner: Ramaco Resources, LLC, logbook for electronic surveying ADDRESSES: You may submit your P.O. Box 219, Verner, WV 25650. equipment with the equipment, or in comments, identified by ‘‘docket Mines: Eagle Seam Deep Mine, MSHA the location where mine record books number’’ on the subject line, by any of I.D. No. 46–09495, Stonecoal Branch are kept, or in the location where the the following methods: Mine No. 2, MSHA I.D. No. 46–08663, surveying record books are kept. The 1. Electronic Mail: zzMSHA- No. 2 Gas, MSHA I.D. No. 46–09541, logbook will contain the date of [email protected]. Include the docket located in Logan County, West Virginia. manufacture and/or purchase of each number of the petition in the subject Regulation Affected: 30 CFR 75.500(d) particular piece of electronic surveying line of the message. (Permissible electric equipment). equipment. The logbook will be made 2. Facsimile: 202–693–9441. Modification Request: The petitioner available to MSHA on request. 3. Regular Mail or Hand Delivery: requests a modification of the existing (d) All nonpermissible electronic MSHA, Office of Standards, standard to permit an alternative surveying equipment to be used in or

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inby the last open crosscut will be If nonpermissible electronic surveying inby the last open crosscut, the surveyor examined by the person who operates equipment is to be used in an area not will confirm by measurement or by the equipment prior to taking the rock-dusted within 40 feet of a working inquiry of the person in charge of the equipment underground to ensure the face where a continuous mining section, that the air quantity on the equipment is being maintained in a safe machine is used, the area will be section, on that shift, in or inby the last operating condition. The result of these rocked-dusted prior to energizing the open crosscut is at least the minimum examinations will be recorded in the nonpermissible electronic surveying quantity that is required by the mine’s logbook and will include: equipment. ventilation plan. (i) Checking the instrument for any (j) All hand-held methane detectors (p) Personnel engaged in the use of physical damage and the integrity of the will be MSHA-approved and nonpermissible electronic surveying case; maintained in permissible and proper equipment will be properly trained to (ii) Removing the battery and operating condition, as defined in 30 recognize the hazards and limitations inspecting for corrosion; CFR 75.320. All methane detectors will associated with the use of such (iii) Inspecting the contact points to provide visual and audible warnings equipment in areas where methane ensure a secure connection to the when methane is detected at or above could be present. battery; 1.0 percent. (q) All members of the surveying crew (iv) Reinserting the battery and (k) Prior to energizing nonpermissible will receive specific training on the powering up and shutting down to electronic surveying equipment in or terms and conditions of the petition ensure proper connections; and inby the last open crosscut, methane before using nonpermissible electronic (v) Checking the battery compartment tests will be made in accordance with surveying equipment in or inby the last cover or battery attachment to ensure 30 CFR 75.323(a). Nonpermissible open crosscut. A record of the training that it is securely fastened. electronic surveying equipment will not will be kept with the other training (e) The equipment will be examined be used in or inby the last open crosscut records. at least weekly by a qualified person, as when production is occurring. (r) If the petition is granted, the defined in 30 CFR 75.153. The (l) Prior to surveying, the area will be operator will submit within 60 days examination results will be recorded examined according to 30 CFR 75.360. after the petition is final, proposed weekly in the equipment logbook and If the area has not been examined, a revisions for its approved 30 CFR part will be maintained for at least 1 year. supplemental examination according to 48 training plans to the District (f) The operator will ensure that all 30 CFR 75.361 will be performed before Manager. These revisions will specify nonpermissible electronic surveying any non-certified person enters the area. initial and refresher training regarding equipment is serviced according to the (m) A qualified person, as defined in the terms and conditions of the petition. manufacturer’s recommendations. Dates 30 CFR 75.151, will continuously When training is conducted on the of service will be recorded in the monitor for methane immediately before terms and conditions in the petition, an equipment’s logbook and will include a and during the use of nonpermissible MSHA Certificate of Training (Form description of the work performed. electronic surveying equipment in or 5000–23) will be completed and will (g) The nonpermissible electronic inby the last open crosscut. If there are indicate that it was surveyor training. surveying equipment used in or inby the two people in the surveying crew, both (s) The operator will replace or retire last open crosscut will not be put into persons will continuously monitor for from service any electronic surveying service until MSHA has initially methane. The other person will either instrument that was acquired prior to inspected the equipment and be a qualified person, as defined in 30 December 31, 2004 within 1 year of the determined that it is in compliance with CFR 75.151, or be in the process of petition becoming final. Within 3 years all the terms and conditions of this being trained to be a qualified person of the date that the petition becomes petition. but has yet to make such tests for a final, the operator will replace or retire (h) Nonpermissible electronic period of 6 months, as required in 30 from service any theodolite that was surveying equipment will not be used if CFR 75.150. Upon completion of the acquired more than 5 years prior to the methane is detected in concentrations at 6-month training period, the second date that the petition becomes final or or above 1.0 percent. When 1.0 percent person on the surveying crew must any total station or other electronic or more methane is detected while such become qualified, as defined in 30 CFR surveying equipment identified in this equipment is being used, the equipment 75.151, in order to continue on the petition and acquired more than 10 will be de-energized immediately and surveying crew. If the surveying crew years prior to the date that the petition withdrawn outby the last open crosscut. consists of one person, that person will becomes final. After 5 years, the All requirements of 30 CFR 75.323 will monitor for methane with two separate operator will maintain a cycle of be complied with prior to entering in or devices. purchasing new electronic surveying inby the last open crosscut. (n) Batteries contained in the equipment whereby theodolites will be (i) Prior to setting up and energizing nonpermissible electronic surveying no older than 5 years from the date of nonpermissible electronic surveying equipment will be changed out or manufacture and total stations and other equipment within in or inby the last charged in fresh air outby the last open electronic surveying equipment will be open crosscut, the surveyor(s) will crosscut. Replacement batteries will be no older than 10 years from the date of conduct a visual examination of the carried only in the compartment manufacture. immediate area for evidence that the provided for a spare battery in the (t) The operator will ensure that all area appears to be sufficiently rock- nonpermissible electronic surveying surveying contractors hired by the dusted and for the presence of equipment carrying case. Before each operator are using nonpermissible accumulated float coal dust. If the rock- shift of surveying, all batteries for the electronic surveying equipment in dusting appears insufficient or the nonpermissible electronic surveying accordance with the terms and presence of accumulated float coal dust equipment will be charged sufficiently conditions of this petition. The is observed, the equipment will not be so that they are not expected to be conditions of use in the petition will energized until sufficient rock-dust has replaced on that shift. apply to all nonpermissible electronic been applied and/or the accumulations (o) When using nonpermissible surveying equipment used in or inby the of float coal dust have been cleaned up. electronic surveying equipment in or last open crosscut, regardless of whether

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the equipment is used by the operator equipment can be used while mining by its nature, size, and or by an independent contractor. production is occurring. The operator complexity of mine plans requires that (u) The petitioner states that it may will keep a record of the training and accurate and precise measurements be use nonpermissible electronic surveying provide the record to MSHA on completed in a prompt and efficient equipment when production is request. manner. occurring, subject to the following —The operator will provide annual (5) The alternative method will at all conditions: retraining to all personnel who will be times guarantee no less than the same —On a mechanized mining unit (MMU) involved with or affected by measure of protection afforded by this where production is occurring, surveying operations in accordance standard. nonpermissible electronic surveying with 30 CFR 48.8. The operator will As an alternative to the existing equipment will not be used train new miners on the requirements standard, the petitioner proposes the downwind of the discharge point of of the petition in accordance with 30 following: any face ventilation controls, such as CFR 48.5, and will train experienced (a) The operator may use the tubing (including controls such as miners, as defined in 30 CFR 48.6, on following total stations and theodolites ‘‘baloney skins’’) or curtains. the requirements of the petition in and similar low-voltage battery-operated —Production may continue while accordance with 30 CFR 48.6. The total stations and theodolites if they nonpermissible electronic surveying operator will keep a record of the have an ingress protection (IP) rating of equipment is used, if such equipment training and provide the record to 66 or greater in return airways, subject is used in a separate split of air from MSHA on request. to this petition: where production is occurring. The petitioner asserts that the —Sokkia CX–105LN —Nonpermissible electronic surveying proposed alternative method will at all (b) The nonpermissible electronic equipment will not be used in a split times guarantee no less than the same surveying equipment is low-voltage or of air ventilating an MMU if any measure of protection afforded by the battery-powered nonpermissible total ventilation controls will be disrupted existing standard. stations and theodolites. All during such surveying. Disruption of Docket Number: M–2020–003–C. nonpermissible electronic total stations ventilation controls means any change Petitioner: Ramaco Resources, LLC, and theodolites will have an IP 66 or to the mine’s ventilation system that P.O. Box 219, Verner, WV 25650. greater rating. causes the ventilation system not to Mines: Eagle Seam Deep Mine, MSHA (c) The operator will maintain a function in accordance with the I.D. No. 46–09495, Stonecoal Branch logbook for electronic surveying mine’s approved ventilation plan. Mine No. 2, MSHA I.D. No. 46–08663, equipment with the equipment, or in —If, while surveying, a surveyor must No. 2 Gas, MSHA I.D. No. 46–09541, the location where mine record books disrupt ventilation, the surveyor will located in Logan County, West Virginia. are kept, or in the location where the cease surveying and communicate to Regulation Affected: 30 CFR 75.507– surveying record books are kept. The the section foreman that ventilation 1(a) (Electric equipment other than logbook will contain the date of must be disrupted. Production will power-connection points; outby the last manufacture and/or purchase of each stop while ventilation is disrupted. open crosscut; return air; permissibility particular piece of electronic surveying Ventilation controls will be requirements). equipment. The logbook will be made reestablished immediately after the Modification Request: The petitioner available to MSHA on request. disruption is no longer necessary. requests a modification of the existing (d) All nonpermissible electronic Production will only resume after all standard to permit an alternative surveying equipment to be used in ventilation controls are reestablished method of compliance to allow the use return airways will be examined by the and are in compliance with approved of battery-powered nonpermissible person who operates the equipment ventilation or other plans, and other surveying equipment including, but not prior to taking the equipment applicable laws, standards, or limited to, portable battery-operated underground to ensure the equipment is regulations. mine transits, total station surveying being maintained in a safe operating —Any disruption in ventilation will be equipment, distance meters, and data condition. The result of these recorded in the logbook required by loggers, in return airways. examinations will be recorded in the the petition. The logbook will include The petitioner states that: logbook and will include: a description of the nature of the (1) The operator is seeking a (i) Checking the instrument for any disruption, the location of the modification of this standard, which physical damage and the integrity of the disruption, the date and time of the relates to battery powered, non- case; disruption and the date and time the permissible surveying equipment, (ii) Removing the battery and surveyor communicated the including battery operated mine inspecting for corrosion; disruption to the section foreman, the transits, total station surveying (iii) Inspecting the contact points to date and time production ceased, the equipment, distance meters and data ensure a secure connection to the date and time ventilation was loggers. battery; reestablished, and the date and time (2) The operator seeks a petition for (iv) Reinserting the battery and production resumed. modification relating to battery- powering up and shutting down to —All surveyors, section foremen, powered, non-permissible surveying ensure proper connections; and section crew members, and other equipment. (v) Checking the battery compartment personnel who will be involved with (3) To comply with requirements for cover or battery attachment to ensure or affected by surveying operations mine ventilation maps and mine maps that it is securely fastened. will receive training in accordance in 30 CFR 75.372 and 75.1200, use of (e) The equipment will be examined with 30 CFR 48.7 on the requirements the most practical and accurate at least weekly by a qualified person, as of the petition within 60 days of the surveying equipment is necessary. defined in 30 CFR 75.153. The date the petition becomes final. The (4) Application of the existing examination results will be recorded training will be completed before any standard would result in a diminution weekly in the equipment logbook and nonpermissible electronic surveying of safety to miners. Underground will be maintained for at least 1 year.

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(f) The operator will ensure that all (m) A qualified person, as defined in MSHA Certificate of Training (Form nonpermissible electronic surveying 30 CFR 75.151, will continuously 5000–23) will be completed and will equipment is serviced according to the monitor for methane immediately before indicate that it was surveyor training. manufacturer’s recommendations. Dates and during the use of nonpermissible (s) The operator will replace or retire of service will be recorded in the electronic surveying equipment in from service any electronic surveying equipment’s logbook and will include a return airways. If there are two people instrument that was acquired prior to description of the work performed. in the surveying crew, both persons will December 31, 2004 within 1 year of the (g) The nonpermissible electronic continuously monitor for methane. The petition becoming final. Within 3 years surveying equipment used in return other person will either be a qualified of the date that the petition becomes airways will not be put into service person, as defined in 30 CFR 75.151, or final, the operator will replace or retire until MSHA has initially inspected the be in the process of being trained to be from service any theodolite that was equipment and determined that it is in a qualified person but has yet to make acquired more than 5 years prior to the compliance with all the terms and such tests for a period of 6 months, as date that the petition becomes final or conditions of this petition. required in 30 CFR 75.150. Upon any total station or other electronic (h) Nonpermissible electronic completion of the 6-month training surveying equipment identified in this surveying equipment will not be used if period, the second person on the petition and acquired more than 10 methane is detected in concentrations at surveying crew must become qualified, years prior to the date that the petition or above 1.0 percent. When 1.0 percent as defined in 30 CFR 75.151, in order to becomes final. After 5 years, the or more methane is detected while such continue on the surveying crew. If the operator will maintain a cycle of equipment is being used, the equipment surveying crew consists of one person, purchasing new electronic surveying will be de-energized immediately and that person will monitor for methane equipment whereby theodolites will be withdrawn out of return airways. All with two separate devices. no older than 5 years from the date of requirements of 30 CFR 75.323 will be (n) Batteries contained in the manufacture and total stations and other complied with prior to entering in nonpermissible electronic surveying electronic surveying equipment will be return airways. equipment will be changed out or no older than 10 years from the date of (i) Prior to setting up and energizing charged in fresh air out of return manufacture. nonpermissible electronic surveying airways. Replacement batteries will be (t) The operator will ensure that all equipment in return airways, the carried only in the compartment surveying contractors hired by the surveyor(s) will conduct a visual provided for a spare battery in the operator are using nonpermissible examination of the immediate area for nonpermissible electronic surveying electronic surveying equipment in evidence that the area appears to be equipment carrying case. Before each accordance with the terms and sufficiently rock-dusted and for the shift of surveying, all batteries for the conditions of this petition. The presence of accumulated float coal dust. nonpermissible electronic surveying conditions of use in the petition will If the rock-dusting appears insufficient equipment will be charged sufficiently apply to all nonpermissible electronic or the presence of accumulated float so that they are not expected to be surveying equipment used in return coal dust is observed, the equipment replaced on that shift. airways, regardless of whether the will not be energized until sufficient (o) When using nonpermissible equipment is used by the operator or by rock-dust has been applied and/or the electronic surveying equipment in an independent contractor. accumulations of float coal dust have return airways, the surveyor will (u) The petitioner states that it may been cleaned up. If nonpermissible confirm by measurement or by inquiry use nonpermissible electronic surveying electronic surveying equipment is to be of the person in charge of the section, equipment when production is used in an area not rock-dusted within that the air quantity on the section, on occurring, subject to the following 40 feet of a working face where a that shift, in return airways is at least conditions: continuous mining machine is used, the the minimum quantity that is required area will be rocked-dusted prior to by the mine’s ventilation plan. —On a mechanized mining unit (MMU) energizing the nonpermissible (p) Personnel engaged in the use of where production is occurring, electronic surveying equipment. nonpermissible electronic surveying nonpermissible electronic surveying (j) All hand-held methane detectors equipment will be properly trained to equipment will not be used will be MSHA-approved and recognize the hazards and limitations downwind of the discharge point of maintained in permissible and proper associated with the use of such any face ventilation controls, such as operating condition, as defined in 30 equipment in areas where methane tubing (including controls such as CFR 75.320. All methane detectors will could be present. ‘‘baloney skins’’) or curtains. provide visual and audible warnings (q) All members of the surveying crew —Production may continue while when methane is detected at or above will receive specific training on the nonpermissible electronic surveying 1.0 percent. terms and conditions of the petition equipment is used, if such equipment (k) Prior to energizing nonpermissible before using nonpermissible electronic is used in a separate split of air from electronic surveying equipment in surveying equipment in return airways. where production is occurring. return airways, methane tests will be A record of the training will be kept —Nonpermissible electronic surveying made in accordance with 30 CFR with the other training records. equipment will not be used in a split 75.323(a). Nonpermissible electronic (r) If the petition is granted, the of air ventilating an MMU if any surveying equipment will not be used in operator will submit within 60 days ventilation controls will be disrupted return airways when production is after the petition is final, proposed during such surveying. Disruption of occurring. revisions for its approved 30 CFR part ventilation controls means any change (l) Prior to surveying, the area will be 48 training plans to the District to the mine’s ventilation system that examined according to 30 CFR 75.360. Manager. These revisions will specify causes the ventilation system not to If the area has not been examined, a initial and refresher training regarding function in accordance with the supplemental examination according to the terms and conditions of the petition. mine’s approved ventilation plan. 30 CFR 75.361 will be performed before When training is conducted on the —If, while surveying, a surveyor must any non-certified person enters the area. terms and conditions in the petition, an disrupt ventilation, the surveyor will

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cease surveying and communicate to Regulation Affected: 30 CFR are kept, or in the location where the the section foreman that ventilation 75.1002(a) (Installation of electric surveying record books are kept. The must be disrupted. Production will equipment and conductors; logbook will contain the date of stop while ventilation is disrupted. permissibility). manufacture and/or purchase of each Ventilation controls will be Modification Request: The petitioner particular piece of electronic surveying reestablished immediately after the requests a modification of the existing equipment. The logbook will be made disruption is no longer necessary. standard to permit an alternative available to MSHA on request. Production will only resume after all method of compliance to allow the use (d) All nonpermissible electronic ventilation controls are reestablished of battery-powered nonpermissible surveying equipment to be used within and are in compliance with approved surveying equipment including, but not 150 feet of pillar workings or longwall ventilation or other plans, and other limited to, portable battery-operated faces will be examined by the person applicable laws, standards, or mine transits, total station surveying who operates the equipment prior to regulations. equipment, distance meters, and data taking the equipment underground to —Any disruption in ventilation will be loggers, within 150 feet of pillar ensure the equipment is being recorded in the logbook required by workings and longwall faces. maintained in a safe operating the petition. The logbook will include The petitioner states that: condition. The result of these a description of the nature of the (1) The operator is seeking a examinations will be recorded in the disruption, the location of the modification of this standard, which logbook and will include: disruption, the date and time of the relates to battery powered, non- (i) Checking the instrument for any disruption and the date and time the permissible surveying equipment, physical damage and the integrity of the surveyor communicated the including battery operated mine case; disruption to the section foreman, the transits, total station surveying (ii) Removing the battery and date and time production ceased, the equipment, distance meters and data inspecting for corrosion; date and time ventilation was loggers. (iii) Inspecting the contact points to reestablished, and the date and time (2) The operator seeks a petition for ensure a secure connection to the production resumed. modification relating to battery- battery; —All surveyors, section foremen, powered, non-permissible surveying (iv) Reinserting the battery and section crew members, and other equipment. powering up and shutting down to personnel who will be involved with (3) To comply with requirements for ensure proper connections; and (v) Checking the battery compartment or affected by surveying operations mine ventilation maps and mine maps cover or battery attachment to ensure will receive training in accordance in 30 CFR 75.372 and 75.1200, use of that it is securely fastened. with 30 CFR 48.7 on the requirements the most practical and accurate (e) The equipment will be examined of the petition within 60 days of the surveying equipment is necessary. at least weekly by a qualified person, as date the petition becomes final. The (4) Application of the existing defined in 30 CFR 75.153. The training will be completed before any standard would result in a diminution examination results will be recorded nonpermissible electronic surveying of safety to miners. Underground weekly in the equipment logbook and equipment can be used while mining by its nature, size, and complexity of mine plans requires that will be maintained for at least 1 year. production is occurring. The operator (f) The operator will ensure that all accurate and precise measurements be will keep a record of the training and nonpermissible electronic surveying completed in a prompt and efficient provide the record to MSHA on equipment is serviced according to the manner. request. manufacturer’s recommendations. Dates (5) The alternative method will at all —The operator will provide annual of service will be recorded in the times guarantee no less than the same retraining to all personnel who will be equipment’s logbook and will include a measure of protection afforded by this involved with or affected by description of the work performed. standard. surveying operations in accordance (g) The nonpermissible electronic As an alternative to the existing with 30 CFR 48.8. The operator will surveying equipment used within 150 standard, the petitioner proposes the train new miners on the requirements feet of pillar workings or longwall faces following: of the petition in accordance with 30 will not be put into service until MSHA (a) The operator may use the CFR 48.5, and will train experienced has initially inspected the equipment following total stations and theodolites miners, as defined in 30 CFR 48.6, on and determined that it is in compliance and similar low-voltage battery-operated the requirements of the petition in with all the terms and conditions of this total stations and theodolites if they accordance with 30 CFR 48.6. The petition. operator will keep a record of the have an ingress protection (IP) rating of (h) Nonpermissible electronic training and provide the record to 66 or greater within 150 feet of pillar surveying equipment will not be used if MSHA on request. workings or longwall faces subject to methane is detected in concentrations at The petitioner asserts that the this petition: or above 1.0 percent. When 1.0 percent proposed alternative method will at all —Sokkia CX–105LN or more methane is detected while such times guarantee no less than the same (b) The nonpermissible electronic equipment is being used, the equipment measure of protection afforded by the surveying equipment is low-voltage or will be de-energized immediately and existing standard. battery-powered nonpermissible total withdrawn further than 150 feet from Docket Number: M–2020–004–C. stations and theodolites. All pillar workings and longwall faces. All Petitioner: Ramaco Resources, LLC, nonpermissible electronic total stations requirements of 30 CFR 75.323 will be P.O. Box 219, Verner, WV 25650. and theodolites will have an IP 66 or complied with prior to entering within Mines: Eagle Seam Deep Mine, MSHA greater rating. 150 feet of pillar workings or longwall I.D. No. 46–09495, Stonecoal Branch (c) The operator will maintain a faces. Mine No. 2, MSHA I.D. No. 46–08663, logbook for electronic surveying (i) Prior to setting up and energizing No. 2 Gas, MSHA I.D. No. 46–09541, equipment with the equipment, or in nonpermissible electronic surveying located in Logan County, West Virginia. the location where mine record books equipment within 150 feet of pillar

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workings or longwall faces, the charged in fresh air more than 150 feet manufacture and total stations and other surveyor(s) will conduct a visual from pillar workings or longwall faces. electronic surveying equipment will be examination of the immediate area for Replacement batteries will be carried no older than 10 years from the date of evidence that the area appears to be only in the compartment provided for a manufacture. sufficiently rock-dusted and for the spare battery in the nonpermissible (t) The operator will ensure that all presence of accumulated float coal dust. electronic surveying equipment carrying surveying contractors hired by the If the rock-dusting appears insufficient case. Before each shift of surveying, all operator are using nonpermissible or the presence of accumulated float batteries for the nonpermissible electronic surveying equipment in coal dust is observed, the equipment electronic surveying equipment will be accordance with the terms and will not be energized until sufficient charged sufficiently so that they are not conditions of this petition. The rock-dust has been applied and/or the expected to be replaced on that shift. conditions of use in the petition will accumulations of float coal dust have (o) When using nonpermissible apply to all nonpermissible electronic been cleaned up. If nonpermissible electronic surveying equipment within surveying equipment used within 150 electronic surveying equipment is to be 150 feet of pillar workings or longwall feet of pillar workings or longwall faces, used in an area not rock-dusted within faces, the surveyor will confirm by regardless of whether the equipment is 40 feet of a working face where a measurement or by inquiry of the used by the operator or by an continuous mining machine is used, the person in charge of the section, that the independent contractor. area will be rocked-dusted prior to air quantity on the section, on that shift, (u) The petitioner states that it may energizing the nonpermissible within 150 feet of pillar workings or use nonpermissible electronic surveying electronic surveying equipment. longwall faces is at least the minimum equipment when production is (j) All hand-held methane detectors quantity that is required by the mine’s occurring, subject to the following will be MSHA-approved and ventilation plan. conditions: maintained in permissible and proper (p) Personnel engaged in the use of —On a mechanized mining unit (MMU) operating condition, as defined in 30 nonpermissible electronic surveying where production is occurring, CFR 75.320. All methane detectors will equipment will be properly trained to nonpermissible electronic surveying provide visual and audible warnings recognize the hazards and limitations equipment will not be used when methane is detected at or above associated with the use of such downwind of the discharge point of 1.0 percent. equipment in areas where methane (k) Prior to energizing nonpermissible could be present. any face ventilation controls, such as electronic surveying equipment within (q) All members of the surveying crew tubing (including controls such as 150 feet of pillar workings and longwall will receive specific training on the ‘‘baloney skins’’) or curtains. faces, methane tests will be made in terms and conditions of the petition —Production may continue while accordance with 30 CFR 75.323(a). before using nonpermissible electronic nonpermissible electronic surveying Nonpermissible electronic surveying surveying equipment within 150 feet of equipment is used, if such equipment equipment will not be used within 150 pillar workings or longwall faces. A is used in a separate split of air from feet of pillar workings or longwall faces record of the training will be kept with where production is occurring. when production is occurring. the other training records. —Nonpermissible electronic surveying (l) Prior to surveying, the area will be (r) If the petition is granted, the equipment will not be used in a split examined according to 30 CFR 75.360. operator will submit within 60 days of air ventilating an MMU if any If the area has not been examined, a after the petition is final, proposed ventilation controls will be disrupted supplemental examination according to revisions for its approved 30 CFR part during such surveying. Disruption of 30 CFR 75.361 will be performed before 48 training plans to the District ventilation controls means any change any non-certified person enters the area. Manager. These revisions will specify to the mine’s ventilation system that (m) A qualified person, as defined in initial and refresher training regarding causes the ventilation system not to 30 CFR 75.151, will continuously the terms and conditions of the petition. function in accordance with the monitor for methane immediately before When training is conducted on the mine’s approved ventilation plan. and during the use of nonpermissible terms and conditions in the petition, an —If, while surveying, a surveyor must electronic surveying equipment within MSHA Certificate of Training (Form disrupt ventilation, the surveyor will 150 feet of pillar workings and longwall 5000–23) will be completed and will cease surveying and communicate to faces. If there are two people in the indicate that it was surveyor training. the section foreman that ventilation surveying crew, both persons will (s) The operator will replace or retire must be disrupted. Production will continuously monitor for methane. The from service any electronic surveying stop while ventilation is disrupted. other person will either be a qualified instrument that was acquired prior to Ventilation controls will be person, as defined in 30 CFR 75.151, or December 31, 2004 within 1 year of the reestablished immediately after the be in the process of being trained to be petition becoming final. Within 3 years disruption is no longer necessary. a qualified person but has yet to make of the date that the petition becomes Production will only resume after all such tests for a period of 6 months, as final, the operator will replace or retire ventilation controls are reestablished required in 30 CFR 75.150. Upon from service any theodolite that was and are in compliance with approved completion of the 6-month training acquired more than 5 years prior to the ventilation or other plans, and other period, the second person on the date that the petition becomes final or applicable laws, standards, or surveying crew must become qualified, any total station or other electronic regulations. as defined in 30 CFR 75.151, in order to surveying equipment identified in this —Any disruption in ventilation will be continue on the surveying crew. If the petition and acquired more than 10 recorded in the logbook required by surveying crew consists of one person, years prior to the date that the petition the petition. The logbook will include that person will monitor for methane becomes final. After 5 years, the a description of the nature of the with two separate devices. operator will maintain a cycle of disruption, the location of the (n) Batteries contained in the purchasing new electronic surveying disruption, the date and time of the nonpermissible electronic surveying equipment whereby theodolites will be disruption and the date and time the equipment will be changed out or no older than 5 years from the date of surveyor communicated the

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disruption to the section foreman, the with the Paperwork Reduction Act of I. Background date and time production ceased, the 1995. This program helps to ensure that Section 103(h) of the Federal Mine date and time ventilation was requested data can be provided in the Safety and Health Act of 1977 (Mine reestablished, and the date and time desired format, reporting burden (time Act), 30 U.S.C. 813(h), authorizes production resumed. and financial resources) is minimized, MSHA to collect information necessary —All surveyors, section foremen, collection instruments are clearly to carry out its duty in protecting the section crew members, and other understood, and the impact of collection safety and health of miners. Further, personnel who will be involved with requirements on respondents can be section 101(a) of the Mine Act, 30 U.S.C. or affected by surveying operations properly assessed. Currently, the Mine 811, authorizes the Secretary of Labor to will receive training in accordance Safety and Health Administration develop, promulgate, and revise as may with 30 CFR 48.7 on the requirements (MSHA) is soliciting comments on the be appropriate, improved mandatory of the petition within 60 days of the information collection for Qualification/ health or safety standards for the date the petition becomes final. The Certification Program Request for MSHA protection of life and prevention of training will be completed before any Individual Identification Number injuries in coal and metal and nonmetal nonpermissible electronic surveying (MIIN). mines. equipment can be used while DATES: All comments must be received MSHA issues certifications, production is occurring. The operator on or before June 5, 2020. qualifications, and approvals to the will keep a record of the training and nation’s miners to conduct specific provide the record to MSHA on ADDRESSES: You may submit comment as follows. Please note that late, work within the mines. Miners request. requiring qualification or certification —The operator will provide annual untimely filed comments will not be considered. from MSHA will register for an MIIN. retraining to all personnel who will be MSHA uses this unique number in place Electronic Submissions: Submit involved with or affected by of individual Social Security numbers electronic comments in the following surveying operations in accordance (SSNs) for all MSHA collections. The with 30 CFR 48.8. The operator will way: • MIIN identifier fulfills Executive Order train new miners on the requirements Federal eRulemaking Portal: 13402, Strengthening Federal Efforts of the petition in accordance with 30 https://www.regulations.gov. Follow the Against Identity Theft, which requires CFR 48.5, and will train experienced instructions for submitting comments Federal agencies to better secure miners, as defined in 30 CFR 48.6, on for docket number MSHA–2020–0009. government held data. the requirements of the petition in Comments submitted electronically, accordance with 30 CFR 48.6. The including attachments, to https:// II. Desired Focus of Comments operator will keep a record of the www.regulations.gov will be posted to MSHA is soliciting comments training and provide the record to the docket, with no changes. Because concerning the proposed information MSHA on request. your comment will be made public, you collection related to Qualification/ The petitioner asserts that the are responsible for ensuring that your Certification Program Request for MSHA proposed alternative method will at all comment does not include any Individual Identification Number times guarantee no less than the same confidential information that you or a (MIIN). MSHA is particularly interested measure of protection afforded by the third party may not wish to be posted, in comments that: existing standard. such as your or anyone else’s Social • Evaluate whether the collection of Security number or confidential Sheila McConnell, information is necessary for the proper business information. performance of the functions of the Director, Office of Standards, Regulations, • If you want to submit a comment and Variances. Agency, including whether the with confidential information that you information has practical utility; [FR Doc. 2020–07063 Filed 4–3–20; 8:45 am] do not wish to be made available to the • Evaluate the accuracy of MSHA’s BILLING CODE 4520–43–P public, submit the comment as a estimate of the burden of the collection written/paper submission. of information, including the validity of DEPARTMENT OF LABOR Written/Paper Submissions: Submit the methodology and assumptions used; written/paper submissions in the • Suggest methods to enhance the Mine Safety and Health Administration following way: quality, utility, and clarity of the • Mail/Hand Delivery: Mail or visit information to be collected; and [OMB Control No. 1219–0143] DOL–MSHA, Office of Standards, • Minimize the burden of the collection of information on those who Proposed Extension of Information Regulations, and Variances, 201 12th are to respond, including through the Collection; Qualification/Certification Street South, Suite 4E401, Arlington, use of appropriate automated, Program Request for MSHA Individual VA 22202–5452. • electronic, mechanical, or other Identification Number (MIIN) MSHA will post your comment as well as any attachments, except for technological collection techniques or AGENCY: Mine Safety and Health information submitted and marked as other forms of information technology, Administration, Labor. confidential, in the docket at https:// e.g., permitting electronic submission of ACTION: Request for public comments. www.regulations.gov. responses. Background documents related to this SUMMARY: The Department of Labor, as FOR FURTHER INFORMATION CONTACT: information collection request are part of its continuing effort to reduce Sheila McConnell, Director, Office of available at https://regulations.gov and paperwork and respondent burden, Standards, Regulations, and Variances, in DOL–MSHA located at 201 12th conducts a pre-clearance consultation MSHA, at Street South, Suite 4E401, Arlington, program to provide the general public [email protected] VA 22202–5452. Questions about the and Federal agencies with an (email); (202) 693–9440 (voice); or (202) information collection requirements opportunity to comment on proposed 693–9441 (facsimile). may be directed to the person listed in collections of information in accordance SUPPLEMENTARY INFORMATION: the FOR FURTHER INFORMATION section of

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this notice from the previous collection Reduction Act of 1995, NSF is providing institutions with graduate programs in of information. opportunity for public comment on this the United States. This request to extend action. After obtaining and considering the information collection for three III. Current Actions public comments, NSF will prepare the years is to cover the 2020, 2021, and This information collection request submission requesting that OMB 2022 GSS survey cycles. The concerns provisions for Qualification/ approve clearance of this collection for information collected by the GSS is Certification Program Request for MSHA three years. solicited under the authority of the Individual Identification Number DATES: Written comments on this notice National Science Foundation Act of (MIIN). MSHA has updated the data must be received by June 5, 2020 to be 1950, as amended and the America with respect to the number of assured of consideration. Comments COMPETES Reauthorization Act of respondents, responses, burden hours, received after that date will be 2010. Data collection starts each fall in and burden costs supporting this considered to the extent practicable. October and data are obtained primarily information collection request from the Send comments to the address below. through a Web survey. All information previous information collection request. FOR ADDITIONAL INFORMATION OR will be used for statistical purposes Type of Review: Extension, without COMMENTS: Contact Suzanne H. only. Participation in the survey is change, of a currently approved Plimpton, Reports Clearance Officer, voluntary. The total number of respondents collection. National Science Foundation, 2415 surveyed in the 2020 survey cycle is Agency: Mine Safety and Health Eisenhower Avenue, Suite 18200, estimated to be 911 School Administration. Alexandria, VA 22314; telephone (703) Coordinators. The GSS is the only OMB Number: 1219–0143. 292–7556; or send email to splimpto@ national survey that collects information Affected Public: Business or other for- nsf.gov. Individuals who use a on the characteristics of graduate profit. telecommunications device for the deaf Number of Respondents: 7,500. enrollment and postdoctoral appointees (TDD) may call the Federal Information (postdocs) for specific SEH disciplines Frequency: On occasion. Relay Service (FIRS) at 1–800–877– Number of Responses: 7,500. at the department level. It collects 8339, which is accessible 24 hours a information on: Annual Burden Hours: 625 hours. day, 7 days a week, 365 days a year Annual Respondent or Recordkeeper (1) Master’s and doctoral students’ (including Federal holidays). You also ethnicity and race, citizenship, gender, Cost: $75. may obtain a copy of the data collection MSHA Forms: MSHA Form 5000–46, source and mechanism of financial instrument and instructions from Ms. support (e.g., fellowships, traineeships, Request for MSHA Individual Plimpton. Identification Number (MIIN). assistantships) and enrollment status. Comments submitted in response to SUPPLEMENTARY INFORMATION: (2) Postdocs’ ethnicity and race, this notice will be summarized in the Title of Collection: Survey of Graduate citizenship, gender, source and request for Office of Management and Students and Postdoctorates in Science mechanism of financial support, type of doctoral degree, and degree origin (U.S. Budget approval of the proposed and Engineering. or foreign); and information collection request; they will OMB Control Number: 3145–0062. Expiration Date of Current Approval: (3) Other doctorate-holding non- become a matter of public record and October 31, 2020. faculty researchers’ gender and type of will be available at https:// Type of Request: Intent to seek doctoral degree. www.reginfo.gov. approval to extend an information To improve coverage of postdocs, the Sheila McConnell, collection for three years. GSS periodically collects information Certifying Officer. Abstract: Established within NSF by on postdocs employed in Federally [FR Doc. 2020–07062 Filed 4–3–20; 8:45 am] the America COMPETES Funded Research and Development Reauthorization Act of 2010 § 505, Centers (FFRDCs) by ethnicity and race, BILLING CODE 4510–43–P codified in the National Science gender, citizenship, source and Foundation Act of 1950, as amended, mechanism of financial support, and the National Center for Science and field of research. This survey of NATIONAL SCIENCE FOUNDATION Engineering Statistics (NCSES) serves as postdocs at FFRDCs will be conducted Agency Information Collection a central Federal clearinghouse for the as part of the 2021 GSS survey cycle. Activities: Comment Request; Survey collection, interpretation, analysis, and The initial GSS data request is sent to of Graduate Students and dissemination of objective data on the designated respondent (School Postdoctorates in Science and science, engineering, technology, and Coordinator) at each academic Engineering research and development for use by institution in the fall. The School practitioners, researchers, policymakers, Coordinator may upload a file with the AGENCY: National Center for Science and and the public. requested data on the GSS website, Engineering Statistics, National Science The Survey of Graduate Students and which will automatically aggregate the Foundation. Postdoctorates in Science and data and populate the cells of the Web ACTION: Notice and request for Engineering (GSS), sponsored by the survey instrument for each reporting comments. NCSES within NSF and the National unit (departments, programs, research Institutes of Health, is designed to centers, and health care facilities). This SUMMARY: The National Center for comply with legislative mandates by method of data provision is called Science and Engineering Statistics providing information on the Electronic Data Interchange (EDI). The (NCSES) within the National Science characteristics of academic graduate School Coordinator will be also able to Foundation (NSF) is announcing plans enrollments in science, engineering and upload partial data (e.g., student to request renewal of the Survey of health fields. The GSS, which originated enrollment information) and delegate Graduate Students and Postdoctorates in in 1966 and has been conducted the provision of other data (e.g., Science and Engineering (OMB Control annually since 1972, is a census of all financial support information) to Number 3145–0062). In accordance with departments in science, engineering and appropriate reporting units at their the requirements of the Paperwork health (SEH) fields within academic institution (unit respondents).

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Institutions that do not want to use EDI Assess the effects of NSF initiatives, data collection. Coordinators at FFRDCs will be able to complete the survey track graduate student support patterns, are also asked about the hours required through manual entry of data in the Web and analyze participation in science and complete the Web instrument survey instrument as in the past. engineering fields for targeted groups by immediately after they submit the data. Data are disseminated annually on the discipline and for selected groups of In the past three GSS cycles (2016–2018 NCSES website https://www.nsf.gov/ institutions. GSS data are also used in data collections), the average burden per statistics/srvygradpostdoc in the form of two congressionally mandated NCSES coordinator reported each cycle was 73 data tables, a 3 to 5 page InfoBrief, publications: Women, Minorities, and 17.8 hours. However, burden varies and public use files (https:// Persons with Disabilities in Science and considerably across respondents. The www.nsf.gov/statistics/srvygradpostdoc/ Engineering (https://ncses.nsf.gov/ amount of time it takes to complete the pub_data.cfm). In addition, current and wmpd/) and the National Science GSS data depends to a large degree on historical data are available via the Board’s Science and Engineering NCSES Integrated Data Tool (https:// Indicators (https://ncses.nsf.gov/ the extent to which the school’s records ncsesdata.nsf.gov/ids/?utm_ indicators). In addition, the National are centrally stored and computerized. It source=Main&utm_ Institutes of Health (NIH) publish GSS also depends on whether the institution medium=Main&utm_ data annually in the NIH Data Book uses manual data entry or EDI to campaign=Main).The Data Tool https://report.nih.gov/nihdatabook/. provide the GSS data, the number of combines GSS data with academic Expected Respondents: The GSS is an SEH reporting units that need to be sector data from both NCSES and the annual census of all eligible academic reported by the institution, and the National Center of Education Statistics institutions in the U.S. with graduate degree to which unit respondents and allows for custom querying. programs in science, engineering and within the institution are used to collect Use of the Information: The GSS data health fields. The response rate is and report data. are routinely provided to Congress and calculated based on the number of To estimate burden for the next three other Federal agencies. The GSS reporting units (departments, programs, GSS data collection survey cycles (2020, institutions themselves are major users research centers, and health care 2021, and 2022), the GSS frame is split of the GSS data. Professional societies facilities) that respond to the survey. For such as the American Association of reference, in 2018, the GSS population by response method (EDI or manual Universities, the Association of was 19,592 units at 715 academic entry) and the number of reporting units American Medical Colleges, and the institutions. Based on recent cycles reported by the institution (more than Carnegie Foundation are also major NCSES expects the annual response rate 15 units are large reporters and 15 or users. Graduate enrollment and postdoc to be around 99 percent. fewer units are small reporters). Table 1 data are often used in reports by the Estimate of Burden: For each GSS presents burden estimates based on national media. With the help of the survey cycle, both School Coordinators observed institution reporting size and aforementioned NCSES Data Tool, NSF and unit respondents are asked to report burden reports collected from the 2018 reviews changing enrollment levels to: how long it took them to complete the GSS survey cycle.

TABLE 1—COMPOSITION AND REPORTED BURDEN OF THE 2018 GSS

Respondents Percent of Average Total Institution type (# of school all school burden burden coordinators) coordinators (hours) (hours)

More than 15 units, EDI ...... 318 35.3 37.7 11,989 More than 15 units, Manual data entry ...... 42 4.7 41.2 1,730 15 or fewer units, EDI ...... 363 40.3 8.3 3,013 15 or fewer units, Manual data entry ...... 178 19.8 9.0 1,602

Totals ...... 901 100.0 20.3 18,334

The frame for the 2019 GSS includes cycle. New schools tend to have small additional coordinators. Given the 720 institutions comprising 822 schools numbers of eligible units and students, historically high levels of participation, with 906 total School Coordinators so the five coordinators are added to the a 100 percent school response rate is (some institutions utilize multiple small school manual data entry used in these estimates. Since the School Coordinators based on how they category. Thus, we expect to have 911 FFRDC postdoc data collection will take are organized). To estimate the burden coordinators in 2020, 916 in 2021 and place in 2021, the estimated burden for for the 2020–2022 GSS survey cycles, 921 in 2022. The estimated burden per that year will increase by 73 hours from we assume a steady state in terms of the respondent is approximately 20 hours 43 FFRDCs (based on 100 percent use of EDI but based on recent cycles we per School Coordinator; the exact response rate in 2017 survey with the expect the number of School number is based on the distributions average burden of 1.7 hours per FFRDC). Coordinators to increase by five each shown in Table 1, adjusted for the

TABLE 2—GSS ESTIMATED RESPONSE BURDEN

Respondents Total Category (# of School burden Coordinators) (hours)

Total burden for 2020 ...... 911 18,424 Total burden for 2021 ...... 959 18,542 GSS institutions ...... 916 18,469

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TABLE 2—GSS ESTIMATED RESPONSE BURDEN—Continued

Respondents Total Category (# of School burden Coordinators) (hours)

FFRDCs ...... 43 73 Total burden for 2022 ...... 921 18,514 Potential future methodological studies (across all 3 survey cycles) ...... 1,000

Total estimated burden ...... 2,791 56,480

Estimated average annual burden ...... 930 18,827

The total estimated respondent retirement marriage; to retiring annuity that is the actuarial equivalent burden of the GSS, including 1,000 employees who elect the alternative of the annuity of a retiree who does not hours for potential methodological form of annuity, owe certain redeposits elect an alternative form of annuity. The studies to improve the survey based on refunds of contributions for present value factors listed below are procedures, will be 56,480 hours over service ending before March 1, 1991, or used to compute the annuity reduction the three-cycle survey clearance period. elect to credit certain service with under section 831.2205(a) of title 5, NCSES may review and revise this nonappropriated fund instrumentalities; Code of Federal Regulations. burden estimate based on completion or, for individuals with certain types of Section 831.303(c) of title 5, Code of time data collected during the 2019 GSS retirement coverage errors who can elect Federal Regulations, prescribes the use survey cycle, which is ongoing. to receive credit for service by taking an of these factors for computing the Comments: Comments are invited on: actuarial reduction under the provisions reduction to complete payment of (a) Whether the proposed collection of of the Federal Erroneous Retirement certain redeposits of refunded information is necessary for the proper Coverage Correction Act. This notice is deductions based on periods of service performance of the functions of NSF, necessary to conform the present value that ended before March 1, 1991, under including whether the information shall factors to changes in the economic and section 8334(d)(2) of title 5, United have practical utility; (b) the accuracy of demographic assumptions adopted by States Code; section 1902 of the NSF’s estimate of the burden of the the Board of Actuaries of the Civil National Defense Authorization Act for proposed collection of information; (c) Service Retirement System. Fiscal Year 2010, Public Law 111–84. ways to enhance the quality, use, and DATES: The revised present value factors Section 831.663 of Title 5, Code of clarity of the information on apply to survivor reductions or Federal Regulations, prescribes the use respondents, including through the use employee annuities that commence on of similar factors for computing the of automated collection techniques or or after October 1, 2020. reduction required for certain elections other forms of information technology; ADDRESSES: Send requests for actuarial to provide survivor annuity benefits and (d) ways to minimize the burden of assumptions and data to the Board of based on a post-retirement marriage the collection of information on those Actuaries, care of Gregory Kissel, Senior under section 8339(j)(5)(C) or (k)(2) of who are to respond, including through Actuary, Office of Healthcare and title 5, United States Code. Under the use of appropriate automated, Insurance, Office of Personnel section 11004 of the Omnibus Budget electronic, mechanical, or other Management, Room 4316, 1900 E Street Reconciliation Act of 1993, Public Law technological collection techniques or NW, Washington, DC 20415. 103–66, effective October 1, 1993, OPM other forms of information technology. FOR FURTHER INFORMATION CONTACT: ceased collection of these survivor Dated: April 1, 2020. Karla Yeakle, (202) 606–0299. election deposits by means of either a Suzanne H. Plimpton, SUPPLEMENTARY INFORMATION: Several lump-sum payment or installments. Reports Clearance Officer, National Science provisions of CSRS require reduction of Instead, OPM is required to establish a Foundation. annuities on an actuarial basis. Under permanent actuarial reduction in the [FR Doc. 2020–07156 Filed 4–3–20; 8:45 am] each of these provisions, OPM is annuity of the retiree. This means that BILLING CODE 7555–01–P required to issue regulations on the OPM must take the amount of the method of determining the reduction to deposit computed under the old law ensure that the present value of the and translate it into a lifetime reduction OFFICE OF PERSONNEL reduced annuity plus a lump-sum in the retiree’s benefit. MANAGEMENT equals, to the extent practicable, the Subpart F of part 847 of title 5, Code present value of the unreduced benefit. of Federal Regulations, prescribes the Civil Service Retirement System; The regulations for each of these use of similar factors for computing the Present Value Factors benefits provide that OPM will publish deficiency the retiree must pay to AGENCY: Office of Personnel a notice in the Federal Register receive credit for certain service with Management. whenever it changes the factors used to nonappropriated fund instrumentalities ACTION: Notice. compute the present values of these made creditable by an election under benefits. section 1043 of Public Law 104–106. SUMMARY: The Office of Personnel Section 831.2205(a) of title 5, Code of Subpart I of part 847 of title 5, Code of Management (OPM) is providing notice Federal Regulations, prescribes the Federal Regulations, prescribes the use of adjusted present value factors method for computing the reduction in of present value factors for employees applicable to retirees under the Civil the beginning rate of annuity payable to that elect to credit nonappropriated Service Retirement System (CSRS) who a retiree who elects an alternative form fund instrumentality service to qualify elect to provide survivor annuity of annuity under 5 U.S.C. 8343a. That for immediate retirement under section benefits to a spouse based on post- reduction is required to produce an 1132 of Public Law 107–107.

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Sections 839.1114–1121 of title 5, CSRS-Offset annuity be actuarially redeposits of employee contributions, Code of Federal Regulations, prescribes reduced. Also, survivors that received the new factors will apply to annuities the use of these factors for computing the FERS Basic Employee Death Benefit that commence on or after October 1, the reduction required for certain and elect CSRS Offset under FERCCA 2020. See 5 CFR 831.2205 and service credit deposits, Government do not have to pay back the Basic 831.303(c). For survivor election Thrift Savings Plan contributions, or for Employee Death Benefit. Instead, OPM deposits, the new factors will apply to previous payment of the FERS Basic actuarially reduces the survivor annuity survivor reductions that commence on Employee Death Benefit in annuities payable. These reductions under or after October 1, 2020. See 5 CFR subject to the Federal Erroneous FERCCA allow the annuity to be 831.663(c) and (d). For obtaining credit Retirement Coverage Corrections Act actuarially reduced in a way that, on for service with certain nonappropriated (FERCCA) under the provisions of average, allows the Fund to recover the fund instrumentalities, the new factors Public Law 106–265. Retirees and amount of the missing lump sum over will apply to cases in which the date of survivors who owe a larger deposit the recipient’s lifetime. computation under sections 847.603 or because of a retirement coverage error The present value factors currently in 847.809 of title 5, Code of Federal can choose to pay the additional deposit effect were published by OPM (84 FR Regulations, is on or after October 1, amount or their annuity will be 22525) on May 17, 2019. On April 6, 2020. See 5 CFR 842.602, 842.616, actuarially reduced to account for the 2020, OPM published a notice to revise 847.603, and 847.809. For retirement deposit amount that remains unpaid. the normal cost percentage under the coverage corrections under FERCCA, the Additionally, retirees and survivors of Federal Employees’ Retirement System new factors will apply to annuities that deceased employees who received (FERS) Act of 1986, Public Law 99–335, commence on or after October 1, 2020, Government contributions to their Thrift based on changed assumptions adopted or in the case of previous payment of Savings Plan account after being by the Board of Actuaries of the CSRS. the Basic Employee Death Benefit, the corrected to FERS and who later elect Those changes require corresponding new factors will apply to deaths CSRS Offset under FERCCA keep the changes in present value factors used to occurring on or after October 1, 2020. Government contributions and produce actuarially equivalent benefits See 5 CFR 839.1114–1121 and 5 CFR associated earnings in their Thrift when required by the Civil Service 831.303(d). Savings Plan account. Instead of Retirement Act. The revised factors will OPM is, therefore, revising the tables adjusting the Thrift Savings Plan become effective on October 1, 2020. of present value factors to read as account, FERCCA requires that the For alternative forms of annuity and follows:

CSRS PRESENT VALUE FACTORS APPLICABLE TO ANNUITY PAY- ABLE FOLLOWING AN ELECTION UNDER SECTION 8339(j) OR (k) OR SECTION 8343a OF TITLE 5, UNITED STATES CODE, OR UNDER SECTION 1043 OF PUBLIC LAW 104–106 OR UNDER SECTION 1132 OF PUBLIC LAW 107–107 OR UNDER FERCCA OR FOLLOWING A REDEPOSIT UNDER SECTION 8334(d)(2) OF TITLE 5, UNITED STATES CODE

Age Present value factor

40 ...... 378.1 41 ...... 372.3 42 ...... 366.4 43 ...... 360.4 44 ...... 354.4 45 ...... 348.3 46 ...... 342.2 47 ...... 336.1 48 ...... 329.9 49 ...... 323.6 50 ...... 317.3 51 ...... 311.0 52 ...... 304.5 53 ...... 298.0 54 ...... 291.4 55 ...... 284.7 56 ...... 277.9 57 ...... 270.8 58 ...... 263.8 59 ...... 256.6 60 ...... 249.4 61 ...... 242.2 62 ...... 234.8 63 ...... 227.4 64 ...... 220.0 65 ...... 212.5 66 ...... 205.1 67 ...... 197.6 68 ...... 190.2 69 ...... 182.8 70 ...... 175.4

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CSRS PRESENT VALUE FACTORS APPLICABLE TO ANNUITY PAY- ABLE FOLLOWING AN ELECTION UNDER SECTION 8339(j) OR (k) OR SECTION 8343a OF TITLE 5, UNITED STATES CODE, OR UNDER SECTION 1043 OF PUBLIC LAW 104–106 OR UNDER SECTION 1132 OF PUBLIC LAW 107–107 OR UNDER FERCCA OR FOLLOWING A REDEPOSIT UNDER SECTION 8334(d)(2) OF TITLE 5, UNITED STATES CODE—Continued

Age Present value factor

71 ...... 168.0 72 ...... 160.7 73 ...... 153.4 74 ...... 146.2 75 ...... 139.1 76 ...... 132.1 77 ...... 125.2 78 ...... 118.4 79 ...... 111.8 80 ...... 105.2 81 ...... 98.9 82 ...... 92.7 83 ...... 86.8 84 ...... 81.1 85 ...... 75.6 86 ...... 70.3 87 ...... 65.4 88 ...... 60.7 89 ...... 56.3 90 ...... 52.2 91 ...... 48.5 92 ...... 45.0 93 ...... 41.8 94 ...... 38.9 95 ...... 36.2 96 ...... 33.8 97 ...... 31.6 98 ...... 29.7 99 ...... 27.9 100 ...... 26.2 101 ...... 24.7 102 ...... 23.3 103 ...... 22.0 104 ...... 20.6 105 ...... 19.0 106 ...... 17.1 107 ...... 14.2 108 ...... 9.5 109 ...... 6.4

CSRS PRESENT VALUE FACTORS APPLICABLE TO ANNUITY PAY- ABLE FOLLOWING AN ELECTION UNDER SECTION 1043 OF PUBLIC LAW 104–106 OR UNDER SECTION 1132 OF PUBLIC LAW 107– 107 OR UNDER FERCCA [For Ages at Calculation Below 40]

Present value of a Age at calculation monthly annuity

17 ...... 486.1 18 ...... 482.3 19 ...... 478.4 20 ...... 474.5 21 ...... 470.4 22 ...... 466.4 23 ...... 462.2 24 ...... 457.9 25 ...... 453.6 26 ...... 449.2 27 ...... 444.7 28 ...... 440.2 29 ...... 435.5 30 ...... 430.8

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CSRS PRESENT VALUE FACTORS APPLICABLE TO ANNUITY PAY- ABLE FOLLOWING AN ELECTION UNDER SECTION 1043 OF PUBLIC LAW 104–106 OR UNDER SECTION 1132 OF PUBLIC LAW 107– 107 OR UNDER FERCCA—Continued [For Ages at Calculation Below 40]

Present value of a Age at calculation monthly annuity

31 ...... 425.9 32 ...... 421.0 33 ...... 416.0 34 ...... 410.9 35 ...... 405.7 36 ...... 400.4 37 ...... 395.0 38 ...... 389.5 39 ...... 383.9

Office of Personnel Management. Code, as added by the FERS Act of 1986, established separate normal cost Alexys Stanley, provides for the payment of the percentages for the Postal Service when Regulatory Affairs Analyst. Government’s share of the cost of the agency contribution rates were [FR Doc. 2020–07103 Filed 4–3–20; 8:45 am] retirement system under FERS. previously revised, effective October 1, BILLING CODE 6325–38–P Employees’ contributions are 2019. Those normal cost percentages for established by law and constitute only Postal Service employees reflected the a portion of the cost of funding the postal-specific demographic OFFICE OF PERSONNEL retirement system; employing agencies assumptions recommended at the MANAGEMENT are required to pay the remaining costs. Board’s April 12, 2018 meeting, with the The amount of funding required, known economic assumptions determined by Federal Employees’ Retirement as ‘‘normal cost,’’ is the entry age the Board at its June 1, 2017 meeting. System; Normal Cost Percentages normal cost of the provisions of FERS For all other categories of employees, that relate to the Civil Service the normal cost percentages effective AGENCY: Office of Personnel Retirement and Disability Fund (Fund). October 1, 2019, were calculated using Management. The normal cost must be computed by the demographic and economic ACTION: Notice. OPM in accordance with generally assumptions determined by the Board at SUMMARY: The Office of Personnel accepted actuarial practices and its June 1, 2017 meeting. The normal Management (OPM) is providing notice standards (using dynamic assumptions). cost percentages effective October 1, of revised normal cost percentages for The normal cost calculations depend on 2020, for all categories of employees are employees covered by the Federal economic and demographic based on the demographic and Employees’ Retirement System (FERS) assumptions. Subpart D of part 841 of economic assumptions determined by Act of 1986. title 5, Code of Federal Regulations, the Board at it April 12, 2018 meeting. DATES: The revised normal cost regulates how normal costs are With regard to the economic percentages are effective at the determined. assumptions described under section beginning of the first pay period In its meeting on April 12, 2018, the 841.402 of title 5, Code of Federal commencing on or after October 1, 2020. Board of Actuaries of the Civil Service Regulations, used in the actuarial Agency appeals of the normal cost Retirement System (the Board) valuations of FERS, the Board percentages must be filed no later than recommended revisions to the long term concluded that it would be appropriate October 6, 2020. economic assumptions and to assume a rate of investment return of recommended changes to the 4.25 percent, a reduction of 0.25 percent ADDRESSES: Send or deliver agency demographic assumptions used in the from the existing rate of 4.50 percent. In appeals of the normal cost percentages actuarial valuations of CSRS and FERS, addition, the Board determined that the and requests for actuarial assumptions based on revised regulations OPM assumed inflation rate should remain at and data to the Board of Actuaries, care published on October 25, 2017. The 2.50 percent, that the assumed rate of of Gregory Kissel, Senior Actuary, Office demographic assumptions include FERS annuitant Cost of Living of Healthcare and Insurance, Office of assumed rates of mortality, employee Adjustments should remain at 80 Personnel Management, Room 4316, withdrawal, retirement, and merit and percent of the assumed rate of inflation, 1900 E Street NW, Washington, DC longevity pay increases. OPM has and that the projected rate of General 20415. adopted the Board’s recommendations. Schedule salary increases should FOR FURTHER INFORMATION CONTACT: The revised regulations that OPM remain at 2.75 percent. These salary Karla Yeakle, (202) 606–0299. published on October 25, 2017, related increases are in addition to assumed SUPPLEMENTARY INFORMATION: The FERS to the calculation of the FERS normal within-grade increases. These Act of 1986, Public Law 99–335, created cost percentages and added a category of assumptions are intended to reflect the a new retirement system intended to normal cost percentage for employees of long term expected future experience of cover most Federal employees hired the U.S. Postal Service based on the Systems. after 1983. Most Federal employees assumptions specific to the expected The demographic assumptions are hired before 1984 are under the older experience of postal employees. As a determined separately for each of a Civil Service Retirement System (CSRS). result of the revised regulations number of special groups, in cases Section 8423 of title 5, United States requiring postal-specific rates, OPM first where separate experience data is

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available. Based on the demographic 401 of Public Law 113–67, the Consolidated Appropriations Act of and economic assumptions described Bipartisan Budget Act of 2013, created 2020, provides for separate normal cost above, OPM has determined the normal another class of FERS coverage, FERS- percentages for certain members of the cost percentage for each category of Further Revised Annuity Employee Capitol Police as distinct from other employees under section 841.403 of title (FERS–FRAE). Employees subject to Congressional Employees. Prior rules 5, Code of Federal Regulations. FERS–FRAE must pay an increase of provided for a combined normal cost Section 5001 of Public Law 112–96, 1.30 percent of pay above the retirement percentage for members of the Capitol The Middle Class Tax Relief and Jobs contribution percentage set for FERS– Police and other Congressional Creation Act of 2012, established RAE. Separate normal cost percentages Employees. provisions for FERS Revised Annuity apply for employees covered under Employees (FERS–RAE). The law FERS–RAE and for employees covered The normal cost percentages for each permanently increases the retirement under FERS–FRAE. category of employee, including the contributions by 2.30 percent of pay for Section 211 of Title II, Division E of employee contributions, are as follows: these employees. Subsequently, Section Public Law 116–94, the Further

NORMAL COST PERCENTAGES FOR FERS, FERS-REVISED ANNUITY EMPLOYEE (RAE), AND FERS-FURTHER REVISED ANNUITY (FRAE) GROUPS

FERS Normal FERS-RAE FERS-FRAE Group cost normal cost normal cost (percent) (percent) (percent)

Members ...... 24.4 18.6 18.8 Capitol Police covered under 5 U.S.C. 8412(d) and 5 U.S.C. 8425(c) ...... 37.1 37.6 37.8 Other Congressional employees ...... 25.6 18.6 18.8 Law enforcement officers, members of the Supreme Court Police, firefighters, nuclear mate- rials couriers, customs and border protection officers, and employees under section 302 of the Central Intelligence Agency Retirement Act of 1964 for certain employees ...... 37.1 37.6 37.8 Air traffic controllers ...... 37.0 37.5 37.7 Military reserve technicians ...... 20.9 21.3 21.6 Employees under section 303 of the Central Intelligence Agency Retirement Act of 1964 for certain employees (when serving abroad) ...... 25.6 26.2 26.4 Other employees of the United States Postal Service ...... 16.5 16.9 17.1 All other regular FERS employees ...... 18.1 18.6 18.8

Under section 841.408 of title 5, Code marriage, and to retiring employees who practicable, the present value of the of Federal Regulations, these normal elect the alternative form of annuity or unreduced benefit. The regulations for cost percentages are effective at the elect to credit certain service with each of these benefits provide that OPM beginning of the first pay period nonappropriated fund instrumentalities. will publish a notice in the Federal commencing on or after October 1, 2020. This notice is necessary to conform the Register whenever it changes the factors The time limit and address for filing present value factors to changes in the used to compute the present values of agency appeals under sections 841.409 economic and demographic these benefits. through 841.412 of title 5, Code of assumptions adopted by the Board of Section 842.706(a) of title 5, Code of Federal Regulations, are stated in the Actuaries of the Civil Service Federal Regulations, prescribes the DATES and ADDRESSES sections of this Retirement System. method for computing the reduction in notice. DATES: The revised present value factors the beginning rate of annuity payable to Office of Personnel Management. apply to survivor reductions or a retiree who elects an alternative form Alexys Stanley, employee annuities that commence on of annuity under 5 U.S.C. 8420a. That reduction is required to produce an Regulatory Affairs Analyst. or after October 1, 2020. annuity that is the actuarial equivalent ADDRESSES: Send requests for actuarial [FR Doc. 2020–07105 Filed 4–3–20; 8:45 am] of the annuity of a retiree who does not assumptions and data to the Board of BILLING CODE 6325–38–P elect an alternative form of annuity. The Actuaries, care of Gregory Kissel, Senior present value factors listed below are Actuary, Office of Healthcare and used to compute the annuity reduction OFFICE OF PERSONNEL Insurance, Office of Personnel under 5 CFR 842.706(a). MANAGEMENT Management, Room 4316, 1900 E Street Section 842.615 of title 5, Code of NW, Washington, DC 20415. Federal Employees’ Retirement Federal Regulations, prescribes the use FOR FURTHER INFORMATION CONTACT: System; Present Value Factors of these factors for computing the Karla Yeakle, (202) 606–0299. reduction required for certain elections AGENCY: Office of Personnel SUPPLEMENTARY INFORMATION: Several to provide survivor annuity benefits Management. provisions of the Federal Employees’ based on a post-retirement marriage or ACTION: Notice. Retirement System (FERS) require divorce under 5 U.S.C. 8416(b), 8416(c), reduction of annuities on an actuarial or 8417(b). Under section 11004 of the SUMMARY: The Office of Personnel basis. Under each of these provisions, Omnibus Budget Reconciliation Act of Management (OPM) is providing notice OPM is required to issue regulations on 1993, Public Law 103–66, effective of adjusted present value factors the method of determining the October 1, 1993, OPM ceased collection applicable to retirees who elect to reduction to ensure that the present of these survivor election deposits by provide survivor annuity benefits to a value of the reduced annuity plus a means of either a lump-sum payment or spouse based on post-retirement lump-sum equals, to the extent installments. Instead, OPM is required

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to establish a permanent actuarial service to qualify for immediate normal cost percentages. For alternative reduction in the annuity of the retiree. retirement under section 1132 of Public forms of annuity, the new factors will This means that OPM must take the Law 107–107. apply to annuities that commence on or amount of the deposit computed under OPM published the present value after October 1, 2020. See 5 CFR the old law and translate it into a factors currently in effect on May 17, 842.706. For survivor election deposits, lifetime reduction in the retiree’s 2019, at 84 FR 22527. On April 6, 2020, the new factors will apply to survivor benefit. OPM published a notice to revise the reductions that commence on or after Subpart F of part 847 of title 5, Code normal cost percentage under the October 1, 2020. See 5 CFR 842.615(b). of Federal Regulations, prescribes the Federal Employees’ Retirement System For obtaining credit for service with use of present value factors for (FERS) Act of 1986, Public Law 99–335, certain nonappropriated fund computing the deficiency the retiree based on changed assumptions adopted instrumentalities, the new factors will must pay to receive credit for certain by the Board of Actuaries of the Civil apply to cases in which the date of service with nonappropriated fund Service Retirement System. Under 5 computation under 5 CFR 847.603 or instrumentalities made creditable by an U.S.C. 8461(i), those changes require election under section 1043 of Public corresponding changes in the present 847.809 is on or after October 1, 2020. Law 104–106. Subpart I of part 847 of value factors used to produce actuarially See 5 CFR 842.602, 842.616, 847.603, title 5, Code of Federal Regulations, equivalent benefits when required by and 847.809. prescribes the use of present value the FERS Act. The revised factors will OPM is, therefore, revising the tables factors for employees that elect to credit become effective on October 1, 2020, to of present value factors to read as nonappropriated fund instrumentality correspond with the changes in FERS follows:

TABLE I—FERS PRESENT VALUE FACTORS FOR AGES 62 AND OLDER [Applicable to annuity payable following an election under 5 U.S.C. 8416(b), 8416(c), 8417(b), 8420a, under section 1043 of Public Law 104–106, or under section 1132 of Public Law 107–107]

Age Present value factor

62 ...... 220.4 63 ...... 213.9 64 ...... 207.4 65 ...... 200.9 66 ...... 194.3 67 ...... 187.6 68 ...... 181.0 69 ...... 174.2 70 ...... 167.5 71 ...... 160.8 72 ...... 154.1 73 ...... 147.4 74 ...... 140.8 75 ...... 134.3 76 ...... 127.8 77 ...... 121.4 78 ...... 115.1 79 ...... 108.9 80 ...... 102.8 81 ...... 96.8 82 ...... 91.0 83 ...... 85.4 84 ...... 80.0 85 ...... 74.7 86 ...... 69.7 87 ...... 64.8 88 ...... 60.3 89 ...... 56.0 90 ...... 52.0 91 ...... 48.3 92 ...... 44.8 93 ...... 41.6 94 ...... 38.7 95 ...... 36.0 96 ...... 33.6 97 ...... 31.4 98 ...... 29.4 99 ...... 27.7 100 ...... 26.1 101 ...... 24.6 102 ...... 23.1 103 ...... 21.7 104 ...... 20.3 105 ...... 18.8 106 ...... 16.9

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TABLE I—FERS PRESENT VALUE FACTORS FOR AGES 62 AND OLDER—Continued [Applicable to annuity payable following an election under 5 U.S.C. 8416(b), 8416(c), 8417(b), 8420a, under section 1043 of Public Law 104–106, or under section 1132 of Public Law 107–107]

Age Present value factor

107 ...... 14.1 108 ...... 9.4 109 ...... 6.4

TABLE II.A—FERS PRESENT VALUE FACTORS FOR AGES 40 THROUGH 61 [Applicable to annuity payable when annuity is not increased by cost-of-living adjustments before age 62 following an election under 5 U.S.C. 8416(b), 8416(c), 8417(b), 8420a, under section 1043 of Public Law 104–106, or under section 1132 of Public Law 107–107]

Age Present value factor

40 ...... 259.4 41 ...... 258.0 42 ...... 256.5 43 ...... 255.0 44 ...... 253.5 45 ...... 251.9 46 ...... 250.3 47 ...... 248.7 48 ...... 247.1 49 ...... 245.4 50 ...... 243.8 51 ...... 242.0 52 ...... 240.2 53 ...... 238.4 54 ...... 236.5 55 ...... 234.7 56 ...... 232.8 57 ...... 230.8 58 ...... 228.8 59 ...... 226.8 60 ...... 224.7 61 ...... 222.5

TABLE II.B—FERS PRESENT VALUE FACTORS FOR AGES 40 THROUGH 61 [Applicable to annuity payable when annuity is increased by cost-of-living adjust- ments before age 62 following an election under 5 U.S.C. 8416(b), 8416(c), 8417(b), or 8420a, under section 1043 of Public Law 104–106, or under sec- tion 1132 of Public Law 107–107]

Age Present value factor

40 ...... 341.7 41 ...... 336.9 42 ...... 332.1 43 ...... 327.1 44 ...... 322.2 45 ...... 317.1 46 ...... 312.0 47 ...... 306.9 48 ...... 301.6 49 ...... 296.4 50 ...... 291.0 51 ...... 285.6 52 ...... 280.0 53 ...... 274.4 54 ...... 268.8 55 ...... 263.0 56 ...... 257.2 57 ...... 251.3 58 ...... 245.3 59 ...... 239.2

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TABLE II.B—FERS PRESENT VALUE FACTORS FOR AGES 40 THROUGH 61—Continued [Applicable to annuity payable when annuity is increased by cost-of-living adjust- ments before age 62 following an election under 5 U.S.C. 8416(b), 8416(c), 8417(b), or 8420a, under section 1043 of Public Law 104–106, or under sec- tion 1132 of Public Law 107–107]

Age Present value factor

60 ...... 233.0 61 ...... 226.7

TABLE III—FERS PRESENT VALUE FACTORS FOR AGES AT CALCULATION BELOW 40 [Applicable to annuity payable following an election under section 1043 of Public Law 104–106 or under section 1132 of Public Law 107–107]

Present value of a Age at calculation monthly annuity

17 ...... 425.0 18 ...... 422.3 19 ...... 419.5 20 ...... 416.6 21 ...... 413.7 22 ...... 410.6 23 ...... 407.5 24 ...... 404.4 25 ...... 401.1 26 ...... 397.8 27 ...... 394.4 28 ...... 390.9 29 ...... 387.4 30 ...... 383.7 31 ...... 380.0 32 ...... 376.1 33 ...... 372.2 34 ...... 368.1 35 ...... 364.0 36 ...... 359.7 37 ...... 355.4 38 ...... 350.9 39 ...... 346.4

Office of Personnel Management. ADDRESSES: Submit comments agreement from the market dominant or Alexys Stanley, electronically via the Commission’s the competitive product list, or the Regulatory Affairs Analyst. Filing Online system at http:// modification of an existing product [FR Doc. 2020–07104 Filed 4–3–20; 8:45 am] www.prc.gov. Those who cannot submit currently appearing on the market BILLING CODE 6325–38–P comments electronically should contact dominant or the competitive product the person identified in the FOR FURTHER list. INFORMATION CONTACT section by Section II identifies the docket telephone for advice on filing POSTAL REGULATORY COMMISSION number(s) associated with each Postal alternatives. Service request, the title of each Postal [Docket Nos. MC2020–111 and CP2020–117; FOR FURTHER INFORMATION CONTACT: Service request, the request’s acceptance MC2020–112 and CP2020–118] David A. Trissell, General Counsel, at date, and the authority cited by the 202–789–6820. Postal Service for each request. For each New Postal Products request, the Commission appoints an SUPPLEMENTARY INFORMATION: AGENCY: Postal Regulatory Commission. officer of the Commission to represent the interests of the general public in the ACTION: Notice. Table of Contents proceeding, pursuant to 39 U.S.C. 505 I. Introduction SUMMARY: The Commission is noticing a II. Docketed Proceeding(s) (Public Representative). Section II also recent Postal Service filing for the establishes comment deadline(s) Commission’s consideration concerning I. Introduction pertaining to each request. negotiated service agreements. This The Commission gives notice that the The public portions of the Postal notice informs the public of the filing, Postal Service filed request(s) for the Service’s request(s) can be accessed via invites public comment, and takes other Commission to consider matters related the Commission’s website (http:// administrative steps. to negotiated service agreement(s). The www.prc.gov). Non-public portions of DATES: Comments are due: April 8, request(s) may propose the addition or the Postal Service’s request(s), if any, 2020. removal of a negotiated service can be accessed through compliance

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with the requirements of 39 CFR SECURITIES AND EXCHANGE location 4 ‘‘Hot Hands’’ fee through the 3007.301.1 COMMISSION earlier of the reopening of the Mahwah, New Jersey data center (‘‘Data Center’’) The Commission invites comments on [Release No. 34–88523; File No. SR– whether the Postal Service’s request(s) NYSEAMER–2020–23] or May 15, 2020. The waiver of the Hot in the captioned docket(s) are consistent Hands fee was originally through March 29, 2020.5 with the policies of title 39. For Self-Regulatory Organizations; NYSE request(s) that the Postal Service states American LLC; Notice of Filing and The Exchange is an indirect subsidiary of Intercontinental Exchange, concern market dominant product(s), Immediate Effectiveness of Proposed Change for an Extension of the Inc. (‘‘ICE’’). Through its ICE Data applicable statutory and regulatory Temporary Waiver of the Co-Location Services (‘‘IDS’’) business, ICE operates requirements include 39 U.S.C. 3622, 39 ‘‘Hot Hands’’ Fee the Mahwah, New Jersey data center U.S.C. 3642, 39 CFR part 3010, and 39 (‘‘Data Center’’), from which the CFR part 3020, subpart B. For request(s) March 31, 2020. Exchange provides co-location services 1 that the Postal Service states concern Pursuant to Section 19(b)(1) of the to Users.6 Among those services is a competitive product(s), applicable Securities Exchange Act of 1934 (the ‘‘Hot Hands’’ service, which allows 2 3 statutory and regulatory requirements ‘‘Act’’) and Rule 19b–4 thereunder, Users to use on-site Data Center include 39 U.S.C. 3632, 39 U.S.C. 3633, notice is hereby given that, on March personnel to maintain User equipment, 39 U.S.C. 3642, 39 CFR part 3015, and 27, 2020, NYSE American LLC (‘‘NYSE support network troubleshooting, rack 39 CFR part 3020, subpart B. Comment American’’ or the ‘‘Exchange’’) filed and stack a server in a User’s cabinet; deadline(s) for each request appear in with the Securities and Exchange power recycling; and install and section II. Commission (the ‘‘Commission’’) the document the fitting of cable in a User’s proposed rule change as described in cabinet(s).7 The Hot Hands fee is $100 II. Docketed Proceeding(s) Items I, II, and III below, which Items per half hour. have been prepared by the self- 1. Docket No(s).: MC2020–111 and regulatory organization. The ICE originally announced that the CP2020–117; Filing Title: USPS Request Commission is publishing this notice to Data Center would be closed to third to Add Priority Mail Contract 602 to solicit comments on the proposed rule parties for the period from March 16, Competitive Product List and Notice of change from interested persons. 2020 through March 29, 2020 (the Filing Materials Under Seal; Filing ‘‘Initial Closure’’), to help avoid the I. Self-Regulatory Organization’s Acceptance Date: March 31, 2020; Filing spread of COVID–19, which could Statement of the Terms of Substance of Authority: 39 U.S.C. 3642, 39 CFR negatively impact Data Center functions. the Proposed Rule Change 3020.30 et seq., and 39 CFR 3015.5; Prior to the closure of the Data Center, the Chief Executive Officer of the Public Representative: Christopher C. The Exchange proposes an extension Exchange took the actions required Mohr; Comments Due: April 8, 2020. of the temporary waiver of the co- location ‘‘Hot Hands’’ fee. The proposed under NYSE American Rules 7.1E and 2. Docket No(s).: MC2020–112 and change is available on the Exchange’s 901NY to close the co-location facility CP2020–118; Filing Title: USPS Request website at www.nyse.com, at the of the Exchange to third parties. to Add Priority Mail Contract 603 to principal office of the Exchange, and at Competitive Product List and Notice of the Commission’s Public Reference 4 The Exchange initially filed rule changes Filing Materials Under Seal; Filing Room. relating to its co-location services with the Acceptance Date: March 31, 2020; Filing Securities and Exchange Commission (‘‘Commission’’) in 2010. See Securities Exchange Authority: 39 U.S.C. 3642, 39 CFR II. Self-Regulatory Organization’s Statement of the Purpose of, and Act Release No. 62961 (September 21, 2010), 75 FR 3020.30 et seq., and 39 CFR 3015.5; 59299 (September 27, 2010) (SR–NYSEAmex–2010– Statutory Basis for, the Proposed Rule Public Representative: Christopher C. 80). Change 5 Mohr; Comments Due: April 8, 2020. See Securities Exchange Act Release No. 88403 In its filing with the Commission, the (March 17, 2020), 85 FR 16400 (March 23, 2020) (SR–NYSEAMER–2020–19). This Notice will be published in the self-regulatory organization included Federal Register. 6 For purposes of the Exchange’s co-location statements concerning the purpose of, services, a ‘‘User’’ means any market participant Erica A. Barker, and basis for, the proposed rule change that requests to receive co-location services directly Secretary. and discussed any comments it received from the Exchange. See Securities Exchange Act Release No. 76009 (September 29, 2015), 80 FR [FR Doc. 2020–07124 Filed 4–3–20; 8:45 am] on the proposed rule change. The text 60213 (October 5, 2015) (SR–NYSEMKT–2015–67). BILLING CODE 7710–FW–P of those statements may be examined at As specified in the NYSE American Equities Price the places specified in Item IV below. List and Fee Schedule and the NYSE American The Exchange has prepared summaries, Options Fee Schedule (together, the ‘‘Price List and Fee Schedule’’), a User that incurs co-location fees set forth in sections A, B, and C below, for a particular co-location service pursuant thereto of the most significant parts of such would not be subject to co-location fees for the statements. same co-location service charged by the Exchange’s affiliates the New York Stock Exchange LLC A. Self-Regulatory Organization’s (‘‘NYSE’’), NYSE Arca, Inc. (‘‘NYSE Arca’’), NYSE Statement of the Purpose of, and the Chicago, Inc. (‘‘NYSE Chicago’’), and NYSE Statutory Basis for, the Proposed Rule National, Inc. (‘‘NYSE National’’ and together, the ‘‘Affiliate SROs’’). See Securities Exchange Act Change Release No. 70176 (August 13, 2013), 78 FR 50471 (August 19, 2013) (SR–NYSEMKT–2013–67). Each 1. Purpose Affiliate SRO has submitted substantially the same The Exchange proposes an extension proposed rule change to propose the changes of the temporary waiver of the co- described herein. See SR–NYSE–2020–25, SR– NYSEArca–2020–26, SR–NYSECHX–2020–10, and 1 See Docket No. RM2018–3, Order Adopting SR–NYSENAT–2020–14. Final Rules Relating to Non-Public Information, 1 15 U.S.C. 78s(b)(1). 7 See Securities Exchange Act Release No. 72719 June 27, 2018, Attachment A at 19–22 (Order No. 2 15 U.S.C. 78a. (July 30, 2014), 79 FR 45502 (August 5, 2014) (SR– 4679). 3 17 CFR 240.19b–4. NYSEMKT–2014–61).

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ICE has now announced to Users that, facilitating transactions in securities, to reasons above, the proposed changes do because the concerns that led to the remove impediments to, and perfect the not unfairly discriminate between or Initial Closure still apply, the closure of mechanisms of, a free and open market among market participants. the Data Center will be extended to the and a national market system and, in In addition, the Exchange believes earlier of the reopening of the Mahwah, general, to protect investors and the that the proposed rule change would New Jersey data center (‘‘Data Center’’) public interest and because it is not perfect the mechanisms of a free and or May 15, 2020. The date will be designed to permit unfair open market and a national market announced through a customer notice. discrimination between customers, system and, in general, protect investors If a User’s equipment requires work issuers, brokers, or dealers. and the public interest because it would while a Rules 7.1E and 901NY closure allow a User to have work carried out is in effect, the User has to use the Hot The Proposed Rule Change Is on its equipment notwithstanding a Hands service and, absent a waiver, Reasonable Rules 7.1E and 901NY closure without incurs Hot Hands fees for the work. The Exchange believes that the incurring Hot Hands fees. Accordingly, Given that, the Exchange waived all Hot proposed rule change is reasonable for the Exchange believes that the requested Hands fees for the duration of the Initial the following reasons. extension of the waiver is designed to Closure.8 Because the period has been Given that the closure of the Data perfect the mechanisms of a free and extended, the Exchange proposes to Center has been extended, the Exchange open market and a national market extend the waiver of the Hot Hands Fee believes that it is reasonable to grant the system and, in general, protect investors for the length of the period. To that end, proposed corresponding extension of and the public interest by facilitating the Exchange proposes to revise the the waiver of the Hot Hands Fee. While the uninterrupted availability of Users’ footnote to the Hot Hands Fee in the a Rules 7.1E and 901NY closure is in equipment. Price List and Fee Schedule as follows effect, User representatives are not For all of the above reasons, the (deletions bracketed, additions allowed access to the Data Center. If a Exchange believes that the proposal is italicized): User’s equipment requires work during consistent with the Act. † Fees for Hot Hands Services will be such period, the User has to use the Hot B. Self-Regulatory Organization’s waived beginning on March 16, 2020 Hands service. Absent a waiver, the Statement on Burden on Competition through [March 29, 2020]the earlier of User would incur Hot Hands fees for the the reopening of the Mahwah, New work. In accordance with Section 6(b)(8) of Jersey data center or May 15, 2020. The proposed extension of the waiver the Act,11 the Exchange believes that the The Exchange believes that there will would allow a User to have work carried proposed rule change will not impose be sufficient Data Center staff on-site to out on its equipment notwithstanding any burden on competition that is not comply with User requests for Hot the closure of the Data Center without necessary or appropriate in furtherance Hands service. incurring Hot Hands fees. of the purposes of the Act. The proposed extension of the waiver The Proposed Rule Change Is Equitable Intramarket Competition would apply equally to all Users. The proposed extension of the fee waiver The Exchange believes the proposed The Exchange does not believe that would not apply differently to distinct rule change is an equitable allocation of the proposed change would place any types or sizes of market participants. its fees and credits for the following burden on intramarket competition that Rather, it would continue to apply reasons. is not necessary or appropriate. uniformly to all Users. The proposed extension of the waiver The proposed extension of the waiver The proposed change is not otherwise would apply equally to all Users. The is not designed to affect competition, intended to address any other issues proposed extension would not apply but rather to provide relief to Users that, relating to co-location services and/or differently to distinct types or sizes of while a Rules 7.1E and 901NY closure related fees, and the Exchange is not market participants. Rather, it would is in effect, have no option but to use aware of any problems that Users would apply uniformly to all Users. the Hot Hands service. have in complying with the proposed The Exchange believes that the The proposed extension of the waiver change. proposal is equitable because the would not apply differently to distinct extension of the waiver would mean types or sizes of market participants. 2. Statutory Basis that for the duration of the closure of the Rather, all Users whose equipment The Exchange believes that the Data Center all similarly-situated Users requires work during the extension of proposed rule change is consistent with would not be charged a fee to use the the Data Center closure would have the Section 6(b) of the Act,9 in general, and Hot Hands service. resulting fees waived, and the extension furthers the objectives of Sections of the waiver would apply uniformly to The Proposed Change Is Not Unfairly 6(b)(4) and (5) of the Act,10 in particular, all Users during the period. Discriminatory and Would Protect because it provides for the equitable Investors and the Public Interest Intermarket Competition allocation of reasonable dues, fees, and other charges among its members, The Exchange believes that the The Exchange does not believe that issuers and other persons using its proposed change is not unfairly the proposed change would impose any facilities and does not unfairly discriminatory for the following burden on intermarket competition that discriminate between customers, reasons. is not necessary or appropriate. issuers, brokers or dealers. In addition, The proposed extension of the waiver The Exchange believes that the it is designed to foster cooperation and would not apply differently to distinct proposed change would not affect the coordination with persons engaged in types or sizes of market participants. competitive landscape among the regulating, clearing, settling, processing Rather, all Users whose equipment national securities exchanges, as the Hot information with respect to, and requires work during the extension of Hands service is solely charged within the Data Center closure would have the co-location to existing Users, and would 8 See 85 FR 16400, supra note 5. resulting fees waived, and the extension be temporary. 9 15 U.S.C. 78f(b). of the waiver would apply uniformly to 10 15 U.S.C. 78f(b)(4) and (5). all Users during the period. For the 11 15 U.S.C. 78f(b)(8).

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For the reasons described above, the subject line if email is used. To help the Office of the Secretary at (202) 551– Exchange believes that the proposed Commission process and review your 5400. rule change reflects this competitive comments more efficiently, please use Dated: April 1, 2020. environment. only one method. The Commission will Vanessa A. Countryman, post all comments on the Commission’s C. Self-Regulatory Organization’s Secretary. internet website (http://www.sec.gov/ Statement on Comments on the rules/sro.shtml). Copies of the [FR Doc. 2020–07259 Filed 4–2–20; 11:15 am] Proposed Rule Change Received From submission, all subsequent BILLING CODE 8011–01–P Members, Participants, or Others amendments, all written statements No written comments were solicited with respect to the proposed rule SECURITIES AND EXCHANGE or received with respect to the proposed change that are filed with the COMMISSION rule change. Commission, and all written III. Date of Effectiveness of the communications relating to the Sunshine Act Meetings Proposed Rule Change and Timing for proposed rule change between the Commission Action Commission and any person, other than TIME AND DATE: Notice is hereby given, those that may be withheld from the The foregoing rule change is effective pursuant to the provisions of the public in accordance with the Government in the Sunshine Act, Public upon filing pursuant to Section provisions of 5 U.S.C. 552, will be 19(b)(3)(A) 12 of the Act and Law 94–409, the Securities and available for website viewing and Exchange Commission will hold an subparagraph (f)(2) of Rule 19b–413 printing in the Commission’s Public thereunder, because it establishes a due, Open Meeting on Wednesday, April 8, Reference Room, 100 F Street NE, 2020 at 3:00 p.m. fee, or other charge imposed by the Washington, DC 20549 on official Exchange. business days between the hours of PLACE: The meeting will be held via At any time within 60 days of the 10:00 a.m. and 3:00 p.m. Copies of the remote means and/or at the filing of such proposed rule change, the filing also will be available for Commission’s headquarters, 100 F Commission summarily may inspection and copying at the principal Street NE, Washington, DC 20549. temporarily suspend such rule change if office of the Exchange. All comments it appears to the Commission that such STATUS: This meeting will begin at 3:00 received will be posted without change. p.m. (ET) and will be open to the public action is necessary or appropriate in the Persons submitting comments are public interest, for the protection of via audio webcast only on the cautioned that we do not redact or edit Commission’s website at www.sec.gov. investors, or otherwise in furtherance of personal identifying information from the purposes of the Act. If the comment submissions. You should MATTERS TO BE CONSIDERED: The Commission takes such action, the submit only information that you wish Commission will consider whether to Commission shall institute proceedings to make available publicly. All adopt rule and form amendments that 14 under Section 19(b)(2)(B) of the Act to submissions should refer to File would improve access to capital and determine whether the proposed rule Number SR–NYSEAMER–2020–23 and facilitate investor communications by change should be approved or should be submitted on or before April business development companies, disapproved. 27, 2020. which primarily invest in small and developing companies, and registered IV. Solicitation of Comments For the Commission, by the Division of closed-end investment companies. The Interested persons are invited to Trading and Markets, pursuant to delegated authority.15 Commission will consider these submit written data, views, and amendments, in part, to implement J. Matthew DeLesDernier, arguments concerning the foregoing, certain provisions of the Small Business including whether the proposed rule Assistant Secretary. Credit Availability Act and the change is consistent with the Act. [FR Doc. 2020–07079 Filed 4–3–20; 8:45 am] Economic Growth, Regulatory Relief, Comments may be submitted by any of BILLING CODE 8011–01–P and Consumer Protection Act. the following methods: Specifically, the Commission will consider whether to modify the Electronic Comments SECURITIES AND EXCHANGE registration, communications, and • COMMISSION Use the Commission’s internet offering processes for business comment form (http://www.sec.gov/ Sunshine Act Meetings development companies and other rules/sro.shtml); or closed-end investment companies under • Send an email to rule-comments@ FEDERAL REGISTER CITATION OF PREVIOUS the Securities Act of 1933, as well as sec.gov. Please include File Number SR– ANNOUNCEMENT: To Be Published. related rule and form amendments NYSEAMER–2020–23 on the subject PREVIOUSLY ANNOUNCED TIME AND DATE OF under the Investment Company Act of line. THE MEETING: Wednesday, April 8, 2020 1940 to tailor the disclosure and Paper Comments at 3:00 p.m. regulatory framework to these investment companies. The Commission • Send paper comments in triplicate CHANGES IN THE MEETING: The Closed also will consider whether to adopt rule to Secretary, Securities and Exchange Meeting scheduled for Wednesday, and form amendments to modernize Commission, 100 F Street NE, April 8, 2020 at 3:00 p.m. has been securities registration fee payments for Washington, DC 20549–1090. changed to Wednesday, April 8, 2020 at certain registrants. All submissions should refer to File 2:00 p.m. Number SR–NYSEAMER–2020–23. This CONTACT PERSON FOR MORE INFORMATION: CONTACT PERSON FOR MORE INFORMATION: file number should be included on the For further information and to ascertain For further information and to ascertain what, if any, matters have been added, what, if any, matters have been added, 12 15 U.S.C. 78s(b)(3)(A). deleted or postponed, please contact the deleted or postponed, please contact 13 17 CFR 240.19b–4(f)(2). Vanessa A. Countryman, Office of the 14 15 U.S.C. 78s(b)(2)(B). 15 17 CFR 200.30–3(a)(12). Secretary, at (202) 551–5400.

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Dated: April 1, 2020. Exchange has prepared summaries, set As of March 16, 2020, the Exchange Vanessa A. Countryman, forth in sections A, B, and C below, of suspended open outcry trading to help Secretary. the most significant aspects of such prevent the spread of the novel [FR Doc. 2020–07260 Filed 4–2–20; 11:15 am] statements. coronavirus and is currently operating BILLING CODE 8011–01–P in an all-electronic configuration. While A. Self-Regulatory Organization’s the trading floor was open, the Statement of the Purpose of, and Exchange facilitated compression SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule forums on the trading floor at the end COMMISSION Change of each calendar week, month, and quarter in which Trading Permit [Release No. 34–88530; File No. SR–CBOE– 1. Purpose 2020–031] Holders reduce open positions in series The Exchange proposes to amend of SPX options in order to mitigate the Self-Regulatory Organizations; Cboe Rule 5.24 regarding the Exchange’s effects of capital constraints on market Exchange, Inc.; Notice of Filing and business continuity and disaster participants and help ensure continued Immediate Effectiveness of a Proposed recovery plans. Rule 5.24 describes depth of liquidity in the SPX options Rule Change Relating To Amend Rule which Trading Permit Holders (‘‘TPHs’’) market. 5.24 are required to connect to the The Exchange recently adopted Rule Exchange’s backup systems as well as 5.24(e)(1)(E) to permit the Exchange to March 31, 2020. certain actions the Exchange may take offer electronic compression forums Pursuant to Section 19(b)(1) of the as part of its business continuity plans while the trading floor is closed.7 Securities Exchange Act of 1934 so that it may maintain fair and orderly Pursuant to Rule 5.24(e)(1)(E), the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 markets if unusual circumstances Exchange will make available an notice is hereby given that on March 31, occurred that could impact the electronic ‘‘compression forum’’ in the 2020, Cboe Exchange, Inc. (the Exchange’s ability to conduct business. same manner as an open outcry ‘‘Exchange’’ or ‘‘Cboe Options’’) filed This includes what actions the ‘‘compression forum’’ as set forth in with the Securities and Exchange Exchange would take if its trading floor Rule 5.88, except as provided in Commission (‘‘SEC’’ or ‘‘Commission’’) became inoperable. Specifically, Rule subparagraph (E). In both electronic and the proposed rule change as described 5.24(e) states if the Exchange trading open outcry compression forums, TPHs in Items I and II below, which Items floor becomes inoperable, the Exchange may submit lists of open positions to the have been prepared by the Exchange. will continue to operate in a screen- Exchange that they wish to close against The Commission is publishing this based only environment using a opposing (long/short) positions of other notice to solicit comments on the floorless configuration of the System TPHs, which the Exchange would then proposed rule change from interested that is operational while the trading aggregate into a single list that would persons. floor facility is inoperable. The allow TPHs to more easily identify those I. Self-Regulatory Organization’s Exchange would operate using that positions with counterparty interest on Statement of the Terms of Substance of configuration only until the Exchange’s the Exchange. The list provided by the the Proposed Rule Change trading floor facility became Exchange includes a complete list of all operational. Open outcry trading would possible combinations of offsetting Cboe Exchange, Inc. (the ‘‘Exchange’’ not be available in the event the trading multi-leg positions to each TPH that or ‘‘Cboe Options’’) proposes to amend floor becomes inoperable.4 Rule submitted compression-list positions to 3 Rule 5.24. The text of the proposed rule 5.24(e)(1) also currently states in the the Exchange.8 change is provided in Exhibit 5. event that the trading floor becomes Rule 5.88, Interpretation and Policy The text of the proposed rule change inoperable, trading will be conducted .01 provides that for purposes of Rule is also available on the Exchange’s pursuant to all applicable System Rules, 5.88, multi-leg positions include vertical website (http://www.cboe.com/ except that open outcry Rules would not call spreads, vertical put spreads, and AboutCBOE/CBOELegalRegulatory be in force, including but not limited to box spreads, which interpretation and Home.aspx), at the Exchange’s Office of the Rules (or applicable portions) in policy applies to both electronic and the Secretary, and at the Commission’s Chapter 5, Section G,5 and that all non- open outcry compression forums. The Public Reference Room. trading rules of the Exchange would proposed rule change would add Rule II. Self-Regulatory Organization’s continue to apply. The Exchange 5.24(e)(1)(E)(iv), which states that Statement of the Purpose of, and recently proposed additional exceptions notwithstanding Interpretation and Statutory Basis for, the Proposed Rule to Rules that would not apply during a Policy .01 in Rule 5.88, for purposes of Change time in which the trading floor in subparagraph (E) (and thus for purposes 6 of electronic compression forums held In its filing with the Commission, the inoperable. while the trading floor is inoperable), Exchange included statements 4 multi-leg positions include vertical call concerning the purpose of and basis for Pursuant to Rule 5.26, the Exchange may enter into a back-up trading arrangement with another spreads, vertical put spreads, combos the proposed rule change and discussed exchange, which could allow the Exchange to use (i.e., purchase (sale) of a call and a sale any comments it received on the the facilities of a back-up exchange to conduct (purchase) of a put with the same proposed rule change. The text of these trading of certain of its products. The Exchange expiration date and strike price), and statements may be examined at the currently has no back-up trading arrangement in place with another exchange. box spreads. Because a combo is places specified in Item IV below. The 5 Chapter 5, Section G of the Exchange’s rulebook essentially a ‘‘synthetic future,’’ it is a sets forth the rules and procedures for manual order common multi-leg strategy among 1 15 U.S.C. 78s(b)(1). handling and open outcry trading on the Exchange. market participants. Market participants 2 17 CFR 240.19b–4. 6 See Securities Exchange Act Release Nos. 88386 3 The Exchange originally submitted a (March 13, 2020), 85 FR 15823 (March 19, 2020) substantially similar rule change on March 30, 2020 (SR–CBOE–2020–019); and 88447 (March 20, 2020) 7 See Securities Exchange Act Release No. 88490 (SR–CBOE–2020–030). On March 31, 2020, the (SR–CBOE–2020–023). The rule changes adopted in (March 26, 2020) (SR–CBOE–2020–026). Exchange withdrew that filing and submitted this that filing are effective until May 15, 2020, unless 8 See Rule 5.88(a)(4); see also Rule filing. extended. See Rule 5.24(e)(1). 5.24(e)(1)(E)(ii).

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often establish market neural hedges by 2. Statutory Basis ability to list combo positions purchasing (selling) a number of combos separately, as it currently does for 9 The Exchange believes the proposed with an offsetting SPX option position. rule change is consistent with the vertical call and put spreads (which also As a result, market participants Securities Exchange Act of 1934 (the comprise box spreads). maintain a significant number of ‘‘Act’’) and the rules and regulations B. Self-Regulatory Organization’s combos in their portfolios. Additionally, thereunder applicable to the Exchange Statement on Burden on Competition when markets are volatile (as they have and, in particular, the requirements of The Exchange does not believe that been recently), market participants often 13 Section 6(b) of the Act. Specifically, the proposed rule change will impose take on positions in a larger range of the Exchange believes the proposed rule strikes, which positions can be put any burden on competition that is not change is consistent with the Section necessary or appropriate in furtherance together as combos. The Exchange 14 6(b)(5) requirements that the rules of of the purposes of the Act. The believes closing combo positions will be an exchange be designed to prevent advantageous because such positions proposed rule change has no impact on fraudulent and manipulative acts and the trading process used in compression can be risk neutral, which means the practices, to promote just and equitable closing of the entire combo has little or forums, but rather, adds to the principles of trade, to foster cooperation information the Exchange may provide no impact on a TPH’s risk profile. and coordination with persons engaged However, the current compression to TPHs as part of its efforts to facilitate in regulating, clearing, settling, market participants’ reduction in open forum framework limits multi-leg processing information with respect to, 10 11 interest. The Exchange does not believe positions to vertical call and put and facilitating transactions in spreads and boxes. The Exchange notes the proposed rule change will impose securities, to remove impediments to any burden on intramarket competition, that just as one put spread and one call and perfect the mechanism of a free and spread combine to create a box spread, as compression forums will continue to open market and a national market be available to all market participants two combos similarly create a box system, and, in general, to protect spread.12 For example, a box spread with SPX open interest. The Exchange investors and the public interest. will make available a list of all possible would be entered by purchasing 100 Additionally, the Exchange believes the DEC 2040 calls and selling 100 DEC offsetting combos, which will be proposed rule change is consistent with available to all TPHs that submit 2070 calls (i.e., bull call spread) and 15 the Section 6(b)(5) requirement that compression-list positions (similar to all selling 100 DEC 2040 puts and the rules of an exchange not be designed purchasing 100 DEC 2070 puts (i.e., bear other information in these lists). The to permit unfair discrimination between Exchange does not believe the proposed put spread). The purchase of 100 DEC customers, issuers, brokers, or dealers. 2040 calls and sale of 100 DEC 2040 rule change will impose any burden on In particular, the proposed rule intermarket competition, as it will apply puts comprises a combo (as does the change will remove impediments to and sale of 100 DEC 2070 calls and purchase only to SPX options, which are perfect the mechanism of a free and currently listed for trading only on the of 100 DEC 2070 puts). The Exchange open market and a national market believes that providing TPHs with this Exchange. The proposed rule change is system, and, in general, to protect intended to permit market participants additional way to identify multi-leg investors and the public interest by positions with offsetting interest will to further reduce open SPX interest to adding a strategy for which the free up additional capital that will enable more efficient closing of such Exchange will make positions available common strategy positions. permit those parties to continue to during compression forums will benefit provide liquidity to the market, which Like the other multi-leg strategies investors, which the Exchange believes the Exchange believes benefits the entire currently covered by the rule, the will increase positions that market market. Exchange will compile a list of all participants may close during possible combos. The lists generated by compression forums. The Exchange C. Self-Regulatory Organization’s the Exchange pursuant to Rule believes the additional information that Statement on Comments on the 5.24(e)(1)(E) are provided to TPHs for may be provided to TPHs in Proposed Rule Change Received From informational purposes only. Individual compression forums may encourage Members, Participants, or Others TPHs continue to determine whether to TPHs to close additional positions via The Exchange neither solicited nor submit compression-list positions; the compression process. The Exchange received comments on the proposed whether to participate in the believes this will enable TPHs to more rule change. compression forum process; and efficiently and effectively close whether to submit orders for execution positions comprising a common multi- III. Date of Effectiveness of the in a compression forum. The Exchange’s leg strategy in the SPX market via the Proposed Rule Change and Timing for provision of the list does not constitute compression forums, which, in general, Commission Action advice, guidance, a commitment to helps to protect investors and the public The Exchange has filed the proposed trade, an execution, or a interest because closing positions via rule change pursuant to Section recommendation to trade. the compression process serves to 19(b)(3)(A)(iii) of the Act 16 and Rule alleviate the adverse impact of bank 19b–4(f)(6) thereunder.17 Because the 9 See, e.g., Rule 5.85(e). capital requirements. As noted above, proposed rule change does not: (i) 10 A vertical call spread involves the purchasing the information regarding combo Significantly affect the protection of and selling of an equal number of call options with investors or the public interest; (ii) the same expiration date but different strike prices. positions is currently included in the 11 A vertical put spread involves the purchasing compression position lists the Exchange impose any significant burden on and selling of an equal number of put options with provides to TPHs, as two combos create competition; and (iii) become operative the same expiration date but different strike prices. a box spread. The proposed rule change for 30 days from the date on which it 12 A box spread involves purchasing (selling) a merely provides the Exchange with the was filed, or such shorter time as the bull call spread and purchasing (selling) a bear put Commission may designate, if spread. In other words, a box spread is composed of a long (short) call and short (long) put position 13 15 U.S.C. 78f(b). at one strike price and a short (long) call and long 14 15 U.S.C. 78f(b)(5). 16 15 U.S.C. 78s(b)(3)(A)(iii). (short) put position at another strike price. 15 Id.. 17 17 CFR 240.19b–4(f)(6).

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consistent with the protection of At any time within 60 days of the offices of the Exchange. All comments investors and the public interest, the filing of the proposed rule change, the received will be posted without change. proposed rule change has become Commission summarily may Persons submitting comments are effective pursuant to Section 19(b)(3)(A) temporarily suspend such rule change if cautioned that we do not redact or edit of the Act 18 and Rule 19b–4(f)(6) it appears to the Commission that such personal identifying information from thereunder.19 action is necessary or appropriate in the comment submissions. You should A proposed rule change filed under public interest, for the protection of submit only information that you wish Rule 19b–4(f)(6) 20 normally does not investors, or otherwise in furtherance of to make available publicly. All become operative for 30 days after the the purposes of the Act. If the submissions should refer to File date of the filing. However, pursuant to Commission takes such action, the Number SR–CBOE–2020–031, and Rule 19b–4(f)(6)(iii),21 the Commission Commission shall institute proceedings should be submitted on or before April may designate a shorter time if such to determine whether the proposed rule 27, 2020. action is consistent with the protection change should be approved or For the Commission, by the Division of of investors and the public interest. The disapproved. Trading and Markets, pursuant to delegated Exchange has asked the Commission to authority.23 IV. Solicitation of Comments waive the 30-day operative delay so that J. Matthew DeLesDernier, the proposed rule change may become Interested persons are invited to Assistant Secretary. operative immediately. As explained submit written data, views, and [FR Doc. 2020–07090 Filed 4–3–20; 8:45 am] above, the Exchange believes that the arguments concerning the foregoing, BILLING CODE 8011–01–P proposed rule change has no impact on including whether the proposed rule the trading process for compression change is consistent with the Act. forums. The Exchange believes that Comments may be submitted by any of SECURITIES AND EXCHANGE providing the additional information the following methods: COMMISSION proposed herein with respect to combos, Electronic Comments in addition to the other information the Sunshine Act Meetings Exchange regularly provides, may • Use the Commission’s internet increase the ability of firms to find other comment form (http://www.sec.gov/ TIME AND DATE: 3:00 p.m. on Wednesday, firms with offsetting positions and rules/sro.shtml); or April 8, 2020. maximize the impact of the quarter-end • Send an email to rule-comments@ PLACE: The meeting will be held via compression forum. Furthermore, the sec.gov. Please include File Number SR– remote means and/or at the Exchange believes providing TPHs with CBOE–2020–031 on the subject line. Commission’s headquarters, 100 F separate combo information, as it Paper Comments Street NE, Washington, DC 20549. provides separate vertical spread • STATUS: This meeting will be closed to information, will provide TPHs with Send paper comments in triplicate the public. to Secretary, Securities and Exchange additional flexibility to locate offsetting MATTERS TO BE CONSIDERED: Commission, 100 F Street NE, positions against which they may Commissioners, Counsel to the Washington, DC 20549–1090. execute in compression forums, which Commissioners, the Secretary to the will permit them to further reduce open All submissions should refer to File Commission, and recording secretaries SPX interest and free up additional Number SR–CBOE–2020–031. This file will attend the closed meeting. Certain capital, which benefits all investors in number should be included on the staff members who have an interest in the SPX market. Accordingly, the subject line if email is used. To help the the matters also may be present. Exchange asserts that waiver of the Commission process and review your In the event that the time, date, or operative delay would permit the comments more efficiently, please use location of this meeting changes, an Exchange to provide TPHs with this only one method. The Commission will announcement of the change, along with information in time for them to engage post all comments on the Commission’s the new time, date, and/or place of the in compression transactions in internet website (http://www.sec.gov/ meeting will be posted on the connection with the expected first rules/sro.shtml). Copies of the Commission’s website at https:// quarter CTPH capital recalculation. For submission, all subsequent www.sec.gov. these reasons, the Commission believes amendments, all written statements The General Counsel of the that waiver of the 30-day operative with respect to the proposed rule Commission, or his designee, has delay is consistent with the protection change that are filed with the certified that, in his opinion, one or of investors and the public interest. Commission, and all written more of the exemptions set forth in 5 Accordingly, the Commission hereby communications relating to the U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) waives the 30-day operative delay and proposed rule change between the and (10) and 17 CFR 200.402(a)(3), designates the proposal operative upon Commission and any person, other than (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and filing.22 those that may be withheld from the (a)(10), permit consideration of the public in accordance with the scheduled matters at the closed meeting. 18 15 U.S.C. 78s(b)(3)(A). provisions of 5 U.S.C. 552, will be The subject matter of the closed 19 17 CFR 240.19b–4(f)(6). Pursuant to Rule 19b– available for website viewing and meeting will consist of the following 4(f)(6)(iii) under the Act, the Exchange is required printing in the Commission’s Public topic: Institution and settlement of to give the Commission written notice of its intent to file the proposed rule change, along with a brief Reference Room, 100 F Street NE, injunctive actions; Institution and description and text of the proposed rule change, Washington, DC 20549 on official settlement of administrative at least five business days prior to the date of filing business days between the hours of proceedings; Resolution of litigation of the proposed rule change, or such shorter time 10:00 a.m. and 3:00 p.m. Copies of the claims; and Other matters relating to as designated by the Commission. The Exchange has satisfied this requirement. filing also will be available for enforcement proceedings. 20 17 CFR 240.19b–4(f)(6). inspection and copying at the principal At times, changes in Commission 21 17 CFR 240.19b–4(f)(6)(iii). priorities require alterations in the 22 For purposes only of waiving the 30-day proposed rule’s impact on efficiency, competition, operative delay, the Commission has considered the and capital formation. See 15 U.S.C. 78c(f). 23 17 CFR 200.30–3(a)(12), (59).

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scheduling of meeting agenda items that concerning the purpose of and basis for Number of option may consist of adjudicatory, the proposed rule change and discussed class assignments SQT Fees examination, litigation, or regulatory any comments it received on the matters. proposed rule change. The text of these Tier 1: Up to 200 $0.00 per calendar classes. month. CONTACT PERSON FOR MORE INFORMATION: statements may be examined at the Tier 2: Up to 400 $2,200 per calendar For further information; please contact places specified in Item IV below. The classes. month. Vanessa A. Countryman from the Office Exchange has prepared summaries, set Tier 3: Up to 600 $3,200.00 per cal- of the Secretary at (202) 551–5400. forth in sections A, B, and C below, of classes. endar month. Dated: April 1, 2020 the most significant aspects of such Tier 4: Up to 800 $4,200.00 per cal- classes. endar month. Vanessa A. Countryman, statements. Tier 5: Up to 1,000 $5,200.00 per cal- Secretary. A. Self-Regulatory Organization’s classes. endar month. [FR Doc. 2020–07206 Filed 4–1–20; 4:15 pm] Statement of the Purpose of, and Tier 6: Up to 1,200 $6,200.00 per cal- BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule classes. endar month. Change Tier 7: All equity $7,200 per calendar issues. month. 1. Purpose SECURITIES AND EXCHANGE COMMISSION In light of the recent closure of open In calculating the number of option class assignments for SQT Fees, equity [Release No. 34–88525; File No. SR–Phlx– outcry trading on the Phlx Trading Floor 2020–12] as of March 17, 2020,3 Phlx proposes to options including ETFs and ETNs are waive certain floor-related fees within counted. Currencies and indexes are not Self-Regulatory Organizations; Nasdaq Options 7, Section 8, ‘‘Membership counted in the number of option class PHLX LLC; Notice of Filing and Fees’’ and Options 7, Section 9, ‘‘Other assignments. Immediate Effectiveness of Proposed Member Fees.’’ Additionally, Phlx The Exchange proposes to waive the Rule Change To Waive Certain Trading proposes to credit Phlx Trading Floor Floor Broker Permit Fee, the Clerk Fee Floor Fees as Well as Adopt a Trading member organizations a fee for Clerks.4 and the SQT Fees during the month of Floor Credit Each proposal is discussed below. April 2020 and for the month of May 2020, in the event that open outcry March 31, 2020. Options 7, Section 8, Membership Fees trading is unavailable as of May 1, 2020. Pursuant to Section 19(b)(1) of the and Section 9, Other Member Fees The Exchange is waiving these fees Securities Exchange Act of 1934 based on the recent closure of open (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Today, the Exchange assesses certain fees related to the Phlx Trading Floor outcry trading on the Phlx Trading notice is hereby given that on March 20, Floor. The Exchange notes, with respect 2020, Nasdaq PHLX LLC (‘‘Phlx’’ or within Options 7, Section 8. Among those fees, the Exchange assesses a to SQTs, that these participants may ‘‘Exchange’’) filed with the Securities only submit quotations while physically and Exchange Commission Permit Fee of $4,000 per month to Floor 5 present on the Trading Floor, therefore (‘‘Commission’’) the proposed rule Brokers. The Exchange also assesses a Clerk Fee 6 of $100 per month. Finally, the closure of open outcry trading change as described in Items I, II, and prevents SQTS from quoting. III, below, which Items have been the Exchange assesses Streaming Quote 7 Today, the Exchange assesses certain prepared by the Exchange. The Trader (‘‘SQT’’) Fees within Options 8, Section 8B. The SQT Fees are tiered fees related to the Phlx Trading Floor Commission is publishing this notice to within Options 7, Section 9. Among solicit comments on the proposed rule fees. Phlx’s 7 tier SQT Fees are as follows: those fees, the Exchange assesses a Floor change from interested persons. Facility Fee of $330 per month, which

I. Self-Regulatory Organization’s 3 is applicable Clerks (excluding Inactive See Options Trader Alert #2020–7. Nominees pursuant to Options 8, Statement of the Terms of Substance of 4 The term ‘‘Clerk’’ means any registered on-floor the Proposed Rule Change person employed by or associated with a member Section 7), Floor Brokers, Market or member organization who is not a member and Makers (including SQTs) and individual The Exchange proposes to amend is not eligible to effect transactions on the Options Lead Market Makers). The Exchange Phlx’s Pricing Schedule. Specifically, Floor as a Lead Market Maker, Floor Market Maker, proposes to waive the Floor Facility Fee the Exchange proposes to amend certain or Floor Broker. An Inactive Nominee is deemed a within Options 7, Sections 8 and 9 due fees within Options 7, Section 8, Clerk. See Options 8, Section 12(a). 5 to the closure of open outcry trading on ‘‘Membership Fees’’ and Options 7, See Phlx Rules at Options 7, Section 8A. 6 The Clerk Fee is imposed on any registered on- the Phlx Trading Floor. Section 9, ‘‘Other Member Fees’’ as well floor person employed by or associated with a as propose a credit. member or member organization pursuant to Credits for Clerks The text of the proposed rule change Options 3, Section 19, including Inactive Nominees The Exchange proposes to pay a credit is available on the Exchange’s website at pursuant to Options 8, Section 7. The Clerk Fee is to Trading Floor member organizations http://nasdaqphlx.cchwallstreet.com/, not imposed on permit holders. See Phlx Rules at Options 7, Section 8A. based on the number of Clerks those at the principal office of the Exchange, 7 The term ‘‘Streaming Quote Trader’’ is defined and at the Commission’s Public member organizations have registered as in Options 1, Section 1(b)(54) as a Market Maker of April 1, 2020. The Exchange proposes Reference Room. who has received permission from the Exchange to generate and submit option quotations to pay each member organization a II. Self-Regulatory Organization’s electronically in options to which such SQT is credit of $5,000 per Clerk that is Statement of the Purpose of, and assigned. See Options 7, Section 1. Further, Options registered as of April 1, 2020 for the Statutory Basis for, the Proposed Rule 1, Section 1(b)(54) provides that an SQT means a month of April 2020. Phlx will also pay Market Maker who has received permission from Change the Exchange to generate and submit option the aforementioned credit for the month In its filing with the Commission, the quotations electronically in options to which such of May 2020, in the event that open Exchange included statements SQT is assigned. An SQT may only submit such outcry trading is unavailable as of May quotations while such SQT is physically present on 1, 2020 and the Clerk is registered as of the trading floor of the Exchange. An SQT may only 1 15 U.S.C. 78s(b)(1). submit quotes in classes of options in which the May 1, 2020. The Exchange is proposing 2 17 CFR 240.19b–4. SQT is assigned. this credit for each registered Clerk to

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offer Phlx Trading Floor member dealers’....’’14 Although the court member organizations to continue to organizations certain relief to continue and the SEC were discussing the cash maintain their business operations to maintain its business operations. equities markets, the Exchange believes during April 2020, and potentially May that these views apply with equal force 2020 based on whether open outcry 2. Statutory Basis to the options markets. trading is available in May 2020. The Exchange believes that its The Exchange’s proposal to pay a proposal is consistent with Section 6(b) Section 8, Membership Fees credit in April 2020 (and potentially of the Act,8 in general, and furthers the The Exchange’s proposal to waive the May 2020) to Trading Floor member objectives of Sections 6(b)(4) and 6(b)(5) Floor Broker Permit Fee, the Clerk Fee, organizations based on the number of of the Act,9 in particular, in that it SQT Fee and the Floor Facility Fee Clerks those member organizations have provides for the equitable allocation of during the month of April 2020 and for registered as of April 1, 2020 (and reasonable dues, fees and other charges the month of May 2020, in the event potentially May 1, 2020) is equitable among members and issuers and other that open outcry trading is unavailable and not unfairly discriminatory. The persons using any facility, and is not as of May 1, 2020 is reasonable as open Exchange proposes to pay all member designed to permit unfair outcry on the Phlx Trading Floor is not organizations a credit for each Clerk the discrimination between customers, available.15 The Exchange’s proposal to firm has registered as of April 1, 2020 issuers, brokers, or dealers. waive these fees, which apply to (and potentially May 1, 2020) in a The Commission and the courts have transacting an options business on the uniform manner. The Exchange believes repeatedly expressed their preference Trading Floor, is intended to alleviate that paying a credit to member for competition over regulatory costs for member organizations while organizations for each Clerk would intervention in determining prices, these member organizations are unable alleviate some of the financial burden products, and services in the securities to transact options in open outcry on the for each member organization. A Clerk markets. In Regulation NMS, while Phlx Trading Floor. is any registered on-floor person adopting a series of steps to improve the The Exchange’s proposal to waive the employed by or associated with a current market model, the Commission Floor Broker Permit Fee, the Clerk Fee, member or member organization who is highlighted the importance of market SQT Fee and the Floor Facility Fee not a member and is not eligible to forces in determining prices and SRO during the month of April 2020 and for effect transactions on the Options Floor revenues and, also, recognized that the month of May 2020, in the event as a Lead Market Maker, Floor Market current regulation of the market system that open outcry trading is unavailable Maker, or Floor Broker. As such, Clerks ‘‘has been remarkably successful in as of May 1, 2020 is equitable and not are employees of Phlx Trading Floor promoting market competition in its unfairly discriminatory as the Exchange member organizations that would not broader forms that are most important to will apply these proposed waivers otherwise be able to transact an options investors and listed companies.’’ 10 uniformly to all member organizations business as a Lead Market Maker, Floor Likewise, in NetCoalition v. Securities on the Trading Floor. Phlx continues to Market Maker, or Floor Broker. The and Exchange Commission 11 permit electronic trading and therefore Exchange believes that paying a credit (‘‘NetCoalition’’) the D.C. Circuit upheld fees associated with electronic trading to member organizations for each Clerk the Commission’s use of a market-based have not been waived. registered as of April 1, 2020 (and approach in evaluating the fairness of Credits for Clerks potentially May 1, 2020) will assist market data fees against a challenge member organizations in continuing to claiming that Congress mandated a cost- The Exchange’s proposal to pay a employee Clerks during the closure of based approach.12 As the court credit in April 2020 (and for the month open outcry trading. emphasized, the Commission ‘‘intended of May 2020, in the event that open in Regulation NMS that ‘market forces, outcry trading is unavailable as of May B. Self-Regulatory Organization’s rather than regulatory requirements’ 1, 2020 and the Clerk is registered as of Statement on Burden on Competition play a role in determining the market May 1, 2020) to Trading Floor member The Exchange does not believe that data . . . to be made available to organizations based on the number of the proposed rule change will impose investors and at what cost.’’ 13 Clerks those member organizations have any burden on competition not Further, ‘‘[n]o one disputes that registered as of April 1, 2020 (and necessary or appropriate in furtherance competition for order flow is ‘fierce.’ potentially May 1, 2020) is reasonable. of the purposes of the Act. . . . As the SEC explained, ‘[i]n the U.S. For the month of April 2020 (and for the Inter-Market Competition national market system, buyers and month of May 2020, in the event that sellers of securities, and the broker- open outcry trading is unavailable as of The proposal does not impose an dealers that act as their order-routing May 1, 2020 and the Clerk is registered undue burden on inter-market agents, have a wide range of choices of as of May 1, 2020), Phlx proposes to pay competition. The Exchange believes its where to route orders for execution’; each member organization a credit of proposal remains competitive with [and] ‘no exchange can afford to take its $5,000 per Clerk, which the firm has other options markets and will offer market share percentages for granted’ registered as of April 1, 2020 (and market participants with another choice because ‘no exchange possesses a potentially May 1, 2020), to provide of where to transact options. The monopoly, regulatory or otherwise, in relief to member organizations that are Exchange notes that it operates in a the execution of order flow from broker currently unable to transact options in highly competitive market in which open outcry on the Phlx Trading Floor. market participants can readily favor 8 15 U.S.C. 78f(b). Phlx is proposing this credit to assist competing venues if they deem fee 9 15 U.S.C. 78f(b)(4) and (5). levels at a particular venue to be 10 Securities Exchange Act Release No. 51808 14 Id. at 539 (quoting Securities Exchange Act excessive, or rebate opportunities (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) Release No. 59039 (December 2, 2008), 73 FR available at other venues to be more (‘‘Regulation NMS Adopting Release’’). 74770, 74782–83 (December 9, 2008) (SR– favorable. In such an environment, the 11 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. NYSEArca–2006–21)). 2010). 15 The Exchange announced that as of March 17, Exchange must continually adjust its 12 See NetCoalition, at 534–535. 2020 open outcry trading was not available. See fees to remain competitive with other 13 Id. at 537. Options Trader Alert #2020–7. exchanges that have been exempted

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from compliance with the statutory C. Self-Regulatory Organization’s those that may be withheld from the standards applicable to exchanges. Statement on Comments on the public in accordance with the Because competitors are free to modify Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be their own fees in response, and because Members, Participants, or Others available for website viewing and market participants may readily adjust No written comments were either printing in the Commission’s Public their order routing practices, the solicited or received. Reference Room, 100 F Street NE, Exchange believes that the degree to Washington, DC 20549, on official III. Date of Effectiveness of the which fee changes in this market may business days between the hours of impose any burden on competition is Proposed Rule Change and Timing for Commission Action 10:00 a.m. and 3:00 p.m. Copies of the extremely limited. filing also will be available for Intra-Market Competition The foregoing rule change has become inspection and copying at the principal effective pursuant to Section office of the Exchange. All comments The proposed amendments do not 16 19(b)(3)(A)(ii) of the Act. received will be posted without change. impose an undue burden on intra- At any time within 60 days of the Persons submitting comments are market competition. filing of the proposed rule change, the cautioned that we do not redact or edit Section 8, Membership Fees Commission summarily may temporarily suspend such rule change if personal identifying information from The Exchange’s proposal to waive the it appears to the Commission that such comment submissions. You should Floor Broker Permit Fee, the Clerk Fee, action is: (i) Necessary or appropriate in submit only information that you wish SQT Fee and the Floor Facility Fee the public interest; (ii) for the protection to make available publicly. All during the month of April 2020, and for of investors; or (iii) otherwise in submissions should refer to File the month of May 2020, in the event furtherance of the purposes of the Act. Number SR–Phlx–2020–12 and should that open outcry trading is unavailable If the Commission takes such action, the be submitted on or before April 27, as of May 1, 2020 does not impose an Commission shall institute proceedings 2020. undue burden on competition as the to determine whether the proposed rule For the Commission, by the Division of Exchange will apply these proposed should be approved or disapproved. waivers uniformly to all member Trading and Markets, pursuant to delegated 17 organizations on the Trading Floor. Phlx IV. Solicitation of Comments authority. continues to permit electronic trading Interested persons are invited to J. Matthew DeLesDernier, and therefore fees associated with submit written data, views, and Assistant Secretary. electronic trading have not been waived. arguments concerning the foregoing, [FR Doc. 2020–07081 Filed 4–3–20; 8:45 am] Credits for Clerks including whether the proposed rule BILLING CODE 8011–01–P change is consistent with the Act. The Exchange’s proposal to pay a Comments may be submitted by any of credit in April 2020 (and potentially the following methods: SECURITIES AND EXCHANGE May 2020) to Trading Floor member COMMISSION organizations based on the number of Electronic Comments Clerks those member organizations have • Use the Commission’s internet registered as of April 1, 2020 (and [Release No. 34–88518; File No. SR–NYSE– comment form (http://www.sec.gov/ 2020–25] potentially May 1, 2020) does not rules/sro.shtml); or impose an undue burden on • Send an email to rule-comments@ Self-Regulatory Organizations; New competition. The Exchange proposes to sec.gov. Please include File Number SR– York Stock Exchange LLC; Notice of pay all member organizations a credit Phlx–2020–12 on the subject line. for each Clerk the firm has registered as Filing and Immediate Effectiveness of of April 1, 2020 (and potentially May 1, Paper Comments Proposed Rule Change for an 2020) in a uniform manner. The • Send paper comments in triplicate Extension of the Temporary Waiver of Exchange believes that paying a credit to Secretary, Securities and Exchange the Co-Location ‘‘Hot Hands’’ Fee Commission, 100 F Street NE, to member organizations for each Clerk March 31, 2020. would alleviate some of the financial Washington, DC 20549–1090. burden for each member organization. All submissions should refer to File Pursuant to Section 19(b)(1) 1 of the Clerks are any registered on-floor person Number SR–Phlx–2020–12. This file Securities Exchange Act of 1934 (the employed by or associated with a number should be included on the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 member or member organization who is subject line if email is used. To help the notice is hereby given that, on March not a member and is not eligible to Commission process and review your 27, 2020, New York Stock Exchange effect transactions on the Options Floor comments more efficiently, please use LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed as a Lead Market Maker, Floor Market only one method. The Commission will with the Securities and Exchange Maker, or Floor Broker. As such, Clerks post all comments on the Commission’s Commission (the ‘‘Commission’’) the are employees of Phlx Trading Floor internet website (http://www.sec.gov/ proposed rule change as described in member organizations that would not rules/sro.shtml). Copies of the Items I, II, and III below, which Items otherwise be able to transact an options submission, all subsequent have been prepared by the self- business as a Lead Market Maker, Floor amendments, all written statements regulatory organization. The Market Maker, or Floor Broker. The with respect to the proposed rule Commission is publishing this notice to Exchange believes that paying a credit change that are filed with the solicit comments on the proposed rule to member organizations for each Clerk Commission, and all written change from interested persons. registered as of April 1, 2020 (and communications relating to the potentially May 1, 2020) will assist proposed rule change between the 17 17 CFR 200.30–3(a)(12). member organizations in continuing to Commission and any person, other than 1 15 U.S.C. 78s(b)(1). employee Clerks during the closure of 2 15 U.S.C. 78a. open outcry trading. 16 15 U.S.C. 78s(b)(3)(A)(ii). 3 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s ‘‘Hot Hands’’ service, which allows proposed extension of the fee waiver Statement of the Terms of Substance of Users to use on-site Data Center would not apply differently to distinct the Proposed Rule Change personnel to maintain User equipment, types or sizes of market participants. The Exchange proposes an extension support network troubleshooting, rack Rather, it would continue to apply of the temporary waiver of the co- and stack a server in a User’s cabinet; uniformly to all Users. location ‘‘Hot Hands’’ fee. The proposed power recycling; and install and The proposed change is not otherwise rule change is available on the document the fitting of cable in a User’s intended to address any other issues Exchange’s website at www.nyse.com, at cabinet(s).7 The Hot Hands fee is $100 relating to co-location services and/or the principal office of the Exchange, and per half hour. related fees, and the Exchange is not at the Commission’s Public Reference ICE originally announced that the aware of any problems that Users would Room. Data Center would be closed to third have in complying with the proposed parties for the period from March 16, change. II. Self-Regulatory Organization’s 2020 through March 29, 2020 (the 2. Statutory Basis Statement of the Purpose of, and ‘‘Initial Closure’’), to help avoid the Statutory Basis for, the Proposed Rule spread of COVID–19, which could The Exchange believes that the Change negatively impact Data Center functions. proposed rule change is consistent with In its filing with the Commission, the Prior to the closure of the Data Center, Section 6(b) of the Act,9 in general, and self-regulatory organization included the Chief Executive Officer of the furthers the objectives of Sections statements concerning the purpose of, Exchange took the actions required 6(b)(4) and (5) of the Act,10 in particular, and basis for, the proposed rule change under NYSE Rule 7.1 to close the co- because it provides for the equitable and discussed any comments it received location facility of the Exchange to third allocation of reasonable dues, fees, and on the proposed rule change. The text parties. other charges among its members, of those statements may be examined at ICE has now announced to Users that, issuers and other persons using its the places specified in Item IV below. because the concerns that led to the facilities and does not unfairly The Exchange has prepared summaries, Initial Closure still apply, the closure of discriminate between customers, set forth in sections A, B, and C below, the Data Center will be extended to the issuers, brokers or dealers. In addition, of the most significant parts of such earlier of the reopening of the Mahwah, it is designed to foster cooperation and statements. New Jersey data center (‘‘Data Center’’) coordination with persons engaged in or May 15, 2020. The date will be regulating, clearing, settling, processing A. Self-Regulatory Organization’s announced through a customer notice. information with respect to, and Statement of the Purpose of, and the If a User’s equipment requires work facilitating transactions in securities, to Statutory Basis for, the Proposed Rule while a Rule 7.1 closure is in effect, the remove impediments to, and perfect the Change User has to use the Hot Hands service mechanisms of, a free and open market 1. Purpose and, absent a waiver, incurs Hot Hands and a national market system and, in The Exchange proposes an extension fees for the work. Given that, the general, to protect investors and the of the temporary waiver of the co- Exchange waived all Hot Hands fees for public interest and because it is not 8 location 4 ‘‘Hot Hands’’ fee through the the duration of the Initial Closure. designed to permit unfair earlier of the reopening of the Mahwah, Because the period has been extended, discrimination between customers, New Jersey data center (‘‘Data Center’’) the Exchange proposes to extend the issuers, brokers, or dealers. waiver of the Hot Hands Fee for the or May 15, 2020. The waiver of the Hot The Proposed Rule Change Is length of the period. To that end, the Hands fee was originally through March Reasonable 5 Exchange proposes to revise the 29, 2020. The Exchange believes that the The Exchange is an indirect footnote to the Hot Hands Fee in the proposed rule change is reasonable for subsidiary of Intercontinental Exchange, Price List as follows (deletions the following reasons. Inc. (‘‘ICE’’). Through its ICE Data bracketed, additions italicized): Given that the closure of the Data Services (‘‘IDS’’) business, ICE operates † Fees for Hot Hands Services will be Center has been extended, the Exchange the Mahwah, New Jersey data center waived beginning on March 16, 2020 believes that it is reasonable to grant the (‘‘Data Center’’), from which the through [March 29, 2020]the earlier of proposed corresponding extension of Exchange provides co-location services the reopening of the Mahwah, New the waiver of the Hot Hands Fee. While to Users.6 Among those services is a Jersey data center or May 15, 2020. The Exchange believes that there will a Rule 7.1 closure is in effect, User representatives are not allowed access to 4 The Exchange initially filed rule changes be sufficient Data Center staff on-site to relating to its co-location services with the comply with User requests for Hot the Data Center. If a User’s equipment Securities and Exchange Commission Hands service. requires work during such period, the (‘‘Commission’’) in 2010. See Securities Exchange The proposed extension of the waiver User has to use the Hot Hands service. Act Release No. 62960 (September 21, 2010), 75 FR Absent a waiver, the User would incur 59310 (September 27, 2010) (SR–NYSE–2010–56). would apply equally to all Users. The 5 See Securities Exchange Act Release No. 88397 Hot Hands fees for the work. (March 17, 2020), 85 FR 16406 (March 23, 2020) Chicago, Inc. (‘‘NYSE Chicago’’), and NYSE The proposed extension of the waiver (SR–NYSE–2020–18). National, Inc. (‘‘NYSE National’’ and together, the would allow a User to have work carried 6 For purposes of the Exchange’s co-location ‘‘Affiliate SROs’’). See Securities Exchange Act out on its equipment notwithstanding Release No. 70206 (August 15, 2013), 78 FR 51765 services, a ‘‘User’’ means any market participant the closure of the Data Center without that requests to receive co-location services directly (August 21, 2013) (SR–NYSE–2013–59). Each from the Exchange. See Securities Exchange Act Affiliate SRO has submitted substantially the same incurring Hot Hands fees. Release No. 76008 (September 29, 2015), 80 FR proposed rule change to propose the changes 60190 (October 5, 2015) (SR–NYSE–2015–40). As described herein. See SR–NYSEAmer–2020–23, The Proposed Rule Change Is Equitable specified in the Price List, a User that incurs co- SR–NYSEArca–2020–26, SR–NYSECHX–2020–10, The Exchange believes the proposed and SR–NYSENAT–2020–14. location fees for a particular co-location service rule change is an equitable allocation of pursuant thereto would not be subject to co-location 7 See Securities Exchange Act Release No. 72721 fees for the same co-location service charged by the (July 30, 2014), 79 FR 45562 (August 5, 2014) (SR– Exchange’s affiliates NYSE American LLC (‘‘NYSE NYSE–2014–37). 9 15 U.S.C. 78f(b). American’’), NYSE Arca, Inc. (‘‘NYSE Arca’’), NYSE 8 See 85 FR 16406, supra note 5. 10 15 U.S.C. 78f(b)(4) and (5).

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its fees and credits for the following Intramarket Competition Commission shall institute proceedings 14 reasons. The Exchange does not believe that under Section 19(b)(2)(B) of the Act to The proposed extension of the waiver the proposed change would place any determine whether the proposed rule would apply equally to all Users. The burden on intramarket competition that change should be approved or proposed extension would not apply is not necessary or appropriate. disapproved. differently to distinct types or sizes of The proposed extension of the waiver IV. Solicitation of Comments is not designed to affect competition, market participants. Rather, it would Interested persons are invited to but rather to provide relief to Users that, apply uniformly to all Users. submit written data, views, and while a Rule 7.1 closure is in effect, The Exchange believes that the arguments concerning the foregoing, have no option but to use the Hot Hands proposal is equitable because the including whether the proposed rule extension of the waiver would mean service. The proposed extension of the waiver change is consistent with the Act. that for the duration of the closure of the would not apply differently to distinct Comments may be submitted by any of Data Center all similarly-situated Users the following methods: types or sizes of market participants. would not be charged a fee to use the Rather, all Users whose equipment Electronic Comments Hot Hands service. requires work during the extension of • Use the Commission’s internet The Proposed Change Is Not Unfairly the Data Center closure would have the comment form (http://www.sec.gov/ Discriminatory and Would Protect resulting fees waived, and the extension rules/sro.shtml); or Investors and the Public Interest of the waiver would apply uniformly to • Send an email to rule-comments@ all Users during the period. sec.gov. Please include File Number SR– The Exchange believes that the NYSE–2020–25 on the subject line. proposed change is not unfairly Intermarket Competition discriminatory for the following The Exchange does not believe that Paper Comments reasons. the proposed change would impose any • Send paper comments in triplicate The proposed extension of the waiver burden on intermarket competition that to Secretary, Securities and Exchange would not apply differently to distinct is not necessary or appropriate. Commission, 100 F Street NE, types or sizes of market participants. The Exchange believes that the Washington, DC 20549–1090. Rather, all Users whose equipment proposed change would not affect the All submissions should refer to File requires work during the extension of competitive landscape among the Number SR–NYSE–2020–25. This file the Data Center closure would have the national securities exchanges, as the Hot number should be included on the resulting fees waived, and the extension Hands service is solely charged within subject line if email is used. To help the of the waiver would apply uniformly to co-location to existing Users, and would Commission process and review your all Users during the period. For the be temporary. comments more efficiently, please use reasons above, the proposed changes do For the reasons described above, the only one method. The Commission will not unfairly discriminate between or Exchange believes that the proposed post all comments on the Commission’s among market participants. rule change reflects this competitive internet website (http://www.sec.gov/ environment. In addition, the Exchange believes rules/sro.shtml). Copies of the that the proposed rule change would C. Self-Regulatory Organization’s submission, all subsequent perfect the mechanisms of a free and Statement on Comments on the amendments, all written statements open market and a national market Proposed Rule Change Received From with respect to the proposed rule system and, in general, protect investors Members, Participants, or Others change that are filed with the and the public interest because it would No written comments were solicited Commission, and all written allow a User to have work carried out or received with respect to the proposed communications relating to the on its equipment notwithstanding a rule change. proposed rule change between the Rule 7.1 closure without incurring Hot Commission and any person, other than Hands fees. Accordingly, the Exchange III. Date of Effectiveness of the those that may be withheld from the believes that the requested extension of Proposed Rule Change and Timing for public in accordance with the the waiver is designed to perfect the Commission Action provisions of 5 U.S.C. 552, will be mechanisms of a free and open market The foregoing rule change is effective available for website viewing and and a national market system and, in upon filing pursuant to Section printing in the Commission’s Public general, protect investors and the public 19(b)(3)(A) 12 of the Act and Reference Room, 100 F Street, NE, interest by facilitating the uninterrupted subparagraph (f)(2) of Rule 19b–4 13 Washington, DC 20549 on official availability of Users’ equipment. thereunder, because it establishes a due, business days between the hours of fee, or other charge imposed by the 10:00 a.m. and 3:00 p.m. Copies of the For all of the above reasons, the filing also will be available for Exchange believes that the proposal is Exchange. At any time within 60 days of the inspection and copying at the principal consistent with the Act. filing of such proposed rule change, the office of the Exchange. All comments B. Self-Regulatory Organization’s Commission summarily may received will be posted without change. Statement on Burden on Competition temporarily suspend such rule change if Persons submitting comments are it appears to the Commission that such cautioned that we do not redact or edit In accordance with Section 6(b)(8) of action is necessary or appropriate in the personal identifying information from the Act,11 the Exchange believes that the public interest, for the protection of comment submissions. You should proposed rule change will not impose investors, or otherwise in furtherance of submit only information that you wish any burden on competition that is not the purposes of the Act. If the to make available publicly. All necessary or appropriate in furtherance Commission takes such action, the submissions should refer to File of the purposes of the Act. Number SR–NYSE–2020–25 and should 12 15 U.S.C. 78s(b)(3)(A). 11 15 U.S.C. 78f(b)(8). 13 17 CFR 240.19b–4(f)(2). 14 15 U.S.C. 78s(b)(2)(B).

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be submitted on or before April 27, Exchange has prepared summaries, set economy and assist affected companies 2020. forth in sections A, B, and C below, of and their employees.6 For the Commission, by the Division of the most significant aspects of such Amidst this market uncertainty, the Trading and Markets, pursuant to delegated statements. Exchange is seeking to address potential authority.15 challenges that members may face in J. Matthew DeLesDernier, A. Self-Regulatory Organization’s timely meeting their obligations to Statement of the Purpose of, and Assistant Secretary. submit to the Exchange annual Statutory Basis for, the Proposed Rule supervision-related reports under [FR Doc. 2020–07073 Filed 4–3–20; 8:45 am] Change Options 10, Sections 7(g) and (h) BILLING CODE 8011–01–P (‘‘Supervision Reporting 1. Purpose Requirements’’), especially in light of SECURITIES AND EXCHANGE Given current market conditions, the unforeseen and uncertain demands on COMMISSION Exchange proposes to provide its resources required to respond to COVID–19. Options 10, Section 7(g) [Release No. 34–88527; File No. SR-Phlx- members temporary relief from filing certain supervision-related reports requires each Exchange member that 2020–16] conducts a non-member customer pursuant to Options 10, Section 7 business to submit to the Exchange a Self-Regulatory Organizations; Nasdaq (Supervision of Accounts). written report on the member’s PHLX LLC; Notice of Filing and In December 2019, COVID–19 began supervision and compliance effort Immediate Effectiveness of Proposed to spread and disrupt company during the preceding year and on the Rule Change To Temporarily Extend operations and supply chains and adequacy of the member’s ongoing Certain Filing Requirements impact consumers and investors, compliance processes and procedures. March 31, 2020. resulting in a dramatic slowdown in Each member that conducts a public Pursuant to Section 19(b)(1) of the production and spending.3 By March customer options business is also Securities Exchange Act of 1934 11, 2020, the World Health Organization required to specifically include its (‘‘Act’’),1 and Rule 19b–4 thereunder,2 characterized COVID–19 as a options compliance program in the notice is hereby given that on March 27, pandemic.4 To slow the spread of the report.7 The Section 7(g) report is due 2020, Nasdaq PHLX LLC (‘‘Phlx’’ or disease, federal and state officials on April 1 of each year. Options 10, ‘‘Exchange’’) filed with the Securities implemented social-distancing Section 7(h) requires that each member and Exchange Commission measures, placed significant limitations submit, by April 1 of each year, a copy (‘‘Commission’’) the proposed rule on large gatherings, limited travel, and of the Section 7(g) report to one or more change as described in Items I and II closed non-essential businesses. These control persons or, if the member has no control person, to the audit committee below, which Items have been prepared measures have affected the U.S. by the Exchange. The Commission is 5 of its board of directors or its equivalent markets. In the United States, Level 1 8 publishing this notice to solicit committee or group. market wide circuit breaker halts were Accordingly, the Exchange proposes comments on the proposed rule change triggered on March 9, March 12, March from interested persons. to provide temporary relief for members 16, and March 18, 2020. While markets from the Supervision Reporting I. Self-Regulatory Organization’s have seen significant declines, Requirements by extending the April 1, Statement of the Terms of Substance of governments around the world are 2020 filing deadlines described above to the Proposed Rule Change undertaking efforts to stabilize the June 1, 2020. The Exchange believes The Exchange proposes to temporarily that this temporary relief will permit extend the filing requirements for 3 See, e.g., Chairman Jay Clayton, Proposed members to focus on running their Amendments to Modernize and Enhance Financial businesses and the immediate health certain written reports, currently due Disclosures; Other Ongoing Disclosure April 1, 2020 pursuant to Options 10, Modernization Initiatives; Impact of the crisis caused by the COVID–19 Section 7, to June 1, 2020. Coronavirus; Environmental and Climate-Related pandemic, including its impact on their The text of the proposed rule change Disclosure (Jan. 30, 2020), available at https:// employees, customers, and www.sec.gov/news/public-statement/clayton-mda- communities. is available on the Exchange’s website at 2020-01-30. (‘‘Yesterday, I asked the staff to monitor http://nasdaqphlx.cchwallstreet.com/, and, to the extent necessary or appropriate, provide 2. Statutory Basis at the principal office of the Exchange, guidance and other assistance to issuers and other and at the Commission’s Public market participants regarding disclosures related to The Exchange believes that its Reference Room. the current and potential effects of the coronavirus. proposal is consistent with Section 6(b) We recognize that such effects may be difficult to of the Act,9 in general, and furthers the II. Self-Regulatory Organization’s assess or predict with meaningful precision both 10 generally and as an industry- or issuer-specific objectives of Section 6(b)(5) of the Act, Statement of the Purpose of, and basis. This is an uncertain issue where actual effects in particular, in that it is designed to Statutory Basis for, the Proposed Rule will depend on many factors beyond the control promote just and equitable principles of Change and knowledge of issuers.’’). trade; to remove impediments to and 4 See WHO Director-General’s Opening Remarks In its filing with the Commission, the at the Media Briefing on COVID–19 (March 11, 6 Exchange included statements 2020), available at https://www.who.int/dg/ See, e.g., the list of actions undertaken by the speeches/detail/who-director-general-s-opening- Board of Governors of the Federal Reserve System concerning the purpose of and basis for at https://www.federalreserve.gov/covid-19.htm. See the proposed rule change and discussed remarks-at-the-media-briefing-on-covid-19-11- march-2020. also Families First Coronavirus Response Act, Public Law 116–127. any comments it received on the 5 ‘‘Analysts showed that we saw the fastest 7 proposed rule change. The text of these ‘correction’ in history (down 10% from a high), The report shall include, but not be limited to, statements may be examined at the occurring in a matter of days. In the last week of the information set out in Options 10, Section 7(g)(i)–(v). places specified in Item IV below. The February, the Dow fell 12.36% with notional trading of $3.6 trillion.’’ See Phil Mackintosh, 8 See Options 10, Section 7(h) for the meaning of Putting the Recent Volatility in Perspective, the term ‘‘control person’’ and requirements in the 15 17 CFR 200.30–3(a)(12). available at https://www.nasdaq.com/articles/ case of a control person that is an organization. 1 15 U.S.C. 78s(b)(1). putting-the-recent-volatility-in-perspective-2020-03- 9 15 U.S.C. 78f(b). 2 17 CFR 240.19b–4. 05. 10 15 U.S.C. 78f(b)(5).

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perfect the mechanism of a free and A proposed rule change filed All submissions should refer to File open market and a national market pursuant to Rule 19b–4(f)(6) under the Number SR–PHLX–2020–16. This file system; and, in general to protect Act 13 normally does not become number should be included on the investors and the public interest. As a operative for 30 days after the date of its subject line if email is used. To help the result of uncertainty related to the filing. However, Rule 19b–4(f)(6)(iii) 14 Commission process and review your ongoing spread of the COVID–19 virus, permits the Commission to designate a comments more efficiently, please use the U.S. exchanges are experiencing shorter time if such action is consistent only one method. The Commission will unprecedented market volatility. The with the protection of investors and the post all comments on the Commission’s proposed rule change would allow the public interest. The Exchange has internet website (http://www.sec.gov/ Exchange to provide temporary relief for requested that the Commission waive rules/sro.shtml). Copies of the members from the Supervision the 30-day operative delay so that the submission, all subsequent Reporting Requirements, which proposed rule change may become amendments, all written statements currently requires members to provide operative upon filing. The Commission with respect to the proposed rule written reports to the Exchange by April notes that the proposed rule change change that are filed with the 1, 2020, and extend that deadline to would allow the Exchange, in light of Commission, and all written June 1, 2020. The Exchange believes the COVID–19 pandemic, to provide communications relating to the that this temporary relief is necessary temporary relief for members by proposed rule change between the and appropriate in the public interest, extending the deadline for written Commission and any person, other than and consistent with the protection of reports pursuant to the Supervision those that may be withheld from the investors, given the unforeseen and Reporting Requirements from April 1, public in accordance with the uncertain challenges, including 2020 to June 1, 2020. The Commission provisions of 5 U.S.C. 552, will be business continuity implementation and believes that waiver of the 30-day available for website viewing and market volatility, posed by COVID–19 to operative delay is consistent with the printing in the Commission’s Public members that must comply with the protection of investors and the public Reference Room, 100 F Street NE, Supervision Reporting Requirements. interest. Accordingly, the Commission Washington, DC 20549 on official hereby waives the operative delay and business days between the hours of B. Self-Regulatory Organization’s designates the proposed rule change 10:00 a.m. and 3:00 p.m. Copies of the Statement on Burden on Competition operative upon filing.15 filing also will be available for The Exchange does not believe that At any time within 60 days of the inspection and copying at the principal the proposed rule change will impose filing of the proposed rule change, the office of the Exchange. All comments any burden on competition not Commission summarily may received will be posted without change. necessary or appropriate in furtherance temporarily suspend such rule change if Persons submitting comments are of the purposes of the Act. The it appears to the Commission that such cautioned that we do not redact or edit proposed rule change is not designed to action is necessary or appropriate in the personal identifying information from address any competitive issues but public interest, for the protection of comment submissions. You should rather to provide temporary relief for all investors, or otherwise in furtherance of submit only information that you wish members that are required to comply the purposes of the Act. to make available publicly. All with the Supervision Reporting submissions should refer to File IV. Solicitation of Comments Requirements. Number SR–PHLX–2020–16 and should C. Self-Regulatory Organization’s Interested persons are invited to be submitted on or before April 27, Statement on Comments on the submit written data, views, and 2020. arguments concerning the foregoing, Proposed Rule Change Received From For the Commission, by the Division of Members, Participants, or Others including whether the proposed rule Trading and Markets, pursuant to delegated change is consistent with the Act. authority.16 No written comments were either Comments may be submitted by any of J. Matthew DeLesDernier, solicited or received. the following methods: Assistant Secretary. III. Date of Effectiveness of the Electronic Comments [FR Doc. 2020–07083 Filed 4–3–20; 8:45 am] Proposed Rule Change and Timing for • BILLING CODE 8011–01–P Commission Action Use the Commission’s internet comment form (http://www.sec.gov/ Because the foregoing proposed rule rules/sro.shtml); or change does not: (i) Significantly affect • Send an email to rule-comments@ SECURITIES AND EXCHANGE the protection of investors or the public sec.gov. Please include File Number SR– COMMISSION interest; (ii) impose any significant PHLX–2020–16 on the subject line. [Release No. 34–88522; File No. SR– burden on competition; and (iii) become NYSECHX–2020–10] operative for 30 days from the date on Paper Comments which it was filed, or such shorter time • Send paper comments in triplicate Self-Regulatory Organizations; NYSE as the Commission may designate, it has to Secretary, Securities and Exchange Chicago, Inc.; Notice of Filing and become effective pursuant to Section Commission, 100 F Street NE, Immediate Effectiveness of Proposed 19(b)(3)(A) of the Act 11 and Washington, DC 20549–1090. Rule Change for an Extension of the subparagraph (f)(6) of Rule 19b–4 Temporary Waiver of the Co-location thereunder.12 Commission. The Commission has waived this ‘‘Hot Hands’’ Fee requirement. 11 15 U.S.C. 78s(b)(3)(A). 13 17 CFR 240.19b–4(f)(6). March 31, 2020. 12 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 14 17 CFR 240.19b–4(f)(6)(iii). Pursuant to Section 19(b)(1) 1 of the 4(f)(6) requires a self-regulatory organization to give 15 For purposes only of waiving the 30-day Securities Exchange Act of 1934 (the the Commission written notice of its intent to file operative delay, the Commission also has the proposed rule change at least five business days considered the proposed rule’s impact on prior to the date of filing of the proposed rule efficiency, competition, and capital formation. See 16 17 CFR 200.30–3(a)(12). change, or such shorter time as designated by the 15 U.S.C. 78c(f). 1 15 U.S.C. 78s(b)(1).

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‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Inc. (‘‘ICE’’). Through its ICE Data Schedule as follows (deletions notice is hereby given that, on March Services (‘‘IDS’’) business, ICE operates bracketed, additions italicized per OFR): 27, 2020 the NYSE Chicago, Inc. the Mahwah, New Jersey data center † Fees for Hot Hands Services will be (‘‘NYSE Chicago’’ or the ‘‘Exchange’’) (‘‘Data Center’’), from which the waived beginning on March 16, 2020 filed with the Securities and Exchange Exchange provides co-location services through [March 29, 2020] the earlier of Commission (the ‘‘Commission’’) the to Users.6 Among those services is a the reopening of the Mahwah, New proposed rule change as described in ‘‘Hot Hands’’ service, which allows Jersey data center or May 15, 2020. Items I, II, and III below, which Items Users to use on-site Data Center The Exchange believes that there will have been prepared by the self- personnel to maintain User equipment, be sufficient Data Center staff on-site to regulatory organization. The support network troubleshooting, rack comply with User requests for Hot Commission is publishing this notice to and stack a server in a User’s cabinet; Hands service. solicit comments on the proposed rule power recycling; and install and The proposed extension of the waiver change from interested persons. document the fitting of cable in a User’s would apply equally to all Users. The 7 proposed extension of the fee waiver I. Self-Regulatory Organization’s cabinet(s). The Hot Hands fee is $100 per half hour. would not apply differently to distinct Statement of the Terms of Substance of types or sizes of market participants. ICE originally announced that the the Proposed Rule Change Rather, it would continue to apply Data Center would be closed to third The Exchange proposes to an uniformly to all Users. extension of the temporary waiver of the parties for the period from March 16, The proposed change is not otherwise co-location ‘‘Hot Hands’’ fee. The 2020 through March 29, 2020 (the intended to address any other issues proposed rule change is available on the ‘‘Initial Closure’’), to help avoid the relating to co-location services and/or Exchange’s website at www.nyse.com, at spread of COVID–19, which could related fees, and the Exchange is not the principal office of the Exchange, and negatively impact Data Center functions. aware of any problems that Users would at the Commission’s Public Reference Prior to the closure of the Data Center, have in complying with the proposed Room. the Chief Executive Officer of the change. Exchange took the actions required II. Self-Regulatory Organization’s under NYSE Chicago Rule 7.1 to close 2. Statutory Basis Statement of the Purpose of, and the co-location facility of the Exchange The Exchange believes that the Statutory Basis for, the Proposed Rule to third parties. proposed rule change is consistent with Change ICE has now announced to Users that, Section 6(b) of the Act,9 in general, and In its filing with the Commission, the because the concerns that led to the furthers the objectives of Sections self-regulatory organization included Initial Closure still apply, the closure of 6(b)(4) and (5) of the Act,10 in particular, statements concerning the purpose of, the Data Center will be extended to the because it provides for the equitable and basis for, the proposed rule change earlier of the reopening of the Mahwah, allocation of reasonable dues, fees, and and discussed any comments it received New Jersey data center (‘‘Data Center’’) other charges among its members, on the proposed rule change. The text or May 15, 2020. The date will be issuers and other persons using its of those statements may be examined at announced through a customer notice. facilities and does not unfairly the places specified in Item IV below. If a User’s equipment requires work discriminate between customers, The Exchange has prepared summaries, issuers, brokers or dealers. In addition, set forth in sections A, B, and C below, while a Rule 7.1 closure is in effect, the User has to use the Hot Hands service it is designed to foster cooperation and of the most significant parts of such coordination with persons engaged in statements. and, absent a waiver, incurs Hot Hands fees for the work. Given that, the regulating, clearing, settling, processing A. Self-Regulatory Organization’s Exchange waived all Hot Hands fees for information with respect to, and Statement of the Purpose of, and the duration of the Initial Closure.8 facilitating transactions in securities, to Statutory Basis for, the Proposed Rule Because the period has been extended, remove impediments to, and perfect the Change the Exchange proposes to extend the mechanisms of, a free and open market and a national market system and, in 1. Purpose waiver of the Hot Hands Fee for the length of the period. To that end, the general, to protect investors and the The Exchange proposes an extension Exchange proposes to revise the public interest and because it is not of the temporary waiver of the co- footnote to the Hot Hands Fee in the Fee designed to permit unfair location 4 ‘‘Hot Hands’’ fee through the discrimination between customers,

earlier of the reopening of the Mahwah, 6 issuers, brokers, or dealers. New Jersey data center (‘‘Data Center’’) For purposes of the Exchange’s co-location services, a ‘‘User’’ means any market participant The Proposed Rule Change Is or May 15, 2020. The waiver of the Hot that requests to receive co-location services directly Hands fee was originally through March from the Exchange. See 84 FR 58778, supra note 4, Reasonable 29, 2020.5 at note 6. As specified in the Fee Schedule of NYSE The Exchange believes that the The Exchange is an indirect Chicago, Inc. (‘‘Fee Schedule’’), a User that incurs co-location fees for a particular co-location service proposed rule change is reasonable for subsidiary of Intercontinental Exchange, pursuant thereto would not be subject to co-location the following reasons. fees for the same co-location service charged by the Given that the closure of the Data 2 15 U.S.C. 78a. Exchange’s affiliates the New York Stock Exchange Center has been extended, the Exchange 3 17 CFR 240.19b–4. LLC (‘‘NYSE’’), NYSE American LLC (‘‘NYSE believes that it is reasonable to grant the American’’), NYSE Arca, Inc. (‘‘NYSE Arca’’), and 4 The Exchange initially filed rule changes proposed corresponding extension of relating to its co-location services with the NYSE National, Inc. (‘‘NYSE National’’ and Securities and Exchange Commission together, the ‘‘Affiliate SROs’’). See id. at 58779. the waiver of the Hot Hands Fee. While (‘‘Commission’’) in October 2019. See Securities Each Affiliate SRO has submitted substantially the a Rule 7.1 closure is in effect, User Exchange Act Release No. 87408 (October 28, 2019), same proposed rule change to propose the changes representatives are not allowed access to 84 FR 58778 (November 1, 2019) (SR–NYSECHX– described herein. See SR–NYSE–2020–25, SR– 2019–27). NYSEAmer-2020–23, SR–NYSEArca-2020–26, and the Data Center. If a User’s equipment 5 See Securities Exchange Act Release No. 88400 SR–NYSENAT–2020–14. (March 17, 2020), 85 FR 16434 (March 23, 2020) 7 See 84 FR 58778, supra note 4. 9 15 U.S.C. 78f(b). (SR–NYSECHX–2020–07). 8 See 85 FR 16434, supra note 5. 10 15 U.S.C. 78f(b)(4) and (5).

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requires work during such period, the B. Self-Regulatory Organization’s fee, or other charge imposed by the User has to use the Hot Hands service. Statement on Burden on Competition Exchange. Absent a waiver, the User would incur At any time within 60 days of the In accordance with Section 6(b)(8) of Hot Hands fees for the work. filing of such proposed rule change, the the Act,11 the Exchange believes that the The proposed extension of the waiver Commission summarily may proposed rule change will not impose would allow a User to have work carried temporarily suspend such rule change if any burden on competition that is not out on its equipment notwithstanding it appears to the Commission that such necessary or appropriate in furtherance the closure of the Data Center without action is necessary or appropriate in the of the purposes of the Act. incurring Hot Hands fees. public interest, for the protection of Intramarket Competition investors, or otherwise in furtherance of The Proposed Rule Change Is Equitable the purposes of the Act. If the The Exchange believes the proposed The Exchange does not believe that Commission takes such action, the rule change is an equitable allocation of the proposed change would place any Commission shall institute proceedings its fees and credits for the following burden on intramarket competition that under Section 19(b)(2)(B) 14 of the Act to reasons. is not necessary or appropriate. determine whether the proposed rule The proposed extension of the waiver The proposed extension of the waiver change should be approved or would apply equally to all Users. The is not designed to affect competition, disapproved. but rather to provide relief to Users that, proposed extension would not apply IV. Solicitation of Comments differently to distinct types or sizes of while a Rule 7.1 closure is in effect, market participants. Rather, it would have no option but to use the Hot Hands Interested persons are invited to apply uniformly to all Users. service. submit written data, views, and The Exchange believes that the The proposed extension of the waiver arguments concerning the foregoing, proposal is equitable because the would not apply differently to distinct including whether the proposed rule extension of the waiver would mean types or sizes of market participants. change is consistent with the Act. that for the duration of the closure of the Rather, all Users whose equipment Comments may be submitted by any of Data Center all similarly-situated Users requires work during the extension of the following methods: would not be charged a fee to use the the Data Center closure would have the Electronic Comments resulting fees waived, and the extension Hot Hands service. • Use the Commission’s internet of the waiver would apply uniformly to comment form (http://www.sec.gov/ The Proposed Change Is Not Unfairly all Users during the period. Discriminatory and Would Protect rules/sro.shtml); or Investors and the Public Interest Intermarket Competition • Send an email to rule-comments@ sec.gov. Please include File Number SR– The Exchange believes that the The Exchange does not believe that NYSECHX–2020–10 on the subject line. proposed change is not unfairly the proposed change would impose any discriminatory for the following burden on intermarket competition that Paper Comments reasons. is not necessary or appropriate. • Send paper comments in triplicate The proposed extension of the waiver The Exchange believes that the to Secretary, Securities and Exchange would not apply differently to distinct proposed change would not affect the Commission, 100 F Street NE, types or sizes of market participants. competitive landscape among the Washington, DC 20549–1090. Rather, all Users whose equipment national securities exchanges, as the Hot All submissions should refer to File requires work during the extension of Hands service is solely charged within Number SR–NYSECHX–2020–10. This the Data Center closure would have the co-location to existing Users, and would file number should be included on the resulting fees waived, and the extension be temporary. subject line if email is used. To help the of the waiver would apply uniformly to For the reasons described above, the Commission process and review your all Users during the period. For the Exchange believes that the proposed comments more efficiently, please use reasons above, the proposed changes do rule change reflects this competitive only one method. The Commission will not unfairly discriminate between or environment. post all comments on the Commission’s among market participants. internet website (http://www.sec.gov/ C. Self-Regulatory Organization’s In addition, the Exchange believes rules/sro.shtml). Copies of the Statement on Comments on the that the proposed rule change would submission, all subsequent Proposed Rule Change Received From perfect the mechanisms of a free and amendments, all written statements Members, Participants, or Others open market and a national market with respect to the proposed rule system and, in general, protect investors No written comments were solicited change that are filed with the and the public interest because it would or received with respect to the proposed Commission, and all written allow a User to have work carried out rule change. communications relating to the on its equipment notwithstanding a proposed rule change between the III. Date of Effectiveness of the Rule 7.1 closure without incurring Hot Commission and any person, other than Proposed Rule Change and Timing for Hands fees. Accordingly, the Exchange those that may be withheld from the Commission Action believes that the requested extension of public in accordance with the the waiver is designed to perfect the The foregoing rule change is effective provisions of 5 U.S.C. 552, will be mechanisms of a free and open market upon filing pursuant to Section available for website viewing and and a national market system and, in 19(b)(3)(A) 12 of the Act and printing in the Commission’s Public general, protect investors and the public subparagraph (f)(2) of Rule 19b–4 13 Reference Room, 100 F Street NE, interest by facilitating the uninterrupted thereunder, because it establishes a due, Washington, DC 20549 on official availability of Users’ equipment. business days between the hours of For all of the above reasons, the 11 15 U.S.C. 78f(b)(8). 10:00 a.m. and 3:00 p.m. Copies of the Exchange believes that the proposal is 12 15 U.S.C. 78s(b)(3)(A). consistent with the Act. 13 17 CFR 240.19b–4(f)(2). 14 15 U.S.C. 78s(b)(2)(B).

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filing also will be available for II. Self-Regulatory Organization’s document the fitting of cable in a User’s inspection and copying at the principal Statement of the Purpose of, and cabinet(s).7 The Hot Hands fee is $100 office of the Exchange. All comments Statutory Basis for, the Proposed Rule per half hour. received will be posted without change. Change ICE originally announced that the Persons submitting comments are In its filing with the Commission, the Data Center would be closed to third cautioned that we do not redact or edit self-regulatory organization included parties for the period from March 16, personal identifying information from statements concerning the purpose of, 2020 through March 29, 2020 (the comment submissions. You should and basis for, the proposed rule change ‘‘Initial Closure’’), to help avoid the submit only information that you wish and discussed any comments it received spread of COVID–19, which could to make available publicly. All on the proposed rule change. The text negatively impact Data Center functions. submissions should refer to File of those statements may be examined at Prior to the closure of the Data Center, Number SR–NYSECHX–2020–10 and the places specified in Item IV below. the Chief Executive Officer of the should be submitted on or before April The Exchange has prepared summaries, Exchange took the actions required 27, 2020. set forth in sections A, B, and C below, under NYSE National Rule 7.1 to close For the Commission, by the Division of of the most significant parts of such the co-location facility of the Exchange Trading and Markets, pursuant to delegated statements. to third parties. authority.15 ICE has now announced to Users that, A. Self-Regulatory Organization’s J. Matthew DeLesDernier, because the concerns that led to the Statement of the Purpose of, and Initial Closure still apply, the closure of Assistant Secretary. Statutory Basis for, the Proposed Rule the Data Center will be extended to the [FR Doc. 2020–07078 Filed 4–3–20; 8:45 am] Change earlier of the reopening of the Mahwah, BILLING CODE 8011–01–P 1. Purpose New Jersey data center (‘‘Data Center’’) or May 15, 2020. The date will be The Exchange proposes an extension SECURITIES AND EXCHANGE announced through a customer notice. of the temporary waiver of the co- If a User’s equipment requires work COMMISSION 4 location ‘‘Hot Hands’’ fee through the while a Rule 7.1 closure is in effect, the earlier of the reopening of the Mahwah, User has to use the Hot Hands service [Release No. 34–88521; File No. SR– New Jersey data center (‘‘Data Center’’) NYSENAT–2020–14] and, absent a waiver, incurs Hot Hands or May 15, 2020. The waiver of the Hot fees for the work. Given that, the Self-Regulatory Organizations; NYSE Hands fee was originally through March Exchange waived all Hot Hands fees for National, Inc.; Notice of Filing and 29, 2020.5 the duration of the Initial Closure.8 Immediate Effectiveness of Proposed The Exchange is an indirect Because the period has been extended, Rule Change for an Extension of the subsidiary of Intercontinental Exchange, the Exchange proposes to extend the Temporary Waiver of the Co-location Inc. (‘‘ICE’’). Through its ICE Data waiver of the Hot Hands Fee for the ‘‘Hot Hands’’ Fee Services (‘‘IDS’’) business, ICE operates length of the period. To that end, the the Mahwah, New Jersey data center Exchange proposes to revise the March 31, 2020. (‘‘Data Center’’), from which the footnote to the Hot Hands Fee in the Pursuant to Section 19(b)(1) 1 of the Exchange provides co-location services Price List as follows (deletions 6 Securities Exchange Act of 1934 (the to Users. Among those services is a bracketed, additions italicized): ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 ‘‘Hot Hands’’ service, which allows † Fees for Hot Hands Services will be notice is hereby given that, on March Users to use on-site Data Center waived beginning on March 16, 2020 27, 2020, NYSE National, Inc. (‘‘NYSE personnel to maintain User equipment, through [March 29, 2020]the earlier of National’’ or the ‘‘Exchange’’) filed with support network troubleshooting, rack the reopening of the Mahwah, New the Securities and Exchange and stack a server in a User’s cabinet; Jersey data center or May 15, 2020. Commission (the ‘‘Commission’’) the power recycling; and install and The Exchange believes that there will proposed rule change as described in be sufficient Data Center staff on-site to Items I, II, and III below, which Items 4 The Exchange initially filed rule changes comply with User requests for Hot have been prepared by the self- relating to its co-location services with the Securities and Exchange Commission Hands service. regulatory organization. The (‘‘Commission’’) in May 2018. See Securities The proposed extension of the waiver Commission is publishing this notice to Exchange Act Release No. 83351 (May 31, 2018), 83 would apply equally to all Users. The solicit comments on the proposed rule FR 26314 (June 6, 2018) (SR–NYSENAT–2018–07). proposed extension of the fee waiver change from interested persons. 5 See Securities Exchange Act Release No. 88399 would not apply differently to distinct (March 17, 2020), 85 FR 16428 (March 23, 2020) I. Self-Regulatory Organization’s (SR–NYSENAT–2020–10). types or sizes of market participants. Statement of the Terms of Substance of 6 For purposes of the Exchange’s co-location Rather, it would continue to apply the Proposed Rule Change services, a ‘‘User’’ means any market participant uniformly to all Users. that requests to receive co-location services directly The proposed change is not otherwise The Exchange proposes to an from the Exchange. See 83 FR 26314, supra note 4, intended to address any other issues at note 9. As specified in the Exchange’s Price List, extension of the temporary waiver of the a User that incurs co-location fees for a particular relating to co-location services and/or co-location ‘‘Hot Hands’’ fee. The co-location service pursuant thereto would not be related fees, and the Exchange is not proposed rule change is available on the subject to co-location fees for the same co-location aware of any problems that Users would Exchange’s website at www.nyse.com, at service charged by the Exchange’s affiliates the New have in complying with the proposed York Stock Exchange LLC (‘‘NYSE’’), NYSE the principal office of the Exchange, and American LLC (‘‘NYSE American’’), NYSE Arca, change. at the Commission’s Public Reference Inc. (‘‘NYSE Arca’’), and NYSE Chicago, Inc. 2. Statutory Basis Room. (‘‘NYSE Chicago’’ and together, the ‘‘Affiliate SROs’’). See id. at note 11. Each Affiliate SRO has The Exchange believes that the submitted substantially the same proposed rule 15 proposed rule change is consistent with 17 CFR 200.30–3(a)(12). change to propose the changes described herein. 1 15 U.S.C. 78s(b)(1). See SR–NYSE–2020–25, SR–NYSEAmer–2020–23, 2 15 U.S.C. 78a. SR–NYSEArca–2020–26, and SR–NYSECHX–2020– 7 See 83 FR 26314, supra note 4. 3 17 CFR 240.19b–4. 10. 8 See 85 FR 16428, supra note 5.

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Section 6(b) of the Act,9 in general, and The Proposed Change Is Not Unfairly of the waiver would apply uniformly to furthers the objectives of Sections Discriminatory and Would Protect all Users during the period. 6(b)(4) and (5) of the Act,10 in particular, Investors and the Public Interest Intermarket Competition because it provides for the equitable The Exchange believes that the allocation of reasonable dues, fees, and proposed change is not unfairly The Exchange does not believe that other charges among its members, discriminatory for the following the proposed change would impose any issuers and other persons using its reasons. burden on intermarket competition that facilities and does not unfairly The proposed extension of the waiver is not necessary or appropriate. discriminate between customers, would not apply differently to distinct The Exchange believes that the issuers, brokers or dealers. In addition, types or sizes of market participants. proposed change would not affect the it is designed to foster cooperation and Rather, all Users whose equipment competitive landscape among the coordination with persons engaged in requires work during the extension of regulating, clearing, settling, processing the Data Center closure would have the national securities exchanges, as the Hot information with respect to, and resulting fees waived, and the extension Hands service is solely charged within facilitating transactions in securities, to of the waiver would apply uniformly to co-location to existing Users, and would remove impediments to, and perfect the all Users during the period. For the be temporary. mechanisms of, a free and open market reasons above, the proposed changes do For the reasons described above, the and a national market system and, in not unfairly discriminate between or Exchange believes that the proposed general, to protect investors and the among market participants. rule change reflects this competitive public interest and because it is not In addition, the Exchange believes environment. designed to permit unfair that the proposed rule change would discrimination between customers, perfect the mechanisms of a free and C. Self-Regulatory Organization’s issuers, brokers, or dealers. open market and a national market Statement on Comments on the system and, in general, protect investors Proposed Rule Change Received From The Proposed Rule Change Is and the public interest because it would Members, Participants, or Others Reasonable allow a User to have work carried out No written comments were solicited on its equipment notwithstanding a The Exchange believes that the or received with respect to the proposed Rule 7.1 closure without incurring Hot proposed rule change is reasonable for rule change. the following reasons. Hands fees. Accordingly, the Exchange Given that the closure of the Data believes that the requested extension of III. Date of Effectiveness of the Center has been extended, the Exchange the waiver is designed to perfect the Proposed Rule Change and Timing for believes that it is reasonable to grant the mechanisms of a free and open market Commission Action proposed corresponding extension of and a national market system and, in the waiver of the Hot Hands Fee. While general, protect investors and the public The foregoing rule change is effective a Rule 7.1 closure is in effect, User interest by facilitating the uninterrupted upon filing pursuant to Section 12 representatives are not allowed access to availability of Users’ equipment. 19(b)(3)(A) of the Act and 13 the Data Center. If a User’s equipment For all of the above reasons, the subparagraph (f)(2) of Rule 19b–4 requires work during such period, the Exchange believes that the proposal is thereunder, because it establishes a due, User has to use the Hot Hands service. consistent with the Act. fee, or other charge imposed by the Exchange. Absent a waiver, the User would incur B. Self-Regulatory Organization’s Hot Hands fees for the work. Statement on Burden on Competition At any time within 60 days of the The proposed extension of the waiver filing of such proposed rule change, the In accordance with Section 6(b)(8) of would allow a User to have work carried Commission summarily may the Act,11 the Exchange believes that the out on its equipment notwithstanding temporarily suspend such rule change if proposed rule change will not impose the closure of the Data Center without it appears to the Commission that such any burden on competition that is not incurring Hot Hands fees. action is necessary or appropriate in the necessary or appropriate in furtherance public interest, for the protection of The Proposed Rule Change Is Equitable of the purposes of the Act. investors, or otherwise in furtherance of The Exchange believes the proposed Intramarket Competition the purposes of the Act. If the rule change is an equitable allocation of The Exchange does not believe that Commission takes such action, the its fees and credits for the following Commission shall institute proceedings the proposed change would place any 14 reasons. burden on intramarket competition that under Section 19(b)(2)(B) of the Act to The proposed extension of the waiver is not necessary or appropriate. determine whether the proposed rule would apply equally to all Users. The The proposed extension of the waiver change should be approved or proposed extension would not apply is not designed to affect competition, disapproved. differently to distinct types or sizes of but rather to provide relief to Users that, IV. Solicitation of Comments market participants. Rather, it would while a Rule 7.1 closure is in effect, apply uniformly to all Users. have no option but to use the Hot Hands Interested persons are invited to The Exchange believes that the service. submit written data, views, and proposal is equitable because the The proposed extension of the waiver arguments concerning the foregoing, extension of the waiver would mean would not apply differently to distinct including whether the proposed rule that for the duration of the closure of the types or sizes of market participants. change is consistent with the Act. Data Center all similarly-situated Users Rather, all Users whose equipment Comments may be submitted by any of would not be charged a fee to use the requires work during the extension of the following methods: Hot Hands service. the Data Center closure would have the resulting fees waived, and the extension 12 15 U.S.C. 78s(b)(3)(A). 9 15 U.S.C. 78f(b). 13 17 CFR 240.19b–4(f)(2). 10 15 U.S.C. 78f(b)(4) and (5). 11 15 U.S.C. 78f(b)(8). 14 15 U.S.C. 78s(b)(2)(B).

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Electronic Comments SECURITIES AND EXCHANGE statements may be examined at the places specified in Item IV below. The • COMMISSION Use the Commission’s internet Exchange has prepared summaries, set comment form (http://www.sec.gov/ [Release No. 34–88528; File No. SR–CBOE– 2020–029] forth in sections A, B, and C below, of rules/sro.shtml); or the most significant aspects of such • Send an email to rule-comments@ Self-Regulatory Organizations; Cboe statements. sec.gov. Please include File Number SR– Exchange, Inc.; Notice of Filing and A. Self-Regulatory Organization’s NYSENAT–2020–14 on the subject line. Immediate Effectiveness of a Proposed Statement of the Purpose of, and Rule Change To Amend Rule 8.16 and Paper Comments Statutory Basis for, the Proposed Rule Rule 9.2 To Temporarily Extend the Change • Send paper comments in triplicate Filing Requirements for Certain 1. Purpose to Secretary, Securities and Exchange Supervision-Related Reports, Commission, 100 F Street NE, Currently Due April 1, 2020 to June 1, Given current market conditions, the Washington, DC 20549–1090. 2020 Exchange proposes to provide its Trading Permit Holders (‘‘TPHs’’) March 31, 2020. All submissions should refer to File temporary relief from filing certain Pursuant to Section 19(b)(1) of the Number SR–NYSENAT–2020–14. This supervision-related reports pursuant to Securities Exchange Act of 1934 file number should be included on the Rule 8.16 (Supervision) and Rule 9.2 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 subject line if email is used. To help the (Supervision of Accounts). Commission process and review your notice is hereby given that on March 30, The Exchange has been closely 2020, Cboe Exchange, Inc. (‘‘Exchange’’) comments more efficiently, please use monitoring the current situation filed with the Securities and Exchange only one method. The Commission will regarding the novel coronavirus Commission (‘‘Commission’’) the post all comments on the Commission’s (‘‘COVID–19’’) pandemic. The Exchange proposed rule change as described in internet website (http://www.sec.gov/ understands COVID–19 has placed Items I and II below, which Items have stress on market participants’ rules/sro.shtml). Copies of the been prepared by the Exchange. The submission, all subsequent information technology infrastructure Exchange filed the proposal as a ‘‘non- and the required deployment of amendments, all written statements controversial’’ proposed rule change with respect to the proposed rule significant resources, including to pursuant to Section 19(b)(3)(A)(iii) of implement and adapt business change that are filed with the 3 the Act and Rule 19b–4(f)(6) continuity plans. Indeed, in response to Commission, and all written 4 thereunder. The Commission is the pandemic, the Exchange has taken communications relating to the publishing this notice to solicit various actions to allow it to maintain proposed rule change between the comments on the proposed rule change fair and orderly markets, including the Commission and any person, other than from interested persons. closure of its trading floor, which those that may be withheld from the I. Self-Regulatory Organization’s currently remains inoperable until public in accordance with the Statement of the Terms of Substance of further notice.5 The Exchange also notes provisions of 5 U.S.C. 552, will be the Proposed Rule Change that in response to COVID–19, the available for website viewing and Cboe Exchange, Inc. (the ‘‘Exchange’’ Financial Industry Reporting Authority printing in the Commission’s Public (‘‘FINRA’’) recently issued temporary Reference Room, 100 F Street NE, or ‘‘Cboe Options’’) proposes to amend Rule 8.16 and Rule 9.2 to temporarily relief for member firms by, among other Washington, DC 20549 on official things, extending the deadline for business days between the hours of extend the filing requirements for certain supervision-related reports, submitting their Annual Reports and 10:00 a.m. and 3:00 p.m. Copies of the currently due April 1, 2020 to June 1, Financial and Operational Combined filing also will be available for 6 2020. The text of the proposed rule Uniform Single (‘‘FOCUS’’) Reports, inspection and copying at the principal change is provided in Exhibit 5. and other options exchanges have office of the Exchange. All comments The text of the proposed rule change issued the same temporary relief for received will be posted without change. is also available on the Exchange’s their members regarding supervisory 7 Persons submitting comments are website (http://www.cboe.com/ reports as proposed herein. cautioned that we do not redact or edit AboutCBOE/CBOELegalRegulatory Currently, (1) Rule 8.16(g)(2) provides personal identifying information from Home.aspx), at the Exchange’s Office of that by April 1 of each year each comment submissions. You should the Secretary, and at the Commission’s Trading Permit Holder shall submit to submit only information that you wish Public Reference Room. the Exchange written report on the to make available publicly. All Trading Permit Holder’s supervision submissions should refer to File II. Self-Regulatory Organization’s and compliance effort during the Statement of the Purpose of, and Number SR–NYSENAT–2020–14 and preceding year and on the adequacy of Statutory Basis for, the Proposed Rule the Trading Permit Holder’s ongoing should be submitted on or before April Change compliance processes and procedures, 27, 2020. In its filing with the Commission, the For the Commission, by the Division of Exchange included statements 5 See Tradedesk Update No. C2020031204 (March 12, 2020) Novel Coronavirus Update, Trading Floor Trading and Markets, pursuant to delegated concerning the purpose of and basis for authority.15 Closure. the proposed rule change and discussed 6 See FINRA Regulatory Notice 20–08 (March 9, J. Matthew DeLesDernier, any comments it received on the 2020) available at https://www.finra.org/rules- Assistant Secretary. proposed rule change. The text of these guidance/notices/20-08. 7 [FR Doc. 2020–07077 Filed 4–3–20; 8:45 am] See SR–ISE–2020–014 (filed March 27, 2020) available at http://ise.cchwallstreet.com/contents/ 1 BILLING CODE 8011–01–P 15 U.S.C. 78s(b)(1). pdf/2020/SR-ISE-2020-14.pdf; and SR–Phlx–2020– 2 17 CFR 240.19b–4. 016 (filed March 27, 2020) available at http:// 3 15 U.S.C. 78s(b)(3)(A)(iii). nasdaqomxphlx.cchwallstreet.com/NASDAQPHLX/ 15 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(6). pdf/phlx-filings/2020/SR-Phlx-2020-16.pdf.

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(2) Rule 9.2(g) provides that by April 1 proposed rule change is consistent with intermarket competition because it of each year each TPH organization that the Section 6(b)(5) 10 requirement that relates only to the extension of the filing conducts a non-Trading Permit Holder the rules of an exchange not be designed deadline for supervision-related reports. customer business shall submit to the to permit unfair discrimination between Additionally, and as stated above, other Exchange a written report on the TPH customers, issuers, brokers, or dealers. options exchange have recently filed to organization’s supervision and In particular, the Exchange believes extend the filing deadline for their compliance effort during the preceding that the proposed rule will foster members’ supervision-related reports year and on the adequacy of the TPH cooperation and coordination with through June 1, 2020.12 organization’s ongoing compliance persons engaged in regulating, clearing, C. Self-Regulatory Organization’s processes and procedures, and (3) Rule settling, processing information with Statement on Comments on the 9.2 (h) provides that by April 1 of each respect to, and facilitating transactions Proposed Rule Change Received From year, each TPH organization shall in securities. The proposed rule change Members, Participants, or Others submit a copy of the report that will allow the Exchange to provide paragraph (g) (of Rule 9.2) requires the relief to its TPHs by extending certain The Exchange neither solicited nor TPH organization to prepare to its one supervisory reporting deadlines from received comments on the proposed or more control persons or, if the TPH April 1, 2020 to June 1, 2020 in light of rule change. organization has no control person, to the COVID–19 crisis. The Exchange III. Date of Effectiveness of the the audit committee of its board of understands this pandemic has caused, Proposed Rule Change and Timing for directors or its equivalent committee or and continues to cause, stress on market Commission Action group. To meet the current April 1 participants’ information technology deadlines in Rules 8.16 and 9.2, TPH infrastructure and the deployment of Because the foregoing proposed rule personnel would have to divide their significant resources to address ongoing change does not: (i) Significantly affect efforts and resources that are otherwise disruptions and new stresses. By the protection of investors or the public necessary to address ongoing allowing the Exchange to extend the interest; (ii) impose any significant disruptions and new stresses as a result deadlines for filing certain supervision burden on competition; and (iii) become of COVID–19. The proposed rule change related reports in Rules 8.16 and 9.2, the operative for 30 days from the date on provides relief to TPHs and their Exchange believes the proposed rule which it was filed, or such shorter time employees by extending these deadlines will allow TPH personnel, who would as the Commission may designate, it has to June 1, 2020, thus allowing TPH normally be tasked with organizing and become effective pursuant to Section 13 personnel that are tasked with compiling such reports, to focus their 19(b)(3)(A) of the Act and organizing, compiling and filing such attention on maintaining critical subparagraph (f)(6) of Rule 19b–4 14 reports, but are also tasked with operations, implementing business thereunder. maintaining critical operations, continuity plans, and otherwise A proposed rule change filed adjusting their trading operations in line pursuant to Rule 19b–4(f)(6) under the implementing business continuity 15 plans, and otherwise adjusting the with evolving market conditions and Act normally does not become initiatives in response to COVID–19. operative for 30 days after the date of its TPH’s trading operations in line with 16 evolving market conditions and The Exchange also believes the filing. However, Rule 19b–4(f)(6)(iii) initiatives to address such conditions to proposed rule change removes permits the Commission to designate a focus their attention on those immediate impediments to and perfects the shorter time if such action is consistent needs. mechanism of a free and open market with the protection of investors and the and a national market system because, public interest. The Exchange has 2. Statutory Basis as noted above, other options exchanges requested that the Commission waive The Exchange believes the proposed have recently filed with the Commission the 30-day operative delay so that the rule change is consistent with the to extend the time for their members to proposed rule change may become Securities Exchange Act of 1934 (the file supervision-related reports through operative upon filing. The Commission ‘‘Act’’) the rules and regulations June 1, 2020.11 notes that the proposed rule change thereunder applicable to the Exchange would allow the Exchange, in light of and, in particular, the requirements of B. Self-Regulatory Organization’s the COVID–19 pandemic, to provide Section 6(b) of the Act.8 Specifically, Statement on Burden on Competition temporary relief for TPHs by extending the Exchange believes the proposed rule The Exchange does not believe that the deadline for supervision-related change is consistent with the Section the proposed rule change will impose reports in Rules 8.16 and 9.2 from April 6(b)(5) 9 requirements that the rules of any burden on competition that is not 1, 2020 to June 1, 2020. The an exchange be designed to prevent necessary or appropriate in furtherance Commission believes that waiver of the fraudulent and manipulative acts and of the purposes of the Act. The 30-day operative delay is consistent practices, to promote just and equitable proposed rule change is not intended to with the protection of investors and the principles of trade, to foster cooperation address competitive issues. The public interest. Accordingly, the and coordination with persons engaged Exchange does not believe the proposed Commission hereby waives the in regulating, clearing, settling, rule would impose any burden on operative delay and designates the processing information with respect to, intramarket competition that is not and facilitating transactions in necessary or appropriate in furtherance 12 See supra note 7 13 securities, to remove impediments to of the Act, because the June 1, 2020 15 U.S.C. 78s(b)(3)(A). 14 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– and perfect the mechanism of a free and extension for supervision-related reports 4(f)(6) requires a self-regulatory organization to give open market and a national market in Rules 8.16 and 9.2 will apply equally the Commission written notice of its intent to file system, and, in general, to protect to all TPHs. The Exchange does not the proposed rule change at least five business days investors and the public interest. believe that the proposed rule change prior to the date of filing of the proposed rule change, or such shorter time as designated by the Additionally, the Exchange believes the would impose any burden on Commission. The Exchange has satisfied this requirement. 8 15 U.S.C. 78f(b). 10 Id. 15 17 CFR 240.19b–4(f)(6). 9 15 U.S.C. 78f(b)(5). 11 See supra note 7. 16 17 CFR 240.19b–4(f)(6)(iii).

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proposed rule change operative upon received will be posted without change. II. Self-Regulatory Organization’s filing.17 Persons submitting comments are Statement of the Purpose of, and At any time within 60 days of the cautioned that we do not redact or edit Statutory Basis for, the Proposed Rule filing of the proposed rule change, the personal identifying information from Change Commission summarily may comment submissions. You should In its filing with the Commission, the temporarily suspend such rule change if submit only information that you wish Exchange included statements it appears to the Commission that such to make available publicly. All concerning the purpose of and basis for action is necessary or appropriate in the submissions should refer to File the proposed rule change and discussed public interest, for the protection of Number SR–CBOE–2020–029 and any comments it received on the investors, or otherwise in furtherance of should be submitted on or before April proposed rule change. The text of these the purposes of the Act. 27, 2020. statements may be examined at the IV. Solicitation of Comments For the Commission, by the Division of places specified in Item IV below. The Interested persons are invited to Trading and Markets, pursuant to delegated Exchange has prepared summaries, set authority.18 submit written data, views, and forth in sections A, B, and C below, of arguments concerning the foregoing, J. Matthew DeLesDernier, the most significant aspects of such including whether the proposed rule Assistant Secretary. statements. change is consistent with the Act. [FR Doc. 2020–07084 Filed 4–3–20; 8:45 am] A. Self-Regulatory Organization’s Comments may be submitted by any of BILLING CODE 8011–01–P Statement of the Purpose of, and the following methods: Statutory Basis for, the Proposed Rule Change Electronic Comments SECURITIES AND EXCHANGE • Use the Commission’s internet COMMISSION 1. Purpose comment form (http://www.sec.gov/ Given current market conditions, the rules/sro.shtml); or [Release No. 34–88524; File No. SR–ISE– Exchange proposes to provide its 2020–14] • Send an email to rule-comments@ members temporary relief from filing sec.gov. Please include File Number SR– Self-Regulatory Organizations; Nasdaq certain supervision-related reports CBOE–2020–029 on the subject line. ISE, LLC; Notice of Filing and pursuant to Options 10, Section 7 3 Paper Comments Immediate Effectiveness of Proposed (Supervision of Accounts). In December 2019, COVID–19 began • Rule Change To Temporarily Extend Send paper comments in triplicate to spread and disrupt company to Secretary, Securities and Exchange the Filing Requirements for Certain Written Reports, Currently Due April 1, operations and supply chains and Commission, 100 F Street NE, impact consumers and investors, Washington, DC 20549–1090. 2020 Pursuant to Options 10, Section 7, to June 1, 2020 resulting in a dramatic slowdown in All submissions should refer to File production and spending.4 By March Number SR–CBOE–2020–029. This file March 31, 2020. 11, 2020, the World Health Organization number should be included on the Pursuant to Section 19(b)(1) of the characterized COVID–19 as a subject line if email is used. To help the Securities Exchange Act of 1934 pandemic.5 To slow the spread of the Commission process and review your (‘‘Act’’),1 and Rule 19b–4 thereunder,2 disease, federal and state officials comments more efficiently, please use notice is hereby given that on March 27, implemented social-distancing only one method. The Commission will 2020, Nasdaq ISE, LLC (‘‘ISE’’ or measures, placed significant limitations post all comments on the Commission’s ‘‘Exchange’’) filed with the Securities on large gatherings, limited travel, and internet website (http://www.sec.gov/ and Exchange Commission closed non-essential businesses. These rules/sro.shtml). Copies of the (‘‘Commission’’) the proposed rule submission, all subsequent change as described in Items I and II 3 The Exchange notes that ISE Options 10, amendments, all written statements below, which Items have been prepared including Section 7, is incorporated by reference with respect to the proposed rule into the rulebooks of Nasdaq GEMX, LLC (‘‘GEMX’’) by the Exchange. The Commission is and Nasdaq MRX, LLC (‘‘MRX’’). As such, the change that are filed with the publishing this notice to solicit amendments to ISE Options 10, Section 7 proposed Commission, and all written comments on the proposed rule change herein will also impact GEMX and MRX Options 10, Section 7. communications relating to the from interested persons. proposed rule change between the 4 See, e.g., Chairman Jay Clayton, Proposed I. Self-Regulatory Organization’s Amendments to Modernize and Enhance Financial Commission and any person, other than Disclosures; Other Ongoing Disclosure those that may be withheld from the Statement of the Terms of Substance of Modernization Initiatives; Impact of the public in accordance with the the Proposed Rule Change Coronavirus; Environmental and Climate-Related provisions of 5 U.S.C. 552, will be Disclosure (Jan. 30, 2020), available at https:// The Exchange proposes to temporarily www.sec.gov/news/public-statement/clayton-mda- available for website viewing and extend the filing requirements for 2020-01-30. (‘‘Yesterday, I asked the staff to monitor printing in the Commission’s Public certain written reports, currently due and, to the extent necessary or appropriate, provide Reference Room, 100 F Street NE, April 1, 2020 pursuant to Options 10, guidance and other assistance to issuers and other Washington, DC 20549 on official market participants regarding disclosures related to Section 7, to June 1, 2020. the current and potential effects of the coronavirus. business days between the hours of The text of the proposed rule change We recognize that such effects may be difficult to 10:00 a.m. and 3:00 p.m. Copies of the is available on the Exchange’s website at assess or predict with meaningful precision both filing also will be available for http://ise.cchwallstreet.com/, at the generally and as an industry- or issuer-specific inspection and copying at the principal basis. This is an uncertain issue where actual effects principal office of the Exchange, and at will depend on many factors beyond the control office of the Exchange. All comments the Commission’s Public Reference and knowledge of issuers.’’). Room. 5 See WHO Director-General’s Opening Remarks 17 For purposes only of waiving the 30-day at the Media Briefing on COVID–19 (March 11, operative delay, the Commission also has 2020), available at https://www.who.int/dg/ considered the proposed rule’s impact on 18 17 CFR 200.30–3(a)(12). speeches/detail/who-director-general-s-opening- efficiency, competition, and capital formation. See 1 15 U.S.C. 78s(b)(1). remarks-at-the-media-briefing-on-covid-19---11- 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. march-2020.

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measures have affected the U.S. businesses and the immediate health the protection of investors or the public markets.6 In the United States, Level 1 crisis caused by the COVID–19 interest; (ii) impose any significant market wide circuit breaker halts were pandemic, including its impact on their burden on competition; and (iii) become triggered on March 9, March 12, March employees, customers, and operative for 30 days from the date on 16, and March 18, 2020. While markets communities. which it was filed, or such shorter time have seen significant declines, as the Commission may designate, it has 2. Statutory Basis governments around the world are become effective pursuant to Section undertaking efforts to stabilize the The Exchange believes that its 19(b)(3)(A) of the Act 12 and economy and assist affected companies proposal is consistent with Section 6(b) subparagraph (f)(6) of Rule 19b–4 and their employees.7 of the Act,10 in general, and furthers the thereunder.13 Amidst this market uncertainty, the objectives of Section 6(b)(5) of the Act,11 A proposed rule change filed Exchange is seeking to address potential in particular, in that it is designed to pursuant to Rule 19b–4(f)(6) under the challenges that members may face in promote just and equitable principles of Act 14 normally does not become timely meeting their obligations to trade; to remove impediments to and operative for 30 days after the date of its submit to the Exchange annual perfect the mechanism of a free and filing. However, Rule 19b–4(f)(6)(iii) 15 supervision-related reports under open market and a national market permits the Commission to designate a Options 10, Sections 7(g) and (h) system; and, in general to protect shorter time if such action is consistent (‘‘Supervision Reporting investors and the public interest. As a with the protection of investors and the Requirements’’), especially in light of result of uncertainty related to the public interest. The Exchange has unforeseen and uncertain demands on ongoing spread of the COVID–19 virus, requested that the Commission waive resources required to respond to the U.S. exchanges are experiencing the 30-day operative delay so that the COVID–19. Options 10, Section 7(g) unprecedented market volatility. The proposed rule change may become requires each Exchange member that proposed rule change would allow the operative upon filing. The Commission conducts a non-member customer Exchange to provide temporary relief for notes that the proposed rule change business to submit to the Exchange a members from the Supervision would allow the Exchange, in light of written report on the member’s Reporting Requirements, which the COVID–19 pandemic, to provide supervision and compliance effort currently requires members to provide temporary relief for members by during the preceding year and on the written reports to the Exchange by April extending the deadline for written adequacy of the member’s ongoing 1, 2020, and extend that deadline to reports pursuant to the Supervision compliance processes and procedures. June 1, 2020. The Exchange believes Reporting Requirements from April 1, Each member that conducts a public that this temporary relief is necessary 2020 to June 1, 2020. The Commission customer options business is also and appropriate in the public interest, believes that waiver of the 30-day required to specifically include its and consistent with the protection of operative delay is consistent with the options compliance program in the investors, given the unforeseen and protection of investors and the public report.8 The Section 7(g) report is due uncertain challenges, including interest. Accordingly, the Commission on April 1 of each year. Options 10, business continuity implementation and hereby waives the operative delay and Section 7(h) requires that each member market volatility, posed by COVID–19 to designates the proposed rule change submit, by April 1 of each year, a copy members that must comply with the operative upon filing.16 of the Section 7(g) report to one or more Supervision Reporting Requirements. At any time within 60 days of the control persons or, if the member has no B. Self-Regulatory Organization’s filing of the proposed rule change, the control person, to the audit committee Statement on Burden on Competition Commission summarily may of its board of directors or its equivalent temporarily suspend such rule change if committee or group.9 The Exchange does not believe that it appears to the Commission that such Accordingly, the Exchange proposes the proposed rule change will impose action is necessary or appropriate in the to provide temporary relief for members any burden on competition not public interest, for the protection of from the Supervision Reporting necessary or appropriate in furtherance investors, or otherwise in furtherance of Requirements by extending the April 1, of the purposes of the Act. The the purposes of the Act. 2020 filing deadlines described above to proposed rule change is not designed to June 1, 2020. The Exchange believes address any competitive issues but IV. Solicitation of Comments that this temporary relief will permit rather to provide temporary relief for all Interested persons are invited to members to focus on running their members that are required to comply submit written data, views, and with the Supervision Reporting arguments concerning the foregoing, 6 ‘‘Analysts showed that we saw the fastest Requirements. including whether the proposed rule ‘correction’ in history (down 10% from a high), occurring in a matter of days. In the last week of C. Self-Regulatory Organization’s change is consistent with the Act. February, the Dow fell 12.36% with notional Statement on Comments on the trading of $3.6 trillion.’’ See Phil Mackintosh, Proposed Rule Change Received From 12 15 U.S.C. 78s(b)(3)(A). Putting the Recent Volatility in Perspective, 13 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– available at https://www.nasdaq.com/articles/ Members, Participants, or Others 4(f)(6) requires a self-regulatory organization to give putting-the-recent-volatility-in-perspective-2020-03- No written comments were either the Commission written notice of its intent to file 05. solicited or received. the proposed rule change at least five business days 7 See, e.g., the list of actions undertaken by the prior to the date of filing of the proposed rule Board of Governors of the Federal Reserve System III. Date of Effectiveness of the change, or such shorter time as designated by the at https://www.federalreserve.gov/covid-19.htm. See Commission. The Commission has waived this also Families First Coronavirus Response Act, Proposed Rule Change and Timing for requirement. Public Law 116–127. Commission Action 14 17 CFR 240.19b–4(f)(6). 8 The report shall include, but not be limited to, Because the foregoing proposed rule 15 17 CFR 240.19b–4(f)(6)(iii). the information set out in Options 10, Section change does not: (i) Significantly affect 16 For purposes only of waiving the 30-day 7(g)(1)–(6). operative delay, the Commission also has 9 See Options 10, Section 7(h) for the meaning of considered the proposed rule’s impact on the term ‘‘control person’’ and requirements in the 10 15 U.S.C. 78f(b). efficiency, competition, and capital formation. See case of a control person that is an organization. 11 15 U.S.C. 78f(b)(5). 15 U.S.C. 78c(f).

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Comments may be submitted by any of SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s the following methods: COMMISSION Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Electronic Comments [Release No. 34–88526; File No. SR–CBOE– Change • Use the Commission’s internet 2020–024] 1. Purpose comment form (http://www.sec.gov/ Self-Regulatory Organizations; Cboe The Exchange proposes to amend rules/sro.shtml); or Footnote 12 of the Fees Schedule, which Exchange, Inc.; Notice of Filing and • Send an email to rule-comments@ governs pricing changes in the event the Immediate Effectiveness of a Proposed sec.gov. Please include File Number SR– Exchange trading floor becomes ISE–2020–14 on the subject line. Rule Change Relating To Amend Its inoperable. In the event the trading floor Fees Schedule becomes inoperable, the Exchange will Paper Comments March 31, 2020. continue to operate in a screen-based • Send paper comments in triplicate only environment using a floorless Pursuant to Section 19(b)(1) of the to Secretary, Securities and Exchange configuration of the System that is Securities Exchange Act of 1934 Commission, 100 F Street NE, operational while the trading floor (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Washington, DC 20549–1090. facility is inoperable. The Exchange notice is hereby given that on March 23, would operate using that configuration All submissions should refer to File 2020, Cboe Exchange, Inc. (the only until the Exchange’s trading floor Number SR–ISE–2020–14. This file ‘‘Exchange’’ or ‘‘Cboe Options’’) filed facility became operational. Open number should be included on the with the Securities and Exchange outcry trading would not be available in subject line if email is used. To help the Commission (‘‘SEC’’ or ‘‘Commission’’) the event the trading floor becomes Commission process and review your the proposed rule change as described inoperable. Particularly, the Exchange comments more efficiently, please use in Items I, II, and III below, which Items proposes to incorporate into Footnote only one method. The Commission will have been prepared by the Exchange. 12, changes related to Related Future post all comments on the Commission’s The Commission is publishing this Cross (‘‘RFC’’) transactions. By way of background, the Exchange internet website (http://www.sec.gov/ notice to solicit comments on the recently adopted Rule 5.24(e)(1)(D), rules/sro.shtml). Copies of the proposed rule change from interested which provides that in the event the submission, all subsequent persons. amendments, all written statements trading floor is inoperable, a Trading with respect to the proposed rule I. Self-Regulatory Organization’s Permit Holder (‘‘TPH’’) may execute an change that are filed with the Statement of the Terms of Substance of RFC order, which is comprised of an Commission, and all written the Proposed Rule Change SPX or VIX option combo order coupled communications relating to the with a contra-side order or orders proposed rule change between the Cboe Exchange, Inc. (the ‘‘Exchange’’ totaling an equal number of option combo orders, which is identified to the Commission and any person, other than or ‘‘Cboe Options’’) proposes to amend Exchange as being part of an exchange those that may be withheld from the its fees schedule. The text of the of option contracts for related futures public in accordance with the proposed rule change is provided in Exhibit 5. positions.3 Particularly, Rule provisions of 5 U.S.C. 552, will be 5.24(e)(1)(D) permits unexposed crosses available for website viewing and The text of the proposed rule change of riskless packaged transactions (i.e., printing in the Commission’s Public is also available on the Exchange’s RFC transactions) which include SPX/ Reference Room, 100 F Street NE, website (http://www.cboe.com/ SPXW or VIX option combos offset by Washington, DC 20549 on official AboutCBOE/CBOELegalRegulatory futures contracts. The proposal to allow business days between the hours of Home.aspx), at the Exchange’s Office of RFC transactions was adopted to 10:00 a.m. and 3:00 p.m. Copies of the the Secretary, and at the Commission’s replicate functionality that is otherwise filing also will be available for Public Reference Room. available when the Exchange is inspection and copying at the principal II. Self-Regulatory Organization’s operating with an open outcry office of the Exchange. All comments environment. RFC transactions are Statement of the Purpose of, and received will be posted without change. intended to provide means for Statutory Basis for, the Proposed Rule Persons submitting comments are transferring risk from futures positions Change cautioned that we do not redact or edit into related combo positions for personal identifying information from In its filing with the Commission, the purposes of reducing capital comment submissions. You should requirements on portfolios held at bank submit only information that you wish Exchange included statements concerning the purpose of and basis for clearing firms. to make available publicly. All The Exchange first proposes to the proposed rule change and discussed submissions should refer to File provide that in the event the trading any comments it received on the Number SR–ISE–2020–14 and should be floor becomes inoperable, the Exchange proposed rule change. The text of these submitted on or before April 27, 2020. shall waive the SPX and SPXW statements may be examined at the For the Commission, by the Division of Execution Surcharges for SPX and places specified in Item IV below. The SPXW volume executed as an RFC order Trading and Markets, pursuant to delegated Exchange has prepared summaries, set authority.17 for the duration of time the Exchange forth in sections A, B, and C below, of J. Matthew DeLesDernier, operates in a screen-based only the most significant aspects of such environment. The Exchange currently Assistant Secretary. statements. assesses a SPX Execution Surcharge of [FR Doc. 2020–07080 Filed 4–3–20; 8:45 am] $0.21 per contract and a SPXW BILLING CODE 8011–01–P Execution Surcharge of $0.13 per 1 15 U.S.C. 78s(b)(1). 17 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. 3 See SR–CBOE–2020–023.

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contract for non-Market Maker orders in based only environment and which engage in trading of these products (as SPX and SPXW, respectively that are would be invoiced to the executing opposed to those who normally execute executed electronically (with some TPH. Specifically, the Exchange volume via open outcry, but must exceptions).4 The Execution Surcharges proposes to adopt a $0.05 per contract participate electronically due to the were adopted to ensure that there is fee for SPX and SPXW RFC initiating trading floor being inoperable). reasonable cost equivalence between the orders and a $0.04 per contract fee for 2. Statutory Basis primary execution channels for SPX and VIX RFC initiating orders. The Exchange SPXW. More specifically, the Execution notes that currently, SPX, SPXW and The Exchange believes the proposed Surcharges minimize the cost VIX orders executed via open-outcry are rule change is consistent with the differentials between manual and assessed floor brokerage fees. Securities Exchange Act of 1934 (the electronic executions, which is in the Specifically, SPX/SPXW orders are ‘‘Act’’) and the rules and regulations interest of the Exchange as it must both assessed a floor brokerage fee of $0.04 thereunder applicable to the Exchange maintain robust electronic systems as per contract fee for non-crossed orders and, in particular, the requirements of 8 well as provide for economic and a $0.02 per contract fee for crossed Section 6(b) of the Act. Specifically, opportunity for floor brokers to continue orders and VIX orders are assessed a the Exchange believes the proposed rule to conduct business, as the Exchange floor brokerage fee of $0.03 per contract change is consistent with the Section 9 believes they serve an important for non-crossed orders and $0.015 per 6(b)(5) requirements that the rules of function in achieving price discovery contract for crossed orders. The an exchange be designed to prevent and customer executions.5 In the event Exchange notes that in the event the fraudulent and manipulative acts and the trading floor becomes inoperable, trading floor becomes inoperable, practices, to promote just and equitable the only execution available for SPX volume that would otherwise be principles of trade, to foster cooperation and SPXW would be electronic executed on the floor would have to be and coordination with persons engaged executions. The Exchange still wishes to executed electronically. The Exchange in regulating, clearing, settling, encourage floor brokers to continue to believes it’s appropriate to continue to processing information with respect to, conduct business on the Exchange, assess this volume a modest fee, and facilitating transactions in albeit electronically when the floor is notwithstanding the fact that it is being securities, to remove impediments to inoperable. To that end, in order to moved to an electronic channel. The and perfect the mechanism of a free and approximate the trading floor Exchange notes the proposed fees are open market and a national market environment electronically, the the same as applied to SPX/SPXW and system, and, in general, to protect investors and the public interest. Exchange will allow TPHs to execute VIX AIM Agency/Primary Orders (i.e., Additionally, the Exchange believes the RFC orders electronically, as noted ‘‘AIM Execution Surcharge’’), which proposed rule change is consistent with above. As such, the Exchange does not was adopted recently for similar reasons Section 6(b)(4) of the Act,10 which wish to discourage floor brokers from and is applied only in the event the requires that Exchange rules provide for executing SPX and SPXW RFC trading floor is inoperable. The the equitable allocation of reasonable transactions when the trading floor is Exchange therefore proposes to amend dues, fees, and other charges among its inoperable by assessing the Execution the title to AIM Execution Surcharge to Trading Permit Holders and other Surcharges such volume. Indeed, in the ‘‘AIM and RFC Execution Surcharge absence of the trading floor being persons using its facilities. Fee’’ and modify Footnote 12 to clarify The Exchange believes the proposed inoperable, RFC orders would otherwise that this Surcharge will also apply to 6 rule change to waive SPX and SPXW execute on the floor and not be subject volume executed as an RFC transaction. to the Execution Surcharges. The Execution Surcharges for RFC orders in Exchange notes that AIM executions are The Exchange also proposes to the event the trading floor becomes similarly excluded from the Execution provide that SPX/SPXW and VIX inoperable is reasonable because market Surcharges as such functionality is contracts executed as an RFC order participants will not be subject to these similarly only made available for SPX in during the time when the Exchange extra surcharge for these executions. As the event the trading floor is operates in a screen-based only noted above, the Execution Surcharges inoperable.7 environment will not count towards the minimize the cost differentials between The Exchange next proposes to adopt 1,000 contract thresholds for the manual and electronic executions, an RFC Execution Surcharge for RFC electronic SPX/SPXW and VIX Tier which is in the interest of the Exchange initiating orders for all market Appointment Fees. Currently, the as it must both maintain robust participants which would apply only Exchange assesses separate monthly electronic systems as well as provide for when the Exchange operates in a screen- Tier Appointment Fees to electronic and economic opportunity for floor brokers floor Market-Maker holding a Market- to continue to conduct business, as the 4 See Cboe Options Fees Schedule, Footnote 21. Maker Electronic Access Permit or Exchange believes they serve an 5 See e.g., Securities Exchange Act Release No. Market-Maker Floor Permit, important function in achieving price 71295 (January 14, 2014) 79 FR 3443 (January 21, respectively, that trade SPX (including discovery and customer executions.11 In 2014) (SR–CBOE–2013–129). SPXW) and VIX contracts at any time the event the trading floor becomes 6 If the trading floor is open, floor brokers may during the month. The Exchange inoperable, the Exchange still wishes to execute crosses of option combos (i.e., synthetic futures) on the trading floor on behalf of market proposes to exclude SPX/SPXW and incentivize floor brokers to conduct participants who were exchanging futures contracts VIX volume executed as an RFC order business on the Exchange, albeit for related options positions. Market participants during the time when the Exchange electronically and as such does not wish enter into these exchanges in or to swap related operates in a screen-based only to assess a surcharge on volume that exposures. For instance, if a market participant has positions in VIX options but would prefer to hold environment, as the Exchange does not was otherwise executed on floor and not a corresponding position in VIX futures (such as, wish to discourage the sending of such for example, to reduce margin or risk related to the orders during that time. The Exchange 8 15 U.S.C. 78f(b). option positions), that market participant may swap notes that the electronic Tier 9 15 U.S.C. 78f(b)(5). its VIX options positions with another market 10 Appointment fees are intended to be 15 U.S.C. 78f(b)(4). participant’s VIX futures positions that have 11 See Securities Exchange Act Release No. 71295 corresponding risk exposure. assessed to Market-Maker TPHs who act (January 14, 2014) 79 FR 3443 (January 21, 2014) 7 See Cboe Options Fees Schedule, Footnote 12. as Market-Makers electronically and (SR–CBOE–2013–129).

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electronically as an RFC order. As floor being inoperable. The Exchange B. Self-Regulatory Organization’s discussed above, market participants also notes that as discussed above, it is Statement on Burden on Competition may be able to execute RFC orders not otherwise assessing the SPX/SPXW The Exchange does not believe that comprised of SPX or SPXW options Execution Surcharges on RFC SPX/ the proposed rule changes will impose electronically in the event the trading SPXW orders. The Exchange believes any burden on competition that are not floor is inoperable in order to best the proposed change is also equitable necessary or appropriate in furtherance approximate the trading floor in an and not unfairly discriminatory as it of the purposes of the Act. The electronic environment. Indeed, the applies uniformly to all similarly Exchange notes the proposed changes Exchange believes waiving the situated market participants that submit are not intended to address any Execution Surcharges for volume RFC orders who will be subject to competitive issue, but rather to address executed as an RFC order in the event equivalent execution costs while the fee changes it believes are reasonable in the trading floor is inoperable will trading floor is inoperable. Additionally, the event the trading floor becomes promote and encourage trading of these the Exchange notes the RFC Execution inoperable, thereby only permitting products notwithstanding the fact that Surcharge is the same as the AIM electronic participation on the manual executions are no longer Execution Surcharge, which was Exchange. The Exchange does not available. Additionally, the Exchange recently adopted for similar reasons for believe that the proposed rule change does not wish to assess the Execution when the trading floor is inoperable.13 will impose any burden on intramarket Surcharges on RFC transactions as such competition that is not necessary or The Exchange believes its proposal to transactions are intended to replicate appropriate in furtherance of the provide that SPX/SPXW and VIX functionality that is otherwise available purposes of the Act because the contracts executed as an RFC order when the Exchange is operating with an proposed changes apply equally to all open outcry environment and is further during a time when the Exchange similarly situated market participants. intended to provide means for operates in a screen-based only The Exchange does not believe that the transferring risk from futures positions environment will not count towards the proposed rule changes will impose any into related combo positions for 1,000 contract thresholds for the burden on intermarket competition that purposes of reducing capital electronic SPX/SPXW and VIX Tier is not necessary or appropriate in requirements on portfolios held at bank Appointment Fees is reasonable as furtherance of the purposes of the Act clearing firms. The Exchange believes Market-Makers that would otherwise because the proposed changes only the proposed change is also equitable meet the current contract thresholds due affect trading on the Exchange in and not unfairly discriminatory as it to the need to participate on the limited circumstances. applies uniformly to all similarly Exchange electronically will not be situated market participants that submit subject to an additional Tier C. Self-Regulatory Organization’s RFC orders who will be subject to Appointment Fee for volume executed Statement on Comments on the equivalent execution costs while the as an RFC order. The Exchange believes Proposed Rule Change Received From trading floor is inoperable. Also, as the proposed change is reasonable as the Members, Participants, or Others noted above, the Exchange notes that Tier Appointment fees were intended to The Exchange neither solicited nor AIM executions are similarly excluded apply to TPHs who act as electronic received comments on the proposed from the Execution Surcharges as such Market-Makers in SPX/SPX and VIX, rule change. functionality is similarly only made not those that, notwithstanding the III. Date of Effectiveness of the available in the event the trading floor trading floor being inoperable, would is inoperable. Proposed Rule Change and Timing for act as floor Market-Makers and trade Commission Action The Exchange believes the proposal to these products. Accordingly, the adopt an RFC Execution Surcharge for Exchange does not wish to assess the The foregoing rule change has become SPX/SPXW and VIX RFC initiating Tier Appointment fees to Market- effective pursuant to Section 19(b)(3)(A) orders is reasonable as the proposed 15 Makers who do not usually conduct of the Act and paragraph (f) of Rule rates are similar to the total rates 19b–4 16 thereunder. At any time within significant electronic volume in these charged for volume that is executed via 60 days of the filing of the proposed rule products and would not participate open-outcry.12 The Exchange also notes change, the Commission summarily may electronically if not for the trading floor that the Fees Schedule already provides temporarily suspend such rule change if being inoperable. Additionally, the for a similar scenario of such rates being it appears to the Commission that such Exchange does not wish to discourage assessed in the event the trading floor is action is necessary or appropriate in the the use of RFC orders for SPX/SPXW inoperable. For example, Footnote 15 of public interest, for the protection of and VIX as RFC transactions would the Fees Schedule provides that in the investors, or otherwise in furtherance of provide Market-Makers with needed event the Exchange’s exclusively listed the purposes of the Act. If the relief from the effect of the current options must be traded at a Back-up Commission takes such action, the exposure method (‘‘CEM’’) on the Exchange pursuant to Cboe Options Commission will institute proceedings Rule 5.26, the Back-up Exchange has options market. The proposed change is to determine whether the proposed rule agreed to apply the per contract and per equitable and not unfairly change should be approved or contract side fees (i.e., the Floor discriminatory because it will apply disapproved. Brokerage fees) to such transactions. uniformly to all similarly situated Accordingly, the Exchange believes it’s market participants, as it applies to all IV. Solicitation of Comments similarly appropriate to adopt and apply Market-Makers trading in these Interested persons are invited to similar fees to transactions that must products. The Exchange notes such submit written data, views, and occur via an electronic execution exclusion is similar to the exclusion of arguments concerning the foregoing, channel (instead of on a Back-Up SPX/SPXW and VIX volume executed including whether the proposed rule Exchange) due to the Exchange’s trading via AIM.14 change is consistent with the Act.

12 See Cboe Options Fees Schedule, Floor 13 See SR–CBOE–2020–021. 15 15 U.S.C. 78s(b)(3)(A). Brokerage Fees. 14 See Cboe Options Fees Schedule, Footnote 12. 16 17 CFR 240.19b–4(f).

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Comments may be submitted by any of SECURITIES AND EXCHANGE the most significant aspects of such the following methods: COMMISSION statements. Electronic Comments [Release No. 34–88519; File No. SR–Phlx– A. Self-Regulatory Organization’s 2020–09] Statement of the Purpose of, and • Use the Commission’s internet Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Self-Regulatory Organizations; Nasdaq Change rules/sro.shtml); or PHLX LLC; Notice of Filing and 1. Purpose • Send an email to rule-comments@ Immediate Effectiveness of Proposed sec.gov. Please include File Number SR– Rule Change To Relocate the Phlx Rule Relocation Series 8000 and 9000 Rules and CBOE–2020–024 on the subject line. The Exchange proposes to relocate the Incorporate by Reference the current Phlx Rule 8000 and 9000 Series Paper Comments Disciplinary Rules of The Nasdaq Rules into the new Rulebook shell. The Stock Market LLC • Send paper comments in triplicate relocation and harmonization of these to Secretary, Securities and Exchange March 31, 2020. rules is part of the Exchange’s continued Commission, 100 F Street NE, Pursuant to Section 19(b)(1) of the effort to promote efficiency and Washington, DC 20549–1090. Securities Exchange Act of 1934 conformity of its processes with those of (‘‘Act’’),1 and Rule 19b–4 thereunder,2 its Affiliated Exchanges.3 The Exchange All submissions should refer to File notice is hereby given that on March 20, believes that the placement of these Number SR–CBOE–2020–024. This file 2020, Nasdaq PHLX LLC (‘‘Phlx’’ or Phlx Rules into their new location in the number should be included on the ‘‘Exchange’’) filed with the Securities shell will facilitate the use of the subject line if email is used. To help the and Exchange Commission (‘‘SEC’’ or Rulebook by members, member Commission process and review your ‘‘Commission’’) the proposed rule organizations, persons associated with comments more efficiently, please use change as described in Items I and II member organizations, or other persons only one method. The Commission will below, which Items have been prepared subject to its jurisdiction. Specifically, post all comments on the Commission’s by the Exchange. The Commission is the Exchange proposes to relocate the internet website (http://www.sec.gov/ publishing this notice to solicit following rules into General 5 rules/sro.shtml). Copies of the comments on the proposed rule change Discipline: submission, all subsequent from interested persons. amendments, all written statements Proposed new Current rule number with respect to the proposed rule I. Self-Regulatory Organization’s rule number change that are filed with the Statement of the Terms of Substance of the Proposed Rule Change Section 1 ...... Rule 9110(d) Disciplinary Ju- Commission, and all written risdiction. communications relating to the The Exchange proposes to relocate the Section 2 ...... 8000. Investigations and proposed rule change between the Phlx Series 8000 and 9000 Rules from Sanctions. Commission and any person, other than its current rulebook (‘‘Rulebook’’) into Section 3 ...... 9000. Code of Procedure. those that may be withheld from the its new Rulebook shell. The Exchange is public in accordance with the also proposing to simultaneously Incorporation by Reference provisions of 5 U.S.C. 552, will be replace the text of the current Phlx The Exchange also proposes to available for website viewing and Series 8000 and 9000 Rules with simultaneously replace the current Phlx printing in the Commission’s Public introductory paragraphs to each that Series 8000 and 9000 Rules with Reference Room, 100 F Street NE, incorporate by reference The Nasdaq introductory paragraphs to each that Washington, DC 20549 on official Stock Market LLC’s (‘‘Nasdaq’’) Series incorporate by reference the Nasdaq business days between the hours of 8000 and 9000 Rules located in Nasdaq Series 8000 and 9000 Rules (located in 10:00 a.m. and 3:00 p.m. Copies of the General 5 Discipline. General 5 Discipline), respectively, and filing also will be available for The text of the proposed rule change state that such Nasdaq Rules shall be inspection and copying at the principal is available on the Exchange’s website at applicable to Exchange Members, offices of the Exchange. All comments http://nasdaqphlx.cchwallstreet.com/, Member Organizations, persons received will be posted without change. at the principal office of the Exchange, associated with Member Organizations, Persons submitting comments are and at the Commission’s Public and other persons subject to the cautioned that we do not redact or edit Reference Room. Exchange’s jurisdiction.4 personal identifying information from Except as noted below, the Nasdaq comment submissions. You should II. Self-Regulatory Organization’s Statement of the Purpose of, and Series 8000 and 9000 Rules are submit only information that you wish substantially similar to the current Phlx to make available publicly. All Statutory Basis for, the Proposed Rule Change Series 8000 and 9000 Rules, submissions should refer to File respectively. To account for any Number SR–CBOE–2020–024, and In its filing with the Commission, the should be submitted on or before April Exchange included statements 3 The term ‘‘Affiliated Exchanges’’ refers to 27, 2020. concerning the purpose of and basis for Nasdaq; Nasdaq BX, Inc.; Nasdaq ISE, LLC; Nasdaq For the Commission, by the Division of the proposed rule change and discussed GEMX, LLC; and Nasdaq MRX, LLC. any comments it received on the 4 The Exchange notes that the proposed changes Trading and Markets, pursuant to delegated will not become operative unless and until the 17 proposed rule change. The text of these authority. Commission approves the Exchange’s request, J. Matthew DeLesDernier, statements may be examined at the which it has filed pursuant to Section 36 of the places specified in Item IV below. The Exchange Act and SEC Rule 0–12 thereunder, for Assistant Secretary. Exchange has prepared summaries, set an exemption from the rule filing requirements of [FR Doc. 2020–07082 Filed 4–3–20; 8:45 am] forth in sections A, B, and C below, of Section 19(b) of the Exchange Act as to changes to BILLING CODE 8011–01–P Phlx Series 8000 (New General 5, Section 2) and 9000 (New General 5, Section 3) Rules that are 1 15 U.S.C. 78s(b)(1). effected solely by virtue of a change to the Nasdaq 17 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. Series 8000 or 9000 Rules.

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differences that do exist, the proposed the Nasdaq Series 8000 Rules should be persons associated with member introductory paragraphs list instances in read to apply to Exchange members, organizations, or other persons subject which cross references in the Nasdaq member organizations, persons to its jurisdiction. Instead, current Phlx Series 8000 and 9000 Rules to other associated with member organizations, Rule IM–8310–1 shall continue to Nasdaq rules shall be read to refer or other persons subject to its apply. While the language of Nasdaq instead to the Exchange Rules, and jurisdiction. Specifically, when applied Rule IM–8310–1 and current Phlx Rule references to Nasdaq terms (whether or to a Phlx member, Nasdaq Rule IM–8310–1 is substantially similar, not defined) shall be read to refer to the 8310(a)(3) shall also permit the certain differences exist given the Exchange-related meanings of those suspension of the permit of a Phlx existence of member organizations on terms. For example, references in both member and 8310(a)(4) shall also permit the Exchange such that maintaining the the Nasdaq Series 8000 and 9000 Rules the revocation or cancellation of the current Phlx Rule language is necessary. to the following terms shall be read to permit of a Phlx member, or expulsion With respect to the Phlx Series 9000 refer to the Exchange-specific meanings of a Phlx member. In addition, IM– Rules (New General 5, Section 3), the of those terms: the terms ‘‘Exchange’’ or 8310–3(c)(1) shall also permit the Phlx proposed introduction states that cross- ‘‘Nasdaq’’ shall be read to refer to the Regulation Department to release to the references in the Nasdaq Series 9000 Phlx Exchange; the terms ‘‘Rule’’ or public information with respect to any Rules to the following rules shall be ‘‘Rules of Nasdaq’’ shall be read to refer disciplinary decision issued pursuant to read to refer to the following Exchange to the Phlx Rules; the terms ‘‘Board’’ or the Phlx Series 9000 Rules (New Rules: ‘‘Nasdaq Board’’ shall be read to refer to General 5, Section 3) imposing a Corresponding exchange the Phlx Board of Directors; the terms suspension, cancellation or expulsion of Nasdaq rule 7 ‘‘member’’ or ‘‘member firm’’ shall be a Phlx member, or suspension or rule read to refer to a Phlx member revocation of a Phlx member’s permit or 0120 ...... General 1, Section 1. organization, except that with respect to any decision issued pursuant to the 1013 ...... General 3, Section 5 or Gen- Rules 9268(e)(2), 9269(d)(2), 9312(a)(3), Rule 9550 Series imposing a suspension eral 3, Section 2. 9351(a), 9524(a)(10), 9524(b)(3), and or cancellation of the Phlx member, or 1015 ...... General 3, Section 16(a). 9559(q)(1), the term ‘‘member’’ shall be a suspension or bar of the association of 1160 ...... General 3, Section 7(d). read also to apply to a Phlx member; the a Phlx member with a Phlx member 2010A ...... Options 9, Section 1. term ‘‘Associated Person’’ shall be read organization. Moreover, IM–8310–3(g) 2160 ...... General 2, Section 4. to refer to a Phlx Member or person and (h) also shall be read to apply to a 2170 ...... General 9, Section 53. associated with a Phlx member Phlx member with respect to decisions 4110A ...... Options 6D, Section 1. organization; the term ‘‘person of the Exchange that impose upon him 4120A ...... Options 6D, Section 1. associated with a member’’ shall be read or her a monetary sanction of $10,000 or Options 9, General 9, Section 53. Section 4. to refer to a Phlx member or a person more or a penalty of expulsion, associated with a Phlx member revocation, suspension, or bar; and IM– Inaddition, when applied to a Phlx 5 organization; the terms ‘‘Nasdaq 8310(i) also shall be read to apply to a member organization, Rule 9558(a)(2) Regulation’’ or ‘‘Nasdaq Regulation Phlx member with respect to any order and any other applicable rules in the Department’’ shall be read to refer to the issued by the Commission of Nasdaq Rule 9000 series shall also allow Phlx Regulation Department; and the suspension, expulsion, bar, or the the summary suspension of the term ‘‘Chief Regulatory Officer’’ shall be imposition of monetary sanctions of associated permit(s) of a Phlx member read to refer to the Chief Regulatory $10,000 or more. The inclusion of these organization. This language is necessary Officer of Phlx. provisions in the introductory to make it clear that if the Chief Additionally, the proposed paragraph ensures that there is no Regulatory Officer provides written introduction to the Phlx Series 8000 change in the way current Phlx Rules authorization to the Financial Industry Rules (New General 5, Section 2) states 8310 and IM–8310–3 are applied to Phlx Regulatory Authority (‘‘FINRA’’) staff to that references in the Nasdaq Series Members who are sanctioned for issue on a case-by-case basis a written 8000 Rules to ‘‘Rule 0120’’ 6 shall be violation of the Phlx Rules. read to refer to Phlx Rule General 1, The proposed introduction to the Phlx notice that summarily suspends a Phlx Section 1 and references in the Nasdaq Series 8000 Rules (New General 5, member organization, the Phlx member Series 8000 Rules to ‘‘Rule 1015’’ shall Section 2) clarifies that, while Rules organization’s associated permit(s) may be read to refer to Phlx Rule General 3, 8320(a)(2), (b), and (c) in the Nasdaq also be suspended. Moreover, as with the current Phlx Section 16(a). Series 8000 Rules shall also apply to Series 8000 Rules, the proposed The proposed introduction to the Phlx Phlx members, subsection (a)(1) shall introduction to the Phlx Series 9000 Series 8000 Rules (New General 5, have no application to the Exchange or Section 2) also indicates how certain of its members, member organizations, Rules (New General 5, Section 3) persons associated with member indicates how certain of the Nasdaq Series 9000 Rules should be read to 5 The Exchange notes that the term ‘‘member’’ organizations, and other persons subject under Nasdaq’s rules is synonymous with the to the Exchange’s jurisdiction. The apply to Exchange members, member Exchange’s definition of ‘‘member organization,’’ organizations, persons associated with whereas the definition of a ‘‘member’’ of the inclusion of this in the introductory paragraph is needed because that member organizations, or other persons Exchange relates to the permit holder. Nasdaq does 8 not have such a concept. Under the Phlx rules, a subsection relates specifically to Nasdaq subject to its jurisdiction and indicates ‘‘member’’ is a natural person, where as a ‘‘member Options Market members, and there is 7 organization’’ is an entity and not a person. no analogous rule in the Phlx Series The Exchange plans to submit a subsequent 6 The definitions in Nasdaq Rule 0120 are now filing for the Nasdaq Series 8000 and 9000 Rules located under the General 1 title (‘‘General 8000 Rules (New General 5, Section 2). to replace references to the following rules with the Provisions’’) in the Nasdaq rulebook. See Securities Finally, the introductory paragraph to new rule cites: Rules 0120 (now General 1), 1160 Exchange Act Release No. 34–87778 (December 17, the Phlx Series 8000 Rules (New (now General 2, Section 11), 2010A (now General 2019), 84 FR 70590 (December 23, 2019) (SR– General 5, Section 2) explains that 9, Section 1), 2160 (now General 2, Section 14), NASDAQ–2019–098). The Exchange plans to 4110A (now General 9, Section 40), and 4120A submit a subsequent filing for the Nasdaq rulebook Nasdaq Rule IM–8310–1 shall have no (now General 9, Section 41). to address references to rules in the Nasdaq application to the Phlx Exchange or its 8 Rule 9270(c)(5) in the current Phlx Rule 9000 Rulebook that have since been changed. members, member organizations, Series refers to the ‘‘Exchange Enforcement

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that certain of the language in particular Enforcement may batch individual Sanctions User’s Guide,’’ whereas Rule 9270(c)(5) rules of the Current Phlx Series 8000 violations of Options 2, Section 5(c) in the Nasdaq Rule 9000 Series refers to ‘‘sanction guidelines.’’ The Exchange is not preserving the and 9000 Rules will be maintained. pertaining to quote spread parameters reference to the Exchange Enforcement Sanctions Specifically: (and corresponding Options Floor User’s Guide (the ‘‘Sanctions User Guide’’) because 1. Rule 9110(d) (‘‘Jurisdiction’’) in the Procedure Advice Options 11, Section the Exchange, like Nasdaq, consults FINRA’s Nasdaq Series 9000 Rules shall not 7). In the alternative, the Phlx sanction guidelines when determining appropriate apply to the Exchange or its members, remedial sanctions. The Exchange notes that, Regulation Department or the pursuant to a September 11, 2000, settlement with member organizations, persons Department of Enforcement may request the Commission (the ‘‘Settlement’’), see Release No. associated with member organizations, authorization from the FINRA Office of 43268, September 11, 2000, the Exchange was or other persons subject to its Disciplinary Affairs to issue a complaint required to ‘‘adopt rules establishing, or modifying jurisdiction. Instead, current Phlx Rule existing, sanctioning guidelines such that they are when (i) the Phlx Regulation reasonably designed to effectively enforce 9110(d) shall apply. While the language Department or the Department of compliance with such exchange’s options order of Nasdaq Rule 9110(d) and current Enforcement determines that there handling rules, including, the duty of best Phlx Rule 9110(d) is substantially exists a pattern or practice of violative execution with respect to the handling of orders similar, certain differences exist given after the broker-dealer routes the order to such conduct without exceptional respondent exchange, limit order display, priority, the existence of member organizations circumstances, or (ii) any single firm quote, and trade reporting rules.’’ The and members on the Phlx Exchange instance of violative conduct without Exchange thereafter sought Commission approval to such that maintaining the current Phlx exceptional circumstances is deemed to adopt new sanctioning guidelines to assist the Rule language is necessary.9 Moreover, Exchange in enforcing compliance with its options be egregious.’’ The inclusion of this in order handling rules. See Securities Exchange Act as noted above, current Phlx Rule the introductory paragraph is necessary Release No. 45415 (February 7, 2002), 67 FR 6781 9110(d) will be relocated to New because the Nasdaq Rules do not (February 13, 2002). The Exchange received General 5, Section 1. provide for the ‘‘batching’’ of individual Commission approval on March 15, 2002. See 2. The Waiver of Ex Parte Prohibition violations, whereas the Phlx Rules do. Securities Exchange Act Release No. 45569 (March set forth in Nasdaq Rule 9143(e)(3) and 15, 2002), 67 FR 13397 (March 22. 2002). In Maintaining this provision therefore approving the Sanctions User Guide, the Separation of Functions set forth in ensures that the current process of Commission noted that ‘‘the Commission expects Nasdaq Rule 9144(c)(3) shall also apply ‘‘batching’’ on the Exchange for certain the Exchange to continue to evaluate the adequacy to violation letters executed pursuant to violations remains unchanged. of the proposed sanctioning guidelines to determine Phlx Rule 9216(b)(2). The inclusion of whether they do, in fact, effectively enforce this in the introductory paragraph is 4. Rules 9216 and IM–9216 in the compliance with the options order handling rules.’’ Nasdaq Rules shall not apply to See Securities Exchange Act Release No. 45569 necessary because the Nasdaq rules do (March 15, 2002), 67 FR 13397, 13398 (March 22, not provide for the issuance of violation Exchange members, member 2002). letters, whereas the Phlx rules do. This organizations, persons associated with After Nasdaq acquired Phlx in 2008, Phlx provision therefore ensures that there is member organizations, or other persons contracted with FINRA in 2010 through a regulatory subject to its jurisdiction. Instead, services agreement to perform certain of the no change in the application of the investigation and enforcement functions on its Waiver of Ex Parte Prohibition and current Phlx Rules 9216 and IM–9216 behalf that the Exchange’s enforcement department Separation of Functions rules to Phlx shall apply. Phlx Rules 9216 and IM– had previously performed. Over time, with the member organizations or persons 9216 include provisions unique to that support of the Exchange, FINRA began consulting Exchange because, unlike Nasdaq, it has FINRA’s sanction guidelines when determining associated with member organizations appropriate remedial sanctions for Members, who submit executed violation letters. a trading floor. In addition, Phlx Rule Member Organizations, persons associated with 3. The following text should be read 9216 provides for the imposition of Member Organizations, and other persons subject to to follow the existing paragraph in fines in excess of $2,500 but not to the Exchange’s jurisdiction. The National Nasdaq Rule 9211(a)(1), which is exceed $10,000. Maintaining the Adjudicatory Council (‘‘NAC’’) (formerly the National Business Conduct Committee) developed identical to the existing text in current existing language therefore ensures that the sanctions guidelines. The NAC is an Phlx Rule 9211(a)(1): ‘‘When the the procedures applicable to acceptance, independent committee of FINRA comprised of number of violations under Exchange waiver, and consent letters, minor rule professionals who also review initial decisions Rules is determined based upon an violation letters, and violation letters set rendered in FINRA disciplinary and membership proceedings. FINRA’s guidelines include guidance exception-based surveillance program, forth in the existing Phlx rules remain on sanctioning a member for failing to comply with the Phlx Regulation Department or the unchanged. The Exchange also proposes best execution obligations, limit order display rules, Department of Enforcement may to update certain terms and rule and trade reporting rules. For those rules not aggregate, or ‘‘batch,’’ individual references that exist in Current Phlx specifically covered by FINRA’s sanctions Rule IM–9216 to align them with guidelines, such as priority and firm quote rules, violations of Exchange order handling FINRA and/or the Exchange, as applicable, consults Rules and consider such ‘‘batched’’ current terms and rule references. the guidelines for analogous violations when violations as a single offense only in Recently, the Exchange updated the determining the appropriate sanction. For each rule accordance with the guidelines set forth terms ‘‘Registered Options Trader’’ to covered, the guidelines set forth factors that may be ‘‘Floor Market Maker’’ and ‘‘Specialist’’ taken into account when determining the in the Exchange’s Numerical Criteria for 10 appropriate sanction, and the recommended Bringing Cases for Violations of to ‘‘Lead Market Maker.’’ Those new sanction or sanction range (which are higher than Exchange Order Handling Rules. In terms will be reflected in New Phlx Rule the Sanctions User Guide recommends). The addition, the Phlx Regulation IM–9216. In addition, due to the recent guidelines do not prescribe specific sanctions for Department or the Department of relocation in the Phlx Rulebook of rules particular violations. Instead, the objective is to provide recommended sanctions based on a number that are subject to the minor rule of factors that may be considered pertinent in considers when assessing remedial sanctions violation plan and the floor option determining what sanction should be levied. improves regulation and leads to better conduct. procedure advices, the Exchange is FINRA’s guidelines also provide direction on when The Exchange notes that all other Affiliated to consider a suspension, bar or other sanctions. Exchanges currently refer to FINRA’s sanctions updating the rule references as follows: The Exchange believes the higher sanction ranges guidelines when determining appropriate remedial and guidance on when to suspend or bar a member sanctions for each of its members, including 10 See Securities Exchange Act Release No. 85740 lead to better deterrence of misconduct. In addition, Nasdaq’s other options markets, the Nasdaq Options (April 29, 2019), 84 FR 19136 (May 3, 2019); FINRA’s sanctions guidelines are available publicly Market, the BX Options Market, Nasdaq ISE, LLC, Securities Exchange Act Release No. 88213 (see https://www.finra.org/sites/default/files/ Nasdaq GEMX, LLC, and Nasdaq MRX, LLC. (February 14, 2020), 85 FR 9859 (February 20, Sanctions_Guidelines.pdf). The Exchange believes 9 See supra, n.5. 2020). that public access to guidelines that the Exchange

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Old cite New cite for termination of a suspension (or a objectives of Section 6(b)(5) of the Act,14 request for termination of the limitation, in particular, in that it is designed to B–12 ...... B–11. prohibition or suspension with respect promote just and equitable principles of E–1 ...... D–1. to Rules 9555(g) and 9558(g)), to be trade and to protect investors and the F–2 ...... E–2. made with either the head of the public interest by bringing greater F–4 ...... E–3. transparency to its rules by relocating its F–5 ...... E–4. Exchange or the FINRA department or F–6 ...... E–5. office that issued the notice or that is Rules into the new Rulebook shell F–8 ...... E–6. handling the matter on behalf of the together with other rules which have F–9 ...... E–7. issuing department or office. The already been relocated. The Exchange’s F–11 ...... E–8. inclusion of this language is necessary proposal is consistent with the Act and F–12 ...... E–9. so that it is clear that such filings may will protect investors and the public F–13 ...... Options 11, Section continue to be made with the Exchange. interest by harmonizing its rules, where 6. applicable, across Nasdaq markets so F–15 ...... Options 11, Section 8. Rule 9610(b) in the Nasdaq Series 9000 Rules shall not apply to the that members of the Affiliated Exchange 7. can readily locate rules which cover F–19 ...... Options 11, Section Exchange or its members, member 8. organizations, persons associated with similar topics. The relocation and F–23 ...... E–13. member organizations, or other persons harmonization of these Phlx Rules is F–25 ...... E–14. subject to its jurisdiction. Instead, part of the Exchange’s continued effort F–27 ...... Options 11, Section current Phlx Rule 9610(b) shall apply. to promote efficiency and conformity of 9. While the language of Nasdaq Rule its processes with those of its Affiliated F–30 ...... E–15. 9610(b) and current Phlx Rule 9610(b) is Exchanges. The Exchange believes that F–31 ...... E–16. the placement of these Phlx Rules into F–33 ...... Options 11, Section substantially similar, certain differences exist given the existence of member their new location will facilitate the use 10. of the Rulebook by members, member F–34 ...... Options 11, Section organizations and members on the Phlx 11. Exchange such that maintaining the organizations, persons associated with F–35 ...... Options 11, Section current Phlx Rule language is necessary. member organizations, or other persons subject to the Exchange’s jurisdiction. 12. 9. Finally, the Exchange notes that Specifically, the Exchange believes that G–1 ...... Options 11, Section FINRA amended its rules to reflect an 13. market participants that are members of Section H Of the Op- Options 8, Section internal reorganization of FINRA’s 11 more than one Nasdaq market will tions Floor Proce- 39, F. Enforcement Operations. In July 2017, benefit from the ability to compare dure Advices. FINRA announced its plan to Rulebooks. consolidate its existing enforcement The Exchange is not substantively 5. Rule 9231(b)(1)(C) in the Nasdaq functions into a unified Department of amending rule text unless noted Rules shall be read to allow the Chief Enforcement. According to FINRA, its otherwise within this rule change. The Hearing Officer to select as a Panelist a rule change makes technical and other Exchange has already completed person who previously served as a non-substantive changes to FINRA relocating corresponding rules into the Governor of the Exchange prior to its Rules 9000 Series Code of Procedure same location in most of its Affiliated acquisition by Nasdaq, Inc., but does not (the ‘‘Code’’) to reflect the single Exchange’s Rulebooks for ease of serve currently in that position; and Department of Enforcement.12 The rule reference.15 The Exchange believes its 9231(b)(1)(D) shall be read to allow a change removed references to the proposal will benefit investors and the person who is a member of FINRA’s Market Regulation department, its head general public by increasing the Market Regulation Committee to be and employees from the Code where transparency of its Rulebook and among the FINRA Panelists approved by those references reflect the previously promoting easy comparisons among the the Exchange Board at least annually separate Market Regulation enforcement various Nasdaq Rulebooks. whom the Chief Hearing Officer may function. In light of FINRA’s also select as a Panelist. This language reorganization, Nasdaq likewise Incorporation by Reference is necessary to preserve the pool of removed references to the Market The Exchange believes that its individuals from whom the Chief Regulation department, its head and proposal is consistent with Section 6(b) Hearing Officer may select to serve as a employees from the Code, and re- of the Act,16 in general, and furthers the Panelist for Phlx disciplinary matters. lettered the remainder of those sections objectives of Section 6(b)(5) of the Act,17 6. When applied to a Phlx member where such re-lettering was necessary in particular, in that it is designed to organization, Rule 9558(a)(2) in the (i.e., Rule 9120). Because FINRA’s promote just and equitable principles of Nasdaq Rule 9000 Series shall also Market Regulation department no longer trade, to remove impediments to and allow the summary suspension of the exists, the Exchange does not need to perfect the mechanism of a free and associated permit(s) of a Phlx member preserve references to that entity with open market and a national market organization. This language is necessary this rule change. system, and, in general to protect to make it clear that if the Chief 2. Statutory Basis Regulatory Officer provides written 14 15 U.S.C. 78f(b)(5). authorization to FINRA staff to issue on Rule Relocation 15 See Securities Exchange Act Release No. 86138 a case-by-case basis a written notice that (June 18, 2019), 84 FR 29567 (June 24, 2019); The Exchange believes that its summarily suspends a Phlx member Securities Exchange Act Release No. 86346 (July 10, proposal is consistent with Section 6(b) 2019), 84 FR 33999 (July 16, 2019); Securities organization, the Phlx member of the Act,13 in general, and furthers the Exchange Act Release No. 86424 (July 22, 2019), 84 organization’s associated permit(s) may FR 36134 (July 26, 2019); and Securities Exchange also be suspended. Act Release No. 87778 (December 17, 2019), 84 FR 7. Rules 9552(f), 9553(g), 9554(g), 11 See Securities Exchange Act Release No. 83781 70590 (December 23, 2019). The Exchange plans to (August 6, 2018), 83 FR 39802 (August 10, 2018) submit a similar rule filing for Nasdaq BX, Inc. in 9555(g), 9556(g), and 9558(g) in the (FINRA No. SR–FINRA–2018–027). short order. Nasdaq 9000 Series shall be read to 12 Id. 16 15 U.S.C. 78f(b). continue to allow the filing of a request 13 15 U.S.C. 78f(b). 17 15 U.S.C. 78f(b)(5).

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investors and the public interest, by and 9000 Rules, or portions thereof, will two rule sets, the Exchange notes those consolidating its rules into a single rule continue to apply to the Exchange, Phlx differences in introductory paragraphs set. The Exchange intends to file a members, member organizations, to each of the Phlx Series 8000 and 9000 similar proposed rule change for the persons associated with member Rules (new General 5, Sections 2 and 3, Nasdaq BX, Inc., Nasdaq ISE, LLC, organizations, and other persons subject respectively). As noted above, the Nasdaq GEMX, LLC, and Nasdaq MRX, to the Exchange’s jurisdiction, rather proposed introductory paragraphs list LLC markets, so that the Nasdaq 8000 than the analogous Nasdaq Series 8000 instances in which cross references in Series and 9000 Series Rules which and 9000 Rules; 19 (2) describe how Nasdaq Series 8000 and 9000 Rules to govern the investigative and certain of the Nasdaq Series 8000 and other Nasdaq rules shall be read to refer disciplinary processes are similarly 9000 Rules should be read to apply to instead to the Exchange Rules, and incorporated by reference into those Exchange members, member references to Nasdaq terms (whether or rulebooks. organizations, persons associated with not defined) shall be read to refer to the Replacing the current Phlx Series member organizations, or other persons Exchange-related meanings of those 8000 and 9000 Rules with introductory subject to the Exchange’s jurisdiction; 20 terms. The introductory paragraphs also paragraphs to each that incorporate by and (3) indicate that certain of the reference Nasdaq Series 8000 and 9000 language in particular rules of the (1) indicate that certain of the current Rules, respectively, will provide an easy current Phlx Series 8000 and 9000 Rules Phlx Series 8000 and 9000 Rules, or reference for members, associated will be maintained.21 With respect to portions thereof, will continue to apply persons, and other persons subject to (1), the Exchange is also updating to the Exchange, Phlx members, member the Exchange’s jurisdiction seeking to certain terms and rule references in organizations, persons associated with understand and follow the investigative Current Phlx Rule IM–9216 to align member organizations, or other persons and disciplinary processes across all of them with current terms and rule subject to the Exchange’s jurisdiction, Nasdaq’s Exchanges. As noted, the references contained elsewhere in the rather than the analogous Nasdaq Series Exchange intends to file similar rule Exchange’s Rulebook. The inclusion of 8000 and 9000 Rules; (2) describe how changes for other affiliated markets so these clarifying provisions is consistent certain rule text of the Nasdaq Series that the Nasdaq Series 8000 and 9000 with the Act because it preserves the 8000 and 9000 Rules should be read to Rules are the source document for all of way that certain Phlx Rules that differ apply to the Exchange, Phlx members, the Affiliated Exchanges’ investigative from or do not exist in the Nasdaq Rules member organizations, persons and disciplinary processes. The are applied. Moreover, updating certain associated with member organizations, Exchange notes that the substance of the terms and rule references in Current or other persons subject to the current rules is not changing. The Phlx Rule IM–9216 is consistent with Exchange’s jurisdiction; and (3) indicate Exchange desires to conform its rules to the Act because it conforms the text in that certain of the language in particular give its members and the members of its that rule to changes already made rules of the current Phlx Series 8000 Affiliated Exchanges the ability to elsewhere in the Rulebook, thus and 9000 Rules will be maintained. quickly locate rules in one central ensuring accurate terms and rule Because Nasdaq’s current Series 8000 location. references throughout. Adding this text and 9000 Rules are substantially similar The Exchange also believes that the therefore ensures the consistent to the current Phlx Series 8000 and 9000 proposal is consistent with Section application of Phlx Rules to its Rules, and because the introductory 6(b)(6) of the Act,18 which requires that members, member organizations, paragraphs ensure that any differences the rules of an exchange provide that its persons associated with member are preserved, the proposed changes do members be appropriately disciplined organizations, or other persons subject not impose any burden on competition for violations of the Act as well as the to the Exchange’s jurisdiction. rules and regulations thereunder, or the not necessary or appropriate in rules of the Exchange, by expulsion, B. Self-Regulatory Organization’s furtherance of the purposes of the Act. suspension, limitation of activities, Statement on Burden on Competition Finally, updating certain terms and rule functions, and operations, fine, censure, The Exchange does not believe that references in Current Phlx Rule IM– being suspended or barred from being the proposed rule change will impose 9216 does not do not impose any associated with a member, or any other any burden on competition not burden on competition not necessary or fitting sanction. As noted above, the necessary or appropriate in furtherance appropriate in furtherance of the Exchange proposes to include of the purposes of the Act. The purposes of the Act because it conforms introductory paragraphs to each of the Exchange believes that this rule change the text in that rule to changes already Phlx Series 8000 and 9000 Rules (new does not impose an undue burden on made elsewhere in the Rulebook, thus General 5, Sections 2 and 3, competition because the Exchange is ensuring accurate terms and rule respectively) that list instances in which merely incorporating Nasdaq’s Series references throughout. cross references in the Nasdaq Series 8000 and 9000 Rules, which are Finally, the Exchange believes that 8000 and 9000 Rules to other Nasdaq substantially similar to the current Phlx the proposed amendments do not Series 8000 and 9000 Rules. Those rules rules should be read to refer instead to impose an undue burden on the Exchange Rules and references to will now apply to Phlx members, competition because the amendments to Nasdaq terms (whether or not defined) member organizations, persons relocate the Rules are non-substantive. shall be read to refer to the Exchange- associated with member organizations, This rule change is intended to bring related meanings of those terms. This is or other persons subject to the greater clarity to the Exchange’s Rules. consistent with the Act because it Exchange’s jurisdiction. To the extent minimizes confusion and ensures the that there are differences between the C. Self-Regulatory Organization’s proper application of the Nasdaq Rules Statement on Comments on the to Phlx. Also as noted above, the 19 Rules IM–8310–1, 9110(d), 9211(a)(1), 9216, Proposed Rule Change Received From introductory paragraphs (1) indicate that IM–9216, and 9610(b). 20 Rule 8310, IM–8310–3, 8320 and 9558(a)(2). Members, Participants, or Others certain of the Current Phlx Series 8000 21 Rules 9143(e)(3), 9144(c)(3), 9231(b)(1)(C), 9231(b)(1)(D), 9552(f), 9553(g), 9554(g), 9555(g), No written comments were either 18 15 U.S.C. 78f(b)(6). 9556(g), and 9558(g). solicited or received.

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III. Date of Effectiveness of the internet website (http://www.sec.gov/ III below, which Items have been Proposed Rule Change and Timing for rules/sro.shtml). Copies of the prepared by the self-regulatory Commission Action submission, all subsequent organization. The Commission is Because the foregoing proposed rule amendments, all written statements publishing this notice to solicit change does not: (i) Significantly affect with respect to the proposed rule comments on the proposed rule change the protection of investors or the public change that are filed with the from interested persons. Commission, and all written interest; (ii) impose any significant I. Self-Regulatory Organization’s communications relating to the burden on competition; and (iii) become Statement of the Terms of Substance of proposed rule change between the operative for 30 days from the date on the Proposed Rule Change which it was filed, or such shorter time Commission and any person, other than those that may be withheld from the The Exchange proposes to an as the Commission may designate, it has public in accordance with the extension of the temporary waiver of the become effective pursuant to Section co-location ‘‘Hot Hands’’ fee. The 22 provisions of 5 U.S.C. 552, will be 19(b)(3)(A) of the Act and Rule 19b– proposed rule change is available on the 23 available for website viewing and 4(f)(6) thereunder. Exchange’s website at www.nyse.com, at At any time within 60 days of the printing in the Commission’s Public Reference Room, 100 F Street, NE, the principal office of the Exchange, and filing of the proposed rule change, the Washington, DC 20549, on official at the Commission’s Public Reference Commission summarily may business days between the hours of Room. temporarily suspend such rule change if 10:00 a.m. and 3:00 p.m. Copies of the it appears to the Commission that such II. Self-Regulatory Organization’s filing also will be available for action is necessary or appropriate in the Statement of the Purpose of, and inspection and copying at the principal public interest, for the protection of Statutory Basis for, the Proposed Rule office of the Exchange. All comments investors, or otherwise in furtherance of Change received will be posted without change. the purposes of the Act. If the Persons submitting comments are In its filing with the Commission, the Commission takes such action, the cautioned that we do not redact or edit self-regulatory organization included Commission shall institute proceedings personal identifying information from statements concerning the purpose of, to determine whether the proposed rule comment submissions. You should and basis for, the proposed rule change change should be approved or submit only information that you wish and discussed any comments it received disapproved. to make available publicly. All on the proposed rule change. The text IV. Solicitation of Comments submissions should refer to File of those statements may be examined at Number SR–Phlx–2020–09 and should the places specified in Item IV below. Interested persons are invited to be submitted on or before April 27, The Exchange has prepared summaries, submit written data, views, and 2020. set forth in sections A, B, and C below, arguments concerning the foregoing, of the most significant parts of such including whether the proposed rule For the Commission, by the Division of statements. change is consistent with the Act. Trading and Markets, pursuant to delegated 24 Comments may be submitted by any of authority. A. Self-Regulatory Organization’s the following methods: J. Matthew DeLesDernier, Statement of the Purpose of, and the Assistant Secretary. Statutory Basis for, the Proposed Rule Electronic Comments [FR Doc. 2020–07075 Filed 4–3–20; 8:45 am] Change • Use the Commission’s internet BILLING CODE 8011–01–P 1. Purpose comment form (http://www.sec.gov/ rules/sro.shtml); or The Exchange proposes an extension • Send an email to rule-comments@ SECURITIES AND EXCHANGE of the temporary waiver of the co- 4 sec.gov. Please include File Number SR– COMMISSION location ‘‘Hot Hands’’ fee through the Phlx–2020–09 on the subject line. earlier of the reopening of the Mahwah, [Release No. 34–88520; File No. SR– New Jersey data center (‘‘Data Center’’) Paper Comments NYSEARCA–2020–26] or May 15, 2020. The waiver of the Hot • Send paper comments in triplicate Self-Regulatory Organizations; NYSE Hands fee was originally through March 5 to Secretary, Securities and Exchange Arca, Inc.; Notice of Filing and 29, 2020. Commission, 100 F Street NE, Immediate Effectiveness of Proposed The Exchange is an indirect Washington, DC 20549–1090. Rule Change for an Extension of the subsidiary of Intercontinental Exchange, All submissions should refer to File Temporary Waiver of the Co-Location Inc. (‘‘ICE’’). Through its ICE Data Number SR–Phlx–2020–09. This file ‘‘Hot Hands’’ Fee Services (‘‘IDS’’) business, ICE operates number should be included on the the Mahwah, New Jersey data center March 31, 2020. (‘‘Data Center’’), from which the subject line if email is used. To help the 1 Commission process and review your Pursuant to Section 19(b)(1) of the Exchange provides co-location services Securities Exchange Act of 1934 (the to Users.6 Among those services is a comments more efficiently, please use 2 3 only one method. The Commission will ‘‘Act’’) and Rule 19b–4 thereunder, 4 The Exchange initially filed rule changes post all comments on the Commission’s notice is hereby given that, on March 27, 2020, NYSE Arca, Inc. (‘‘NYSE relating to its co-location services with the Securities and Exchange Commission 22 15 U.S.C. 78s(b)(3)(A). Arca’’ or the ‘‘Exchange’’) filed with the (‘‘Commission’’) in 2010. See Securities Exchange 23 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– Securities and Exchange Commission Act Release No. 63275 (November 8, 2010), 75 FR 4(f)(6)(iii) requires a self-regulatory organization to (the ‘‘Commission’’) the proposed rule 70048 (November 16, 2010) (SR–NYSEArca–2010– give the Commission written notice of its intent to change as described in Items I, II, and 100). file the proposed rule change, along with a brief 5 See Securities Exchange Act Release No. 88398 description and text of the proposed rule change, (March 17, 2020), 85 FR 16398 (March 23, 2020) 24 at least five business days prior to the date of filing 17 CFR 200.30–3(a)(12). (SR–NYSEArca–2020–22). of the proposed rule change, or such shorter time 1 15 U.S.C.78s(b)(1). 6 For purposes of the Exchange’s co-location as designated by the Commission. The Exchange 2 15 U.S.C. 78a. services, a ‘‘User’’ means any market participant has satisfied this requirement. 3 17 CFR 240.19b–4. that requests to receive co-location services directly

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‘‘Hot Hands’’ service, which allows through [March 29, 2020] the earlier of User would incur Hot Hands fees for the Users to use on-site Data Center the reopening of the Mahwah, New work. personnel to maintain User equipment, Jersey data center or May 15, 2020. The proposed extension of the waiver support network troubleshooting, rack The Exchange believes that there will would allow a User to have work carried and stack a server in a User’s cabinet; be sufficient Data Center staff on-site to out on its equipment notwithstanding power recycling; and install and comply with User requests for Hot the closure of the Data Center without document the fitting of cable in a User’s Hands service. incurring Hot Hands fees. cabinet(s).7 The Hot Hands fee is $100 The proposed extension of the waiver The Proposed Rule Change Is Equitable per half hour. would apply equally to all Users. The ICE originally announced that the proposed extension of the fee waiver The Exchange believes the proposed Data Center would be closed to third would not apply differently to distinct rule change is an equitable allocation of parties for the period from March 16, types or sizes of market participants. its fees and credits for the following 2020 through March 29, 2020 (the Rather, it would continue to apply reasons. ‘‘Initial Closure’’), to help avoid the uniformly to all Users. spread of COVID–19, which could The proposed extension of the waiver The proposed change is not otherwise would apply equally to all Users. The negatively impact Data Center functions. intended to address any other issues Prior to the closure of the Data Center, proposed extension would not apply relating to co-location services and/or differently to distinct types or sizes of the Chief Executive Officer of the related fees, and the Exchange is not Exchange took the actions required market participants. Rather, it would aware of any problems that Users would under NYSE Arca Rules 7.1–E and 7.1– apply uniformly to all Users. have in complying with the proposed O to close the co-location facility of the The Exchange believes that the change. Exchange to third parties. proposal is equitable because the ICE has now announced to Users that, 2. Statutory Basis extension of the waiver would mean because the concerns that led to the that for the duration of the closure of the Initial Closure still apply, the closure of The Exchange believes that the Data Center all similarly-situated Users proposed rule change is consistent with would not be charged a fee to use the the Data Center will be extended to the 9 earlier of the reopening of the Mahwah, Section 6(b) of the Act, in general, and Hot Hands service. New Jersey data center (‘‘Data Center’’) furthers the objectives of Sections 10 The Proposed Change Is Not Unfairly or May 15, 2020. The date will be 6(b)(4) and (5) of the Act, in particular, because it provides for the equitable Discriminatory and Would Protect announced through a customer notice. Investors and the Public Interest If a User’s equipment requires work allocation of reasonable dues, fees, and while a Rules 7.1–E and 7.1–O closure other charges among its members, The Exchange believes that the is in effect, the User has to use the Hot issuers and other persons using its proposed change is not unfairly Hands service and, absent a waiver, facilities and does not unfairly discriminatory for the following incurs Hot Hands fees for the work. discriminate between customers, reasons. issuers, brokers or dealers. In addition, Given that, the Exchange waived all Hot The proposed extension of the waiver it is designed to foster cooperation and Hands fees for the duration of the Initial would not apply differently to distinct 8 coordination with persons engaged in Closure. Because the period has been types or sizes of market participants. regulating, clearing, settling, processing extended, the Exchange proposes to Rather, all Users whose equipment information with respect to, and extend the waiver of the Hot Hands Fee requires work during the extension of facilitating transactions in securities, to for the length of the period. To that end, the Data Center closure would have the remove impediments to, and perfect the the Exchange proposes to revise the resulting fees waived, and the extension mechanisms of, a free and open market footnote to the Hot Hands Fee in the Fee of the waiver would apply uniformly to and a national market system and, in Schedules as follows (deletions all Users during the period. For the general, to protect investors and the bracketed, additions italicized per OFR): reasons above, the proposed changes do public interest and because it is not † Fees for Hot Hands Services will be not unfairly discriminate between or designed to permit unfair waived beginning on March 16, 2020 among market participants. discrimination between customers, from the Exchange. See Securities Exchange Act issuers, brokers, or dealers. In addition, the Exchange believes Release No. 76010 (September 29, 2015), 80 FR that the proposed rule change would 60197 (October 5, 2015) (SR–NYSEArca–2015–82). The Proposed Rule Change Is perfect the mechanisms of a free and As specified in the NYSE Arca Options Fees and Reasonable open market and a national market Charges and the NYSE Arca Equities Fees and Charges (together, the ‘‘Fee Schedules’’), a User that The Exchange believes that the system and, in general, protect investors incurs co-location fees for a particular co-location proposed rule change is reasonable for and the public interest because it would service pursuant thereto would not be subject to co- the following reasons. allow a User to have work carried out location fees for the same co-location service on its equipment notwithstanding a charged by the Exchange’s affiliates the New York Given that the closure of the Data Stock Exchange LLC (‘‘NYSE’’), NYSE American Center has been extended, the Exchange Rules 7.1–E and 7.1–O closure without LLC (‘‘NYSE American’’), NYSE Chicago, Inc. believes that it is reasonable to grant the incurring Hot Hands fees. Accordingly, (‘‘NYSE Chicago’’), and NYSE National, Inc. proposed corresponding extension of the Exchange believes that the requested (‘‘NYSE National’’ and together, the ‘‘Affiliate extension of the waiver is designed to SROs’’). See Securities Exchange Act Release No. the waiver of the Hot Hands Fee. While 70173 (August 13, 2013), 78 FR 50459 (August 19, a Rules 7.1–E and 7.1–O closure is in perfect the mechanisms of a free and 2013) (SR–NYSEArca–2013–80). Each Affiliate SRO effect, User representatives are not open market and a national market has submitted substantially the same proposed rule system and, in general, protect investors change to propose the changes described herein. allowed access to the Data Center. If a See SR–NYSE–2020–25, SR–NYSEAmer–2020–23, User’s equipment requires work during and the public interest by facilitating SR–NYSECHX–2020–10, and SR–NYSENAT–2020– such period, the User has to use the Hot the uninterrupted availability of Users’ 14. Hands service. Absent a waiver, the equipment. 7 See Securities Exchange Act Release No. 72720 For all of the above reasons, the (July 30, 2014), 79 FR 45577 (August 5, 2014) (SR– NYSEArca–2014–81). 9 15 U.S.C. 78f(b). Exchange believes that the proposal is 8 See 85 FR 16398, supra note 5. 10 15 U.S.C. 78f(b)(4) and (5). consistent with the Act.

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B. Self-Regulatory Organization’s fee, or other charge imposed by the 10:00 a.m. and 3:00 p.m. Copies of the Statement on Burden on Competition Exchange. filing also will be available for At any time within 60 days of the inspection and copying at the principal In accordance with Section 6(b)(8) of filing of such proposed rule change, the 11 office of the Exchange. All comments the Act, the Exchange believes that the Commission summarily may received will be posted without change. proposed rule change will not impose temporarily suspend such rule change if Persons submitting comments are any burden on competition that is not it appears to the Commission that such cautioned that we do not redact or edit necessary or appropriate in furtherance action is necessary or appropriate in the personal identifying information from of the purposes of the Act. public interest, for the protection of comment submissions. You should Intramarket Competition investors, or otherwise in furtherance of submit only information that you wish the purposes of the Act. If the to make available publicly. All The Exchange does not believe that Commission takes such action, the submissions should refer to File the proposed change would place any Commission shall institute proceedings Number SR–NYSEARCA–2020–26 and burden on intramarket competition that under Section 19(b)(2)(B) 14 of the Act to should be submitted on or before April is not necessary or appropriate. determine whether the proposed rule 27, 2020. The proposed extension of the waiver change should be approved or is not designed to affect competition, For the Commission, by the Division of disapproved. Trading and Markets, pursuant to delegated but rather to provide relief to Users that, IV. Solicitation of Comments authority.15 while a Rules 7.1–E and 7.1–O closure J. Matthew DeLesDernier, is in effect, have no option but to use Interested persons are invited to the Hot Hands service. submit written data, views, and Assistant Secretary. The proposed extension of the waiver arguments concerning the foregoing, [FR Doc. 2020–07076 Filed 4–3–20; 8:45 am] would not apply differently to distinct including whether the proposed rule BILLING CODE 8011–01–P types or sizes of market participants. change is consistent with the Act. Rather, all Users whose equipment Comments may be submitted by any of requires work during the extension of the following methods: SURFACE TRANSPORTATION BOARD the Data Center closure would have the Electronic Comments [Docket No. AB 1269 (Sub-No. 1X)] resulting fees waived, and the extension • Use the Commission’s internet of the waiver would apply uniformly to Iowa Traction Railway Company— comment form (http://www.sec.gov/ all Users during the period. Discontinuance of Service rules/sro.shtml); or Exemption—in Cerro Gordo County, • Send an email to rule-comments@ Intermarket Competition Iowa sec.gov. Please include File Number SR– The Exchange does not believe that NYSEARCA–2020–26 on the subject Iowa Traction Railway Company the proposed change would impose any line. (Iowa Railway) has filed a verified burden on intermarket competition that Paper Comments notice of exemption under 49 CFR part is not necessary or appropriate. 1152 subpart F—Exempt Abandonments • The Exchange believes that the Send paper comments in triplicate and Discontinuances of Service to proposed change would not affect the to Secretary, Securities and Exchange discontinue service over a three-mile competitive landscape among the Commission, 100 F Street NE, rail line between milepost 155.5, located national securities exchanges, as the Hot Washington, DC 20549–1090. approximately 100 yards south of Elm Hands service is solely charged within All submissions should refer to File Drive, and milepost 152.5, located co-location to existing Users, and would Number SR–NYSEARCA–2020–26. This approximately 600 yards north of be temporary. file number should be included on the County Highway B–20, in Mason City For the reasons described above, the subject line if email is used. To help the (the City), Cerro Gordo County, Iowa Exchange believes that the proposed Commission process and review your (the Line). The Line traverses U.S. rule change reflects this competitive comments more efficiently, please use Postal Service Zip Code 50401. environment. only one method. The Commission will Iowa Railway has certified that: (1) No post all comments on the Commission’s C. Self-Regulatory Organization’s local traffic has moved over the Line for internet website (http://www.sec.gov/ Statement on Comments on the at least two years; (2) no overhead traffic rules/sro.shtml). Copies of the Proposed Rule Change Received From has moved over the Line for at least two submission, all subsequent Members, Participants, or Others years; (3) no formal complaint filed by amendments, all written statements a user of rail service on the Line (or a No written comments were solicited with respect to the proposed rule state or local government entity acting or received with respect to the proposed change that are filed with the on behalf of such user) regarding rule change. Commission, and all written cessation of service over the Line either communications relating to the is pending with the Surface III. Date of Effectiveness of the proposed rule change between the Transportation Board or any U.S. Proposed Rule Change and Timing for Commission and any person, other than District Court or has been decided in Commission Action those that may be withheld from the favor of a complainant within the two- The foregoing rule change is effective public in accordance with the year period; and (4) the requirements at upon filing pursuant to Section provisions of 5 U.S.C. 552, will be 49 CFR 1105.12 (newspaper 19(b)(3)(A) 12 of the Act and available for website viewing and publication) and 49 CFR 1152.50(d)(1) subparagraph (f)(2) of Rule 19b–4 13 printing in the Commission’s Public (notice to governmental agencies) have thereunder, because it establishes a due, Reference Room, 100 F Street NE, been met. Washington, DC 20549 on official As a condition to this exemption, any 11 15 U.S.C. 78f(b)(8). business days between the hours of employee adversely affected by the 12 15 U.S.C. 78s(b)(3)(A). 13 17 CFR 240.19b–4(f)(2). 14 15 U.S.C. 78s(b)(2)(B). 15 17 CFR 200.30–3(a)(12).

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discontinuance of service shall be DEPARTMENT OF TRANSPORTATION information is necessary for FAA’s protected under Oregon Short Line performance; (b) the accuracy of the Railroad—Abandonment Portion Federal Aviation Administration estimated burden; (c) ways for FAA to Goshen Branch Between Firth & [Docket No. 2020–0059] enhance the quality, utility and clarity Ammon, in Bingham & Bonneville of the information collection; and (d) Counties, Idaho, 360 I.C.C. 91 (1979). To Agency Information Collection ways that the burden could be address whether this condition Activities: Requests for Comments; minimized without reducing the quality adequately protects affected employees, Clearance of a Renewed Approval of of the collected information. The agency a petition for partial revocation under Information Collection: Extended will summarize and/or include your 49 U.S.C. 10502(d) must be filed. Operations (ETOPS) of Multi-Engine comments in the request for OMB’s Airplanes clearance of this information collection. Provided no formal expression of OMB Control Number: 2120–0718. intent to file an offer of financial AGENCY: Federal Aviation Title: Extended Operations (ETOPS) assistance (OFA) 1 to subsidize Administration (FAA), DOT. of Multi-Engine Airplanes. continued rail service has been ACTION: Notice and request for Form Numbers: None. received, this exemption will be comments. Type of Review: Renewal of an effective on May 6, 2020, unless stayed information collection. pending reconsideration. Petitions to SUMMARY: In accordance with the Background: The Federal Register stay that do not involve environmental Paperwork Reduction Act of 1995, FAA Notice with a 60-day comment period invites public comments about our issues and formal expressions of intent soliciting comments on the following intention to request the Office of to file an OFA to subsidize continued collection of information was published Management and Budget (OMB) rail service under 49 CFR 1152.27(c)(2) 2 on January 22, 2020 (85 FR 3742). The 3 approval to renew an information final rule codified the previous practices must be filed by April 16, 2020. collection. The Federal Register Notice Petitions for reconsideration must be that permitted certificated air carriers to with a 60-day comment period soliciting operate two-engine airplanes over these filed by April 27, 2020, with the Surface comments on the following collection of Transportation Board, 395 E Street SW, long-range routes and extended the information was published on January procedures for extended operations to Washington, DC 20423–0001. 22, 2020. The collection involves all passenger-carrying operations on A copy of any petition filed with information related to Extended routes beyond 180 minutes from an Board should be sent to Iowa Railway’s Operations of Multi Engine Airplanes. A alternate airport. This option is representative, Thomas F. McFarland, final rule published on January 16, 2007 voluntary for operators and Thomas F. McFarland, P.C., 208 South codified previous practices that manufacturers. The FAA uses this LaSalle Street, Suite 1666, Chicago, IL permitted certificated air carriers to information collection to ensure that 60604–1228. operate two-engine airplanes over long aircraft for long range flights are range routes. The FAA uses this If the verified notice contains false or equipped to minimize diversions, to information collection to ensure that preclude and prevent diversions in misleading information, the exemption aircraft for long range flights are is void ab initio. remote areas, and to ensure that all equipped to minimize diversions, to personnel are trained to minimize any Board decisions and notices are preclude and prevent diversions in adverse impacts of a diversion. available at www.stb.gov. remote areas, and to ensure that all Respondents: Approximately 20 Decided: April 1, 2020. personnel are trained to minimize any Operators and 4 Manufacturers and 7 adverse impacts of a diversion. By the Board, Allison C. Davis, Director, future operators. Office of Proceedings. DATES: Written comments should be Frequency: Information is collected submitted by May 6, 2020. on occasion. Kenyatta Clay, ADDRESSES: Interested persons are Estimated Average Burden per Clearance Clerk. invited to submit written comments on Response: Burden per Operator varies [FR Doc. 2020–07174 Filed 4–3–20; 8:45 am] the proposed information collection to per operation. BILLING CODE 4915–01–P the Office of Information and Regulatory Estimated Total Annual Burden: Affairs, Office of Management and 36,536 Hours. Budget. Comments should be addressed Issued in Washington, DC, on March 31, 1 Persons interested in submitting an OFA to subsidize continued rail service must first file a to the attention of the Desk Officer, 2020. formal expression of intent to file an offer, Department of Transportation/FAA, and Sandra L. Ray, _ indicating the intent to file an OFA for subsidy and sent via electronic mail to oira Aviation Safety Inspector, FAA, Policy demonstrating that they are preliminarily [email protected], or faxed to Integration Branch, AFS–270. financially responsible. See 49 CFR 1152.27(c)(2)(i). (202) 395–6974, or mailed to the Office [FR Doc. 2020–07071 Filed 4–3–20; 8:45 am] 2 The filing fee for OFAs can be found at 49 CFR of Information and Regulatory Affairs, BILLING CODE 4910–13–P 1002.2(f)(25). Office of Management and Budget, 3 As explained in the Board’s decision served Docket Library, Room 10102, 725 17th concurrently in this docket, requests for issuance of Street, NW, Washington, DC 20503. a notice of interim trail use or abandonment under DEPARTMENT OF TRANSPORTATION the National Trails System Act will not be accepted. FOR FURTHER INFORMATION CONTACT: Moreover, because this is a discontinuance Timothy McClain by email at: Federal Aviation Administration proceeding and not an abandonment, public use [email protected]; phone: 202– Public Notice for Waiver of conditions are not appropriate. Furthermore, no 267–4112 environmental review is required because the Line Aeronautical Land Use Assurance; SUPPLEMENTARY INFORMATION: was previously abandoned and an environmental Arlington Municipal Airport, Arlington, review was conducted in that proceeding. See Chi. Public Comments Invited: You are WA & N. W. Transp. Co.—Aban. Exemption—Mason asked to comment on any aspect of this City, Iowa, AB 1 (Sub-No. 205X) (ICC served Jan. information collection, including (a) AGENCY: Federal Aviation 19, 1988) (environmental review). Whether the proposed collection of Administration, (FAA), DOT.

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ACTION: Notice. Issued in Des Moines, Washington on quality domestic steel and iron products March 30, 2020. are not produced in the United States in SUMMARY: Notice is being given that the Joelle Briggs, sufficient and reasonably available FAA is considering a proposal from the Manager, Seattle Airports District Office. quantities. This notice provides City of Arlington Airport Director to [FR Doc. 2020–07101 Filed 4–3–20; 8:45 am] information regarding FHWA’s finding change certain portions of the airport BILLING CODE 4910–13–P that it is appropriate to grant IFA a Buy from aeronautical use to non- America waiver for procurement of non- aeronautical use at Arlington Municipal domestic iron and steel components for Airport, Arlington, WA. The proposal DEPARTMENT OF TRANSPORTATION refurbishment of two ferry vessels, specifically including (i) two sets of consists of 292.35 acres identified on Federal Highway Administration the Airport Layout Plan as the Airport reduction gear replacement parts, one for the M/V Stikine ferry and the other Business Park and the Airport Industrial Buy America Waiver Notification for the M/V Prince of Wales ferry; and Park. AGENCY: Federal Highway (ii) one set of pitch control units for the DATES: Comments are due within 30 Administration (FHWA), U.S. M/V Prince of Wales ferry. The days of the date of the publication of Department of Transportation. reduction gear replacement units and this notice in the Federal Register. ACTION: Notice. pitch control units are not available to Written comments can be provided to be produced using 100 percent domestic Ms. Cayla D. Morgan, Environmental SUMMARY: This notice provides steel or iron. Protection Specialist, Seattle Airports information regarding FHWA’s finding Background on the IFA System: The District Office, 2220 S 216th Street, Des that it is appropriate to grant a Buy IFA system provides the only ferry Moines, WA 98198, (206) 231–4130. America waiver to the Inter-Island Ferry service to Prince of Wales (POW) Island, Authority (IFA) of Alaska for which is the fourth-largest island in the FOR FURTHER INFORMATION CONTACT: Mr. procurement of foreign iron and steel United States with a landmass of 2,577 David M. Ryan, Airport Director, City of components for refurbishment of two square miles. It has a population of Arlington, 18204 59th Avenue NE, ferry vessels, specifically including (i) approximately 6,000. The POW Island is Arlington, WA 98223; or Ms. Cayla D. two sets of reduction gear replacement located west of the City of Ketchikan, Morgan, Environmental Protection parts, one for the M/V Stikine ferry and but is not accessible by road or bridge. Specialist, Seattle Airports District the other for the M/V Prince of Wales Because of the lack of road access, Office, 2220 S 216th Street, Des Moines, ferry; and (ii) one set of pitch control residents and visitors rely heavily on WA 98198, (206) 231–4130. Documents units for the M/V Prince of Wales ferry. the IFA ferries to reach POW Island or reflecting this FAA action may be DATES: The effective date of the waiver return to the mainland. The IFA ferries reviewed at the above locations. is April 7, 2020. make daily runs between Ketchikan and FOR FURTHER INFORMATION CONTACT: For Hollis, a census-designated place on SUPPLEMENTARY INFORMATION: Under the questions about this notice, please POW Island. The ferries include provisions of Title 49, U.S.C. 47153(c), contact Mr. Gerald Yakowenko, FHWA passenger and vehicle decks. They carry and 47107(h)(2), the FAA is considering Office of Program Administration, (202) more than 50,000 passengers and 12,000 a proposal from the Airport Director, 366–1562, or via email at vehicles annually. City of Arlington, to change a portion of [email protected]. For legal The IFA provides critical ferry service the Arlington Municipal Airport from questions, please contact Mr. Patrick to businesses and individuals on POW aeronautical use to non-aeronautical Smith, FHWA Office of the Chief Island. For example, island residents use. The Airport Industrial Park on the Counsel, (202) 366–1345, or via email at rely on ferry service for access to health east side of the airfield consists of light [email protected]. Office hours care, employment, and markets in industrial manufacturing, office and for FHWA are from 8:00 a.m. to 4:30 Ketchikan including for groceries, storage uses. The area has nearly p.m., E.T., Monday through Friday, goods, and services. In addition, many reached full build out and any future except Federal holidays. businesses on POW Island and in use will remain the same. The Airport SUPPLEMENTARY INFORMATION: Ketchikan rely on this daily Business Park located on the west side transportation connection to transport of the airfield which only has two Electronic Access goods and customers. Finally, existing facilities will be developed for An electronic copy of this document passengers brought to the island from light industrial manufacturing, clean may be downloaded from the Federal the mainland support the island’s technology, corporate offices, and retail Register’s home page at: http:// tourism industry. along the southern boarder adjacent to www.archives.gov and the Government Considering the lack of access to POW State Route 531. Publishing Office’s database at: http:// Island by road or bridge, the IFA system www.access.gpo.gov/nara. is the only reliable and affordable mode The lease revenue associated with this of transportation for many users. The property will be used to fund airport Background IFA system is critical to users in a way projects and operating expenses. The The FHWA’s Buy America regulation, that not all Federal-aid-supported ferry FAA concurs that the parcels are no 23 CFR 635.410, requires a domestic systems are: It is the only available route longer needed for aeronautical manufacturing process for any steel or for owner-occupied vehicles to access purposes. The proposed use of this iron products (including protective the island. Although POW Island may property is compatible with other coatings) that are permanently also be accessed by more expensive air airport operations in accordance with incorporated in a Federal-aid travel or much slower cargo barges, the FAA’s Policy and Procedures construction project. The regulation also IFA system provides a reliable, middle Concerning the Use of Airport Revenue, provides for a waiver of the Buy alternative that is essential to many of published in Federal Register on America requirements when the its users (including low-income users February 16, 1999. application would be inconsistent with who cannot afford alternative modes). It the public interest or when satisfactory also provides transportation security on

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days when weather prevents travel by Reintjes GmbH in Germany. Considering demonstrating that alternative designs air. the age and hours of use of the existing were infeasible; The IFA is a public, non-profit reduction gears, the IFA maintains that • information documenting efforts to corporation organized under Alaska’s there is urgent need for the replacement maximize domestic content even if full Municipal Port Authority Act. The IFA parts to ensure the continued safe compliance was not possible, including is governed by a Board of Directors who transportation of its users. The IFA also efforts to have foreign manufacturers are appointed by the member maintains the replacement is urgent due incorporate domestic steel; and communities. Although the IFA is to the importance of the IFA system to • information describing the effects of separate from the State of Alaska, its the communities it serves in terms of denying the request, including the operations are dependent on subsidies access and connectivity. The service life infeasibility of completing the from the State government. The IFA of the replacement reduction gears acquisitions without Federal funding. reports that it runs approximately 75 to would be 13 to 15 years. For the reduction gears on both 80 percent of its operational costs out of The IFA also maintains that the vessels, IFA determined that only the incoming revenue from fares; subsidies existing pitch control units in the M/V original equipment manufacturer, from the State cover the remainder. The Prince of Wales are obsolete and must Reintjes GmbH, could produce IFA maintains that current fiscal be replaced. It maintains that there are replacement parts to synchronize with problems in Alaska have put those no satisfactory pitch control units made its existing system and ensure subsidies at risk and make it highly domestically meeting FHWA’s Buy continued safe operation. Due to unlikely that IFA or Alaska will be able America requirement that will ensure: existing supply contracts and warranty to cover significant cost overruns on the (i) Synchronization with its existing requirements for its parts, Reintjes ferry refurbishment project. propulsion system; and (ii) continued GmbH was unable to offer an option to Need for refurbishment of IFA ferries: safe operation of the ferry. The IFA also produce the reduction gears using The IFA owns two ferries, the M/V maintains that timely replacement of United States steel. Stikine and the M/V Prince of Wales. this part is necessary to ensure the For the pitch control units on the M/ The M/V Prince of Wales was built in continued safe transportation of its V Prince of Wales, IFA reported the 2002 and the M/V Stikine was built in users and due to the importance of the following: It identified a manufacturer 2005. The IFA needs to refurbish both IFA system to the communities it serves in Denmark that could potentially ferries to keep them in service and allow in terms of access and connectivity. The produce the parts using United States them to continue operating safely. The service life of the replacement pitch steel. However, considering the revised IFA reports that the anticipated service control units would be 15 to 20 years. cost of raw materials and the life for these vessels, with proper Waiver Request and Supporting transportation costs for sending the maintenance and refurbishment, may be Information: The IFA originally materials from the United States to up to 50 years. Thus, IFA anticipates submitted a Buy America waiver request Denmark, among other factors, this that the ferries may have a remaining to FHWA for the reduction gear option increased the cost estimate for service life of 25 years to 35 years if they replacement parts and pitch control the pitch control units by approximately are maintained and refurbished as units in September 2018. Prior to $750,000 compared to pitch control required. During preliminary submitting its waiver request, IFA units produced with foreign steel engineering, the IFA confirmed that sought but failed to identify domestic (including both parts and installation). most parts needed for the refurbishment manufacturers for these products. This doubled the total cost estimate for will comply with FHWA’s Buy America Consistent with Executive Order 13788, the parts. The IFA also identified a requirements. The IFA identified only after receiving the request, FHWA manufacturer in Sweden that could two parts needed for the refurbishment requested that IFA seek to maximize the produce an alternate propulsion system project that could not satisfy FHWA’s use of goods, products, and materials for the M/V Prince of Wales using Buy America requirements: (i) produced in the U.S. on the project. In mostly Unites States content, but this Reduction gear replacement parts for response to this request and several option would increase the project cost both ferries; and (ii) pitch control units iterations of follow-up questions from by at least $1.5 million compared to for the M/V Prince of Wales. FHWA, IFA spent the ensuing 12 pitch control units produced with Based on estimates received from IFA, months seeking to identify domestic foreign steel (including both parts and the two parts requiring waivers manufacturers for the parts that it had installation). This more than tripled the constitute approximately 30 percent of not identified in its original search or, total cost estimate for refurbishing the the total estimated project cost of if full compliance was not possible, pitch control units. Moreover, the approximately $3 million. The IFA has foreign manufacturers that could manufacturer could not guarantee that confirmed that both the reduction gear maximize use of domestic content by the alternate propulsion system would replacement parts and the pitch control using greater quantities of U.S. steel. properly synchronize with all other units can be installed domestically in These search activities continued existing parts on the M/V Prince of the shipyard in Ketchikan, Alaska. between September 2018 and September Wales. The IFA determined that these The existing reduction gears on both 2019. Although IFA did not identify alternatives would be cost prohibitive: If vessels have exceeded their compliant products, IFA provided required to purchase one of these recommended service life and must be information to FHWA supporting its options, IFA would not be able to replaced. The IFA maintains that there waiver request, including: refurbish the vessel. This would are no satisfactory replacement • Information describing the domestic effectively end the remaining service reduction gears made domestically content characteristics of the life of the M/V Prince of Wales, which meeting FHWA’s Buy America manufactured products needed, could otherwise continue in operation requirement that will ensure: (i) including the sources and assembly for decades if properly refurbished and Synchronization with its existing locations of those products; maintained. The IFA also maintains that propulsion (or powertrain) system; and • information supporting the the current fiscal situation in Alaska (ii) continued safe operation of the technical necessity of these specific makes the State government unwilling ferries. The existing reduction gears on products for the continued safe to increase the existing subsidy to both ferries were manufactured by operation of the ferries and absorb significant cost overruns relative

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to IFA’s estimate for pitch control units link provided to the waiver page noted regulations for highway projects in produced with foreign steel. above. Utah, pursuant to 23 U.S.C. 327. Actions Public Comments on Waiver Request: Authority: 23 U.S.C. 313; Pub. L. 110–161, taken by UDOT on FHWA’s behalf In accordance with the Consolidated 23 CFR 635.410 pursuant to 23 U.S.C. 327 constitute Appropriations Act of 2016 (Pub. L. Federal agency actions for purposes of 114–113) and the Continuing Nicole R. Nason, Federal law. Notice is hereby given that Appropriations Act of 2017 (Pub. L. Administrator, Federal Highway UDOT has taken final agency actions 114–223), FHWA published a notice of Administration. subject to 23 U.S.C. 139(l)(1) by issuing intent to issue a waiver on its website, [FR Doc. 2020–07145 Filed 4–3–20; 8:45 am] licenses, permits, and approvals for the https://www.fhwa.dot.gov/construction/ BILLING CODE 4910–22–P I–15 Milepost 11 Interchange project in contracts/waivers.cfm?id=155, on the State of Utah. February 19, 2020. The FHWA received The project proposes to construct a DEPARTMENT OF TRANSPORTATION six comments in response to the new interchange at Main Street, widening Main Street from two lanes to publication. Four comments supported Federal Highway Administration the waiver, one comment was generally five lanes between Buena Vista opposed to the waiver, and one Notice of Final Federal Agency Actions Boulevard and Telegraph Street, and comment was nonresponsive. The on Proposed Highway in Utah improvements to the Green Spring comment FHWA considered non- Drive/Telegraph Street intersection. The responsive appeared to request FHWA AGENCY: Federal Highway purpose of the project is to maintain the to publish notice of its waiver finding in Administration (FHWA), Department of operations and safety of I–15 between the Federal Register, which FHWA does Transportation, Utah Department of Exit 10 and Exit 13; and enhance the through this notice. The comment Transportation (UDOT). mobility and safety of the transportation opposing the waiver did not offer any ACTION: Notice of limitations on claims system in Washington City’s primary information on the availability of for judicial review of actions by UDOT business district. These improvements compliant products, nor did it suggest and other federal agencies. were identified in the EIS prepared for the project by UDOT as Alternative 4. specific, additional actions that IFA SUMMARY: The FHWA, on behalf of could take to maximize its use of goods, The project is included in UDOT’s UDOT, is issuing this notice to adopted 2020–2025 State Transportation products, and materials produced in the announce actions taken by UDOT that United States. Thus, IFA has not Improvement Plan (STIP) as project are final Federal agency actions. The number 14560 and is scheduled for final received any new information final agency actions relate to a proposed indicating that the subject parts can be design and right-of-way acquisition in highway project, improvements to fiscal year 2022. The project is also produced by domestic manufacturers. Interstate 15 (I–15), at milepost (MP) 11 included in Phase 1 (project number 36) Finding and Request for Comments in Washington City, Washington of the Dixie Metropolitan Planning County, State of Utah. Those actions Organization’s 2019–2050 Regional Based on all the information available grant licenses, permits and/or approvals Transportation Plan approved in to the Agency, FHWA concludes that for the project. The UDOT’s Record of October 2019. there are no domestic manufacturers of Decision (ROD) provides details on the The actions by UDOT, and the laws the reduction gear replacement parts Selected Alternative for the proposed under which such actions were taken, and pitch control units needed for improvements. are described in the EIS approved on refurbishment of the M/V Stikine and September 13, 2019, and the ROD M/V Prince of Wales by IFA. This DATES: By this notice, FHWA, on behalf of UDOT, is advising the public of final (Record of Decision for I–15 Milepost finding is only for the procurement of Interchange; Washington City, non-domestic iron and steel agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial Washington County, Utah, Project No. components for refurbishment of two F–I15–1(166)11)) approved on ferry vessels, specifically including (i) review of the Federal agency actions on the highway project will be barred September 13, 2019, and other two sets of reduction gear replacement documents in the UDOT project records. parts, one for the M/V Stikine ferry and unless the claim is filed on or before September 3, 2020. If the Federal law The EIS and ROD are available for the other for the M/V Prince of Wales review by contacting UDOT at the ferry; and (ii) one set of pitch control that authorizes judicial review of a claim provides a time period of less address provided above. In addition, units for the M/V Prince of Wales ferry. these documents can be viewed and The IFA and its contractors and than 150 days for filing such claim, then that shorter time period still applies. downloaded from the project website at subcontractors involved in the www.mp11.org. This notice applies to FOR FURTHER INFORMATION CONTACT: procurement of the reduction gear the EIS, the ROD, the NHPA Section 106 replacement parts and pitch control Elisa Albury, Environmental Program review, the Endangered Species Act units are reminded of the need to Manager, UDOT Environmental determination, the noise review and comply with the Cargo Preference Act in Services, P.O. Box 143600, Salt Lake noise abatement determination, and all 46 CFR part 38, if applicable. City, UT 84114; (801)–834–5284; email: other UDOT and federal agency In accordance with the provisions of [email protected]. UDOT’s normal decisions and other actions with respect Section 117 of the SAFETEA–LU business hours are 8 a.m. to 5 p.m. to the project as of the issuance date of Technical Corrections Act of 2008 (Pub. (Mountain Time Zone), Monday through this notice and all laws under which L. 110–244, 122 Stat. 1572), FHWA is Friday, except State and Federal such actions were taken, including but providing this notice as its finding that holidays. not limited to the following laws a waiver of Buy America requirements SUPPLEMENTARY INFORMATION: Effective (including their implementing is appropriate. The FHWA invites January 17, 2017, FHWA assigned to regulations): public comment on this finding for an UDOT certain responsibilities of FHWA 1. General: National Environmental additional 5 days following the effective for environmental review, consultation, Policy Act [42 U.S.C. 4321–4351]; date of the finding. Comments may be and other actions required by applicable Federal-Aid Highway Act [23 U.S.C. 109 submitted to FHWA’s website via the Federal environmental laws and and 23 U.S.C. 128]; MAP–21, the

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Moving Ahead for Progress in the 21st with Indian Tribal Governments; E.O. • Mail: Docket Operations; U.S. Century Act [Pub. L. 112–141]. 11514 Protection and Enhancement of Department of Transportation, 1200 2. Air: Clean Air Act [42 U.S.C. 7401– Environmental Quality; E.O. 13112 New Jersey Avenue SE, West Building 7671(q)]. Invasive Species. Ground Floor, Room W12–140, 3. Land: Section 4(f) of the Washington, DC 20590–0001. (Catalog of Federal Domestic Assistance • Department of Transportation Act of Program Number 20.205, Highway Planning Hand Delivery: West Building 1966 [49 U.S.C. 303]; Landscaping and and Construction. The regulations Ground Floor, Room W12–140, 1200 Scenic Enhancement (Wildflowers) [23 implementing Executive Order 12372 New Jersey Avenue SE, Washington, U.S.C. 319]. regarding intergovernmental consultation on DC, between 9 a.m. and 5 p.m., ET, 4. Wildlife: Endangered Species Act Federal programs and activities apply to this Monday through Friday, except Federal [16 U.S.C. 1531–1544 and Section program.) Holidays. • 1536], Fish and Wildlife Coordination Authority: 23 U.S.C. 139(l)(1). Fax: (202) 493–2251. Act [16 U.S.C. 661–667(d)]; Migratory To avoid duplication, please use only Bird Treaty Act [16 U.S.C. 703–712]; Ivan Marrero, one of these four methods. See the The Bald and Golden Eagle Protection Division Administrator, Federal Highway ‘‘Public Participation’’ portion of the Act [16 U.S.C. 668]. Administration, Salt Lake City, Utah. SUPPLEMENTARY INFORMATION section for 5. Historic and Cultural Resources: [FR Doc. 2020–07127 Filed 4–3–20; 8:45 am] instructions on submitting comments. Section 106 of the National Historic BILLING CODE 4910–RY–P FOR FURTHER INFORMATION CONTACT: Ms. Preservation Act of 1966, as amended Christine A. Hydock, Chief, Medical [16 U.S.C. 470(f) et seq.]; Archeological Programs Division, 202–366–4001, Resources Protection Act of 1977 [16 DEPARTMENT OF TRANSPORTATION [email protected], FMCSA, U.S.C. 470(aa)–470(ll)]; Archeological Department of Transportation, 1200 Federal Motor Carrier Safety and Historic Preservation Act [16 U.S.C. New Jersey Avenue SE, Room W64–224, Administration 469–469(c)]; Native American Grave Washington, DC 20590–0001. Office Protection and Repatriation Act [Docket No. FMCSA–2015–0320; FMCSA– hours are from 8:30 a.m. to 5 p.m., ET, (NAGPRA) [25 U.S.C. 3001–3013]. 2017–0254] Monday through Friday, except Federal 6. Social and Economic: Civil Rights holidays. If you have questions Act of 1964 [42 U.S.C. 2000(d)– Qualification of Drivers; Exemption regarding viewing or submitting 2000(d)(1)]; American Indian Religious Applications; Epilepsy and Seizure material to the docket, contact Docket Freedom Act [42 U.S.C. 1996]; Farmland Disorders Operations, (202) 366–9826. Protection Policy Act (FPPA) [7 U.S.C. AGENCY: Federal Motor Carrier Safety SUPPLEMENTARY INFORMATION: 4201–4209]. Administration (FMCSA), DOT. 7. Wetlands and Water Resources: I. Public Participation Clean Water Act (Section 404, Section ACTION: Notice of renewal of 401, Section 319) [33 U.S.C. 1251– exemptions; request for comments. A. Submitting Comments If you submit a comment, please 1377]; Coastal Barrier Resources Act [16 SUMMARY: FMCSA announces its U.S.C. 3501–3510]; Coastal Zone decision to renew exemptions for four include the docket number for this Management Act [16 U.S.C. 1451–1465]; individuals from the requirement in the notice (Docket No. FMCSA–2015–0320; Land and Water Conservation Fund Federal Motor Carrier Safety FMCSA–2017–0254), indicate the (LWCF) [16 U.S.C. 4601–4604]; Safe Regulations (FMCSRs) that interstate specific section of this document to Drinking Water Act (SDWA) [42 U.S.C. commercial motor vehicle (CMV) which each comment applies, and 300(f)–300(j)(6)]; Rivers and Harbors Act drivers have ‘‘no established medical provide a reason for each suggestion or of 1899 [33 U.S.C. 401–406]; Wild and history or clinical diagnosis of epilepsy recommendation. You may submit your Scenic Rivers Act [16 U.S.C. 1271– or any other condition which is likely comments and material online or by fax, 1287]; Emergency Wetlands Resources to cause loss of consciousness or any mail, or hand delivery, but please use Act [16 U.S.C. 3921, 3931]; TEA–21 loss of ability to control a CMV.’’ The only one of these means. FMCSA Wetlands Mitigation [23 U.S.C. exemptions enable these individuals recommends that you include your 103(b)(6)(M, 133(b)(11)]; Flood Disaster who have had one or more seizures and name and a mailing address, an email Protection Act [42 U.S.C. 4001–4128]. are taking anti-seizure medication to address, or a phone number in the body 8. Hazardous Materials: continue to operate CMVs in interstate of your document so that FMCSA can Comprehensive Environmental commerce. contact you if there are questions Response, Compensation, and Liability regarding your submission. DATES: Act [42 U.S.C. 9601–9675]; Superfund The exemptions were applicable To submit your comment online, go Amendments and Reauthorization Act on March 22, 2020. The exemptions to: http://www.regulations.gov/docket? of 1986; Resource Conservation and expire on March 22, 2022. Comments D=FMCSA-2015-0320 or http:// Recovery Act [42 U.S.C. 6901–6992(k)]. must be received on or before May 6, www.regulations.gov/docket?D=FMCSA- 9. Noise: Federal-Aid Highway Act of 2020. 2017-0254. Click on the ‘‘Comment 1970, Public Law 91–605 [84 Stat. ADDRESSES: You may submit comments Now!’’ button and type your comment 1713]; [23 U.S.C. 109(h) & (i)]. identified by the Federal Docket into the text box on the following 10. Executive Orders: E.O. 11990 Management System (FDMS) Docket No. screen. Choose whether you are Protection of Wetlands; E.O. 11988 FMCSA–2015–0320 or FMCSA–2017– submitting your comment as an Floodplain Management; E.O. 12898, 0254 using any of the following individual or on behalf of a third party Federal Actions to Address methods: and then submit. Environmental Justice in Minority • Federal eRulemaking Portal: Go to If you submit your comments by mail Populations and Low-Income http://www.regulations.gov/docket? or hand delivery, submit them in an Populations; E.O. 11593 Protection and D=FMCSA-2015-0320 or http:// unbound format, no larger than 81⁄2 by Enhancement of Cultural Resources; www.regulations.gov/docket?D=FMCSA- 11 inches, suitable for copying and E.O. 13287 Preserve America; E.O. 2017-0254. Follow the online electronic filing. If you submit 13175 Consultation and Coordination instructions for submitting comments. comments by mail and would like to

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know that they reached the facility, assist medical examiners (MEs) in 31315(b), the following four individuals please enclose a stamped, self-addressed determining whether drivers with have satisfied the renewal conditions for postcard or envelope. certain medical conditions are qualified obtaining an exemption from the FMCSA will consider all comments to operate a CMV in interstate epilepsy and seizure disorders and material received during the commerce. prohibition in the FMCSRs for interstate comment period. The four individuals listed in this CMV drivers: notice have requested renewal of their B. Viewing Documents and Comments exemptions from the epilepsy and Daniel Halstead (NV) To view comments, as well as any seizure disorders prohibition in Matthew Heinen (MN) documents mentioned in this notice as § 391.41(b)(8), in accordance with Derick Pendergrass (NC) being available in the docket, go to FMCSA procedures. Accordingly, http://www.regulations.gov/ FMCSA has evaluated these Paul Vitous (WA) docket?D=2015-0320 or http:// applications for renewal on their merits The drivers were included in docket www.regulations.gov/docket?D=FMCSA- and decided to extend each exemption numbers FMCSA–2015–0320 and 2017-0254 and choose the document to for a renewable 2-year period. FMCSA–2017–0254. Their exemptions review. If you do not have access to the III. Request for Comments are applicable as of March 22, 2020, and internet, you may view the docket will expire on March 22, 2022. online by visiting Docket Operations in Interested parties or organizations Room W12–140 on the ground floor of possessing information that would V. Conditions and Requirements the DOT West Building, 1200 New otherwise show that any, or all, of these Jersey Avenue SE, Washington, DC drivers are not currently achieving the The exemptions are extended subject 20590, between 9 a.m. and 5 p.m., ET, statutory level of safety should to the following conditions: (1) Each Monday through Friday, except Federal immediately notify FMCSA. The driver must remain seizure-free and holidays. Agency will evaluate any adverse maintain a stable treatment during the evidence submitted and, if safety is 2-year exemption period; (2) each driver C. Privacy Act being compromised or if continuation of must submit annual reports from their In accordance with 5 U.S.C. 553(c), the exemption would not be consistent treating physicians attesting to the DOT solicits comments from the public with the goals and objectives of 49 stability of treatment and that the driver to better inform its rulemaking process. U.S.C. 31136(e) and 31315(b), FMCSA has remained seizure-free; (3) each DOT posts these comments, without will take immediate steps to revoke the driver must undergo an annual medical edit, including any personal information exemption of a driver. examination by a certified ME, as the commenter provides, to IV. Basis for Renewing Exemptions defined by § 390.5; and (4) each driver www.regulations.gov, as described in must provide a copy of the annual the system of records notice (DOT/ALL– In accordance with 49 U.S.C. 31136(e) medical certification to the employer for 14 FDMS), which can be reviewed at and 31315(b), each of the four retention in the driver’s qualification www.transportation.gov/privacy. applicants has satisfied the renewal file, or keep a copy of his/her driver’s conditions for obtaining an exemption II. Background qualification file if he/she is self- from the epilepsy and seizure disorders employed. The driver must also have a Under 49 U.S.C. 31136(e) and prohibition. The four drivers in this copy of the exemption when driving, for 31315(b), FMCSA may grant an notice remain in good standing with the presentation to a duly authorized exemption from the FMCSRs for no Agency, have maintained their medical Federal, State, or local enforcement longer than a 5-year period if it finds monitoring and have not exhibited any official. The exemption will be such exemption would likely achieve a medical issues that would compromise rescinded if: (1) The person fails to level of safety that is equivalent to, or their ability to safely operate a CMV comply with the terms and conditions greater than, the level that would be during the previous 2-year exemption achieved absent such exemption. The period. In addition, for Commercial of the exemption; (2) the exemption has statute also allows the Agency to renew Driver’s License (CDL) holders, the resulted in a lower level of safety than exemptions at the end of the 5-year Commercial Driver’s License was maintained before it was granted; or period. FMCSA grants medical Information System and the Motor (3) continuation of the exemption would exemptions from the FMCSRs for a 2- Carrier Management Information System not be consistent with the goals and year period to align with the maximum are searched for crash and violation objectives of 49 U.S.C. 31136(e) and duration of a driver’s medical data. For non-CDL holders, the Agency 31315(b). certification. reviews the driving records from the VI. Preemption The physical qualification standard State Driver’s Licensing Agency. These for drivers regarding epilepsy found in factors provide an adequate basis for During the period the exemption is in 49 CFR 391.41(b)(8) states that a person predicting each driver’s ability to effect, no State shall enforce any law or is physically qualified to drive a CMV continue to safely operate a CMV in regulation that conflicts with this if that person has no established interstate commerce. Therefore, FMCSA exemption with respect to a person medical history or clinical diagnosis of concludes that extending the exemption operating under the exemption. epilepsy or any other condition which for each renewal applicant for a period is likely to cause the loss of of 2 years is likely to achieve a level of VII. Conclusion consciousness or any loss of ability to safety equal to that existing without the Based on its evaluation of the four control a CMV. exemption. exemption applications, FMCSA renews As of March 22, 2020, and in In addition to the regulations, FMCSA the exemptions of the aforementioned 1 accordance with 49 U.S.C. 31136(e) and has published advisory criteria to drivers from the epilepsy and seizure disorders prohibition in § 391.41(b)(8). 1 These criteria may be found in APPENDIX A TO and 5, which is available on the internet at https:// PART 391—MEDICAL ADVISORY CRITERIA, www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ In accordance with 49 U.S.C. 31136(e) section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, CFR-2015-title49-vol5-part391-appA.pdf. and 31315(b), each exemption will be

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valid for 2 years unless revoked earlier of the DOT West Building, 1200 New As of February 24, 2020, and in by FMCSA. Jersey Avenue SE, Washington, DC accordance with 49 U.S.C. 31136(e) and 20590, between 9 a.m. and 5 p.m., ET, 31315(b), Yoel Perez (FL) has satisfied Larry W. Minor, Monday through Friday, except Federal the renewal conditions for obtaining an Associate Administrator for Policy. holidays. exemption from the hearing requirement [FR Doc. 2020–07116 Filed 4–3–20; 8:45 am] B. Privacy Act in the FMCSRs for interstate CMV BILLING CODE 4910–EX–P drivers. (85 FR 6999) In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public This driver was included in docket DEPARTMENT OF TRANSPORTATION to better inform its rulemaking process. number FMCSA–2015–0327. The DOT posts these comments, without exemption is applicable as of February Federal Motor Carrier Safety edit, including any personal information 24, 2020, and will expire on February Administration the commenter provides, to 24, 2022. [Docket No. FMCSA–2015–0327; FMCSA– www.regulations.gov, as described in As of February 19, 2020, and in 2016–0003; FMCSA–2017–0057] the system of records notice (DOT/ALL– accordance with 49 U.S.C. 31136(e) and 14 FDMS), which can be reviewed at 31315(b), the following 13 individuals Qualification of Drivers; Exemption www.transportation.gov/privacy. Applications; Hearing have satisfied the renewal conditions for II. Background obtaining an exemption from the AGENCY: Federal Motor Carrier Safety On February 6, 2020, FMCSA hearing requirement in the FMCSRs for Administration (FMCSA), DOT. published a notice announcing its interstate CMV drivers (85 FR 6999): ACTION: Notice of final disposition. decision to renew exemptions for 14 Wyatt Baldwin (NV) SUMMARY: FMCSA announces its individuals from the hearing standard in Marion Bennett, Jr. (MD) 49 CFR 391.41(b)(11) to operate a CMV decision to renew exemptions for 14 Richard Davis (OH) individuals from the hearing in interstate commerce and requested requirement in the Federal Motor comments from the public (85 FR 6999). Adam Hayes (CA) Carrier Safety Regulations (FMCSRs) for The public comment period ended on Michael Lidster (IL) March 9, 2020, and no comments were interstate commercial motor vehicle Adrian Lopez (TX) (CMV) drivers. The exemptions enable received. these hard of hearing and deaf FMCSA has evaluated the eligibility Michael Quinonez (NM) individuals to continue to operate CMVs of these applicants and determined that Khon Saysanam (TX) in interstate commerce. renewing these exemptions would achieve a level of safety equivalent to, Jeffrey Schulkers (KY) DATES: Each group of renewed or greater than, the level that would be Jason Thomas (TX) exemptions were applicable on the achieved by complying with Roderick Thomas (GA) dates stated in the discussions below § 391.41(b)(11). and will expire on the dates provided The physical qualification standard Joshua Tinley (AZ) below. for drivers regarding hearing found in Kerri Wright (OK) FOR FURTHER INFORMATION CONTACT: Ms. § 391.41(b)(11) states that a person is The drivers were included in docket Christine A. Hydock, Chief, Medical physically qualified to drive a CMV if Programs Division, 202–366–4001, that person first perceives a forced number FMCSA–2016–0003 or FMCSA– [email protected], FMCSA, whispered voice in the better ear at not 2017–0057. Their exemptions are Department of Transportation, 1200 less than 5 feet with or without the use applicable as of February 19, 2020, and New Jersey Avenue SE, Room W64–224, of a hearing aid or, if tested by use of will expire on February 19, 2022. Washington, DC 20590–0001. Office an audiometric device, does not have an In accordance with 49 U.S.C. hours are from 8:30 a.m. to 5 p.m., ET, average hearing loss in the better ear 31315(b), each exemption will be valid Monday through Friday, except Federal greater than 40 decibels at 500 Hz, 1,000 for 2 years from the effective date unless holidays. If you have questions Hz, and 2,000 Hz with or without a revoked earlier by FMCSA. The regarding viewing or submitting hearing aid when the audiometric exemption will be revoked if the material to the docket, contact Docket device is calibrated to American following occurs: (1) The person fails to Operations, (202) 366–9826. National Standard (formerly ASA comply with the terms and conditions SUPPLEMENTARY INFORMATION: Standard) Z24.5—1951. of the exemption; (2) the exemption has This standard was adopted in 1970 resulted in a lower level of safety than I. Public Participation and was revised in 1971 to allow drivers was maintained prior to being granted; A. Viewing Documents and Comments to be qualified under this standard while wearing a hearing aid, 35 FR or (3) continuation of the exemption To view comments, as well as any 6458, 6463 (April 22, 1970) and 36 FR would not be consistent with the goals documents mentioned in this notice as 12857 (July 3, 1971). and objectives of 49 U.S.C. 31136(e) and being available in the docket, go to 31315(b). http://www.regulations.gov/docket? III. Discussion of Comments Larry W. Minor, D=FMCSA-2015-0327 or http:// FMCSA received no comments in this www.regulations.gov/docket?D=FMCSA- proceeding. Associate Administrator for Policy. 2016-0003 or http:// [FR Doc. 2020–07118 Filed 4–3–20; 8:45 am] IV. Conclusion www.regulations.gov/docket?D=FMCSA- BILLING CODE 4910–EX–P 2017-0057 and choose the document to Based upon its evaluation of the 14 review. If you do not have access to the renewal exemption applications, internet, you may view the docket FMCSA announces its decision to online by visiting the Docket Operations exempt the following drivers from the in Room W12–140 on the ground floor hearing requirement in § 391.41 (b)(11).

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DEPARTMENT OF TRANSPORTATION 20590, between 9 a.m. and 5 p.m., ET, drivers received renewed exemptions in Monday through Friday, except Federal the month of February and are Federal Motor Carrier Safety holidays. discussed below. Administration As of February 14, 2020, and in B. Privacy Act [Docket No. FMCSA–2013–0107; FMCSA– accordance with 49 U.S.C. 31136(e) and 2013–0109; FMCSA–2017–0253] In accordance with 5 U.S.C. 553(c), 31315(b), the following two individuals DOT solicits comments from the public have satisfied the renewal conditions for Qualification of Drivers; Exemption to better inform its rulemaking process. obtaining an exemption from the Applications; Epilepsy and Seizure DOT posts these comments, without epilepsy and seizure disorders Disorders edit, including any personal information prohibition in the FMCSRs for interstate the commenter provides, to CMV drivers (85 FR 9928): John Johnson AGENCY: Federal Motor Carrier Safety www.regulations.gov, as described in (WI) and George Webb (MA). Administration (FMCSA), DOT. the system of records notice (DOT/ALL– The drivers were included in docket ACTION: Notice of final disposition. 14 FDMS), which can be reviewed at number FMCSA–2013–0107 and www.transportation.gov/privacy. FMCSA–2013–0109. Their exemptions SUMMARY: FMCSA announces its decision to renew exemptions for four II. Background are applicable as of February 14, 2020, individuals from the requirement in the and will expire on February 14, 2022. On February 20, 2020, FMCSA As of February 19, 2020, and in Federal Motor Carrier Safety published a notice announcing its accordance with 49 U.S.C. 31136(e) and Regulations (FMCSRs) that interstate decision to renew exemptions for four 31315(b), the following two individuals commercial motor vehicle (CMV) individuals from the epilepsy and have satisfied the renewal conditions for drivers have ‘‘no established medical seizure disorders prohibition in 49 CFR obtaining an exemption from the history or clinical diagnosis of epilepsy 391.41(b)(8) to operate a CMV in epilepsy and seizure disorders or any other condition which is likely interstate commerce and requested prohibition in the FMCSRs for interstate to cause loss of consciousness or any comments from the public (85 FR 9928). CMV drivers (85 FR 9928): Anthony loss of ability to control a CMV.’’ The The public comment period ended on Kornuszko (PA) and Jeffrey Mills (NC). exemptions enable these individuals March 23, 2020, and no comments were The drivers were included in docket who have had one or more seizures and received. number FMCSA–2017–0253. Their are taking anti-seizure medication to FMCSA has evaluated the eligibility exemptions are applicable as of of these applicants and determined that continue to operate CMVs in interstate February 19, 2020, and will expire on renewing these exemptions would commerce. February 19, 2022. DATES: Each group of renewed achieve a level of safety equivalent to, In accordance with 49 U.S.C. exemptions were applicable on the or greater than, the level that would be 31315(b), each exemption will be valid dates stated in the discussions below achieved by complying with for 2 years from the effective date unless and will expire on the dates provided § 391.41(b)(8). revoked earlier by FMCSA. The The physical qualification standard below. exemption will be revoked if the for drivers regarding epilepsy found in FOR FURTHER INFORMATION CONTACT following occurs: (1) The person fails to : Ms. § 391.41(b)(8) states that a person is Christine A. Hydock, Chief, Medical physically qualified to drive a CMV if comply with the terms and conditions Programs Division, (202) 366–4001, that person has no established medical of the exemption; (2) the exemption has [email protected], FMCSA, history or clinical diagnosis of epilepsy resulted in a lower level of safety than Department of Transportation, 1200 or any other condition which is likely was maintained prior to being granted; New Jersey Avenue SE, Room W64–224, to cause the loss of consciousness or any or (3) continuation of the exemption Washington, DC 20590–0001. Office loss of ability to control a CMV. would not be consistent with the goals hours are from 8:30 a.m. to 5 p.m., ET, In addition to the regulations, FMCSA and objectives of 49 U.S.C. 31136(e) and Monday through Friday, except Federal has published advisory criteria 1 to 31315(b). holidays. If you have questions assist medical examiners in determining Larry W. Minor, regarding viewing or submitting whether drivers with certain medical Associate Administrator for Policy. material to the docket, contact Docket conditions are qualified to operate a [FR Doc. 2020–07121 Filed 4–3–20; 8:45 am] Operations, (202) 366–9826. CMV in interstate commerce. SUPPLEMENTARY INFORMATION: BILLING CODE 4910–EX–P III. Discussion of Comments I. Public Participation FMCSA received no comments in this DEPARTMENT OF TRANSPORTATION A. Viewing Documents and Comments proceeding. To view comments, as well as any IV. Conclusion Federal Motor Carrier Safety Administration documents mentioned in this notice as Based on its evaluation of the four being available in the docket, go to renewal exemption applications and [Docket No. FMCSA–2012–0122; FMCSA– http://www.regulations.gov/docket? comments received, FMCSA announces 2012–0123; FMCSA–2012–0332; FMCSA– D=FMCSA-2013-0107 or http:// its decision to exempt the following 2013–0122; FMCSA–2013–0124; FMCSA– www.regulations.gov/docket?D=FMCSA- drivers from the epilepsy and seizure 2015–0327; FMCSA–2017–0057; FMCSA– 2013-0109 or http:// disorders prohibition in § 391.41(b)(8). 2017–0059] www.regulations.gov/docket?D=FMCSA- In accordance with 49 U.S.C. 31136(e) Qualification of Drivers; Exemption 2017-0253 and choose the document to and 31315(b), the following groups of review. If you do not have access to the Applications; Hearing internet, you may view the docket 1 These criteria may be found in APPENDIX A TO AGENCY: Federal Motor Carrier Safety online by visiting Docket Operations in PART 391—MEDICAL ADVISORY CRITERIA, Administration (FMCSA), DOT. Room W12–140 on the ground floor of section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5, which is available on the internet at https:// ACTION: Notice of renewal of the DOT West Building, 1200 New www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ exemptions; request for comments. Jersey Avenue SE, Washington, DC CFR-2015-title49-vol5-part391-appA.pdf.

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SUMMARY: FMCSA announces its 0332, FMCSA–2013–0122, FMCSA– C. Privacy Act decision to renew exemptions for 27 2013–0124, FMCSA–2015–0327, In accordance with 5 U.S.C. 553(c), individuals from the hearing FMCSA–2017–0057, or FMCSA–2017– DOT solicits comments from the public requirement in the Federal Motor 0059), indicate the specific section of to better inform its rulemaking process. Carrier Safety Regulations (FMCSRs) for this document to which each comment DOT posts these comments, without interstate commercial motor vehicle applies, and provide a reason for each edit, including any personal information (CMV) drivers. The exemptions enable suggestion or recommendation. You the commenter provides, to these hard of hearing and deaf may submit your comments and www.regulations.gov, as described in individuals to continue to operate CMVs material online or by fax, mail, or hand the system of records notice (DOT/ALL– in interstate commerce. delivery, but please use only one of 14 FDMS), which can be reviewed at DATES: Each group of renewed these means. FMCSA recommends that www.transportation.gov/privacy. exemptions were applicable on the you include your name and a mailing dates stated in the discussions below address, an email address, or a phone II. Background and will expire on the dates provided number in the body of your document Under 49 U.S.C. 31136(e) and below. Comments must be received on so that FMCSA can contact you if there 31315(b), FMCSA may grant an or before May 6, 2020. are questions regarding your exemption from the FMCSRs for no ADDRESSES: You may submit comments submission. longer than a 5-year period if it finds identified by the Federal Docket To submit your comment online, go to such exemption would likely achieve a Management System (FDMS) Docket No. http://www.regulations.gov, put the level of safety that is equivalent to, or FMCSA–2012–0122, FMCSA–2012– docket number, FMCSA–2012–0122, greater than, the level that would be 0123, FMCSA–2012–0332, FMCSA– FMCSA–2012–0123, FMCSA–2012– achieved absent such exemption. The 2013–0122, FMCSA–2013–0124, 0332, FMCSA–2013–0122, FMCSA– statute also allows the Agency to renew FMCSA–2015–0327, FMCSA–2017– 2013–0124, FMCSA–2015–0327, exemptions at the end of the 5-year 0057, or FMCSA–2017–0059 using any FMCSA–2017–0057, or FMCSA–2017– period. FMCSA grants medical of the following methods: 0059, in the keyword box, and click exemptions from the FMCSRs for a 2- • Federal eRulemaking Portal: Go to ‘‘Search.’’ When the new screen year period to align with the maximum http://www.regulations.gov. Follow the appears, click on the ‘‘Comment Now!’’ duration of a driver’s medical online instructions for submitting button and type your comment into the certification. comments. text box on the following screen. Choose The physical qualification standard • Mail: Docket Operations; U.S. whether you are submitting your for drivers regarding hearing found in Department of Transportation, 1200 comment as an individual or on behalf 49 CFR 391.41(b)(11) states that a New Jersey Avenue SE, West Building of a third party and then submit. person is physically qualified to drive a Ground Floor, Room W12–140, If you submit your comments by mail CMV if that person first perceives a Washington, DC 20590–0001. or hand delivery, submit them in an forced whispered voice in the better ear • at not less than 5 feet with or without Hand Delivery: West Building unbound format, no larger than 81⁄2 by Ground Floor, Room W12–140, 1200 11 inches, suitable for copying and the use of a hearing aid or, if tested by New Jersey Avenue SE, Washington, electronic filing. If you submit use of an audiometric device, does not DC, between 9 a.m. and 5 p.m., ET, comments by mail and would like to have an average hearing loss in the Monday through Friday, except Federal know that they reached the facility, better ear greater than 40 decibels at 500 Holidays. please enclose a stamped, self-addressed Hz, 1,000 Hz, and 2,000 Hz with or • Fax: (202) 493–2251. postcard or envelope. without a hearing aid when the To avoid duplication, please use only audiometric device is calibrated to one of these four methods. See the FMCSA will consider all comments American National Standard (formerly ‘‘Public Participation’’ portion of the and material received during the ASA Standard) Z24.5—1951. comment period. SUPPLEMENTARY INFORMATION section for This standard was adopted in 1970 instructions on submitting comments. B. Viewing Documents and Comments and was revised in 1971 to allow drivers FOR FURTHER INFORMATION CONTACT: Ms. to be qualified under this standard Christine A. Hydock, Chief, Medical To view comments, as well as any while wearing a hearing aid, 35 FR Programs Division, 202–366–4001, documents mentioned in this notice as 6458, 6463 (April 22, 1970) and 36 FR [email protected], FMCSA, being available in the docket, go to 12857 (July 3, 1971). Department of Transportation, 1200 http://www.regulations.gov. Insert the The 27 individuals listed in this New Jersey Avenue SE, Room W64–224, docket number, FMCSA–2012–0122, notice have requested renewal of their Washington, DC 20590–0001. Office FMCSA–2012–0123, FMCSA–2012– exemptions from the hearing standard hours are from 8:30 a.m. to 5 p.m., ET, 0332, FMCSA–2013–0122, FMCSA– in § 391.41(b)(11), in accordance with Monday through Friday, except Federal 2013–0124, FMCSA–2015–0327, FMCSA procedures. Accordingly, holidays. If you have questions FMCSA–2017–0057, or FMCSA–2017– FMCSA has evaluated these regarding viewing or submitting 0059, in the keyword box, and click applications for renewal on their merits material to the docket, contact Docket ‘‘Search.’’ Next, click the ‘‘Open Docket and decided to extend each exemption Operations, (202) 366–9826. Folder’’ button and choose the for a renewable 2-year period. document to review. If you do not have SUPPLEMENTARY INFORMATION: access to the internet, you may view the III. Request for Comments I. Public Participation docket online by visiting the Docket Interested parties or organizations Operations in Room W12–140 on the possessing information that would A. Submitting Comments ground floor of the DOT West Building, otherwise show that any, or all, of these If you submit a comment, please 1200 New Jersey Avenue SE, drivers are not currently achieving the include the docket number for this Washington, DC 20590, between 9 a.m. statutory level of safety should notice (Docket No. FMCSA–2012–0122, and 5 p.m., ET, Monday through Friday, immediately notify FMCSA. The FMCSA–2012–0123, FMCSA–2012– except Federal holidays. Agency will evaluate any adverse

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evidence submitted and, if safety is 31315(b), the following seven exemption will be rescinded if: (1) The being compromised or if continuation of individuals have satisfied the renewal person fails to comply with the terms the exemption would not be consistent conditions for obtaining an exemption and conditions of the exemption; (2) the with the goals and objectives of 49 from the hearing requirement in the exemption has resulted in a lower level U.S.C. 31136(e) and 31315(b), FMCSA FMCSRs for interstate CMV drivers: of safety than was maintained before it will take immediate steps to revoke the Andrew Alcozer (IL) was granted; or (3) continuation of the exemption of a driver. Roman Landa (CA) exemption would not be consistent with the goals and objectives of 49 U.S.C. IV. Basis for Renewing Exemptions Darren Nordquist (WI) Jacob Paullin (WI) 31136(e) and 31315(b). In accordance with 49 U.S.C. 31136(e) Ryan Pope (CA) VI. Preemption and 31315(b), each of the 27 applicants Ronald Rutter (CA) has satisfied the renewal conditions for Russell Smith, (OH) During the period the exemption is in effect, no State shall enforce any law or obtaining an exemption from the The drivers were included in docket regulation that conflicts with this hearing requirement. The 27 drivers in number FMCSA–2012–0122 and exemption with respect to a person this notice remain in good standing with FMCSA–2012–0123. Their exemptions operating under the exemption. the Agency. In addition, for Commercial are applicable as of April 21, 2020, and Driver’s License (CDL) holders, the will expire on April 21, 2022. VII. Conclusion Commercial Driver’s License As of April 23, 2020, and in Information System and the Motor Based upon its evaluation of the 27 accordance with 49 U.S.C. 31136(e) and exemption applications, FMCSA renews Carrier Management Information System 31315(b), the following two individuals are searched for crash and violation the exemptions of the aforementioned have satisfied the renewal conditions for drivers from the hearing requirement in data. For non-CDL holders, the Agency obtaining an exemption from the reviews the driving records from the § 391.41 (b)(11). In accordance with 49 hearing requirement in the FMCSRs for U.S.C. 31136(e) and 31315(b), each State Driver’s Licensing Agency. These interstate CMV drivers: factors provide an adequate basis for exemption will be valid for two years predicting each driver’s ability to Donald Lynch (AR) and Zachary Rietz unless revoked earlier by FMCSA. (TX) continue to safely operate a CMV in Larry W. Minor, interstate commerce. Therefore, FMCSA The drivers were included in docket Associate Administrator for Policy. concludes that extending the exemption number FMCSA–2012–0332. Their [FR Doc. 2020–07122 Filed 4–3–20; 8:45 am] for each of these drivers for a period of exemptions are applicable as of April 2 years is likely to achieve a level of 23, 2020, and will expire on April 23, BILLING CODE 4910–EX–P safety equal to that existing without the 2022. exemption. As of April 24, 2020, and in DEPARTMENT OF TRANSPORTATION In accordance with 49 U.S.C. 31136(e) accordance with 49 U.S.C. 31136(e) and and 31315(b), the following groups of 31315(b), the following three Federal Motor Carrier Safety drivers received renewed exemptions in individuals have satisfied the renewal Administration the month of April and are discussed conditions for obtaining an exemption below. from the hearing requirement in the [Docket No. FMCSA–2020–0005] As of April 2, 2020, and in accordance FMCSRs for interstate CMV drivers: Qualification of Drivers; Exemption with 49 U.S.C. 31136(e) and 31315(b), Kwinton Carpenter (OH) Applications; Vision the following 15 individuals have Quinton Murphy (WI) satisfied the renewal conditions for Andrey Shevchenko (MN) AGENCY: Federal Motor Carrier Safety obtaining an exemption from the The drivers were included in docket Administration (FMCSA), DOT. hearing requirement in the FMCSRs for number FMCSA–2013–0122 and ACTION: Notice of final disposition. interstate CMV drivers: FMCSA–2013–0124. Their exemptions Kathleen Abenchuchan (IA) SUMMARY: FMCSA announces its are applicable as of April 24, 2020, and decision to exempt eight individuals Roger Boge (IA) will expire on April 24, 2022. Johnny Brewer (OH) from the vision requirement in the Jada Hart (IA) V. Conditions and Requirements Federal Motor Carrier Safety Regulations (FMCSRs) to operate a Sean Hunt (TX) The exemptions are extended subject commercial motor vehicle (CMV) in Paul Klug (IA) to the following conditions: (1) Each interstate commerce. They are unable to Dayton Lawson, Jr. (MI) driver must report any crashes or meet the vision requirement in one eye Scott Miller (IA) accidents as defined in § 390.5; and (2) for various reasons. The exemptions Calvin Payne (MD) report all citations and convictions for enable these individuals to operate Kiley Peterson (IA) disqualifying offenses under 49 CFR 383 CMVs in interstate commerce without Samuel Sherman (MN) and 49 CFR 391 to FMCSA; and (3) each meeting the vision requirement in one Darren Talley (NC) driver prohibited from operating a eye. Thomas Warner, II (WA) motorcoach or bus with passengers in Allen Whitener (TX) interstate commerce. The driver must DATES: The exemptions were applicable Johnny Wu (DE) also have a copy of the exemption when on March 10, 2020. The exemptions The drivers were included in docket driving, for presentation to a duly expire on March 10, 2022. number FMCSA–2013–0124, FMCSA– authorized Federal, State, or local FOR FURTHER INFORMATION CONTACT: Ms. 2015–0327, FMCSA–2017–0057, and enforcement official. In addition, the Christine A. Hydock, Chief, Medical FMCSA–2017–0059. Their exemptions exemption does not exempt the Programs Division, (202) 366–4001, are applicable as of April 2, 2020, and individual from meeting the applicable [email protected], FMCSA, will expire on April 2, 2022. CDL testing requirements. Each Department of Transportation, 1200 As of April 21, 2020, and in exemption will be valid for 2 years New Jersey Avenue SE, Room W64–224, accordance with 49 U.S.C. 31136(e) and unless rescinded earlier by FMCSA. The Washington, DC 20590–0001. Office

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hours are from 8:30 a.m. to 5 p.m., ET, the colors of traffic signals and devices applicants demonstrated their ability to Monday through Friday, except Federal showing red, green, and amber. operate a CMV with their limited vision holidays. If you have questions in intrastate commerce, even though III. Discussion of Comments regarding viewing or submitting their vision disqualified them from material to the docket, contact Docket FMCSA received one comment in this driving in interstate commerce. We Operations, (202) 366–9826. proceeding. Victoria Johnson submitted believe that the applicants’ intrastate SUPPLEMENTARY INFORMATION: a comment stating that the MN driving experience and history provide Department of Public Safety has no an adequate basis for predicting their I. Public Participation objections to the decision to grant an ability to drive safely in interstate A. Viewing Documents and Comments exemption to Charles E. Klock. commerce. Intrastate driving, like IV. Basis for Exemption Determination interstate operations, involves To view comments, as well as any substantial driving on highways on the documents mentioned in this notice as Under 49 U.S.C. 31136(e) and interstate system and on other roads being available in the docket, go to 31315(b), FMCSA may grant an built to interstate standards. Moreover, http://www.regulations.gov/docket? exemption from the FMCSRs for no driving in congested urban areas D=FMCSA-2020-0005 and choose the longer than a 5-year period if it finds exposes the driver to more pedestrian document to review. If you do not have such exemption would likely achieve a and vehicular traffic than exists on access to the internet, you may view the level of safety that is equivalent to, or interstate highways. Faster reaction to docket online by visiting the Docket greater than, the level that would be traffic and traffic signals is generally Operations in Room W12–140 on the achieved absent such exemption. The required because distances between ground floor of the DOT West Building, statute also allows the Agency to renew them are more compact. These 1200 New Jersey Avenue SE, exemptions at the end of the 5-year conditions tax visual capacity and Washington, DC 20590, between 9 a.m. period. FMCSA grants medical driver response just as intensely as and 5 p.m., ET, Monday through Friday, exemptions from the FMCSRs for a 2- interstate driving conditions. except Federal holidays. year period to align with the maximum The applicants in this notice have duration of a driver’s medical B. Privacy Act driven CMVs with their limited vision certification. in careers ranging for 5 to 62 years. In In accordance with 5 U.S.C. 553(c), The Agency’s decision regarding these the past 3 years, one driver was DOT solicits comments from the public exemption applications is based on involved in a crash, and no drivers were to better inform its rulemaking process. medical reports about the applicants’ convicted of moving violations in DOT posts these comments, without vision, as well as their driving records CMVs. All the applicants achieved a edit, including any personal information and experience driving with the vision record of safety while driving with their the commenter provides, to deficiency. The qualifications, vision impairment that demonstrates the www.regulations.gov, as described in experience, and medical condition of likelihood that they have adapted their the system of records notice (DOT/ALL– each applicant were stated and driving skills to accommodate their 14 FDMS), which can be reviewed at discussed in detail in the February 6, condition. As the applicants’ ample www.dot.gov/privacy. 2020, Federal Register notice (85 FR driving histories with their vision 6997) and will not be repeated here. II. Background deficiencies are good predictors of FMCSA recognizes that some drivers future performance, FMCSA concludes On February 6, 2020, FMCSA do not meet the vision requirement but their ability to drive safely can be published a notice announcing receipt have adapted their driving to projected into the future. of applications from eight individuals accommodate their limitation and Consequently, FMCSA finds that in requesting an exemption from vision demonstrated their ability to drive each case exempting these applicants requirement in 49 CFR 391.41(b)(10) safely. The eight exemption applicants from the vision requirement in and requested comments from the listed in this notice are in this category. § 391.41(b)(10) is likely to achieve a public (85 FR 6997). The public They are unable to meet the vision level of safety equal to that existing comment period ended on March 9, requirement in one eye for various without the exemption. 2020, and one comment was received. reasons, including amblyopia, central FMCSA has evaluated the eligibility serous retinopathy, complete loss of V. Conditions and Requirements of these applicants and determined that vision, macular scarring, retinal The terms and conditions of the granting the exemptions to these scarring, and scarring. In most cases, exemption are provided to the individuals would achieve a level of their eye conditions did not develop applicants in the exemption document safety equivalent to, or greater than, the recently. Four of the applicants were and includes the following: (1) Each level that would be achieved by either born with their vision driver must be physically examined complying with § 391.41(b)(10). impairments or have had them since every year (a) by an ophthalmologist or The physical qualification standard childhood. The four individuals that optometrist who attests that the vision for drivers regarding vision found in developed their vision conditions as in the better eye continues to meet the § 391.41(b)(10) states that a person is adults have had them for a range of 4 standard in § 391.41(b)(10) and (b) by a physically qualified to drive a CMV if to 22 years. Although each applicant has certified medical examiner (ME) who that person has distant visual acuity of one eye that does not meet the vision attests that the individual is otherwise at least 20/40 (Snellen) in each eye requirement in § 391.41(b)(10), each has physically qualified under § 391.41; (2) without corrective lenses or visual at least 20/40 corrected vision in the each driver must provide a copy of the acuity separately corrected to 20/40 other eye, and, in a doctor’s opinion, ophthalmologist’s or optometrist’s (Snellen) or better with corrective has sufficient vision to perform all the report to the ME at the time of the lenses, distant binocular acuity of a least tasks necessary to operate a CMV. annual medical examination; and (3) 20/40 (Snellen) in both eyes with or Doctors’ opinions are supported by each driver must provide a copy of the without corrective lenses, field of vision the applicants’ possession of a valid annual medical certification to the of at least 70° in the horizontal meridian license to operate a CMV. By meeting employer for retention in the driver’s in each eye, and the ability to recognize State licensing requirements, the qualification file, or keep a copy in his/

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her driver’s qualification file if he/she is Federal Motor Carrier Safety notice (Docket No. FMCSA–2012–0294, self-employed. The driver must also Regulations (FMCSRs) that interstate Docket No. FMCSA–2013–0442, Docket have a copy of the exemption when commercial motor vehicle (CMV) No. FMCSA–2015–0321, Docket No. driving, for presentation to a duly drivers have ‘‘no established medical FMCSA–2017–0254, Docket No. authorized Federal, State, or local history or clinical diagnosis of epilepsy FMCSA–2018–0050), indicate the enforcement official. or any other condition which is likely specific section of this document to to cause loss of consciousness or any which each comment applies, and VI. Preemption loss of ability to control a CMV.’’ The provide a reason for each suggestion or During the period the exemption is in exemptions enable these individuals recommendation. You may submit your effect, no State shall enforce any law or who have had one or more seizures and comments and material online or by fax, regulation that conflicts with this are taking anti-seizure medication to mail, or hand delivery, but please use exemption with respect to a person continue to operate CMVs in interstate only one of these means. FMCSA operating under the exemption. commerce. recommends that you include your name and a mailing address, an email VII. Conclusion DATES: Each group of renewed exemptions were applicable on the address, or a phone number in the body Based upon its evaluation of the eight dates stated in the discussions below of your document so that FMCSA can exemption applications, FMCSA and will expire on the dates stated in contact you if there are questions exempts the following drivers from the the discussions below. Comments must regarding your submission. vision requirement, § 391.41(b)(10), be received on or before May 6, 2020. To submit your comment online, go to subject to the requirements cited above: ADDRESSES: You may submit comments http://www.regulations.gov, put the Lance D. Duffie identified by the Federal Docket docket number, FMCSA–2012–0294, Lester Johnson Management System (FDMS) Docket No. FMCSA–2013–0442, FMCSA–2015– James M. Kivett FMCSA–2012–0294, Docket No. 0321, FMCSA–2017–0254, or FMCSA– Charles E. Klock FMCSA–2013–0442, Docket No. 2018–0050, in the keyword box, and Clayton D. Lowther FMCSA–2015–0321, Docket No. click ‘‘Search.’’ When the new screen Jared G. New FMCSA–2017–0254, Docket No. appears, click on the ‘‘Comment Now!’’ David Perea FMCSA–2018–0050 using any of the button and type your comment into the Juan Santay-Ajanel following methods: text box on the following screen. Choose In accordance with 49 U.S.C. 31136(e) • Federal eRulemaking Portal: Go to whether you are submitting your and 31315(b), each exemption will be http://www.regulations.gov. Follow the comment as an individual or on behalf valid for 2 years from the effective date online instructions for submitting of a third party and then submit. If you submit your comments by mail unless revoked earlier by FMCSA. The comments. • or hand delivery, submit them in an exemption will be revoked if the Mail: Docket Operations; U.S. unbound format, no larger than 81⁄2 by following occurs: (1) The person fails to Department of Transportation, 1200 11 inches, suitable for copying and comply with the terms and conditions New Jersey Avenue SE, West Building electronic filing. If you submit of the exemption; (2) the exemption has Ground Floor, Room W12–140, comments by mail and would like to resulted in a lower level of safety than Washington, DC 20590–0001. • know that they reached the facility, was maintained prior to being granted; Hand Delivery: West Building please enclose a stamped, self-addressed or (3) continuation of the exemption Ground Floor, Room W12–140, 1200 postcard or envelope. would not be consistent with the goals New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., ET, FMCSA will consider all comments and objectives of 49 U.S.C. 31136(e) and and material received during the 31315(b). Monday through Friday, except Federal Holidays. comment period. • Larry W. Minor, Fax: (202) 493–2251. B. Viewing Documents and Comments Associate Administrator for Policy. To avoid duplication, please use only one of these four methods. See the To view comments, as well as any [FR Doc. 2020–07120 Filed 4–3–20; 8:45 am] documents mentioned in this notice as BILLING CODE 4910–EX–P ‘‘Public Participation’’ portion of the SUPPLEMENTARY INFORMATION section for being available in the docket, go to instructions on submitting comments. http://www.regulations.gov. Insert the DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Ms. docket number, FMCSA–2012–0294, Christine A. Hydock, Chief, Medical FMCSA–2013–0442, FMCSA–2015– Federal Motor Carrier Safety Programs Division, 202–366–4001, 0321, FMCSA–2017–0254, or FMCSA– Administration [email protected], FMCSA, 2018–0050, in the keyword box, and click ‘‘Search.’’ Next, click the ‘‘Open [Docket No. FMCSA–2012–0294; FMCSA– Department of Transportation, 1200 New Jersey Avenue SE, Room W64–224, Docket Folder’’ button and choose the 2013–0442; FMCSA–2015–0321; FMCSA– document to review. If you do not have 2017–0254; FMCSA–2018–0050] Washington, DC 20590–0001. Office hours are from 8:30 a.m. to 5 p.m., ET, access to the internet, you may view the Qualification of Drivers; Exemption Monday through Friday, except Federal docket online by visiting Docket Applications; Epilepsy and Seizure holidays. If you have questions Operations in Room W12–140 on the Disorders regarding viewing or submitting ground floor of the DOT West Building, material to the docket, contact Docket 1200 New Jersey Avenue SE, AGENCY: Federal Motor Carrier Safety Operations, (202) 366–9826. Washington, DC 20590, between 9 a.m. Administration (FMCSA), DOT. and 5 p.m., ET, Monday through Friday, SUPPLEMENTARY INFORMATION: ACTION: Notice of renewal of except Federal holidays. I. Public Participation exemptions; request for comments. C. Privacy Act SUMMARY: FMCSA announces its A. Submitting Comments In accordance with 5 U.S.C. 553(c), decision to renew exemptions for 17 If you submit a comment, please DOT solicits comments from the public individuals from the requirement in the include the docket number for this to better inform its rulemaking process.

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DOT posts these comments, without U.S.C. 31136(e) and 31315(b), FMCSA John C. Wolfe (PA) edit, including any personal information will take immediate steps to revoke the Dennis R. Zayic (MN) the commenter provides, to exemption of a driver. The drivers were included in docket www.regulations.gov, as described in IV. Basis for Renewing Exemptions number FMCSA–2015–0321. Their the system of records notice (DOT/ALL– exemptions are applicable as of April 14 FDMS), which can be reviewed at In accordance with 49 U.S.C. 31136(e) 11, 2020 and will expire on April 11, www.transportation.gov/privacy. and 31315(b), each of the 17 applicants 2022. has satisfied the renewal conditions for II. Background As of April 23, 2020, and in obtaining an exemption from the accordance with 49 U.S.C. 31136(e) and Under 49 U.S.C. 31136(e) and epilepsy and seizure disorders 31315(b), the following two individuals 31315(b), FMCSA may grant an prohibition. The 17 drivers in this have satisfied the renewal conditions for exemption from the FMCSRs for no notice remain in good standing with the obtaining an exemption from the longer than a 5-year period if it finds Agency, have maintained their medical epilepsy and seizure disorders such exemption would likely achieve a monitoring and have not exhibited any prohibition in the FMCSRs for interstate level of safety that is equivalent to, or medical issues that would compromise CMV drivers: Randy Pinto (PA) and greater than, the level that would be their ability to safely operate a CMV James Spece (PA). achieved absent such exemption. The during the previous 2-year exemption The drivers were included in docket statute also allows the Agency to renew period. In addition, for Commercial number FMCSA–2013–0442. Their exemptions at the end of the 5-year Driver’s License (CDL) holders, the exemptions are applicable as of April period. FMCSA grants medical Commercial Driver’s License 23, 2020, and will expire on April 23, exemptions from the FMCSRs for a 2- Information System and the Motor 2022. year period to align with the maximum Carrier Management Information System As of April 26, 2020, and in duration of a driver’s medical are searched for crash and violation accordance with 49 U.S.C. 31136(e) and certification. data. For non-CDL holders, the Agency 31315(b), the following four individuals The physical qualification standard reviews the driving records from the have satisfied the renewal conditions for for drivers regarding epilepsy found in State Driver’s Licensing Agency. These obtaining an exemption from the 49 CFR 391.41(b)(8) states that a person factors provide an adequate basis for epilepsy and seizure disorders is physically qualified to drive a CMV predicting each driver’s ability to prohibition in the FMCSRs for interstate if that person has no established continue to safely operate a CMV in CMV drivers: medical history or clinical diagnosis of interstate commerce. Therefore, FMCSA Brian Johnson (MN) epilepsy or any other condition which concludes that extending the exemption is likely to cause the loss of Gerald Klein Jr. (ID) for each renewal applicant for a period Shane W. Martinek (OK) consciousness or any loss of ability to of 2 years is likely to achieve a level of William P. Swick (MI) control a CMV. safety equal to that existing without the The drivers were included in docket In addition to the regulations, FMCSA exemption. has published advisory criteria 1 to In accordance with 49 U.S.C. 31136(e) number FMCSA–2018–0050. Their assist medical examiners (MEs) in and 31315(b), the following groups of exemptions are applicable as of April determining whether drivers with drivers received renewed exemptions in 26, 2020, and will expire on April 26, certain medical conditions are qualified the month of April and are discussed 2022. to operate a CMV in interstate commerce. below. V. Conditions and Requirements The 17 individuals listed in this As of April 8, 2020, and in accordance The exemptions are extended subject notice have requested renewal of their with 49 U.S.C. 31136(e) and 31315(b), to the following conditions: (1) Each exemptions from the epilepsy and the following two individuals have driver must remain seizure-free and seizure disorders prohibition in satisfied the renewal conditions for maintain a stable treatment during the § 391.41(b)(8), in accordance with obtaining an exemption from the 2-year exemption period; (2) each driver FMCSA procedures. Accordingly, epilepsy and seizure disorders must submit annual reports from their FMCSA has evaluated these prohibition in the FMCSRs for interstate treating physicians attesting to the applications for renewal on their merits CMV drivers: Aaron Harms (MO) and stability of treatment and that the driver and decided to extend each exemption Michael Ranalli (PA). for a renewable 2-year period. The drivers were included in docket has remained seizure-free; (3) each driver must undergo an annual medical III. Request for Comments numbers FMCSA–2012–0294 and FMCSA–2017–0254. Their exemptions examination by a certified ME, as Interested parties or organizations are applicable as of April 8, 2020, and defined by § 390.5; and (4) each driver possessing information that would will expire on April 8, 2022. must provide a copy of the annual otherwise show that any, or all, of these As of April 11, 2020, and in medical certification to the employer for drivers are not currently achieving the accordance with 49 U.S.C. 31136(e) and retention in the driver’s qualification statutory level of safety should 31315(b), the following nine individuals file, or keep a copy of his/her driver’s immediately notify FMCSA. The have satisfied the renewal conditions for qualification file if he/she is self- Agency will evaluate any adverse obtaining an exemption from the employed. The driver must also have a evidence submitted and, if safety is epilepsy and seizure disorders copy of the exemption when driving, for being compromised or if continuation of prohibition in the FMCSRs for interstate presentation to a duly authorized the exemption would not be consistent CMV drivers: Federal, State, or local enforcement with the goals and objectives of 49 Scott Gessner (PA) official. The exemption will be Jerry L. Henderson (IN) rescinded if: (1) The person fails to 1 These criteria may be found in APPENDIX A TO Preston R. Kanagy (TN) comply with the terms and conditions PART 391—MEDICAL ADVISORY CRITERIA, Steven Shirley (UT) of the exemption; (2) the exemption has section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, resulted in a lower level of safety than and 5, which is available on the internet at https:// Matthew J. Staley (CO) www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ Mohammad Warrad (IA) was maintained before it was granted; or CFR-2015-title49-vol5-part391-appA.pdf. Richard J. Wenner (MN) (3) continuation of the exemption would

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not be consistent with the goals and • Hand Delivery: West Building B. Viewing Documents and Comments objectives of 49 U.S.C. 31136(e) and Ground Floor, Room W12–140, 1200 To view comments, as well as any 31315(b). New Jersey Avenue SE, Washington, documents mentioned in this notice as DC, between 9 a.m. and 5 p.m., ET, VI. Preemption being available in the docket, go to Monday through Friday, except Federal http://www.regulations.gov/docket? During the period the exemption is in Holidays. D=FMCSA-2020-0006 and choose the effect, no State shall enforce any law or • Fax: (202) 493–2251. document to review. If you do not have regulation that conflicts with this To avoid duplication, please use only access to the internet, you may view the exemption with respect to a person one of these four methods. See the docket online by visiting the Docket operating under the exemption. ‘‘Public Participation’’ portion of the Operations in Room W12–140 on the VII. Conclusion SUPPLEMENTARY INFORMATION section for ground floor of the DOT West Building, instructions on submitting comments. 1200 New Jersey Avenue SE, Based on its evaluation of the 17 Washington, DC 20590, between 9 a.m. exemption applications, FMCSA renews FOR FURTHER INFORMATION CONTACT: Ms. and 5 p.m., ET, Monday through Friday, the exemptions of the aforementioned Christine A. Hydock, Chief, Medical except Federal holidays. drivers from the epilepsy and seizure Programs Division, (202) 366–4001, disorders prohibition in § 391.41(b)(8). [email protected], FMCSA, C. Privacy Act Department of Transportation, 1200 In accordance with 49 U.S.C. 31136(e) In accordance with 5 U.S.C. 553(c), and 31315(b), each exemption will be New Jersey Avenue SE, Room W64–224, Washington, DC 20590–0001. Office DOT solicits comments from the public valid for 2 years unless revoked earlier to better inform its rulemaking process. by FMCSA. hours are 8:30 a.m. to 5 p.m., ET, Monday through Friday, except Federal DOT posts these comments, without Larry W. Minor, holidays. If you have questions edit, including any personal information the commenter provides, to Associate Administrator for Policy. regarding viewing or submitting material to the docket, contact Docket www.regulations.gov, as described in [FR Doc. 2020–07117 Filed 4–3–20; 8:45 am] the system of records notice (DOT/ALL– Operations, (202) 366–9826. BILLING CODE 4910–EX–P 14 FDMS), which can be reviewed at SUPPLEMENTARY INFORMATION: www.transportation.gov/privacy. DEPARTMENT OF TRANSPORTATION I. Public Participation II. Background A. Submitting Comments Federal Motor Carrier Safety Under 49 U.S.C. 31136(e) and Administration If you submit a comment, please 31315(b), FMCSA may grant an include the docket number for this exemption from the FMCSRs for no [Docket No. FMCSA–2020–0006] notice (Docket No. FMCSA–2020–0006), longer than a 5-year period if it finds indicate the specific section of this such exemption would likely achieve a Qualification of Drivers; Exemption level of safety that is equivalent to, or document to which each comment Applications; Vision greater than, the level that would be applies, and provide a reason for each achieved absent such exemption. The AGENCY: Federal Motor Carrier Safety suggestion or recommendation. You statute also allows the Agency to renew Administration (FMCSA), DOT. may submit your comments and exemptions at the end of the 5-year ACTION: material online or by fax, mail, or hand Notice of applications for period. FMCSA grants medical delivery, but please use only one of exemption; request for comments. exemptions from the FMCSRs for a 2- these means. FMCSA recommends that year period to align with the maximum SUMMARY: FMCSA announces receipt of you include your name and a mailing duration of a driver’s medical applications from eight individuals for address, an email address, or a phone certification. an exemption from the vision number in the body of your document requirement in the Federal Motor The eight individuals listed in this so that FMCSA can contact you if there notice have requested an exemption Carrier Safety Regulations (FMCSRs) to are questions regarding your operate a commercial motor vehicle from the vision requirement in 49 CFR submission. To submit your comment 391.41(b)(10). Accordingly, the Agency (CMV) in interstate commerce. If online, go to http:// granted, the exemptions will enable will evaluate the qualifications of each www.regulations.gov/docket?D=FMCSA- applicant to determine whether granting these individuals to operate CMVs in 2020-0006. Click on the ‘‘Comment an exemption will achieve the required interstate commerce without meeting Now!’’ button and type your comment level of safety mandated by statute. the vision requirement in one eye. into the text box on the following The physical qualification standard DATES: Comments must be received on screen. Choose whether you are for drivers regarding vision found in or before May 6, 2020. submitting your comment as an § 391.41(b)(10) states that a person is ADDRESSES: You may submit comments individual or on behalf of a third party physically qualified to drive a CMV if identified by the Federal Docket and then submit. that person has distant visual acuity of Management System (FDMS) Docket No. If you submit your comments by mail at least 20/40 (Snellen) in each eye FMCSA–2020–0006 using any of the or hand delivery, submit them in an without corrective lenses or visual following methods: unbound format, no larger than 81⁄2 by acuity separately corrected to 20/40 • Federal eRulemaking Portal: Go to 11 inches, suitable for copying and (Snellen) or better with corrective http://www.regulations.gov/docket? electronic filing. If you submit lenses, distant binocular acuity of at D=FMCSA-2020-0006. Follow the online comments by mail and would like to least 20/40 (Snellen) in both eyes with instructions for submitting comments. know that they reached the facility, or without corrective lenses, field of • Mail: Docket Operations; U.S. please enclose a stamped, self-addressed vision of at least 70° in the horizontal Department of Transportation, 1200 postcard or envelope. Meridian in each eye, and the ability to New Jersey Avenue SE, West Building FMCSA will consider all comments recognize the colors of traffic signals Ground Floor, Room W12–140, and material received during the and devices showing standard red, Washington, DC 20590–0001. comment period. green, and amber.

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On July 16, 1992, the Agency first Publications in Statistics, April 1952). crashes and no convictions for moving published the criteria for the Vision Other studies demonstrated theories of violations in a CMV. Waiver Program, which listed the predicting crash proneness from crash Raymond C. King conditions and reporting standards that history coupled with other factors. CMV drivers approved for participation These factors—such as age, sex, Mr. King, 34, has had amblyopia in would need to meet (57 FR 31458). The geographic location, mileage driven and his left eye since childhood. The visual current Vision Exemption Program was conviction history—are used every day acuity in his right eye is 20/30, and in established in 1998, following the by insurance companies and motor his left eye, 20/50. Following an enactment of amendments to the vehicle bureaus to predict the examination in 2019, his statutes governing exemptions made by probability of an individual ophthalmologist stated, ‘‘Mr. King has § 4007 of the Transportation Equity Act experiencing future crashes (See Weber, sufficient vision to operate a for the 21st Century (TEA–21), Public Donald C., ‘‘Accident Rate Potential: An commercial vehicle.’’ Mr. King reported Law 105–178, 112 Stat. 107, 401 (June Application of Multiple Regression that he has driven straight trucks for 4 9, 1998). Vision exemptions are Analysis of a Poisson Process,’’ Journal years, accumulating 200,000 miles, and considered under the procedures of American Statistical Association, tractor-trailer combinations for 6 years, established in 49 CFR part 381 subpart June 1971). A 1964 California Driver accumulating 525,000 miles. He holds a C, on a case-by-case basis upon Record Study prepared by the California Class A CDL from Ohio. His driving application by CMV drivers who do not Department of Motor Vehicles record for the last 3 years shows no meet the vision standards of concluded that the best overall crash crashes and one conviction for speeding § 391.41(b)(10). predictor for both concurrent and in a CMV; he exceeded the speed limit To qualify for an exemption from the nonconcurrent events is the number of by 15 mph. vision requirement, FMCSA requires a single convictions. This study used 3 Robert G. Lanning person to present verifiable evidence consecutive years of data, comparing the that he/she has driven a commercial experiences of drivers in the first 2 years Mr. Lanning, 58, has had amblyopia vehicle safely in intrastate commerce with their experiences in the final year. in his left eye since birth. The visual with the vision deficiency for the past acuity in his right eye is 20/20, and in 3 years. Recent driving performance is III. Qualifications of Applicants his left eye, counting fingers. Following especially important in evaluating Terry M. Baldwin an examination in 2019, his optometrist future safety, according to several stated, ‘‘I certify that my patient, Robert research studies designed to correlate Mr. Baldwin, 55, has had retinal G. Lanning, has sufficient vision to past and future driving performance. dysplasia in his left eye since birth. The perform the driving tasks required to Results of these studies support the visual acuity in his right eye is 20/20, operate a commercial vehicle.’’ Mr. principle that the best predictor of and in his left eye, light perception Lanning reported that he has driven future performance by a driver is his/her only. Following an examination in 2019, straight trucks for 15 years, past record of crashes and traffic his optometrist stated, ‘‘Since Mr. accumulating 300,000 miles. He holds violations. Copies of the studies may be Baldwin has been living his entire life an operator’s license from Virginia. His found at https://www.regulations.gov/ with his left eye vision deficit, he has driving record for the last 3 years shows docket?D=FMCSA-1998-3637. obviously made compensatory no crashes and no convictions for FMCSA believes it can properly apply adaptations and has sufficient vision to moving violations in a CMV. the principle to monocular drivers, perform driving tasks required to because data from the Federal Highway operate a commercial vehicle.’’ Mr. Gary D. Larson Administration’s (FHWA) former waiver Baldwin reported that he has driven Mr. Larson, 25, has a macular scar in study program clearly demonstrated the straight trucks for 16 years, his right eye due to a traumatic incident driving performance of experienced accumulating 166,400 miles. He holds in childhood. The visual acuity in his monocular drivers in the program is an operator’s license from Pennsylvania. right eye is 20/150, and in his left eye, better than that of all CMV drivers His driving record for the last 3 years 20/20. Following an examination in collectively.1 The fact that experienced shows no crashes and no convictions for 2020, his optometrist stated, ‘‘In my monocular drivers demonstrated safe moving violations in a CMV. medical opinion, I believe Mr. Larson driving records in the waiver program has sufficient visual capabilities to Samuel L. Eakman, Jr. supports a conclusion that other perform the driving tasks required to monocular drivers, meeting the same Mr. Eakman, 51, has a prosthetic in operate a commercial vehicle.’’ Mr. qualifying conditions as those required his right eye due to a traumatic incident Larson reported that he has driven by the waiver program, are also likely to in childhood. The visual acuity in his straight trucks for 3 years, accumulating have adapted to their vision deficiency right eye is no light perception, and in 156,000 miles. He holds an operator’s and will continue to operate safely. his left eye, 20/20. Following an license from Nebraska. His driving The first major research correlating examination in 2019, his optometrist record for the last 3 years shows no past and future performance was done stated, ‘‘Considering Mr. Eakman has crashes and no convictions for moving in England by Greenwood and Yule in had a Commercial Drivers License since violations in a CMV. 1920. Subsequent studies, building on 2011 and has performed those tasks that model, concluded that crash rates without issue, I feel he has sufficient Larry Owen for the same individual exposed to vision to perform driving tasks and has Mr. Owen, 70, has had a retinal certain risks for two different time long ago recognized other ways of detachment in his right eye since 2014. periods vary only slightly (See Bates determining object spacing other than The visual acuity in his right eye is and Neyman, University of California actual binocular vision.’’ Mr. Eakman counting fingers, and in his left eye, 20/ reported that he has driven straight 20. Following an examination in 2020, 1 A thorough discussion of this issue may be trucks for 23 years, accumulating his optometrist stated, ‘‘In my medical found in a FHWA final rule published in the 575,000 miles. He holds a Class AM opinion, Mr. Owen has sufficient vision Federal Register on March 26, 1996 and available on the internet at https://www.govinfo.gov/content/ CDL from Pennsylvania. His driving to perform the driving tasks required to pkg/FR-1996-03-26/pdf/96-7226.pdf. record for the last 3 years shows no operate a commercial vehicle.’’ Mr.

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Owen reported that he has driven buses DEPARTMENT OF TRANSPORTATION Monday through Friday, except Federal for 14 years, accumulating 700,000 holidays. Federal Motor Carrier Safety miles. He holds an operator’s license B. Privacy Act from Texas. His driving record for the Administration last 3 years shows no crashes and no In accordance with 5 U.S.C. 553(c), convictions for moving violations in a [Docket No. FMCSA–2013–0107; FMCSA– DOT solicits comments from the public to better inform its rulemaking process. CMV. 2015–0119; FMCSA 2015–0320] DOT posts these comments, without John C. Perrone, Jr. Qualification of Drivers; Exemption edit, including any personal information Applications; Epilepsy and Seizure the commenter provides, to Mr. Perrone, 21, has had amblyopia in Disorders www.regulations.gov, as described in his right eye since childhood. The the system of records notice (DOT/ALL– AGENCY: visual acuity in his right eye is 20/150, Federal Motor Carrier Safety 14 FDMS), which can be reviewed at and in his left eye, 20/20. Following an Administration (FMCSA), DOT. www.transportation.gov/privacy. examination in 2019, his ACTION: Notice of final disposition. II. Background ophthalmologist stated, ‘‘Patient has SUMMARY: FMCSA announces its On January 27, 2020, FMCSA sufficient vision to perform the driving decision to renew exemptions for seven tasks required to operate a commercial published a notice announcing its individuals from the requirement in the decision to renew exemptions for seven vehicle.’’ Mr. Perrone reported that he Federal Motor Carrier Safety has driven straight trucks for 3 years, individuals from the epilepsy and Regulations (FMCSRs) that interstate seizure disorders prohibition in 49 CFR accumulating 9,750 miles. He holds an commercial motor vehicle (CMV) 391.41(b)(8) to operate a CMV in operator’s license from Pennsylvania. drivers have ‘‘no established medical interstate commerce and requested His driving record for the last 3 years history or clinical diagnosis of epilepsy comments from the public (85 FR 4760). shows no crashes and no convictions for or any other condition which is likely The public comment period ended on moving violations in a CMV. to cause loss of consciousness or any February 26, 2020, and one comment loss of ability to control a CMV.’’ The Ronald D. Wilson was received. exemptions enable these individuals FMCSA has evaluated the eligibility Mr. Wilson, 58, has had optic nerve who have had one or more seizures and of these applicants and determined that atrophy in his left eye since birth. The are taking anti-seizure medication to renewing these exemptions would visual acuity in his right eye is 20/20, continue to operate CMVs in interstate achieve a level of safety equivalent to, and in his left eye, light perception commerce. or greater than, the level that would be only. Following an examination in 2019, DATES: The exemptions were applicable achieved by complying with his optometrist stated, ‘‘As far as I can on January 21, 2020. The exemptions § 391.41(b)(8). The physical qualification standard conclude, Mr. Wilson is visually expire on January 21, 2022. for drivers regarding epilepsy found in competent to operate a commercial FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, Medical § 391.41(b)(8) states that a person is vehicle.’’ Mr. Wilson reported that he physically qualified to drive a CMV if Programs Division, (202) 366–4001, has driven straight trucks for 35 years, that person has no established medical [email protected], FMCSA, accumulating 1.4 million miles, and history or clinical diagnosis of epilepsy Department of Transportation, 1200 tractor-trailer combinations for 12 years, or any other condition which is likely New Jersey Avenue SE, Room W64–224, accumulating 240,000 miles. He holds a to cause the loss of consciousness or any Washington, DC 20590–0001. Office Class DA CDL from Kentucky. His loss of ability to control a CMV. driving record for the last 3 years shows hours are from 8:30 a.m. to 5 p.m., ET, In addition to the regulations, FMCSA no crashes and no convictions for Monday through Friday, except Federal has published advisory criteria 1 to holidays. If you have questions moving violations in a CMV. assist medical examiners in determining regarding viewing or submitting whether drivers with certain medical IV. Request for Comments material to the docket, contact Docket conditions are qualified to operate a Operations, (202) 366–9826. In accordance with 49 U.S.C. 31136(e) CMV in interstate commerce. SUPPLEMENTARY INFORMATION: and 31315(b), FMCSA requests public III. Discussion of Comments I. Public Participation comment from all interested persons on FMCSA received one comment in this the exemption petitions described in A. Viewing Documents and Comments proceeding. This comment supported this notice. We will consider all granting these exemptions. comments and material received before To view comments, as well as any the close of business on the closing date documents mentioned in this notice as IV. Conclusion being available in the docket, go to indicated under the DATES section of the Based on its evaluation of the seven http://www.regulations.gov/docket? notice. renewal exemption applications and D=FMCSA-2013-0107 or http:// comment received, FMCSA announces Larry W. Minor, www.regulations.gov/docket?D=FMCSA- its decision to exempt the following Associate Administrator for Policy. 2015-0119 or http:// drivers from the epilepsy and seizure [FR Doc. 2020–07119 Filed 4–3–20; 8:45 am] www.regulations.gov/docket?D=FMCSA- disorders prohibition in § 391.41(b)(8). 2015-0320 and choose the document to BILLING CODE 4910–EX–P As of January 21, 2022, and in review. If you do not have access to the accordance with 49 U.S.C. 31136(e) and internet, you may view the docket online by visiting Docket Operations in 1 These criteria may be found in APPENDIX A TO Room W12–140 on the ground floor of PART 391—MEDICAL ADVISORY CRITERIA, the DOT West Building, 1200 New section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5, which is available on the internet at https:// Jersey Avenue SE, Washington, DC www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ 20590, between 9 a.m. and 5 p.m., ET, CFR-2015-title49-vol5-part391-appA.pdf.

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31315(b), the following seven of an information collection titled, Exchange Transactions.’’ Upon finding individuals have satisfied the renewal ‘‘Retail Foreign Exchange Transactions,’’ the appropriate information collection, conditions for obtaining an exemption which is currently an approved click on the related ‘‘ICR Reference from the epilepsy and seizure disorders collection. The OCC also is giving notice Number.’’ On the next screen, select prohibition in the FMCSRs for interstate that it has sent the collection to OMB for ‘‘View Supporting Statement and Other CMV drivers (85 FR 4760): review. Documents’’ and then click on the link Thomas DeAngelo (IL) DATES: Comments must be submitted on to any comment listed at the bottom of Nathan Dermer (AK) or before May 6, 2020. the screen. • Toriano Mitchell (OH) ADDRESSES: Commenters are encouraged For assistance in navigating Tyler Schaefer (ME) to submit comments by email, if www.reginfo.gov, please contact the Stephen Stawinsky (PA) possible. You may submit comments by Regulatory Information Service Center Alvin Strite (PA) any of the following methods: at (202) 482–7340. Thomas Vivirito (PA) • Email: [email protected]. • Viewing Comments Personally: You The drivers were included in docket • Mail: Chief Counsel’s Office, may personally inspect comments at the numbers FMCSA–2013–0107; FMCSA– Attention: Comment Processing, 1557– OCC, 400 7th Street SW, Washington, 2015–0119; and FMCSA–2015–0320. 0250, Office of the Comptroller of the DC. For security reasons, the OCC Their exemptions are applicable as of Currency, 400 7th Street SW, Suite 3E– requires that visitors make an January 21, 2020, and will expire on 218, Washington, DC 20219. appointment to inspect comments. You • January 21, 2022. Hand Delivery/Courier: 400 7th may do so by calling (202) 649–6700 or, In accordance with 49 U.S.C. Street SW, Suite 3E–218, Washington, for persons who are deaf or hearing 31315(b), each exemption will be valid DC 20219. impaired, TTY, (202) 649–5597. Upon • for 2 years from the effective date unless Fax: (571) 465–4326. arrival, visitors will be required to revoked earlier by FMCSA. The Instructions: You must include present valid government-issued photo exemption will be revoked if the ‘‘OCC’’ as the agency name and ‘‘1557– identification and submit to security following occurs: (1) The person fails to 0250’’ in your comment. In general, the screening in order to inspect comments. comply with the terms and conditions OCC will publish comments on FOR FURTHER INFORMATION CONTACT: of the exemption; (2) the exemption has www.reginfo.gov without change, Shaquita Merritt, OCC Clearance resulted in a lower level of safety than including any business or personal Officer, (202) 649–5490 or, for persons was maintained prior to being granted; information provided, such as name and who are deaf or hearing impaired, TTY, or (3) continuation of the exemption address information, email addresses, or (202) 649–5597, Chief Counsel’s Office, would not be consistent with the goals phone numbers. Comments received, Office of the Comptroller of the and objectives of 49 U.S.C. 31136(e) and including attachments and other Currency, 400 7th Street SW, 31315(b). supporting materials, are part of the Washington, DC 20219. public record and subject to public SUPPLEMENTARY INFORMATION: Under the Larry W. Minor, disclosure. Do not include any PRA (44 U.S.C. 3501 et seq.), Federal Associate Administrator for Policy. information in your comment or agencies must obtain approval from supporting materials that you consider [FR Doc. 2020–07123 Filed 4–3–20; 8:45 am] OMB for each collection of information confidential or inappropriate for public BILLING CODE 4910–EX–P that they conduct or sponsor. disclosure. Written comments and ‘‘Collection of information’’ is defined in 44 U.S.C. 3502(3) and 5 CFR DEPARTMENT OF THE TREASURY recommendations for the proposed information collection should be sent 1320.3(c) to include agency requests or requirements that members of the public Office of the Comptroller of the within 30 days of publication of this submit reports, keep records, or provide Currency notice to www.reginfo.gov/public/do/ PRAMain. Find this particular information to a third party. The OCC Agency Information Collection information collection by selecting asks that OMB extend its approval of the Activities: Information Collection ‘‘Currently under 30-day Review—Open collection in this notice. Renewal; Submission for OMB Review; for Public Comments’’ or by using the Title: Retail Foreign Exchange Retail Foreign Exchange Transactions search function. Transactions. You may review comments and other OMB Control No.: 1557–0250. AGENCY: Office of the Comptroller of the related materials that pertain to this Type of Review: Regular. Currency (OCC), Treasury. information collection 1 following the Frequency of Response: On occasion. ACTION: Notice and request for comment. close of the 30-day comment period for Affected Public: Businesses or other this notice by any of the following for-profit. SUMMARY: The OCC, as part of its methods: Estimated Number of Respondents: continuing effort to reduce paperwork • Viewing Comments Electronically: 15. and respondent burden, invites the Go to www.reginfo.gov. Click on the Total Annual Burden: 22,418 hours. general public and other Federal ‘‘Information Collection Review’’ tab. Description: agencies to take this opportunity to Underneath the ‘‘Currently under Background comment on the renewal of an Review’’ section heading, from the drop- information collection as required by down menu select ‘‘Department of The OCC’s retail forex rule (12 CFR the Paperwork Reduction Act of 1995 Treasury’’ and then click ‘‘submit.’’ This part 48) allows national banks and (PRA). An agency may not conduct or information collection can be located by Federal savings associations to offer or sponsor, and a respondent is not searching by OMB control number enter into retail foreign exchange required to respond to, an information ‘‘1557–0250’’ or ‘‘Retail Foreign transactions. In order to engage in these collection unless it displays a currently transactions, institutions must comply valid Office of Management and Budget 1 On January 10, 2020 the OCC published a 60- with various reporting, disclosure, and (OMB) control number. The OCC is day notice for this information collection, 85 FR recordkeeping requirements included in soliciting comment concerning renewal 1373. that rule.

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Reporting Requirements forex customer and send confirmation association engaging in retail forex statements following transactions. transactions keep full, complete, and The reporting requirements in 12 CFR Twelve CFR 48.13(c) prohibits a systematic records and to establish and 48.4 state that, prior to initiating a retail national bank or Federal savings implement internal rules, procedures, forex business, a national bank or association engaging in retail forex and controls. Section 48.7 also requires Federal savings association must transactions from knowingly handling that a national bank or Federal savings provide the OCC with prior notice and the account of any related person of association keep account, financial obtain a written supervisory no- another retail forex counterparty unless ledger, transaction, and daily records, as objection letter. In order to obtain a it receives proper written authorization, well as memorandum orders, post- supervisory no-objection letter, a promptly prepares a written record of execution allocation of bunched orders, national bank or Federal savings the order, and transmits to the records regarding its ratio of profitable association must have written policies, counterparty copies of all statements accounts, possible violations of law, procedures, and risk measurement and and written records. Twelve CFR records for noncash margin, and management systems and controls in 48.13(d) prohibits a related person of a monthly statements and confirmations. place to ensure that retail forex national bank or Federal savings Twelve CFR 48.9 requires policies and transactions are conducted in a safe and association engaging in retail forex procedures for haircuts for noncash sound manner. The national bank or transactions from having an account Federal savings association also must margin collected under the rule’s with another retail forex counterparty margin requirements and annual provide other information required by unless it receives proper written the OCC, such as documentation of evaluations and modifications of the authorization and copies of all haircuts. customer due diligence, new product statements and written records for such approvals, and haircuts applied to accounts are transmitted to the On January 10, 2020, the OCC issued noncash margins. counterparty. a notice for 60 days of comment Twelve CFR 48.15 requires a national concerning this collection, 85 FR 1373. Disclosure Requirements bank or Federal savings association to No comments were received. Comments Under 12 CFR 48.5, a national bank or provide a retail forex customer with 30 continue to be invited on: Federal savings association must days prior notice of any assignment of (a) Whether the collection of promptly provide the customer with a any position or transfer of any account information is necessary for the proper statement reflecting the financial result of the retail forex customer. It also performance of the functions of the of the transactions and the name of any requires a national bank or Federal OCC, including whether the information introducing broker to the account. The savings association to which retail forex has practical utility; institution must follow the customer’s accounts or positions are assigned or (b) The accuracy of the OCC’s specific instructions on how the transferred to provide the affected estimate of the burden of the offsetting transaction should be applied. customers with risk disclosure information collection; Twelve CFR 48.6 requires that a statements and forms of national bank or Federal savings acknowledgment and obtain the signed (c) Ways to enhance the quality, association furnish a retail forex acknowledgments within 60 days. utility, and clarity of the information to The customer dispute resolution customer with a written disclosure be collected; provisions in 12 CFR 48.16 require before opening an account through (d) Ways to minimize the burden of certain endorsements, which the customer will engage in retail the collection on respondents, including acknowledgments, and signatures. The forex transactions. It further requires a through the use of automated collection section also requires that a national national bank or Federal savings techniques or other forms of information bank or Federal savings association, association to secure an technology; and within 10 days after receipt of notice acknowledgment from the customer that from the retail forex customer that the (e) Estimates of capital or start-up the disclosure was received and customer intends to submit a claim to costs and costs of operation, understood. Finally, the section requires arbitration, provide the customer with a maintenance, and purchase of services the disclosure by a national bank or list of persons qualified in the dispute to provide information. Federal savings association of its resolution. profitable accounts ratio and its fees and Theodore J. Dowd, other charges. Policies and Procedures; Deputy Chief Counsel, Office of the Twelve CFR 48.10 requires a national Recordkeeping Comptroller of the Currency. bank or Federal savings association to Twelve CFR 48.7 and 48.13 require [FR Doc. 2020–07125 Filed 4–3–20; 8:45 am] issue monthly statements to each retail that a national bank or Federal savings BILLING CODE 4810–33–P

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Part II

Department of Health and Human Services

Centers for Medicare and Medicaid 42 CFR Parts 400, 405, 409, et al. Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency; Interim Final Rule

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DEPARTMENT OF HEALTH AND incentives to place cost considerations [email protected], for HUMAN SERVICES above patient safety. This IFC will issues related to telehealth services, and modify the calculation of the 2021 and communication technology-based Centers for Medicare & Medicaid 2022 Part C and D Star Ratings to services; frequency limits on subsequent Services address the expected disruption to data care services in inpatient and non- collection and measure scores posed by facility settings, critical care 42 CFR Parts 400, 405, 409, 410, 412, the COVID–19 pandemic and also to consultations, required ‘‘hands-on’’ 414, 415, 417, 418, 421, 422, 423, 425, avoid inadvertently creating incentives visits for ESRD monthly capitation 440, 482, and 510 to place cost considerations above payments; removal of restrictions on [CMS–1744–IFC] patient safety. This rule also amends the technology, and supervision of Medicaid home health regulations to interactive telecommunications RIN 0938–AU31 allow other licensed practitioners to technology; clinical laboratory fee order home health services, for the schedule; services furnished by opioid Medicare and Medicaid Programs; period of this PHE for the COVID–19 treatment programs; payment under Policy and Regulatory Revisions in pandemic in accordance with state Medicare Part B for teaching physician Response to the COVID–19 Public scope of practice laws. We are also services and resident moonlighting; Health Emergency modifying our under arrangements remote physiologic monitoring; AGENCY: Centers for Medicare & policy during the PHE for the COVID– physician supervision flexibility for Medicaid Services (CMS), HHS. 19 pandemic so that hospitals are outpatient hospital services; payment allowed broader flexibilities to furnish for office/outpatient evaluation and ACTION: Interim final rule with comment inpatient services, including routine management visits; counting of resident period. services outside the hospital. time at alternate locations; Ambulance SUMMARY: This interim final rule with DATES: Fee Schedule; rural health clinic comment period (IFC) gives individuals Effective date: These regulations are services; federally qualified health and entities that provide services to effective on March 31, 2020. center services; and inpatient hospital Medicare beneficiaries needed Applicability date: These regulations services furnished under arrangements flexibilities to respond effectively to the are applicable beginning on March 1, outside of the hospital. (Note this email serious public health threats posed by 2020. address has an underscore ‘‘_’’ between the spread of the 2019 Novel Comment date: To be assured ‘‘HAPG’’ and ‘‘COVID–19’’.) Coronavirus (COVID–19). Recognizing consideration, comments must be [email protected], for issues the urgency of this situation, and received at one of the addresses related to the Medicare inpatient understanding that some pre-existing provided below, no later than 5 p.m. on rehabilitation facility benefits. Medicare payment rules may inhibit June 1, 2020. NCDsPublicHealthEmergency@ innovative uses of technology and ADDRESSES: In commenting, please refer cms.hhs.gov, for issues related to capacity that might otherwise be to file code CMS–1744–IFC. Comments, national coverage determination and effective in the efforts to mitigate the including mass comment submissions, local coverage determination impact of the pandemic on Medicare must be submitted in one of the requirements. beneficiaries and the American public, following three ways (please choose [email protected], we are changing Medicare payment only one of the ways listed): for issues related to Medicare Parts C rules during the Public Health 1. Electronically. You may submit and D quality rating system. MedicaidHomeHealthRule@ Emergency (PHE) for the COVID–19 electronic comments on this regulation cms.hhs.gov, for issues related to pandemic so that physicians and other to http://www.regulations.gov. Follow Medicaid home health provider practitioners, home health and hospice the ‘‘Submit a comment’’ instructions. 2. By regular mail. You may mail flexibility. providers, inpatient rehabilitation Hillary Loeffler, (410) 786–0456, written comments to the following facilities, rural health clinics (RHCs), [email protected], or address ONLY: Centers for Medicare & and federally qualified health centers [email protected], for issues Medicaid Services, Department of (FQHCs) are allowed broad flexibilities related to the Medicare home health and Health and Human Services, Attention: to furnish services using remote hospice benefits. communications technology to avoid CMS–1744–IFC, P.O. Box 8016, Megan Hyde, (410) 786–3247, and exposure risks to health care providers, Baltimore, MD 21244–8016. Rebecca Cole, (410) 786–1589, for issues patients, and the community. We are Please allow sufficient time for mailed related to Innovation Center Models, also altering the applicable payment comments to be received before the and alternative payment model policies to provide specimen collection close of the comment period. treatment under the Quality Payment 3. By express or overnight mail. You fees for independent laboratories Program. collecting specimens from beneficiaries may send written comments to the Kim Spalding Bush, (410) 786–3232, who are homebound or inpatients (not following address ONLY: Centers for and Fiona Larbi, (410) 786–7224, for in a hospital) for COVID–19 testing. We Medicare & Medicaid Services, issues related to the Medicare Shared are also expanding, on an interim basis, Department of Health and Human Savings Program. the list of destinations for which Services, Attention: CMS–1744–IFC, Molly MacHarris, (410) 786–4461, for Medicare covers ambulance transports Mail Stop C4–26–05, 7500 Security issues related to the Merit-based under Medicare Part B. In addition, we Boulevard, Baltimore, MD 21244–1850. Incentive Payment System (MIPS). are making programmatic changes to the For information on viewing public Heather Holsey, (410) 786–0028, for Medicare Diabetes Prevention Program comments, see the beginning of the Comprehensive Care for Joint (MDPP) and the Comprehensive Care for SUPPLEMENTARY INFORMATION section. Replacement model. Joint Replacement (CJR) Model in light FOR FURTHER INFORMATION CONTACT: Amanda Rhee, (410) 786–3888, and of the PHE, and program-specific Jamie Hermansen, (410) 786–2064, for Elizabeth Matthews, (410) 786–5433, for requirements for the Quality Payment general information, contact one of the Medicare Diabetes Prevention Program Program to avoid inadvertently creating following: expanded model.

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Brittany LaCouture, (410) 786–0481, P. Special Requirements for Psychiatric trademark of the American Medical for Alternative Payment Model Hospitals (§ 482.61(d)) Association (AMA). Applicable Federal provisions of the Quality Payment Q. Innovation Center Models Acquisition Regulations (FAR) and Program. R. Remote Physiologic Monitoring Defense Federal Acquisition Regulations S. Telephone Evaluation and Management CAPT Scott Cooper, USPHS, (410) (E/M) Services (DFAR) apply. 786–9496, for issues related to special T. Physician Supervision Flexibility for I. Background requirements for psychiatric hospitals. Outpatient Hospitals—Outpatient SUPPLEMENTARY INFORMATION: Hospital Therapeutic Services Assigned The United States is responding to an Inspection of Public Comments: All to the Non-Surgical Extended Duration outbreak of respiratory disease caused comments received before the close of Therapeutic Services (NSEDTS) Level of by a novel (new) coronavirus that was the comment period are available for Supervision first detected in China and which has U. Application of Certain National now been detected in more than 190 viewing by the public, including any Coverage Determination and Local personally identifiable or confidential locations internationally, including in Coverage Determination Requirements all 50 States and the District of business information that is included in During the PHE for the COVID–19 a comment. We post all comments Pandemic Columbia. The virus has been named received before the close of the V. Change to Medicare Shared Savings ‘‘SARS–CoV–2’’ and the disease it comment period on the following Program Extreme and Uncontrollable causes has been named ‘‘coronavirus website as soon as possible after they Circumstances Policy disease 2019’’ (abbreviated ‘‘COVID– have been received: http:// W. Level Selection for Office/Outpatient E/ 19’’). M Visits When Furnished Via Medicare regulations.gov. Follow the search On January 30, 2020, the International Telehealth Health Regulations Emergency instructions on that website to view X. Counting of Resident Time During the public comments. Committee of the World Health PHE for the COVID–19 Pandemic Organization (WHO) declared the Table of Contents Y. Addressing the Impact of COVID–19 on Part C and Part D Quality Rating Systems outbreak a ‘‘Public Health Emergency of I. Background Z. Changes to Expand Workforce Capacity international concern’’ (PHEIC). On II. Provisions of the Interim Final Rule for Ordering Medicaid Home Health January 31, 2020, Health and Human A. Payment for Medicare Telehealth Services, Medical Equipment, Supplies Services Secretary, Alex M. Azar II, Services Under Section 1834(m) of the and Appliances and Physical Therapy, declared a PHE for the United States to Act Occupational Therapy or Speech aid the nation’s healthcare community B. Frequency Limitations on Subsequent Pathology and Audiology Services in responding to COVID–19 (hereafter Care Services in Inpatient and Nursing AA. Origin and Destination Requirements referred to as the PHE for the COVID– Under the Ambulance Fee Schedule Facility Settings, and Critical Care 19 pandemic). On March 11, 2020, the Consultations and Required ‘‘Hands-on’’ BB. Merit-Based Incentive Payment System Visits for ESRD Monthly Capitation Updates WHO publicly characterized COVID–19 Payments CC. Inpatient Hospital Services Furnished as a pandemic. On March 13, 2020 the C. Telehealth Modalities and Cost-sharing Under Arrangements Outside the President of the United States declared D. Communication Technology-Based Hospital During the Public Health the COVID–19 outbreak a national Services (CTBS) Emergency (PHE) for the COVID–19 emergency. E. Direct Supervision by Interactive Pandemic Coronaviruses are a large family of Telecommunications Technology DD. Advance Payments to Suppliers viruses that are common in people and F. Clarification of Homebound Status Furnishing Items and Services Under many different species of animals, Under the Medicare Home Health Part B III. Waiver of Proposed Rulemaking including camels, cattle, cats, and bats. Benefit Rarely, animal coronaviruses can infect G. The Use of Telecommunications IV. Collection of Information Requirements Technology Under the Medicare Home V. Response to Comments people and then spread between people Health Benefit During the PHE for the VI. Regulatory Impact Analysis such as with MERS-CoV, SARS-CoV, COVID–19 Pandemic Regulations Text and now with this new virus (COVID– 19). H. The Use of Technology Under the Addenda Available Only Through the The complete clinical picture with Medicare Hospice Benefit Internet on the CMS Website I. Telehealth and the Medicare Hospice regard to COVID–19 is not fully known. Face-to-Face Encounter Requirement The Addenda along with other Reported illnesses have ranged from J. Modification of the Inpatient supporting documents and tables very mild (including some with no Rehabilitation Facility (IRF) Face-to-Face referenced in this interim final rule with reported symptoms) to severe, including Requirement for the PHE During the comment period (IFC) are available illness resulting in death. While COVID–19 Pandemic through the internet on the CMS website K. Removal of the IRF Post-Admission information so far suggests that most Physician Evaluation Requirement for at https://www.cms.gov/. For this IFC, COVID–19 illness is mild, a report out the PHE for the COVID–19 Pandemic and refer to item CMS–1744–IFC. Readers of China suggests serious illness occurs Clarification Regarding the ‘‘3-Hour’’ who experience any problems accessing in 16 percent of cases. Older people and Rule any of the Addenda or other documents people of all ages with severe chronic L. Rural Health Clinics (RHCs) and referenced in this IFC and posted on the medical conditions—like heart disease, Federally Qualified Health Centers CMS website identified above should lung disease and diabetes, for (FQHCs) contact [email protected]. example—seem to be at higher risk of M. Medicare Clinical Laboratory Fee 1 CPT (Current Procedural Terminology) developing serious COVID–19 illness. Schedule: Payment for Specimen A pandemic is a global outbreak of Collection for Purposes of COVID–19 Copyright Notice disease. Pandemics happen when a new Testing Throughout this IFC, we use CPT N. Requirements for Opioid Treatment virus emerges to infect people and can Programs (OTP) codes and descriptions to refer to a spread between people sustainably. O. Application of Teaching Physician and variety of services. We note that CPT Because there is little to no pre-existing Moonlighting Regulations During the codes and descriptions are copyright PHE for the COVID–19 pandemic During 2019 American Medical Association. All 1 https://www.cdc.gov/coronavirus/2019-ncov/ the PHE for COVID–19 Rights Reserved. CPT is a registered cases-updates/summary.html.

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immunity against the new virus, it We are addressing some of these In contrast, Medicare pays separately spreads worldwide. The virus that regulations in this interim final rule for other professional services that are causes COVID–19 is infecting people with comment period (IFC) to ensure commonly furnished remotely using and spreading easily from person-to- that sufficient health care items and telecommunications technology, but person. This is the first pandemic services are available to meet the needs that do not usually require the patient known to be caused by the emergence of individuals enrolled in the programs to be present in-person with the of a new coronavirus.2 under Title XVIII (Medicare) and Title practitioner when they are furnished. People in places where ongoing XIX (Medicaid) of the Social Security These services, including remote community spread of the virus that Act (the Act). physician interpretation of diagnostic causes COVID–19 has been reported are In this extraordinary circumstance, tests, care management services and at elevated risk of exposure, with the we recognize that public exposure virtual check-ins among many others, level of risk dependent on the location. greatly increases the overall risk to are considered physicians’ services in Healthcare workers caring for patients public health. We believe that this the same way as services that are with COVID–19 are at elevated risk of increased risk produces an immediate furnished in-person without the use of exposure. Close contacts of persons with change, not only in the circumstances telecommunications technology. They COVID–19 also are at elevated risk of under which services can safely occur, are covered and paid in the same way exposure. but also results in an immediate change as services delivered without the use of Early information out of China, where to the business relationships between telecommunications technology, but are COVID–19 first started, shows that some providers, suppliers, and practitioners. not considered Medicare telehealth people are at higher risk of getting very By increasing access to services services and are not subject to the sick from this illness. This includes: delivered using telecommunications conditions of payment under section • Older adults, with risk increasing technology, increasing access to testing 1834(m) of the Act. by age. in a patient’s home, and improving On March 17, 2020, we announced • People who have serious chronic infection control, this IFC will provide the expansion of telehealth services on medical conditions like: the necessary flexibility for Medicare a temporary and emergency basis ++ Heart disease. beneficiaries to be able to receive pursuant to waiver authority added ++ Diabetes. medically necessary services without under section 1135(b)(8) of the Act by ++ Lung disease. jeopardizing their health or the health of the Coronavirus Preparedness and The Centers for Disease Control and those who are providing those services, Response Supplemental Appropriations Prevention (CDC) has developed while minimizing the overall risk to Act, 2020 (Pub. L. 116–123, March 6, guidance to help in the risk assessment public health. 2020). Starting on March 6, 2020, Medicare can pay for telehealth and management of people with II. Provisions of the Interim Final Rule potential exposures to COVID–19, services, including office, hospital, and including recommending that health In this IFC, we are defining the term, other visits furnished by physicians and care professionals make every effort to ‘‘Public Health Emergency,’’ in the other practitioners to patients located interview a person under investigation regulation at 42 CFR 400.200, which anywhere in the country, including in a for infection by telephone, text contains definitions that apply under patient’s place of residence. In the monitoring system, or video the entirety of chapter 400 of title 42 of context of the PHE for the COVID–19 conference.3 the CFR. The definition identifies the pandemic, we recognize that physicians As the healthcare community works PHE determined to exist nationwide by and other health care professionals are to implement and establish the Secretary of Health and Human faced with new challenges regarding recommended infection prevention and services under section 319 of the Public potential exposure risks, for people with control practices, regulatory agencies Health Service Act on January 31, 2020, Medicare, for health care providers, and under appropriate waiver authority as a result of confirmed cases of COVID– for members of the community at large. granted by the PHE for the COVID–19 19, including any subsequent renewals. For example, the CDC has urged health pandemic declaration are also working A. Payment for Medicare Telehealth care professionals to make every effort to revise and implement regulations that Services Under Section 1834(m) of the to interview persons under investigation work in concert with healthcare Act for infection by telephone, text community infection prevention and messaging system, or video conference Section 1834(m) of the Act specifies instead of in-person. To facilitate the treatment practices. Based on the the payment amounts and current and projected increase in rate of use of telecommunications technology circumstances under which Medicare as a safe substitute for in-person incidence of the COVID–19 disease in makes payment for a discrete set of the US population, and observed services, we are, on an interim basis, services, all of which must ordinarily be adding many services to the list of fatalities in the elderly population, who furnished in-person, when they are are particularly vulnerable due to age eligible Medicare telehealth services, instead furnished using interactive, real- eliminating frequency limitations and and co-morbidities, and additionally, time telecommunication technology. impact on health workers that are at other requirements associated with When furnished under the telehealth particular services furnished via increased risk due to treating the rules, many of these specified Medicare population, we believe that certain telehealth, and clarifying several telehealth services are still reported payment rules that apply to other Medicare and Medicaid regulations that using codes that describe ‘‘face-to-face’’ may offer providers flexibilities in services that are furnished using services but are furnished using audio/ telecommunications technologies that furnishing services to combat the video, real-time communication COVID–19 pandemic should be can reduce exposure risks. technology instead of in-person. The list As discussed in this IFC and in prior reviewed and revised as appropriate. of these eligible telehealth services is rulemaking, several conditions must be published on the CMS website at met for Medicare to make payment for 2 https://www.cdc.gov/coronavirus/2019-ncov/ cases-updates/summary.html. https://www.cms.gov/Medicare/ telehealth services under the Physician 3 https://www.cdc.gov/coronavirus/2019-ncov/ Medicare-General-Information/ Fee Schedule (PFS). For further details, cases-updates/summary.html. Telehealth/index.html. see the full discussion of the scope of

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Medicare telehealth services in the telehealth services include the POS To implement this change on an ‘‘Medicare Program; Revisions to code 02, which is specific to telehealth interim basis, we are instructing Payment Policies Under the Physician services. physicians and practitioners who bill Fee Schedule and Other Revisions to Under the waiver authority exercised for Medicare telehealth services to Part B for CY 2018; Medicare Shared by the Secretary in response to the PHE report the POS code that would have Savings Program Requirements; and for the COVID–19 pandemic, Medicare been reported had the service been Medicare Diabetes Prevention Program’’ telehealth services can be furnished to furnished in person. This will allow our final rule (82 FR 53006, November 17, patients wherever they are located, systems to make appropriate payment 2017) (hereinafter referred to as the CY including in the patient’s home. As for services furnished via Medicare 2018 PFS final rule) and in our provided by the amendments to section telehealth which, if not for the PHE for regulations at 42 CFR 410.78 and 1135(b)(8) of the Act, when telehealth the COVID–19 pandemic, would have 414.65. services are furnished under the waiver been furnished in person, at the same rate they would have been paid if the 1. Site of Service Differential for to beneficiaries located in places that services were furnished in person. Medicare Telehealth Services are not identified as permissible originating sites in section Given the potential importance of using Under the PFS, there are two payment 1834(m)(4)(C)(ii)(I) through (IX) of the telehealth services as means of rates for many physicians’ services: The Act, no originating site facility fee is minimizing exposure risks for patients, facility rate; and the non-facility, or paid. We also recognize that as practitioners, and the community at office, rate. The PFS non-facility rate is physician practices suddenly transition large, we believe this interim change the single amount paid to a physician or will maintain overall relativity under other practitioner for services furnished a potentially significant portion of their services from in-person to telehealth the PFS for similar services and in their office. The PFS facility rate is eliminate potential financial deterrents the amount generally paid to a visits in the context of the PHE for the COVID–19 pandemic, the relative to the clinically appropriate use of professional when a service is furnished telehealth. Because we currently use the in a setting of care, like a hospital, resource costs of furnishing these services via telehealth may not POS code on the claim to identify where Medicare is making a separate Medicare telehealth services, we are significantly differ from the resource payment to an entity in addition to the finalizing on an interim basis the use of costs involved when these services are payment to the billing physician or the CPT telehealth modifier, modifier furnished in person. For example, we practitioner. This separate payment, 95, which should be applied to claim expect that physician offices will often referred to as a ‘‘facility fee’’ lines that describe services furnished continue to employ nursing staff to reflects the facility’s costs associated via telehealth. We note that we are engage with patients during telehealth with the service (clinical staff, supplies maintaining the facility payment rate for visits or to coordinate pre- or post-visit and equipment) and is paid in addition services billed using the general care, regardless of whether or not the to what is paid to the professional telehealth POS code 02, should visit takes place in person, as it would through the PFS. practitioners choose, for whatever We note that, in accordance with have outside of the PHE for the COVID– reason, to maintain their current billing section 1834(m)(2)(B) of the Act, a 19 pandemic, or through telehealth in practices for Medicare telehealth during facility fee is, in most cases, paid to the the context of the PHE for the COVID– the PHE for the COVID–19 pandemic. ‘‘originating site’’ where the beneficiary 19 pandemic. Consequently, the is located at the time a telehealth service assumptions that have supported 2. Adding Services to the List of is furnished. The payment amount for payment of telehealth services at the Medicare Telehealth Services the telehealth originating site facility fee PFS facility rate would not apply in In the ‘‘Medicare Program; Revisions is a nationally applicable flat fee, paid many circumstances for services to Payment Policies Under the without geographic or site of service furnished during the PHE for the Physician Fee Schedule for Calendar adjustments that generally apply to COVID–19 pandemic. Instead, we Year 2003 and Inclusion of Registered payments for different kinds of services believe that, as more telehealth services Nurses in the Personnel Provision of the furnished by Medicare providers and are furnished to patients wherever they Critical Access Hospital Emergency suppliers. are located rather than in statutory Services Requirement for Frontier Areas For Medicare telehealth services, we originating sites, it would be and Remote Locations’’ final rule with currently make payment to the billing appropriate to assume that the relative comment period (67 FR 79988, physician or practitioner at the PFS resource costs of services furnished December 31, 2002) (hereinafter referred facility rate since the facility costs through telehealth should be reflected to the CY 2003 PFS final rule with (clinical staff, supplies, and equipment) in the payment to the furnishing comment period), we established a associated with furnishing the service physician or practitioner as if they process for adding services to or would generally be incurred by the furnished the services in person, and to deleting services from the list of originating site, where the patient is assign the payment rate that ordinarily Medicare telehealth services in located, and not by the practitioner at would have been paid under the PFS accordance with section the distant site; and because the statute were the services furnished in-person. 1834(m)(4)(F)(ii) of the Act. This requires Medicare to pay an originating For example, a physician practicing in process provides the public with an site facility fee to the site that hosts the an office setting who, under the PHE for ongoing opportunity to submit requests patient. the COVID–19 pandemic, sees patients for adding services, which we then When a physician or practitioner via telehealth instead of in person review. We have also routinely submits a claim for their services, would be paid at the non-facility, or reviewed potential services for addition including claims for telehealth services, office, rate for these services. Similarly, to the list of telehealth services and they include a place of service (POS) a physician who typically sees patients sought comment on any such proposed code that is used to determine whether in an outpatient provider-based clinic of additions. Under this process, we assign a service is paid using the facility or a hospital would be paid the facility rate any potential addition to the list of non-facility rate. Currently, CMS for services newly furnished via telehealth services to one of the requires that claims for Medicare telehealth. following two categories:

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• Category 1: Services that are similar Medicare/Medicare-General- through interactive communication to professional consultations, office Information/Telehealth/index.html. technology. Therefore, in the context of visits, and office psychiatry services that On an interim basis, we are adding the PHE for the COVID–19 pandemic, are currently on the list of telehealth the following services to the Medicare we believe all of the following services services. In reviewing these requests, we telehealth list on a Category 2 basis for meet the category 2 criteria to be added look for similarities between the the duration of this PHE for the COVID– to the list of telehealth services on the requested and existing telehealth 19 pandemic, for telehealth services basis that there is a patient population services for the roles of, and interactions with dates of service beginning March 1, that would otherwise not have access to among, the beneficiary, the physician 2020 through the end of the declared clinically appropriate treatment. We (or other practitioner) at the distant site PHE including any subsequent note that, as with other services on the and, if necessary, the telepresenter, a renewals. When we previously Medicare telehealth list, it may not be practitioner who is present with the considered adding these services to the clinically appropriate or possible to use beneficiary in the originating site. We list of telehealth services, either through telecommunications technology to also look for similarities in the a public request or through our own furnish these particular services to every telecommunications system used to internal review, we considered whether person or in every circumstance. deliver the service; for example, the use or not these services met the category 1 However, in the context of the PHE for of interactive audio and video or category 2 criteria. In many cases we the COVID–19 pandemic with specific equipment. reviewed requests to add these services regard to the exposure risks noted • Category 2: Services that are not on a category 1 basis but did not receive above, we recognize the clinical benefit similar to those on the current list of or identify information that allowed us of access to medically reasonable and telehealth services. Our review of these to review the services on a category 2 necessary services furnished using requests includes an assessment of basis. While we do not believe the telecommunications technology as whether the service is accurately context of this PHE for the COVID–19 opposed to the potential lack of access described by the corresponding code pandemic changes the assessment of that could occur to mitigate the risk of when furnished via telehealth and these services as category 1, we have disease exposure. In light of the PHE for whether the use of a reassessed all of these services on a the COVID–19 pandemic, the demand telecommunications system to furnish category 2 basis in the context of the for physicians in areas heavily impacted the service produces demonstrated widespread presence of COVID–19 in by COVID–19 or under served by clinical benefit to the patient. Submitted the community. Given the exposure clinicians may intensify, resulting in a evidence should include both a risks for beneficiaries, the health care need for critical care services for description of relevant clinical studies work force, and the community at large, that demonstrate the service furnished patients with suspected or diagnosed in-person interaction between COVID–19 and those who are in acute by telehealth to a Medicare beneficiary professionals and patients poses an improves the diagnosis or treatment of care settings due to other conditions. immediate potential risk that would not These practitioners may be working an illness or injury or improves the have been present when we previously with nurses, consulting with other functioning of a malformed body part, reviewed these services. This new risk healthcare professionals, writing orders, including dates and findings, and a list creates a unique circumstance where looking at images, communicating with and copies of published peer reviewed health care professionals need to weigh family members for patients with a articles relevant to the service when the risks associated with disease number of acute conditions. The CPT furnished via telehealth. Our exposure so they can bill Medicare for evidentiary standard of clinical benefit the service. For example, certain codes describing E/M services reflect an does not include minor or incidental persons, especially older adults who are assumption that the nature of the work benefits. particularly vulnerable to this specific involved in evaluation and management Some examples of clinical benefit virus, those considered at risk because visits varies, in part, based on the include the following: of underlying health conditions, and setting of care and the patient’s status. • Ability to diagnose a medical those known to be recently exposed or Consequently, there are separate sets of condition in a patient population diagnosed, and therefore, likely to E/M codes for different settings of care, without access to clinically appropriate spread the virus to others, are often such as office/outpatient codes, nursing in-person diagnostic services. being directed by local public health facility codes, or emergency department • Treatment option for a patient officials to self-isolate as much as codes. We expect physicians and other population without access to clinically possible. At the same time, we note that practitioners to use the E/M code that appropriate in-person treatment options. the risks to medical professionals best describes the nature of the care they • Reduced rate of complications. treating patients is high and we consider are providing, regardless of the physical • Decreased rate of subsequent it likely that medical professionals will location or status of the patient. Under diagnostic or therapeutic interventions try to treat patients as effectively as ordinary circumstances, we would (for example, due to reduced rate of possible without exposing themselves or expect the kind of E/M code reported to recurrence of the disease process). their patients unnecessarily. In some generally align with the physical • Decreased number of future cases, use of telecommunication location or status of the patient. In the hospitalizations or physician visits. technology could mitigate the exposure context of the PHE, we recognize that • More rapid beneficial resolution of risk, and in such cases, there is a clear the relationship among the setting of the disease process treatment. clinical benefit of using such technology care, patient status, and kind of E/M • Decreased pain, bleeding, or other in furnishing the service. In other code reported may depend on the needs quantifiable symptom. words, patients who should not be seen of local communities and the capacity of • Reduced recovery time. by a professional in-person due to the local health care institutions. The list of telehealth services, exposure risk are highly likely to be Consequently, we are reiterating that including the additions described later without access to clinically appropriate practitioners should report the E/M in this section, can be located on the treatment or diagnostic options unless code that best describes the nature of CMS website at https://www.cms.gov/ they have access to services furnished the care they are providing.

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We are adding the following codes to immediate significant threat to life or problem(s) and the patient’s and/or the existing list of telehealth services on physiologic function.) family’s needs. Usually, the problem(s) a Category 2 basis for the PHE for the • 99285 (Emergency department visit requiring admission to outpatient COVID–19 pandemic: for the evaluation and management of hospital ‘‘observation status’’ are of a patient, which requires these 3 key moderate severity. Typically, 50 minutes 3. Emergency Department Visits: CPT components within the constraints are spent at the bedside and on the Codes imposed by the urgency of the patient’s patient’s hospital floor or unit.) • 99281 (Emergency department visit clinical condition and/or mental status: • 99220 (Initial observation care, per for the evaluation and management of A comprehensive history; A day, for the evaluation and management a patient, which requires these 3 key comprehensive examination; and of a patient, which requires these 3 key components: A problem focused history; Medical decision making of high components: A comprehensive history; A problem focused examination; and complexity. Counseling and/or A comprehensive examination; and Straightforward medical decision coordination of care with other Medical decision making of high making. Counseling and/or physicians, other qualified health care complexity. Counseling and/or coordination of care with other professionals, or agencies are provided coordination of care with other physicians, other qualified health care consistent with the nature of the physicians, other qualified health care professionals, or agencies are provided problem(s) and the patient’s and/or professionals, or agencies are provided consistent with the nature of the family’s needs. Usually, the presenting consistent with the nature of the problem(s) and the patient’s and/or problem(s) are of high severity and pose problem(s) and the patient’s and/or family’s needs. Usually, the presenting an immediate significant threat to life or family’s needs. Usually, the problem(s) problem(s) are self limited or minor.) physiologic function.) requiring admission to outpatient hospital ‘‘observation status’’ are of high • 99282 (Emergency department visit 4. Initial and Subsequent Observation, severity. Typically, 70 minutes are spent for the evaluation and management of and Observation Discharge Day at the bedside and on the patient’s a patient, which requires these 3 key Management: CPT Codes components: An expanded problem hospital floor or unit.) • 99217 (Observation care discharge • 99224 (Subsequent observation focused history; An expanded problem day management (This code is to be care, per day, for the evaluation and focused examination; and Medical utilized to report all services provided to management of a patient, which decision making of low complexity. a patient on discharge from outpatient requires at least 2 of these 3 key Counseling and/or coordination of care hospital ‘‘observation status’’ if the components: Problem focused interval with other physicians, other qualified discharge is on other than the initial history; Problem focused examination; health care professionals, or agencies date of ‘‘observation status.’’ To report Medical decision making that is are provided consistent with the nature services to a patient designated as straightforward or of low complexity. of the problem(s) and the patient’s and/ ‘‘observation status’’ or ‘‘inpatient Counseling and/or coordination of care or family’s needs. Usually, the status’’ and discharged on the same with other physicians, other qualified presenting problem(s) are of low to date, use the codes for Observation or health care professionals, or agencies moderate severity.) Inpatient Care Services [including • are provided consistent with the nature 99283 (Emergency department visit Admission and Discharge Services, of the problem(s) and the patient’s and/ for the evaluation and management of 99234–99236 as appropriate.]) or family’s needs. Usually, the patient is a patient, which requires these 3 key • 99218 (Initial observation care, per stable, recovering, or improving. components: An expanded problem day, for the evaluation and management Typically, 15 minutes are spent at the focused history; An expanded problem of a patient which requires these 3 key bedside and on the patient’s hospital focused examination; and Medical components: A detailed or floor or unit.) decision making of moderate comprehensive history; A detailed or • 99225 (Subsequent observation complexity. Counseling and/or comprehensive examination; and care, per day, for the evaluation and coordination of care with other Medical decision making that is management of a patient, which physicians, other qualified health care straightforward or of low complexity. requires at least 2 of these 3 key professionals, or agencies are provided Counseling and/or coordination of care components: An expanded problem consistent with the nature of the with other physicians, other qualified focused interval history; An expanded problem(s) and the patient’s and/or health care professionals, or agencies problem focused examination; Medical family’s needs. Usually, the presenting are provided consistent with the nature decision making of moderate problem(s) are of moderate severity.) of the problem(s) and the patient’s and/ complexity. Counseling and/or • 99284 (Emergency department visit or family’s needs. Usually, the coordination of care with other for the evaluation and management of problem(s) requiring admission to physicians, other qualified health care a patient, which requires these 3 key outpatient hospital ‘‘observation status’’ professionals, or agencies are provided components: A detailed history; A are of low severity. Typically, 30 consistent with the nature of the detailed examination; and Medical minutes are spent at the bedside and on problem(s) and the patient’s and/or decision making of moderate the patient’s hospital floor or unit.) family’s needs. Usually, the patient is complexity. Counseling and/or • 99219 (Initial observation care, per responding inadequately to therapy or coordination of care with other day, for the evaluation and management has developed a minor complication. physicians, other qualified health care of a patient, which requires these 3 key Typically, 25 minutes are spent at the professionals, or agencies are provided components: A comprehensive history; bedside and on the patient’s hospital consistent with the nature of the A comprehensive examination; and floor or unit.) problem(s) and the patient’s and/or Medical decision making of moderate • 99226 (Subsequent observation family’s needs. Usually, the presenting complexity. Counseling and/or care, per day, for the evaluation and problem(s) are of high severity, and coordination of care with other management of a patient, which require urgent evaluation by the physicians, other qualified health care requires at least 2 of these 3 key physician, or other qualified health care professionals, or agencies are provided components: A detailed interval history; professionals but do not pose an consistent with the nature of the A detailed examination; Medical

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decision making of high complexity. spent at the bedside and on the patient’s detailed or comprehensive history; A Counseling and/or coordination of care hospital floor or unit.) detailed or comprehensive examination; with other physicians, other qualified and Medical decision making that is 5. Initial Hospital Care and Hospital health care professionals, or agencies Discharge Day Management: CPT Codes straightforward or of low complexity. are provided consistent with the nature Counseling and/or coordination of care • of the problem(s) and the patient’s and/ 99221 (Initial hospital care, per with other physicians, other qualified or family’s needs. Usually, the patient is day, for the evaluation and management health care professionals, or agencies unstable or has developed a significant of a patient, which requires these 3 key are provided consistent with the nature complication or a significant new components: A detailed or of the problem(s) and the patient’s and/ problem. Typically, 35 minutes are comprehensive history; A detailed or or family’s needs. Usually, the spent at the bedside and on the patient’s comprehensive examination; and problem(s) requiring admission are of hospital floor or unit.) Medical decision making that is low severity. Typically, 25 minutes are • 99234 (Observation or inpatient straightforward or of low complexity. spent at the bedside and on the patient’s hospital care, for the evaluation and Counseling and/or coordination of care facility floor or unit.) with other physicians, other qualified management of a patient including • 99305 (Initial nursing facility care, admission and discharge on the same health care professionals, or agencies are provided consistent with the nature per day, for the evaluation and date, which requires these 3 key management of a patient, which components: A detailed or of the problem(s) and the patient’s and/ or family’s needs. Usually, the requires these 3 key components: A comprehensive history; A detailed or comprehensive history; A comprehensive examination; and problem(s) requiring admission are of low severity. Typically, 30 minutes are comprehensive examination; and Medical decision making that is Medical decision making of moderate straightforward or of low complexity. spent at the bedside and on the patient’s hospital floor or unit.) complexity. Counseling and/or Counseling and/or coordination of care • coordination of care with other with other physicians, other qualified 99222 (Initial hospital care, per physicians, other qualified health care health care professionals, or agencies day, for the evaluation and management professionals, or agencies are provided are provided consistent with the nature of a patient, which requires these 3 key consistent with the nature of the of the problem(s) and the patient’s and/ components: A comprehensive history; problem(s) and the patient’s and/or or family’s needs. Usually the A comprehensive examination; and family’s needs. Usually, the problem(s) presenting problem(s) requiring Medical decision making of moderate requiring admission are of moderate admission are of low severity. Typically, complexity. Counseling and/or severity. Typically, 35 minutes are spent 40 minutes are spent at the bedside and coordination of care with other at the bedside and on the patient’s on the patient’s hospital floor or unit.) physicians, other qualified health care professionals, or agencies are provided facility floor or unit.) • 99235 (Observation or inpatient consistent with the nature of the hospital care, for the evaluation and • 99306 (Initial nursing facility care, problem(s) and the patient’s and/or management of a patient including per day, for the evaluation and family’s needs. Usually, the problem(s) admission and discharge on the same management of a patient, which requiring admission are of moderate date, which requires these 3 key requires these 3 key components: A severity. Typically, 50 minutes are spent components: A comprehensive history; comprehensive history; A at the bedside and on the patient’s A comprehensive examination; and comprehensive examination; and hospital floor or unit.) Medical decision making of moderate • Medical decision making of high 99223 (Initial hospital care, per complexity. Counseling and/or complexity. Counseling and/or day, for the evaluation and management coordination of care with other coordination of care with other of a patient, which requires these 3 key physicians, other qualified health care physicians, other qualified health care components: A comprehensive history; professionals, or agencies are provided professionals, or agencies are provided A comprehensive examination; and consistent with the nature of the consistent with the nature of the Medical decision making of high problem(s) and the patient’s and/or problem(s) and the patient’s and/or complexity. Counseling and/or family’s needs. Usually, the problem(s) family’s needs. Usually the presenting coordination of care with other problem(s) requiring admission are of requiring admission are of high severity. physicians, other qualified health care Typically, 45 minutes are spent at the moderate severity. Typically, 50 minutes professionals, or agencies are provided are spent at the bedside and on the bedside and on the patient’s facility consistent with the nature of the floor or unit.) patient’s hospital floor or unit.) problem(s) and the patient’s and/or • • 99236 (Observation or inpatient family’s needs. Usually, the problem(s) 99315 (Nursing facility discharge hospital care, for the evaluation and requiring admission are of high severity. day management; 30 minutes or less) management of a patient including Typically, 70 minutes are spent at the • 99316 (Nursing facility discharge admission and discharge on the same bedside and on the patient’s hospital day management; more than 30 date, which requires these 3 key floor or unit.) minutes) components: A comprehensive history; • 99238 (Hospital discharge day A comprehensive examination; and management; 30 minutes or less) 7. Critical Care Services: CPT Codes Medical decision making of high • 99239 (Hospital discharge day • 99291 (Critical care, evaluation and complexity. Counseling and/or management; more than 30 minutes) coordination of care with other management of the critically ill or physicians, other qualified health care 6. Initial Nursing Facility Visits and critically injured patient; first 30–74 professionals, or agencies are provided Nursing Facility Discharge Day minutes) consistent with the nature of the Management: CPT Codes • 99292 (Critical care, evaluation and problem(s) and the patient’s and/or • 99304 (Initial nursing facility care, management of the critically ill or family’s needs. Usually the presenting per day, for the evaluation and critically injured patient; each problem(s) requiring admission are of management of a patient, which additional 30 minutes (List separately in high severity. Typically, 55 minutes are requires these 3 key components: A addition to code for primary service))

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8. Domiciliary, Rest Home, or Custodial severity. Typically, 25 minutes are spent are provided consistent with the nature Care Services: CPT Codes with the patient and/or family or of the problem(s) and the patient’s and/ • 99327 (Domiciliary or rest home caregiver.) or family’s needs. Usually, the • 99336 (Domiciliary or rest home visit for the evaluation and management presenting problem(s) are of moderate visit for the evaluation and management of a new patient, which requires these severity. Typically, 30 minutes are spent of an established patient, which requires 3 key components: A comprehensive face-to-face with the patient and/or at least 2 of these 3 key components: A history; A comprehensive examination; family.) detailed interval history; A detailed • 99343 (Home visit for the and Medical decision making of examination; Medical decision making evaluation and management of a new moderate complexity. Counseling and/ of moderate complexity. Counseling patient, which requires these 3 key or coordination of care with other and/or coordination of care with other components: A detailed history; A physicians, other qualified health care physicians, other qualified health care detailed examination; and Medical professionals, or agencies are provided professionals, or agencies are provided decision making of moderate consistent with the nature of the consistent with the nature of the complexity. Counseling and/or problem(s) and the patient’s and/or problem(s) and the patient’s and/or coordination of care with other family’s needs. Usually, the presenting family’s needs. Usually, the presenting physicians, other qualified health care problem(s) are of high severity. problem(s) are of moderate to high professionals, or agencies are provided Typically, 60 minutes are spent with the severity. Typically, 40 minutes are spent consistent with the nature of the patient and/or family or caregiver.) • with the patient and/or family or problem(s) and the patient’s and/or 99328 (Domiciliary or rest home caregiver.) family’s needs. Usually, the presenting visit for the evaluation and management • 99337 (Domiciliary or rest home problem(s) are of moderate to high of a new patient, which requires these visit for the evaluation and management severity. Typically, 45 minutes are spent 3 key components: A comprehensive of an established patient, which requires face-to-face with the patient and/or history; A comprehensive examination; at least 2 of these 3 key components: A family.) and Medical decision making of high comprehensive interval history; A • 99344 (Home visit for the complexity. Counseling and/or comprehensive examination; Medical evaluation and management of a new coordination of care with other decision making of moderate to high patient, which requires these 3 key physicians, other qualified health care complexity. Counseling and/or components: A comprehensive history; professionals, or agencies are provided coordination of care with other A comprehensive examination; and consistent with the nature of the physicians, other qualified health care Medical decision making of moderate problem(s) and the patient’s and/or professionals, or agencies are provided complexity. Counseling and/or family’s needs. Usually, the patient is consistent with the nature of the coordination of care with other unstable or has developed a significant problem(s) and the patient’s and/or physicians, other qualified health care new problem requiring immediate family’s needs. Usually, the presenting professionals, or agencies are provided physician attention. Typically, 75 problem(s) are of moderate to high consistent with the nature of the minutes are spent with the patient and/ severity. The patient may be unstable or problem(s) and the patient’s and/or or family or caregiver.) may have developed a significant new family’s needs. Usually, the presenting • 99334 (Domiciliary or rest home problem requiring immediate physician problem(s) are of high severity. visit for the evaluation and management attention. Typically, 60 minutes are Typically, 60 minutes are spent face-to- of an established patient, which requires spent with the patient and/or family or face with the patient and/or family.) at least 2 of these 3 key components: A caregiver.) • 99345 (Home visit for the problem focused interval history; A evaluation and management of a new problem focused examination; 9. Home Visits: CPT Codes patient, which requires these 3 key Straightforward medical decision • 99341 (Home visit for the components: A comprehensive history; making. Counseling and/or evaluation and management of a new A comprehensive examination; and coordination of care with other patient, which requires these 3 key Medical decision making of high physicians, other qualified health care components: A problem focused history; complexity. Counseling and/or professionals, or agencies are provided A problem focused examination; and coordination of care with other consistent with the nature of the Straightforward medical decision physicians, other qualified health care problem(s) and the patient’s and/or making. Counseling and/or professionals, or agencies are provided family’s needs. Usually, the presenting coordination of care with other consistent with the nature of the problem(s) are self-limited or minor. physicians, other qualified health care problem(s) and the patient’s and/or Typically, 15 minutes are spent with the professionals, or agencies are provided family’s needs. Usually, the patient is patient and/or family or caregiver.) consistent with the nature of the unstable or has developed a significant • 99335 (Domiciliary or rest home problem(s) and the patient’s and/or new problem requiring immediate visit for the evaluation and management family’s needs. Usually, the presenting physician attention. Typically, 75 of an established patient, which requires problem(s) are of low severity. Typically, minutes are spent face-to-face with the at least 2 of these 3 key components: An 20 minutes are spent face-to-face with patient and/or family.) expanded problem focused interval the patient and/or family.) • 99347 (Home visit for the history; An expanded problem focused • 99342 (Home visit for the evaluation and management of an examination; Medical decision making evaluation and management of a new established patient, which requires at of low complexity. Counseling and/or patient, which requires these 3 key least 2 of these 3 key components: A coordination of care with other components: An expanded problem problem focused interval history; A physicians, other qualified health care focused history; An expanded problem problem focused examination; professionals, or agencies are provided focused examination; and Medical Straightforward medical decision consistent with the nature of the decision making of low complexity. making. Counseling and/or problem(s) and the patient’s and/or Counseling and/or coordination of care coordination of care with other family’s needs. Usually, the presenting with other physicians, other qualified physicians, other qualified health care problem(s) are of low to moderate health care professionals, or agencies professionals, or agencies are provided

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consistent with the nature of the • 99469 (Subsequent inpatient staging of dementia (eg, functional problem(s) and the patient’s and/or neonatal critical care, per day, for the assessment staging test [FAST], clinical family’s needs. Usually, the presenting evaluation and management of a dementia rating [CDR]); Medication problem(s) are self limited or minor. critically ill neonate, 28 days of age or reconciliation and review for high-risk Typically, 15 minutes are spent face-to- younger) medications; Evaluation for face with the patient and/or family.) • 99471 (Initial inpatient pediatric neuropsychiatric and behavioral • 99348 (Home visit for the critical care, per day, for the evaluation symptoms, including depression, evaluation and management of an and management of a critically ill infant including use of standardized screening established patient, which requires at or young child, 29 days through 24 instrument(s); Evaluation of safety (eg, least 2 of these 3 key components: An months of age) home), including motor vehicle expanded problem focused interval • 99472 (Subsequent inpatient operation; Identification of caregiver(s), history; An expanded problem focused pediatric critical care, per day, for the caregiver knowledge, caregiver needs, examination; Medical decision making evaluation and management of a social supports, and the willingness of of low complexity. Counseling and/or critically ill infant or young child, 29 caregiver to take on caregiving tasks; coordination of care with other days through 24 months of age) Development, updating or revision, or physicians, other qualified health care • 99473 (Self-measured blood review of an Advance Care Plan; professionals, or agencies are provided pressure using a device validated for Creation of a written care plan, consistent with the nature of the clinical accuracy; patient education/ including initial plans to address any problem(s) and the patient’s and/or training and device calibration) neuropsychiatric symptoms, neuro- • family’s needs. Usually, the presenting 99475 (Initial inpatient pediatric cognitive symptoms, functional problem(s) are of low to moderate critical care, per day, for the evaluation limitations, and referral to community severity. Typically, 25 minutes are spent and management of a critically ill infant resources as needed (eg, rehabilitation face-to-face with the patient and/or or young child, 2 through 5 years of age) services, adult day programs, support family.) • 99476 (Subsequent inpatient • groups) shared with the patient and/or 99349 (Home visit for the pediatric critical care, per day, for the caregiver with initial education and evaluation and management of an evaluation and management of a support. Typically, 50 minutes are spent established patient, which requires at critically ill infant or young child, 2 face-to-face with the patient and/or least 2 of these 3 key components: A through 5 years of age) family or caregiver.) detailed interval history; A detailed examination; Medical decision making 11. Initial and Continuing Intensive 13. Group Psychotherapy: CPT Code Care Services: CPT Codes of moderate complexity. Counseling • • 90853 (Group psychotherapy (other and/or coordination of care with other 99477 (Initial hospital care, per than of a multiple-family group)) physicians, other qualified health care day, for the evaluation and management professionals, or agencies are provided of the neonate, 28 days of age or 14. End-Stage Renal Disease (ESRD) consistent with the nature of the younger, who requires intensive Services: CPT Codes problem(s) and the patient’s and/or observation, frequent interventions, and • 90952 (End-stage renal disease family’s needs. Usually, the presenting other intensive care services) (ESRD) related services monthly, for problem(s) are moderate to high • 99478 (Subsequent intensive care, patients younger than 2 years of age to severity. Typically, 40 minutes are spent per day, for the evaluation and include monitoring for the adequacy of face-to-face with the patient and/or management of the recovering very low nutrition, assessment of growth and family.) birth weight infant (present body weight development, and counseling of parents; • 99350 (Home visit for the less than 1500 grams)) with 2–3 face-to-face visits by a evaluation and management of an • 99479 (Subsequent intensive care, physician or other qualified health care established patient, which requires at per day, for the evaluation and professional per month) least 2 of these 3 key components: A management of the recovering low birth • comprehensive interval history; A weight infant (present body weight of 90953 (End-stage renal disease comprehensive examination; Medical 1500–2500 grams)) (ESRD) related services monthly, for decision making of moderate to high • 99480 (Subsequent intensive care, patients younger than 2 years of age to complexity. Counseling and/or per day, for the evaluation and include monitoring for the adequacy of coordination of care with other management of the recovering infant nutrition, assessment of growth and physicians, other qualified health care (present body weight of 2501–5000 development, and counseling of parents; professionals, or agencies are provided grams)) with 1 face-to-face visit by a physician consistent with the nature of the or other qualified health care 12. Care Planning for Patients With problem(s) and the patient’s and/or professional per month) Cognitive Impairment: CPT Code • family’s needs. Usually, the presenting 90959 (End-stage renal disease problem(s) are of moderate to high • 99483 (Assessment of and care (ESRD) related services monthly, for severity. The patient may be unstable or planning for a patient with cognitive patients 12–19 years of age to include may have developed a significant new impairment, requiring an independent monitoring for the adequacy of problem requiring immediate physician historian, in the office or other nutrition, assessment of growth and attention. Typically, 60 minutes are outpatient, home or domiciliary or rest development, and counseling of parents; spent face-to-face with the patient and/ home, with all of the following required with 1 face-to-face visit by a physician or family.) elements: Cognition-focused evaluation or other qualified health care including a pertinent history and professional per month) 10. Inpatient Neonatal and Pediatric examination; Medical decision making • 90962 (End-stage renal disease Critical Care: CPT Codes of moderate or high complexity; (ESRD) related services monthly, for • 99468 (Initial inpatient neonatal Functional assessment (eg, basic and patients 20 years of age and older; with critical care, per day, for the evaluation instrumental activities of daily living), 1 face-to-face visit by a physician or and management of a critically ill including decision-making capacity; other qualified health care professional neonate, 28 days of age or younger) Use of standardized instruments for per month)

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15. Psychological and 16. Therapy Services occupational therapists, or speech- Neuropsychological Testing: CPT Codes We have received a number of language pathologists, meaning that it • 96130 (Psychological testing requests, most recently for CY 2018 PFS does not provide for payment for these evaluation services by physician or rulemaking, that we add therapy services as Medicare telehealth services other qualified health care professional, services to the Medicare telehealth list. when furnished by physical therapists, including integration of patient data, In the CY 2018 PFS final rule, we noted occupational therapists, or speech- interpretation of standardized test that section 1834(m)(4)(E) of the Act language pathologists. results and clinical data, clinical specifies the types of practitioners who CPT codes: • 97161 (Physical therapy evaluation: decision making, treatment planning may furnish and bill for Medicare low complexity, requiring these and report, and interactive feedback to telehealth services as those practitioners components: A history with no personal the patient, family member(s) or under section 1842(b)(18)(C) of the Act. factors and/or comorbidities that impact caregiver(s), when performed; first hour) Physical therapists, occupational • 96131 (Psychological testing the plan of care; An examination of therapists and speech-language body system(s) using standardized tests evaluation services by physician or pathologists are not among the other qualified health care professional, and measures addressing 1–2 elements practitioners identified in section from any of the following: body including integration of patient data, 1842(b)(18)(C) of the Act. We stated in interpretation of standardized test structures and functions, activity the Medicare Program; Revisions to limitations, and/or participation results and clinical data, clinical Payment Policies under the Physician decision making, treatment planning restrictions; A clinical presentation with Fee Schedule and Other Revisions to stable and/or uncomplicated and report, and interactive feedback to Part B for CY 2017; Medicare Advantage the patient, family member(s) or characteristics; and Clinical decision Bid Pricing Data Release; Medicare making of low complexity using caregiver(s), when performed; each Advantage and Part D Medical Loss additional hour (List separately in standardized patient assessment Ratio Data Release; Medicare Advantage instrument and/or measurable addition to code for primary procedure)) Provider Network Requirements; • 96132 (Neuropsychological testing assessment of functional outcome. Expansion of Medicare Diabetes Typically, 20 minutes are spent face-to- evaluation services by physician or Prevention Program Model; Medicare other qualified health care professional, face with the patient and/or family.) Shared Savings Program Requirements’’ • 97162 (Physical therapy evaluation: including integration of patient data, final rule (81 FR 80198, November 15, interpretation of standardized test moderate complexity, requiring these 2016) (hereinafter referred to as the CY components: A history of present results and clinical data, clinical 2017 PFS final rule) that because these decision making, treatment planning problem with 1–2 personal factors and/ services are predominantly furnished by or comorbidities that impact the plan of and report, and interactive feedback to physical therapists, occupational the patient, family member(s) or care; An examination of body systems therapists and speech-language using standardized tests and measures caregiver(s), when performed; first hour) pathologists, we did not believe it • 96133 (Neuropsychological testing in addressing a total of 3 or more would be appropriate to add them to the evaluation services by physician or elements from any of the following: list of telehealth services at this time. In other qualified health care professional, body structures and functions, activity a subsequent request to consider adding including integration of patient data, limitations, and/or participation these services for 2018, the original interpretation of standardized test restrictions; An evolving clinical requester suggested that we might results and clinical data, clinical presentation with changing decision making, treatment planning propose these services to be added to characteristics; and Clinical decision and report, and interactive feedback to the list so that they can be furnished via making of moderate complexity using the patient, family member(s) or telehealth when furnished by eligible standardized patient assessment caregiver(s), when performed; each distant site practitioners. Since the instrument and/or measurable additional hour (List separately in majority of the codes are furnished over assessment of functional outcome. addition to code for primary procedure)) 90 percent of the time by therapy Typically, 30 minutes are spent face-to- • 96136 (Psychological or professionals, who are not included on face with the patient and/or family.) • neuropsychological test administration the statutory list of eligible distant site 97163 (Physical therapy evaluation: and scoring by physician or other practitioners, we stated that we believed high complexity, requiring these qualified health care professional, two that adding therapy services to the components: A history of present or more tests, any method; first 30 telehealth list could result in confusion problem with 3 or more personal factors minutes) about who is authorized to furnish and and/or comorbidities that impact the • 96137 (Psychological or bill for these services when furnished plan of care; An examination of body neuropsychological test administration via telehealth. systems using standardized tests and and scoring by physician or other In light of the PHE for the COVID–19 measures addressing a total of 4 or more qualified health care professional, two pandemic, we believe that the risks elements from any of the following: or more tests, any method; each associated with confusion are body structures and functions, activity additional 30 minutes (List separately in outweighed by the potential benefits for limitations, and/or participation addition to code for primary procedure)) circumstances when these services restrictions; A clinical presentation with • 96138 (Psychological or might be furnished via telehealth by unstable and unpredictable neuropsychological test administration eligible distant site practitioners. We characteristics; and Clinical decision and scoring by technician, two or more believe this is sufficient clinical making of high complexity using tests, any method; first 30 minutes) evidence to support the addition of standardized patient assessment • 96139 (Psychological or therapy services to the Medicare instrument and/or measurable neuropsychological test administration telehealth list on a category 2 basis. assessment of functional outcome. and scoring by technician, two or more However, we note that the statutory Typically, 45 minutes are spent face-to- tests, any method; each additional 30 definition of distant site practitioners face with the patient and/or family.) minutes (List separately in addition to under section 1834(m) of the Act does • 97164 (Re-evaluation of physical code for primary procedure)) not include physical therapists, therapy established plan of care,

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requiring these components: An profile and medical and therapy history, • 97755 (Assistive technology examination including a review of which includes review of medical and/ assessment (e.g., to restore, augment or history and use of standardized tests or therapy records and extensive compensate for existing function, and measures is required; and Revised additional review of physical, cognitive, optimize functional tasks and/or plan of care using a standardized or psychosocial history related to maximize environmental accessibility), patient assessment instrument and/or current functional performance; An direct one-on-one contact, with written measurable assessment of functional assessment(s) that identifies 5 or more report, each 15 minutes) outcome. Typically, 20 minutes are performance deficits (ie, relating to • 97760 (Orthotic(s) management and spent face-to-face with the patient and/ physical, cognitive, or psychosocial training (including assessment and or family.) skills) that result in activity limitations fitting when not otherwise reported), • 97165 (Occupational therapy and/or participation restrictions; and upper extremity(ies), lower evaluation, low complexity, requiring Clinical decision making of high extremity(ies) and/or trunk, initial these components: An occupational analytic complexity, which includes an orthotic(s) encounter, each 15 minutes) profile and medical and therapy history, analysis of the patient profile, analysis • 97761 (Prosthetic(s) training, upper which includes a brief history including of data from comprehensive and/or lower extremity(ies), initial review of medical and/or therapy assessment(s), and consideration of prosthetic(s) encounter, each 15 records relating to the presenting multiple treatment options. Patient minutes) • problem; An assessment(s) that presents with comorbidities that affect 92521 (Evaluation of speech fluency identifies 1–3 performance deficits (ie, (eg, stuttering, cluttering) occupational performance. Significant • relating to physical, cognitive, or modification of tasks or assistance (eg, 92522 (Evaluation of speech sound psychosocial skills) that result in physical or verbal) with assessment(s) is production (eg, articulation, activity limitations and/or participation necessary to enable patient to complete phonological process, apraxia, restrictions; and Clinical decision dysarthria) evaluation component. Typically, 60 • making of low complexity, which minutes are spent face-to-face with the 92523 (Evaluation of speech sound includes an analysis of the occupational patient and/or family.) production (eg, articulation, profile, analysis of data from problem- • 97168 (Re-evaluation of phonological process, apraxia, focused assessment(s), and occupational therapy established plan dysarthria); with evaluation of language consideration of a limited number of of care, requiring these components: An comprehension and expression (eg, treatment options. Patient presents with assessment of changes in patient receptive and expressive language) • 92524 (Behavioral and qualitative no comorbidities that affect functional or medical status with analysis of voice and resonance) occupational performance. Modification revised plan of care; An update to the of tasks or assistance (eg, physical or • 92507 (Treatment of speech, initial occupational profile to reflect language, voice, communication, and/or verbal) with assessment(s) is not changes in condition or environment necessary to enable completion of auditory processing disorder; that affect future interventions and/or individual) evaluation component. Typically, 30 goals; and A revised plan of care. A minutes are spent face-to-face with the formal reevaluation is performed when 17. Radiation Treatment Management patient and/or family.) there is a documented change in Services • 97166 (Occupational therapy evaluation, moderate complexity, functional status or a significant change The code used to report radiation requiring these components: An to the plan of care is required. treatment management services includes occupational profile and medical and Typically, 30 minutes are spent face-to- several components, including face with the patient and/or family.) reviewing the radiation dose and therapy history, which includes an • expanded review of medical and/or 97110 (Therapeutic procedure, 1 or various treatment parameters, as well as therapy records and additional review more areas, each 15 minutes; weekly face-to-face visits with the of physical, cognitive, or psychosocial therapeutic exercises to develop patient to assess the patient’s response history related to current functional strength and endurance, range of to treatment and manage any symptoms performance; An assessment(s) that motion and flexibility) the patient may be experiencing. We • identifies 3–5 performance deficits (ie, 97112 (Therapeutic procedure, 1 or believe that in the context of the PHE for relating to physical, cognitive, or more areas, each 15 minutes; the COVID–19 pandemic, the weekly psychosocial skills) that result in neuromuscular reeducation of face-to-face visit component of this activity limitations and/or participation movement, balance, coordination, service could be conducted via restrictions; and Clinical decision kinesthetic sense, posture, and/or telehealth when the billing practitioner making of moderate analytic proprioception for sitting and/or weighs the exposure risks against the complexity, which includes an analysis standing activities) value of in-person assessment on a case- of the occupational profile, analysis of • 97116 (Therapeutic procedure, 1 or by-case basis. Therefore, we are adding data from detailed assessment(s), and more areas, each 15 minutes; gait CPT code 77427 (Radiation treatment consideration of several treatment training (includes stair climbing) management, 5 treatments) to the options. Patient may present with • 97535 (Self-care/home management telehealth list so that the required face- comorbidities that affect occupational training (eg, activities of daily living to-face visit can be furnished via performance. Minimal to moderate (ADL) and compensatory training, meal telehealth. modification of tasks or assistance (eg, preparation, safety procedures, and We believe that allowing the services physical or verbal) with assessment(s) is instructions in use of assistive listed above to be furnished as Medicare necessary to enable patient to complete technology devices/adaptive equipment) telehealth services will significantly evaluation component. Typically, 45 direct one-on-one contact, each 15 increase the ability of Medicare minutes are spent face-to-face with the minutes) physicians and practitioners to work patient and/or family.) • 97750 (Physical performance test or without increasing exposure risk to • 97167 (Occupational therapy measurement (eg, musculoskeletal, themselves, their patients, and the evaluation, high complexity, requiring functional capacity), with written report, broader community. Given widespread these components: An occupational each 15 minutes) concerns regarding the health and safety

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of our beneficiaries and health care nursing facility visits to the Medicare bedside and on the patient’s hospital providers during the PHE for the telehealth list, we stated our concerns floor or unit.) COVID–19 pandemic, we seek input on regarding the potential acuity and • 99232 (Subsequent hospital care, whether there are other services where complexity of nursing facility (NF) per day, for the evaluation and the use of telecommunications patients, we would limit the provision management of a patient, which technology could mitigate the exposure of subsequent nursing facility care requires at least 2 of these 3 key risk, and where there is clear clinical services furnished through telehealth to components: An expanded problem benefit to using such technology in once every 30 days. focused interval history; An expanded furnishing the service. Given our assessment that under the problem focused examination; Medical We note that the inclusion of this PHE for the COVID–19 pandemic, there decision making of moderate code on the telehealth list to ensure that is a patient population that would complexity. Counseling and/or the included visits can be furnished via otherwise not have access to clinically coordination of care with other telehealth is similar to the inclusion of appropriate in-person treatment, we do physicians, other qualified health care the transitional care management codes not believe these frequency limitations professionals, or agencies are provided on the telehealth list. In both of these are appropriate or necessary. In our consistent with the nature of the cases, the non-face-to-face portions of prior analysis, for example, we were problem(s) and the patient’s and/or the service are not considered telehealth concerned that patients might not family’s needs. Usually, the patient is services that are subject to any of the receive the necessary in-person services responding inadequately to therapy or payment provisions specific to for nursing facility or hospital inpatient has developed a minor complication. telehealth services under section services. Since in the context of this Typically, 25 minutes are spent at the 1834(m) of the Act. PHE, telehealth visits mitigate exposure bedside and on the patient’s hospital • CPT code 77427 (Radiation risk, fewer in-person visits may reflect floor or unit.) treatment management, 5 treatments) the most appropriate care, depending on • 99233 (Subsequent hospital care, As we noted above, we have the needs of individual patients. per day, for the evaluation and previously considered adding many of Consequently, on an interim basis, we management of a patient, which these services to the Medicare telehealth are removing the frequency restrictions requires at least 2 of these 3 key list in prior rulemaking and declined, in for each of the following listed codes for components: A detailed interval history; many cases citing concerns over patient subsequent inpatient visits and A detailed examination; Medical acuity and the feasibility of fulfilling all subsequent NF visits furnished via decision making of high complexity. of the required elements of a service via Medicare telehealth for the duration of Counseling and/or coordination of care communication technology. However, the PHE for the COVID–19 pandemic. with other physicians, other qualified in the context of the PHE for the Similarly, we note that we previously health care professionals, or agencies COVID–19 pandemic with specific limited critical care consultations are provided consistent with the nature regard to the exposure risks noted through telehealth to only once per day, of the problem(s) and the patient’s and/ above, we recognize the clinical benefit given the patient acuity involved in or family’s needs. Usually, the patient is of access to medically reasonable and critical care. However, we also unstable or has developed a significant necessary services furnished using understand that critical care patients complication or a significant new telecommunications technology as have significant exposure risks such that problem. Typically, 35 minutes are opposed to the potential lack of access more frequent services furnished via spent at the bedside and on the patient’s that could occur to mitigate the risk of telehealth may reflect the best available hospital floor or unit.) disease exposure. We are also interested care in the context and for the duration in learning of any potential negative 2. Subsequent Nursing Facility Visits: of the PHE for the COVID–19 pandemic. CPT Codes consequences of adding these CPT For this reason, we are also removing codes to the list of telehealth services on the restriction that critical care • 99307 (Subsequent nursing facility an interim basis. consultation codes may only be care, per day, for the evaluation and management of a patient, which B. Frequency Limitations on Subsequent furnished to a Medicare beneficiary once per day. These restrictions were requires at least 2 of these 3 key Care Services in Inpatient and Nursing components: A problem focused interval Facility Settings, and Critical Care established through rulemaking and implemented through systems edits. history; A problem focused Consultations and Required ‘‘Hands- examination; Straightforward medical On’’ Visits for ESRD Monthly Capitation 1. Subsequent Inpatient Visits: CPT decision making. Counseling and/or Payments Codes coordination of care with other In adding some services to the • 99231 (Subsequent hospital care, physicians, other qualified health care Medicare telehealth list, we have done per day, for the evaluation and professionals, or agencies are provided so while including certain restrictions management of a patient, which consistent with the nature of the on how frequently a service may be requires at least 2 of these 3 key problem(s) and the patient’s and/or furnished via Medicare telehealth to components: A problem focused interval family’s needs. Usually, the patient is ensure that the services met the category history; A problem focused stable, recovering, or improving. 1 or 2 criteria. For example, in the CY examination; Medical decision making Typically, 10 minutes are spent at the 2011 PFS final rule (75 FR 73317 that is straightforward or of low bedside and on the patient’s facility through 73318), we added the complexity. Counseling and/or floor or unit.) subsequent hospital care services to the coordination of care with other • 99308 (Subsequent nursing facility Medicare telehealth list. We stated that, physicians, other qualified health care care, per day, for the evaluation and because of our concerns regarding the professionals, or agencies are provided management of a patient, which potential acuity of hospital inpatients, consistent with the nature of the requires at least 2 of these 3 key we would limit the provision of problem(s) and the patient’s and/or components: An expanded problem subsequent hospital care services family’s needs. Usually, the patient is focused interval history; An expanded through telehealth to once every 3 days. stable, recovering or improving. problem focused examination; Medical Similarly, when we added subsequent Typically, 15 minutes are spent at the decision making of low complexity.

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Counseling and/or coordination of care 4. Required ‘‘Hands-On’’ Visits for ESRD include monitoring for the adequacy of with other physicians, other qualified Monthly Capitation Payments nutrition, assessment of growth and health care professionals, or agencies In the ‘‘Medicare Program; Revisions development, and counseling of parents; are provided consistent with the nature to Payment Policies Under the with 2–3 face-to-face visits by a of the problem(s) and the patient’s and/ Physician Fee Schedule for Calendar physician or other qualified health care or family’s needs. Usually, the patient is Year 2005’’ final rule with comment professional per month) • 90953 (End-stage renal disease responding inadequately to therapy or period (69 FR 66236, November 15, (ESRD) related services monthly, for has developed a minor complication. 2004) (hereinafter referred to the CY patients younger than 2 years of age to Typically, 15 minutes are spent at the 2005 PFS final rule with comment include monitoring for the adequacy of bedside and on the patient’s facility period), we added ESRD related services nutrition, assessment of growth and floor or unit.) to the Medicare telehealth list; however, development, and counseling of parents; • 99309 (Subsequent nursing facility we specified that the required clinical with 1 face-to-face visit by a physician care, per day, for the evaluation and examination of the vascular access site or other qualified health care management of a patient, which must be furnished face-to-face ‘‘hands professional per month) requires at least 2 of these 3 key on’’ (without the use of an interactive • 90954 (End-stage renal disease components: A detailed interval history; telecommunications system) by (ESRD) related services monthly, for A detailed examination; Medical physician, clinical nurse specialist patients 2–11 years of age to include decision making of moderate (CNS), nurse practitioner (NP), or monitoring for the adequacy of complexity. Counseling and/or physician assistant (PA) (69 FR 66278). nutrition, assessment of growth and coordination of care with other On an interim basis in light of the PHE development, and counseling of parents; physicians, other qualified health care for the COVID–19 pandemic, we are with 4 or more face-to-face visits by a professionals, or agencies are provided instead permitting the required clinical physician or other qualified health care consistent with the nature of the examination to be furnished as a professional per month) problem(s) and the patient’s and/or Medicare telehealth service during the • 90955 (End-stage renal disease family’s needs. Usually, the patient has PHE for the COVID–19 pandemic. We (ESRD) related services monthly, for developed a significant complication or note that sections 1881(b)(3) and patients 2–11 years of age to include a significant new problem. Typically, 25 1834(m) of the Act allow an individual monitoring for the adequacy of minutes are spent at the bedside and on determined to have ESRD receiving nutrition, assessment of growth and the patient’s facility floor or unit.) home dialysis to choose to receive development, and counseling of parents; • 99310 (Subsequent nursing facility certain monthly ESRD-related clinical with 2–3 face-to-face visits by a care, per day, for the evaluation and assessments via telehealth on or after physician or other qualified health care management of a patient, which January 1, 2019. The Bipartisan Budget professional per month) requires at least 2 of these 3 key Act of 2018 (Pub. L. 115–123, enacted • 90957 (End-stage renal disease components: A comprehensive interval on February 9, 2018) (BBA of 2018) (ESRD) related services monthly, for history; A comprehensive examination; amended section 1881(b)(3)(B) of the patients 12–19 years of age to include Medical decision making of high Act to require that such an individual monitoring for the adequacy of complexity. Counseling and/or must receive a face-to-face visit, without nutrition, assessment of growth and coordination of care with other the use of telehealth, at least monthly in development, and counseling of parents; physicians, other qualified health care the case of the initial 3 months of home with 4 or more face-to-face visits by a professionals, or agencies are provided dialysis and at least once every 3 physician or other qualified health care consistent with the nature of the consecutive months after the initial 3 professional per month) problem(s) and the patient’s and/or months. Due to the conditions presented • 90958 (End-stage renal disease family’s needs. The patient may be by the PHE, we are also exercising (ESRD) related services monthly, for unstable or may have developed a enforcement discretion on an interim patients 12–19 years of age to include significant new problem requiring basis to relax enforcement in connection monitoring for the adequacy of immediate physician attention. with the requirements under section nutrition, assessment of growth and Typically, 35 minutes are spent at the 1881(b)(3)(B) of the Act that certain development, and counseling of parents; bedside and on the patient’s facility visits be furnished without the use of with 2–3 face-to-face visits by a floor or unit.) telehealth for services furnished during physician or other qualified health care the PHE. Specifically, CMS will not professional per month) 3. Critical Care Consultation Services: conduct review to consider whether • 90959 (End-stage renal disease HCPCS Codes those visits were conducted face-to-face, (ESRD) related services monthly, for • G0508 (Telehealth consultation, without the use of telehealth. The patients 12–19 years of age to include critical care, initial, physicians typically following CPT codes, when furnished monitoring for the adequacy of spend 60 minutes communicating with via Medicare telehealth, are impacted by nutrition, assessment of growth and these policies: development, and counseling of parents; the patient and providers via • telehealth.) 90951 (End-stage renal disease with 1 face-to-face visit by a physician (ESRD) related services monthly, for • or other qualified health care G0509 (Telehealth consultation, patients younger than 2 years of age to professional per month) critical care, subsequent, physicians include monitoring for the adequacy of • 90960 (End-stage renal disease typically spend 50 minutes nutrition, assessment of growth and (ESRD) related services monthly, for communicating with the patient and development, and counseling of parents; patients 20 years of age and older; with providers via telehealth.) with 4 or more face-to-face visits by a 4 or more face-to-face visits by a We are seeking information on how physician or other qualified health care physician or other qualified health care these services are furnished via professional per month) professional per month) telecommunications technology to • 90952 (End-stage renal disease • 90961 (End-stage renal disease ensure that patients are safe and (ESRD) related services monthly, for (ESRD) related services monthly, for receiving adequate care. patients younger than 2 years of age to patients 20 years of age and older; with

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2–3 face-to-face visits by a physician or ‘‘phones’’ since they can also be used care program beneficiaries may owe for other qualified health care professional for audio-only telecommunications. In telehealth services furnished consistent per month) light of the PHE for the COVID–19 with the then applicable coverage and • 90962 (End-stage renal disease pandemic, we believe it is important to payment rules. OIG’s Policy Statement (ESRD) related services monthly, for avoid the potential perception that this is not limited to the services governed patients 20 years of age and older; with language might prohibit use of any by § 410.78 but applies to a broad 1 face-to-face visit by a physician or device that could otherwise meet the category of non-face-to-face services other qualified health care professional interactive requirements for Medicare furnished through various modalities, per month) telehealth, especially given that including telehealth visits, virtual • 90963 (End-stage renal disease leveraging use of such readily available check-in services, e-visits, monthly (ESRD) related services for home technology may be of critical remote care management, and monthly dialysis per full month, for patients importance. remote patient monitoring. The Policy younger than 2 years of age to include Therefore, we are revising Statement applies to a physician or monitoring for the adequacy of § 410.78(a)(3) to add an exception to this other practitioner billing for services nutrition, assessment of growth and language on an interim basis for the provided remotely through information development, and counseling of duration of the PHE for the COVID–19 or communication technology or a parents) pandemic providing that for the hospital or other eligible individual or • 90964 (End-stage renal disease duration of the public health emergency entity billing on behalf of the physician (ESRD) related services for home as defined in § 400.200, ‘‘interactive or practitioner for such services when dialysis per full month, for patients 2– telecommunications system’’ means the physician or other practitioner has 11 years of age to include monitoring for multimedia communications equipment reassigned his or her right to receive the adequacy of nutrition, assessment of that includes, at a minimum, audio and payments to such individual or entity. growth and development, and video equipment permitting two-way, real-time interactive communication D. Communication Technology-Based counseling of parents) Services (CTBS) • 90965 (End-stage renal disease between the patient and distant site (ESRD) related services for home physician or practitioner. In the ‘‘Medicare Program; Revisions dialysis per full month, for patients 12– In addition, the HHS Office for Civil to Payment Policies Under the 19 years of age to include monitoring for Rights (OCR) is exercising enforcement Physician Fee Schedule and Other the adequacy of nutrition, assessment of discretion and waiving penalties for Revisions to Part B for CY 2019; 4 growth and development, and HIPAA violations against health care Medicare Shared Savings Program counseling of parents) providers that serve patients in good Requirements; Quality Payment • 90966 (End-stage renal disease faith through everyday communications Program; Medicaid Promoting (ESRD) related services for home technologies, such as FaceTime or Interoperability Program; Quality dialysis per full month, for patients 20 Skype, during the PHE for the COVID– Payment Program-Extreme and years of age and older) 19 pandemic. For more information, see Uncontrollable Circumstance Policy for • 90967 (End-stage renal disease https://www.hhs.gov/hipaa/for- the 2019 MIPS Payment Year; (ESRD) related services for dialysis less professionals/special-topics/emergency- Provisions From the Medicare Shared than a full month of service, per day; for preparedness/index.html. While OCR is Savings Program-Accountable Care patients younger than 2 years of age) not imposing penalties for Organizations-Pathways to Success; and • 90968 (End-stage renal disease noncompliance with the regulatory Expanding the Use of Telehealth (ESRD) related services for dialysis less requirements under HIPAA against Services for the Treatment of Opioid than a full month of service, per day; for covered providers in connection with Use Disorder Under the Substance Use- patients 2–11 years of age) the good faith provision of telehealth Disorder Prevention That Promotes • 90969 (End-stage renal disease during the PHE for the COVID–19 Opioid Recovery and Treatment (ESRD) related services for dialysis less pandemic, HHS, OIG, and DOJ continue (SUPPORT) for Patients and Communities Act’’ final rule (83 FR than a full month of service, per day; for to actively monitor for any healthcare 59452 through 60303) (hereinafter patients 12–19 years of age) fraud and abuse, including potential referred to as the CY 2019 PFS final • 90970 (End-stage renal disease Medicare coronavirus scams. rule), we noted that under current PFS (ESRD) related services for dialysis less 2. Beneficiary Cost-Sharing payment rules, Medicare routinely pays than a full month of service, per day; for In response to the unique for many kinds of services that are patients 20 years of age and older) circumstances resulting from the furnished via telecommunications C. Telehealth Modalities and Cost- outbreak of COVID–19 and the technology (83 FR 59482), but are not Sharing Secretary’s January 31, 2020 considered Medicare telehealth services. determination under section 319 of the These communication technology-based 1. Clarifying Telehealth Technology Public Health Service Act that a PHE services (CTBS) include, for example, Requirements exists and has existed since January 27, certain kinds of remote patient Our regulation at § 410.78(a)(3) states 2020 (COVID–19 Declaration), the Office monitoring (either as separate services that telephones, facsimile machines, of Inspector General (OIG) issued a or as parts of bundled services), and and electronic mail systems do not meet Policy Statement 5 to notify physicians interpretations of diagnostic tests when the definition of an interactive and other practitioners that they will furnished remotely. These services are telecommunications systems for not be subject to administrative different than the kinds of services purposes of Medicare telehealth sanctions for reducing or waiving any specified in section 1834(m) of the Act, services. As we interpret it, this cost-sharing obligations Federal health in that they are not the kind of services regulation does not apply to mobile that are ordinarily furnished in person computing devices that include audio 4 Health Insurance Portability and Accountability but are routinely furnished using a Act of 1996 (Pub. L. 104–191, enacted August 21, and video real-time interactive 1996). telecommunications system. capabilities, even though such devices 5 https://oig.hhs.gov/fraud/docs/ In the CY 2019 PFS final rule, we are now referred to colloquially as alertsandbulletins/2020/policy-telehealth-2020.pdf. finalized separate payment for a number

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of services that could be furnished via should a significant increase in the patient, for up to 7 days, cumulative telecommunications technology, but number of people or health care time during the 7 days; 5–10 minutes), that are not Medicare telehealth professionals needing treatment or 99422 (Online digital evaluation and services. Specifically, we finalized isolation occur in a way that would management service, for an established Healthcare Common Procedure Coding limit access to brief communications patient, for up to 7 days, cumulative System (HCPCS) code G2010 (Remote with established providers. Therefore, time during the 7 days; 11–20 minutes), evaluation of recorded video and/or on an interim basis, during the PHE for and 99423 (Online digital evaluation images submitted by an established the COVID–19 pandemic, we are and management service, for an patient (e.g., store and forward), finalizing that these services, which established patient, for up to 7 days, including interpretation with follow-up may only be reported if they do not cumulative time during the 7 days; 21 with the patient within 24 business result in a visit, including a telehealth or more minutes). We also finalized hours, not originating from a related E/ visit, can be furnished to both new and separate payment for HCPCS codes M service provided within the previous established patients. We are also making G2061 (Qualified nonphysician 7 days nor leading to an E/M service or clear that the consent to receive these healthcare professional online procedure within the next 24 hours or services can be documented by auxiliary assessment and management, for an soonest available appointment), and staff under general supervision. While established patient, for up to seven HCPCS code G2012 (Brief we continue to believe that beneficiary days, cumulative time during the 7 communication technology-based consent is necessary so that the days; 5–10 minutes), G2062 (Qualified service, e.g. virtual check-in, by a beneficiary is notified of any applicable nonphysician healthcare professional physician or other qualified health care cost sharing, we do not believe that the online assessment and management professional who can report evaluation timing or manner in which beneficiary service, for an established patient, for and management services, provided to consent is acquired should interfere up to seven days, cumulative time an established patient, not originating with the provision of one of these during the 7 days; 11–20 minutes), and from a related E/M service provided services. Therefore, we are finalizing on G2063 (Qualified nonphysician within the previous 7 days nor leading an interim basis during the PHE for the qualified healthcare professional to an E/M service or procedure within COVID–19 pandemic that, while assessment and management service, the next 24 hours or soonest available consent to receive these services must for an established patient, for up to appointment; 5–10 minutes of medical be obtained annually, it may be seven days, cumulative time during the discussion). We finalized these codes as obtained at the same time that a service 7 days; 21 or more minutes) (84 FR part of the set of codes that is only is furnished. We are also re-emphasizing 62796). reportable by the physicians and that this consent may be obtained by In the context of the PHE for the practitioners who can furnish auxiliary staff under general COVID–19 pandemic, where evaluation and management (E/M) supervision, as well as by the billing communications with practitioners services. We stated that we believed this practitioner. We are retaining the might mitigate the need for an in-person was appropriate since the service requirement that in instances when the visit that could represent an exposure describes a check-in directly with the brief communication technology-based risk for vulnerable patients, we do not billing practitioner to assess whether an service originates from a related E/M believe the limitation of these services office visit is needed. However, we did service (including one furnished as a to established patients is warranted. While some of the code descriptors refer note that similar check-ins provided by telehealth service) provided within the to ‘‘established patient,’’ during the nurses and other clinical staff can be previous 7 days by the same physician PHE, we are exercising enforcement important aspects of coordinated patient or other qualified health care discretion on an interim basis to relax care (83 FR 59486). professional, that this service would be We also finalized that these services enforcement of this aspect of the code considered bundled into that previous be limited to established patients, and descriptors. Specifically, we will not E/M service and would not be that beneficiary consent must be conduct review to consider whether separately billable. documented in the patient’s medical those services were furnished to record for each service (83 FR 59487). In the ‘‘Medicare Program; CY 2020 established patients. This latter provision was amended in Revisions to Payment Policies Under the Additionally, in the CY 2020 PFS the CY PFS 2020 final rule to allow for Physician Fee Schedule and Other final rule (84 FR 62796), we stated that a single beneficiary consent to be Changes to Part B Payment Policies; HCPCS codes G2061–G2063, specific to obtained annually (84 FR 62699). These Medicare Shared Savings Program practitioners who do not report E/M requirements also apply to monthly care Requirements; Medicaid Promoting codes, may describe services outside the management and remote patient Interoperability Program Requirements scope of current Medicare benefit monitoring services. for Eligible Professionals; Establishment categories and as such, may not be In the context of the PHE for the of an Ambulance Data Collection eligible for Medicare payment. We have COVID–19 pandemic, when brief System; Updates to the Quality Payment received a number of questions communications with practitioners and Program; Medicare Enrollment of regarding which benefit categories other non-face-to-face services might Opioid Treatment Programs and HCPCS codes G2061–G2063 fall under. mitigate the need for an in-person visit Enhancements to Provider Enrollment In response to these requests, we are that could represent an exposure risk for Regulations Concerning Improper clarifying here that there are several vulnerable patients, we believe that Prescribing and Patient Harm; and types of practitioners who could bill for these services should be available to as Amendments to Physician Self-Referral these service. For example, the services large a population of Medicare Law Advisory Opinion Regulations described by these codes could be beneficiaries as possible. In some cases, Final Rule’’ (84 FR 62568, November 15, furnished as licensed clinical social use of telecommunication technology 2019) (hereinafter referred to as the CY worker services, clinical psychologist could mitigate the exposure risk, and in 2020 PFS final rule), we finalized services, physical therapist services, such cases, the clinical benefit of using separate payment for CPT codes 99421 occupational therapist services, or technology to furnish the service is self- (Online digital evaluation and speech language pathologist services, so apparent. This would be especially true management service, for an established practitioners that report services in

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those benefit categories could also procedure. It does not mean that the office, and then billed by the physician report these online assessment and physician must be present in the room to the Medicare Administrative management services. when the procedure is performed. Contractor (MAC). By definition, On an interim basis, during the PHE Given the circumstances of the PHE ‘‘incident to a physician’s professional for the COVID–19 pandemic, we are also for the COVID–19 pandemic, we service’’ requires the item or service to broadening the availability of HCPCS recognize that in some cases, the be billed by the physician. We also note codes G2010 and G2012 that describe physical proximity of the physician or that the supervision requirements that remote evaluation of patient images/ practitioner might present additional apply to both services incident to a video and virtual check-ins. We exposure risks, especially for high risk physicians’ service and diagnostic tests recognize that in the context of the PHE patients isolated for their own do not necessarily reflect the for the COVID–19 pandemic, protection or cases where the appropriate level of supervision for practitioners such as licensed clinical practitioner has been exposed to the particular patients, services, and health social workers, clinical psychologists, virus but could otherwise safely care workers. Instead, we view these physical therapists, occupational supervise from another location using levels as the minimum possible therapists, and speech-language telecommunications technology. In requirement for provision of the service pathologists might also utilize virtual these cases, we believe that the current for purposes of Medicare payment. check-ins and remote evaluations requirement would necessarily limit Likewise, even in the context of the PHE instead of other, in-person services access to procedures and tests that for the COVID–19 pandemic and the within the relevant Medicare benefit to could be appropriately supervised by a inherent exposure risks for Medicare facilitate the best available appropriate physician isolated for purposes of beneficiaries, physicians and other care while mitigating exposure risks. We limiting exposure to COVID–19. For health care providers, we believe that in note that this is not an exhaustive list example, we consider the possibility many cases furnishing services without and we are seeking input on other kinds that patients routinely receiving the physical presence of the physician of practitioners who might be furnishing medically necessary physician- in the same location would not be these kinds of services as part of the administered drugs at the office of a appropriate. However, we recognize that Medicare services they furnish in the physician may lose access to the in some cases, technology would allow context of the PHE for the COVID–19 provision of that drug should the appropriate supervision without the pandemic. physician who regularly supervises the physical presence of a physician. In the Further, to facilitate billing of the provision of that drug be isolated for context of the PHE for the COVID–19 CTBS services by therapists for the purposes of minimizing exposure risks. pandemic, given the risks of exposure, reasons described above, we are Likewise, should that same patient need the immediate potential risk to needed designating HCPCS codes G2010, to be isolated for purposes of exposure medical care, the increased demand for G2012, G2061, G2062, or G2063 as risk based on presumed or confirmed health care professionals in the context CTBS ‘‘sometimes therapy’’ services that COVID–19 infection, administering such of the PHE for the COVID–19 pandemic, would require the private practice a drug in the patient’s home would and the widespread use of occupational therapist, physical require the billing professional to telecommunications technology, we therapist, and speech-language accompany the clinical staff to the believe that individual practitioners are pathologist to include the corresponding patient’s home, presumably with the in the best position to make decisions GO, GP, or GN therapy modifier on necessary personal protective based on their clinical judgement in claims for these services. CTBS therapy equipment (PPE) available to both the particular circumstances. Consequently, services include those furnished to a physician and the clinical staff. we are revising the definition of direct new or established patients that the In some cases, depending upon the occupational therapist, physical unique circumstances of individual supervision to allow, for the duration of therapist, and speech-language patients and billing physicians, we the PHE for the COVID–19 pandemic, pathologist practitioner is currently believe that telecommunications direct supervision to be provided using treating under a plan of care. technology could be used in a manner real-time interactive audio and video that would facilitate the physician’s technology. We are seeking information E. Direct Supervision by Interactive immediate availability to furnish from commenters as to whether there Telecommunications Technology assistance and direction without should be any guardrails and what kind Many services paid under the PFS can necessarily requiring the physician’s of risk might this policy introduce for be paid when provided under a level of physical presence in the location where beneficiaries while reducing risk of physician or nonphysician practitioner the service is being furnished, such as COVID–19 spread. We note that this (NPP) supervision rather than personal the office suite or the patient’s home. change is limited to only the manner in performance. In many cases, the For example, we believe that use of real- which the supervision requirement can supervision requirements in physician time, audio and video be met, and does not change the office settings necessitate the presence telecommunications technology allows underlying payment or coverage of the physician or NPP in a particular for a billing practitioner to observe the policies related to the scope of Medicare location, usually in the same location as patient interacting with or responding to benefits, including Part B drugs. We also the beneficiary when the service is the in-person clinical staff through note that any and all applicable rules provided. For example, as described at virtual means, and thus, their regarding safe transportation and proper § 410.26, services incident to a availability to furnish assistance and waste disposal continue to apply. physicians’ service usually require the direction could be met without We note that in specifying that direct direct supervision of a physician. As requiring the physician’s physical supervision includes virtual presence currently defined in § 410.32(b)(3)(ii), presence in that location. We note that through audio/video real-time direct supervision means that the to be covered under Part B, drugs communications technology during the physician must be present in the office furnished ‘‘incident to’’ are typically PHE for the COVID–19 pandemic, this suite and immediately available to injectable drugs that are bought by the can include instances where the furnish assistance and direction physician, in ordinary circumstances physician enters into a contractual throughout the performance of the are administered in the physician’s arrangement for auxiliary personnel as

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defined in § 410.26(a)(1), to leverage audio/video real-time communications indicated to reduce exposure risks for additional staff and technology technology when use of such technology the beneficiary or health care provider. necessary to provide care that would is indicated to reduce exposure risks for F. Clarification of Homebound Status the beneficiary or health care provider. ordinarily be provided incident to a Under the Medicare Home Health physicians’ service (including services 1. Supervision Changes for Certain Benefit that are allowed to be performed via Hospital and CAH Diagnostic and telehealth). For example, physicians Sections 1814(a)(2)(C) and Therapeutic Services may enter into contractual arrangements 1835(a)(2)(A) of the Act state that with a home health agency (defined For all of the same reasons described payment for home health services is under section 1861(o) of the Act), a above, we are adopting similar changes made when a physician certifies that qualified infusion therapy supplier in the regulations at § 410.28(e)(1) with such services are or were required (defined under section 1861(iii)(3)(D) of respect to the supervision of diagnostic because the individual is or was the Act), or entities that furnish services furnished directly or under confined to his home and needs or ambulance services in order to utilize arrangement in the hospital or in an on- needed skilled nursing care (other than their nurses or other clinical staff as campus or off-campus outpatient solely venipuncture for the purpose of auxiliary personnel under leased department of the hospital, as defined in obtaining a blood sample) on an employment (§ 410.26(a)(5)). In such § 413.65. We note that under current intermittent basis or physical or speech instances, the provider/supplier would Medicare rules, most therapeutic therapy or, in the case of an individual seek payment for any services they services in the hospital require only who has been furnished home health provided from the billing practitioner general supervision and the supervision services based on such a need and who and would not submit claims to requirements for diagnostic services no longer has such a need for such care Medicare for such services. For generally conform to the service-level or therapy, continues or continued to telehealth services that need to be supervision levels required for payment need occupational therapy. In addition, the physician must certify that a plan personally provided by a physician, under the PFS. Because we have every for furnishing such services to such such as an E/M visit, the physician reason to believe that potential exposure individual has been established and is would need to personally perform the E/ risks and limits on the availability of periodically reviewed by the physician M visit and report that service as a medical professionals could equally and that such services are or were Medicare telehealth service. However, apply to hospital services, we are furnished while the individual was we acknowledge that there may be amending the definition of direct under the care of a physician. Also, in instances where the physician may want supervision for hospital services for the the case of a certification made by a to use auxiliary personnel to be present duration of the PHE for the COVID–19 physician after January 1, 2010, prior to in the home with the patient during the pandemic so it continues to conform making such certification the physician telehealth service, though this is not with the applicable definitions for must document that the physician required for telehealth services under services paid under the PFS. As stated himself or herself, or an NP or clinical section 1834(m) of the Act. Other above, we believe this change is nurse specialist (CNS) (as those terms services, including both face-to-face and necessary due to the circumstances of are defined in section 1861(aa)(5) of the non-face-to-face services, could be the PHE for the COVID–19 pandemic. Act) who is working in collaboration provided incident to a physicians’ Specifically, we recognize that in some with the physician in accordance with service by a nurse or other auxiliary cases, the physical proximity of the State law, or a certified nurse-midwife personnel, as long as the billing physician or practitioner might present (as defined in section 1861(gg) of the practitioner is providing appropriate additional exposure risks, especially for Act) as authorized by State law, or a PA supervision through audio/video real- high risk patients isolated for their own (as defined in section 1861(aa)(5) of the time communications technology (or in protection or cases where the Act) under the supervision of the person), when needed. We would not practitioner has been exposed to the physician, has had a face-to-face expect that services furnished at a virus but could otherwise safely encounter (including through use of patient’s home incident to a physician supervise from another location using telehealth, subject to the requirements service would usually occur during the telecommunications technology. In in section 1834(m) of the Act, and other same period as a home health episode these cases, we believe that the current than for encounters that are incident to of care, and we will be monitoring definition would necessarily limit services involved, as described in claims to ensure that services are not access to diagnostic procedures and section II.E. of this IFC) with the being inappropriately unbundled from tests that could be appropriately individual within a reasonable payments under the home health PPS. supervised by a physician, including timeframe as determined by the For the reasons discussed above, on one who is isolated for purposes of Secretary. an interim basis for the duration of the limiting exposure to COVID–19. Most recently, we have been asked by PHE for the COVID–19 pandemic, we In addition, with respect to stakeholders to provide more clarity on are altering the definition of direct pulmonary rehabilitation, cardiac whether patients who are instructed to supervision at § 410.32(b)(3)(ii), to state rehabilitation, and intensive cardiac remain in their homes or are under that necessary presence of the physician rehabilitation services described in the ‘‘self-quarantine’’ are considered for direct supervision includes virtual regulations at §§ 410.47 and 410.49, ‘‘confined to the home’’ or presence through audio/video real-time respectively, we are adopting a similar ‘‘homebound’’ for purposes of the communications technology when use change under § 410.27(a)(1)(iv)(D), for Medicare home health benefit in the of such technology is indicated to the duration of the PHE for the COVID– context of the PHE for the COVID–19 reduce exposure risks for the beneficiary 19 pandemic, for all the reasons pandemic. Per sections 1814(a) and or health care provider. We are revising described above, to specify that direct 1835(a) of the Act, an individual shall § 410.32(b)(3)(ii) to include, during a supervision for these services includes be considered to be ‘‘confined to his PHE, as defined in § 400.200 of this virtual presence through audio/video home’’ if the individual has a condition, chapter, the presence of the physician real-time communications technology due to an illness or injury, that restricts includes virtual presence through when use of such technology is the ability of the individual to leave his

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or her home except with the assistance management issued by the CDC. For the beneficiary must be under the care of another individual or the aid of a example, the CDC interim guidance of a physician; receiving services under supportive device (such as crutches, a ‘‘Preventing the Spread of Coronavirus a plan of care established and cane, a wheelchair, or a walker), or if Disease 2019 in Homes and Residential periodically reviewed by a physician; be the individual has a condition such that Communities’’ applies for both in need of skilled nursing care on an leaving his or her home is medically confirmed or suspected COVID–19 intermittent basis or physical therapy or contraindicated. While an individual states that patients who are medically speech-language pathology; or have a does not have to be bedridden to be stable enough to receive care in the continuing need for occupational considered ‘‘confined to his home’’, the home must isolate at home during their therapy. Even if the patient is confined condition of the individual should be illness.7 Additionally, these guidelines to the home because of a suspected such that there exists a normal inability state that patients should restrict diagnosis of an infectious disease as part to leave home and, that leaving home activities outside the home, except for of a pandemic event, a home health visit requires a considerable and taxing effort getting medical care. These restrictions solely to obtain a nasal or throat culture by the individual. include that the individual not go to would not be considered a skilled The definition of ‘‘confined to the work, school, or public areas, as well as service because it would not require the home’’ (that is, ‘‘homebound’’) allows avoiding use of public transportation, skills of a nurse to obtain the culture as patients to be considered ‘‘homebound’’ ride-sharing, or taxis; making it such the specimen could be obtained by an if it is medically contraindicated for the that there exists a normal inability for appropriately-trained medical assistant patient to leave the home. As an an individual to leave home and leaving or laboratory technician. However, a example for the PHE for COVID–19 home would require a considerable and home health nurse, during an otherwise pandemic, this would apply for those taxing effort. covered skilled visit, could obtain the patients: (1) Where a physician has In regards to those circumstances in nasal or throat culture to send to the determined that it is medically which the patient does not have laboratory for testing. Please see section contraindicated for a beneficiary to confirmed or suspected diagnosis of an II.M. of this IFC for further discussion leave the home because he or she has a infectious disease, such as COVID–19, about how a Medicare patient without a confirmed or suspected diagnosis of but the patient’s physician states that it skilled need who is under self- COVID–19; or (2) where a physician has is medically contraindicated for the quarantine may be tested at home. determined that it is medically patient to leave the home because the We believe this clarification is not contraindicated for a beneficiary to patient’s condition may make the limited to the PHE for the COVID–19 leave the home because the patient has patient more susceptible to contracting pandemic, but would also apply for a condition that may make the patient a pandemic disease, the patient would other outbreaks of an infectious disease more susceptible to contracting COVID– be considered ‘‘confined to the home’’ and instances where the condition of a 19. A patient who is exercising ‘‘self- or ‘‘homebound’’ for purposes of this patient is such that it is medically quarantine’’ for one’s own safety would eligibility requirement. For example, if contraindicated for the patient to leave not be considered ‘‘confined to the a patient is having an exacerbation of his or her home. We solicit comments home’’ unless a physician certifies that chronic obstructive pulmonary disease on this clarification. it is medically contraindicated for the (COPD) and the physician certifies that G. The Use of Technology Under the patient to leave the home. For the PHE it is medically contraindicated to leave Medicare Home Health Benefit During for the COVID–19 pandemic, the CDC is the home because the patient’s the PHE for the COVID–19 Pandemic currently advising that older adults and compromised respiratory system makes individuals with serious underlying him or her more likely to contract an Section 1895 of the Act outlines the health conditions stay home (CDC’s infectious disease, such as COVID–19, statutory parameters of the home health guidance is interim and is expected to the patient would be considered prospective payment system (HH PPS) continue to be updated as warranted).6 ‘‘confined to the home’’ in alignment that was implemented on October 1, As such, we expect that many Medicare with Medicare home health eligibility 2000. The HH PPS provides payment for beneficiaries could be considered criteria. Another example of this type of all services furnished under the ‘‘confined to the home’’. However, scenario would be a cancer patient Medicare home health benefit as determinations of whether home health receiving chemotherapy treatment and outlined in section 1861(m) of the Act services are reasonable and necessary, where the physician states that it is in the form of a ‘‘bundled’’ 30-day unit including whether the patient is medically contraindicated for the of payment that is adjusted for case-mix homebound and needs skilled services, patient to leave the home because the and area wage differences in accordance must be based on an assessment of each patient may be more at risk of with section 1895(b) of the Act. Section beneficiary’s individual condition and contracting an infectious disease 1895(e)(1)(A) of the Act states that care needs. because of the patient’s nothing under section 1895 of the Act In cases where it is medically immunocompromised state. In both prevents a home health agency (HHA) contraindicated for the patient to leave examples, the medical contraindication from furnishing services via a the home, the medical record makes it such that there exists a normal telecommunications system, as long as documentation for the patient must inability for an individual to leave home such services do not: (1) Substitute for include information as to why the and leaving home safely would require in-person home health services ordered individual condition of the patient is a considerable and taxing effort. as part of a plan of care certified by a such that leaving the home is medically In addition to being considered physician; and (2) are not considered a contraindicated. With regards to a ‘‘confined to the home’’ or home health visit for purposes of pandemic outbreak of an infectious ‘‘homebound’’, the patient must meet eligibility or payment. In the CY 2019 disease, this can include reviewing and the other Medicare home health HH PPS proposed rule (83 FR 32425), applying any guidance on risk eligibility requirements to receive we stated that ‘‘remote patient assessment and public health Medicare home health services. That is, monitoring’’ is one type of service that can be furnished via a 6 https://www.cdc.gov/coronavirus/2019-ncov/ 7 https://www.cdc.gov/coronavirus/2019-ncov/ telecommunications system to augment specific-groups/high-risk-complications.html. hcp/guidance-prevent-spread.html. a home health plan of care without

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substituting for an in-person visit. In the final claim to Medicare for payment source. Assuming a medium functional CY 2019 HH PPS final rule with (§ 409.43(c)(2)); therefore, HHAs have impairment level with ‘‘low’’ comment (83 FR 56527), for purposes of flexibility on the timing in which they comorbidities, the low-utilization the Medicare home health benefit, we obtain physician signatures for changes payment adjustment (LUPA) threshold finalized the definition of ‘‘remote to the plan of care when incorporating would be 4 visits. Regardless if the patient monitoring’’ in regulation at 42 the use of technology into the patient’s patient continued to receive the original CFR 409.46(e) as the collection of plan of care. In addition, HHAs may 3 in-person skilled nursing visits per physiologic data (for example, ECG, also provide services based on verbal week (12 visits total in the 30-day blood pressure, glucose monitoring) orders in accordance with the period) rather than the once per-week digitally stored and/or transmitted by regulations at §§ 484.60(b) and in-person skilled nursing visits (4 visits the patient and/or caregiver to the HHA. 409.43(d). Finally, on an interim basis total in the 30-day period) the HHA We also included in regulation at HHAs can report the costs of would still receive the full 30-day § 409.46(e) that the costs of remote telecommunications technology as payment amount (rather than paying per patient monitoring are considered allowable administrative and general visit if the total number of visits was allowable administrative costs (A&G) costs by identifying the costs below the LUPA threshold). In this (operating expenses) if remote patient using a subscript between line 5.01 example, the use of technology is not a monitoring is used by the HHA to through line 5.19. substitute for the provision of in-person augment the care planning process (83 We reiterate that by law the use of visits as ordered on the plan of care, as FR 56527). technology may not substitute for an in- the plan of care was updated to reflect person home visit ordered as part of the We received positive feedback from a change in the frequency of the in- plan of care and services furnished via the policy changes finalized in the CY person visits and to include ‘‘virtual a telecommunications system cannot be 2019 HH PPS final rule with comment visits’’ as part of the management of the considered a home health visit for period. Commenters encouraged us to home health patient. purposes of eligibility or payment. even go further in adopting and As discussed previously in section However, we acknowledge that the use promoting technology use in home II.E ‘‘Direct Supervision by Interactive of such technology may result in health. Recently, we have been asked by Telecommunications Technology’’ in changes to the frequency or types of stakeholders to provide more clarity on this IFC, there may be instances during visits outlined on the plan of care, the PHE for the COVID–19 pandemic how HHAs can leverage technology to especially to combat the PHE for the keep home health clinicians and COVID–19 pandemic. For example, a where physicians can enter into a patients safe during outbreaks of an patient recently discharged from the contractual arrangement, that meets the infectious disease, such as the PHE for hospital after coronary bypass surgery definition of auxiliary personnel at the COVID–19 pandemic. While we was receiving home health skilled § 410.26, with another provider/supplier remain statutorily-prohibited from nursing visits three times a week for type. For example, physicians may enter paying for home health services medication management, teaching and into contractual arrangements with a furnished via a telecommunications assessment. The patient developed a HHA, a qualified infusion therapy system if such services substitute for in- fever, cough, sore throat and moderate supplier, or other entity to leverage person home health services ordered as shortness of breath and now has a auxiliary personnel under leased part of a plan of care and for paying confirmed COVID–19 diagnosis, which employment (§ 410.26(a)(5)), including directly for such services under the the doctor has determined can be safely nurses or other clinical staff, to provide home health benefit, for the duration of managed at home with home health virtual visits for patients in their homes. the PHE for the COVID–19 pandemic, services. The patient has been These virtual visits are considered we are amending the regulations at prescribed new medications for provided incident to a physician’s § 409.43(a) on an interim basis to symptom management and oxygen service, as long as the billing provide HHAs with the flexibility, in therapy to support the patient’s practitioner is providing appropriate addition to remote patient monitoring, respiratory status. The patient’s home supervision through audio/video real- to use various types of health plan of care was updated to time communications technology, when telecommunications systems (that is, include an in-person skilled nursing needed. Payment for such services technology) in conjunction with the visit once a week to assess the patient would be made to the billing provision of in-person visits. and to monitor for worsening practitioner who would then make the Specifically, we are amending the symptoms. The plan of care was appropriate payment to the contracted regulations at § 409.43(a) on an interim updated also to include a video entity (for example, the HHA). This basis to state that the use of technology consultation twice a week between the payment would be made in accordance must be related to the skilled services skilled nurse and the patient for with the PFS and would not be being furnished by the nurse/therapist/ medication management, teaching and considered a home health service under therapy assistant to optimize the assessment, as well as to obtain oxygen the Medicare home health benefit. This services furnished during the home visit saturation readings that the patient particular flexibility can enable more or when there is a home visit. We are relays to the nurse during the patients to receive services at home via also amending the regulations at consultation. telehealth for instances in which there § 409.43(a) on an interim basis to state With regards to payment under the are no in-person visits that would that the use of technology must be HH PPS, if the primary reason for home trigger payment under the Medicare HH included on the home health plan of health care is to provide care to manage PPS. As such, we would not expect that care along with a description of how the the symptoms resulting from COVID–19, services furnished at a patient’s home use of such technology will help to this 30-day period of care would be incident to a physician service will achieve the goals outlined on the plan grouped into the Medication, usually occur during the same period as of care without substituting for an in- Management, Teaching and Assessment a home health episode of care, and we person visit as ordered on the plan of (MMTA)—Respiratory clinical group, will be monitoring claims that care. As a reminder, the plan of care and it would be an early 30-day period practitioners are billing under must be signed prior to submitting a of care with an institutional admission arrangement to ensure appropriate

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services are being billed by the respiratory and cardiovascular diseases patients.11 Utilizing individualized practitioner and not being that represent an increasingly high software platforms to monitor appetite, inappropriately unbundled from burden on healthcare systems.9 We mental changes, biometrics, etc., which payments under the HH PPS. referenced some of the benefits of alert care providers of any changes that The remainder of this section remote patient monitoring of chronic may indicate a problem, can be helpful includes information on examples of diseases in the CY 2019 HH PPS in treating the patient in the home prior technology that can be leveraged in proposed rule (83 FR 32425), including to the patient requiring hospitalization. providing care in the home setting, such readmission prevention and improved These patient-facing devices (tablets or as telemedicine, interactive clinician patient involvement and accountability. apps) can be programmed to require the ‘‘consulting’’ and other patient-facing Certain HHAs and industry groups patient to perform a virtual daily technologies; and provides a summary have implemented technology that goes ‘‘check-in’’ to monitor for potential of the regulations text we are amending beyond remote patient monitoring for issues. If the ‘‘check-in’’ goes beyond in this IFC. specified individualized parameters, an In general, technology has become an the treatment of chronic diseases. One such HHA utilizes two-way, interactive alert will signal the HHA to follow-up integral part of medicine across the with the critical care team following the entire spectrum of healthcare. ‘‘consulting’’ between the nurse furnishing the home visit and a patient to accelerate treatment. The Telemedicine, in particular has the software can also be programmed to specialty clinician at the agency. The potential to play a large role in deliver specific care instructions and nurse furnishing the home visit can use enhancing the delivery of healthcare in reminders regarding hygiene or a tablet to visually connect the patient the home for Medicare beneficiaries, medications. In addition to disease- with the specialty clinician or advanced including the provision of information, specific monitoring, patient-facing practice nurse at the agency to assess education, and services provided via technologies can also be integral in swelling, breathing, or to review and telecommunications systems. One of the promoting patient involvement and reconcile medications. These specialty biggest benefits of telemedicine, compliance. Certain scheduling and clinicians are also beneficial in treating separate from its potential to minimize communication platforms allow HHAs acute conditions, such as wounds, or risk to clinicians and patients during an to interface with patients in more ways outbreak of an infectious disease, is to monitoring for the prevention of sepsis. than in-person visits or telephone calls. increase access to healthcare to Wound, Ostomy, and Continence Some devices can ‘‘talk’’ to the patient, geographically disadvantaged and Nurses (WOCNs) are being utilized for even utilizing multiple languages. medically underserved populations, their specialized skills as consultants for Others can provide medication providing an improved quality of care.8 the nurse in the home. The nurse reminders, daily health tips, and assist Telemedicine and remote monitoring furnishing the home visit can use a in arranging for community or caregiver can also be used to encourage patient tablet to connect visually with the support. involvement and autonomy, and to WOCN at the agency to consult on the Overall, we have seen how technology increase the tools available for the home management of the wound. If necessary, can expand the reach of healthcare into health provider. the WOCN can contact the physician or the home, through consultation with Recent CMS site visits with HHAs, as surgeon to relay progress or request a specialized clinicians and critical care well as meetings with industry change in treatment. Specialized teams, as well as through the integration associations detailed the extent to software can even be utilized to assess of devices designed to increase patient which HHAs are researching and the wound with precision and accuracy, involvement and compliance. As integrating technology into their care. including measuring surface area and outlined above, incorporating these 10 These organizations provided examples depth, to improve consistency of care. various forms of technology, in addition of technology they have tested and/or Additionally, incorporating technology to remote patient monitoring as defined are currently using, ranging from patient into home health may be beneficial in under the home health benefit facing apps on cell phones to robotics. attracting these specialty clinicians, (§ 409.46(e)), can be appropriate in Additionally, they provided examples of such as cardiac nurses and WOCNs, to furnishing home health services when patients with specific home health homecare, which promotes the used in conjunction with the provision needs that they believe would benefit provision of a more advanced level of of in-person visits. In addition, most from leveraging technology in care; a benefit that will become technology can be used to minimize the home health care. They indicated a imperative if the home health patient risk of exposure to clinicians, patients, wide variety of uses for technology in population, as a whole, exhibits more and the public during an outbreak of an home health including medication characteristics of an acute care infectious disease, such as the PHE for management and teaching, behavioral/ population. Allowing advanced practice the COVID–19 pandemic. Although crisis or social work counseling, post- clinicians to consult virtually with the HHAs have the flexibility, in addition to transplant monitoring, dietary RN in the home may minimize remote patient monitoring, to use counseling, and even functional training transportation and labor costs and various types of technology, payment through remote occupational or physical potentially improve patient access to for home health services remains therapy. In particular, they highlighted specialty care. contingent on the furnishing of a visit. certain diagnoses and conditions for Telecommunications systems are also Therefore, the use of technology must be which they are already utilizing playing a valuable role in managing related to the skilled services being telecommunications systems. For patients at risk for sepsis after a furnished by the nurse or therapist or diagnoses/conditions such as COPD, hospitalization. Sepsis continues to be a therapy assistant to optimize the congestive heart failure (CHF), sepsis, top diagnosis for hospital 30-day services furnished during the home visit and wounds, technology can offer an readmission rates amongst Medicare or when there is a home visit. To be efficient way of monitoring chronic eligible for the home health benefit, 9 Breathe (Sheff). 2016 Dec; 12(4): 350–356. doi: beneficiaries must need intermittent 8 Int J Environ Res Public Health. 2013 Dec; 10.1183/20734735.014616. 10(12): 6472–6484. Published online 2013 Nov 28. 10 https://parablehealth.com/post-acute- 11 https://www.hcup-us.ahrq.gov/reports/ doi: 10.3390/ijerph10126472. inpatient. statbriefs/sb225-Inpatient-US-Stays-Trends.pdf.

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skilled nursing or therapy services and such as telemedicine and remote patient patient-specific needs as identified in must be considered homebound. monitoring, that enable the necessary the comprehensive assessment and the Covered home health services include flexibility for Medicare beneficiaries to measurable outcomes that the hospice skilled nursing, home health aide, be able to receive medically necessary anticipates will occur as a result of physical therapy, speech-language services without jeopardizing their implementing the plan of care. The pathology, occupational therapy, health or the health of those who are following is an example of where it medical social services, and medical providing such services, while could be appropriate to furnish hospice supplies, provided on a visiting basis in minimizing the overall risk to public services via a telecommunications a place of residence such as the health during the PHE for the COVID– system during the PHE for the COVID– individual’s home (section 1861(m) of 19 pandemic. As we stated above, HHAs 19 pandemic: the Act). A visit is defined at § 409.48(c) can report the costs of A terminally ill 85-year-old male with as an episode of personal contact with telecommunications technology as heart failure has been receiving hospice the beneficiary by staff of the HHA or allowable A&G costs on an interim basis services and recently developed a fever, sore others under arrangements with the by identifying the costs using a throat and cough. The patient has been HHA, for the purpose of providing a subscript between line 5.01 through line diagnosed with suspected COVID–19 and his covered service. Generally, one visit 5.19. We invite feedback on our interim hospice plan of care now includes may be covered each time an HHA changes to the plan of care requirements medications for symptom management. He is mildly short of breath but does not require employee or someone providing home at § 409.43(a). supportive oxygen therapy. The patient’s health services under arrangement with H. The Use of Telecommunications wife is concerned about potential for the HHA enters the beneficiary’s home Technology Under the Medicare worsening cardiac and respiratory symptoms and provides a covered service to a Hospice Benefit as a result of the patient’s risk for increased beneficiary. complications due to COVID–19. The hospice To appropriately recognize the role of As outlined in section II.G. of this plan of care has been updated to include technology in furnishing services under IFC, The Use of Technology Under the remote patient monitoring with a the Medicare home health benefit, the Medicare Home Health Benefit, telecommunications system to assess the use of such technology must be technology has become an integral part patient’s daily weight and oxygen saturation of medicine across the entire spectrum levels. The plan of care identifies the included on the plan of care. The measurable goal that the patient will inclusion of technology on the plan of of healthcare. Telemedicine, in maintain an oxygen level above 92 percent care must continue to meet the particular has the potential to play a and the patient will not gain more than 2 requirements at § 484.60, and must be large role in enhancing the delivery of pounds in a 24-hour period. The plan of care tied to the patient-specific needs as healthcare in the home, including the identifies interventions if either of these identified in the comprehensive provision of information, education, and goals are not met. The remote patient assessment and the measurable services provided via monitoring allows for more expedited outcomes that the HHA anticipates will telecommunications systems. One of the modifications to the plan of care in response to the patient’s changing needs. occur as a result of implementing the benefits of telemedicine is its potential plan of care. For example, if a physician to minimize risk to clinicians and We believe that this clarification in orders an in-person skilled nursing visit patients during an outbreak of an the regulations at § 418.204 will help to once a week to assess the patient and to infectious disease, such as the PHE for increase access to technologies, such as monitor for worsening symptoms and a the COVID–19 pandemic. Recently, we telemedicine and remote patient video consultation twice a week have been asked by stakeholders to monitoring, that enable the necessary between the skilled nurse and the provide more clarity on how hospices flexibility for patients to be able to patient for medication management, can leverage technology to keep receive necessary services without teaching and assessment, as well as to clinicians and patients safe during the jeopardizing their health or the health of obtain oxygen saturation readings that PHE for the COVID–19 pandemic. those who are providing those services, the patient relays to the nurse during For the duration of the PHE for the while minimizing the overall risk to the consult; the plan of care could COVID–19 pandemic, we are amending public health during the PHE for the specify that the goal of the video the hospice regulations at 42 CFR COVID–19 pandemic. Hospices are paid consultation is to increase patient 418.204 on an interim basis to specify a per diem payment amount based on adherence with medication regimen and that when a patient is receiving routine the level of care for each day that a oxygen use with no worsening home care, hospices may provide patient is under a hospice election respiratory symptoms. services via a telecommunications (§ 418.302). There is no payment beyond In summary, we are amending the system if it is feasible and appropriate the per diem amount for the use of plan of care requirements at § 409.43(a) to do so to ensure that Medicare patients technology in providing services under on an interim basis, for the purposes of can continue receiving services that are the hospice benefit. For the purposes of Medicare payment, to state that the plan reasonable and necessary for the the hospice claim submission, only in- of care must include any provision of palliation and management of a person visits (with the exception of remote patient monitoring or other patients’ terminal illness and related social work telephone calls) should be services furnished via a conditions without jeopardizing the reported on the claim. However, telecommunications system, and that patients’ health or the health of those hospices can report the costs of these services cannot substitute for a who are providing such services during telecommunications technology used to home visit ordered as part of the plan the PHE for the COVID–19 pandemic. furnish services under the routine home of care and cannot be considered a To appropriately recognize the role of care level of care during the PHE for the home visit for the purposes of patient technology in furnishing services under COVID–19 pandemic as ‘‘other patient eligibility or payment. The plan of care the hospice benefit, the use of such care services’’ using Worksheet A, cost must include a description of how the technology must be included on the center line 46, or a subscript of line 46 use of such technology will help to plan of care. The inclusion of through 46.19, cost center code 4600 achieve the goals outlined on the plan technology on the plan of care must through 4619, and identifying this cost of care. We believe that this change will continue to meet the requirements at center as ‘‘PHE for COVID–19’’. We help to increase access to technologies, § 418.56, and must be tied to the invite feedback on our changes to the

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special requirements for coverage at individual’s medical care (§ 418.3). sites (except for the patient’s home) in § 418.204. However, we note that PAs are not any geographic location. The provision authorized to perform the required face- established a definition of ‘‘qualified I. Telehealth and the Medicare Hospice to-face encounter under section providers’’ that specifies the Face-to-Face Encounter Requirement 1814(a)(7)(D)(i) of the Act. In the event practitioners eligible for furnishing To receive hospice services under the of a pandemic outbreak of an infectious distant site services under the waiver. Medicare hospice benefit, a beneficiary disease, such as COVID–19, an example Specifically, the practitioners currently must be certified as terminally ill with of direct patient care during the course permitted to furnish distant site a medical prognosis of a life expectancy of an in-person face-to-face visit for telehealth services under section of 6 months or less if the illness runs its recertification for Medicare beneficiaries 1834(m) of the Act—physicians (as normal course, in accordance with could be as follows: defined in section 1861(r) of the Act) section 1814(a)(7) of the Act and as An 85-year-old male with a primary and NPPs (as defined in section codified in § 418.22. A written diagnosis of end stage heart failure with 1842(b)(18)(C) of the Act)—would be certification is required at the beginning diabetes, peripheral vascular disease, and eligible to furnish telehealth services of the first 90-day period of hospice hypertension is being seen by the hospice under the waiver to patients with an care, a subsequent 90-day period and physician for hospice recertification and has established relationship with the each 60-day period thereafter. The developed a fever, cough and mild shortness practitioner or a practitioner in the same hospice must obtain written of breath over the last 24 hours. After discussion with his caregiver, the hospice practice (defined by tax identification certification of terminal illness for each number (TIN)). This would be benefit period, even if a single election physician discovers that the patient had a visit from his niece who was found to be determined based on a patient for whom continues in effect. In accordance with COVID–19 positive. The physician washes Medicare payment was made for an item section 1814(a)(7)(D)(i) of the Act, a his hands, puts on gloves and then places a or service furnished by the practitioner hospice physician or hospice NP must mask on himself, the patient and caregiver. (or another practitioner within the same have a face-to-face encounter with each After examining the patient, the physician practice) within the previous 3 years.12 Medicare hospice patient whose total discusses with the patient and caregiver if he The telehealth waiver is in effect and is would like to be tested for COVID–19 and if stay across all hospices is anticipated to limited to the PHE for the COVID–19 reach the 3rd benefit period. The face- he would like to continue to be treated at home. The patient decides that he would like pandemic. to-face encounter must occur prior to, The statute is silent as to whether a but no more than 30 calendar days prior to be treated at home and that he would like to be tested. The nasopharyngeal and face-to-face encounter solely for the to, the 3rd benefit period recertification, oropharyngeal swabs are performed. The purpose of Medicare hospice and every benefit period recertification hospice physician discusses with the recertification (meaning there is no thereafter, to gather clinical findings to patient’s caregiver infection control direct patient care) could be conducted determine continued eligibility for techniques, symptomatic treatment, and via telecommunications technology by hospice care. provides them with gloves and disposable The Medicare hospice face-to-face masks. During the course of this the hospice physician or NP. Given that encounter is an administrative recertification visit, the hospice physician a face-to-face visit solely for the purpose requirement related to certifying the provided direct patient care, and therefore, of recertification for Medicare hospice can bill for such services. terminal illness as required in section services is considered an administrative 1814(a)(7)(D)(i) of the Act. By itself, it is While we do not believe that direct requirement related to certifying the not billable, as it is considered patient care for Medicare hospice terminal illness as required in section administrative (see Pub. 100–04, patients will typically be furnished via 1814(a)(7)(D)(i) of the Act, we believe Medicare Claims Processing Manual, telehealth, we note that nothing in that such visit could be performed via chapter 11, section 40.1.1). However, if statute or regulation precludes a hospice telecommunications technology as a a hospice physician, or a hospice NP designated attending physician from result of the PHE for the COVID–19 who is also the patient’s designated furnishing services via telehealth in pandemic. We recognize that public attending physician, provides accordance with section 1834(m) of the exposure during a pandemic event of an reasonable and necessary non- Act. In response to the PHE for the infectious disease greatly increases the administrative patient care during the COVID–19 pandemic, The Coronavirus overall risk to public health and face-to-face visit, that portion of the visit Preparedness and Response terminally ill patients are exceptionally would be billable under the Medicare Supplemental Appropriations Act, 2020 vulnerable to complications associated rules. There are additional requirements was signed into law on March 6, 2020. with COVID–19. Therefore, we are for billing physician services provided Section 102 of the Coronavirus amending the regulations at by NPs (see Pub. 100–04, chapter 11, Preparedness and Response § 418.22(a)(4) on an interim basis to section 40.1.3.2). Therefore, if a hospice Supplemental Appropriations Act, 2020 allow the use of telecommunications physician or the hospice NP acting as gives the Secretary the authority to technology by the hospice physician or the patient’s designated attending waive: (1) The telehealth originating site NP for the face-to-face visit when such physician provides direct patient care requirements under section visit is solely for the purpose of during the course of the face-to-face 1834(m)(4)(C) of the Act (both recertifying a patient for hospice encounter, the physician or NP may bill geographic and site of service) for services during the PHE for the COVID– for such direct care services for telehealth services furnished in an 19 pandemic. By telecommunications Medicare beneficiaries under the PFS. emergency area; and (2) the restriction As a reminder, the hospice benefit on use of a telephone for furnishing 12 We note that HHS will not conduct audits to ensure that such prior relationship existed for defines an ‘‘attending physician’’ as a telehealth services (in § 410.78(a)(3)), claims submitted during this PHE. Also, effective doctor of medicine or osteopathy, an but only if the telephone has audio and immediately, the HHS Office for Civil Rights (OCR) NP, or a PA designated by the video capabilities that are used for two- will exercise enforcement discretion and waive individual at the time he or she elects way, real-time interactive penalties for HIPAA violations against health care providers that serve patients in good faith through to receive hospice care as having the communication. The originating site everyday communications technologies, such as most significant role in the facility fee would be paid to originating FaceTime or Skype, during the COVID–19 determination and delivery of the sites on the current list of permissible nationwide PHE.

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technology, we mean the use of to temporarily allow the face-to-face K. Removal of the IRF Post-Admission multimedia communications equipment visit requirements at §§ 412.622(a)(3)(iv) Physician Evaluation Requirement for that includes, at a minimum, audio and and 412.29(e) to be conducted via the PHE for the COVID–19 Pandemic video equipment permitting two-way, telehealth to safeguard the health and and Clarification Regarding the ‘‘3- real-time interactive communication safety of Medicare beneficiaries and the Hour’’ Rule between the patient (from home, or any rehabilitation physicians treating them. IRF care is only considered by other site permissible for receiving This allows rehabilitation physicians to Medicare to be reasonable and necessary services under the hospice benefit) and use telehealth services as defined in under section 1862(a)(1) of the Act if the distant site hospice physician or section 1834(m)(4)(F) of the Act, to patient meets all of the IRF coverage hospice NP.13 Such encounters solely conduct the required 3 physician visits requirements outlined in for the purpose of recertification would per week during the PHE for the § 412.622(a)(3), (4), and (5). Failure to not be a separately billed service, but COVID–19 pandemic. By increasing meet the IRF coverage criteria in a rather considered an administrative access to telehealth, this IFC will particular case results in denial of the expense. We request feedback on the provide the necessary flexibility for IRF claim. Under § 412.622(a)(4)(ii), to amendments to the face-to-face visit Medicare beneficiaries to be able to document that each patient for whom requirement for hospice recertification receive medically necessary services the IRF seeks payment is reasonably during the PHE for the COVID–19 without jeopardizing their health or the expected to meet all of the requirements pandemic. health of those who are providing those in § 412.622(a)(3) at the time of J. Modification of the Inpatient services, while minimizing the overall admission, the patient’s medical record Rehabilitation Facility (IRF) Face-to- risk to public health. at the IRF must contain a post- Face Requirement for the PHE During To effectuate these changes, on an admission physician evaluation that the COVID–19 Pandemic interim basis we are finalizing revisions meets ALL of the following to the regulations at §§ 412.622(a)(3)(iv) Under 42 CFR 412.622(a)(3)(iv), for an requirements: and 412.29(e) during the PHE for the • inpatient rehabilitation facility (IRF) It is completed by the rehabilitation COVID–19 pandemic. claim to be considered reasonable and physician within 24 hours of the In § 412.622(a)(3)(iv), we are revising necessary under section 1862(a)(1) of patient’s admission to the IRF. this paragraph to state that physician • the Act, there must be a reasonable It documents the patient’s status on supervision by a rehabilitation expectation at the time of the patient’s admission to the IRF, includes a admission to the IRF that the patient physician is required, except that during comparison with the information noted requires physician supervision by a the PHE, as defined in § 400.200, such in the preadmission screening rehabilitation physician, defined as a visits may be conducted using documentation, and serves as the basis licensed physician with specialized telehealth services (as defined in section for the development of the overall training and experience in inpatient 1834(m)(4)(F) of the Act). The individualized plan of care. rehabilitation. The requirement for requirement for medical supervision • It is retained in the patient’s medical supervision means that the means that the rehabilitation physician medical record at the IRF. rehabilitation physician must conduct must conduct face-to-face visits with the In an effort to provide rehabilitation face-to-face visits with the patient at patient at least 3 days per week physicians with as much flexibility as least 3 days per week throughout the throughout the patient’s stay in the IRF possible, we are removing the post- patient’s stay in the IRF to assess the to assess the patient both medically and admission physician evaluation patient both medically and functionally, functionally, as well as to modify the requirement at § 412.622(a)(4)(ii) for all as well as modify the course of course of treatment as needed to IRFs during the PHE for the COVID–19 treatment as needed to maximize the maximize the patient’s capacity to pandemic. We believe that removal of patient’s capacity to benefit from the benefit from the rehabilitation process. this requirement will greatly reduce the rehabilitation process. The post-admission physician amount of time rehabilitation The purpose of the physician evaluation described in paragraph physicians in IRFs spend on completing supervision requirement is to ensure (a)(4)(ii) may count as one of the face- paperwork requirements when a patient that the patient’s medical and functional to-face visits. is admitted to the IRF, and will free up statuses are being continuously In § 412.29(e), we are revising this their time to focus instead on caring for monitored as the patient’s overall plan paragraph to state that a procedure must patients and helping where they may be of care is being carried out. be in effect to ensure that patients needed with the PHE for the COVID–19 We continue to believe it is in the receive close medical supervision, as pandemic. Accordingly, we are patient’s best interest to be seen in evidenced by at least 3 face-to-face visits amending § 412.622(a)(4)(ii) to note that person by a rehabilitation physician to per week by a licensed physician with the post-admission physician evaluation assess their medical and functional specialized training and experience in is not required during the PHE for the statuses while at the IRF, and we inpatient rehabilitation to assess the COVID–19 pandemic. To effectuate this encourage rehabilitation physicians to patient both medically and functionally, change, on an interim basis, we are continue to visit IRF patients in person as well as to modify the course of revising § 412.622(a)(4)(ii) to specify as long as all necessary precautions, treatment as needed to maximize the that the post-admission physician including the use of PPE, are taken to patient’s capacity to benefit from the evaluation is not required during the ensure the health and safety of the rehabilitation process, except that PHE for the COVID–19 pandemic. patient and the physician. However, during the PHE, as defined in § 400.200, We note that this does not preclude during the PHE for the COVID–19 such visits may be conducted using an IRF patient from being evaluated by pandemic, we believe that it is essential telehealth services (as defined in section a rehabilitation physician within the 1834(m)(4)(F) of the Act). first 24 hours of admission if the IRF 13 Section 410.78(a)(2) defines a ‘‘distant site’’ as We welcome feedback on these believes that the patient’s condition the site at which the physician or practitioner delivering the service is located at the time the revisions to the regulations at warrants such an evaluation. service is provided via a telecommunications §§ 412.622(a)(3)(iv) and 412.29(e) for the We invite feedback on our removal of system. duration of the PHE. the post-admission physician evaluation

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documentation requirement at patient and an RHC or FQHC Services’’ for a ‘‘virtual check-in’’ and § 412.622(a)(4)(ii) for all IRFs during the practitioner during which time one or separate payment for remote evaluation PHE for the COVID–19 pandemic. more RHC or FQHC qualifying services of recorded video and/or images. In addition, we are providing clarity are furnished. RHC and FQHC ‘‘Virtual check-ins’’ are brief (5 to 10 for all IRFs during the PHE for the practitioners are physicians, NPs, PAs, minutes), non-face-to-face check ins COVID–19 pandemic with regard to the certified nurse midwives, clinical with a patient via communication intensive rehabilitation therapy psychologists, and clinical social technology to assess whether the requirements for IRF coverage at workers, and under certain conditions, patient’s condition necessitates an office § 412.622(a)(3)(ii), commonly known as a registered nurse (RN) or licensed visit. This service could be billed only the ‘‘3-hour’’ rule. Section practical nurse furnishing care to a in situations where the medical 412.622(a)(3)(ii) generally requires that a homebound RHC or FQHC patient. A discussion was for a condition not beneficiary be reasonably expected to Transitional Care Management service related to an RHC or FQHC visit actively participate in, and benefit from, can also be an RHC or FQHC visit. A furnished within the previous 7 days, an intensive rehabilitation therapy Diabetes Self-Management Training and does not lead to an RHC or FQHC program on admission to the IRF. Under (DSMT) service or a Medical Nutrition visit within the next 24 hours or at the current industry standards, this Therapy (MNT) service furnished by a soonest available appointment. We also intensive rehabilitation therapy program certified DSMT or MNT provider may proposed payment for remote evaluation generally consists of at least 3 hours of also be an FQHC visit. of patient-transmitted information therapy (physical therapy, occupational RHCs are paid an all-inclusive rate conducted via pre-recorded ‘‘store and therapy, speech-language pathology, or (AIR) for medically-necessary, face-to- forward’’ video or image technology, prosthetics/orthotics therapy) per day at face visits with an RHC practitioner. including interpretation with verbal least 5 days per week. In certain well- The rate is subject to a payment limit, follow-up with the patient within 24 documented cases, this intensive except for those RHCs that have an business hours. We had proposed that rehabilitation therapy program might exception to the payment limit for being payment would be made if the remote instead consist of at least 15 hours of ‘‘provider-based’’ (see § 413.65). FQHCs evaluation did not originate from a intensive rehabilitation therapy within a are paid the lesser of their actual related RHC or FQHC visit furnished 7-consecutive day period, beginning charges or the FQHC PPS rate for within the previous 7 days, or lead to with the date of admission to the IRF. medically-necessary, face-to-face visits an RHC or FQHC visit within the next Benefit from this intensive with an FQHC practitioner. Only 24 hours or soonest available rehabilitation therapy program is medically-necessary medical, mental appointment. demonstrated by measurable health, or qualified preventive health In the CY 2019 PFS final rule (83 FR improvement that will be of practical services that require the skill level of an 59683), we finalized requirements and value to the patient in improving the RHC or FQHC practitioner can be RHC payment for RHCs and FQHCs patient’s functional capacity or or FQHC billable visits. furnishing Virtual Communication adaptation to impairments. The required The RHC and FQHC payment rates Services. Effective January 1, 2019, therapy treatments must begin within 36 reflect the cost of all services and RHCs and FQHCs are paid for Virtual hours from midnight of the day of supplies that an RHC or FQHC furnishes Communication Services HCPCS code admission to the IRF. to a patient in a single day, and are not G0071 (Payment for communication We recognize that IRFs may have adjusted for the complexity of the technology-based services for 5 minutes difficulties in meeting these patient health care needs, the length of or more of a virtual (non-face-to-face) requirements because normal staffing the visit, or the number or type of communication between an RHC or shifts may be disrupted as staff who practitioners involved in the patient’s FQHC practitioner and RHC or FQHC would conduct the therapy program care. Services furnished by auxiliary patient, or 5 minutes or more of remote may have COVID–19, be self-isolated, or personnel (such as nurses, medical evaluation of recorded video and/or be unavailable for other reasons related assistants, or other clinical personnel images by an RHC or FQHC practitioner, to the PHE. As such, while these acting under the supervision of the RHC occurring in lieu of an office visit; RHC requirements remain in place, we are or FQHC practitioner) are considered to or FQHC only). HCPCS code G0071 is clarifying that in cases where an IRF’s be incident to the visit and are included on an RHC or FQHC claim, either alone intensive rehabilitation therapy program in the per-visit payment. This may or with other payable services, and at is impacted by the PHE for the COVID– include services furnished prior to or least 5 minutes of communication 19 pandemic (for example, due to after the billable visit that occur within technology-based or remote evaluation staffing disruptions resulting from self- a medically appropriate time period, services are furnished by an RHC or isolation, infection, or other which is usually 30 days or less. FQHC practitioner to a patient who has circumstances related to the PHE), the RHCs and FQHCs are also paid for had an RHC or FQHC billable visit IRF should not feel obligated to meet the care management services, including within the previous year, and the industry standards referenced in chronic care management services, medical discussion or remote evaluation § 412.622(a)(3)(ii), but should instead general behavioral health integration is for a condition not related to an RHC make a note to this effect in the medical services, and psychiatric Collaborative or FQHC service provided within the record. Care Model services. These are typically previous 7 days, and does not lead to an non-face-to-face services that do not RHC or FQHC visit within the next 24 L. Rural Health Clinics (RHCs) and require the skill level of an RHC or hours or at the soonest available Federally Qualified Health Centers FQHC practitioner and are not included appointment. We added a new (FQHCs) in the RHC or FQHC payment paragraph (e) to 42 CFR 405.2464 to 1. Expansion of Virtual Communication methodologies. reflect this payment. Services Furnished by RHCs and FQHCs In the CY 2019 PFS proposed rule (83 HCPCS code G0071 is set at the FR 35863), we proposed separate average of the national non-facility PFS a. Background payments to RHCs and FQHCs for payment rates for HCPCS code G2012 RHC and FQHC visits are face-to-face certain CTBS referred to as ‘‘Brief (communication technology-based (in-person) encounters between a Communication Technology-Based services) and HCPCS code G2010

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(remote evaluation services) and is expanding the services that can be must be obtained before the services are updated annually based on the PFS included in the payment for HCPCS billed. We will also allow patient national non-facility payment rate for code G0071, and update the payment consent to be acquired by staff under the these codes. RHC and FQHC face-to-face rate to reflect the addition of these general supervision of the RHC or FQHC requirements are waived when these services. Specifically, we are adding the practitioner for the virtual services are furnished to an RHC or following three CPT codes: communication and monthly care FQHC patient. Coinsurance and • 99421 (Online digital evaluation management codes during the PHE for deductibles apply to RHC claims for and management service, for an the COVID–19 pandemic. These changes HCPCS code G0071 and coinsurance established patient, for up to 7 days, are consistent with the flexibilities were applies to FQHC claims for HCPCS code cumulative time during the 7 days; 5–10 are establishing for similar services paid G0071. minutes) under the PFS as described in section • 99422 (Online digital evaluation II.D. of this IFC. b. Improving Access to Care and management service, for an Management and Virtual established patient, for up to 7 days, 2. Revision of Home Health Agency Communication Services Furnished by cumulative time during the 7 days; 11– Shortage Area Requirements for RHCs and FQHCs 20 minutes) Furnishing Visiting Nursing Services • RHCs and FQHCs furnish services in 99423 (Online digital evaluation a. Background rural and urban areas that have been and management service, for an determined to be medically underserved established patient, for up to 7 days, Sections 1861(aa)(1)(A) and (B) of the areas or health professional shortage cumulative time during the 7 days; 21 Act describes RHC and FQHC services areas. They are an integral component of or more minutes) as services and supplies furnished by a the Nation’s health care safety net, and We are revising the payment rate for physician, PA, NP, clinical psychologist we want to ensure that Medicare HCPCS code G0071 to include the clinical social worker; and items and patients who are served by RHCs and national non-facility payment rates for services furnished incident to these FQHCs are able to communicate with these three new codes. Effective for services, and specifies requirements for their RHC or FQHC practitioner in a services furnished on or after March 1, these practitioners and services. manner that enhances access to care, 2020 and throughout the PHE for the In the case of an RHC or FQHC that consistent with evolving medical care. COVID pandemic, the payment rate for is located in an area in which there Particularly in rural areas where HCPCS code G0071 will be the average exists a shortage of HHAs, part-time or transportation is limited and distances of the PFS national non-facility payment intermittent nursing care and related may be far, we believe the use of CTBS rate for HCPCS code G2012 medical supplies (other than drugs and may help some patients to determine if (communication technology-based biologicals) are authorized under they need to schedule a visit at the RHC services), HCPCS code G2010 (remote section 1861(aa)(1)(C) of the Act. These or FQHC. If it is determined that a visit evaluation services), CPT code 99421, services can be furnished by a registered is not necessary, the RHC or FQHC CPT code 99422, and CPT code 99423. professional nurse or licensed practical practitioner would be available for other The RHC and FQHC face-to-face nurse to a homebound individual under patients who need their care. requirements are be waived for these a written plan of treatment that is In the CY 2019 PFS final rule (83 FR services. Section 405.2464(e) establishes established and periodically reviewed 59452), we finalized payment for new payment for communication by an RHC or FQHC physician, or online digital assessment services, also technology-based and remote evaluation established by a NP or PA and referred to as ‘‘E-Visits,’’ for services, and no regulatory changes are periodically reviewed and approved by practitioners billing under the PFS. required. the RHC or FQHC physician. These are non-face-to face, patient- The services that are payable using In § 405.2416, we specify that visiting initiated communications using online HCPCS code G0071 require that the nurse services are covered if all of the patient portals. An online patient portal beneficiary has been seen by an RHC or following are met: is a secure online website that gives FQHC practitioner during the previous • The RHC or FQHC is located in an patients 24-hour access to personal 12 months. Under the current PHE for area in which the Secretary has health information from anywhere with the COVID–19 pandemic, we believe determined that there is a shortage of an internet connection by using a secure that it is necessary to make these HHAs; username and password. These digital services available to beneficiaries who • The services are rendered to a assessment services are for established would otherwise not have access to homebound individual; patients who require a clinical decision clinically appropriate in-person • The services are furnished by a that otherwise typically would have treatment. Therefore, during the PHE for registered professional nurse or licensed been provided in the office. To the COVID–19 pandemic, we are practical nurse that is employed by, or minimize risks associated with exposure finalizing that all virtual receives compensation for the services to COVID–19, and to provide the best communication services that are billable from the RHC or FQHC; care possible during the PHE for the using HCPCS code G0071 will also be • The services are furnished under a COVID–19 pandemic, we believe that available to new patients that have not written plan of treatment that is RHCs and FQHC practitioners, like been seen in the RHC or FQHC within established and reviewed at least every many other health care providers, the previous 12 months. Also, in 60 days by a supervising physician of should explore the use of interactive situations where obtaining prior the RHC or FQHC; or established by an communications technology in the place beneficiary consent would interfere NP, PA or certified nurse midwife of services that would have otherwise with the timely provision of these (CNM); and reviewed at least every 60 been furnished in person and reported services, or the timely provision of the days by a supervising physician. The and paid under the established monthly care management services, written plan of treatment must be signed methodologies. during the PHE for the COVID–19 by the supervising physician, NP, PA or To facilitate the ability of RHCs and pandemic consent can obtained when CNM of the RHC or FQHC. FQHCs to take such measures when the services are furnished instead of Nursing care that is covered by this appropriate, on an interim basis, we are prior to the service being furnished, but section includes services that must be

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performed by a registered professional section 1835(a) of the Act and that the We believe this flexibility is nurse or licensed practical nurse if the RHC or FQHC is located in an area that important for patient access to nursing safety of the patient is to be assured and has a shortage of HHAs. The services services in the home and the potential the medically desired results achieved; and supplies must be provided under a for HHAs to be overwhelmed during and personal care services, to the extent written plan of treatment; are furnished PHE for the COVID–19 pandemic. covered under Medicare as home health on a part-time or intermittent basis only; However, RHCs and FQHCs should services. These services include helping and drugs and biological products are check the HIPAA Eligibility Transaction the patient to bathe, to get in and out of not provided. System (HETS) before providing visiting bed, to exercise and to take medications. Chapter 13 of the Medicare Benefit nurse services to ensure that the patient Household and housekeeping services Policy Manual, section 190, specifies is not already under a home health plan or other services that would constitute the requirements for HHA shortage areas of care. If a patient is under a home custodial care are not covered. for purposes of visiting nursing services health plan of care, the HHA must Section 405.2416 also defines furnished by RHCs and FQHCs. The provide optimal care to achieve the ‘‘homebound’’ as an individual who is RHC or FQHC must be currently located goals and outcomes identified in the permanently or temporarily confined to in a county, parish or similar geographic patient’s plan of care, for each patient’s his or her place of residence because of area in which the Secretary has a medical or health condition, or if the medical, nursing, and rehabilitative determined that there is no participating needs (§ 484.105). Therefore, RHC/ individual leaves the place of residence HHA under Medicare; or adequate home infrequently. It does not include a FQHC visiting nurse services would not health services are not available to RHC be covered by Medicare if such services hospital or long term care facility. or FQHC patients even though a In Pub. 100–02, Medicare Benefit are found to overlap with a 30-day participating HHA is in the area; or, period of home health care. We note Policy Manual, Chapter 13, section 190, there are patients whose homes are not we further describe RHC and FQHC that an RHC/FQHC visiting nurse within the area serviced by a service solely to obtain a nasal or throat visiting nursing services as skilled participating HHA; or considering the culture would not be considered a nursing services that require the skills of area’s climate and terrain, whose homes a nurse based on the complexity of the nursing service because it would not are not within a reasonable traveling service (for example, intravenous and require the skills of a nurse to obtain the distance to a participating HHA. RHCs intramuscular injections or insertion of and FQHCs that are located in an area culture as the specimen could be catheters), the condition of the patient that has not been determined to have a obtained by an appropriately-trained (for example, a non-skilled service that, current HHA shortage and are seeking to medical assistant or laboratory because of the patient’s condition, can provide visiting nurse services must technician. However, during an only be safely and effectively provided make a written request to the otherwise covered RHC/FQHC visiting by a nurse), and accepted standards of appropriate CMS Regional Office along nurse service, the nurse could obtain the medical and nursing practice. All with written justification that the area it nasal or throat culture to send to the services must be reasonable and serves meets the required conditions. laboratory for testing. necessary to the diagnosis and treatment of the patient’s illness or injury within b. Revision of Home Health Agency Section 405.2416(a)(2) states that the context of the patient’s unique Shortage Area Requirements for visiting nursing services are rendered to medical condition, and a service that Furnishing Visiting Nursing Services a homebound individual, and can be safely and effectively self- § 405.2416(d) states that homebound administered or performed by a To address the PHE for the COVID–19 means an individual who is nonmedical person without the direct pandemic and its impact on permanently or temporarily confined to supervision of a nurse, is not considered underserved rural and urban his or her place of residence because of a skilled nursing service, even if communities, we are implementing, on a medical or health condition, and that provided by a nurse. A service which, an interim basis, changes to the the individual may be considered by its nature, requires the skills of a requirements for visiting nursing homebound if he or she leaves the place nurse to be provided safely and services furnished in the home by RHCs of residence infrequently. We refer the effectively continues to be a skilled and FQHCs. reader to the definition of ‘‘homebound’’ service even if it is taught to the patient, Section 405.2416(a)(1) states that as it pertains the PHE for the COVID– the patient’s family, or other caregivers. visiting nurse services are covered if the 19 pandemic in section II.F. of this IFC, If a patient needs skilled nursing care RHC or FQHC is located in an area in Clarification of Homebound Status and there is no one trained or able and which the Secretary has determined that under the Medicare Home Health willing to provide it, the services of a there is a shortage of HHAs, and Benefit. nurse would be reasonable and § 405.2417 provides additional necessary to the treatment of the illness requirements for an area to be c. Regulatory Changes or injury. We also specify that the determined to have a shortage of HHAs. determination of whether visiting nurse During the PHE for the COVID–19 To make available additional visiting services are reasonable and necessary is pandemic, we believe the need for nursing services during the PHE for the made by the physician based on the visiting nursing services furnished by COVID–19 pandemic in areas served by condition of the patient when the RHCs or FQHCs may increase. RHCs and FQHCs, we are revising, on services were ordered and what is Therefore, for the duration of the PHE an interim basis, § 405.2416 to add reasonably expected to be appropriate for the COVID–19 pandemic, we are paragraph (a)(5), to state that during the treatment for the illness or injury determining that any area typically PHE for the COVID–19 pandemic, an throughout the certification period. served by the RHC, and any area that is area typically served by the RHC, and an The requirements for furnishing included in the FQHCs service area area that is included in the FQHC’s visiting nursing services include that plan, is determined to have a shortage service area plan, is determined to have the patient is considered to be of HHAs, and no request for this a shortage of HHAs, and no request for ‘‘confined to the home’’ as defined in determination is required. this determination is required.

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M. Medicare Clinical Laboratory Fee allowance for a laboratory technician to homes for their own safety or the safety Schedule: Payment for Specimen draw a specimen from homebound of others, there is an additional need to Collection for Purposes of COVID–19 patients and non-hospital inpatients. have patients tested in their homes and Testing Under current guidance, the travel minimize exposure to others. We In response to the PHE for the allowance is intended to cover the believe that providing a specimen COVID–19 pandemic and in an effort to estimated travel costs of collecting a collection fee for COVID–19 testing be as expansive as possible within the specimen from a Medicare beneficiary during the PHE will provide current authorities to have testing and to reflect the technician’s salary and independent laboratories with available to Medicare beneficiaries who travel costs. It is paid only when the additional resources to provide this need it, we are changing Medicare nominal specimen collection is also testing and at the same time help with payment policies during the PHE for the payable and is not available if the efforts to limit patients’ exposure to the COVID–19 pandemic to provide technician is merely performing a general population and alleviate messenger service to pick a specimen patients’ unease with leaving the home. payment to independent laboratories for drawn by a physician or nursing home Under this policy, the nominal specimen collection for COVID–19 personnel. The methodology for specimen collection fee for COVID–19 testing under certain circumstances. testing for homebound and non-hospital In general, section 1833(h)(3) of the determining the travel allowance varies inpatients generally will be $23.46 and Act requires the Secretary to provide for depending on the round trip mileage to for individuals in a SNF or individuals and establish a nominal fee for patients’ homes. For instance, a per mile whose samples will be collected by specimen collection for laboratory travel allowance methodology applies when the round trip to patients’ homes laboratory on behalf of an HHA will be testing and a fee to cover transportation is greater than 20 miles and a flat rate $25.46. Medicare-enrolled independent and personnel expenses for trained travel allowance methodology applies laboratories can bill Medicare for the personnel to collect specimens from when the round trip to patients’ homes specimen collection fee using one of homebound patients and inpatients (not is less than 20 miles. Medicare Part B two new HCPCS codes for specimen in a hospital), in addition to the MACs calculate the travel allowance for collection for COVID–19 testing and bill amounts provided under the Medicare each claim. We have heard from for the travel allowance with the current Clinical Laboratory Fee Schedule stakeholders that in some cases the HCPCS codes set forth in section 60.2 of (CLFS). Section 1833(h)(3)(A) of the Act MAC requires them to maintain paper the Medicare Claims Processing Manual provides that the Secretary must logs of miles traveled to receive the (P9603 and P9604). Our policy will also establish a nominal fee to cover the travel allowance. incorporate the clarification in the appropriate costs in collecting the CMS’ current policies for payment of definition of homebound as discussed sample on which a clinical diagnostic the nominal specimen collection fee and in section II.F. of this IFC, relating to the laboratory test was performed and for the fee to cover transportation and clarification of homebound status under which payment is made under Medicare expenses for trained personnel to collect the Medicare home health benefit. Part B, except that not more than one specimens from homebound patients In establishing a nominal fee for such fee may be provided with respect and non-hospital inpatients are set forth COVID–19 specimen collection, we to samples collected in the same in Pub. 100–04, Medicare Claims considered the type of trained encounter. The HCPCS codes for the Processing Manual, chapter 16, section laboratory personnel required to collect nominal specimen fees currently listed 60. We also implemented the increased the specimen and the resources this on the CLFS (HCPCS codes 36415, nominal specimen collection fee under type of collection could require. As P9612, and P9615) have a payment rate section 1834A(b)(5) of the Act in our noted previously, the current specimen of $3. Section 216(a) of the Protecting regulations at § 414.507(f). The manual collection fee HCPCS codes on the CLFS Access to Medicare Act of 2014 (Pub. L. instructions regarding payment of these for homebound and non-hospital 113–93, enacted April 1, 2014) added fees are available on the CMS website at inpatients are $3 and $5, but we section 1834A(b)(5) to the Act which https://www.cms.gov/Regulations-and- recognize that these fees are not increases by $2 the nominal fee that Guidance/Guidance/Manuals/ intended to address additional resources would otherwise apply under section Downloads/clm104c16.pdf. Neither the needed during the PHE for the COVID– 1833(h)(3)(A) of the Act for a sample annual cash deductible nor the 20 19 pandemic. Absent concrete collected from an individual in a skilled percent coinsurance for Medicare apply information regarding the costs nursing facility (SNF) or by a laboratory to the specimen collection fees or travel associated with independent on behalf of an HHA. Therefore, allowance for laboratory tests. laboratories collecting such specimens effective April 1, 2014, the nominal fee This IFC is establishing the following for COVID–19 tests in the context of the that would otherwise apply for a sample changes to the specimen collection fee PHE, we looked to similar services in collected from an individual in a SNF policy for the duration of the PHE for other settings of care as a potential or by a laboratory on behalf of a HHA the COVID–19 pandemic. We will benchmark. In looking at other Medicare is $5 (see § 414.507(f)), and the relevant provide for Medicare payment of a payment systems, we believe the PFS is HCPCS code is G0471. nominal specimen collection fee and the best source for a potential payment In addition, section 1833(h)(3)(B) of associated travel allowance to amount since physicians and other the Act requires the Secretary to provide independent laboratories for collection practitioners often bill for services that for and establish a fee to cover the of specimens related to COVID–19 involve specimen collection by trained, transportation and personnel expenses clinical diagnostic laboratory testing for non-institutional staff. for trained personnel to travel to the homebound and non-hospital Under the PFS, a Level 1 office visit location of an individual to collect the inpatients. Stakeholders have informed (CPT code 99211) typically does not sample, except that such a fee may be us that access to COVID–19 testing in require the presence of a physician or provided only with respect to an facilities especially is limited due to the other qualified health care professional individual who is homebound or an resource costs associated with acquiring and the usual presenting problem(s) are inpatient in an inpatient facility (other the samples in a manner that prevents minimal. This code is what is typically than a hospital). In accordance with this exposure for patients and health care reported by physician practices when provision, Medicare established a travel workers. With patients confined to their the patient only sees clinical office staff

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for services like acquiring a routine when it is medically necessary for a at the laboratory for analysis. The CDC specimen sample. CPT code 99211, laboratory technician to draw a guidance states that specimens should describes an: specimen from either a nursing home be collected as soon as possible once a Office visit for E/M of an established patient or homebound patient’’ and that person under investigation (PUI) is patient that may be performed by ‘‘the technician must personally draw identified, regardless of the time of clinical staff under supervision (may not the specimen.’’ It also states that ‘‘[t]his symptom onset, and that proper require a physician’s presence). Usually fee will not be paid to anyone who has infection control must be maintained the presenting problem(s) are minimal not extracted the specimen’’ and lists when collecting specimens. We believe and typically 5 minutes are spent ‘‘venipuncture or urine sample by that specimens for COVID–19 testing supervising or performing the service. catheterization’’ as examples of a using NP, OP, or sputum must be The CY 2020 national PFS payment technician personally drawing the collected by trained laboratory amount for Level 1 established patient specimen. The manual further clarifies personnel, and the specimens are a type office visits is $23.46 on the PFS. We what it means for a specimen collection that would not require only the services also considered establishing a higher to be medically necessary stating that of a messenger or specimen pick up payment amount that considered the ‘‘. . .where the specimen is a type that service. The manual currently lists Level 1 E/M visit plus the payment would require only the services of a collection of sputum as a type that amount for CPT code 89220, Sputum messenger and would not require the would require only the services of a obtaining specimen aerosol induced skills of a laboratory technician, for messenger, and therefore, is not technique, for a specimen collection fee example, urine or sputum, a specimen considered medically necessary. of $40.06, but we believe there is likely pickup service would not be considered However, for the PHE for the COVID–19 overlapping costs in staff time for these medically necessary.’’ pandemic only, we believe a specimen two services and the Level 1 office visit collection fee for sputum collection payment rate is adequate. We note that venipuncture and urine sample by catheterization are currently would be warranted and medically For initial diagnostic testing for necessary due to the reasons discussed COVID–19, the CDC issued interim provided in the Medicare Claims Processing Manual as examples of a previously. If in the future other types guidelines that recommend collecting of COVID–19 tests are available, such as technician personally drawing a and testing for the virus using an upper serological tests or point of care tests, specimen, however, they are not an respiratory nasopharyngeal swab (NP). we note that the specimen collection fee exhaustive list of all possible scenarios The CDC guidance also states that would apply if the specimen collection that require trained personnel to collect collection of oropharyngeal swabs (OP) method must be performed by trained a specimen. In the case of collecting a is a lower priority and if collected laboratory personnel. However, COVID– specimen for COVID–19 testing, we should be combined in the same tube as 19 tests that allow patients to collect the believe that in the context of and for the the NP. The CDC guidance advises that specimen themselves would not be duration of the PHE for the COVID–19 collection of sputum should only be eligible for the specimen collection fee. done for those patients with productive pandemic, collecting specimens using To identify specimen collection for coughs. See https://www.cdc.gov/ NP or OP swabs or collection of sputum COVID–19 testing, we are establishing coronavirus/2019-ncov/lab/guidelines- will require a trained laboratory two new level II HCPCS codes. clinical-specimens.html. Similar professional, as well as additional Independent laboratories must use one collection method types, that is, NP or precautions that must be taken to of these HCPCS codes when billing OP swabs are also used in other minimize exposure risks in handling Medicare for the nominal specimen laboratory developed tests for COVID– specimens that are suspected or collection fee for COVID–19 testing for 19. confirmed for COVID–19. Thus, we the duration of the PHE for the COVID– Section 1833(h)(3) of the Act does not believe that collecting a specimen for 19 pandemic. These new HCPCS codes specifically describe the types of COVID–19 testing will incur higher are: specimen collection methods that are costs than similar specimen collection • G2023, specimen collection for eligible for the nominal fee and services which require a trained severe acute respiratory syndrome transportation and personnel expenses. laboratory professional but not coronavirus 2 (SARS-CoV–2) However, section 1833(h)(3)(B) of the additional precautions, to minimize (Coronavirus disease [COVID–19]), any Act does refer to ‘‘trained personnel’’ exposure risks. The CDC advises that specimen source. that would collect the sample from specimen collection must be performed • G2024, specimen collection for homebound individuals and inpatients correctly the first time the specimen is severe acute respiratory syndrome in non-hospital inpatient facilities. This collected. A focus of the response to the coronavirus 2 (SARS-CoV–2) suggests that to be medically necessary PHE for the COVID–19 pandemic is to (Coronavirus disease [COVID–19]), from and for payment to be made for sample quickly identify individuals who are an individual in a SNF or by a collection, the method of sample infected so that appropriate treatment laboratory on behalf of a HHA, any collection must require some training or for the patients being tested is provided specimen source. skill on the part of the laboratory in a timely manner. At the same time, We created the second Level II HCPCS technician and cannot be conducted by another goal is to appropriately isolate code, G2024, because section the beneficiary, the beneficiary’s those patients and quarantine those 1834A(b)(5) of the Act and our caregiver, or facility staff if the facility exposed to the patients to prevent regulations at § 414.507(f) require a does not have a laboratory, and further spread of the virus. We believe higher fee for collecting a specimen therefore, is using an outside laboratory laboratory personnel will need to be from an individual in a SNF or by a to perform its testing of patients. The trained on how to handle the specimen laboratory on behalf of an HHA, as Medicare Claims Processing Manual to maximize accurate test results for described previously in this section of provides additional guidance on the COVID–19. Laboratory personnel also the IFC. We will issue guidance when medical necessity requirements for will need to be trained on how to the PHE for the COVID–19 pandemic is specimen collection. Specifically, the minimize risks for spreading the virus to over and when these codes are no longer manual states that ‘‘Medicare allows themselves and/or others in the chain of valid and terminated in the HCPCS file payment for a specimen collection fee handling the specimen before it arrives and/or the CLFS as appropriate.

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In addition, Medicare payment for contraindicated for a beneficiary to instructed to practice self-isolation or transportation and expenses for trained leave the home because he or she has a social distancing, and because personnel to collect specimens from confirmed or suspected diagnosis of interactive audio-video communication homebound patients (as discussed in COVID–19; or (2) where a physician has technology may not be available to all section II.F. of this IFC, relating to the determined that it is medically beneficiaries, we are revising clarification of homebound status under contraindicated for a beneficiary to § 410.67(b)(3) and (4) to allow the the Medicare home health benefit) and leave the home because the patient has therapy and counseling portions of the inpatients (not in a hospital) for a condition that may make the patient weekly bundles, as well as the add-on purposes of COVID–19 testing will be more susceptible to contracting COVID– code for additional counseling or made in accordance with existing 19. A patient who is exercising ‘‘self- therapy, to be furnished using audio- instructions found in the Medicare quarantine’’ for his or her own safety, only telephone calls rather than via two- Claims Processing Manual. Independent would not be considered ‘‘homebound’’ way interactive audio-video laboratories must use the existing level unless it is also medically communication technology during the II HCPCS codes when billing for the contraindicated for the patient to leave PHE for the COVID–19 pandemic if travel allowance, that is, the per mile the home. Determinations of whether beneficiaries do not have access to two- travel allowance as described by HCPCS the patient is homebound must be based way audio/video communications code P9603 and the flat rate travel on an assessment of each beneficiary’s technology, provided all other allowance as described by HCPCS code individual condition. For the PHE for applicable requirements are met. We P9604. Additionally, we are clarifying the COVID–19 pandemic, the CDC is believe this change is necessary to that paper documentation of miles currently advising that older adults and ensure that beneficiaries with opioid traveled is not required and laboratories individuals with serious underlying use disorders are able to continue to can maintain electronic logs with that health conditions stay home (CDC’s receive these important services during information. However, laboratories will guidance is interim and is expected to the current PHE. need to be able to produce these continue to be updated as warranted).14 electronic logs in a form and manner As such, during the PHE for the COVID– O. Application of Teaching Physician that can be shared with MACs. As stated 19 pandemic, we expect that many and Moonlighting Regulations During previously, we have heard from Medicare beneficiaries could be the PHE for the COVID–19 Pandemic stakeholders that maintaining paper logs considered ‘‘homebound’’. In light of a. Background of miles is burdensome, especially with this clarification regarding the the development of GPS systems and definition of homebound, we are noting In context of the PHE for the COVID– various applications for cellular phones this clarification pertains to the 19 pandemic, we have been asked by in recent years that can track miles specimen collection fee and travel stakeholders to relax supervision traveled. Thus, we are clarifying that allowance in the PHE for COVID–19 requirements related to the provision of there is no requirement that laboratories pandemic testing for homebound teaching physician services under the maintain logs on paper to document patients; that is, a patient is considered PFS. For teaching physicians, section travel, and that laboratories may use homebound for purposes of the fees 1842(b) of the Act specifies that in the digital documentation of this under sections 1833(h)(3) and case of physicians’ services furnished to information if preferred. The MACs may 1834A(b)(5) of the Act if it is medically a patient in a hospital with a teaching provide more information on acceptable contraindicated for the patient to leave program, the Secretary shall not provide formats. home. payment for such services unless the In defining an individual who is In summary, to address the PHE for physician renders sufficient personal homebound for purposes of the the COVID–19 pandemic, we are using and identifiable physicians’ services to specimen collection fee and the travel this IFC as a vehicle to provide the patient to exercise full, personal allowance under section 1833(h)(3) of additional payment during the PHE in control over the management of the the Act, the manual refers to Chapters the form of a specimen collection fee of portion of the case for which payment 7 and 15 of Pub. 100–02, the Medicare $23.46 generally, and $25.46 for an is sought. We have also been asked to Benefit Policy Manual. The definition of individual in a SNF or by a laboratory allow residents to independently ‘‘homebound’’ in Chapters 7 and 15 of on behalf of a HHA, for COVID–19 furnish services in their capacity as Pub. 100–02 originate from the statutory testing and to provide a travel allowance fully licensed physicians outside of the definition of ‘‘confined to the home’’ for a laboratory technician to collect a scope of their approved GME residency (that is, ‘‘homebound’’) under sections specimen for COVID–19 testing from a in the inpatient setting of the hospital at 1814(a) and 1835(a) of the Act. As non-hospital inpatients or homebound which they provide services. discussed in section II.F. of this IFC, patients under section 1833(h)(3) of the b. Revisions to Teaching Physician relating to the clarification of Act. Regulations During a PHE for the homebound status under the Medicare COVID–19 Pandemic home health benefit patients are N. Requirements for Opioid Treatment considered ‘‘confined to the home’’ (that Programs (OTP) Regulations regarding PFS payment is, ‘‘homebound’’) if it is medically In the CY 2020 PFS final rule (84 FR for teaching physician services and contraindicated for the patient to leave 62645 and 62646), we finalized allowing moonlighting are codified in 42 CFR the home. When it is medically the use of interactive two-way audio/ part 415. Under § 415.172, if a resident contraindicated for a patient to leave the video communication technology to participates in a service furnished in a home, there exists a normal inability for furnish the counseling and therapy teaching setting, PFS payment is made an individual to leave home and leaving portions of the weekly bundle of only if the teaching physician is present home safely would require a services furnished by OTPs. In light of during the key portion of any service or considerable and taxing effort. the PHE for the COVID–19 pandemic, procedure for which payment is sought. As an example for the PHE for during which the public has been The provisions in § 415.174 exempt COVID–19 pandemic, this would apply certain office/outpatient E/M services for those patients: (1) Where a physician 14 https://www.cdc.gov/coronavirus/2019-ncov/ provided in the outpatient department has determined that it is medically specific-groups/high-risk-complications.html. of a hospital or another ambulatory care

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entity (that is, primary care centers) teaching physician regulations to allow when the interpretation is performed by from the physical presence requirement that as a general rule under § 415.172, a resident under direct supervision of for the key portion of the service, the requirement for the presence of a the teaching physician by interactive pending all provisions of the regulation teaching physician can be met, at a telecommunications technology. The are met. The regulations in § 415.180 minimum, through direct supervision teaching physician must still review the state that for the interpretation of by interactive telecommunications resident’s interpretation. For § 415.184, diagnostic radiology and other technology, as described in section II.E. for the duration of the PHE for the diagnostic tests, PFS payment is made if of this IFC. In other words, the teaching COVID–19 pandemic, the requirement the interpretation is performed or physician must provide supervision for the presence of the teaching reviewed by a physician other than a either with physical presence or be physician during the psychiatric service resident. For § 415.184, the requirement present through interactive in which a resident is involved may be for the presence of the teaching telecommunications technology during met by the teaching physician’s direct physician during psychiatric services in the key portion of the service. supervision by interactive which a resident is involved may be met Specifically, we believe that when use telecommunications technology. For by observation of the service by use of of such real-time, audio and video both §§ 415.180 and 415.184, allowing a one-way mirror, video equipment, or telecommunications technology allows residents to furnish these services under similar device. for the teaching physician to interact direct supervision of the teaching In context of the PHE for the COVID– with the resident through virtual means, physician by interactive 19 pandemic, teaching hospitals have their ability to furnish assistance and telecommunications technology would expressed a need to increase their direction could be met without allow for the presence requirement to be capacity to respond to the PHE for the requiring the teaching physician’s met. These diagnostic radiology, COVID–19 pandemic because there has physical presence for the key portion of diagnostic tests, and psychiatry services been increased demand for physicians the service. could continue to be provided to to respond to patient needs. For Currently, under the primary care patients that need them in the event the example, we have been asked by exception in § 415.174, certain lower teaching physician is in quarantine or stakeholders to allow Medicare to make and mid-level office/outpatient E/M otherwise at home, or where the payment under the PFS for services services provided in primary care physical proximity of the teaching billed by teaching physicians when centers are exempt from the physical physical might present additional residents have furnished the entirety of exposure risk. a service in the inpatient setting in the presence requirement for the key area of their approved GME program portion of the service. The teaching The regulations describing PFS and have a teaching physician review physician must direct the care from payment for teaching physician services and sign off on the service, rather than such proximity as to constitute do have additional exceptions for requiring the teaching physician be immediate availability (that is, provide specific policies. For example, as physically present for the key portion of direct supervision). In context of the described in § 415.172, in the case of the service. PHE for the COVID–19 pandemic, the surgical, high-risk, or other complex Given the circumstances of the PHE teaching physician may be under procedures, the teaching physician must for the COVID–19 pandemic, we believe quarantine or otherwise at home, or the be present during all critical portions of that the requirements for the physical physical proximity of the teaching the procedure and immediately presence of the teaching physician physician might present additional available to furnish services during the during the key portion of the service exposure risks. Additionally, during the entire service or procedure. In the case would necessarily limit access to PHE for the COVID–19 pandemic, more of procedures performed through an services paid under the PFS. We patients may present with more endoscope, the teaching physician must recognize that in some cases, the complex needs, such as an underlying be present during the entire viewing. As physical proximity of the physician condition that places them at high risk described in § 415.178 for anesthesia might present additional exposure risks, for COVID–19 and that necessitate a services, the teaching anesthesiologist especially for high risk patients isolated high level office/outpatient E/M service must be present during all critical or key for their own protection or in cases (that is, level 4 or 5 visit). Consequently, portions of the anesthesia service or where the teaching physician and/or the on an interim basis, for the duration of procedure involved and the teaching resident has been exposed to the virus the PHE for the COVID–19 pandemic, anesthesiologist must be immediately and must be under quarantine, or who we are amending § 415.174 to allow that available to furnish anesthesia services may be at home caring for family all levels of an office/outpatient E/M during the entire procedure. Given the members or providing childcare. If the service provided in primary care centers complex nature of these procedures and teaching physician and/or the resident may be provided under direct the potential danger to the patient, even is under quarantine or at home, it could supervision of the teaching physician by in the context of the PHE for the unintentionally limit the number of interactive telecommunications COVID–19 pandemic and the inherent licensed practitioners available to technology. We believe use of real-time, exposure risks for patients and furnish services to Medicare patients audio and video telecommunications physicians, we believe that the and could have the unintended technology allows for the teaching requirements for physical presence for consequence of limiting access to physician to interact with the resident either the entire procedure or the key services paid under the PFS. through virtual means, and thus would portions of the service, whichever are To increase the capacity of teaching meet the requirement for teaching applicable, are necessary for patient settings to respond to the PHE for the physician presence for office/outpatient safety. Thus, the PHE for the COVID–19 COVID–19 pandemic as more E/M services furnished in primary care pandemic exceptions previously practitioners are increasingly being centers. For § 415.180, for the duration described will not apply in the case of asked to assist with the COVID–19 of the PHE for the COVID–19 pandemic, surgical, high risk, interventional, or response, on an interim basis, for the we will allow PFS payment to be made other complex procedures, services duration of the PHE for the COVID–19 for the interpretation of diagnostic performed through an endoscope, and pandemic, we are amending the radiology and other diagnostic tests anesthesia services. We seek comment

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on whether other procedures should who may need to be isolated for under quarantine, and otherwise well also be exempt from this policy given purposes of exposure risk based on and able to work, are able to furnish the complex nature or potential danger presumed or confirmed COVID–19 services that do not require face-to-face to the patient. infection, and as a result, would patient care, such as reading the results Collectively, the flexibilities increase access to services for patients. of tests and other imaging studies. described for §§ 415.172, 415.174, To increase the capacity of teaching Because current regulations require the 415.180, and 415.184 are intended to settings to respond to the PHE for the physical presence of the teaching ensure there are as many qualified COVID–19 pandemic as more physician during the key portion of the practitioners as possible. They are also practitioners are increasingly being service, residents would not be able to intended to minimize the number of asked to assist with the COVID–19 furnish services from quarantine, which people coming into contact with one response, we believe that, for telehealth could limit the number of licensed another by removing the need for in- services involving residents, the practitioners available to furnish person direct supervision. We view requirement that a teaching physician services to Medicare patients and could direct supervision by interactive be present for key portions of the service have the unintended consequence of telecommunications technology as the can be met through virtual means. We limiting access to services paid under minimum requirement for provision of also believe same is true for telehealth the PFS. Because we are amending the the service for purposes of Medicare services furnished by the resident in teaching physician regulations to allow payment. However, teaching physicians primary care centers. The use of real- that as a general rule under § 415.172, may continue to exercise their clinical time, audio and video the requirement for the presence of a judgment to decide whether it is telecommunications technology allows teaching physician can be met through appropriate to utilize these flexibilities for the teaching physician to interact direct supervision by interactive in furnishing their services involving with the resident through virtual means telecommunications technology, on an residents. We also seek comment on our while the resident is furnishing services interim basis, for the duration of the belief that direct supervision by via telecommunications technology, and PHE for the COVID–19 pandemic, interactive telecommunications thus, in the circumstances of the PHE, Medicare may also make payment under technology is appropriate in the context would meet the requirement for the PFS for teaching physician services of this PHE, as well as whether any teaching physician presence for office/ when the resident is furnishing these guardrails should be included, and how outpatient E/M services furnished in services while in quarantine under it balances risks that might be primary care centers. Consequently, on direct supervision of the teaching introduced for beneficiaries with an interim basis for the duration of the physician by interactive reducing exposure risk and the PHE for the COVID–19 pandemic, we telecommunications technology. We increased spread of the disease, in the are revising our regulations to specify believe this policy will limit exposure to context of this PHE. that Medicare may make payment under COVID–19 and to allow for the the PFS for teaching physician services continued access to physicians’ services c. Application of the Expansion of when a resident furnishes telehealth of residents while in quarantine. Telehealth Services to Teaching services to beneficiaries under direct e. Revisions to Moonlighting Physician Services supervision of the teaching physician Regulations During a PHE for the On March 17, 2020, we announced which is provided by interactive COVID–19 Pandemic the expansion of telehealth services on telecommunications technology. a temporary and emergency basis Additionally, on an interim basis, for A licensed resident physician is pursuant to waiver authority added the duration of the PHE for the COVID– considered to be ‘‘moonlighting’’ when under section 1135(b)(8) by the 19 pandemic, Medicare may make they furnish physicians’ services to Coronavirus Preparedness and Response payment under the PFS for services outpatients outside the scope of an Supplemental Appropriations Act.15 billed under the primary care exception approved graduate medical education Starting on March 1, 2020, Medicare can by the teaching physician when a (GME) program. Under current pay for telehealth services, including resident furnishes telehealth services to regulations, the services of residents in office, hospital, and other visits beneficiaries under the direct hospitals in which the residents have furnished by physicians and other supervision of the teaching physician by their approved GME program are not practitioners to patients located interactive telecommunications considered separately billable as anywhere across the country including technology. We also seek comment on physicians’ services and instead are in a patient’s place of residence. We our belief that direct supervision by payable under §§ 413.75 through 413.83 have been asked by stakeholders to interactive telecommunications regarding direct GME payments, clarify whether this expansion applies technology is appropriate in the context whether or not the services are related to teaching physician services, of this PHE, as well as whether and how to the approved GME training program. including those furnished under the it balances risks that might be When a resident furnishes services that primary care exception. We believe that introduced for beneficiaries with are not related to their approved GME allowing Medicare payment for services reducing exposure risk and the programs in an outpatient department or billed by the teaching physician when increased spread of the disease, in the emergency department of a hospital in the resident is furnishing services, context of this PHE. which they have their training program, those services can be billed separately including office/outpatient E/M services d. Payment Under the PFS for Teaching provided in primary care centers, via as physicians’ services and payable Physician Services When Resident under the PFS if they meet the criteria telehealth under direct supervision by Under Quarantine interactive telecommunications described in our regulation at technology would allow residents to There also may be circumstances in § 415.208(b)(2). In light of the PHE for the COVID–19 furnish services remotely to patients which the resident may need to furnish services while under quarantine (for pandemic, teaching hospitals need to 15 https://www.cms.gov/newsroom/press-releases/ example, while at home). We have been secure as much physician coverage as president-trump-expands-telehealth-benefits- asked by stakeholders if residents who possible because there has been medicare-beneficiaries-during-covid-19-outbreak. have been exposed to COVID–19 and are increased demand for physicians to

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respond to patient needs, such as Critical Access Hospital (CAH) Changes restraint or seclusion must be ordered furnishing services to patients in To Promote Innovation, Flexibility, and by a licensed practitioner who is inpatient settings who have either a Improvement in Patient Care’’ proposed authorized by hospital policy in presumed or confirmed COVID–19 rule (81 FR 39447), which outlined a accordance with State law to do so. infection. Stakeholders have requested number of proposed hospital and CAH In the September 30, 2019 final rule, that residents be able to furnish Condition of Participation (CoP) we made additional revisions to address physicians’ services to patients in the requirements, including those focused other areas of the hospital CoPs that we inpatient setting outside of the scope of on infection control, antibiotic use, and viewed as being either conflicting with, their approved GME programs in the scope of practice for NPPs (that is, or more stringent than, existing state hospital where they have their training. advanced practice providers (APPs) scope-of-practice laws and licensing We believe that our regulation at such as PAs, NPs, psychologists, and requirements, and which, if § 415.208(b), which limits the scope of CNSs, as well as other qualified, appropriately revised, would give APPs services that can be separately billable licensed practitioners to whom this greater flexibility to practice more by moonlighting residents when revision might also be applicable). broadly in the current healthcare system furnished outside their approved GME Subsequently, in the September 30, while still being in accordance with programs to patients in an outpatient 2019 Federal Register, we published the respective state scope-of-practice laws. department or emergency department of ‘‘Medicare and Medicaid Programs; Therefore, in our review of the a hospital in which they have their Hospital and Critical Access Hospital Hospital CoPs for the proposed rule, we training program, does not adequately (CAH) Changes To Promote Innovation, discovered that there were several meet the needs of teaching hospitals to Flexibility, and Improvement in Patient provisions that incorrectly reference ensure there are as many qualified Care’’ final rule (84 FR 51775) that § 482.12(c)(1), which lists the types of practitioners available as possible given finalized several of these proposed physicians and applies only to patients the circumstances of the PHE for the changes to modernize the hospital and who are Medicare beneficiaries. Section COVID–19 pandemic. Under current CAH requirements, improve quality of 482.12(c) states that the governing body policy, for example, a resident in a care, and support HHS and CMS of the hospital must ensure that every hospital’s approved GME program for priorities. In that final rule, we deleted Medicare patient is under the care of anesthesia who typically furnishes only the modifying term ‘‘independent’’ from one of the following practitioners: anesthesia-related services in an the Patient’s Rights CoP at 42 CFR • A doctor of medicine or osteopathy; operating room would not be able to 482.13(e)(5) and (e)(8)(ii) regarding • A doctor of dental surgery or dental provide separately billable physicians’ which practitioners may order the use of medicine who is legally authorized to services when treating inpatients in the restraints and seclusion. These revisions practice dentistry by the State and who intensive care unit for COVID–19 to the regulatory text were intended to is acting within the scope of his or her infection, even if these services were not finally make the language of the hospital license; part of the resident’s approved GME CoPs consistent with the language of the • A doctor of podiatric medicine, but program. As a result, this regulation Children’s Health Act of 2000 (CHA) only with respect to functions which he could unintentionally limit the number (Pub. L. 106–310, enacted October 17, or she is legally authorized by the State of licensed practitioners available to 2000) regarding restraint and seclusion to perform; furnish services to Medicare patients orders and licensed practitioners, and • A doctor of optometry who is and could have the unintended upon which the CoP language was legally authorized to practice optometry consequence of limiting access to originally intended to be based. by the State in which he or she critically needed care. Consequently, on Additionally, and to remain consistent practices; an interim basis, for the duration of the throughout this CoP, we revised • A chiropractor who is licensed by PHE for the COVID–19 pandemic, we § 482.13(e)(10) and (11), (e)(12)(i)(A), the State or legally authorized to are amending our regulation in (e)(14), and (g)(4)(ii) that contained the perform the services of a chiropractor, § 415.208 to state that the services of term ‘‘licensed independent but only with respect to treatment by residents that are not related to their practitioner’’ by changing the term from means of manual manipulation of the approved GME programs and are ‘‘licensed independent practitioner’’ to spine to correct a subluxation performed in the inpatient setting of a simply ‘‘licensed practitioner.’’ demonstrated by X-ray to exist; and hospital in which they have their In the final rule, we stated that the • A clinical psychologist as defined training program are separately billable revision reflected our goal to have in § 410.71, but only for a clinical physicians’ services for which payment health professionals operate within the psychologist services as defined in can be made under the PFS provided scope of practice allowed by state law, § 410.71 and only to the extent that the services are identifiable and that it also recognized the need to permitted by State law. physicians’ services and meet the fully utilize the healthcare workforce. The reference of this ‘‘Medicare conditions of payment for physicians’ We also stated that we believe that this beneficiary-only’’ requirement in certain services to beneficiaries in providers in change will reduce unnecessary burden other provisions of the hospital CoPs § 415.102(a), the resident is fully for hospitals and remove obstacles APPs (which we have listed below) licensed to practice medicine, face when ordering seclusion and inappropriately links it to all patients osteopathy, dentistry, or podiatry by the restraints. However, we stated that we and not Medicare beneficiaries State in which the services are disagreed with the commenters who exclusively. In fact, per section performed, and the services are not stated that the removal of the term 1861(e)(4) of the Act, every patient with performed as part of the approved GME ‘‘independent’’ will cause confusion respect to whom payment may be made program. over the applicability of this under this title must be under the care requirement. Our removal of the term of a physician except that a patient P. Special Requirements for Psychiatric ‘‘independent’’ is consistent with the receiving qualified psychologist services Hospitals (§ 482.61(d)) language used in the CHA, which (as defined in subsection (ii)) may be In the June 16, 2016 Federal Register, utilizes the term ‘‘other licensed under the care of a clinical psychologist we published the ‘‘Medicare and practitioner,’’ without the independent with respect to such services to the Medicaid Programs; Hospital and modifying term. In addition, the order of extent permitted under State law. In

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accordance with that provision, we have hospital CoPs, we believe that APPs, certain MDPP suppliers to deliver chosen to apply § 482.12(c) to Medicare including PAs, NPs, psychologists, and virtual MDPP sessions on a temporary patients. With the exception of a few CNSs (as well as other qualified, basis. These changes are in response to provisions in the CoPs such as those licensed practitioners to whom this COVID–19, which resulted in an directly related to § 482.12(c) described revision might also be applicable), when interruption to expanded model services here, the remainder of the CoPs apply to acting in accordance with State law, delivered by MDPP suppliers and/or all patients, regardless of payment their scope of practice, and hospital prevented MDPP beneficiaries from source, and not just Medicare policy, should have the authority to attending sessions. Throughout the beneficiaries. For example, the Nursing practice more broadly and to the highest rulemaking for the MDPP expanded Services CoP, at § 482.23(c)(1), requires level of their education, training, and model, we sought to ensure that the that all drugs and biologicals must be qualifications as allowed under their MDPP set of services would be prepared and administered in respective state requirements and laws delivered in-person, in a classroom accordance with Federal and State laws, in this area. based setting, within an established the orders of the practitioner or We believe that NPPs practicing in the timeline. At the time, the priority was practitioners responsible for the psychiatric hospital setting should be placed on establishing a structured patient’s care as specified under able to record progress notes of service that, when delivered within the § 482.12(c), and accepted standards of psychiatric patients for whom they are confines of the rule, would create the practice. Since the CoPs clearly allow responsible. Therefore, we will allow least risk of fraud and abuse, increase hospitals to determine which categories the use of NPPs, or APPs, to document the likelihood of success, and maintain of practitioners would be responsible for progress notes of patients receiving the integrity of the data collected for the care of other patients, outside the services in psychiatric hospitals, in evaluation purposes. However, the narrow Medicare beneficiary restrictions addition to MDs/DOs as is currently COVID–19 pandemic has led to of § 482.12(c), this reference is allowed. suspension of in-person class sessions inappropriate and unnecessarily Given the changes made to the and guidance from CDC that Medicare- restrictive of hospitals and their medical requirements under § 482.13 regarding age beneficiaries stay home. In response, staffs to make these determinations the removal of the word ‘‘independent’’ we will implement provisions that based on State law and practitioner from the phrase ‘‘licensed independent allow for temporary flexibilities that scope of practice. practitioner’’ when referencing NPPs prioritize availability and continuity of To clarify that these provisions apply that we have previously discussed, we services for MDPP suppliers and MDPP to all patients and not only Medicare are making the same change for this beneficiaries, we deleted any beneficiaries impacted by extreme and provision. We believe that the uncontrollable circumstances during the inappropriate references to § 482.12(c) regulatory language should be as in the final rule. Therefore, we deleted COVID–19 PHE. The changes in this IFC consistent as possible throughout the are applicable to MDPP suppliers, as references to § 482.12(c) found in the hospital CoPs and, in addition, as was following provisions: § 482.13(e)(5), defined in § 410.79(b), that are enrolled the case with the requirement under in MDPP as March 1, 2020, and MDPP (e)(8)(ii), (e)(14), and (g)(4)(ii) in the § 482.13, using the term ‘‘licensed Patients’ Rights CoP; and § 482.23(c)(1) beneficiaries as defined in § 410.79(b) independent practitioner’’ may who were receiving MDPP set of and (3) in the Nursing Services CoP. We inadvertently exacerbate workforce note here that we did not receive any services as of March 1, 2020. Under shortage concerns, might unnecessarily these temporary flexibilities, the comments on these changes as they impose regulatory burden on hospitals proposed in the June 2016 proposed requirement for in-person attendance at by restricting a hospital’s ability to the first core-session will remain in rule, and therefore, we finalized them allow APPs and other NPPs to operate without change. effect. As a result, if beneficiaries are within the scope of practice allowed by prohibited from attending the first core In performing our most recent review state law, and does not recognize the of the hospital CoPs, including the session in person, suppliers will be benefits to patient care that might be unable to start any new cohorts with Requirements for Specialty Hospitals at derived from fully utilizing APPs and subpart E of 42 CFR part 482, we MDPP beneficiaries. All flexibilities their clinical skills to the highest levels discovered that we inadvertently failed described in this IFC will cease to be of their training, education, and to propose to delete another available at the conclusion of the PHE. experience as allowed by hospital inappropriate reference to § 482.12(c), The CDC issued guidance to all National policy in accordance with state law. We which is contained in the current Diabetes Prevention Program suppliers believe that this change permits a provision at § 482.61(d) in the Special on or about March 12, 2020, providing greater scope of practice for these Medical Record Requirements for alternative delivery options during the professionals in the psychiatric hospital Psychiatric Hospitals CoP (pertaining to COVID–19 national emergency, context. which hospital personnel may complete including encouraging organizations to progress notes for patients). The current Q. Innovation Center Models use virtual make-up sessions as provision also contains the term necessary, regardless of usual delivery ‘‘licensed independent practitioner.’’ 1. Medicare Diabetes Prevention mode; if virtual make-up sessions are Therefore, in the interests of consistency Program (MDPP) Expanded Model not possible, organizations may pause with the other recent revisions we have Emergency Policy offering classes. When classes resume, noted here, we are now deleting the Through this IFC, we are amending the CDC is allowing suppliers to pick up reference to § 482.12(c) along with the the Medicare Diabetes Prevention where they left off, or to restart the modifier ‘‘independent’’ in this IFC. Program (MDPP) expanded model to expanded model program from week We believe that as currently written modify certain MDPP policies during one. It is our intent to conform with the and implemented, this requirement the PHE. Specifically, this IFC will CDC guidance where feasible, with the requires some clarification for the permit certain beneficiaries to obtain the overall intent to minimize disruption of reasons that we have discussed. As we set of MDPP services more than once services for MDPP suppliers and MDPP have already stated and made clear per lifetime, increase the number of beneficiaries; by allowing MDPP through our recent revisions to the virtual make-up sessions, and allow beneficiaries to maintain their

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eligibility. We are amending the MDPP December 31, 2020. On February 24, Therefore, to enable the CJR model to regulations to provide for certain 2020, we published a proposed rule adjust for the effect of COVID–19, we changes, including allowing MDPP titled ‘‘Medicare Program: are broadening the extreme and suppliers to either deliver MDPP Comprehensive Care for Joint uncontrollable circumstances policy by services virtually or suspend in-person Replacement Model Three-Year applying certain financial safeguards to services and resume services at a later Extension and Changes to Episode participant hospitals that have a CCN date. The limit to the number of virtual Definition and Pricing’’ (85 FR 10516; primary address that is located in an make-up sessions is waived for MDPP CMS–5529–P). We wish to ensure emergency area for episodes that suppliers with existing capabilities to continuity of CJR model operations in overlap with the emergency period, as provide services virtually, so long as the participant hospitals during this PHE for those terms are defined in section virtual services are furnished in a the COVID–19 pandemic so that we do 1135(g) of the Act, for which the manner that is consistent with the CDC not create any additional disruptions to Secretary issued a waiver or Diabetes Prevention Recognition the standard care procedures hospitals modification of requirements under Program (DPRP) standards for virtual have in place during this challenging section 1135 of the Act on March 13, sessions, follow the CDC-approved DPP time. Therefore, we are implementing a 2020, which applies nationwide.19 3-month extension of CJR PY 5 and curriculum requirements, and are Accordingly, all participant hospitals provided upon the individual MDPP amending the provisions at 42 CFR are located in the emergency area and beneficiary’s request. In addition, the 510.2 and 510.200(a) to reflect that qualify for applicable financial MDPP supplier may only furnish to the extension. safeguards during the emergency period. MDPP beneficiary a maximum of one Further, recognizing that the current session on the same day as a regularly CJR model policy for extreme and Amending the extreme and scheduled session and a maximum of uncontrollable circumstances policy is uncontrollable circumstances policy to one virtual make-up session per week. not applicable to the PHE for the account for all participant hospitals Virtual make-up sessions may only be COVID–19 pandemic, we also are affected by the COVID–19 pandemic furnished to achieve attendance goals implementing a change to that policy in allows participant hospitals to and may not be furnished to achieve this IFC such that it will be applicable concentrate on patient care and ensures weight-loss goals. An MDPP supplier to episodes impacted by the COVID–19 that participant hospitals are not held may offer to an MDPP beneficiary no pandemic. Currently, the CJR extreme financially liable for episode costs that more than: 15 virtual make-up sessions and uncontrollable circumstances escalate due to effects from the COVID– offered weekly during the core session policy, which is codified at § 510.305(k), 19 pandemic. While this amendment period; 6 virtual make-up sessions applies only during major disaster greatly broadens the extreme and offered monthly during the core declarations where a participant uncontrollable circumstances policy, maintenance session interval periods; hospital and its beneficiaries are the significant impact the health care and 12 virtual make-up sessions offered affected by natural disasters, such as, delivery system faces in responding to 16 monthly during the ongoing hurricanes, earthquakes, wildfires. COVID–19 cases and the expenses maintenance session interval periods. Although the COVID–19 outbreak in the associated with treating this highly- In addition, these changes permit United States was declared as a national contagious virus justifies modifying the 17 certain MDPP beneficiaries to obtain the emergency on March 13, 2020, the extreme and uncontrollable set of MDPP services more than once current CJR extreme and uncontrollable circumstances policy and increasing the per lifetime, for the limited purposes of circumstances policy does not apply to financial safeguards. Specifically, we allowing a pause in service and to this national emergency. Although we are stating that for a fracture or non- provide the flexibilities that will allow do not expect many new CJR episodes fracture episode with a date of MDPP beneficiaries to maintain to initiate as we have recently issued admission to the anchor hospitalization eligibility for MDPP services despite a guidance 18 stressing the need to avoid that is on or within 30 days before the break in service, attendance, or weight elective surgeries in light of the COVID– date that the emergency period (as loss achievement. 19 virus, we recognize that a number of defined in section 1135(g) of the Act) We are amending our provisions at beneficiaries are in active CJR episodes § 410.79 by adding paragraph (e). that initiated prior to March 2020. begins or that occurs through the termination of the emergency period (as 2. Changes to the Comprehensive Care Further, we acknowledge that CJR hip fracture episodes, which generally result described in section 1135(e) of the Act), for Joint Replacement (CJR) Model To actual episode payments are capped at Extend the Length of Performance Year from emergent accidents and are not necessarily avoidable, will continue to the target price determined for that 5 by Three Additional Months and To episode under § 510.300. Though Change the Extreme and Uncontrollable occur. Given the challenges to the health care delivery system in different financial safeguards apply for Circumstances Policy To Account for fracture and non-fracture episodes when the COVID–19 Pandemic responding to COVID–19 cases and the expenses associated with treating this a major disaster declaration is declared, Through this IFC, we are highly contagious virus, we want to we believe applying equal financial implementing two changes to the avoid inadvertently creating incentives safeguards for both episodes during the Comprehensive Care for Joint to place cost considerations above COVID–19 pandemic is more Replacement (CJR) model to support the patient safety within the CJR model appropriate due to its nationwide continuity of model operations and to during this COVID–19 pandemic. impact on hospitals and post-acute care ensure that CJR participants do not facilities ability to provide care for unfairly suffer financial consequences 16 82 FR 57066. beneficiaries during this PHE. from the impact of COVID–19 due to 17 See: https://www.whitehouse.gov/presidential- We are codifying these provisions at their participation in CJR. Specifically, actions/proclamation-declaring-national- § 510.305 (k)(3) and (4). we are implementing a 3-month emergency-concerning-novel-coronavirus-disease- covid-19-outbreak/. extension to CJR performance year (PY) 18 See: https://www.cms.gov/files/document/ 19 See https://www.phe.gov/emergency/news/ 5 such that the model will now end on 31820-cms-adult-elective-surgery-and-procedures- healthactions/section1135/Pages/covid19- March 31, 2021, rather than ending on recommendations.pdf. 13March20.aspx.

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3. Alternative Payment Model 99454 (Remote monitoring of necessary care particularly during Treatment Under the Quality Payment physiologic parameter(s)(e.g., weight, current conditions. Thus, in response to Program blood pressure, pulse oximetry, the PHE for the COVID–19 pandemic, As has been described previously in respiratory flow rate), initial; device(s) we are finalizing on an interim basis, this IFC, we are seeking to give entities supply with daily recording(s) or that RPM services can be furnished to and individuals that provide services to programmed alert(s) transmission, each new patients, as well as to established Medicare beneficiaries needed 30 days), and 99457 (Remote patients. In addition to current policy that flexibilities to respond effectively to the physiologic monitoring treatment there be an established patient- serious public health threats posed by management services, clinical staff/ physician/other qualified health care practitioner relationship, we require for the spread of the COVID–19, and to professional time in a calendar month CTBS at least verbal consent from a address the needs of health care requiring interactive communication Medicare beneficiary to receive the providers specific to this declared with the patient/caregiver during the services. We finalized this requirement national emergency. We further month; first 20 minutes)). Most recently, to avoid scenarios where beneficiaries recognize that flexibilities may be for the CY 2020 PFS final rule (84 FR are unexpectedly responsible for copays necessary and appropriate in the context 62645 and 62646), we finalized a for services that do not involve the of Alternative Payment Models (APMs), treatment management add-on code CPT typical in-person, face-to-face service including applicable model tests code 99458 (Remote physiologic that a patient receives during an office conducted under section 1115A of the monitoring treatment management visit. We continue to believe that patient Act by the CMS Center for Medicare and services, clinical staff/physician/other consent is important. However, we also Medicaid Innovation (Innovation qualified health care professional time believe that acquiring patient consent Center), as well as the Medicare Shared in a calendar month requiring should not interfere with the provision Savings Program. We note that aspects interactive communication with the of RPM services during the PHE for the of APM policies under the Quality patient/caregiver during the month; COVID–19 pandemic. Therefore, we are Payment Program are designed to follow each additional 20 minutes) and two finalizing on an interim basis that on from the specific designs, policies, self-measured blood pressure consent to receive RPM services can be and operations of individual APMs. We monitoring codes, CPT code 99473 obtained once annually, including at the recognize that our current regulations (Self-measured blood pressure using a time services are furnished, during the may be insufficient for purposes of device validated for clinical accuracy; duration of the PHE for the COVID–19 adequately responding to the still- patient education/training and device pandemic. However, to enhance emerging COVID–19 national emergency calibration) and CPT code 99474 beneficiary protection, for both new and and that additional action may be (Separate self-measurements of two established patients, we suggest that the necessary and appropriate to prevent readings one minute apart, twice daily physician or other health care APM participants from facing undue over a 30-day period (minimum of 12 practitioner review consent information burden in or negative consequences readings), collection of data reported by with a beneficiary, obtain the through the Quality Payment Program. the patient and/or caregiver to the beneficiary’s verbal consent, and We acknowledge that possible physician or other qualified health care document in the medical record that changes might be needed to address professional, with report of average consent was obtained. issues that may arise for APM systolic and diastolic pressures and Finally, we are clarifying that RPM participants in light of the current subsequent communication of a codes can be used for physiologic emergency. We will consider treatment plan to the patient). monitoring of patients with acute and/ undertaking additional rulemaking, We are concerned that under the PHE or chronic conditions. The typical including possibly another interim final for the COVID–19 pandemic, physicians patient needing RPM services may have rule, to amend or suspend APM QPP and other health care professionals are a chronic condition (for example, high policies as necessary to ensure accurate faced with challenges regarding blood pressure, diabetes, COPD). and appropriate application of Quality potential exposure risks for themselves However, RPM can be used for other Payment Program policies in light of the and their patients. In response, the CDC conditions. For example, RPM services PHE due to COVID–19. has urged health care professionals to allow a patient with an acute respiratory R. Remote Physiologic Monitoring make every effort to interview patients virus to monitor pulse and oxygen by telephone, text monitoring, or video saturation levels using pulse oximetry. In recent years, we have finalized conferencing instead of in-person. We Nurses, working with physicians, can payment for seven CPT codes in the believe that RPM services support the check-in with the patient and then using Remote Physiologic Monitoring (RPM) CDC’s goal of reducing human exposure patient data, determine whether home code family. We finalized payment in to the novel coronavirus while also treatment is safe, all the while reducing the CY 2018 PFS final rule for CPT code increasing access to care and improving exposure risk and eliminating 99091 (Collection and interpretation of patient outcomes. potentially unnecessary emergency physiologic data digitally stored and/or RPM services are considered to be department and hospital visits. transmitted by the patient and/or CTBS and, as such, would be billable caregiver to the physician or other only for established patients. Our goal S. Telephone Evaluation and qualified health care professional, during the PHE for the COVID–19 Management (E/M) Services qualified by education, training, pandemic is to reduce exposure risks to For CY 2008, the CPT Editorial Panel licensure/regulation requiring a the novel coronavirus for practitioners created CPT codes to describe E/M minimum of 30 minutes of time). The and patients and to increase access to services furnished by a physician or following year, we finalized payment for services by eliminating as many qualified healthcare professional via CPT codes 99453 (Remote monitoring of obstacles as possible to delivering telephone or online, including CPT physiologic parameter(s)(e.g., weight, necessary services. Allowing RPM codes 98966 (Telephone assessment and blood pressure, pulse oximetry, services to be furnished only to management service provided by a respiratory flow rate), initial; set-up and established patients could be an qualified nonphysician health care patient education on use of equipment), obstacle to delivery of reasonable and professional to an established patient,

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parent, or guardian not originating from indicator of ‘‘N’’ (Noncovered) to these goal of reducing exposure risks a related assessment and management services because: (1) These services are associated with the PHE for the COVID– service provided within the previous 7 non-face-to-face; and (2) the code 19 pandemic, especially in the case that days nor leading to an assessment and descriptors include language that two-way, audio and video technology management service or procedure recognizes the provision of services to required to furnish a Medicare within the next 24 hours or soonest parties other than the beneficiary for telehealth service might not be available appointment; 5–10 minutes of whom Medicare does not provide available, we believe there are many medical discussion), 98967 (Telephone coverage (for example, a guardian). circumstances where prolonged, audio- assessment and management service We do not believe that we should only communication between the provided by a qualified nonphysician continue to consider these to be practitioner and the patient could be health care professional to an categorically non-covered services. In clinically appropriate yet not fully established patient, parent, or guardian PFS rulemaking subsequent to CY 2008, replace a face-to-face visit. We believe not originating from a related we established separate payment for that the existing telephone E/M codes, assessment and management service numerous non-face-to-face services, in both description and valuation, are provided within the previous 7 days nor including care management services and the best way to recognize the relative leading to an assessment and prolonged non-face-to-face E/M resource costs of these kinds of services. management service or procedure services. We have also noted, for Therefore, we are finalizing, on an within the next 24 hours or soonest example in CY 2017, that we recognize interim basis for the duration of the PHE available appointment; 11–20 minutes that in current medical practice, for the COVID–19 pandemic, separate practitioner interaction with caregivers of medical discussion), 98968 payment for CPT codes 98966–98968 is an integral part of treatment for some (Telephone assessment and and CPT codes 99441–99443. For these patients. Accordingly, the descriptions management service provided by a codes, we are finalizing on an interim for several payable codes under the PFS qualified nonphysician health care basis for the duration of the PHE for the include direct interactions between professional to an established patient, COVID–19 pandemic, work RVUs as practitioners and caregivers (81 FR parent, or guardian not originating from recommended by the AMA Health Care 80331). Professionals Advisory Committee a related assessment and management When we established separate (HCPAC) for CY PFS 2008 rulemaking service provided within the previous 7 payment for services like virtual check- as discussed in the CY 2008 PFS final days nor leading to an assessment and ins and e-visits, we recognized that non- rule (72 CFR 66371) of 0.25 for CPT management service or procedure face-to-face services had become an code 98966, 0.50 work RVUs for CPT within the next 24 hours or soonest important part of overall physician care code 98967, and 0.75 for CPT code available appointment; 21–30 minutes of Medicare beneficiaries, especially 98968, and work RVUs as recommended of medical discussion), 99441 relative to care for chronic conditions. by the AMA Relative Value Scale (Telephone evaluation and management The current Medicare policy regarding Update Committee (RUC) of 0.25 for service by a physician or other qualified the CPT codes that describe telephone CPT code 99441, 0.50 for CPT code health care professional who may report E/M services predated our ongoing 99442, and 0.75 for CPT code 99443. We evaluation and management services recognition of the need to pay separately are finalizing the HCPAC and RUC- provided to an established patient, for these kinds of services. Despite the recommended direct PE inputs which parent, or guardian not originating from fact that these are classified as E/M consist of 3 minutes of post-service RN/ a related E/M service provided within services in the coding, we do not believe LPN/MTA clinical labor time for each the previous 7 days nor leading to an that these codes describe full E/M code. E/M service or procedure within the services, but rather are closely Similar to the CTBS described in next 24 hours or soonest available analogous to the virtual check-in section II.D. of this IFC, we believe it is appointment; 5–10 minutes of medical services. Although we assigned a important during the PHE to extend discussion), 99442 (Telephone ‘‘Noncovered’’ status indicator for the these services to both new and evaluation and management service by telephone E/M codes, we still established patients. While some of the a physician or other qualified health established the American Medical code descriptors refer to ‘‘established care professional who may report Association’s RUC-recommended RVUs patient,’’ during the PHE we are evaluation and management services for them. To establish the payment rate exercising enforcement discretion on an provided to an established patient, for the virtual check-in service, we used interim basis to relax enforcement of parent, or guardian not originating from the RUC-recommended valuation for the this aspect of the code descriptors. a related E/M service provided within lowest level telephone E/M code. Specifically, we will not conduct review the previous 7 days nor leading to an However, the telephone E/M codes to consider whether those services were E/M service or procedure within the provide additional stratification by time furnished to established patients. CPT next 24 hours or soonest available for circumstances when a practitioner codes 98966–98968 described appointment; 11–20 minutes of medical spends more than a brief amount of time assessment and management services discussion), and 99443 (Telephone in direct communication with the performed by practitioners who cannot evaluation and management service by patient. We believe that under ordinary separately bill for E/Ms. We are noting a physician or other qualified health circumstances outside of the PHE, if the that these services may be furnished by, care professional who may report needs of the patient are significant among others, LCSWs, clinical evaluation and management services enough to require the amount of time psychologists, and physical therapists, provided to an established patient, and attention from the practitioner occupational therapists, and speech parent, or guardian not originating from specified in the codes for higher level language pathologists when the visit a related E/M service provided within telephone evaluations or assessments, pertains to a service that falls within the the previous 7 days nor leading to an either an in-person visit or a telehealth benefit category of those practitioners. E/M service or procedure within the visit would be required. Alternatively, if To facilitate billing of these services next 24 hours or soonest available the needs of the patient are less acute by therapists, we are designating CPT appointment; 21–30 minutes of medical and lengthy, a virtual check-in would codes 98966–98968 as CTBS discussion). We assigned a status suffice. However, in the context of the ‘‘sometimes therapy’’ services that

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would require the private practice therapeutic services that fall under We note that some face-to-face occupational therapist, physical § 410.27(a)(1)(iv)(E), a minimum level of encounter requirements for DMEPOS therapist, and speech-language general supervision to be consistent Power Mobility Devices (PMDs) are pathologist to include the corresponding with the minimum default level of mandated by statute for program GO, GP, or GN therapy modifier on general supervision that applies for integrity purposes. This IFC does not claims for these services. most outpatient hospital therapeutic apply to those statutory requirements. services, and we are revising T. Physician Supervision Flexibility for For example, PMD face-to-face § 410.27(a)(1)(iv)(E) to reflect this Outpatient Hospitals—Outpatient encounter requirements are found in change in the minimum level of Hospital Therapeutic Services Assigned section 1834(a)(1)(E)(iv) of the Act, as supervision. General supervision, as to the Non-Surgical Extended Duration codified in § 410.38, and our regulation defined in our regulation at Therapeutic Services (NSEDTS) Level of already permits the use of telehealth in § 410.32(b)(3)(i) means that the Supervision accordance with Medicare guidelines. procedure is furnished under the We have extended flexibilities to permit Non-surgical extended duration physician’s overall direction and a broader use of telehealth services therapeutic services (NSEDTS) describe control, but that the physician’s during the PHE for the COVID–19 services that have a significant presence is not required during the pandemic. It should be noted that this monitoring component that can extend performance of the procedure. does not confer changes to the clinical for a sizable period of time, that are not indications of coverage for any LCD or surgical, and that typically have a low U. Application of Certain National Coverage Determination and Local NCD unless specifically indicated risk of complications after the below. assessment at the beginning of the Coverage Determination Requirements service. The minimum default During the PHE for the COVID–19 2. Clinical Indications for Certain supervision level of NSEDTS was Pandemic Respiratory, Home Anticoagulation established in the CY 2011 OPPS/ASC National Coverage Determinations Management and Infusion Pump final rule with comment period (75 FR (NCDs) are determinations by the Policies 72003 through 72013) as being direct Secretary with respect to whether or not During the PHE for the COVID–19 supervision during the initiation of the a particular item or service is covered pandemic, it is possible that patients service, which may be followed by nationally under Title XVIII. Local receiving services for respiratory related general supervision at the discretion of Coverage Determinations (LCDs) are indications will be required to receive the supervising physician or the determinations by a Medicare care in unexpected settings, including appropriate NPP (§ 410.27(a)(1)(iv)(E)). Administrative Contractor (MAC) with the home. This may be necessary as In this case, initiation means the respect to whether or not a particular COVID–19 and other patients are shifted beginning portion of the NSEDTS which item or service is covered under section across healthcare settings to ends when the patient is stable and the 1862(a)(1)(A) of the Act in the particular accommodate an increase in patient supervising physician or the appropriate MAC’s geographical areas. Articles are volume. NPP determines that the remainder of often published alongside LCDs and Therefore, we are finalizing on an the service can be delivered safely contain coding or other guidelines that interim basis that we will not enforce under general supervision. We complement an LCD. NCDs and LCDs the clinical indications for coverage established general supervision as the contain clinical conditions a patient across respiratory, home anticoagulation appropriate level of supervision after must meet to qualify for coverage of the management and infusion pump NCDs the initiation of the service because it is item or service. Some NCDs and LCDs and LCDs (including articles) allowing challenging for hospitals to ensure may also contain requirements for face- for maximum flexibility for practitioners direct supervision for services with an to-face, timely evaluations or re- extended duration and a significant evaluations for a patient to initially to care for their patients. This monitoring component, particularly for qualify for coverage or to qualify for enforcement discretion will only apply CAHs and small rural hospitals. continuing coverage of the item or during the PHE for the COVID–19 In the CY 2020 OPPS/ASC final rule service. These requirements are more pandemic. These policies include, but with comment period (84 FR 61359 are not limited to: often present in NCDs and LCDs for • through 61363), we changed the NCD 240.2 Home Oxygen. durable medical equipment than for • generally applicable minimum required other items and services. NCD 240.4 Continuous Positive level of supervision for most hospital Airway Pressure for Obstructive Sleep outpatient therapeutic services from 1. Face-to-Face and In-Person Apnea. • direct supervision to general Requirements LCD L33800 Respiratory Assist supervision for hospitals and CAHs. For the duration of this PHE for the Devices (ventilators for home use). Given the circumstances of the PHE for COVID–19 pandemic, it is in the best • NCD 240.5 Intrapulmonary the COVID–19 pandemic, we believe it interest of patients, health care Percussive Ventilator. is critical that hospitals have the most professionals and suppliers to limit • LCD L33797 Oxygen and Oxygen flexibility as possible to provide the face-to-face encounters and avoid Equipment (for home use). services Medicare beneficiaries need exposure of vulnerable Medicare • NCD 190.11 Home Prothrombin during this challenging time. Changing beneficiaries to COVID–19. Therefore, Time/International Normalized Ratio the minimum default level of on an interim basis, we are finalizing (PT/INR) Monitoring for supervision to general supervision for that to the extent an NCD or LCD Anticoagulation Management. NSEDTS during the initiation of the (including articles) would otherwise • NCD 280.14 Infusion Pumps. service will give providers additional require a face-to-face or in-person • LCD L33794 External Infusion flexibility they will need to handle the encounter for evaluations, assessments, Pumps. burdens created by the PHE for the certifications or other implied face-to- At the conclusion of the PHE for the COVID–19 pandemic. face services, those requirements would COVID–19 pandemic, we will return to Therefore, we are assigning, on an not apply during the PHE for the enforcement of these clinical interim basis, all outpatient hospital COVID–19 pandemic. indications for coverage.

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3. Requirements for Consultations or performance years. Under the policy The automatic extreme and Services Furnished by or With the adopted in that final rule, for a given uncontrollable circumstances policy Supervision of a Particular Medical performance year, including the described above does not apply to MIPS Practitioner or Specialist applicable quality data reporting period eligible clinicians who are subject to the Staffing is being adjusted in both for the performance year if the quality APM scoring standard (82 FR 53899), facility and non-facility settings to reporting period is not extended, we such as MIPS eligible clinicians accommodate for the needs of patients will use an alternative approach to participating in Shared Savings Program during the PHE for the COVID–19 calculating the quality score for ACOs ACOs. Instead, these MIPS eligible pandemic. These staffing decisions may affected by extreme and uncontrollable clinicians will continue to be scored impact the availability of physicians circumstances (42 CFR 425.502(f)). under the existing APM scoring and physician specialists to furnish Under this current policy at standard. Generally, if no MIPS eligible evaluations, consultations and § 425.502(f), the Shared Savings clinicians in an APM Entity submit data procedures or to supervise others. To Program extreme and uncontrollable by the extended deadline for the Quality the extent NCDs and LCDs require a circumstances policy does not apply for and Promoting Interoperability specific practitioner type or physician a performance year if an extreme and performance categories due to extreme specialty to furnish a service, procedure uncontrollable circumstance occurs and uncontrollable circumstances, the or any portion thereof, we are finalizing during the quality reporting period for APM scoring standard would apply as on an interim basis the chief medical that performance year and the quality follows. The Cost performance category officer or equivalent of the facility can reporting period is extended. For all will be weighted at zero percent, as authorize another physician specialty or performance years starting in 2019, the usual. The Improvement Activities other practitioner type to meet those original quality reporting period was performance category will be scored as requirements during the PHE for the January 2, 2020, through March 31, usual. The Quality performance COVID–19 pandemic. Additionally, to 2020. In response to the PHE for the category will be reweighted to zero the extent NCDs and LCDs require a COVID–19 pandemic, we have percent where the APM has waived physician or physician specialty to determined that the 2019 MIPS data quality reporting for purposes of the supervise other practitioners, submission deadline will be extended APM as in these circumstances CMS professionals or qualified personnel, the by 30 days until April 30, 2020, to give determines that there are not sufficient chief medical officer of the facility can eligible clinicians more time to report measures or activities applicable and authorize that such supervision quality and other data for purposes of available to MIPS eligible clinicians, requirements do not apply during the MIPS. This extended timeline also consistent with § 414.1370(h). Finally, if PHE for the COVID–19 pandemic. applies to Shared Savings Program all MIPS eligible clinicians in an APM ACOs because they are required to Entity have been excepted from V. Change to Medicare Shared Savings report quality data via the CMS Web reporting the Promoting Interoperability Program Extreme and Uncontrollable Interface and we align the Shared performance category, then the Circumstances Policy Savings Program data submission Promoting Interoperability performance In December 2017, we issued an timeline with the timeline for MIPS data category weight will be reweighted to interim final rule with comment period, submission. While the extended zero for the APM Entity for that MIPS titled ‘‘Medicare Shared Savings timeframe for data submission is performance period Program: Extreme and Uncontrollable intended to give eligible clinicians (§ 414.1370(g)(4)(iii)(A)). As a result, in Circumstances Policies for Performance sufficient time to complete all the these circumstances, the Quality, Cost, Year 2017’’ (hereinafter referred to as elements of MIPS reporting during the and Promoting Interoperability the ‘‘December 2017 interim final rule PHE for the COVID–19 pandemic, we categories would all be weighted at zero with comment period’’), which realize that this extension alone may not percent. And as only one performance appeared in the Federal Register on be sufficient to ease the burden of category will be scored, the December 26, 2017 (82 FR 60912 reporting given the increased burden of Improvement Activities performance through 60919). The December 2017 providing care to all patients during this category, such MIPS eligible clinicians interim final rule with comment period time. For this reason, under the Quality would receive a neutral MIPS payment established a policy for determining Payment Program, we have determined adjustment. quality performance scores for that the MIPS automatic extreme and For MIPS eligible clinicians accountable care organizations (ACOs) uncontrollable circumstances policy participating in Shared Savings Program participating in the Medicare Shared will apply to MIPS eligible clinicians, ACOs that do not report quality and Savings Program (Shared Savings who do not submit their MIPS data by obtain a neutral payment adjustment Program), when the ACO, its the extended timeline. Under this under MIPS, according to the existing participating ACO providers and automatic extreme and uncontrollable APM scoring standard described above, suppliers, and assigned beneficiaries circumstances policy, MIPS eligible the Shared Savings Program must were located in geographic areas that clinicians, who are not participants in determine that the ACOs are impacted were impacted by extreme and APMs, who do not submit any MIPS by an extreme and uncontrollable uncontrollable circumstances, such as data will have all performance circumstance and waive the quality hurricanes, wildfires, or other triggering categories reweighted to zero percent, reporting requirement under the Shared events, during performance year (PY) resulting in a score equal to the Savings Program. As currently written, 2017, including the applicable quality performance threshold, and a neutral the Shared Savings Program extreme data reporting period for the MIPS payment adjustment. However, and uncontrollable circumstances performance year if the quality reporting under the policy, if a MIPS eligible policy does not allow for the period was not extended. In the CY clinician submits data on two or more determination that an ACO has been 2019 PFS final rule we extended the MIPS performance categories, they will impacted by an extreme and extreme and uncontrollable be scored and receive a 2021 MIPS uncontrollable circumstance that occurs circumstances policy finalized for PY payment adjustment based on their final during the quality reporting period if 2017 to PY 2018 and subsequent score. quality reporting period is extended, as

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it has been for performance years not be able to completely and accurately determined to be impacted by an starting in 2019. report their quality data for 2019, extreme and uncontrollable In addition, under the Shared Savings despite the extension of the quality circumstances, will continue to be Program, if an ACO fails to report reporting period. To provide relief to all appropriate for PY 2020 and beyond. quality data by the submission deadline, ACOs participating in the Shared Any change to that current policy would the ACO will not have met the quality Savings Program during 2019, we need be made through future notice and performance standard and will receive a to modify the extreme and comment rulemaking. quality score of zero, unless the extreme uncontrollable circumstances policy as Regarding Shared Savings Program and uncontrollable circumstances it applies to disasters that occur during financial reconciliations for policy under § 425.502(f) applies. In the the reporting period to eliminate the performance years starting in 2019, we event an ACO receives a quality restriction that the extreme and note that because the PHE for the performance score of zero, the ACO uncontrollable circumstances policy COVID–19 pandemic was declared would be ineligible to share in savings, applies only if the reporting period is during the reporting period for those if earned and would owe maximum not extended. performance years, the provisions that losses if participating under Track 2 or As explained above, the PHE for the allow for an adjustment to the amount the ENHANCED track. The current COVID–19 pandemic was declared of shared losses for ACOs found to be Medicare Shared Savings Program during the quality reporting period for affected by an extreme and extreme and uncontrollable performance years starting in 2019. The uncontrollable circumstance during a circumstances policy for purposes of PHE for the COVID–19 pandemic performance year would not apply for determining an ACO’s quality score for applies to all counties in the United performance years starting in 2019. use in determining shared savings or States, and we believe it is appropriate However, for PY 2020 financial losses applies if twenty percent or more to offer relief under the Shared Savings reconciliation, we will reduce the of an ACO’s assigned beneficiaries or its Program extreme and uncontrollable amount of an ACO’s shared losses by an legal business entity are located in an circumstances policy to all Shared amount determined by multiplying the area identified under the Quality Savings Program ACOs that are unable shared losses by the percentage of the Payment Program as being affected by to completely and accurately report total months in the performance year an extreme and uncontrollable quality for 2019 by the extended affected by an extreme and circumstance for the performance year, deadline due to the PHE for the COVID– uncontrollable circumstance, and the including the quality reporting period if 19 pandemic. Due to the PHE for the percentage of the ACO’s assigned the quality reporting period is not COVID–19 pandemic and our desire to beneficiaries who reside in an area extended. provide relief for Shared Savings ACOs affected by an extreme and The effect of the MIPS quality who need to focus resources on patient uncontrollable circumstance. At this reporting period extension is that the care at this time, we believe that this time, the PHE for the COVID–19 current Shared Savings Program policy must be effective starting with pandemic applies to all counties in the extreme and uncontrollable the quality reporting period for country; therefore, 100 percent of circumstance policy does not apply, performance years starting in 2019. assigned beneficiaries for all Shared because the current extreme and Further, as illustrated by the current Savings Program ACOs reside in an uncontrollable circumstances policy is PHE for the COVID–19 pandemic, there affected area and the total months only available for extreme and may be unanticipated situations in the affected by an extreme and uncontrollable circumstances that occur future, during which extension of a uncontrollable circumstance will begin during the quality reporting period, quality reporting window alone would with March and continue through the such as the current PHE for the COVID– not provide sufficient relief from end of the current PHE, as defined in 19 pandemic, if the quality reporting reporting burden at a time when ACOs § 400.200. period is not extended. The inability to and their ACO providers and suppliers Additionally, the Medicare Shared apply the extreme and uncontrollable need to focus on patient care. Savings Program financial methodology circumstances policy to waive the Accordingly, in this IFC, we are revising includes updating each ACO’s quality reporting requirements under the regulation at § 425.502(f) to remove benchmark at the end of each the Shared Savings Program during the the restriction which prevents the performance year based on the PHE may adversely impact ACOs and application of the Shared Savings performance year expenditure trend. their participating ACO providers and Program extreme and uncontrollable The factors used to update ACOs’ suppliers, because the extended circumstances policy for disasters that benchmarks will reflect the national and timeline to submit data alone may not occur during the quality reporting regional trends related to spending and be sufficient to support ACOs and their period if the reporting period is utilization changes during 2020, participating ACO providers and extended, to offer relief under the including any changes arising from the suppliers, who are focused on care Shared Savings Program to all ACOs PHE for the COVID–19 pandemic. delivery during the national emergency. that may be unable to completely and W. Level Selection for Office/Outpatient The intent of the Shared Savings accurately report quality data for 2019 E/M Visits When Furnished Via Program extreme and uncontrollable due to the PHE for the COVID–19 Medicare Telehealth circumstance policy is to mitigate any pandemic. Specifically, we are impact on quality performance and the amending the regulation at § 425.502(f) In the CY 2020 PFS final rule (84 FR resultant effect on financial to remove the phrase ‘‘if the quality 62847 and 62848), we finalized a reconciliation due to emergency reporting period is not extended,’’ number of changes to the framework of circumstances outside of the ACO’s effective with quality reporting for PY the office/outpatient E/M requirements control. Accordingly, we believe it is 2019. for CY 2021. Beginning January 1, 2021 necessary to revise the policies We are considering whether the for office/outpatient E/M visits, the code governing the availability of the Shared current policy, which assigns an ACO level will be selected based on either the Savings Program extreme and the higher of the mean quality score level of MDM or the total time uncontrollable circumstances policies to across all ACOs and the ACO’s own personally spent by the reporting extend the protection to ACOs that may quality score, in the event the ACO is practitioner on the day of the visit

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(including face-to-face and non-face-to- COVID–19 pandemic,’’ we state that the Programs, and the PACE Program,’’ face time). We noted that there was teaching supervision requirement can be published on April 16, 2018 (83 FR broad support for these changes from met in certain circumstances through 16519 through 16589), we adopted the AMA and other specialty societies. direct supervision using interactive regulations to govern this quality rating Currently, telehealth office/outpatient telecommunications technology, system for cost MA and Part D plans, E/Ms can be furnished to beneficiaries including when a medical resident is which are generally rated at the contract in their homes only when they are for quarantined at home. Regarding level. In a final rule, ‘‘Medicare and individuals with a substance use claiming of the residents for indirect Medicaid Program; Policy and disorder (SUD) diagnosis for purposes of medical education (IME) and Direct Technical Changes to the Medicare treatment of such disorder or co- graduate medical education (DGME) Advantage, Medicare Prescription Drug occurring mental health disorder. For purposes, under current regulations, if a Benefit, Programs of All-Inclusive Care these services, the primary factor in resident is training in a hospital, that for the Elderly (PACE), Medicaid Fee- selecting the appropriate level of E/M hospital claims the resident for IME and for-Service, and Medicaid Managed Care service to bill would be time spent DGME (per § 413.78(a)), and if a resident Programs for Years 2020 and 2021,’’ counseling the patient. Under the is training in a nonprovider site such as published April 16, 2019 (84 FR 15830 waiver issued by the Secretary pursuant a doctor’s office or clinic, the hospital and 15831), we amended the regulations to section 1135(b)(8) of the Act, or hospitals that pays the resident’s governing the quality rating program for telehealth office/outpatient E/Ms can be salaries and fringe benefits claims the MA and Part D plans. Those final rules furnished to any patient in their home resident for IME and DGME (per contain a more detailed discussion of regardless of their diagnosis or medical § 413.78(g)). Currently, there is no CMS’ authority in this area and we condition. However, the current E/M provision in the regulations for a encourage readers to refer to those final coding guidelines would preclude the hospital to claim a resident for IME or rules. billing practitioner from selecting the DGME if the resident is performing In the CY 2020 Final Call Letter and office/outpatient E/M code level based patient care activities within the scope the CY 2020 final rule, published in the on time in circumstances where the of his or her approved program in his Federal Register on April 16, 2019 (84 practitioner is not engaged in or her own home, or in a patient’s home. FR 15830 and 15831), we finalized a set counseling and/or care coordination. For the duration of this emergency of rules for adjusting the calculation of On an interim basis, we are revising situation, we are permitting the hospital Star Ratings for the cost and Parts C and our policy to specify that the office/ that is paying the resident’s salary and D organizations that are impacted by outpatient E/M level selection for these fringe benefits for the time that the extreme and uncontrollable services when furnished via telehealth resident is at home or in the home of a circumstances. We provided in the 2021 can be based on MDM or time, with patient that is already a patient of the Advance Notice that the same policy as time defined as all of the time physician or hospital, but performing used for adjustments to 2020 Star associated with the E/M on the day of patient care duties within the scope of Ratings based on extreme and the encounter; and to remove any the approved residency program (and uncontrollable circumstances would be requirements regarding documentation meets appropriate physician continued for CY 2021 Star Ratings. We of history and/or physical exam in the supervision requirements as stated in did not envision the unprecedented medical record. This policy is similar to section II.O. of this IFC) to claim that circumstances surrounding the PHE for the policy that will apply to all office/ resident for IME and DGME purposes. the COVID–19 pandemic when we outpatient E/Ms beginning in 2021 developed the adjustments for extreme under policies finalized in the CY 2020 Y. Addressing the Impact of COVID–19 and uncontrollable circumstances for PFS final rule. It remains our on Part C and Part D Quality Rating the Part C and D Star Ratings program; expectation that practitioners will Systems as they exist currently, they are not document E/M visits as necessary to 1. Background sufficient in the case of the PHE for the COVID–19 pandemic. ensure quality and continuity of care. a. Legislative Authority for Star Ratings To reduce the potential for confusion, b. Overview of Star Ratings we are maintaining the current Based on its authority to disseminate definition of MDM. We note that comparative information, including The Star Ratings are generally based currently there are typical times about quality, to beneficiaries under on measures of performance during a associated with the office/outpatient E/ sections 1851(d) and 1860D–1(c) of the period that is 2 calendar years before the Ms, and we are finalizing those times as Act and authority to collect various year for which the Star Ratings are what should be met for purposes of types of quality data under section issued; 2021 Star Ratings will generally level selection. The typical times 1852(e) of the Act, CMS develops and be based on performance during 2019 associated with the office/outpatient E/ publicly posts a 5-star ratings system for and the 2022 Star Ratings will similarly Ms are available as a public use file at MA and Part D plans. That system is be based on performance in 2020. We https://www.cms.gov/Medicare/ also the basis for determining quality use multiple data sources to measure Medicare-Fee-for-Service-Payment/ bonus payment (QBP) status for MA quality and performance of contracts. PhysicianFeeSched/PFS-Federal- plans under section 1853(o) of the Act. Various regulations require plans to Regulation-Notices-Items/CMS-1715-F. Section 1876 cost plans are also report on quality improvement and This policy only applies to office/ included in the MA and Part D Star quality assurance and to provide data outpatient visits furnished via Medicare Rating system as codified at 42 CFR which we can use to help beneficiaries telehealth, and only during the PHE for 417.472(k) and are also required by compare plans (for example, the COVID–19 pandemic. § 417.472(j) to make CAHPS survey data §§ 417.472(j) and (k), 422.152(b), available to CMS. In a final rule, 423.153(c), and 423.156). In addition, X. Counting of Resident Time During ‘‘Medicare Program; Contract Year 2019 we may require plans to report statistics the PHE for the COVID–19 Pandemic Policy and Technical Changes to the and other information in specific In section II.O. of this IFC, Medicare Advantage, Medicare Cost categories (§§ 422.516 and 423.514). ‘‘Application of the Teaching Physician Plans, Medicare Fee-for-Service, the Data from these sources and other Regulations During the PHE for the Medicare Prescription Drug Benefit sources are used to calculate measures

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of plan sponsor performance each year, and patients to evaluate experiences of hcf.html) that range from rescheduling as provided in §§ 422.162 and 423.182. care. Cost plans, Part C plans, and Part non-urgent outpatient visits and elective The Star Ratings serve an important D plans are all required by regulation surgeries, promoting telehealth visits, purpose in providing comparative (§§ 417.472, 422.152, and 423.156, and managing mildly ill COVID–19 information to enrollees and are also respectively) to contract with approved patients at home. Also, on March 16, used to identify whether an MA plan is Medicare CAHPS survey vendors to 2020, CDC issued interim guidance eligible for a QBP under section 1853(o) conduct the Medicare CAHPS (https://www.cdc.gov/coronavirus/2019- of the Act. The Patient Protection and satisfaction survey of Medicare plan ncov/community/large-events/ Affordable Care Act (Pub. L. 111–148), enrollees in accordance with CMS index.html) advising the public against as amended by the Healthcare and specifications and submit the survey holding gatherings of more than 10 Education Reconciliation Act (Pub. L. data to CMS. The Star Ratings system individuals. On March 18, 2020, we 111–152), provides for quality ratings, uses measures from HEDIS and CAHPS released recommendations related to based on a 5-star rating system and the extensively, and there are negative delaying adult elective surgeries, non- information collected under section consequences for a plan’s Star Ratings essential medical, surgical, and dental 1852(e) of the Act, to be used in (overall and on specific measures) if the procedures during the COVID–19 calculating payment to MA necessary data for the HEDIS and outbreak to be able to focus health care organizations beginning in 2012. CAHPS measures are not reported or professionals on those most in need of Specifically, sections 1853(o) and validated. Although the 2021 Star healthcare (https://www.cms.gov/ 1854(b)(1)(c) of the Act were added and Ratings reflect performance in 2019 for newsroom/press-releases/cms-releases- amended to provide, respectively, for an most of the measures, data collection for recommendations-adult-elective- increase in the benchmark against HEDIS and CAHPS is conducted in the surgeries-non-essential-medical- which MA organizations bid and in the first half of CY 2020 to feed into the surgical-and-dental). portion of the savings between the bid 2021 Star Ratings that are finalized by On March 13, 2020, President Trump and the benchmark available to the MA October 2020. Similarly, the Health declared a national emergency as a organization to use as a rebate. We Outcomes Survey will occur in 2020 to result of the COVID–19 pandemic. The assign both low and high performing collect data used for the 2022 Star declaration of the PHE for the COVID– icons that are displayed on Ratings and the same concerns about 19 pandemic allows certain Medicare www.Medicare.gov to help Medicare survey activities apply to that survey. requirements and conditions of beneficiaries make plan decisions based participation to be waived under section 2. Impact of COVID–19 on Star Ratings on either consistently low performance 1135 of the Act providing more Data Collection for 3 or more years or receiving 5 stars flexibility to providers in furnishing for the highest rating, respectively. The World Health Organization medically necessary health care to Additionally, plans that demonstrate (WHO) has characterized COVID–19 as beneficiaries. exceptional performance due to a pandemic, and there are alarming Currently, data collection for HEDIS achieving a 5 Star Rating for their levels of spread and severity of COVID– measures is ongoing for services and highest rating can market year round 19 across the United States. The CDC performance during the 2019 and beneficiaries receive a special and medical professionals recommend measurement period. MA contracts are election period that allows the eligible that the best way to prevent the spread required to submit their HEDIS beneficiary to enroll in a 5-star plan of the virus is to avoid contact with summary-level data to the NCQA by during the contract year. We also have infected individuals. Social distancing June 15, 2020, as well as to submit their the authority to terminate plans that is a method that public health officials HEDIS patient-level data to CMS the have below a 3-star rating for 3 or more use to curb the transmission and spread same day. Currently, data collection years. The Star Ratings therefore serve a of infectious illnesses like COVID–19. activities are underway to meet the June number of important purposes for cost, Prior research has shown that these deadlines. Some of the HEDIS measures MA and Part D plans; we believe that measures help mitigate the spread of require medical record review or plans engage in behavior during the contagious viruses in the absence of obtaining information directly from performance measurement period to vaccines (https://www.ncbi.nlm.nih.gov/ physician offices. We recognize that improve their Star Ratings and to pmc/articles/PMC3372334/), as is the obtaining medical records from achieve higher Star Ratings. case with COVID–19. physician offices and the necessary Healthcare Effectiveness Data and To help curb the spread of COVID–19, documentation from physician offices Information Set (HEDIS) and Consumer governors around the country are needed for the plan to meet HEDIS Assessment of Healthcare Providers and putting in place actions to protect requirements, and requiring plans to Systems (CAHPS) data are the basis for public health and safety and help participate in HEDIS audits will put a the calculation of the majority of mitigate the spread of the virus, strain on the limited resources available measures for both the Part C and Part D including school closures, limiting the to these health care providers. Some of Star Ratings. HEDIS measures include size of gatherings and events, and these activities are generally done in clinical measures assessing the restaurant closures. Employers are person so compliance with social effectiveness of care, access/availability moving to mandatory telework when distancing efforts, travel bans and measures, and service use measures and feasible. The intent of these actions is to quarantines raise additional challenges, are calculated by CMS through a save lives, keep people safe, and slow as well as risks to staff. CMS’ top contract with the National Committee the rate of infection. As of March 28, priority is to ensure public health and for Quality Assurance (NCQA). Many of 2020, all 50 states were under a State of safety, including that of beneficiaries, the HEDIS measures require plans to Emergency. Additionally, areas of the health and drug plan staff, and perform reviews of patients’ medical country are being put under shelter-in- providers, and to allow health and drug records or to obtain information directly place orders to further curtail the spread plans, providers, and physician offices from physician offices, which is a time- of the virus. CDC has provided guidance to focus on what is most important at intensive activity. to health care facilities (for example, this time: The provision of care. CAHPS refers to a comprehensive https://www.cdc.gov/coronavirus/2019- Under §§ 417.472(i) and (j), family of surveys that ask consumers ncov/healthcare-facilities/guidance- 422.152(b)(5), and 423.156, all

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coordinated care MA plans, section and 2022 Star Rating, plans could have for HEDIS. In light of the public safety 1876 contracts, and Part D sponsors, conflicting incentives, needing issues in continuing to require the respectively, are required to contract physician offices and plan staff to focus submission of HEDIS data for the 2019 with a CMS-approved CAHPS survey on caring for those impacted by COVID– measurement year, we are eliminating vendor to conduct the Medicare CAHPS 19 and keeping Medicare beneficiaries the HEDIS 2020 submission requirement satisfaction survey in accordance CMS and those involved in data collection that covers the 2019 measurement year specifications and to submit the data to activities safe, while at the same time and we are requesting that Medicare CMS. The administration of the surveys wanting to ensure that future Star health plans, including MA and section and data collection are currently Ratings and QBP ratings are not 1876 organizations, curtail HEDIS data ongoing until the end of May 2020 for impacted by the PHE for the COVID–19 collection work immediately. This will the CAHPS survey data that would be pandemic which could negatively allow health plans, providers, and used for the 2021 Star Ratings. We are impact future benefits offered by MA physician offices to focus on caring for concerned that the COVID–19 pandemic organizations. The changes to the Medicare beneficiaries during this PHE will pose significant challenges and calculations for 2021 and 2022 Star for the COVID–19 pandemic and will safety concerns in successfully Ratings are designed to avoid minimize risk of the spread of infection completing the current CAHPS data inadvertently creating incentives for by eliminating travel and in-person collection. Most of the survey plans to place cost and Star Rating work for the collection of HEDIS data. administration protocols cannot be considerations above efforts to address Our goal is to ensure that offices of completed remotely, requiring staff to the COVID–19 pandemic. health care providers remain focused on work in mail facilities and call centers 3. Provisions of IFC patients needing care. Medicare health where telephone interviewers assemble plans can use any HEDIS data that they in close quarters to perform the This IFC is modifying the calculation have collected for their internal quality telephone administration of the survey. of the 2021 and 2022 Part C and D Star improvement efforts. Ratings to address the expected We are concerned that cost plans, MA We are also amending the regulations organizations, and Part D plan sponsors disruption to data collection posed by the PHE for the COVID–19 pandemic. requiring the submission of the CAHPS will not be able to complete this year’s survey data to CMS for Medicare health data collection without jeopardizing the Specifically, this IFC: (1) Replaces the and drug plans to relieve them of the health and safety of survey vendor staff. 2021 Star Ratings measures calculated requirement as it applies to the 2020 We have similar concerns about the based on HEDIS and Medicare CAHPS survey data collection to ensure the Health Outcomes Survey (HOS) data data collections with earlier values from safety of survey vendor staff and align collection scheduled for later in 2020. the 2020 Star Ratings (which are not This IFC amends, as necessary, the affected by the public health threats with the CDC’s social distancing calculations for the 2021 and 2022 Part posed by COVID–19); (2) establishes guidance. Both Part C and D plans can C and D Star Ratings to incorporate how we will calculate or assign Star use any CAHPS survey data already changes to address the expected impact Ratings for 2021 in the event that CMS’ collected for their internal quality of the PHE for the COVID–19 pandemic functions become focused on only improvement efforts. Accordingly, we on data collection and performance. continued performance of essential are modifying regulations in parts 417, Plans urgently need to know these Agency functions and the Agency and/ 422, and 423 to eliminate requirements changes so as not to further exacerbate or its contractors do not have the ability for the collection of HEDIS and CAHPS the PHE for the COVID–19 pandemic by to calculate the 2021 Star Ratings; (3) data that would otherwise occur in continuing efforts to complete the modifies the current rules for the 2021 2020. Specifically, we are revising the HEDIS and CAHPS data collection Star Ratings to replace any measure that Part C regulation at § 422.152 by adding activities. The HEDIS data collection has a data quality issue for all plans due a new paragraph (b)(6), which provides diverts physicians’ offices and health to the COVID–19 outbreak with the that MA organizations are not required plans from handling the day-to-day measure-level Star Ratings and scores to submit HEDIS and CAHPS data that emergencies as a result of the PHE for from the 2020 Star Ratings; (4) in the would otherwise be required for the the COVID–19 pandemic. Additionally, event that we are unable to complete calculation of the 2021 Star Ratings. In we are concerned it is not possible to HOS data collection in 2020 (for the addition, we are revising the cost plan safely continue the HEDIS and CAHPS 2022 Star Ratings), replaces the regulation at § 417.472(i) and (j) in two data collection activities while measures calculated based on HOS data ways: In paragraph (i), to add a complying with the CDC collections with earlier values that are requirement for cost plans to comply recommendation for social distancing. not affected by the public health threats with § 422.152(b)(6) and in paragraph Under normal circumstances, if Part C posed by COVID–19 for the 2022 Star (j), to make the obligation for cost plans and section 1876 plans do not fully Ratings; (5) removes guardrails for the to conduct CAHPS surveys subject to complete their HEDIS data collection 2022 Star Ratings; and (6) expands the paragraph (i). Finally, we are revising activities and successfully meet NCQA’s existing hold harmless provision for the the Part D regulations at §§ 423.156 and HEDIS audit requirements, we assign Part C and D Improvement measures to 423.182. We are revising § 423.156 to each of the HEDIS Star Ratings measures include all contracts for the 2022 Star not require Part D sponsors to submit 1 star. Similarly, if the CAHPS data Ratings. CAHPS data that would otherwise be cannot be completed and submitted on required for the calculation of the 2021 time by Part C, section 1876 cost, and a. HEDIS, CAHPS, and HOS Data Star Ratings. We are also adding Part D plans, we historically have Collection and Submission for 2021 Star § 423.182(c)(3) so that for 2021 Star assigned each of the CAHPS Star Ratings and 2022 Star Ratings Ratings only, Part D sponsors are not Ratings measures 1 star. Furthermore, We issued a Health Plan Management required to submit CAHPS data that unreliable CAHPS measure scores are System (HPMS) memo, entitled would otherwise be required for the excluded from the Part C and D Star ‘‘Reporting Requirements for 2020 calculation of the 2021 Star Ratings. Ratings calculations. Without knowing HEDIS®, HOS, and CAHPS® Measures,’’ While our revisions do not outright the changes made by this IFC to the on September 9, 2019 to establish the prohibit cost plans, MA plans, and Part methodology for calculating the 2021 due date for the 2019 measurement year D plans from continuing efforts to

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collect HEDIS data or conduct CAHPS and the data are due to CMS in June COVID–19 pandemic associated with surveys during 2020, such as to use that 2020. A series of adjustments to the completing the HEDIS data collection data about plan performance in 2019 for 2021 Star Ratings are being made to for the 2019 measurement year, we will the plan’s own internal quality account for eliminating the need to use the HEDIS measure scores and Star initiatives, we do not expect plans to do collect and submit HEDIS and CAHPS Ratings based on the 2018 measurement so. An additional component of the data for the 2021 Star Ratings. year (that is, the data used for the 2020 HEDIS data collection is the HOS that The April 2018 final rule (83 FR Star Ratings) for the 2021 Star Ratings. NCQA administers in partnership with 16538 through 16546) included the For the 2021 Star Ratings, given the CMS. This year’s HOS survey measures finalized for the 2021 Star safety concerns related to completing administration was scheduled to be Ratings. Included in those measures are the CAHPS surveys and data collection from April through July 2020. Given the many that use HEDIS or CAHPS as the and the inability of survey vendors to significant safety concerns, similar to data source. In the 2020 Star Ratings, 14 fully complete data collection for 2020, the ones related to the administration of measures had HEDIS as their data we will use the CAHPS data submitted the CAHPS survey, we are moving the source, and nine measures had CAHPS to CMS in June 2019. To accomplish HOS survey administration to late as their data source. The measurement this, we are revising §§ 422.166 and summer and will provide MA plans period for most of the Star Ratings 423.186 to add new regulation text that more information in the upcoming measures is 2019; for many of those the measures calculated based on HEDIS months. We will continue to monitor measures, we (or the plans) already have data are calculated based on data for the the situation to see if any further the data necessary to calculate a 2018 performance period and the adjustments are needed. To prepare for measure score and assign a 2021 measures calculated based on CAHPS the possibility that the PHE for the measure-level rating but validation and data are calculated based on survey data COVID–19 pandemic continues and the analysis of those data remain to be done. collected from March through May HOS survey data cannot be collected For the HEDIS data source, the 2019. Specifically, we are adding a new starting in late summer for the 2022 Star measurement period finalized in the paragraph (j) to each of these regulations Ratings, we are amending the April 2018 final rule is the calendar year and are codifying these specific rules regulations for the Part C 2022 Star 2 years prior to the Star Ratings year so about HEDIS and CAHPS data at Ratings (by adding new § 422.166(j)(2)) for the 2021 Star Ratings, the HEDIS §§ 422.166(j)(1)(i) and (ii) and to allow us to use the Star Ratings and measurement period is the 2019 423.186(j)(1)(i). measure scores for the 2021 Star Ratings measurement year. However, those data The measurement period for all other for any measures that come from the are collected in 2020. measures will not change from what HOS survey; this will address any gaps Similarly, for the CAHPS data source, was finalized in the April 2018 final in the necessary HOS data if the HOS the measurement period finalized for rule. For both HEDIS and CAHPS survey cannot be administered in 2020. the 2021 Star Ratings is the most recent measures, we will use 2020 measure- The measures from the HOS survey data submitted for the survey of level Star Ratings (and associated include the following: Improving or enrollees. In general, the most recent measure-level scores) in all the Star Maintaining Physical Health; Improving data would be the survey conducted Ratings calculations codified at or Maintaining Mental Health; Reducing from March through the end of May §§ 422.160, 422.162, 422.164, 422.166, the Risk of Falling; Improving Bladder each year, which for the 2021 Star 423.180, 423.182, 423.184, and 423.186 Control; and Monitoring Physical Ratings would have corresponded to in calculating the 2021 Star Ratings. For Activity. March through May 2020 data the 2021 Star Ratings, there will be no collection. However, these data will not changes from the prior year in the b. Adjustments to the 2021 Star Ratings be available for HEDIS and CAHPS measure-level cut points for any of the Methodology Due To Lack of HEDIS and measures. CMS considered if we could HEDIS and CAHPS measures. We had CAHPS Data remove all of the HEDIS and CAHPS previously announced in the April 2019 In response to the PHE for the measures from the 2021 Star Ratings. If final rule that the Plan All-Cause COVID–19 pandemic and its impact on we removed these measures from the Readmissions measure would be moved health care delivery and data collection, Star Ratings, we would not have enough to display for the 2021 Star Ratings due we are making a series of adjustments to measures to rate plans and to have a to the substantive specification change. the Star Ratings methodology to protect complete picture of performance given We will continue to exclude this the health and safety of individuals who approximately half of the Star Ratings measure for the 2021 Star Ratings as would collect the HEDIS and CAHPS measures come from HEDIS and provided in that final rule, so the data data; to allow health and drug plans and CAHPS. Removing all of these measures associated with it for the 2018 their providers to focus on caring for would severely compromise the performance period (collected in spring Medicare beneficiaries during the PHE integrity of the Part C and D Star Ratings 2019) will be posted on the display page for the COVID–19 pandemic; and to and would have significant impact on for 2021 ratings. address the unusual, unexpected, and payment for MA organizations. Given Since we will be using the 2020 Star uncontrollable changes that this measure scores and stars do not Ratings data for the HEDIS and CAHPS pandemic is likely to have on the Part fluctuate significantly year to year, we measures, we will carry forward the C and D Star Ratings. Because of the believe using the 2020 measure-level measure-level improvement change short time frame during which stars and scores for the missing HEDIS score as described at §§ 422.164(f)(4)(i) information is collected, analyzed, and and CAHPS data provides the best and 423.184(f)(4)(i) from the 2020 Star used in the calculation of the Star approximation of performance in 2019. Ratings for all HEDIS or CAHPS Ratings published in October each year, This substitution addresses the lack of measures for the 2021 Star Ratings Part immediate action is necessary to amend HEDIS and CAHPS data that would C and D improvement measure the methodology as a result of the otherwise be used for 2021 Star Ratings calculations. We are codifying this at extraordinary circumstances created by while permitting us to calculate and use §§ 422.166(j)(1)(iii) and 423.186(j)(1)(ii). the PHE for the COVID–19 pandemic. reliable Star Ratings for 2021 enrollment Under §§ 422.164(g)(1) and (2) and Data collection is currently underway and 2022 QBP status determinations. 423.184(g)(2), we reduce HEDIS and for both the HEDIS and CAHPS data, Given the issues related to PHE for the CAHPS measures to 1 star when either

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HEDIS measures used to populate the notice and comment rulemaking to use the 2020 Star Ratings as the 2021 Star Ratings are not reported or for make changes to the 2021 Star Ratings Star Ratings. This authority is codified failure to adhere to CAHPS reporting methodology in time to issue the Star at §§ 422.166(j)(1)(v) and requirements. For the 2021 Star Ratings, Ratings on Medicare Plan Finder. 423.186(j)(1)(iv) and limited specifically we will not reduce these measures to 1 Star Ratings are used to identify to the COVID–19 pandemic. star for failure to report the 2020 HEDIS which MA plans are eligible for a QBP We are also concerned, given the or CAHPS data and is codifying that and for a greater percentage of the uncertainties ahead, whether CMS and approach at §§ 422.166(j)(1)(iv) and amount by which the benchmark for the plans will be able to safeguard against 423.186(j)(1)(iii). We are amending plan’s service area exceeds the plan’s data quality issues for non-CAHPS and §§ 422.166 and 423.186 by adding bid for covering Part A and Part B non-HEDIS measures for which CMS paragraph (j) to codify these various benefits; the quality bonus results in an does not already have data for the 2021 special rules for the 2021 Star Ratings. increase to the benchmark for an MA Star Ratings. As an example, sponsors plan’s service area and the percentage report Special Needs Plan (SNP) Care c. Use of 2020 Star Ratings To Substitute that determines the amount of the Management and Medication Therapy for 2021 Star Ratings in the Event of beneficiary rebate. See §§ 422.258(d)(7) Management (MTM) data to CMS by Extraordinarily Compromised CMS and 422.260. Together, these financial March 2020, and these data undergo Capabilities or Systemic Data Issues consequences for a high Star Rating, can independent data validation beginning There is great uncertainty about how result in higher beneficiary rebates, in April. While validation activities can the COVID–19 pandemic will evolve which are used to pay for supplemental be conducted remotely between the over the next 6 to 9 months, and the benefits and reductions in the Part B or plans’ staff and data validation impact on the American population and Part D premium for enrollees in the reviewers, there may be other institutions resulting from the plan. Given the impact the Star Ratings difficulties in completing the work this pandemic. We have considered the have on payment and the benefits year on time and consistent with CMS normal activities required to prepare, offered to Medicare beneficiaries, it is requirements due to the significant calculate, and publish the Star Ratings, critical that MA organizations have impact of the PHE for the COVID–19 as well as finalize the ratings to be used certainty in terms of how the ratings pandemic. Normally, as codified at as the basis for MA QBPs in the event would be calculated if this situation §§ 422.164(b) and 423.184(b), we review that CMS’ functions to calculate the should occur. the quality of the data before making a 2021 Star Ratings are significantly Adopting a provision to address such final determination about inclusion of impacted. The operational timelines for extraordinary circumstances before they the measures in each year’s Star Ratings. calculating the Star Ratings each year come to pass in connection with the Given the potential for multiple are extremely tight. For example, when COVID–19 pandemic will ensure that measures to have data quality issues we receive all of the measure-level data Medicare health and drug plans and across many plans as a result of COVID– in early August, we have approximately Medicare beneficiaries are aware of the 19, we are addressing this possibility by 1 month to: Review the Star Ratings steps CMS will take before those actions adopting a rule to permit replacing the measure data for accuracy; prepare data become necessary. This advance notice 2021 Star Ratings measure scores and and supportive material to provide will alleviate uncertainty and provide stars with the 2020 Star Ratings plans with a preview period so they can stability for cost plans, MA measures scores and stars for the review their numeric measure scores organizations, and Part D sponsors so impacted measures for all plans rather and raise issues to CMS; work with they can focus on continuing to ensure than excluding multiple measures from contractors to calculate the Star Ratings; Medicare beneficiaries have access to the 2021 Star Ratings calculations. prepare for a second preview period for needed medical care. In case the PHE Removing multiple measures from the plans to see their preliminary measure for the COVID–19 pandemic gets to a Star Ratings can cause unanticipated level and overall star ratings. This work point that CMS’ functions become changes in the ratings which would must be completed in the months of focused on only continued performance create more instability for Medicare August and September so that the Star of essential agency functions or the health and drug plan sponsors and Ratings are ready for public display on agency and its contractors do not have could have significant impacts on MA Medicare Plan Finder in early October the ability to calculate the 2021 Star QBPs at a time where MA organizations for the Annual Enrollment Period. If the Ratings, as part of this IFC, we are need stability in the ratings when they COVID–19 pandemic or actions establishing rules for this circumstance. need to focus on caring for those necessary in connection with the PHE These rules would only be implemented impacted by COVID–19. impact the ability of CMS and its for the 2021 Star Ratings if the impact To be prepared if we have data quality contractors to complete these steps to of the PHE for the COVID–19 pandemic issues for any non-HEDIS or non- calculate the 2021 Star Ratings, it would reaches a point where CMS and its CAHPS 2021 Star Ratings measures, we be impracticable and contrary to the contractors are compromised to the are adopting a specific rule limited to public interest to begin rulemaking in point the 2021 Star Ratings cannot be the PHE for the COVID–19 pandemic. At August to adopt a policy for how to calculated using the methodology set §§ 422.164(i) and 423.184(i), we are address such an unprecedented forth in the April 2018 final rule and adopting authority for CMS to substitute situation. The normal notice and this IFC. Calculating the Star Ratings the score and star for the measure used comment rulemaking process would requires a full team of staff and in the 2020 Star Ratings in the also prevent CMS from providing contractors with specialized skill sets. If calculation of the 2021 Star Ratings quality ratings to Medicare beneficiaries the PHE for the COVID–19 pandemic when there is a systemic data quality choosing a 2021 plan during the Annual escalates, we will need to devote more issue for all plans as a result of the PHE Enrollment Period beginning in October resources to activities to address for the COVID–19 pandemic. Therefore, and conflict with CMS providing MA essential Agency functions so that in the above example, we would use organizations the opportunity to appeal adding staff or resources to calculate the sponsors’ SNP Care Management and their QBP ratings for 2022 payment in Star Ratings would not be appropriate. MTM Program Completion Rate for time for 2022 bid submissions. There If CMS’ resources become Comprehensive Medication Review would be insufficient time to engage in extraordinarily compromised, we will measures’ scores and stars from the

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2020 Star Ratings as the sponsors’ 2021 use the 2020 Star Ratings for some or all impact the data collected during the Star Ratings on those measures. measures in developing their 2022 bids. 2020 measurement year which will We are making these adjustments to To codify these provisions, we are impact the 2022 Part C and D Star amending §§ 422.164 and 423.184 by the Star Ratings methodology since our Ratings. Thus, as part of this IFC, we are adding a new paragraph (i) to each inability to make calculations at a late making some adjustments to account for section, as well as by amending the potential decreases in measure-level stage in the annual Star Ratings § 422.166 by adding a new paragraph scores so health plans can have some publication process would severely (j)(1)(v) and amending § 423.186 by degree of certainty knowing that the Star jeopardize our ability to calculate 2022 adding a new paragraph (j)(1)(iv). Ratings will be adjusted and can focus MA payments accurately and consistent d. 2022 Star Ratings right now on patients who are most in with the statutory QBP provision need. particularly since our ability to change For the 2022 Star Ratings, we expect To increase the predictability of the other deadlines based on availability of plans to submit HEDIS data in June cut points used for measure-level the Star Ratings (for example, the bid 2021 and to administer the CAHPS ratings, we previously finalized that, deadline, Annual Election Period, and survey in 2021 as usual. The majority of starting with the 2022 Star Ratings, the start of the new plan benefit year) is measures for the 2022 Star Ratings are guardrails would be implemented for limited but the Star Ratings are an based on the 2020 measurement year, measures that have been in the program integral part of those other activities. In which is ongoing during the PHE for the for more than 3 years. As specified at extreme situations like the ones COVID–19 pandemic. We are using the §§ 422.166(a)(2)(i) and 423.186(a)(2)(i), described above, the solicitation and IFC to make immediate changes to the the guardrails ensure that the measure- consideration of public comments to methodology for the 2022 Star Ratings threshold-specific cut points for non- establish how CMS should proceed so as not to inappropriately incentivize CAHPS measures do not increase or would be impracticable since the actions by plans and healthcare decrease more than 5 percentage points process could not be completed in time providers that are not directly related to from one year to the next. As noted in to issue new Star Ratings that could be the PHE for the COVID–19 pandemic. the April 2019 final rule, the trade-off used to inform beneficiary choice By adopting these changes immediately, for the predictability provided by the bi- during the Annual Election Period. The Medicare health and drug plans will be directional cap is the inability to fully MA statute, at section 1851(d) of the assured as quickly as possible about keep pace with changes in performance Act, requires that information about how performance changes driven or across the industry. While cut points plan quality and performance indicators caused by the COVID–19 pandemic will that change less than the cap would be be provided to Medicare beneficiaries to be addressed in the Star Ratings that use unbiased and keep pace with changes in help them make informed plan choices. this performance period. Except as the measure score trends, changes in the In addition, MA plans need to know addressed in this IFC, we anticipate that overall performance that are greater than their eligibility for QBPs in advance of the 2022 Star Ratings will be the cap would not be reflected in the implemented as codified at §§ 422.160, the bid deadline to develop their bids; new cut points. The performance that 422.162, 422.164, 422.166, 423.180, the bid deadline is also set by the will be used for the 2022 Star Ratings is 423.182, 423.184, and 423.186. statute, as the first Monday in the June performance in 2020, that is, during the prior to the coverage year. The 2021 Star i. Guardrails PHE for the COVID–19 pandemic. We Ratings will be the basis for 2022 QBPs anticipate that most, if not all, plans We recognize that health and drug could have performance changes on so definitive Star Ratings need to be plans and their providers are needing to available to plans in advance of June certain measures as they deal with the adapt their current care practices in demands the PHE for the COVID–19 2021, to accommodate bid planning and light of the PHE for the COVID–19 to ensure that plans have the ability to pandemic will place on the health care pandemic and the need to care for the system in the United States. Guardrails appeal their QBP status if necessary. We most vulnerable patients, such as the that prevent the cut points for measures understand that MA organizations begin elderly and those with chronic health from lowering, even when performance developing and pricing their plan conditions; these changes in how plans scores are lower across the board, will benefit packages well before the June and providers care for Medicare result in plans having similar low bid deadline and depend on the release beneficiaries as a result of COVID–19 measure-level ratings even if their of Star Ratings in the preceding October will impact performance for the 2020 performance is relatively as a critical milestone in their planning measurement period which feeds into distinguishable. for an upcoming plan year. Adopting the 2022 Star Ratings. On March 18, Since the Star Ratings are used to the new rule at §§ 422.164(i) and 2020, we issued guidance (available on calculate the payment to MA 423.184(i) to address measure-level the CMS website at https:// organizations by providing an increase substitutions of 2020 scores for data www.cms.gov/files/document/31820- in the benchmark against which MA quality issues that impact the cms-adult-elective-surgery-and- organizations bid and in the portion of availability, accuracy, reliability and procedures-recommendations.pdf) to the savings between the bid and validity of the measure-level data that delay all non-essential planned benchmark available to MA would otherwise be used for 2021 surgeries and procedures, including organizations to use as rebates, ratings will provide stability and dental, until further notice. Healthcare unanticipated significant declines in the certainty for the program. This approach providers are being asked to encourage Star Ratings would create significant will allow CMS and MA organizations patients to remain at home, except for uncertainty in the program and to move seamlessly to a new basis for emergencies, to help curb the spread of potential beneficiary access issues if calculating QBPs in the event that the COVID–19 and to help limit the ratings significantly decline across the original one (that is, using the data exposure to the virus. Plans and their cost plan, MA and Part D programs. about 2019 performance) is unavailable. providers are focused primarily on Given the enormity of this situation we It will also allow MA organizations to providing urgent care to Medicare believe it is important for plans to be incorporate into their planning the beneficiaries who may be infected by able to focus on patients that are in the possibility that they will be required to COVID–19. We realize that this will most need during the outbreak, and our

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guardrails, as currently constructed, summary ratings for the 2022 Star have due to the elimination of HEDIS could have unintended incentives to the Ratings only. and CAHPS data. contrary. In addition, adopting this We are codifying a new paragraph Z. Changes To Expand Workforce policy as soon as possible will minimize (g)(3) at §§ 422.166 and 423.186 and Capacity for Ordering Medicaid Home incentives for plans and providers to adding text at the end of the existing Health Nursing and Aide Services, focus on non-urgent care or text in §§ 422.166(f)(1)(i) and Medical Equipment, Supplies and administrative efforts, even if those 423.186(f)(1)(i) to implement this new Appliances and Physical Therapy, issues are tied to existing Star Ratings hold harmless provision for the 2022 Occupational Therapy or Speech measures, and focus their attention on Star Ratings only. Pathology and Audiology Services urgent care issues. As such, in response to the PHE for the COVID–19 pandemic, iii. Categorical Adjustment Index Title XIX of the Act requires that, to we are delaying implementation of the Beginning with the 2017 Star Ratings, receive Federal Medicaid matching guardrails so that cut points can change we implemented the Categorical funds, a State must offer certain basic by more than 5 percentage points if Adjustment Index (CAI) that adjusts for services to the categorically needy national performance declines as a the average within-contract disparity in populations specified in the Act. Home result of the PHE for the COVID–19 performance associated with the health services for Medicaid-eligible pandemic. We are modifying percentages of enrollees who receive a individuals who are entitled to nursing §§ 422.166(a)(2)(i) and 423.186(a)(2)(i) low-income subsidy and/or are dual facility services is one of these to delay the application of the guardrails eligible (LIS/DE) and/or have disability mandatory services. Individuals beginning with the 2023 Star Ratings status. For the 2022 Star Ratings, we ‘‘entitled to’’ nursing facility services produced in October 2022. No other will calculate the CAI as codified at include the basic categorically needy aspect of the guardrails policies §§ 422.166(f)(2) and 423.186(f)(2). The populations that receive the standard finalized in the April 2019 final rule is CAI values will be calculated based on Medicaid benefit package, and can changing with this modification. the 2021 Star Ratings data which will include medically needy populations if nursing facility services are offered to ii. Improvement Measure use the older HEDIS and CAHPS data from the 2020 Star Ratings. For each the medically needy within a State. The existing Star Ratings system and measure, adjusted measure scores which Home health services include part-time regulations include a well-developed are used to construct the CAI values will or intermittent nursing, home health improvement measure and methodology be calculated using the enrollment year aide services, medical supplies, for calculating and using it. However, associated with the year of data being equipment, and appliances, and may because we anticipate that performance used for that measure (that is, 2018 include therapeutic services. Current during the 2020 measurement period enrollment year data for HEDIS and Medicaid regulations require an may decline for plans across the nation, CAHPS measures, 2019 enrollment year individual’s physician to order home we believe that it is appropriate to adopt data for all other measures). Given we health services as part of a written plan a provision to minimize the negative are following the rules codified in of care. The plan of care must be effect of the improvement measure and regulation, there are no changes to the reviewed every 60 days, except for improvement scores. As with the regulatory text. We are providing this medical supplies, equipment and guardrails policy, this amendment to the explanation to avoid uncertainty on this appliances which must be reviewed by existing regulations is designed to point for Medicare health and drugs a physician annually. minimize or eliminate incentives in the plans. We recognize that increased demand Star Ratings that might be inconsistent on the direct care services provided by iv. QBP Calculations for New Contracts with the steps necessary to address the physicians during the PHE for the COVID–19 pandemic. We are revising Under § 422.252, a new MA plan COVID–19 pandemic could cause a the methodology for the Part C and D means an MA contract offered by a delay in the availability of physicians to improvement measure for the 2022 Star parent organization that has not had order home health services in the Ratings to expand the hold harmless another MA contract in the previous 3 normal timeframe. In recognition of the rule to include all contracts at the years. For just the 2022 QBP ratings that critical need to expand workforce overall and summary rating levels are based on 2021 Star Ratings, we are capacity, we are amending 42 CFR recognizing that the PHE for the modifying this definition to treat an MA 440.70 to allow licensed practitioners COVID–19 pandemic may result in a plan as a new MA plan if it is offered practicing within their scope of practice, decline in industry performance. by a parent organization that has not such as, but not limited to, NPs and Currently, for MA–PD contracts with an had another MA contract for the PAs, to order Medicaid home health overall rating of 4 or more stars, if the previous 4 years. This change would services during the existence of the PHE inclusion of the improvement account for how new plans that started for the COVID–19 pandemic. measure(s) reduces a contract’s overall in 2019 would have reported HEDIS and This change to § 440.70 will expand Star Rating, the Part C and D CAHPS data to CMS for the first time in the workforce and is also a continuation improvement measures are excluded 2020 for the 2021 Star Ratings; because of CMS’ efforts to align with Medicare from the overall Star Ratings of our elimination of the HEDIS and on who can order medical supplies, calculations for that contract. Similarly, CAHPS data submissions to CMS, these equipment, and appliances, and for MA-only contracts with 4 or more plans will not have enough measures to allowing smoother access to services for stars, if the inclusion of the Part C calculate the 2021 Star Ratings and, Medicaid beneficiaries, including those improvement measure reduces the Part consequently, the 2022 QBP rating. A who are dually eligible. This alignment C summary Star Rating, it is excluded new contract with an effective date of will also eliminate administrative from the calculations for that contract. January 1, 2019 would normally be burden to states and providers when Our revision will expand the current treated as new for purposes of QBPs for dealing with inconsistencies in the hold harmless rule and how it works to 2019, 2020, and 2021. The 2022 QBP practitioners who may order these items all contracts regardless of their ratings rating would be based on the 2021 Star between the Medicare and Medicaid and also apply it to the Part C and D Ratings which these contracts will not programs.

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This change applies to who can order The origin and destination These destinations may include, but Medicaid home health nursing and aide requirements for coverage of ambulance are not limited to: Any location that is services, medical supplies, equipment services are addressed in our regulations an alternative site determined to be part and appliances and physical therapy, at § 410.40(f). As provided in that of a hospital, CAH or SNF, community occupational therapy or speech section, Medicare covers the following mental health centers, FQHCs, RHCs, pathology and audiology services ambulance transportation: physicians’ offices, urgent care facilities, covered under § 440.70(b)(1), (2), (3), • From any point of origin to the ambulatory surgery centers (ASCs), any and (4). nearest hospital, critical access hospital location furnishing dialysis services This change does not expand the (CAH), or skilled nursing facility (SNF) outside of an ESRD facility when an benefit categories where these items can that is capable of furnishing the ESRD facility is not available, and the be covered. States must continue to required level and type of care for the beneficiary’s home. This expanded list cover and claim home health nursing beneficiary’s illness or injury. The of destinations will apply to medically and aide services, medical supplies, hospital or CAH must have available the necessary emergency and non- equipment and appliances, and physical type of physician or physician specialist emergency ground ambulance transports therapy, occupational therapy or speech needed to treat the beneficiary’s of beneficiaries during the PHE for the pathology and audiology services (that condition; COVID–19 pandemic. Consistent with are covered under the home health • From a hospital, CAH, or SNF to the section 1861(s)(7) of the Act, there must benefit) under the home health benefit, beneficiary’s home; be a medically necessary ground unless otherwise allowed by federal • From a SNF to the nearest supplier ambulance transport of a patient in regulations. of medically necessary services not order for an ambulance service to be AA. Origin and Destination available at the SNF where the covered. Requirements Under the Ambulance Fee beneficiary is a resident, including the We are revising, on an interim basis, Schedule return trip; and § 410.40 to add a new paragraph (f)(5), • For a beneficiary who is receiving to state that during the PHE for the Section 1861(s)(7) of the Act COVID–19 pandemic only, a covered establishes an ambulance service as a renal dialysis for treatment of ESRD, from the beneficiary’s home to the destination includes a ground Medicare Part B service where the use ambulance transport from any point of of other methods of transportation is nearest facility that furnishes renal dialysis, including the return trip. origin to a destination that is equipped contraindicated by the individual’s to treat the condition of the patient condition, but only to the extent We continue to believe that our current regulatory requirements consistent with state and local EMS provided in regulations. We have protocols where the services will be established regulations at § 410.40 that governing coverage of ambulance furnished. These destinations include, govern Medicare coverage of ambulance services are appropriate under normal but are not limited to, any location that services. Under § 410.40(e)(1), Medicare circumstances. However, in the context is an alternative site determined to be Part B covers ground (land and water) of the PHE for the COVID–19 pandemic, part of a hospital, CAH or SNF, and air ambulance transport services we recognize that providers and community mental health centers, only if they are furnished to a Medicare suppliers furnishing ground ambulance FQHCs, RHCs, physician offices, urgent beneficiary whose medical condition is services and other health care care facilities, ASCs, any location such that other means of transportation professionals are faced with new furnishing dialysis services outside of are contraindicated. The beneficiary’s challenges regarding potential exposure an ESRD facility when an ESRD facility condition must require both the risks, for Medicare beneficiaries and for ambulance transportation itself and the members of the community at large. is not available, and the beneficiary’s level of service provided for the billed Therefore, on an interim basis, we home. Home may be an appropriate services to be considered medically will expand the list of destinations at destination for a COVID–19 patient who necessary. § 410.40(f) for which Medicare covers is discharged from the hospital to home Under § 410.40(e)(1), nonemergency ambulance transportation to include all to be under quarantine (as noted above, transportation by ambulance is destinations, from any point of origin, there must be a medically necessary appropriate if either the beneficiary is that are equipped to treat the condition ground ambulance transport of a patient bed-confined, and it is documented that of the patient consistent with in order for an ambulance service to be the beneficiary’s condition is such that Emergency Medical Services (EMS) covered). other methods of transportation are protocols established by state and/or BB. Merit-Based Incentive Payment contraindicated; or, if his or her medical local laws where the services will be System (MIPS) Updates condition, regardless of bed furnished. The EMS protocols are confinement, is such that transportation recognized operating procedures that all 1. MIPS Improvement Activities by ambulance is medically required. emergency service professionals such as Inventory Update That section further provides that bed emergency medical technicians (EMTs) The CY 2018 Quality Payment confinement is not the sole criterion in and paramedics must follow for patient Program final rule (82 FR 53660) determining the medical necessity of assessment, treatment, transportation finalized that we would add new ambulance transportation but is one and delivery to definitive care. These improvement activities or make factor that is considered in medical protocols are designed by national, state modifications to existing improvement necessity determinations. For a and/or local medical authorities and activities in the Improvement Activities beneficiary to be considered bed- institutions. Based on these protocols, a Inventory through notice-and-comment confined, § 410.40 (e)(1) states that all of patient suspected of having COVID–19 rulemaking. An improvement activity the following criteria must be met: (1) that requires a medically necessary means an activity that relevant MIPS The beneficiary is unable to get up from transport may be transported to a testing eligible clinician, organizations and bed without assistance, (2) the facility to get tested for COVID–19 other relevant stakeholders identify as beneficiary is unable to ambulate, and instead of a hospital in an effort to improving clinical practice or care (3) the beneficiary is unable to sit in a prevent possible exposure to other delivery and that the Secretary chair or wheelchair. patients and medical staff. determines, when effectively executed,

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is likely to result in improved outcomes. credit for this clinical improvement, modification to an existing We refer readers to Table H in the clinicians must report their findings improvement activity, a stakeholder Appendix of the CY 2017 Quality through an open source clinical data must submit a nomination form Payment Program final rule (81 FR repository or clinical data registry. available at www.qpp.cms.gov during 77177 through 77199), Tables F and G When utilizing the term ‘‘open source’’ the Annual Call for Activities. For this in the Appendix of the CY 2018 Quality we mean making available to the public new improvement activity, we are Payment Program final rule (82 FR the results of research, including making a one-time exception from our 54175 through 54229), Tables A and B publications and scientific data, which established Annual Call for Activities in the Appendix 2 of the CY 2019 PFS enables reuse, increases transparency, timeframe and processes due to this final rule (83 FR 60286 through 60303), and facilitates reproductibility of PHE. and Tables A, B, and C in the Appendix research results.21 2 of the CY 2020 PFS final rule (84 FR We believe that participation in this New improvement activities should 63514 through 63538) for our previously activity is likely to result in improved meet one or more criteria to be included finalized Improvement Activities outcomes by improving the collection of in the Improvement Activities Inventory Inventory. We also refer readers to the data clinicians use for the care of their (82 FR 53660). We believe that this Quality Payment Program website at patients as they monitor and manage activity meets the improvement https://qpp.cms.gov/ for a complete list COVID–19 and drive care activities submission criteria of a of the most current list of improvement improvements. We believe that ‘‘public health emergency as determined activities. encouraging clinicians to utilize an by the Secretary,’’ which was finalized The COVID–19 pandemic has been open source clinical data repository or in the 2019 PFS final rule (83 FR deemed a PHE by the Secretary of the clinical data registry for data reporting 59779). As noted in the CY 2017 Quality Department of Health and Human will bring the results of their research to Payment Program final rule, we use the Services. Information regarding the PHE the forefront of healthcare far quicker criteria for nominating new for the COVID–19 pandemic may be than if it goes through the cycle of peer improvement activities in selecting found at https://www.phe.gov/ review and publishing. In addition, we improvement activities for inclusion in emergency/news/healthactions/phe/ believe that this could improve clinical the program (82 FR 53659). We also Pages/default.aspx. In this IFC, we are practice and care delivery, a relevant adding one new improvement activity to stakeholder donated a database for the clarified that those criteria are but one the Improvement Activities Inventory pandemic so that health officials/ factor in determining which for the CY 2020 performance period in clinicians/the public could track improvement activities we ultimately response to this PHE. We refer readers patients and drugs that work to better proposed (83 FR 59780). For MIPS to Table 1 for a full description which improve outcomes of COVID–19 eligible clinicians who wish to submit includes the type of action that would patients. this new improvement activity, we refer qualify for this improvement activity. In the CY 2019 PFS (83 FR 59778 readers to the CY 2019 PFS final rule This improvement activity promotes through 59782), we provided details (83 FR 59778 through 59782) for our clinician participation in a COVID–19 regarding the Annual Call for Activities previously finalized improvement clinical trial utilizing a drug or and how stakeholders submit potential activities submission requirements. biological product to treat a patient with improvement activities. In general, to Table 1 displays the new improvement a COVID–19 infection.20 To receive nominate a new activity or request a activity.

TABLE 1—NEW IMPROVEMENT ACTIVITY FOR THE MIPS CY 2020 PERFORMANCE PERIOD

Improvement activity

Activity ID: ...... IA_ERP_XX. Subcategory: ...... Emergency Response And Preparedness. Activity Title: ...... COVID–19 Clinical Trials. Activity Description: ...... To receive credit for this activity, a MIPS-eligible clinician must participate in a COVID–19 clinical trial uti- lizing a drug or biological product to treat a patient with a COVID–19 infection and report their findings through a clinical data repository or clinical data registry for the duration of their study. For more infor- mation on the COVID–19 clinical trials we refer readers to the U.S. National Library of Medicine website at https://clinicaltrials.gov/ct2/results?cond=COVID-19. Weighting: ...... High.

2. MIPS Applications for Reweighting 2021 MIPS payment year. We believe Due to the timing of the PHE, we Based on Extreme and Uncontrollable that this application of the policy is realize that there may be scenarios Circumstances appropriate given the impact COVID–19 where MIPS-eligible clinicians are not As a result of the PHE for the COVID– will likely have on the ability of many covered by the automatic extreme and 19 pandemic, we are applying the MIPS MIPS eligible clinicians to complete uncontrollable circumstances policy. automatic extreme and uncontrollable data submission for the MIPS program For example, as we stated in the CY circumstances policy at for the 2019 MIPS performance period 2019 PFS final rule, the automatic § 414.1380(c)(2)(i)(A)(8) and because most of those submissions will extreme and uncontrollable (c)(2)(i)(C)(3) to MIPS eligible clinicians occur during CY 2020. circumstances policy does not apply to for the 2019 MIPS performance period/ groups or virtual groups (83 FR 59874

20 For more information on the COVID–19 clinical 21 More information on open source is available emergency/news/healthactions/phe/Pages/ trials we refer readers to the U.S. National Library at https://www.nlm.nih.gov/NIHbmic/nih_data_ default.aspx. of Medicine website at https://clinicaltrials.gov/ct2/ sharing_repositories.html; https://www.phe.gov/ results?cond=COVID-19.

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and 59875); however, under performance period/2021 MIPS hospitals that provide services to § 414.1380(c)(2)(i), individual payment year only, such that if a MIPS Medicare beneficiaries flexibility to clinicians, groups and virtual groups eligible clinician demonstrates through respond effectively to the serious public could submit an application for an application submitted to CMS that health threats posed by COVID–19. reweighting the performance categories they have been adversely affected by the Recognizing the urgency of this based on extreme and uncontrollable PHE for the COVID–19 pandemic, but situation, and understanding that our circumstances. To provide additional also submits data for the quality, cost, current policy may inhibit use of relief to individual clinicians, groups, or improvement activities performance capacity in settings that might otherwise and virtual groups for whom sufficient categories, the performance categories be effective in the efforts to mitigate the MIPS measures and activities may not for which data are submitted would still impact of the pandemic on Medicare be available for the 2019 MIPS be reweighted (subject to CMS’ approval beneficiaries and the American public, performance period due to the PHE for of the application), and the data we are changing our under the COVID–19 pandemic, we are submission would not effectively void arrangements policy during the PHE for extending the deadline to submit an the application for reweighting. We are the COVID–19 pandemic so that application for reweighting the quality, also modifying the policy at hospitals are allowed broader cost, and improvement activities § 414.1380(c)(2)(i)(C) to create a similar flexibilities to furnish inpatient services, performance categories based on exception for the Promoting including routine services outside the extreme and uncontrollable Interoperability performance category hospital. circumstances (§ 414.1380(c)(2)(i)(A)(6)) for the 2019 performance period/2021 2. Prior Rulemaking and the Promoting Interoperability MIPS payment year only. performance category based on extreme In the FY 2012 IPPS/LTCH PPS CC. Inpatient Hospital Services and uncontrollable circumstances rulemaking (76 FR 51711), we noted Furnished Under Arrangements Outside (§ 414.1380(c)(2)(i)(C)(2)) from that the statute specifies that ‘‘routine the Hospital During the Public Health December 31, 2019 to April 30, 2020, or services,’’ for example, bed, board, Emergency (PHE) for the COVID–19 a later date that we may specify. This nursing and other related services, Pandemic extended deadline of April 30, 2020 except those specified at paragraph (3) mirrors the MIPS data submission 1. Overview for Inpatient Hospital of section 1861(b) of the Act are to be provided by ‘‘the hospital,’’ and not just deadline extension. The extended Services ‘‘a hospital.’’ Similarly, we noted that deadline is available only for For purposes of Medicare payment, our implementing regulations at applications that demonstrate the section 1861(b) of the Act defines § 409.12 indicate that Medicare pays for clinician has been adversely affected by inpatient hospital services in part as the nursing and related services, use of the PHE for the COVID–19 pandemic. following items and services furnished hospital facilities, and medical social We are also modifying our existing to an inpatient of a hospital and (except services as inpatient hospital services or policy for the 2019 performance period/ as provided in paragraph (3)) by the inpatient CAH services only if those 2021 MIPS payment year so that if a hospital: (1) Bed and board; (2) such services are ordinarily furnished by the MIPS eligible clinician, group, or virtual nursing services and other related hospital or CAH. We pointed out that, group submits an application for services, such use of hospital facilities, consistent with section 1861(b)(3) of the reweighting based on the PHE for the and such medical social services as are Act, only with regard to other diagnostic COVID–19 pandemic by the extended ordinarily furnished by the hospital for or therapeutic services do the deadline, any MIPS data they have the care and treatment of inpatients, and regulations at § 409.16 state that submitted or will submit would not (3) such other diagnostic or therapeutic Medicare will also pay for these services effectively void their application. Under items or services, furnished by the if furnished ‘‘by others under § 414.1380(c)(2)(i)(A)(6) and (c)(2)(i)(C), hospital or by others under arrangements made by the hospital or if an application for reweighting the arrangements with them made by the CAH.’’ performance categories based on hospital, as are ordinarily furnished to Under our current policy adopted in extreme and uncontrollable inpatients either by such hospital or by the FY 2012 IPPS/LTCH PPS circumstances is submitted, but data on others under such arrangements. rulemaking, if routine services, that is, measures or activities for a performance Routine services in the hospital services described in sections 1861(b)(1) category are also submitted, a MIPS setting are those described in sections and (b)(2) of the Act, are provided in the eligible clinician will be scored on the 1861(b)(1) and (b)(2) of the Act. Under hospital, they are considered as being submitted data, and the performance our current policy for hospital services provided ‘‘by the hospital.’’ We stated categories for which data are submitted furnished under arrangements that we that we believe this policy is consistent will not be reweighted. However, for the adopted in the FY 2012 IPPS/LTCH PPS with the statute because the statutory 2019 performance period we believe it rulemaking (76 FR 51714), routine language specifying that the routine is appropriate to modify this policy, services cannot be provided under services described in sections 1861(b)(1) because we believe it is possible that a arrangement outside the hospital. Only and (b)(2) of the Act be provided ‘‘by the MIPS eligible clinician, group, or virtual the therapeutic and diagnostic services hospital’’ suggests that the hospital is group could have submitted some MIPS described in section 1886(b)(3) of the required to exercise professional data prior to the PHE for the COVID–19 Act can be provided under arrangement responsibility over the services, pandemic, but due to circumstances outside the hospital. including quality controls. In situations related to the PHE for the COVID–19 We continue to believe that our in which certain routine services are pandemic, are not able to complete their current policy prohibiting routine provided through arrangement ‘‘in the submission such that the data they services from being provided under hospital,’’ for example, contracted submitted may not reflect their actual arrangement outside the hospital is nursing services, we stated that we performance on the measures and consistent with the statute and believe the arrangement generally activities. As a result, we are modifying appropriate for the reasons discussed in results in the hospital exercising the the policy at § 414.1380(c)(2)(i)(A)(6) to the FY 2012 IPPS/LTCH PPS same level of control over those services create an exception for the 2019 rulemaking. However, we wish to give as the hospital does in situations in

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which the services are provided by the an IPPS-excluded hospital (‘‘hospital 3. Inpatient Hospital Services Furnished hospital’s salaried employees. A’’) required ICU services, and the IPPS- Under Arrangements Outside the Therefore, if routine services are excluded hospital could not provide Hospital During the PHE for the COVID– provided in the hospital to its these services, the patient was moved to 19 Pandemic inpatients, we consider the service as an IPPS hospital (‘‘hospital B’’) that As noted earlier in this section, we being provided by the hospital. could furnish the ICU services. In these continue to believe that our current However, if these services are provided situations, the patient was not policy is consistent with the statute and to its patients outside the hospital, the transferred to hospital B but was moved appropriate for the reasons discussed in services are considered as being from an inpatient bed of hospital A to the FY 2012 IPPS/LTCH PPS provided under arrangement, and not by an inpatient bed of hospital B. However, rulemaking. However, we wish to give the hospital. Therefore, consistent with hospitals that provide services to the statute, we stated that only the IPPS-excluded hospital treated these Medicare beneficiaries additional therapeutic and diagnostic services can services as being provided under be provided under arrangement outside arrangement and included the cost of flexibilities to respond effectively to the the hospital. those services on its cost report. We serious public health threats posed by Some commenters during the FY 2012 found it problematic that the patient the spread of COVID–19. Recognizing IPPS/LTCH PPS rulemaking stated that was, at all times, considered an the urgency of this situation, and our policy to limit the services a inpatient of hospital A even though the understanding that some pre-existing hospital may provide under patient occupied an inpatient bed at Medicare payment rules may inhibit use arrangements is not required by the hospital B. of capacity that might otherwise be statute or regulations. Some commenters effective in the efforts to mitigate the Because the two hospitals in the impact of the pandemic on Medicare also believed that CMS’ proposed example above are under two different reading of the statutory definition of beneficiaries and the American public, payment systems, we stated that we inpatient hospital services is only one we are changing our under believe this arrangement can result in possible interpretation of the statute. arrangements policy during the PHE for In our response to these comments, inappropriate and potentially excessive the COVID–19 pandemic beginning we noted that we focused on section Medicare payments. The IPPS-excluded March 1, 2020, so that hospitals are 1861(b) of the Act because it provides hospital, hospital A, is paid on a allowed broader flexibilities to furnish the statutory basis for our policy to limit reasonable cost basis, subject to a inpatient services, including routine the services that may be furnished ceiling. In most cases, this payment is services outside the hospital. under arrangement. As we noted in that greater than if the hospital were paid We believe that our concerns rulemaking, the reference to diagnostic under the IPPS for the same patient. articulated in the FY 2012 rulemaking or therapeutic items or services in Furthermore, although there is a ceiling regarding gaming of routine services section 1861(b)(3) of the Act is to on the amount of Medicare payment for provided outside the hospital for services furnished by the hospital or by hospital A, there are also provisions that payment reasons are significantly others under arrangements. Therefore, allow hospital A to receive adjustments mitigated by the existence of the PHE. we stated that we believe it is consistent to its ceiling in certain circumstances, Hospitals would be treating patients in with the statutory language to limit the which in the absence of our policy locations outside the hospital for a variety of reasons, including limited services that may be furnished outside could allow payment to hospital A beds and/or limited specialized of a hospital under arrangement to only above those allowed by its ceiling. equipment such as ventilators, and for diagnostic and therapeutic services. Therefore, in the absence of our policy We noted that our policy does not a limited time period. We do not expect alter the definition of inpatient hospital these arrangements could allow hospital that during the PHE for the COVID–19 services, but instead limits the services A to request an adjustment to its ceiling pandemic hospitals would be treating a hospital may provide under because its ICU costs had increased patients outside the hospital for gaming arrangements outside the hospital. If a beyond what is allowed. In that case, reasons. patient of Hospital A is in Hospital B hospital A would receive additional As noted, we continue to believe that receiving routine services, the patient payments beyond its ceiling. We stated our current policy of limiting the will still be an ‘‘inpatient,’’ but the that we believe that by limiting the services that may be provided under services will not be considered furnishing of routine services under arrangements outside of the hospital to ‘‘inpatient hospital services’’ furnished arrangements to situations in which the therapeutic and diagnostic items and by the hospital for purposes of payment services are furnished in hospital A, we services is consistent with the statute for services defined under section reduce the opportunity for gaming. In and supported by the policy 1861(b) of the Act. If the patient is these more limited situations, hospital considerations discussed in the FY 2012 admitted to Hospital B, then the patient A exercises sufficient control over the IPPS/LTCH PPS final rule. However, we would be an ‘‘inpatient’’ of Hospital B use of hospital resources when do not believe that the statute would and the routine services furnished to furnishing these services such that the preclude this change in policy to allow that individual would meet the services are appropriately included in routine services to also be provided definition of ‘‘inpatient routine hospital A’s cost report. under arrangements outside the services’’ under section 1861(b) of the hospital, in light of the compelling Under our current policy adopted in Act. circumstances and the need for We also discussed in the FY 2012 that rulemaking, if hospital A did not additional, short-term flexibility during IPPS/LTCH PPS rulemaking the policy have the resources to treat a patient, it the current PHE for the COVID–19 considerations supporting this change. would transfer the patient to hospital B pandemic. Consistent with this, and as We stated that we became aware that for ICU services, and hospital B would previously summarized in section some hospitals were furnishing certain bill Medicare consistent with the IPPS II.BB.2 of this IFC, we note that we routine services, including ICU services, provisions. Hospital A would be paid received comments during the FY 2012 under arrangement. For example, under for an inpatient discharge. rulemaking that our policy to limit the certain arrangements, if an inpatient of services a hospital may provide under

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arrangements is not required by the definition of advance payment in procedures are impracticable, statute and that CMS’ reading of the § 421.214(b). Currently, paragraph (b) unnecessary, or contrary to the public statutory definition of inpatient hospital defines advance payment as a interest and incorporates a statement of services is only one possible conditional partial payment made by the finding and its reasons in the rule interpretation of the statute. the carrier in response to a claim that it issued. While we are changing our under is unable to process within established Section 553(d) of the APA ordinarily arrangements policy during the PHE for time limits. We are revising this requires a 30-day delay in the effective the COVID–19 pandemic to allow definition to state that the conditional date of a final rule from the date of its hospitals broader flexibilities in partial payment will be made by the publication in the Federal Register. furnishing inpatient services, we ‘‘contractor’’ (not the carrier) except as This 30-day delay in effective date can emphasize that we are not changing our provided in paragraph (j). We are also be waived, however, if an agency finds policy that a hospital needs to exercise adding language to permit payments good cause to support an earlier sufficient control and responsibility under an exception at § 421.214(c). In effective date. Section 1871(e)(1)(B)(i) of over the use of hospital resources in addition, we are also adding paragraph the Act also prohibits a substantive rule treating patients, as discussed in the FY (j) to specifically address emergency from taking effect before the end of the 2012 IPPS/LTCH PPS final rule and situations in which it will be able to 30-day period beginning on the date the Section 10.3 of Chapter 5 of the make advance payments. Additionally, rule is issued or published. Section Medicare General Information, existing rules limit CMS to no more 1871(e)(1)(B)(ii) of the Act permits a Eligibility, and Entitlement Manual than 80 percent of the anticipated substantive rule to take effect before 30 (Pub. 100–01). Nothing in the current payment for that claim based upon the days if the Secretary finds that a waiver PHE for the COVID–19 pandemic has historical assigned claims payment data of the 30-day period is necessary to changed our policy or thinking with for claims paid to the supplier. Under comply with statutory requirements or respect to this issue and we are making exceptional circumstances as outlined that the 30-day delay would be contrary no modifications to this aspect of the in paragraph (j), we are increasing this to the public interest. Furthermore, policy. Hospitals need to continue to limit to 100 percent of the anticipated section 1871(e)(1)(A)(ii) of the Act exercise sufficient control and payment for that claim based upon the permits a substantive change in responsibility over the use of hospital historical assigned claims payment data regulations, manual instructions, resources in treating patients regardless for claims paid to the supplier in interpretive rules, statements of policy, of whether that treatment occurs in the paragraph (f)(1)(i). We are also adding a or guidelines of general applicability hospital or outside the hospital under criterion to § 421.214 that suppliers in under Title XVIII of the Act to be arrangements. If a hospital cannot bankruptcy would not be eligible to applied retroactively to items and exercise sufficient control and receive advance payments to ensure services furnished before the effective responsibility over the use of hospital that, with such expanded authority, date of the change if the failure to apply resources in treating patients outside the CMS is able to appropriately pay and the change retroactively would be hospital under arrangements, the recover advance payments made to Part contrary to the public interest. hospital should not provide those B suppliers. The nation is experiencing an services outside the hospital under emergency of unprecedented arrangements. III. Waiver of Proposed Rulemaking magnitude. Ensuring the health and For the reasons set forth above, We ordinarily publish a notice of safety of Medicare beneficiaries, effective for services provided for proposed rulemaking in the Federal Medicaid recipients, and healthcare discharges for patients admitted to the Register and invite public comment on workers is of primary importance. As hospital during the PHE for COVID–19 the proposed rule before the provisions this IFC directly supports that goal by beginning March 1, 2020, if routine of the rule take effect, in accordance offering healthcare professionals services are provided under with 5 U.S.C. 553(b) of the flexibilities in furnishing services while arrangements outside the hospital to its Administrative Procedure Act (APA) combatting the COVID–19 pandemic inpatients, these services are considered and section 1871 of the Act. and ensuring that sufficient health care as being provided by the hospital. Specifically, section 553(b) of the APA items and services are available to meet requires the agency to publish a notice the needs of individuals enrolled in the DD. Advance Payments to Suppliers of the proposed rule in the Federal Medicare and Medicaid programs, it is Furnishing Items and Services Under Register that includes a reference to the critically important that we implement Part B legal authority under which the rule is this IFC as quickly as possible. As we In an effort to be able to be more proposed, and the terms and substance are in the midst of a PHE, we find good responsive to situations in which Part B of the proposed rule or a description of cause to waive notice and comment suppliers could request advance the subjects and issues involved. rulemaking as we believe it would be payments from CMS, we are making Section 553(c) of the APA further contrary to the public interest for us to modifications to existing advance requires the agency to give interested undertake normal notice and comment payments rules found in 42 CFR parties the opportunity to participate in rulemaking procedures. For the same 421.214. Currently, § 421.214 limits the rulemaking through public comment reasons, because we cannot afford any CMS’ ability to make advance payments before the provisions of the rule take delay in effectuating this IFC, we find in situations where a CMS contractor is effect. Similarly, section 1871(b)(1) of good cause to waive the 30-day delay in unable to process claims within the Act requires the Secretary to provide the effective date and, moreover, to established time limits. In light of the for notice of the proposed rule in the make this IFC effective as of March 1, PHE Declaration related to COVID–19 Federal Register and a period of not less 2020—the date the President of the and the inability to project the impact than 60 days for public comment. United States declared to be the it may have in the future on CMS’ Section 553(b)(3)(B) of the APA and beginning of the national emergency abilities to ensure timely payment and section 1871(b)(2)(C) of the Act concerning the COVID–19 outbreak. the potential challenges for suppliers to authorize the agency to waive these On January 30, 2020, the International prepare and submit claims to CMS procedures, however, if the agency finds Health Regulations Emergency contractors, we are revising the good cause that notice and comment Committee of the World Health

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Organization (WHO) declared the video conference.28 As the healthcare We believe it would be contrary to the outbreak of the 2019 Novel Coronavirus community works to establish and public interest for us to undertake (COVID–19) to be a Public Health implement infection prevention and normal notice and comment procedures Emergency of International Concern.22 control practices, CMS is also working and to delay the effective date of this On January 31, 2020, Health and Human to revise and implement regulations that IFC. We find good cause to waive notice Services Secretary Alex M. Azar II function in concert with those of proposed rulemaking under section declared a Public Health Emergency healthcare community infection 553(b)(3)(B) of the APA and section (PHE) 23 under section 319 of the Public prevention and treatment practices. 1871(b)(2)(C) of the Act, and, for the Health Service Act (42 U.S.C. 247d), in This IFC offers flexibilities in certain reasons stated, we find that it would be response to COVID–19. On March 11, Medicare and Medicaid regulations that contrary to the public interest to delay 2020, the WHO publicly declared support measures to combat the COVID– the effective date of this IFC, under COVID–19 to be a pandemic.24 On 19 pandemic and safeguard all interests section 553(d) of the APA and section March 13, 2020, the President declared by protecting healthcare providers and 1871(e)(1)(B)(i) of the Act. Furthermore, the President declared that the COVD–19 outbreak in the vulnerable beneficiaries. The provisions that the COVID–19 outbreak in the United States constitutes a national of this IFC better enable and facilitate United States constituted a national emergency,25 beginning March 1, 2020. physicians and other clinicians, to focus emergency beginning March 1, 2020. To on caring for these beneficiaries during This declaration, along with the ensure the consistent availability Secretary’s January 30, 2020 declaration this PHE for the COVID–19 pandemic throughout the national emergency of a PHE, conferred on the Secretary and minimize their own risks to period of measures we are taking to certain waiver authorities under section COVID–19 exposure. For example, by address the COVID–19 pandemic, we 1135 of the Act. On March 13, 2020, the increasing access to telehealth and believe it is vital that the effective date Secretary authorized waivers under testing in a patient’s home, and of this IFC align with the first day of the section 1135 of the Act, effective March improving infection control, this IFC national emergency. It is also important 1, 2020.26 will provide flexibilities for Medicare to ensure the health care providers that beneficiaries to be able to receive In support of the imperative to acted expeditiously to implement medically necessary services without contain and combat the virus in the appropriate physical and operational jeopardizing their health or the health of United States, this IFC will give health changes to their practices to adapt to those who are providing those services, care workers and hospitals additional emergency conditions, even in the in turn minimizing public exposure and absence of changes in our policies to flexibility to respond to the virus and the overall risk to public health. continue caring for patients while address them, are not disadvantaged Moreover, changes to Medicare payment relative to other health care providers, minimizing exposure. CDC guidelines rules will confer on practitioners and are clear that public exposure greatly and will not be discouraged from taking other healthcare providers the broadest similar appropriate actions in the future. increases the overall risk to public flexibility to use remote health and they stress the importance of March 1, 2020 precedes the date of communications technology to avoid publication of this IFC in the Federal containment and mitigation strategies to exposure risks to themselves, their minimize public exposure and the Register, which means this rule has a patients, and communities. These retroactive effect. However, section spread of COVID–19. As of March 29th, changes include greater flexibilities to 1872(e)(1)(A)(ii) of the Act permits the the CDC reports 122,653 cases of use communications technology to Secretary to issue a rule with retroactive COVID–19 in the United Sates and interact with patients directly and to 27 effect if the failure to do so would be 2,112 deaths. Individuals such as supervise care directly provided by contrary to the public interest. As we healthcare workers who come in close other clinicians. This IFC alters the have explained above, we believe it contact with those infected with applicable payment rules to provide would be contrary to the public interest COVID–19 are at an elevated risk of specimen collection fees for not to implement this IFC as soon as we contracting the disease. To minimize independent laboratories collecting are authorized to do so under the these risks, the CDC has urged specimens from beneficiaries who are authority of section 1871(e)(1)(A)(ii) of healthcare professionals to make every homebound or inpatients (not in a the Act, that is, retroactively to March effort to distance themselves from those hospital) for COVID–19 testing. 1, 2020. We are providing a 60-day who are potentially sick with COVID–19 Additionally, certain new model- public comment period for this IFC as by using modalities such as telephonic specific requirements for Innovation specified in the DATES section of this interviews, text monitoring systems, or Center Models and program-specific document. requirements for the Quality Payment IV. Collection of Information 22 https://www.who.int/news-room/detail/30-01- Program will reduce or prevent 2020-statement-on-the-second-meeting-of-the- practices that might inappropriately Requirements international-health-regulations-(2005)-emergency- For IFC changes to the MA and Part committee-regarding-the-outbreak-of-novel- incentivize cost considerations over coronavirus-(2019-ncov). patient safety. Changes to the D Star Ratings program, the elimination 23 https://www.phe.gov/emergency/news/ calculation of the 2021 and 2022 Part C of the requirement to collect and submit healthactions/phe/Pages/2019-nCoV.aspx. and D Star Ratings will address the data for OMB control numbers 0938– 24 https://www.who.int/dg/speeches/detail/who- expected disruption to data collection 1028 (HEDIS) and 0938–0732 (CAHPS) director-general-s-opening-remarks-at-the-media- will reduce some burden. Those briefing-on-covid-19---11-march-2020. and measure scores posed by the 25 https://www.whitehouse.gov/presidential- COVID–19 pandemic, and amendments collections are approved for 164,200 actions/proclamation-declaring-national- to the Medicaid home health regulations hours and 123,375 hours annually, emergency-concerning-novel-coronavirus-disease- will enable other licensed practitioners respectively. Due to the ongoing nature covid-19-outbreak/. to order services, equipment, and of these information collections, it is 26 https://www.phe.gov/emergency/news/ difficult to determine the extent of the healthactions/section1135/Pages/covid19- therapy they otherwise could not. 13March20.aspx. burden. However, the burden estimates 27 https://www.cdc.gov/coronavirus/2019-ncov/ 28 https://www.cdc.gov/coronavirus/2019-ncov/ for the HEDIS and CAHPS information cases-updates/cases-in-us.html. php/guidance-evaluating-pui.html. collection requests are approved

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through November 30, 2020 and April the COVID–19 Pandemic will allow progress notes must be recorded by the 30, 2021, respectively. Upon home health agencies and hospices physician(s), psychologists, or other resubmission for OMB approval, we will more flexibility to furnish services via licensed independent practitioner(s) revise both information collections to telecommunications technologies to responsible for the care of the patient. more accurately account for the burden minimize exposure risks to patients, We believe that this provision requires decreases. clinicians and the general public; and clarification and revision since the there would be no change in Medicare regulatory language is inconsistent with V. Response to Comments payment rates or change in the types of other recent changes finalized Because of the large number of public patients treated under these policies throughout the hospital CoPs as this comments we normally receive on compared to the absence of these policy provision applies to APPs, including Federal Register documents, we are not changes. PAs, NPs, psychologists, and CNSs. able to acknowledge or respond to them Our additions to the list of Medicare Continued use of this outdated term individually. We will consider all telehealth services will allow more may inadvertently exacerbate workforce comments we receive by the date and physicians’ services to be furnished in shortage concerns, might unnecessarily time specified in the DATES section of a manner that reduces the exposure risk impose regulatory burden on hospitals, this preamble, and, when we proceed to patients and physicians. To the extent especially psychiatric hospitals, by with a subsequent document, we will that physicians utilize these new restricting a hospital’s ability to allow respond to the comments in the flexibilities for patients that would have APPs to operate within the scope of preamble to that document. been treated in more traditional offices practice allowed by state law. We VI. Regulatory Impact Analysis or hospital settings without this policy believe that the existing regulation fails change, given the competing demand for to recognize the benefits to patient care Executive Order 12866 and other laws physicians’ services during the that might be derived from fully and Executive orders require economic pandemic this additional flexibility utilizing APPs and their clinical skills to analysis of the effects of proposed and would not result in any significant the highest levels of their training, 29 final (including interim final) rules. change in aggregate Medicare payments education, and experience as allowed by The Office of Management and Budget for physicians’ services. hospital policy in accordance with state has designated this rulemaking as Still, it is possible that the flexibilities law. ‘‘economically significant’’ under E.O. and changes contained within this IFC Therefore, we are removing the term 12866 and also major under the would increase aggregate Medicare ‘‘licensed independent practitioner(s)’’ Congressional Review Act. This IFC’s payments. For example, if its from the regulations. We believe that designation under Executive Order protections against exposure risk are this revision is non-controversial, and 13771, titled ‘‘Reducing Regulation and effective, providers may maintain their that the public interest will be served by Controlling Regulatory Costs’’ (82 FR own health and thus be available to permitting a greater scope of practice for 9339), which was issued on January 30, provide more medical treatment overall. professionals in the psychiatric hospital 2017, will be informed by public Improvements in both provider and/or context and further believe that these comments received. patient health are intended benefits of trained and qualified practitioners, A. Statement of Need this IFC. when acting in accordance with State We anticipate that the change in the law, their scope of practice, and hospital Throughout this IFC, we discuss site of service payment amount for policy, should have the authority to several changes to payment and telehealth services under the PHE along record progress notes of psychiatric coverage policies intended to allow with the changes that allow for broader patients for whose care they are health care providers maximum flexibilities in supervision will allow responsible. flexibility to minimize the spread of physicians and other practitioners to At § 482.61(d), we are allowing NPPs, COVID–19 among Medicare and better maintain overall level of needed or APPs, to document progress notes in Medicaid beneficiaries, health care care to Medicare beneficiaries in the accordance with State laws and scope- personnel, and the community at large face of exposure risks and competing of-practice requirements. We believe and increase capacity to address the demands for health care providers. that clarification of the intent of the needs of their patients. The flexibilities Finally, the changes to Medicaid’s regulation is necessary and will result in and changes contained within this IFC regulations to expand the scope of NPPs (specifically PAs, NPs, and CNSs) are responsive to this developing certain providers are anticipated to documenting in the progress notes for pandemic emergency. Given the eliminate some burdens on providers patients receiving services in potentially catastrophic impact to and beneficiaries. psychiatric hospitals. public health, it is difficult to estimate The modifications to the calculations We estimate that MDs/DOs currently the economic impact of the spread of for the 2021 and 2022 Part C and D Star spend approximately 30 minutes COVID–19 under current payment rules Ratings to address the expected documenting progress notes in compared to the rules issued in this IFC. disruption to data collection and psychiatric hospitals, and that 33 We believe that the needs of Medicare measure scores posed by the PHE for the percent of this time would be covered patients will likely test the capacity of COVID–19 pandemic should not have a by NPPs. Of the 4,823 Medicare the health care system over the coming significant impact on the distribution of participating hospitals, approximately months. Our policies during the PHE for ratings across Part C and D sponsors. 620 (or 13 percent) are psychiatric Consequently, there should be hospitals. According to AHA, there were 29 Section 202 of the Unfunded Mandates Reform 36,510,207 inpatient hospital stays in Act of 1995 (UMRA) (Pub. L. 104–04, enacted on negligible impacts on payments for MA March 22, 1995) also requires that agencies assess organizations from these modifications. 2017, and therefore, an estimated 13 anticipated costs and benefits before issuing any percent of these stays were at rule whose mandates require spending in any 1 year B. Special Requirements for Psychiatric psychiatric hospitals. The change will of $100 million in 1995 dollars, updated annually Hospitals result in a savings of $153.5 million for inflation. In 2020, that amount is approximately In section II.P. of this final rule, we (4,746,327 psychiatric hospital stays × 2 $156 million. This IFC does not mandate, on an × unfunded basis, any requirements for State, local, note that existing requirements for progress notes per stay 0.5 hours of or tribal governments, or for the private sector. psychiatric hospitals specify that physician/psychiatrist time × $98 per

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hourly wage difference between for the COVID–19 Pandemic will allow changes as described in section II.Q.1 of physicians/psychiatrists ($198) and enrolled MDPP suppliers with active this IFC, including allowing MDPP NPPs ($100, the average wage between MDPP cohorts more flexibility to suppliers to either deliver MDPP NPs and PAs) × 33 percent of physician furnish virtual sessions, as described by services virtually or suspend delivery time spent writing progress notes the CDC’s DPRP Standards. and resume services at a later date, in covered by NPPs, or APPs). With the exception of the requirement an emergency area and during this for in-person attendance and the in- COVID–19 PHE period, as those terms C. Anticipated Effects of Changes to the person body weight measurement at the MDPP Expanded Model are defined in section 1135(g) of the Act, first core-session, the in-person for which the Secretary has authorized 1. Effects on Beneficiaries attendance requirements are waived. a waiver under section 1135 of the Act MDPP suppliers shall not start any new and the Secretary has declared a PHE. In section II.Q. of this IFC, we are cohorts with MDPP beneficiaries amending the MDPP expanded model to In addition, these changes permit throughout the COVID–19 PHE period certain MDPP beneficiaries to obtain the modify certain requirements of the in the geographic area, as defined under model in an emergency area during an set of MDPP services more than once section 1135(g) of the Act, given that per lifetime, for the limited purposes of emergency period, as those terms are most beneficiaries cannot receive in- defined in section 1135(g) of the Act, for allowing a pause in service and allow person services right now. MDPP beneficiaries to maintain which the Secretary has issued a waiver During the emergency period, the eligibility for MDPP services despite a under section 1135 of the Act. number of virtual make-up sessions is break in service, attendance, or weight Specifically, as the Secretary has issued waived for MDPP suppliers, with an loss achievement. These changes will a waiver under section 1135 of the Act, MDPP supplier offering MDPP have a positive impact on affected certain MDPP beneficiaries will be beneficiaries no more than 15 weekly MDPP beneficiaries, as it will allow permitted to obtain the set of MDPP virtual make-up sessions during the core them to maintain eligibility for the services more than once per lifetime, the session period, no more than 6 monthly expanded model, and request virtual number of virtual make-up sessions is virtual make-up sessions during the core make-up sessions if needed for increased, and certain MDPP suppliers maintenance session interval period, no will be permitted to deliver time limited more than 12 monthly virtual make-up successful completion of attendance and virtual MDPP sessions. These changes sessions during the ongoing weight loss milestones. apply only to MDPP beneficiaries (as maintenance session interval periods. 2. Effects on the Market defined in § 410.79(b)) who were All flexibilities described in this IFC receiving the MDPP set of services will cease to be available as of the Currently, more than 196 during the emergency period, as defined effective end date of the PHE. When in- organizations nationally are enrolled as under section 1135(g) of the Act. person classes resume, the CDC is MDPP suppliers. There are We believe that during this COVID–19 allowing suppliers to pick up where approximately 798 locations. We pandemic, Medicare beneficiaries will they left off, or to restart the program anticipate that of the 1,818 beneficiaries not be able to attend in-person classes. from week one. It is our intent to identified through our monitoring data Because we do not want to disrupt their conform with the CDC guidance where and the CDC’s Diabetes Prevention progress and we want to promote both feasible, with the overall intent to Recognition Program (DPRP) data, 1,358 MDPP beneficiary and MDPP supplier minimize disruption of services for beneficiaries may be impacted by retention, we have modified how the set MDPP suppliers and MDPP allowing both the once-per-lifetime of services can be delivered to make the beneficiaries; by allowing MDPP benefit and the minimum weight loss program accessible to currently enrolled beneficiaries to maintain their requirement to be waived for those MDPP beneficiaries during this national eligibility. In this IFC, we are amending beneficiaries in the first 12 months of emergency. Our policies during the PHE the MDPP regulations to provide for MDPP.

TABLE 2

Recommended waivers Cost impact

Adjust the limit to the # Virtual Make-up sessions ...... $— Waive the once per lifetime requirement ...... 279,748.00 Waive the minimum weight loss requirement for OM ...... 53,301.50 Waive the MDPP services time periods and intervals ...... — Average Y1 MDPP Payments (Y1) with no COVID action ...... 177,898.00

Total cost of COVID–19 response ...... 333,049.50 Assumptions: —Average MDPP payments in Year 1: $412, assuming that beneficiaries attended 9 sessions, and reached the 5 percent weight loss during interval 1 of the core maintenance session —Average MDPP payments in Year 1 with no COVID–19 action: $131, assuming beneficiaries attended 2 ongoing maintenance sessions

D. Modification to the Extreme and Program extreme and uncontrollable the Quality Payment Program as being Uncontrollable Circumstances Policy circumstances policy for purposes of affected by an extreme and Under the Shared Savings Program determining an ACO’s quality score for uncontrollable circumstance, during the In section II.V. of this IFC, we discuss use in determining shared savings or performance year, including the a modification to the extreme and shared losses applies if twenty percent applicable quality data reporting period uncontrollable circumstances policy or more of an ACO’s assigned for the performance year if, the quality under the Shared Savings Program. The beneficiaries or its legal business entity reporting period is not extended. In current Medicare Shared Savings are located in an area identified under response to the National Emergency for

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the COVID–19 pandemic declared on written, our extreme and uncontrollable estimated to be $20 million with a range March 13, 2020, we have determined circumstances policy cannot be applied of uncertainty in such estimate that the 2019 MIPS data submission to waive the quality reporting spanning $15 million to $25 million. deadline will be extended by 30 days requirements under the Shared Savings E. Anticipated Effects of Changes to the until April 30, 2020, to give eligible Program because the quality data Quality Payment Program clinicians more time to report quality submission period has been extended. and other data for purposes of MIPS. The PHE for the COVID–19 pandemic Since it is not possible to This extended timeline also applies to applies to all counties in the United comprehensively predict the impact of Shared Savings Program ACOs because States, and we think it is appropriate to the evolving PHE for the COVID–19 they are required to report quality data offer relief under the Shared Savings pandemic at this time, the Office of the via the CMS Web Interface and we align Program extreme and uncontrollable Actuary was unable to calculate a the Shared Savings Program data circumstances policy to all Shared discrete impact estimate for the effect of submission timeline with the timeline Savings Program ACOs that are unable extending CJR PY 5 an additional 3 for MIPS data submission. As currently to completely and accurately report months. However, given the previous written, our extreme and uncontrollable quality for 2019 by the extended estimate for PY 5 in the circumstances policy cannot be applied deadline, Accordingly, in this interim ‘‘Comprehensive Care for Joint to waive the quality reporting final rule, we are revising the regulation Replacement Model Three-Year requirements under the Shared Savings at § 425.502(f) to remove the restriction Extension and Changes to Episode Program because the quality data which prevents the application of the Definition and Pricing’’ proposed rule submission period has been extended. Shared Savings Program extreme and (CMS–5529–P), we anticipate the The PHE for the COVID–19 pandemic uncontrollable circumstances policy for impact of the additional 3 months could applies to all counties in the United disasters that occur during the quality range between $0 and $1.2 million. We States, and we think it is appropriate to period if the reporting period is will continue to refine this analysis and offer relief under the Shared Savings extended, in order to offer relief under will provide a more detailed estimate in Program extreme and uncontrollable the Shared Savings Program to all ACOs the final rule if available. Table 3 circumstances policy to all Shared that may be unable to completely and summarizes the financial impact of Savings Program ACOs that are unable accurately report quality for 2019 due to extending PY 5 an additional 3 months. to completely and accurately report the PHE for the COVID–19 pandemic. Table 3 includes the full amount of FFS quality for 2019 by the extended We estimate based on patterns evident episode payments and also includes any deadline. Accordingly, in this IFC, we in the financial reconciliation for reconciliation payments related to the are revising the regulation at performance year 2018 that this change model. Table 3 also shows costs/savings § 425.502(f) to remove the restriction would allow roughly 100 ACOs that (costs are represented as positive which prevents the application of the achieve savings either to qualify to amounts and savings as negative Shared Savings Program extreme and receive shared savings or to receive a amounts) imposed on non-federal uncontrollable circumstances policy for higher effective sharing rate. We entities (that is, participating medical disasters that occur during the quality estimate the average resulting benefit to facilities), as well as net transfers of period if the reporting period is such ACOs ranging from $150,000 to federal funds (that is, increases in extended, to offer relief under the $200,000 per ACO. The total impact of Medicare program expenditures are Shared Savings Program to all ACOs extending the extreme and indicated as positive amounts and that may be unable to completely and uncontrollable circumstances policy decreases in Medicare program accurately report quality for 2019 due to despite the extension of the quality expenditures are indicated as negative the PHE for the COVID–19. As currently reporting period for 2019 is therefore amounts).

TABLE 3—FINANCIAL IMPACT OF EXTENDING PY 5 AN ADDITIONAL 3 MONTHS

Transfers Scenario Costs/benefits (millions)

Net financial impact of extending CJR model PY 5 by 3 additional months ...... 1.2

F. Overall Impact adverse change in revenue of more than operations of a substantial number of 3 to 5 percent. We do not believe that small rural hospitals. The RFA requires agencies to analyze this threshold will be reached by the Executive Order 13132 establishes options for regulatory relief of small provisions in this IFC. entities, if a rule has a significant impact certain requirements that an agency on a substantial number of small In addition, section 1102(b) of the Act must meet when it issues a proposed entities. The great majority of hospitals requires us to prepare a regulatory rule that imposes substantial direct and most other health care providers impact analysis if a rule may have a requirement costs on state and local and suppliers are small entities, either significant impact on the operations of governments, preempts state law, or by being nonprofit organizations or by a substantial number of small rural otherwise has federalism implications. meeting the SBA definition of a small hospitals. This analysis must conform to This IFC does not have a substantial business (having revenues of less than the provisions of section 604 of the direct cost impact on state or local $8.0 million to $41.5 million in any one RFA. For purposes of section 1102(b) of governments, preempt state law, or year). Individuals and states are not the Act, we define a small rural hospital otherwise have federalism implications. included in the definition of a small as a hospital that is located outside of Under the Congressional Review Act entity. As its measure of significant a metropolitan statistical area and has (5 U.S.C. 801 et seq.), the Office of economic impact on a substantial fewer than 100 beds. This IFC will not Information and Regulatory Affairs number of small entities, HHS uses an have a significant impact on the designated this rule as a major rule, as

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defined by 5 U.S.C. 804(2). As such, this maintenance organizations (HMO), ■ 4. Section 405.2416 is amended by rule has been transmitted to the Medicare, Penalties, Privacy, Reporting adding paragraph (a)(5) to read as Congress and the Comptroller General and recordkeeping requirements. follows: for review. 42 CFR Part 423 § 405.2416 Visiting nurse services. List of Subjects Administrative practice and (a) * * * 42 CFR Part 400 procedure, Emergency medical services, Health facilities, Health maintenance (5) During a PHE, as defined in Grant programs—health, Health § 400.200 of this chapter, an area facilities, Health maintenance organizations (HMO), Health professionals, Medicare, Penalties, typically served by the RHC, and an area organizations (HMO), Medicaid, that is included in the FQHC’s service Medicare, Reporting and recordkeeping Privacy, Reporting and recordkeeping requirements. area plan, is determined to have a requirements. shortage of home health agencies, and 42 CFR Part 405 42 CFR Part 425 no request for this determination is required. Administrative practice and Administrative practice and procedure, Diseases, Health facilities, procedure, Health facilities, Health * * * * * Health insurance, Health professions, professions, Medicare, Reporting and PART 409—HOSPITAL INSURANCE Medical devices, Medicare, Reporting recordkeeping requirements. BENEFITS and recordkeeping requirements, Rural 42 CFR Part 440 areas, X-rays. Grant programs—health, Medicaid. ■ 5. The authority citation for part 409 42 CFR Part 409 continues to read as follows: 42 CFR Part 482 Health facilities, Medicare. Authority: 42 U.S.C. 1302 and 1395hh. Grant programs—health, Hospitals, 42 CFR Part 410 Medicaid, Medicare, Reporting and ■ 6. Section 409.43 is amended by Diseases, Health facilities, Health recordkeeping requirements. revising paragraph (a)(3) to read as professions, Laboratories, Medicare, 42 CFR Part 510 follows: Reporting and recordkeeping requirements, Rural areas, X-rays. Administrative practice and § 409.43 Plan of care requirements. procedure, Health facilities. (a) * * * 42 CFR Part 412 For the reasons set forth in the Administrative practice and preamble, the Centers for Medicare & (3) The plan of care must include the procedure, Health facilities, Medicare, Medicaid Services amends 42 CFR identification of the responsible Puerto Rico, Reporting and chapter IV as set forth below: discipline(s) and the frequency and recordkeeping requirements. duration of all visits, as well as those PART 400—INTRODUCTION; items listed in § 484.60(a) of this chapter 42 CFR Part 414 DEFINITIONS that establish the need for such services. Administrative practice and All care provided must be in accordance procedure, Biologics, Diseases, Drugs, ■ 1. The authority citation part 400 is with the plan of care. During a PHE, as Health facilities, Health professions, revised to read as follows: defined in § 400.200 of this chapter, the Medicare, Reporting and recordkeeping Authority: 42 U.S.C. 1302 and 1395hh, and plan of care must include any provision requirements. 44 U.S.C. Chapter 35. of remote patient monitoring or other services furnished via a ■ 2. Section 400.200 is amended by 42 CFR Part 415 telecommunications system and such adding the definition of ‘‘Public Health Health facilities, Health professions, services must be tied to the patient- Emergency’’ in alphabetical order to Medicare, Reporting and recordkeeping specific needs as identified in the read as follows: requirements. comprehensive assessment, cannot 42 CFR Part 417 § 400.200 General definitions. substitute for a home visit ordered as part of the plan of care, and cannot be Administrative practice and * * * * * Public Health Emergency (PHE) considered a home visit for the purposes procedure, Grant programs—health, means the Public Health Emergency of patient eligibility or payment. The Health care, Health insurance, Health determined to exist nationwide as of plan of care must include a description maintenance organizations (HMO), Loan January 27, 2020, by the Secretary of how the use of such technology will programs—health, Medicare, Reporting pursuant to section 319 of the Public help to achieve the goals outlined on the and recordkeeping requirements. Health Security Act on January 31, plan of care. 42 CFR Part 418 2020, as a result of confirmed cases of * * * * * Health facilities, Hospice care, COVID–19, including any subsequent PART 410—SUPPLEMENTARY Medicare, Reporting and recordkeeping renewals. MEDICAL INSURANCE (SMI) requirements. * * * * * BENEFITS 42 CFR Part 421 PART 405—FEDERAL HEALTH Administrative practice and INSURANCE FOR THE AGED AND ■ 7. The authority citation for part 410 procedure, Health facilities, Health DISABLED continues to read as follows: professions, Medicare, Reporting and ■ Authority: 42 U.S.C. 1302, 1395m, 1395hh, recordkeeping requirements. 3. The authority citation part 405 1395rr, and 1395ddd. continues to read as follows: 42 CFR Part 422 Authority: 42 U.S.C. 263a, 405(a), 1302, ■ 8. Section 410.27 is amended by Administrative practice and 1320b–12, 1395x, 1395y(a), 1395ff, 1395hh, revising paragraphs (a)(1)(iv)(D) and (E) procedure, Health facilities, Health 1395kk, 1395rr, and 1395ww(k). to read as follows:

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§ 410.27 Therapeutic outpatient hospital or § 410.28 Hospital or CAH diagnostic include, but are not limited to, CAH services and supplies incident to a services furnished to outpatients: alternative sites determined to be part of physician’s or nonphysician practitioner’s Conditions. a hospital, critical access hospital or service: Conditions. * * * * * skilled nursing facility, community (a) * * * (e) * * * mental health centers, federally (1) For services furnished directly or (1) * * * qualified health centers, rural health under arrangement in the hospital or in clinics, physician offices, urgent care (iv) * * * an on-campus or off-campus outpatient facilities, ambulatory surgical centers, (D) For pulmonary rehabilitation, department of the hospital, as defined in any location furnishing dialysis services cardiac rehabilitation, and intensive § 413.65 of this chapter, ‘‘direct outside of an ESRD facility when an cardiac rehabilitation services, direct supervision’’ means that the physician ESRD facility is not available, and the supervision must be furnished by a must be immediately available to beneficiary’s home. furnish assistance and direction doctor of medicine or a doctor of * * * * * throughout the performance of the osteopathy, as specified in §§ 410.47 ■ 12. Section 410.67(b) is amended in and 410.49, respectively. For purposes procedure. It does not mean that the physician must be present in the room paragraphs (3) and (4) of the definition of this section, direct supervision means of ‘‘Opioid use disorder treatment that the physician or nonphysician where the procedure is performed. During a Public Health Emergency, as service’’ by adding a sentence at the end practitioner must be immediately of each paragraph to read as follows: available to furnish assistance and defined in § 400.200 of this chapter, the direction throughout the performance of presence of the physician includes § 410.67 Medicare coverage and payment the procedure. It does not mean that the virtual presence through audio/video of Opioid use disorder treatment services physician or nonphysician practitioner real-time communications technology furnished by Opioid treatment programs. must be present in the room when the when use of such technology is * * * * * procedure is performed. During a Public indicated to reduce exposure risks for (b) * * * Health Emergency, as defined in the beneficiary or health care provider. Opioid use disorder treatment service § 400.200 of this chapter, the presence * * * * * *** of the physician includes virtual ■ 10. Section 410.32 is amended by (3) * * * During a Public Health presence through audio/video real-time revising paragraph (b)(3)(ii) to read as Emergency, as defined in § 400.200 of communications technology when use follows: this chapter, where audio/video of such technology is indicated to communication technology is not § 410.32 Diagnostic x-ray tests, diagnostic available to the beneficiary, the reduce exposure risks for the beneficiary laboratory tests, and other diagnostic tests: or health care provider; and Conditions. counseling services may be furnished using audio-only telephone calls if all (E) For nonsurgical extended duration * * * * * other applicable requirements are met. therapeutic services (extended duration (b) * * * (4) * * * During a Public Health services), which are hospital or CAH (3) * * * Emergency, as defined in § 400.200 of outpatient therapeutic services that can (ii) Direct supervision in the office this chapter, where audio/video last a significant period of time, have a setting means the physician must be communication technology is not substantial monitoring component that present in the office suite and available to the beneficiary, the therapy is typically performed by auxiliary immediately available to furnish services may be furnished using audio- personnel, have a low risk of requiring assistance and direction throughout the only telephone calls if all other the physician’s or appropriate performance of the procedure. It does applicable requirements are met. nonphysician practitioner’s immediate not mean that the physician must be availability after the initiation of the present in the room when the procedure * * * * * service, and are not primarily surgical in is performed. During a PHE, as defined ■ 13. Section 410.78 is amended by— nature, Medicare requires a minimum of in § 400.200 of this chapter, the ■ a. Adding paragraph (a)(3)(i) and direct supervision during the initiation presence of the physician includes reserved paragraph (a)(3)(ii); and of the service which may be followed by virtual presence through audio/video ■ b. Revising paragraph (b) introductory general supervision at the discretion of real-time communications technology text. the supervising physician or the when use of such technology is The additions and revision read as appropriate nonphysician practitioner. indicated to reduce exposure risks for follows: the beneficiary or health care provider. Initiation means the beginning portion § 410.78 Telehealth services. of the nonsurgical extended duration * * * * * (a) * * * therapeutic service which ends when ■ 11. Section 410.40 is amended by the patient is stable and the supervising (3) * * * adding paragraph (f)(5) to read as (i) Exception. For the duration of the physician or the appropriate follows: nonphysician practitioner determines Public Health Emergency as defined in that the remainder of the service can be § 410.40 Coverage of ambulance services. § 400.200 of this chapter, Interactive delivered safely under general * * * * * telecommunications system means supervision. During a Public Health (f) * * * multimedia communications equipment Emergency, as defined in § 400.200 of (5) During a Public Health Emergency, that includes, at a minimum, audio and this chapter, Medicare requires a as defined in § 400.200 of this chapter, video equipment permitting two-way, minimum level of general supervision a ground ambulance transport from any real-time interactive communication for the entire service; and point of origin to a destination that is between the patient and distant site equipped to treat the condition of the physician or practitioner. * * * * * patient consistent with any applicable (ii) [Reserved] ■ 9. Section 410.28 is amended by state or local Emergency Medical * * * * * revising paragraph (e)(1) to read as Services protocol that governs the (b) General rule. Medicare Part B pays follows: destination location. Such destinations for covered telehealth services included

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on the telehealth list when furnished by (C) The MDPP supplier furnishes to (e) Have in effect a procedure to an interactive telecommunications the MDPP beneficiary a maximum of ensure that patients receive close system if the following conditions are one virtual make-up session per week; medical supervision, as evidenced by at met, except that for the duration of the (D) Virtual make-up sessions must be least 3 face-to-face visits per week by a Public Health Emergency as defined in furnished in a manner consistent with licensed physician with specialized § 400.200 of this chapter, Medicare Part the DPRP standards for virtual sessions; training and experience in inpatient B pays for office and other outpatient (E) Virtual make-up sessions can only rehabilitation to assess the patient both visits, professional consultation, be furnished to achieve attendance goals medically and functionally, as well as to psychiatric diagnostic interview and cannot be furnished to achieve modify the course of treatment as examination, individual psychotherapy, weight-loss goals; needed to maximize the patient’s pharmacologic management and end (F) An MDPP supplier can only offer capacity to benefit from the stage renal disease related services virtual make-up sessions upon an rehabilitation process, except that included in the monthly capitation individual MDPP beneficiary’s request; during a Public Health Emergency, as payment furnished by an interactive and defined in § 400.200 of this chapter, telecommunications system if the (G) An MDPP supplier can offer to an such visits may be conducted using following conditions are met: MDPP beneficiary: telehealth services (as defined in section (1) No more than 15 virtual make-up * * * * * 1834(m)(4)(F) of the Act). sessions offered weekly during the core ■ * * * * * 14. Section 410.79 is amended by session period, months 1 through 6 of ■ adding paragraph (e) to read as follows: the MDPP services period; 17. Section 412.622 is amended by (2) No more than 6 virtual make-up revising paragraphs (a)(3)(iv) and § 410.79 Medicare Diabetes Prevention (a)(4)(ii) introductory text to read as Program expanded model: Conditions of sessions offered monthly during the coverage. core maintenance session interval follows: * * * * * periods, months 7 through 12 of the § 412.622 Basis of payment. (e) MDPP expanded model emergency MDPP services period; and (3) No more than 12 virtual make-up (a) * * * policy. (1) Notwithstanding paragraphs (3) * * * sessions offered monthly during the (a) through (d) of this section, the (iv) Requires physician supervision by ongoing maintenance session interval policies described in this paragraph (e) a rehabilitation physician. The periods, months 13 through 24; apply during the Public Health requirement for medical supervision (iii) The once per lifetime requirement Emergency (PHE), as defined in means that the rehabilitation physician as described in paragraph (c)(1)(i)(B) of § 400.200 of this chapter. must conduct face-to-face visits with the this section is waived to permit MDPP patient at least 3 days per week (2) MDPP requirement changes beneficiaries whose sessions were throughout the patient’s stay in the IRF described in paragraph (e)(1) of this paused or cancelled due to the PHE to to assess the patient both medically and section are applicable to: obtain the set of MDPP services more functionally, as well as to modify the (i) Organizations that are enrolled as than once per lifetime by electing to course of treatment as needed to an MDPP supplier as defined in restart the MDPP set of services or maximize the patient’s capacity to paragraph (b) of this section, as of resume with the most recent attendance benefit from the rehabilitation process, March 1, 2020; and session of record; (ii) MDPP beneficiaries as defined in (iv) The minimum weight loss except that during a Public Health paragraph (b) of this section, who are requirements for beneficiary eligibility Emergency, as defined in § 400.200 of receiving the MDPP set of services as of in the ongoing maintenance session this chapter, such visits may be March 1, 2020. intervals described in paragraphs conducted using telehealth services (as (3) The following changes apply (c)(1)(ii)(B) and (c)(1)(iii)(B) of this defined in section 1834(m)(4)(F) of the under this paragraph (e): section are waived; and Act). The post-admission physician (i) The in-person attendance (v) MDPP suppliers may pause or evaluation described in paragraph requirements of paragraphs (c)(1)(ii)(A), delay the delivery of the MDPP set of (a)(4)(ii) of this section may count as (c)(1)(iii)(A), and (c)(3)(ii) of this section services and subsequently resume one of the face-to-face visits. are waived. MDPP suppliers shall not services on a delayed schedule. The (4) * * * start new cohorts with MDPP time periods and intervals must be (ii) A post-admission physician beneficiaries who are unable to attend consistent with the MDPP requirements evaluation that meets all of the the first core session in-person; as described in paragraphs (c)(1)(i)(B), following requirements, except for the (ii) The limit described in paragraphs (c)(1)(ii)(A), (c)(1)(iii)(A), (c)(2)(i)(A) and duration of the Public Health (d)(2) and (d)(3)(i) and (ii) of this section (B), and (c)(3)(i) and (ii) of this section. Emergency, as defined in § 400.200 of to the number of virtual make-up this chapter— sessions is waived for MDPP suppliers PART 412—PROSPECTIVE PAYMENT * * * * * with capabilities to provide services SYSTEMS FOR INPATIENT HOSPITAL virtually so long as the provision of SERVICES PART 414—PAYMENT FOR PART B virtual services complies with the MEDICAL AND OTHER HEALTH following: ■ 15. The authority citation for part 412 SERVICES (A) The curriculum furnished during continues to read as follows: ■ 18. The authority citation for part 414 the virtual make-up session must Authority: 42 U.S.C. 1302 and 1395hh. continues to read as follows: address the same CDC-approved DPP ■ 16. Section 412.29 is amended by Authority: 42 U.S.C. 1302, 1395hh, and curriculum topic as the regularly revising paragraph (e) to read as follows: scheduled session; 1395rr(b)(l). (B) The MDPP supplier furnishes to § 412.29 Classification criteria for payment ■ 19. Section 414.1380 is amended by— the MDPP beneficiary a maximum of under the inpatient rehabilitation facility ■ a. Revising paragraphs (c)(2)(i)(A)(6) one session on the same day as a prospective payment system. and (c)(2)(i)(C) introductory text; and regularly scheduled session; * * * * * ■ b. Adding paragraph (c)(2)(i)(C)(11).

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The revisions and addition read as PART 415—SERVICES FURNISHED BY notes in the medical records made by follows: PHYSICIANS IN PROVIDERS, the physician or as provided in SUPERVISING PHYSICIANS IN § 410.20(e) of this chapter. During a § 414.1380 Scoring. TEACHING SETTINGS, AND Public Health Emergency, as defined in * * * * * RESIDENTS IN CERTAIN SETTINGS § 400.200 of this chapter, except for (c) * * * services furnished as set forth in ■ 20. The authority citation for part 415 §§ 415.174 (concerning an exception for (2) * * * continues to read as follows: services furnished in hospital outpatient (i) * * * Authority: 42 U.S.C. 1302 and 1395hh. and certain other ambulatory settings), 415.176 (concerning renal dialysis (A) * * * ■ 21. Section 415.172 is amended by services), and 415.184 (concerning revising paragraphs (a) introductory (6) Beginning with the 2020 MIPS psychiatric services), the medical text, (a)(2), and (b) to read as follows: payment year, for the quality, cost, and records must document if the teaching improvement activities performance § 415.172 Physician fee schedule payment physician was physically present or if categories, the MIPS eligible clinician for services of teaching physicians. the teaching physician was present demonstrates through an application (a) General rule. If a resident through interactive telecommunications submitted to CMS that they were subject participates in a service furnished in a technology at the time the service is to extreme and uncontrollable teaching setting, physician fee schedule furnished. The presence of the teaching circumstances that prevented the payment is made only if a teaching physician during procedures and clinician from collecting information physician is present during the key evaluation and management services that the clinician would submit for a portion of any service or procedure for may be demonstrated by the notes in the performance category or submitting which payment is sought. During the medical records made by the physician information that would be used to score Public Health Emergency, as defined in or as provided in § 410.20(e) of this a performance category for an extended § 400.200 of this chapter, if a resident chapter. period of time. Beginning with the 2021 participates in a service furnished in a * * * * * MIPS payment year, in the event that a teaching setting, physician fee schedule ■ MIPS eligible clinician submits data for 22. Section 415.174 is amended by payment is made if a teaching physician adding paragraph (b) to read as follows: the quality, cost, or improvement is present during the key portion of the activities performance categories, the service using interactive § 415.174 Exception: Evaluation and scoring weight specified in paragraph telecommunications technology for any management services furnished in certain (c)(1) of this section will be applied and service or procedure for which payment centers. its weight will not be redistributed, is sought. * * * * * unless an exception applies. Exception: (b) During a Public Health Emergency, for the 2021 MIPS payment year only, * * * * * (2) In the case of evaluation and as defined in § 400.200 of this chapter, if a MIPS eligible clinician demonstrates management services, the teaching carriers may make physician fee through an application submitted to physician must be present during the schedule payment for a service CMS that they have been adversely portion of the service that determines furnished by a resident if the teaching affected by the Public Health Emergency the level of service billed. (However, in physician is present through interactive for the COVID–19 pandemic and also the case of evaluation and management telecommunications technology. submits data for the quality, cost, or ■ services furnished in hospital outpatient 23. Section 415.180 is revised to read improvement activities performance departments and certain other as follows: categories, the preceding sentence will ambulatory settings, the requirements of not apply. § 415.180 Teaching setting requirements § 415.174 apply.) During a Public Health for the interpretation of diagnostic * * * * * Emergency, as defined in § 400.200 of radiology and other diagnostic tests. (C) Under section 1848(o)(2)(D) of the this chapter, the teaching physician may (a) General rule. Physician fee Act, a significant hardship exception or be present during the portion of the schedule payment is made for the other type of exception is granted to a service that determines the level of interpretation of diagnostic radiology MIPS eligible clinician based on the service billed using interactive and other diagnostic tests if the following circumstances for the telecommunications technology. interpretation is performed or reviewed Promoting Interoperability performance (However, in the case of evaluation and by a physician other than a resident. category. Except as provided in management services furnished in During a Public Health Emergency, as paragraphs (c)(2)(i)(C)(10) and (11) of hospital outpatient departments and defined in § 400.200 of this chapter, this section, in the event that a MIPS certain other ambulatory settings, the physician fee schedule payment may eligible clinician submits data for the requirements of § 415.174 apply.) also be made for the interpretation of Promoting Interoperability performance (b) Documentation. Except for diagnostic radiology and other category, the scoring weight specified in services furnished as set forth in diagnostic tests if the interpretation is paragraph (c)(1) of this section will be §§ 415.174 (concerning an exception for performed by a resident when the applied and its weight will not be services furnished in hospital outpatient teaching physician is present through redistributed. and certain other ambulatory settings), interactive telecommunications * * * * * 415.176 (concerning renal dialysis technology. services), and 415.184 (concerning (b) [Reserved] (11) For the 2021 MIPS payment year psychiatric services), the medical ■ only, the MIPS eligible clinician 24. Section 415.184 is revised to read records must document the teaching as follows: demonstrates through an application physician was present at the time the submitted to CMS that they have been service is furnished. The presence of the § 415.184 Psychiatric services. adversely affected by the Public Health teaching physician during procedures To qualify for physician fee schedule Emergency for the COVID–19 pandemic. and evaluation and management payment for psychiatric services * * * * * services may be demonstrated by the furnished under an approved GME

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program, the physician must meet the (including local and regional PPOs, palliation and management of a requirements of §§ 415.170 and 415.172, contracts with exclusively SNP benefit patients’ terminal illness and related including documentation, except that packages, private fee-for-service conditions. The use of such technology the requirement for the presence of the contracts, and MSA contracts), and all in furnishing services must be included teaching physician during the service in cost contracts under section 1876 of the on the plan of care, meet the which a resident is involved may be met Act, with 600 or more enrollees in July requirements at § 418.56, and must be by observation of the service by use of of the prior year, must contract with tied to the patient-specific needs as a one-way mirror, video equipment, or approved Medicare Consumer identified in the comprehensive similar device. During a Public Health Assessment of Healthcare Providers and assessment and the plan of care must Emergency, as defined in § 400.200 of Systems (CAHPS) survey vendors to include a description of how the use of this chapter, the requirement for the conduct the Medicare CAHPS such technology will help to achieve the presence of the teaching physician satisfaction survey of Medicare plan goals outlined on the plan of care. during the service in which a resident enrollees in accordance with CMS is involved may be met by direct specifications and submit the survey PART 421—MEDICARE CONTRACTING supervision by interactive data to CMS. ■ telecommunications technology. 31. The authority citation for part 421 * * * * * is revised to read as follows: ■ 25. Section 415.208 is amended by revising paragraph (b)(2) introductory PART 418—HOSPICE CARE Authority: 42 U.S.C. 1302 and 1395hh. text to read as follows: ■ ■ 32. Section 421.214 is amended by— 28. The authority citation for part 418 ■ a. Revising paragraphs (b) and (c) § 415.208 Services of moonlighting continues to read as follows: residents. introductory text; Authority: 42 U.S.C. 1302 and 1395hh. ■ b. Adding paragraph (d)(5); * * * * * ■ 29. Section 418.22 is amended by— ■ c. Revising paragraph (f)(1)(i); and (b) * * * ■ (2) Services of residents that are not ■ a. Redesignating the text of paragraph d. Adding paragraph (j). The revisions and additions read as related to their approved GME programs (a)(4) as paragraph (a)(4)(i); and follows: and are performed in an outpatient ■ b. Adding paragraph (a)(4)(ii). department or emergency department of The addition reads as follows: § 421.214 Advance payments to suppliers a hospital in which they have their § 418.22 Certification of terminal illness. furnishing items and services under Part B. training program are covered as * * * * * physician services and payable under (a) * * * (4) * * * (b) Definition. As used in this section, the physician fee schedule if criteria in (ii) During a Public Health advance payment means a conditional paragraphs (b)(2)(i) through (iii) of this Emergency, as defined in § 400.200 of partial payment made by the contractor section are met. During a Public Health this chapter, if the face-to-face in response to a claim that it is unable Emergency, as defined in § 400.200 of encounter conducted by a hospice to process within established time limits this chapter, the services of residents physician or hospice nurse practitioner except as provided in paragraph (j) of that are not related to their approved is for the sole purpose of hospice this section. GME programs and are furnished to recertification, such encounter may (c) When advance payments may be inpatients of a hospital in which they occur via a telecommunications made. Unless otherwise qualified under have their training program are covered technology and is considered an paragraph (j) of this section, an advance as physician services and payable under administrative expense. payment may be made if all of the the physician fee schedule if criteria in Telecommunications technology means following conditions are met: paragraphs (b)(2)(i) through (iii) of this the use of interactive multimedia * * * * * section are met. communications equipment that (d) * * * * * * * * includes, at a minimum, the use of (5) Is in bankruptcy. PART 417—HEALTH MAINTENANCE audio and video equipment permitting * * * * * ORGANIZATIONS, COMPETITIVE two-way, real-time interactive (f) * * * (1) * * * MEDICAL PLANS, AND HEALTH CARE communication between the patient and (i) Unless otherwise qualified under PREPAYMENT PLANS the distant site hospice physician or hospice nurse practitioner. paragraph (j) of this section, a contractor ■ 26. The authority citation for part 417 * * * * * must calculate an advance payment for is revised to read as follows: ■ 30. Section 418.204 is amended by a particular claim at no more than 80 percent of the anticipated payment for Authority: 42 U.S.C. 1302 and 1395hh, adding paragraph (d) to read as follows: and 300e, 300e–5, and 300e–9, and 31 U.S.C. that claim based upon the historical 9701. § 418.204 Special coverage requirements. assigned claims payment data as defined in paragraph (f)(1)(ii) of this ■ 27. Section 417.472 is amended by * * * * * (d) Use of technology in furnishing section for claims paid to the supplier. revising paragraphs (i) and (j) to read as For suppliers qualifying and approved follows: services during a Public Health Emergency. When a patient is receiving for advance payments under paragraph § 417.472 Basic contract requirements. routine home care, during a Public (j) of this section, a contractor may * * * * * Health Emergency as defined in calculate an advance payment for a (i) HMOs and CMPs. The HMO or § 400.200 of this chapter, hospices may particular claim at up to 100 percent of CMP must comply with the provide services via a the anticipated payment for that claim requirements at § 422.152(b)(5) and (6) telecommunications system if it is based upon the historical assigned of this chapter. feasible and appropriate to do so to claims payment data as defined in (j) Coordinated care and cost ensure that Medicare patients can paragraph (f)(1)(ii) of this section for contracts. Subject to paragraph (i) of this continue receiving services that are claims paid to the supplier. section, all coordinated care contracts reasonable and necessary for the * * * * *

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(j) Advanced payments in exceptional using mean resampling with the survey data collected from March circumstances. CMS may approve, in hierarchal clustering of the current through May 2019. writing to the contractor, the making of year’s data. Effective for the Star Ratings (iii) The measure-level change score advance payments during the period of issued in October 2022 and subsequent calculation described at a Public Health Emergency, as defined years, CMS will add a guardrail so that § 422.164(f)(4)(i) is not applied for in § 400.200 of this chapter, or during the measure-threshold-specific cut HEDIS and CAHPS measures and the the period under a Presidential Disaster points for non-CAHPS measures do not measure-level change score used for the Declaration, under the following increase or decrease more than the value 2020 Star Ratings is applied in its place exceptional conditions: of the cap from one year to the next. The for all HEDIS and CAHPS-based (1) The contractor is unable to process cap is equal to 5 percentage points for measures. the claim timely, or is at risk of being measures having a 0 to 100 scale (iv) The provisions of § 422.164(g)(1) untimely in processing the claim; or (absolute percentage cap) or 5 percent of and (2) are not applied for the failure to (2) When the supplier has the restricted range for measures not submit HEDIS and CAHPS-based experienced a temporary delay in having a 0 to 100 scale (restricted range measures. preparing and submitting bills to the cap). New measures that have been in (v) In the event that there are contractor beyond its normal billing the Part C and Part D Star Rating extraordinary circumstances resulting cycle. program for 3 years or less use the from the COVID–19 pandemic that hierarchal clustering methodology with compromise CMS resources to the PART 422—MEDICARE ADVANTAGE mean resampling with no guardrail for extent that CMS cannot calculate or PROGRAM the first 3 years in the program. issue 2021 Star Ratings by October 2020, CMS will adopt the 2020 Star Ratings as ■ * * * * * 33. The authority citation for part 422 the 2021 Star Ratings. continues to read as follows: (f) * * * (1) * * * (2) For the 2022 Star Ratings: Authority: 42 U.S.C. 1302 and 1395hh. (i) * * * For the 2022 Star Ratings (i) In the event that the threat to ■ 34. Section 422.152 is amended by only, since all contracts may have the health and safety posed by the COVID– adding paragraph (b)(6) to read as improvement measure(s) excluded in 19 pandemic compromises the ability to follows: the determination of their highest rating collect the Health Outcomes Survey in and summary rating(s), each contract’s 2020, CMS will adopt the 2021 Star § 422.152 Quality improvement program. weighted variance and weighted mean Ratings and measure scores for the * * * * * are calculated both with and without measures that come from the Health (b) * * * the improvement measures. Outcomes Survey as the 2022 Star (6) For 2021 Star Ratings only, MA * * * * * Ratings and measures scores for the organizations are not required to submit (g) * * * measures that come from the Health HEDIS and CAHPS data that would (3) For 2022 Star Ratings only, CMS Outcomes Survey. otherwise be required for the calculation runs the calculations twice for the (ii) [Reserved] of the 2021 Star Ratings. highest rating for each contract-type ■ 37. Section 422.252 is amended by * * * * * (overall rating for MA–PD contracts and revising the definition of ‘‘New MA ■ 35. Section 422.164 is amended by Part C summary rating for MA-only plan’’ to read as follows: adding paragraph (i) to read as follows: contracts) and Part C summary rating for MA–PDs with all applicable § 422.252 Terminology. § 422.164 Adding, updating, and removing adjustments (CAI and the reward factor), * * * * * measures. once including the improvement New MA plan means a MA contract * * * * * measure(s) and once without including offered by a parent organization that has (i) Special rule for 2021 Star Ratings the improvement measure(s). In not had another MA contract in the only. In the event that the threat to deciding whether to include the previous 3 years. For purposes of 2022 health and safety posed by the COVID– improvement measures in a contract’s quality bonus payments based on 2021 19 pandemic compromises the quality highest and summary rating(s), CMS Star Ratings only, new MA plan means of the data, or ability to validate such applies the following rules: an MA contract offered by a parent data for all plans used to calculate a (i) For MA–PDs and MA-only organization that has not had another particular measure, CMS will substitute contracts, a comparison of the highest MA contract in the previous 4 years. and use the 2021 Star Ratings measure rating with and without the * * * * * score and Star Rating with the 2020 Star improvement measure is done. The Ratings measure score and Star Rating. higher rating is used for the highest PART 423—VOLUNTARY MEDICARE ■ 36. Section 422.166 is amended— rating. PRESCRIPTION DRUG BENEFIT ■ (ii) For MA–PDs, a comparison of the a. By revising paragraph (a)(2)(i); ■ 38. The authority for part 423 ■ Part C summary rating with and without b. In paragraph (f)(1)(i), by adding a continues to read as follows: sentence to the end of the paragraph; the improvement measure is done. The and higher rating is used for the summary Authority: 42 U.S.C. 1302, 1395w–101 ■ c. By adding paragraphs (g)(3) and (j). rating. through 1395w–152, and 1395hh. The revision and additions read as * * * * * ■ 39. Section 423.156 is amended by follows: (j) Special rules for 2021 and 2022 adding a sentence at the end of the Star Ratings only. (1) For the 2021 Star paragraph to read as follows: § 422.166 Calculation of Star Ratings. Ratings: (a) * * * (i) The measures calculated based on § 423.156 Consumer satisfaction surveys. (2) * * * HEDIS data are calculated based on data * * * Part D sponsors are not (i) The method maximizes differences from the 2018 performance period. required to submit CAHPS data that across the star categories and minimizes (ii) The measures calculated based on would otherwise be required for the the differences within star categories CAHPS data are calculated based on calculation of the 2021 Star Ratings.

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■ 40. Section 423.182 is amended by improvement measure(s) excluded in § 425.502 [Amended] adding paragraph (c)(3) to read as the determination of their highest rating ■ 44. Section 425.502 is amended in follows: and summary rating(s), each contract’s paragraph (f) introductory text by weighted variance and weighted mean § 423.182 Part D Prescription Drug Plan removing the phrase ‘‘if the quality Quality Rating System. are calculated both with and without reporting period is not extended’’. the improvement measures. * * * * * * * * * * PART 440—SERVICES: GENERAL (c) * * * PROVISIONS (3) For 2021 Star Ratings only, Part D (g) * * * sponsors are not required to submit (3) For 2022 Star Ratings only, CMS ■ 45. The authority citation for part 440 CAHPS data that would otherwise be runs the calculations twice for the is revised to read as follows: required for the calculation of the 2021 highest rating for each contract-type Authority: 42 U.S.C. 1302. Star Ratings. (overall rating for MA–PD contracts and ■ 41. Section 423.184 is amended by Part D summary rating for PDPs) and ■ 46. Section 440.70 is amended by adding paragraph (i) to read as follows: Part D summary rating for MA–PDs with revising paragraphs (a)(2), (b)(1)(ii), and all applicable adjustments (CAI and the (b)(3)(iii) and (iv) to read as follows: § 423.184 Adding, updating, and removing reward factor), once including the § 440.70 Home health services. measures. improvement measure(s) and once * * * * * without including the improvement (a) * * * (2) On his or her physician’s orders as (i) Special rule for 2021 Star Ratings measure(s). In deciding whether to part of a written plan of care that the only. In the event that the threat to include the improvement measures in a physician reviews every 60 days for health and safety posed by the COVID– contract’s highest and summary 19 pandemic compromises the quality services described in paragraphs (b)(1), rating(s), CMS applies the following (2), and (4) of this section, or, for the of the data, or ability to validate such rules: data, for all plans, used to calculate a period of the Public Health Emergency, (i) For MA–PDs and PDPs, a as defined in § 400.200 of this chapter, particular measure, CMS will substitute comparison of the highest rating with and use the 2021 Star Ratings measure orders written by an other licensed and without the improvement measure practitioner of the healing arts acting score and Star Ratings with the 2020 is done. The higher rating is used for the Star Ratings measure score and Star within the scope of practice authorized highest rating. Rating. under State law, as part of a written ■ (ii) For MA–PDs, a comparison of the plan of care that the ordering 42. Section 423.186 is amended— Part D summary rating with and without ■ a. By revising paragraph (a)(2)(i); practitioner reviews every 60 days for ■ b. In paragraph (f)(1)(i), by adding a the improvement measure is done. The services described in paragraphs (b)(1), sentence to the end of the paragraph; higher rating is used for the summary (2), and (4) of this section. and rating. (b) * * * ■ c. By adding paragraphs (g)(3) and (j). * * * * * (1) * * * The revision and additions read as (j) Special rules for 2021 Star Ratings (ii) Receives written orders from the follows: only. (1) For the 2021 Star Ratings: patient’s physician or, for the period of the Public Health Emergency, as defined § 423.186 Calculation of Star Ratings. (i) The measures calculated based on CAHPS data are calculated based on in § 400.200 of this chapter, other (a) * * * survey data collected from March licensed practitioner of the healing arts (2) * * * through May 2019. acting within the scope of practice (i) The method maximizes differences authorized under State law; (ii) The measure-level change score across the star categories and minimizes * * * * * the differences within star categories calculation described at § 423.184(f)(4)(i) is not applied for (3) * * * using mean resampling with the (iii) A beneficiary’s need for medical hierarchal clustering of the current CAHPS measures and the measure-level change score used for the 2020 Star supplies, equipment, and appliances year’s data. Effective for the Star Ratings must be reviewed by a physician or, for issued in October 2022 and subsequent Ratings is applied in its place for all CAHPS-based measures. the period of the Public Health years, CMS will add a guardrail so that Emergency, as defined in § 400.200 of (iii) The provisions of § 423.184(g)(2) the measure-threshold-specific cut this chapter, an other licensed are not applied for failure to submit points for non-CAHPS measures do not practitioner of the healing arts acting CAHPS-based measures. increase or decrease more than the value within the scope of practice authorized of the cap from one year to the next. The (iv) In the event that there are under State law, annually. cap is equal to 5 percentage points for extraordinary circumstances resulting (iv) Frequency of further physician or, measures having a 0 to 100 scale from the COVID–19 pandemic that for the period of the Public Health (absolute percentage cap) or 5 percent of compromise CMS resources to the Emergency, as defined in § 400.200 of the restricted range for measures not extent that CMS cannot calculate or this chapter, an other licensed having a 0 to 100 scale (restricted range issue 2021 Star Ratings by October 2020, practitioner review of a beneficiary’s cap). New measures that have been in CMS will adopt the 2020 Star Ratings as continuing need for the items is the Part C and D Star Rating program for the 2021 Star Ratings. determined on a case-by-case basis 3 years or less use the hierarchal (2) [Reserved] based on the nature of the item clustering methodology with mean prescribed. PART 425—MEDICARE SHARED resampling with no guardrail for the * * * * * first 3 years of the program. SAVINGS PROGRAM

* * * * * ■ PART 482—CONDITIONS OF (f) * * * 43. The authority citation for part 425 PARTICIPATION FOR HOSPITALS (1) * * * continues to read as follows: (i) * * * For the 2022 Star Ratings Authority: 42 U.S.C. 1302, 1306, 1395hh, ■ 47. The authority citation for part 482 only, since all contracts may have the and 1395jjj. continues to read as follows:

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Authority: 42 U.S.C. 1302, 1395hh, 1395rr, PART 510—COMPREHENSIVE CARE adjustment for 2019 Novel Coronavirus and 1395lll unless otherwise noted. FOR JOINT REPLACEMENT MODEL (previously referred to as 2019–nCoV, now as COVID–19): ■ 48. Section 482.61 is amended by ■ 49. The authority citation of part 510 (i) The episode spending adjustments revising paragraph (d) to read as is revised to read as follows: specified in paragraph (k)(4) of this follows: Authority: 42 U.S.C. 1302, 1315a, and section apply for a participant hospital § 482.61 Condition of participation: 1395hh. that has a CCN primary address that is Special medical record requirements for ■ 50. Section 510.2 is amended by located in an emergency area during an psychiatric hospitals. revising the definition of ‘‘Performance emergency period, as those terms are * * * * * year’’ to read as follows: defined in section 1135(g) of the Act, for which the Secretary issued a waiver or (d) Standard: Recording progress. § 510.2 Definitions. modification of requirements under Progress notes for the patient must be * * * * * section 1135 of the Act on March 13, documented, in accordance with Performance year means one of the 2020. applicable State scope-of-practice laws years in which the CJR model is being (ii) [Reserved] tested. Performance years for the model and hospital policies, by the following (4) For a fracture or non-fracture correlate to calendar years with the qualified practitioners: Doctor(s) of episode with a date of admission to the exceptions of performance year 1, which medicine or osteopathy, or other anchor hospitalization that is on or is April 1, 2016 through December 31, licensed practitioner(s), who is within 30 days before the date that the responsible for the care of the patient; 2016 and performance year 5, which is January 1, 2020 through March 31, 2021. emergency period (as defined in section nurse(s) and social worker(s) (or social 1135(g) of the Act) begins or that occurs service staff) involved in the care of the * * * * * through the termination of the patient; and, when appropriate, others § 510.200 [Amended] emergency period (as described in significantly involved in the patient’s section 1135(e) of the Act), actual ■ 51. Section 510.200 is amended in active treatment modalities. episode payments are capped at the paragraph (a) by removing the phrase target price determined for that episode The frequency of progress notes is ‘‘before December 31, 2020’’ and adding under § 510.300. determined by the condition of the in its place the phrase ‘‘before March 31, patient but must be recorded at least 2021’’. Dated: March 24, 2020. weekly for the first 2 months and at ■ 52. Section 510.305 is amended by Seema Verma, least once a month thereafter and must adding paragraphs (k)(3) and (4) to read Administrator, Centers for Medicare & contain recommendations for revisions as follows: Medicaid Services. in the treatment plan as indicated, as Dated: March 26, 2020. § 510.305 Determination of the NPRA and well as precise assessment of the Alex M. Azar II, reconciliation process. patient’s progress in accordance with Secretary, Department of Health and Human the original or revised treatment plan. * * * * * Services. (k) * * * * * * * * (3) The following is an extreme and [FR Doc. 2020–06990 Filed 3–31–20; 4:15 pm] uncontrollable circumstances BILLING CODE 4120–01–P

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Part III

Department of Commerce

National Oceanic and Atmospheric Administration Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction of the Port of Alaska’s Petroleum and Cement Terminal, Anchorage, Alaska; Notice

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DEPARTMENT OF COMMERCE issued or, if the taking is limited to authorizations and did not exceed harassment, a notice of a proposed authorized take. Summaries of previous National Oceanic and Atmospheric incidental take authorization may be monitoring reports may be found in the Administration provided to the public for review. Under Effects of the Specified Activity on [RTID 0648–XR027] the MMPA, ‘‘take’’ is defined as Marine Mammals and their Habitat and meaning to harass, hunt, capture, or kill, Estimated Take sections. Takes of Marine Mammals Incidental to or attempt to harass, hunt, capture, or Description of Proposed Activity Specified Activities; Taking Marine kill any marine mammal. Authorization for incidental takings Mammals Incidental to Construction of We provided a detailed description of shall be granted if NMFS finds that the the Port of Alaska’s Petroleum and the POA’s PCT activities in the notice of taking will have a negligible impact on Cement Terminal, Anchorage, Alaska proposed IHAs (84 FR 72154, December the species or stock(s) and will not have AGENCY: National Marine Fisheries an unmitigable adverse impact on the 30, 2019). Since that time, the POA has Service (NMFS), National Oceanic and availability of the species or stock(s) for modified the design. While the overall Atmospheric Administration (NOAA), taking for subsistence uses (where plan for the terminal layout and Commerce. relevant). Further, NMFS must prescribe construction methods are the same, the POA has considered NMFS’s ACTION: Notice; issuance of incidental the permissible methods of taking and recommendations during the proposed harassment authorizations. other ‘‘means of effecting the least practicable adverse impact’’ on the IHAs phase and made the following SUMMARY: In accordance with the affected species or stocks and their adjustments. In February, 2020, the POA regulations implementing the Marine habitat, paying particular attention to indicated to NMFS they have removed Mammal Protection Act (MMPA) as rookeries, mating grounds, and areas of the use of battered piles in Phase 1. As amended, notification is hereby given similar significance, and on the indicated in the notice of proposed that we have issued two successive availability of such species or stocks for IHAs, a bubble curtain could not be incidental harassment authorizations taking for certain subsistence uses used on battered piles due to the angle (IHA) to the Port of Alaska (POA), (referred to in shorthand as of their installation. With the removal of authorizing the take of small numbers of ‘‘mitigation’’); and requirements battered piles from Phase 1, all piles in marine mammals incidental to pertaining to the mitigation, monitoring Phase 1 will now be plumb and be construction of the Petroleum and and reporting of such takings are set installed and removed using a bubble Cement Terminal (PCT), Anchorage, forth. The definitions of all applicable curtain. The POA retains installing six Alaska. MMPA statutory terms cited above are 24-inch (in) battered piles in Phase 2 but DATES: The Phase 1 IHA is effective included in the relevant sections below. will continue to investigate if these can be replaced with plumb piles. Although April 1, 2020 through March 31, 2021. Summary of Request The Phase 2 IHA is effective April 1, our analysis related to the Phase 2 IHA On November 28, 2018, NMFS 2021 through March 31, 2022. assumes that these six piles will be received a request from the POA for an battered piles and therefore installed FOR FURTHER INFORMATION CONTACT: IHA to take marine mammals incidental without use of the bubble curtain, it is Jaclyn Daly, Office of Protected to pile driving associated with the possible that this will change and the Resources, NMFS, (301) 427–8401. construction of the PCT. The POA effects associated with installation of SUPPLEMENTARY INFORMATION: submitted a new application on July 19, those piles will be less than what is 2019 due to a modified construction Availability analyzed herein. The POA has also schedule (two phases instead of one) indicated to NMFS it is likely going to Electronic copies of the POA’s and a revised application on August 9, reduce the number of temporary piles in application, issued IHAs, and 2019. We deemed the application Phase 1 by approximately 11 piles; supporting documents, as well as a list adequate and complete on August 28, however, in the case of unforeseen of the references cited in this document, 2019. The POA submitted a subsequent circumstances, those additional piles may be obtained online at: https:// revised application on October 15, 2019, may be necessary. Therefore, despite the www.fisheries.noaa.gov/permit/ which is available at https:// POA likely driving and removing 11 incidental-take-authorizations-under- www.fisheries.noaa.gov/permit/ fewer piles in Phase 1, we have marine-mammal-protection-act. In case incidental-take-authorizations-under- continued to evaluate the project based of problems accessing these documents, marine-mammal-protection-act. The on the original total number of piles. please call the contact listed above. POA’s request is for take of small numbers of six species of marine A significant change in POA’s project Background mammals, by Level B harassment. Four is the use of a confined bubble curtain The MMPA prohibits the ‘‘take’’ of of the species could also be taken by in Phase 1. This confined bubble curtain marine mammals, with certain Level A harassment. Neither the POA is expected to result in less noise exceptions. Sections 101(a)(5)(A) and nor NMFS expects serious injury or propagating into the marine (D) of the MMPA (16 U.S.C. 1361 et mortality to result from this activity; environment than an unconfined seq.) direct the Secretary of Commerce therefore, an IHA is appropriate. system. Despite the expected reduction (as delegated to NMFS) to allow, upon NMFS previously issued IHAs and of noise, we maintain the estimated request, the incidental, but not Letters of Authorization (LOAs) to the source levels used in the notice of intentional, taking of small numbers of POA for pile driving (73 FR 41318, July proposed IHAs, meaning that our marine mammals by U.S. citizens who 18, 2008; 74 FR 35136, July 20, 2009; analysis likely represents an engage in a specified activity (other than and 81 FR 15048; March 21, 2016). The overestimate of potential effects. We commercial fishing) within a specified POA complied with all the requirements have updated the pile details (Table 1) geographical region if certain findings (e.g., mitigation, monitoring, and and included a detailed description of are made and either regulations are reporting) of all previous incidental take the confined bubble curtain below.

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TABLE 1—PCT CONSTRUCTION PILE DETAILS AND ESTIMATED EFFORT REQUIRED FOR PILE INSTALLATION AND REMOVAL

Average Vibratory Estimated Production Pipe pile Structural Number Total embedded duration Impact strikes total rate piles Days of installation diameter feature of piles number depth per pile per pile number per day and removal of piles (feet) (minutes) of hours (range)

Phase 1

48-in ...... Loading Platform ...... 45 71 100 30 2,300 (50 restrikes 73 1.5 30. 10% each for 4 piles). (1–3) (7 piles): Access Trestle ...... 26 130 3,000 (50 restrikes 56 17. each for 3 piles). 36-in ...... Temporary Construc- 26 30 115 75 50 restrikes for 10 33 3 9 installation. tion Work Trestle. piles. (2–4) 9 removal. Temporary Derrick 4 40 75 NA...... 5 4 1 installation. Barge/Vessel Moor- 1 removal. ing. 24-in ...... Temporary Construc- 34 81 140 75 50 restrikes for 10 90 3 15 installation. tion Work Trestle. piles. (2–4) 15 removal. Temporary Construc- 38 105 75 NA...... 90 3 12 installation. tion Access Trestle (2–4) 12 removal. and Loading Plat- form Templates. Temporary mooring 9 50 30 NA...... 12 3 3 installation. for construction 3 removal. vessels.

Phase 1 Construction Totals ...... 182 piles ...... 359 ...... 127.

Phase 2

24-in ...... Temporary Dolphins 3 9 50 30 NA...... 3 3 1 installation. for mooring con- 1 removal. struction vessels. Temporary Dolphins 6 50 30 NA...... 9 3 2 installation. for mooring con- 2 removal. struction vessels, Battered. 36-in ...... Temporary Construc- 72 76 115 75 NA...... 180 3 24 installation. tion Dolphin Tem- (2–4) 24 removal. plate. Temporary Derrick 4 40 75 NA...... 5 4 1 installation. Barge. 1 removal. 144-in ...... Mooring Dolphin ...... 6 9 140 45 5,000 (1,500 first day, 21 0.5 13. 10% 3,500 second day). (1 pile) Breasting Dolphin ...... 3 135 11 (0.3 or 0.7) 6.

Phase 2 Construction Totals ...... 94 piles ...... 229 ...... 75.

PCT Construction Totals e ...... 276 piles ...... 588 ...... 202 days of installa- tion and removal.

The estimated source levels for each note the source level measured during note that the hydroacoustic monitoring pile type and installation method are installation of the 48-in piles was plan will commence as soon as pile provided in Table 2. These source levels actually less than that used here driving begins; therefore, any necessary are from the acoustic monitoring during (approximately 190 dB) and the POA is modifications to harassment isopleths the POA’s 2016 Test Pile Program (TPP) now confining the bubble curtain with will be made within the first weeks of (for 48-in piles) and investigation of a solid pile. However, as a conservative pile driving, when marine mammal existing literature related to studies at approach to our analysis, we are presence in the project area is low. other locations for non-48-in piles. We assuming higher source levels here. We

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TABLE 2—ESTIMATED PILE SOURCE LEVELS WITH AND WITHOUT BUBBLE CURTAINS

Method and pile size Sound level at 10 m

Unattenuated Bubble curtain 1 Data source Vibratory db rms 7 dB reduction, dB rms

144-in ...... 178 171 Caltrans 2015. 48-in ...... 168 161 Austin et al. 2016. 36-in ...... 166 159 Navy 2015. 24-in ...... 161 154 Navy 2015. Unattenuated Bubble curtain Impact dB rms dB SEL dB peak dB rms dB SEL dB peak

144-in ...... 209 198 220 202 191 213 Caltrans 2015. 48-in ...... 200 187 215 193 180 208 Austin et al. 2016. 36-in ...... 194 184 211 187 177 204 Navy 2015. 24-in ...... 193 181 210 186 174 203 Navy 2015. 1 In Phase 1, POA will drive all piles with a confined bubble curtain.

Bubble Curtain removed ‘‘in the dry,’’ (e.g., when piles configuration will embed the In Phase 1, the POA, at the request of are installed above the water line). The arrangement into the seafloor at an NMFS, has further improved their tides at the POA have a mean range of estimated shallow depth. The specific bubble curtain design to include a about 8.0 meters (26 feet)(NOAA 2019), depth of penetration from self-weight confined bubble curtain. If this system and low water levels will prevent varies depending on water depth, is proven successful through proper deployment and function of the substrate, weight of pile, tidal stage hydroacoustic monitoring, the POA and bubble curtain system. When the water resistance, and other physical factors NMFS will consult to determine if its is too shallow for deployment of a present, but the contractor has estimated use in Phase 2 is appropriate. The POA bubble curtain, the harassment zones for a minimum of a couple or few feet. has indicated this system may be used unattenuated impact pile installation There will be an arrangement of in Phase 2; however, at this time, NMFS will be monitored. spacers that center the piling within the For Phase 1, the POA will use a is limiting its required use to Phase 1. confinement casing. These spacers will confined bubble curtain on all piles. We For Phase 1 PCT construction, the likely be resilient materials such as note a confined system was briefly construction contractor has provided a rubber spacers or air filled cushions, as tested during the 2016 TPP project; detailed confined bubble curtain called out in the USFWS/NMFS Bubble however, the sleeve (or pile casing) used system, as discussed below. For Phase 2 Curtain Specifications, to prevent metal- during that test contained gaps that PCT construction, the construction to-metal contact between the likely contributed to less sound contractor is not scheduled to be confinement casing and the pile. The absorption. Here, the sleeve is a solid selected until approximately the third amount of self-weight penetration into steel pile; therefore, no gaps are present. quarter of 2020; therefore, a similar level sediment is somewhat variable but is of detail and specificity is not currently The bubble curtain air flows and annular space will conform to the expected to be several feet. The lowest available. NMFS will continue to work bubble ring will be within one to two with POA during 2020 and final bubble guidance outlined in the National Marine Fisheries Service and U.S. Fish feet of the seafloor. Figure 1 illustrates curtain requirements will be made prior this concentric arrangement. to work commencing in April 2021 and Wildlife Service, Washington Fish pending review of success in Phase 1. and Wildlife Office document dated Once the bubble curtain is However, at minimum, an unconfined October 31, 2006 titled ‘‘Impact Pile operational, the temporary pile will be bubble curtain is required on Driving Sound Attenuation driven with a combination of vibratory installation and removal of all plumb Specification’’ (USFWS 2006). and impact methods within the piles (i.e., all piles except for the six In Phase 1, all 24-in diameter confinement casing; after pile driving, battered piles) during Phase 2. temporary piles will have a 48-in the confinement casing will be lifted off During the PCT Project, an air bubble diameter confinement casing, and all of the temporary pile. For removal of the curtain noise attenuation system (bubble 36-in diameter temporary piling will temporary piling, the confinement curtain) will be used during installation have a 60-in diameter confinement casing, with installed bubble curtain, and removal of all plumb piles when casing. Multiple confinement casings will be re-deployed over the pile. The water depth is great enough with bubble curtain hardware will be temporary piles will be removed with a (approximately 3 m) to deploy the employed to the extent required if vibratory hammer while the bubble bubble curtain. If the six battered piles multiple pile driving is occurring curtain is operational. Once the (piles installed at an angle) are used in concurrently. Temporary piles and the temporary pile is extracted, both the Phase 2, a bubble curtain will not be confinement casing, with installed temporary pile and bubble curtain used due to the angle of installation. It bubble curtain hardware, will be lofted sleeve will be removed at the same time. may not be possible to use a bubble together with the piles in a concentric A vibratory hammer will not be required curtain on piles installed or removed in arrangement, and allowed to drop onto to remove the bubble curtain sleeve—it shallow water and piles installed or the seafloor. The weight of the will be directly pulled.

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The 48-in piles are much heavier and confinement casing) with a total the casing and allowed to self-weight longer than the 24- and 36-in piles; maximum time of less than four hours into the sea floor. The bubble curtain therefore, the method of lofting the 48- during Phase 1 (April through will be activated and then the in piles and concentric confinement November). This is a very short duration permanent pile will be driven using casing together is not feasible. The 48- of unattenuated vibratory sound in impact methods (or vibratory methods in piles in Phase 1 will be fitted with contrast to the estimated 129 hours of in cases of pile driving difficulties or a 72-in diameter confinement casing. impact driving using this noise obstructions as discussed elsewhere in The confinement casing with installed attenuation system, which is expected the work description). After driving to bubble curtain hardware will be lofted to be highly effective. Use of a vibratory depth, the confinement casing will be hammer is necessary in order to through a template to the sea floor and lifted off of the pile. This will not then will be driven to a nominal depth stabilize the pile using the sea floor require vibratory energy to remove of 10 feet using vibratory methods. embedment and the template, so that To install the casing piles when the confinement casing can be released because of the shallow embedment. driving the 48-in piles, a vibratory from the crane without endangering Figure 2 illustrates the arrangement for hammer may be used. However, this personnel or property. Once the installation of the permanent piles and would occur for a very limited amount confinement casing is in place, the confinement system. of time (one to three minutes per permanent pile will be lofted through

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A certain number of the 48-in piles During restrikes, the confinement casing Changes From Proposed to Final will require a short duration re-strike doesn’t need to be vibratory hammered pile driving event to prove pile axial in because the permanent pile will As described above, the POA has capacity (or the maximum load which provide a safe condition since the made some modifications to the work the pile can carry without failure or bubble curtain sleeve can be set onto the plan (e.g., confined bubble curtain and excessive settlement of the ground). rigidity of the permanently installed 48- all plumb piles for Phase 1); however, we have determined that our original This is planned for up to seven events. in pile. The sleeve will not need to be acoustic assessment, as described in the For these events the confinement casing free standing as in the case of initial notice of proposed IHAs remains an will be lowered over the permanent pile installation. accurate approach to estimate potential and allowed to self-weight into the sea Mitigation, monitoring, and reporting impacts to marine mammals and their floor sediments; the bubble curtain will measures are described in detail later in habitat, with the exception of impact be activated and then the pile re-struck this document (please see Mitigation driving 48-in piles, for which we have with the impact hammer. Once the axial and Monitoring and Reporting sections adjusted the Level B harassment zone capacity is determined, the confinement below). from 629 m to 824 m based on data casing will be lifted off of the pile. contained within Austin et al. (2016).

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This is a conservative approach as the (Commission) and the Center for porpoise) and which are taken by confined bubble curtain will likely Biological Diversity (CBD). A summary subsistence hunters (i.e., harbor seals, further reduce noise propagation of each comment and our full response Steller sea lions)—see Description of beyond that measured with the bubble is provided here. Full comments have Marine Mammals and Their Habitat curtains used during the TPP (Austin et been posted online at: https:// section in that notice. In addition to the al., 2016). We also note that this change www.fisheries.noaa.gov/national/ information in the Proposed Mitigation does not affect our take numbers marine-mammal-protection/incidental- section of the proposed notice because our estimate does not rely on take-authorizations-construction- (including background on how the size of the Level B harassment zones activities. Please see the comment letters mitigation for subsistence use is a for any species (see Estimated Take for full detail of the comments and consideration), we included an section). Finally, as described in the underlying justification. evaluation of how we reached our notice of proposed IHAs, hydroacoustic We note that the Defenders of Wildlife determination in the Unmitigable monitoring will commence at the onset (Defenders) submitted comments to Adverse Impact Analysis and of pile driving; therefore, any shutdown NMFS on February 21, 2020, Determination section. We have and monitoring zones may be adjusted approximately 3 weeks after the close of included additional information to more promptly after the initial interim report. the comment period. Although NMFS is clearly relate the information in the NMFS also corrected an error in the not obligated to consider comments Description of Marine Mammals and take table for humpback whales. The submitted following the close of the Their Habitat section with our text in the notice of proposed IHAs comment period, we reviewed the letter determinations in this final notice of indicated we were authorizing 5 for pertinent information. Defenders issuance; however, our findings remain humpback whale takes in Phase 2 (75 questioned our negligible impact and the same. Regarding time and space days x 1 whale every 16 days), but we small numbers findings; however, we overlap of subsistence hunts with the mistakenly indicated a total of six have addressed similar concerns in our activity, Cook Inlet subsistence humpback whales in the take table. The response to comments from the activities that may overlap with the take tables have been adjusted in both Commission and CBD. We have also POA activities were described in the this final notice and the Phase 2 IHA. updated the EA so that it accurately Description of Marine Mammals in the Finally, NMFS has clarified some of reflects our impact and take estimate Area of Specified Activities section of the mitigation measures in the final analysis described in the IHAs (e.g., the Federal Register notice of proposed IHAs, and the POA will now employ a consideration of group size in beluga IHAs (84 FR 72161, December 30, 2019) fourth monitoring station at Ship Creek whale take estimates) and provides a and we refer the reader to that to further ensure marine mammal more comprehensive cumulative impact information. detections. In addition, if POA is section. Overall, the Defenders letter The Commission also recommended conducting non-PCT-related in-water does not provide information that leads we include information about whether work that includes PSOs, the PCT PSOs us to change our analysis or findings local Native Alaskan communities that must be in real-time contact with those and we do not address the comments hunt marine mammals were contacted, PSOs, and both sets of PSOs must share individually here. any concerns were conveyed, whether a all information regarding marine Comment 1: The Commission Plan of Cooperation (POC) was being mammal sightings with each other. The recommends that, in the Federal developed and whether additional POA has also updated its hydroacoustic Register notice for POA’s authorization, mitigation measures are necessary. For monitoring plan to include more if issued, and all future Federal Register this project, on January 9, 2020, the specific goals relevant to the project notices involving the taking of species POA informed NMFS that they sent a (e.g., removed bubble curtain that also are hunted for subsistence letter to 14 tribes informing them of the effectiveness tests and refined locations purposes, NMFS (1) include the public comment period on the proposed of hydrophones and sampling methods), standard verbiage regarding the IHAs. No tribal comments were and NMFS is requiring all in-water work definitions of unmitigable adverse received. No POC was necessary or occurring in the area during PCT impact under NMFS’s implementing developed for this action. hydroacoustic monitoring (e.g., regulations; (2) specify whether the Comment 2: The Commission dredging, other in-water work at the proposed activities overlap in time and provided the following comments POA, vessel transit) to be documented space with known hunting activities, related to the issuance of incidental take (e.g., type of activity, location relative to whether the local Native Alaskan authorizations in Cook Inlet where take recordings, date/time) and reported in communities that hunt marine of beluga whales is proposed for the acoustic monitoring report. mammals were contacted, whether any authorization. These are (1) NMFS defer concerns were conveyed, whether issuance of the final incidental Comments and Responses additional mitigation measures are harassment authorizations to POA or A notice of NMFS’ proposal to issue necessary, and whether a Plan of any other applicant proposing to two successive IHAs to POA was Cooperation (POC) is being or was conduct sound-producing activities in published in the Federal Register on developed; and (3) if a POC is necessary, Cook Inlet until NMFS has a reasonable December 30, 2019 (84 FR 72154). That ensure that it contains all of the relevant basis for determining that authorizing notice described, in detail, POA’s information. any additional incidental harassment proposed activity, the marine mammal Response: NMFS has included the takes of Cook Inlet beluga whales would species that may be affected by the standard definition of unmitigable not contribute to or exacerbate the activity, the anticipated effects on adverse impact, as suggested by the stock’s decline; (2) NMFS defer issuance marine mammals and their habitat, Commission. The information regarding of POA’s final incidental harassment proposed amount and manner of take, subsistence use for each affected species authorizations until all activities for and proposed mitigation, monitoring was contained within the notice of which incidental take authorizations or and reporting measures. During the 30- proposed IHAs, specifically noting regulations have been or are expected to day public comment period, NMFS which species are not hunted (i.e., Cook be issued are considered with respect to received comment letters from the Inlet beluga whale (CIBW), humpback their anticipated, cumulative take of Marine Mammal Commission whales, killer whales, and harbor Cook Inlet beluga whales, as part of a

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PEIS; and (3) Given the number of behavioral modifications to occur, these accordance with 1997 Council on sound-producing activities expected to will likely be limited to increased travel Environmental Quality (CEQ) guidance. occur in Cook Inlet and the potential speeds, reduced vocalizations, and Per the guidance, a qualitative approach impact of such activities on beluga potentially traveling in more cohesive and best professional judgment are whales, the Commission also reiterates groups (Kendell and Cornick, 2016). appropriate where precise its recommendation that NMFS However, we anticipate behavior will measurements are not available. Where establish annual limits on the total return to normal after the whales move precise measurements and/or number and types of takes that are past the POA (e.g., when they reach methodologies were available they were authorized for all sound-producing productive foraging grounds north of the used. Therefore, NMFS has analyzed the activities in Cook Inlet before issuing POA) as these areas would not be cumulative effects of the action on the final authorizations. ensonified by pile driving noise. There CIBWs (as recommended by the Response: In accordance with our is no evidence beluga whales have Commission) which supports a Finding implementing regulations at 50 CFR abandoned foraging in Knik Arm due to of No Significant Impact (FONSI). 216.104(c), we use the best available pile driving noise or exposure to pile Therefore, an EIS is not required. scientific evidence to determine driving noise has resulted in more than We do recognize, however, that NMFS whether the taking by the specified a negligible impact to the CIBW previously declared its intent to prepare activity within the specified geographic population. In light of the mitigation an EIS to address MMPA Incidental region will have a negligible impact on and monitoring measures and scientific Take Authorizations (ITAs) for oil and the species or stock and will not have data to date, we anticipate the impacts gas activities in Cook Inlet, Alaska (79 an unmitigable adverse impact on the of any harassment to CIBWs will be FR 61616; October 14, 2014). However, availability of such species or stock for limited to short-term, mild to moderate in a 2017 Federal Register notice (82 FR subsistence uses. Based on the scientific behavioral changes and will not affect 41939; September 5, 2017), NMFS evidence available, NMFS determined the fitness of any individuals. Therefore, indicated that due to a reduced number that the impacts of the authorized take NMFS has a reasonable basis for of ITA requests in the region, combined incidental to pile driving would result determining that authorizing take with funding constraints at that time, in a negligible impact and no incidental to the PCT project will not we were postponing any potential unmitigable adverse impact on contribute to or exacerbate the stock’s preparation of an EIS for oil and gas availability of marine mammals for decline. Additionally, the ESA activities in Cook Inlet. As stated in the subsistence uses. Moreover, NMFS has Biological Opinion determined that the 2017 Federal Register notice, should the required rigorous mitigation and issuance of the IHAs is not likely to number of ITA requests (for any type of monitoring measures in the IHAs to jeopardize the continued existence of activities), or anticipated requests, reduce impacts to CIBWs, including use the CIBWs or destroy or adversely notably increase, NMFS will re-evaluate of a bubble curtain, shutdown at the modify CIBW critical habitat. whether preparation of an EIS is Level B harassment zone if pile driving necessary. Currently, the number of ITA is occurring, and establishing a pre-pile The cumulative effects of the requests for activities that may affect driving clearance zone (i.e., the area incremental impact of the proposed marine mammals in Cook Inlet is at must be clear before pile driving action when added to other past, such a level that preparation of an EIS commences) that essentially present, and reasonably foreseeable is not necessary. Nonetheless, as encompasses all of lower Knik Arm and future actions (as well as the effects of described above, under NEPA, NMFS is beyond into upper Cook Inlet. These climate change) were evaluated against required to consider cumulative effects noise attenuation devices and CIBW the appropriate resources and regulatory of other potential activities in the same shutdown measures are more restrictive baselines in our final Environmental geographic area, and these are discussed than the standard shutdown measures Assessment (EA) for the issuance of the in greater detail in the Final EA typically applied. These measures are IHAs to the POA (available at https:// prepared for this issuance of two expected to reduce both the scope and www.fisheries.noaa.gov/national/ successive IHAs to POA for the PCT severity of potential harassment takes by marine-mammal-protection/incidental- project, which supports our finding that transmitting less noise into the marine take-authorizations-construction- NMFS’ issuance of the POA IHAs will environment and reducing the potential activities). The best available science not have a significant impact on the for exposure above harassment and a comprehensive review of past, human environment. thresholds. In addition to the mitigation present, and reasonably foreseeable With respect to capping the number of measures, the POA will monitor from actions (including other noise- takes authorized across all activities, the elevated platforms at four locations generating activities such as other MMPA states that, upon request, NMFS dispersed throughout lower Knik Arm. construction projects and oil and gas shall authorize, for periods of not more All stations will have at least two exploration in Cook Inlet) was used to than one year, the incidental taking by NMFS-approved observers on-watch at develop the Cumulative Impacts harassment of small numbers of marine any given time. Therefore, marine analysis. This analysis is contained in mammals if NMFS finds that such mammal detection effectiveness is Chapter 4 of the aforementioned EA. As harassment during each period expected to be high. required under NEPA, the level and concerned will have a negligible impact Further, as described in the Federal scope of the analysis is commensurate on such species or stocks and will not Register notice of proposed IHAs (84 FR with the scope of potential impacts of have an unmitigable adverse impact on 72154, December 30, 2019), data from the action and the extent and character the availability of such species or stocks several years of scientific monitoring at of the potentially impacted resources, as for taking for subsistence uses. Section the POA during previous work reflected in the resource-specific 101(a)(5)(A) of the MMPA addresses the involving pile driving (occurring April discussions in Chapter 3 (Affected analysis and authorization of take from through November) demonstrate there is Environment) of the EA. Past and a ‘‘specified activity’’ and, therefore, no significant difference in beluga present actions are also included in the setting limits on the number and types whale sightings during and in absence analytical process as part of the affected of CIBW takes across all activities in of pile driving (Kendell and Cornick, environmental baseline conditions Cook Inlet would not be an appropriate 2016). While we do anticipate some presented in Chapter 3 of the EA, in requirement of an MMPA incidental

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take authorization. Further, NMFS here Tables 12 and 13, respectively, of piles to 824 m during impact pile has factored into its negligible impact Austin et al. (2016), (2) re-estimate the driving. analyses the impacts of other past and Level A harassment zones during For vibratory driving and removal, we ongoing anthropogenic activities via attenuated impact installation of 48-in have determined that adjustments at their impacts on the baseline (e.g., as piles based on the attenuated source this stage are not necessary. Blackwell reflected in the density/distribution and level of 190 dB re 1 mPa at 10 m and (2005) reported a drop-off rate of 22 dB status of the species, population size 15 log R and during attenuated vibratory to 29 dB per doubling of distance for and growth rate, and relevant stressors installation of 48-in piles based on the vibratory pile driving. URS (2007) (such as incidental mortality in attenuated source level of 159.5 dB re 1 applied a 25 dB drop-off to vibratory commercial fisheries, UMEs, and mPa at 10 m and 14.67 log R, and (3) re- sheet pile driving at the POA for a subsistence hunting)). See the Negligible estimate the Level A and B harassment distance to the 120dB isopleth of 800 m. Impact Analyses and Determinations zones during attenuated impact and The source levels for driving 24-in and section of this notice of issuance. vibratory impact installation of 24-, 36-in piles are estimated to be similar as Separately, setting blanket take limits 36-, and 144-in piles based on the those measured during sheet pile may not be meaningful, as the nature unattenuated source levels in Table 2 driving (154–171 dB for the PCT vs 168 and intensity of impacts from a given and 6 of the Federal Register notice, if dB during sheet pile driving). While we activity can vary widely. For example, it intends to use the unattenuated have applied a 122.2 dB Level B an animal exposed to noise levels just harassment threshold, our estimated above our harassment threshold in a propagation loss factors presented in the notice. distances using the approach in the non-critical area may experience a small notice of proposed IHAs exceeds those behavioral change with no biological Response: Austin et al. (2016, Table estimated during sheet pile installation. consequence while an animal exposed 12) provided estimated median ranges The Level B harassment isopleths to very loud noise levels (but lower than to the 160 dB rms isopleth during estimated for vibratory driving 24 to 48- levels that would result in PTS) in an installation of 48-in piles using a bubble in piles with similar source levels as the area where active critical foraging curtain by applying best-fit transmission sheet pile project far exceed 800 m occurs could result in behavioral loss (TL) coefficients. It is important to (846–2,247m). The distance to Level B changes that may be more likely to note these distances were modeled from harassment isopleth for vibratory impact fitness. While both of these data collected at 10 m and 1,000 m and driving 144-in piles is over 9 kms. No examples would be characterized as were not measured at exactly those changes are necessary for 144-in piles Level B harassment, the resulting locations. The estimated median since not only will there be minimal use impact on the population could be distances to the 160 dB isopleth (which of the vibratory hammer (one pile), in different. Context differences such as NMFS uses as a Level B harassment situ acoustic data from Phase 1 will be these are analyzed in our negligible threshold for impact pile driving) for used to estimate transmission loss rates, impact analysis for each application four piles ranged from 578 m to 1100 m assisting in the verification of analysis under the MMPA. for an average median distance of 824 for Phase 2. Therefore, we find no As described above, this does not m. The notice of proposed IHAs used an mean the cumulative impacts of other adjustments the Level B harassment approach that estimated the distance to zone during vibratory driving are actions are not considered, as we have the 160 dB isopleth at 629 m as a result captured past and current actions in our necessary at this time. of applying unattenuated source levels For similar reasons, it is also not baseline under the MMPA and all past, with an assumed effective attenuation of present and reasonably foreseeable necessary to recalculate Level A 7 dB due to use of an unconfined bubble future actions under NEPA. Finally, the harassment zones. The Commission is curtain. Since issuance of the notice of reasonably foreseeable cumulative correct that the median source level for proposed IHAs, the POA is now going effects to ESA-listed species, including impact hammer is 190 dB; however, this to deploy a confined bubble curtain (as CIBWs, from other activities are is a sound pressure level (SPL) of 190 described above) on all piles in water considered in the analyses conducted in dB rms (Table 16 in Austin et al. 2016). the biological opinion per the ESA. The depths suitable for a bubble curtain in For Level A harassment calculations we biological opinion, issued March 23, Phase 1 which is expected to further apply sound exposure levels (SEL) 2020 found NMFS’ issuance of the IHAs increase sound attenuation. The casing values. In our analysis, the estimated to POA would not jeopardize the sleeve pile is a solid steel pile with sound pressure level (SPL) is 193 dB continued existence of CIBWs or destroy interior cushions or air pockets. This rms and 180 dB SEL. To be or adversely modify their critical sleeve surrounds the bubble curtain and conservative, we maintain the higher habitat. For these reasons, we have not will be embedded in sediment several source level than that recommended by implemented the Commission’s feet. This design is anticipated to further the Commission. Again, during Phase 1, recommendation to cap the number of reduce both water and sediment-born the bubble curtain will be encased by a authorized takes of CIBWs across all sound propagation into the marine casing pile, further attenuating noise. activities for which take is requested. environment. Despite use of this system, The acoustic monitoring plan is Comment 3: The Commission we agree with the Commission that designed to measure both source levels recommends that, until such time that using the bubble curtain pile data is (near-field) and far field received levels; POA conducts hydroacoustic more appropriate to estimate the initial therefore, zones can be adjusted monitoring to confirm the extents of the distances to harassment isopleths accordingly. Finally, the Level A zones Level A and B harassment zones, NMFS (which will then be verified in situ). represent the distance at which an (1) use 1,174 m rather than 629 m for However, in lieu of the Commission’s animal would have to remain during the the Level B harassment zone during recommended approach of using a duration of driving or removing the attenuated impact pile driving of 48-in practical spreading loss model to a number of piles considered in the piles and 3,502 rather than 2,247 m lower source level, we have relied on analysis. This is already a conservative during attenuated vibratory pile driving the data directly presented in Austin et approach and for the reasons listed of 48-in piles based on the extents of the al. (2016) and have therefore adjusted above, there is no need to adjust Level Level B harassment zones presented in the Level B harassment zone for 48-in A harassment zones.

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More important than estimating Again, the POA will conduct Comment 5: The Commission harassment zones is the fact that these hydroacoustic monitoring at the onset of recommends that in the Federal zones (which, for CIBWs, equate to pile driving during both Phase 1 and Register notice for POA’s shutdown zones) may very well be Phase 2 and Level A harassment and authorizations, if issued, and the final adjusted at the onset of pile driving Level B harassment isopleths will be authorizations, NMFS: (1) (a) Fix select once the initial interim acoustic refined with in situ data. Finally, any issues regarding inconsistencies and monitoring report is reviewed by NMFS. adjustments to the harassment zones do errors in Tables 1–2, 2, 6, 7, and 8 of the Again, harassment zones do not not change any take numbers for any Federal Register notice for unattenuated influence take numbers for any marine marine mammal species as take and attenuated vibratory installation of mammal species; therefore, the number estimates are not based on the size of 24-in piles, unattenuated impact of takes estimated or authorized would the harassment zones (e.g., CIBW takes installation of 24-in piles, and not change. There are multiple ways to are based on sighting rates (whale per attenuated vibratory installation of 48-in model noise levels (as demonstrated by hour) throughout Knik Arm and other piles, and (b) ensure that all of the Level the various approaches from the POA, species take estimates are based on A and B harassment zones, along with the Commission, and NMFS’ approach) presence/absence regardless of zone the shut-down and monitoring zones, with no single method necessarily being size). are correct based on all the various more accurate than others, especially Comment 4: The Commission assumptions; and (2) use 209.5 rather given the complex acoustic environment recommends that NMFS refrain from than 202 dB re 1 mPa at 10 m as the in Knik Arm. While data to date using the 7–dB source level reduction in assumed source level for attenuated demonstrate our acoustic analysis these authorizations and all future impact installation of 144-in piles and provides an adequate and realistic proposed incidental take authorizations, increase the Level B harassment zone estimate, a major goal in the and recommends that NMFS consult from 1,945 to 4,984 m. Response: NMFS has clarified Table 7 hydroacoustic monitoring plan is to with the relevant experts regarding the to reflect Table 1–2. Despite multiple refine these zones as soon as possible appropriate source level reduction hammers working at once, no more than with real data. The Commission agrees factor to use to minimize far-field effects the number of piles represented in Table with us on this when they state on marine mammals for all relevant incidental take authorizations and, until 7 would be installed on any given day. elsewhere in their letter that the extents The maximum amount of piles installed of the larger Level A harassment zones the experts have been consulted, refrain from using a source level reduction on any given day is four. We have also and the Level B harassment zones are updated the amount of time of vibratory best measured in-situ. As was described factor when bubble curtains are to be implemented. driving per pile to reflect the maximum in the notice of proposed IHAs, POA amount of time estimated by the POA Response: The use of a confined will begin conducting acoustic (i.e., 75 minutes instead of the 100 bubble curtain provides further monitoring at the onset of pile driving minutes in the notice of proposed (in April when beluga whale presence is justification for use of the 7dB reduction IHAs). We note that these minor scarce) and will provide an interim to source levels as proposed in the changes are insignificant in that all report to NMFS within 10 days for 24 notice of proposed IHAs. Not only will vibratory driving results in very small to 48-in piles and 72 hours for 144-in the bubbles be confined but the pile will harassment zones for all hearing groups piles. The hydroacoustic monitoring be set several feet into the substrate. In and all are less than the 100 m plan made available for public comment its comments, the Commission asserted shutdown requirement. in association with the notice of that the bubble curtain deployed during NMFS notes the other items that the proposed IHAs indicated that the 2016 TPP project was not effective. Commission asserts to be errors or measurements would be taken at However, the bubble curtain resulted in inconsistencies are actually correct and various distances representing both reduced source levels during testing of no adjustments are necessary. The near-field source levels and far-field the TPP (see Table 12 in Austin et al. Commission noted differences between received levels. These far-field distances 2016). For example, the POA measured Tables 1–2 and 7 for the amount of 48- ranged from 300m–1 km (where the source levels during installation of 48- in piles driven by a vibratory hammer majority of impact pile driving in piles that were unattenuated and in one day (one pile versus the 1–3 piles harassment isopleths have been were installed with bubble curtains; for impact hammering) and claims we estimated) and 3km+. Therefore, source levels were consistently equal to have thus underestimated noise levels. distances to the Level B harassment or greater than 7–dB less when bubble However, the Commission mistakenly isopleth will indeed be identified. curtains were applied with the assumed equal distribution between Therefore, while we appreciate the exception of one pile where the bubble impact and vibratory pile driving 48-in Commission’s recommendations, at this curtain was turned on and off (versus piles. As noted in the POA’s application time we find our acoustic analysis is comparing piles with and without and NMFS’ notice of proposed IHAs, the appropriate with the exception of slight bubble curtains). POA anticipates using the vibratory adjustments to the 48-in pile Level B Overall, the Commission has made hammer sparingly during installation of harassment zone. NMFS will adjust all this comment on previous IHAs and permanent piles. That is, the one to Level A harassment and Level B NMFS has responded accordingly. For three 48-in piles per day installed with harassment isopleths, if appropriate, example, we refer the reader to our an impact hammer reflected in Table 1– based on the new, more relevant previous, more general response in our 2 and one pile per day for vibratory hydroacoustic data collected as POA notice of issuance of a previous IHA (84 installation in Table 7 are both correct. installs piles with a confined bubble FR 64483, November 29, 2019). Finally, Hence, the resulting Level A harassment curtain. For Phase 2, it is still currently as described above, in situ isopleths (Table 8) are also correct. In unknown if a confined or unconfined measurements will be taken upon the addition, all 24-in piles except six in bubble curtain will be used. Because our onset of pile driving and harassment Phase 2 will be driven using the bubble analysis reflects previously collected zones will be adjusted accordingly. At curtain. data, we do not find any adjustments to this time, the existing data support the As for the assumed source level and Phase 2 zones are necessary at this time. accuracy of our analysis. estimated Level B harassment distance

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for impact driving 144-in piles, NMFS’ activities from Table 6–2 in POA’s Comment 8: The Commission original analysis is accurate. The application, and an assumed maximum recommends that NMFS increase the Commission suggests we should use an take rate of 59 percent based on Table numbers of total harbor seal takes from unattenuated source level to estimate 10 of the notice of proposed IHAs. If the 1,016 to at least 1,566 takes during distance to the Level B harassment zone. number of revised beluga whale takes Phase 1 and from 600 to at least 999 However, the 144-in piles would be during either Phase 1 or 2 exceeds takes during Phase 2, if NMFS does not installed using a bubble curtain and, NMFS’s assumed one third of the revise the extent of the Level B therefore, we disagree with the population estimate (83 FR 63376), the harassment zone for vibratory Commission that the unattenuated Commission recommends that NMFS installation of 144-in piles based on the source level is appropriate. Regarding deny the authorization(s) outright. Commission’s recommendation, or to at what the starting source level should be, Response: NMFS provided its least 1,863 seals if it does. They then we find the Commission’s concern rationale in the notice of proposed IHAs recommended NMFS reduce the total regarding a 0.5 dB difference in source for why the Goetz et al. (2012) data was Level B harassment takes in Phase 1 and level is non-substantive when not applied to estimate CIBW take, and 2 by 30 percent to account for Level A considering source variability and that rationale remains appropriate. We harassment takes. model regressions. Further, the first do not agree our method underestimates Response: First, we note the POA installation of a 144-in pile will be take and are confident it more allows for the installation of only one of accompanied by acoustic monitoring in accurately reflects expected take than the nine 144-in piles by vibratory pile both the near and far-field. An interim the Commission’s approach. The driving; therefore, this activity is report will be sent to NMFS within 72 Commission asserts NMFS used extremely limited in time. NMFS agrees hours and zones will be adjusted sightings rates that have no spatial with the Commission that the maximum accordingly, if warranted. Again, we dimension and are not applicable for number of harbor seals on any given day note the amount of take and pre-pile species that routinely occur in the observed during the TPP was 9 seals. driving clearance zones are unaffected project area and for activities with larger The Commission assumes equal by any changes recommended by the ensonified areas than were observed abundance at greater distances and Commission. during POA’s 2016 monitoring efforts. suggests we double that number when NMFS acknowledges a typographical We strongly disagree. The sighting rate vibratory pile driving Level B error in Table 7 that indicates the source of CIBWs is derived from scientific harassment zones extend beyond 2km levels for 48-in piles is 171 dB rms monitoring spanning several years (since all harbor seal sightings were when it should reflect 161 dB rms, as within 2kms, likely due to sightability). correctly indicated elsewhere in the (Kendell and Cornick 2015). The data We believe the Commission’s approach notice of proposed IHAs (and as set covers all months the POA would be is overly conservative as it uses provided in the POA’s application and conducting pile driving over several maximum abundance throughout the Austin et al. 2016). We have also years and is based on all animals construction season despite data corrected Table 6 and 7 to reflect that observed during scientific monitoring indicating no harbor seals were only up to 4 24-in piles could be driven regardless of distance (the authors did observed from August through on any given day. We note these not report sighting distances but were November 2005–2007. More differences result in minor differences equipped with 7 x 50 binoculars and importantly, it does not consider that in Level A harassment zones and the theodolites). Therefore, the take over 8 years of data spanning April 100 m shutdown zone remains calculation inherently assumes any appropriate. CIBW within lower Knik Arm could be through November, a maximum of 57 Comment 6: The Commission taken during pile driving. This will not total harbor seals (range 0–57) were recommends that NMFS continue to be the case, given the impact pile observed in any given year and that both make the 24-hour Level A harassment driving harassment zones are much scientific and construction monitoring approach a priority to resolve in the smaller than the width of Knik Arm. As typically covered the entire construction near future and consider incorporating described previously and in our notice season. For example, in 2009, animat modeling into its user of proposed IHAs, harassment areas are construction monitoring efforts spanned spreadsheet. not used to estimate take for any marine 209 days from March through December Response: NMFS has previously mammal species for this project. More and over 3,322 hours. During that time, informed the Commission of its efforts importantly, the Commission fails to only 34 harbor seals were observed. to develop a method for more accurately recognize the mitigation measures Therefore, the Commission’s suggestion assessing the potential for Level A prescribed by NMFS are more stringent that 1,016 harbor seal takes in Phase 1 harassment from acoustic sources such than those in any previous incidental and 600 harbor seal takes in Phase 2 is as pile driving. NMFS is continuing that take authorization issued to the POA not adequate is not justified by the years effort. and are designed to avoid all take of of previous monitoring data. For these Comment 7: The Commission agrees CIBWs. However, we have authorized reasons, we maintain our original harbor that NMFS’s assumption to reduce the some take as a precaution. The amount seal take estimates and have authorized number of takes based on the maximum of take authorized in each IHA is no those takes. percentage of beluga whales previously more than 20 percent of the population. Comment 9: The Commission taken at the POA is justifiable, but In summary, the Commission does not recommends that NMFS re-estimate the questions the underlying take estimates. provide sufficient reason why using a numbers of Level A and B harassment The Commission recommends that single density estimate from June aerial takes for harbor porpoises and NMFS revise its take estimates based on surveys is more accurate than using humpback whales based on 50 percent the maximum density estimate in the several years of scientific monitoring of the takes being Level A harassment, project area of 0.236 whales/km2 from data, spanning all months in which the which would result in 32 Level A Goetz et al. (2012), the revised POA would be working, and which harassment and 32 Level B harassment ensonified areas based on the considers all whales observed. We have takes of harbor porpoises and 4 Level A Commission’s recommendations herein, maintained both our CIBW take method harassment and 4 Level B harassment the numbers of days of the various and take amount in the final IHAs. takes of humpback whales.

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Response: Similar to the harbor seal First, we note, as described above, the harassment zones in both final take recommendation, the Commission bubble curtain will not be turned on and authorizations. fails to consider observation data and off; therefore, those comments do not Response: NMFS concurs and has also does not consider context around apply. We address the other adopted the recommendations. the outputs of the user spreadsheet. recommendations in order: (1) The Comment 12: The Commission Humpback whales and harbor porpoise clearance time is 30 minutes; (2) NMFS recommends that NMFS include in the are rarely observed in upper Cook Inlet has delineated both inbound and final authorizations a requirement that and are not expected to remain for any outbound clearance zones (see Figure 1 POA provide the Level A and B meaningful duration. Therefore, we in the IHAs) and included the harassment zones measured in-situ for maintain that the estimates of Level A Commission’s recommended language each pile size rather than just the source harassment and Level B harassment that activities cannot commence until levels and if the Level A or B takes in our notice of the proposed IHAs the whale has moved at least 100 m harassment zones exceed those included are accurate representations of the likely beyond the Level B harassment zone in the final authorization, either (1) potential occurrences of Level A and is moving away from the zone; (3) increase the Level A and B harassment harassment and Level B harassment. the confined and unconfined bubble zones accordingly or (2) require POA to Comment 10: The Commission curtain measures, which are included in implement an additional sound recommends that in the Federal in the IHAs, reflect those previously attenuation device and verify that the Register notice for POA’s established by the USFWS and NMFS; resulting Level A and B harassment authorizations, if issued, and the final (4) as described in POA’s application zones are equal to or less than those authorizations, NMFS: (1) Specify a and notice of proposed IHAs, the IHAs included in the final authorization. clearance time of 30 rather than 15 now specifically include the measure Response: The hydroacoustic minutes for beluga whales; (2) specify that pile driving may only be conducted monitoring plan is designed to more that delay procedures must be during daylight hours; (5 and 6) the accurately verify harassment zones. We implemented if a beluga whale is hydroacoustic monitoring plan have included a requirement in the IHAs to report estimated harassment observed (a)(i) within 1 km of the mouth identifies the number of piles to be zones based on acoustic measurements. of Knik Arm to the south and Green monitored while the IHAs contain Condition 4(f) of the draft IHAs Lake Creek to the north during all specific reporting requirements indicated NMFS may adjust the zones activities except vibratory installation including strikes per pile, pulse accordingly. While the Commission’s and removal of 144-in piles and (ii) duration, and spectra; (7) the comment only addressed whether the within 2 km of the mouth of Knik Arm requirements to report extrapolated zones are larger than expected, it is also to the south and Mule Creek to the north takes was contained within the possible that the zones will in fact be during vibratory installation and proposed IHAs and NMFS has added smaller, especially in light of the removal of 144-in piles and (b) activities the requirement that POA must submit cannot commence until the whale has application of a confined bubble data sheets; and (8) because pile driving curtain. In the unlikely case the zones moved at least 100 m beyond the Level cannot be conducted if the Level B B harassment zone and is transiting are larger than estimated, NMFS will harassment zone is not visible, then the not require additional noise attenuation, away from the zone; (3) include the need to extrapolate takes is not measures for bubble curtain but instead will adjust shutdown and applicable to Phase 1. In Phase 2, monitoring zones accordingly. performance standards; (4) include the vibratory driving of 144-in piles would requirement that pile driving and Comment 13: The Commission only occur if impact driving is not removal can occur only during daylight recommends that NMFS ensure that successful (which is conservatively hours; (5) specify the number of each POA (1) is aware that the number of estimated for one of the nine piles). In pile size and installation method that piles of each pile size that are to be such case, the POA would extrapolate would be monitored acoustically; (6) monitored must actually be driven to takes of marine mammals for the portion include the requirement that POA must depth and sound levels associated with of Level B harassment zone that is not include in the draft and final piles installed at a level of refusal are able to be observed. The requirement for hydroacoustic monitoring reports the (a) not appropriate and do not count reporting to NMFS when 80 percent of substrate type(s), (b) number of strikes toward the numbers of piles to be CIBW take was reached was contained per pile or strikes per day and pulse monitored and (2) conducts durations associated with impact pile within the notice of proposed IHAs and measurements during the installation of driving, (c) spectra for all pile sizes, the draft IHAs and we maintain that the entire pile rather than just a portion installation methods, and with and measure for the final IHAs. The of the installation (e.g., 5 of 60 minutes). without the bubble curtain, and (d) Commission suggested this should be Response: The POA has submitted an amount of time the bubble curtain was applied to all marine mammals, without updated hydroacoustic monitoring plan turned on and off; (7) include the providing justification. The only other based on both comments from the requirements for POA to extrapolate marine mammal species with some public and NMFS’ acoustic experts. Level A and B harassment takes to the reasonable level of occurrence is the Nowhere in the POA’s original plan did unobserved portions of the Level A and harbor seal. NMFS has conservatively it indicate noise levels only associated B harassment zones and to include the authorized take for this species that is with the level of refusal would be used raw PSO sightings datasheets in the 10 to 17 times the amount of take or that measurements would only be draft and final marine mammal expected based on previous monitoring made for 5 of 60 minutes. Regardless, monitoring reports; and (8) require POA data. NMFS does not adopt the the POA has clarified in its updated to alert NMFS when the total number of recommendation to require the POA plan that measurements will be made takes, including observed and report to NMFS when takes are 80 during the entirety of pile driving any extrapolated takes, for any species percent of all marine mammals. given pile. reaches 80 percent of those authorized Comment 11: The Commission Comment 14: The Commission per year. recommends that NMFS remove commented that if POA intends to Response: NMFS has reviewed the measure 4(g) from the 2020 final determine the effectiveness of the Commission’s specific suggestions. authorization and include the Level A bubble curtain (or other sound

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attenuation device), the Commission renewal and, (2) if NMFS refuses to made on the authorizations separately, recommends that NMFS advise POA to stipulate a renewal being a one-time let alone combined. We disagree with (1) conduct measurements during opportunity, justify why it will not do the former as we have fully explained vibratory installation of two 24- and two so in its Federal Register notices, on its our rationale for making both the 36-in piles and impact installation of web page, and in all draft and final negligible impact and small numbers two 48-in piles and two 144-in piles authorizations. findings for each IHA. We have with and without the bubble curtain, (2) Response: NMFS does not agree with prescribed mitigation and monitoring alternate whether the bubble curtain is the Commission and, therefore, does not measures that are the most restrictive of on or off when pile driving begins for adopt the Commission’s any pile driving IHA issued, as required each pile size, if POA still plans to turn recommendation. NMFS will provide a in this case to meet the MMPA’s least the bubble curtain on and off for the detailed explanation to the Commission practicable adverse impact standard. We same pile, and (3) ensure that the of its decision within 120 days, as have both reduced the amount of noise bubbles are dissipated fully before required by section 202(d) of the entering the marine environment (i.e., making measurements with the bubble MMPA. requiring the POA to use a confined curtain turned off. Comment 16: The Commission bubble curtain) and reduced the risk of Response: The purpose of testing recommends that NMFS either make its CIBWs being exposed to any noise that effectiveness of a bubble curtain would determinations regarding negligible may cause harassment (again, the takes be to determine how much noise impact, small numbers, and unmitigable authorized are provided for reduction the bubble curtain is adverse impact on subsistence use based circumstances where a whale enters the achieving. Data such as these can help on the total number and type of taking harassment zone before pile driving can inform future management actions. for each species or stock for both be shut down). With respect to However, NMFS believes that testing authorizations combined or delay the implementation of the MMPA, the the effectiveness of the bubble curtain Phase 2 activities until 2022 if a renewal Commission makes an accusation that by either turning it on or off or installing authorization is issued for the Phase 1 our process of issuing two successive piles without a bubble curtain is not activities. IHAs is a ‘‘a way to subvert the Response: The MMPA is clear that warranted and would result in authorization process under 101(a)(5)(D) NMFS shall authorize, for periods of not unnecessarily high noise levels, further of the MMPA and authorize the taking more than 1 year, the incidental taking, disturbing marine mammals. We note under two separate authorizations that by harassment, of small numbers of that during Phase 1, the bubble curtain could not be issued under a single marine mammals if we find that such would be confined and NMFS is also authorization.’’ This is an incorrect harassment during that period not requiring the POA to test the assessment of NMFS’ motives for using concerned will have a negligible impact effectiveness of this design. The POA this approach. will; however, conduct both sound on such species or stock and will not source verification measurements have an unmitigable adverse impact on The MMPA clearly states an IHA may (approximately 10 m from the pile) and the availability of such species or stock, not exceed one year. The issuance of far-field acoustic measurements to and the authorization for such activity successive IHAs allows us to evaluate determine what the actual noise levels shall prescribe certain methods and the project in its entirety and ensure generated from the activity will be. The measures. approaches to marine mammal acoustic monitoring data will verify if The POA has indicated to NMFS it is conservation (e.g., mitigation and the actual source levels and received confident that all Phase 1 work will be monitoring measures) are consistent levels are within the bounds estimated completed in 2020. If the POA requests across years, while also allowing for in our analysis. Therefore, we find the a renewal, NMFS will consider all some administrative streamlining, Commission’s experimental design of relevant criteria and data collected which provides efficient processing of installing piles with and without bubble during 2020 to assess if the renewal is IHAs, allowing resources to be focused curtains is not warranted and could appropriate. We may also modify, on marine mammal conservation and result in greater impacts to marine suspend, or withdraw any IHA if the protection. Should any information be mammals. holder fails to abide by the conditions identified in Phase 1 that suggests our Comment 15: The Commission prescribed in the IHA, or if NMFS analysis should be updated, we have recommends that NMFS refrain from determines the authorized taking is both the authority and responsibility to issuing renewals for any authorization having more than a negligible impact on ensure the required findings continue to and instead use its abbreviated Federal the species or stock of affected marine be met or, as described in condition 7 Register notice process. The mammals (see condition 7 of the IHAs). of the IHAs, we may modify, revoke, or Commission recommends that NMFS In any case, should the POA request a suspend the IHAs. We do note; ensure that the current renewal terms renewal of the Phase 1 IHA (again, they however, that even if we did consider and conditions are included in section have indicated this is unlikely), we will the total amount of CIBW take over 2 8(a) of the final authorization, if issued consider our established criteria for years (n = 90), this is 32.2 percent of the and notwithstanding the Commission’s issuing a renewal, all data collected, and population (279 whales) (if assumed recommendation to refrain from issuing the potential impacts (both beneficial that each incident occurs to a unique renewals. The Commission further and adverse) to determine if a renewal individual). Earlier in its letter (see suggested that if NMFS chooses to is appropriate. Further, we note the Comment 7), the Commission stated ‘‘If continue proposing to issue renewals, Biological Opinion associated with this the number of revised beluga whale the Commission recommends that it (1) action limits the amount of take, as takes during either Phase I or II exceeds stipulate that a renewal is a one-time defined under the ESA, of CIBWs in any NMFS’s assumed one third [33%] of the opportunity (a) in all Federal Register given year to 55 take incidents; population estimate (83 FR 63376) of notices requesting comments on the therefore, the POA is constrained by this 327, the Commission recommends that possibility of a renewal, (b) on its web evaluation. NMFS deny the authorization(s) page detailing the renewal process, and Finally, the Commission asserts that outright.’’ In summary, NMFS has made (c) in all draft and final authorizations neither a negligible impact nor a small our findings relative to each IHA; that include a term and condition for a number determination may be able to be however, our issuance of two successive

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IHAs is both more efficient, effective, impact to marine mammals. In fact, the to reflect this approach. We have since and provides consistent conservation addition of a confined bubble curtain updated the EA to clarify group size was value to the species than if we would and implementation of a fourth not ultimately used as a correction have received an application for an IHA monitoring station only strengthens our factor or in take calculations. The CBD from the POA in late 2020 for work in findings regarding negligible impact and also claims we entirely discounted the 2021. unmitigable adverse impact on estimated take but this is also not Comment 17. The Commission subsistence use. For these reasons, accurate. We applied a 59 percent recommends that NMFS (1) consult NMFS is not republishing a notice of correction factor to the calculated take with POA regarding the numerous proposed IHAs. to account for the extensive mitigation issues raised in the Commission’s letter Comment 18: The CBD asserts that measures we prescribe in the IHAs and and direct the applicant to revise the NMFS’s negligible impact determination to reflect the monitoring data. application accordingly and (2) publish is arbitrary and capricious and that the CBD believes we should apply a 120 revised proposed authorizations prior to specified activities would have greater dB threshold for Level B harassment issuance of any final authorization or than a negligble impact on CIBWs. The based on beluga hearing sensitivity. We authorizations. CBD suggest (1) NMFS underestimated disagree. First, any dB-based threshold Response: What the Commission the impacts of pile driving on CIBWs, itself is a step-function approach (i.e., claims are ‘‘numerous omissions, (2) there were flaws in take estimate animals exposed to received levels inconsistencies, ambiguities, and methodology, (3) NMFS should apply above the threshold are considered to be incorrect information and assumptions the 120dB threshold to all noise sources, ‘‘taken’’ and those exposed to levels identified’’ are, for the most part, (3) the proposed project does not avoid below the threshold are not); but, in differences of opinion on how available or impose any specific mitigation, (4) reality, it is in fact intended as a sort of data should be applied to our analysis NMFS only counts one take exposure mid-point of likely behavioral responses and, in each case, we have presented per day, but the animals may be (which are extremely complex reasons why we disagree with specific exposed as they travel in and out of depending on many factors including recommendations. If we did agree that Knik Arm, (5) in-air noise impacts to species, noise source, individual there actually was an error (e.g., listing seals and sea lions were not addressed experience, and behavioral context). 171 dB in Table 7 instead of 161 dB) or and (6) the conclusion that there is no What this means is that, conceptually, the Commission’s logic is more harassment or ship strike potential from the function recognizes that some appropriate to implement (e.g., use 48- vessels is wrong. animals exposed to levels below the in bubble curtain data to establish initial Response: For clarity, NMFS’ threshold will in fact react in ways that Level B harassment zones), we have authorization does not ‘‘approve are appropriately considered take, while made the recommended changes. We activities’’; that permitting others that are exposed to levels above note many of the recommendations by responsibility lies with the U.S. Army the threshold will not. Use of a specific the Commission are detail-oriented and, Corps of Engineers. As described above dB threshold allows for a simplistic in NMFS’ view, do not provide in response to comments from the quantitative estimate of take, while we additional conservation value. NMFS Commission, NMFS has not can qualitatively address the variation disagrees that the information presented underestimated the impacts of pile in responses across different received in association with the proposed IHAs driving on marine mammals, there are levels in our discussion and analysis. was insufficient to facilitate public no flaws in the take estimate To establish the appropriate Level B review and comment, as the methodology, and the IHAs indeed harassment threshold in a noisy Commission implies. Further, in the provide extensive mitigation (and is environment such as upper Cook Inlet, notice of proposed IHAs, NMFS clearly actually some of the most stringent NMFS reviewed data recently collected identified where we did not agree with mitigation in any pile driving-related at the POA. During the 2016 TPP the POA’s analysis in their application IHA). We do not repeat our reasons why project, the POA conducted ‘‘ambient’’ and presented alternative approaches we disagree with CBD here but refer the acoustic monitoring, in accordance with which better reflect the best available reader to the relevant responses to the accepted methodology for characterizing science. Following receipt of an Commission. ambient noise levels. Ambient noise adequate and complete application, it We do note CBD appears to have levels (in the absence of pile driving) would be inappropriate for NMFS to misunderstood the monitoring data were 122.2 dB. We described this demand further revised versions of the when suggesting that 59 percent of takes analysis in our notice of proposed IHAs. application to reflect NMFS’ own only occurred in July. In fact, this Therefore, it is reasonable to establish a analysis or additional mitigation amount was derived from monitoring 122.2 dB Level B harassment threshold prescriptions beyond those that the occurring from March through at the POA. applicant proposes. December 2009 (20 takes total out of the With respect to exposures, nowhere Finally, NMFS has been in constant 34 allocated); the same time over which does NMFS indicate that an individual coordination with the POA to improve the POA would be conducting the POA whale could not be exposed upon upon both the noise attenuation devices project. It is unclear why CBD suggests entering and exiting Knik Arm on a and marine mammal and acoustic monitoring only occurred in July- this is given day. Our take estimates are based monitoring plans throughout the IHA inaccurate and all the monitoring on sighting rates regardless of direction process in an effort to minimize impacts reports were made available on our or if the whales observed were of the project on CIBWs to meet MMPA website during the public comment previously observed that day. Further, mandates. This notice of issuance period. In addition, group size (n=11) the POA would document take for any describes the benefits realized from was not actually a factor in our final whale entering the Level B harassment those communications and clearly take estimates but a means by which to zone as it is nearly impossible to identifies any changes from the determine if the total take authorized distinguish individuals in the field. proposed IHAs phase. Overall, there are would allow for the take of larger group Finally, our small numbers no substantial changes or new sizes. This was fully described in the determination is based on an information that would lead us to reach notice of proposed IHAs but we assumption that the take estimate any other conclusions regarding the recognize the draft EA was not updated represents number of individuals, rather

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than instances, which is a conservative was not based on a quantitative harassment zone (which is much greater assumption. Further, we re-iterate calculation (Center for Biological than 100 m), not vibratory driving 144- information on page 72182 of our notice Diversity v. Salazar, 695 F.3d 893 (9th in piles in August (a time-area of proposed IHAs wherein we described Cir. 1012)), and NMFS has more restriction that the CBD claims we did that acoustic data indicate beluga recently authorized take of up to one- not consider), and employing a confined whales move through lower Knik Arm third of a population abundance and bubble curtain/casing pile noise relatively quickly, when entering or considers this small. attenuation system during Phase 1. exiting the arm, and remain in the upper Comment 20: CBD suggests NMFS has Comment 21: CBD asserts that the arm for several days, or weeks, before failed to implement ‘‘means of effecting proposed activities will have an moving back out into Cook Inlet the least practicable adverse impact’’ on unmitigable adverse impact on (Castellote et al., 2020). Satellite marine mammals. CBD asserts that subsistence uses. CBD believes the telemetry data indicate such a NMFS relies on visual monitoring that proposed activities are stressors on movement pattern may be common. is known to be ineffective and beluga whales, which will contribute to Specifically, a beluga instrumented with inadequate to protect marine mammals. their imperilment; therefore, any take of a satellite link time/depth recorder CBD suggests lookouts are not as beluga whales has an adverse impact on entered Knik Arm on August 18th and effective in mitigating acoustic impacts their availability for subsistence use and remained in Eagle Bay until September as time-area restrictions. They also must be fully mitigated. They also 12th (Ferrero et al. 2000). Therefore, suggest NMFS failed to consider many indicate the IHA should require movement by any given whale in and other mitigation measures to reduce the consultation with Native Alaskan out of Knik Arm on a single day is not proposed activities’ impacts to the least communities to ensure adequate a likely scenario. practicable level. mitigation for subsistence harvest for Comment 19: CBD postulates that Response: NMFS disagrees for several harbor seals and Steller sea lions and NMFS’ small numbers determination is reasons. The POA has added a fourth that NMFS must not allow unmitigable invalid because the amount of take monitoring station (at Ship Creek) since adverse impacts on subsistence use of proposed to be authorized is greater the notice of proposed IHAs were marine mammal stocks. than 10 percent of the CIBW population disseminated for review. At each Response: NMFS agrees with CBD and that NMFS’ definition of small station, there will be two PSOs on watch that the authorized taking of marine numbers conflates this criterion with at any given time. Further, the PSO mammals may not have an unmitigable the negligible impact requirement. CBD stations range from Point Woronzof to adverse impact on subsistence uses and claims the incidental harassment the most northern end of the port’s we have ensured this is the case. In this authorizations here violate the MMPA property (just south of Cairn Point) case, NMFS has imposed a number of because it does not guarantee that only allowing for broad coverage of the mitigation measures designed to limit small numbers of CIBWs and the other entirety of lower Knik Arm. This is the the introduction of noise in the aquatic marine mammals impacted by the Port most extensive monitoring coverage at environment through use of noise of Alaska’s activities will be taken. the POA to date and NMFS is confident attenuation devices (e.g., confined Response: CBD suggests that by that whales, if present, will be detected. bubble curtain) and temporal defining small numbers to be relative to Most of the Level B harassment zones restrictions (i.e., no vibratory pile the overall population the criterion ends are less than 1 km and the greatest, with driving 144-in piles during August) and, up being similar to the negligible impact the exception of the single 144-in pile if marine mammals are present, finding and that Congress’s intent was that may be driven with a vibratory reducing exposure to noise through pile that the MMPA protect not only hammer, the Level B harassment zone is driving shutdown and delay procedures. populations, but individual marine estimated to be approximately 2.2 kms. Further, the POA notified 14 tribes to mammals. We disagree that small During the Hilcorp Cook Inlet Pipeline the availability of the notice of proposed numbers is conflated with our negligible Project, marine mammal observers we IHAs for public comment. No impact finding. While ‘‘small numbers’’ able to easily observe CIBWs at this subsistence users submitted public is simply a percent of the population, distance and had detections at greater comments to NMFS on the proposed our negligible impact finding considers than 8 kms (Sitkiewicz et al., 2018). IHAs. No tribes have indicated to NMFS a number of parameters including, but Further, there are mitigation measures concern about the proposed IHAs not limited to, the nature of the preventing pile driving from occurring if adversely impacting their subsistence activities (e.g., duration, sound source), visibility in any portion of the Level B use. NMFS is prescribing much more effects/intensity of the taking, the harassment area is obscured by weather stringent mitigation and monitoring context of takes, and mitigation. or sea state. Therefore, we find the measures than proposed by the POA, The reference to a ‘‘court concluded’’ visual monitoring plan is an effective which will reduce the potential impacts take limit of 12 percent for small tool at detecting marine mammals, to marine mammals. We have found this numbers likely comes from a 2003 ensuring the mitigation measures are taking would have a negligible impact district court opinion (Natural adhered to. These measures effect the on the population, meaning we do not Resources Defense Council v. Evans, least practicable adverse impact on anticipate there to be adverse impacts 279 F.Supp.2d 1129 (N.D. Cal. 2003)). marine mammals. on the annual rates of recruitment or However, given the particular CDB also suggests we failed to survival. Therefore, the taking would administrative record and consider other mitigation measures. In not impede recovery of CIBW for circumstances in that case, including the POA’s application, they proposed a potential future subsistence use. the fact that our small numbers finding 100 m shutdown for all marine Overall, there is little subsistence use for the challenged incidental take rule mammals, including CIBWs, and use of of marine mammals near the project was based on an invalid regulatory an unconfined bubble curtain. However, area and no tribes have alerted NMFS to definition of small numbers, we view our IHAs require much more extensive any concern over the proposed IHAs. the district court’s opinion regarding 12 mitigation. These measures include not The explanation and support for our percent as dicta. Moreover, since that starting pile driving if CIBWs are findings is described further in the time the Ninth Circuit Court of Appeals entering Knik Arm, shutting down pile Unmitigable Adverse Impact has upheld a small numbers finding that driving if whales approach the Level B Determination section of this notice.

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Comment 22: CBD believes the draft Alternative and Preferred Alternative in significance is determined by Environmental Assessment fails to the EA. We have also included an considering the context and intensity of comply with the requirements of the ‘‘Alternatives Considered but the action, and that intensity is National Environmental Policy Act. Eliminated from Further Consideration’’ evaluated by considering the ten factors They stipulate the Draft EA fails to section in the final EA that considered listed in 40 CFR 1508.27(b), CBD argues, consider a reasonable range of whether other alternatives could meet that if any one of these factors is met, alternatives, lacks a meaningful the purpose and need while supporting then the agency must prepare an EIS. environmental and cumulative impacts this applicant’s proposal to construct a CBD further argues that, ‘‘the impacts on analysis and that NMFS must prepare new PCT. There is no requirement an endangered species like the an EIS. under NEPA to consider more than two environmentally and culturally Response: In accordance with the alternatives, or to consider alternatives significant Cook Inlet beluga and its National Environmental Policy Act that are substantially similar to other designated critical habitat alone is (NEPA) and the Council on alternatives or which have substantially enough to trigger the need to prepare an Environmental Quality (CEQ) similar consequences. NMFS’ range of EIS.’’ NMFS disagrees. The mere Regulations, NMFS is required to alternatives is based on the proposed presence of one or more factors listed in consider a reasonable range of action and the purpose and need, which 40 CFR 1508.27(b) does not necessarily alternatives to a Proposed Action, as are linked to NMFS’ authorities under trigger the requirement to prepare an well as a No Action Alternative. the MMPA. For the purposes of analysis EIS. These factors are specific to Reasonable alternatives are viable under NEPA in the EA, an alternative evaluating the intensity of potential options for meeting the purpose and will only meet the purpose and need if impacts of an action. NMFS can prepare need for the proposed action. The it satisfies the requirements under an EA so long as the record supports the evaluation of alternatives under NEPA section 101(a)(5)(D) of the MMPA. conclusion that potential impacts are assists NMFS with understanding, and Therefore, NMFS determined that, not ‘‘significant’’ for the purposes of as appropriate, minimizing impacts based on our authorities and criteria NEPA. Based on the information through an assessment of alternative under the MMPA, which included presented in the application and NMFS’ ways to achieve the purpose and need criteria regarding mitigation measures, Policy and Procedures for Compliance for our Proposed Action. Reasonable appropriate considerations were applied with the National Environmental Policy alternatives are carried forward for to identify which alternatives to carry Act and Related Authorities detailed evaluation under NEPA while forward for analysis. (Companion Manual (CM) for NAO 216– alternatives considered but determined NMFS disagrees with CBD that our 6A) (NOAA 2017), Sections 3 and 7, not to meet the purpose and need are environmental impacts section is not NMFS’ determination to prepare an EA not carried forward. For the purposes of sufficient. We described both the is appropriate and in compliance with this EA, an alternative will only meet general effects to marine mammals from NEPA and 40 CFR 1501.3 and 40 CFR the purpose and need if it satisfies the exposure to noise (e.g., pile driving) and 1508.9. requirements of Section 101(a)(5)(D) of scientific literature identifying Comment 23: CBD states that NMFS the MMPA. responses of CIBWs to pile driving at must comply with the ESA but asserts In accordance with NOAA’s the POA. We have updated both our that NMFS should not issue take implementing procedures, the analysis in this notice and the final EA authorization under the ESA because Companion Manual (CM) for NAO 216– with the best available science regarding such taking would jeopardize the 6A, Section 6.B.i, NMFS is defining the the newly released technical report continued existence of CIBWs and No Action alternative as not authorizing describing the status of the CIBW stock adversely modify their critical habitat. the requested incidental take of marine (Sheldon and Wade, 2019). In the final Response: In our notice of proposed mammals under Section 101(a)(5)(D) of EA, we also reviewed potential direct, IHAs, NMFS indicated that we have the MMPA. This is consistent with our indirect, and cumulative impacts to requested section 7 consultation under statutory obligation under the MMPA to protected species and their the ESA. CBD indicates they believe the either: (1) Deny the requested environment, associated with NMFS’ proposed taking would jeopardize the authorization or (2) grant the requested proposed action and alternatives. While recovery and survival of CIBWs but did authorization and prescribe mitigation, the draft EA did not identify specific not further explain how they reached monitoring, and reporting requirements. human activities, such as the Hilcorp this conclusion. NMFS has fully The Preferred Alternative (i.e., issuance seismic survey that CBD noted, we did complied with the ESA. NMFS Alaska of the IHAs) includes mandatory include a section on the effects of oil Region issued a BiOp concluding that mitigation, monitoring, and reporting and gas development in Cook Inlet that issuance of take, by harassment, of requirements for POA to achieve the includes seismic work; therefore, this CIBW, humpback whales (Mexico MMPA standard of effecting the least survey was not discounted. In the final Distinct Population Segment (DPS)) and practicable adverse impact on each EA, we included specifics regarding the Western DPS (wDPS) of Steller sea lions species or stock of marine mammal and work in Cook Inlet for which we would not jeopardize the continued their habitat, paying particular attention currently have ITA requests. Since the existence of those stocks and the takings to rookeries, mating grounds, and other Draft EA was released, we have also would not adversely modify critical areas of similar significance. Since learned of other activity the POA is habitat. The full analysis supporting NMFS is required to prescribe planning on implementing as well as these conclusions can be found in the mitigation to effect the least practicable proposed plans by Alaska DOT in upper Biological Opinion. adverse impact on marine mammals, Cook Inlet. We have included those Comment 24: In their letter, CBD mitigation that reduces noise impacts on activities in the Cumulative Effects stated they did not believe NMFS marine mammals is inherently included section of the final EA. should authorize take of CIBWs and in Alternative 2 (the proposed action) CBD is correct that Federal agencies other marine mammals but, if NMFS did and is included as part of the analysis generally prepare an EIS for a major take action to do so, we must impose of alternative(s) in the Environmental Federal action significantly affecting the stringent mitigation measures to ensure Consequences chapter in the EA. NMFS quality of the human environment. the least practicable adverse impact on described both the No Action While CBD acknowledges that protected species.

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Response: NMFS has made the abundance and trends on one species: document/recovery-plan-cook-inlet- required findings to issue the IHAs, CIBWs. We provide a summary table of beluga-whale-delphinapterus-leucas. pursuant to the MMPA, and has issued marine mammals that may potentially Table 3 lists all species with expected the IHAs. We have also prescribed be present in the project area here potential for occurrence in upper Cook mitigation measures that effect the least (Table 3) and a summary of the changes Inlet and summarizes information practicable adverse impact on marine to CIBWs. Additional information related to the population or stock, mammals, in accordance with the regarding population trends and threats including regulatory status under the MMPA (see Mitigation section). may be found in NMFS’s Stock MMPA and ESA and potential biological removal (PBR), where known. Description of Marine Mammals in the Assessment Reports (SARs; https:// www.fisheries.noaa.gov/national/ For taxonomy, we follow Committee on Area of Specified Activities Taxonomy (2019). PBR is defined by the marine-mammal-protection/marine- A detailed description of the species MMPA as the maximum number of mammal-stock-assessments) and more likely to be affected by POA’s project, animals, not including natural including brief introductions to the general information about these species mortalities, that may be removed from a species and relevant stocks as well as (e.g., physical and behavioral marine mammal stock while allowing available information regarding descriptions) may be found on NMFS’s that stock to reach or maintain its population trends and threats, and website (https:// optimum sustainable population (as information regarding local occurrence, www.fisheries.noaa.gov/find-species). described in NMFS’s SARs). While no were provided in the Federal Register Additional information on beluga mortality is anticipated or authorized notice for the proposed IHA (84 FR whales may be found in NMFS’ 2016 here, PBR and annual serious injury and 72154; December 30, 2019). Please refer Recovery Plan for the Cook Inlet Beluga mortality from anthropogenic sources to the proposed IHA Federal Register Whale (Delphinapterus leucas), are included here as gross indicators of notice for these descriptions. Since that available online at https:// the status of the species and other notice, there are updates to the www.fisheries.noaa.gov/resource/ threats. TABLE 3—MARINE MAMMAL SPECIES POTENTIALLY OCCURRING IN UPPER COOK INLET, ALASKA

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

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenopteridae (rorquals) Humpback whale ..... Megaptera novaeangliae Western North Pacific .... E/D; Y ...... 1,107 (0.3, 865, 2006) ... 3 ...... 2.6 Central North Pacific ...... E/D; Y ...... 10,103 (0.3, 7890, 2006) 83 ...... 24

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Beluga whale ...... Delphinapterus leucas .... Cook Inlet ...... E/D; Y ...... 279 (-, 250, 2018) 4 ...... 0.54 ...... 0 Killer whale ...... Orcinus orca ...... Alaska Resident ...... -/-; N ...... 2,347 (N/A, 2,347, 2012) 24 ...... 1 Alaska Transient ...... -/-; N ...... 587 (N/A, 587, 2012) ..... 5.9 ...... 1

Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena ...... Gulf of Alaska ...... -/-; Y ...... 31,046 (0.214, N/A, Undet ...... 72 1998).

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): Steller sea lion ...... Eumetopias jubatus ...... Western ...... E/D; Y ...... 54,267 (N/A, 54,267, 326 ...... 247 2017).

Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... Cook Inlet/Shelikof ...... -/-; N ...... 28,411 (26,907, N/A, 807 ...... 807 2018).

1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable because it has not been calculated. 3 These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mor- tality due to commercial fisheries is presented in some cases. 4 Sheldon and Wade (2019). 95 percent probability range is 250–317 whales.

Update to CIBW Population Estimate updated population estimate using a the method developed by Hobbs et al. new method to estimate group size from (2000, 2015) and has several important Until 2020, the best estimate of the the aerial surveys in the analysis of differences, as these differences CIBW stock was 327 with a minimum abundance and trends for CIBWs (Boyd contribute to the disparity between the estimate of 311 whales (Muto et al., et al., 2019). This new method replaced 2019). In 2020, NMFS released an

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Hobbs method and the Boyd method. per year, (with a 70 percent probability While Sheldon and Wade (2019) These differences are fully explained in the population is declining) (Shelden et provides explanations for the Sheldon and Wade (2019). In summary, al. 2017). Using the new method, NMFS differences between model results, the new method leads to some smaller found from 2008–2018, the estimated including inadequacies and biases, the and some larger group size estimates trend in the CIBW population is a authors do not postulate on the reason compared to the older Hobbs et al. decline of -2.3 percent per year. The for population decline in general (which (2000, 2015) method, when applied to abundance estimates indicate there is a was evident using both models); all groups recorded during the period 99.7 percent probability of a decline, however, recent literature suggests prey 2004–2016. Using the older method, the and a 93.0 percent probability of a reductions may be a critical contributing decline that is more than 1 percent per rate of population decline is not as great factor (Norman et al., 2019). This is not year. primarily because the 2016 estimate is The best estimate of 2018 abundance unexpected as reduced prey availability higher, and there is no 2018 estimate for the CIBW population from the aerial has been directly linked to increased using this older method. Annual survey data is 279 (95 percent mortality and reduced health and abundance was calculated as the probability interval 250 to 317). This is survival of other marine mammals median of all the daily abundance based on the estimate of smoothed populations such as the Southern estimates, using all days with an abundance for 2018, as described in Resident killer whale (e.g., Ward et al., acceptable survey. Using the old Sheldon and Wade (2019). A 2009, Trites and Rosen, 2017) and method, from 2006 to 2016, the rate of comparison of the population estimates California sea lion (e.g., McClatchie et decline was estimated to be -0.5 percent over time is presented in Figure 3. al., 2016).

Potential Effects of Specified Activities potential effects of the specified that suggests the potential responses on Marine Mammals and Their Habitat activities on marine mammals and their and impacts to marine mammals would habitat, therefore that information is not differ from those discussed in the notice The Federal Register notice for the repeated in detail here; please refer to of proposed IHAs. proposed IHAs (84 FR 72154; December that Federal Register notice for that 30, 2019) included a discussion of the information. No new data is available

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Estimated Take more detail and present the take By using median value, which is the estimate. 50th percentile of the measurements, for This section provides an estimate of ambient noise level, one will be able to the number of incidental takes Acoustic Thresholds eliminate the few transient loud authorized through each of the IHAs, Using the best available science, identifiable events that do not represent which will inform both NMFS’ NMFS has developed acoustic the true ambient condition of the area. consideration of ‘‘small numbers’’ and thresholds that identify the received This is relevant because during two of the negligible impact determination for level of underwater sound above which the four days (50 percent) when the two separate IHAs. exposed marine mammals would be background measurement data were Harassment is the only type of take reasonably expected to be behaviorally being collected, the U.S. Army Corps of expected to result from these activities. harassed (equated to Level B Engineers was dredging Terminal 3 Except with respect to certain activities harassment) or to incur PTS of some (located just north of the Ambient- not pertinent here, section 3(18) of the degree (equated to Level A harassment). Offshore hydrophone) for 24 hours per Level B Harassment for non-explosive MMPA defines ‘‘harassment’’ as any act day with two 1-hour breaks for crew of pursuit, torment, or annoyance, sources—Though significantly driven by change. On the last two days of data which (i) has the potential to injure a received level, the onset of behavioral collection, no dredging was occurring. marine mammal or marine mammal disturbance from anthropogenic noise Therefore, the median provides a better stock in the wild (Level A harassment); exposure is also informed to varying representation of background noise or (ii) has the potential to disturb a degrees by other factors related to the levels when the PCT project would be marine mammal or marine mammal source (e.g., frequency, predictability, occurring. With regard to spatial stock in the wild by causing disruption duty cycle), the environment (e.g., considerations of the measurements, the of behavioral patterns, including, but bathymetry), and the receiving animals Ambient-Offshore location is most not limited to, migration, breathing, (hearing, motivation, experience, applicable to this discussion as it is nursing, breeding, feeding, or sheltering demography, behavioral context) and consistent with accepted methodology (Level B harassment). can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on for measuring background noise levels. Authorized takes would primarily be The median ambient noise level by Level B harassment, as pile driving what the available science indicates and the practical need to use a threshold collected over four days at the end of has the potential to result in disruption May at the Ambient-Offshore of behavioral patterns for individual based on a factor that is both predictable hydrophone was 122.2 dB. We note the marine mammals. There is also some and measurable for most activities, Ambient-Dock location was quieter, potential for auditory injury (Level A NMFS uses a generalized acoustic with a median of 117 dB; however, that harassment) to result, primarily for threshold based on received level to hydrophone was placed very close to mysticetes, high frequency species, and estimate the onset of behavioral the dock and not where we would phocids because predicted auditory harassment. In general, NMFS predicts expect Level B harassment to occur injury zones are larger than for mid- that marine mammals are likely to be given mitigation measures (e.g., shut frequency species and otariids. Auditory behaviorally harassed in a manner we downs). If additional data collected in injury is unlikely to occur for mid- consider Level B harassment when the future warrant revisiting this issue, frequency species and otariids. The exposed to underwater anthropogenic NMFS may adjust the 122.2 dB rms mitigation and monitoring measures are noise above received levels of 120 dB re 1 mPa (rms) for continuous (e.g., Level B harassment threshold. expected to minimize the severity of vibratory pile-driving, drilling) and such taking to the extent practicable. Level A harassment for non-explosive above 160 dB re 1 mPa (rms) for non- sources—NMFS’ Technical Guidance As described previously, no serious explosive impulsive (e.g., seismic injury or mortality is anticipated or for Assessing the Effects of airguns) or intermittent (e.g., scientific Anthropogenic Sound on Marine authorized for this activity. Below we sonar) sources. However, ambient noise describe how the take is estimated. Mammal Hearing (Version 2.0) levels within Knik Arm are above the (Technical Guidance, 2018) identifies Generally speaking, we estimate take 120-dB threshold, and therefore, for dual criteria to assess auditory injury by considering: (1) Acoustic thresholds purposes of this analysis, NMFS (Level A harassment) to five different above which NMFS believes the best considers received levels above those of marine mammal groups (based on available science indicates marine the measured ambient noise (122.2 dB) hearing sensitivity) as a result of mammals will be behaviorally harassed to constitute Level B harassment of exposure to noise from two different or incur some degree of permanent marine mammals incidental to types of sources (impulsive or non- hearing impairment; (2) the area or continuous noise, including vibratory impulsive). The POA’s proposed volume of water that will be ensonified pile driving. above these levels in a day; (3) the Results from the most recent acoustic activity includes the use of impulsive density or occurrence of marine monitoring conducted at the port are (impact pile driving) and non-impulsive mammals within these ensonified areas; presented in Austin et al (2016) and (vibratory pile driving) sources. and, (4) and the number of days of Denes et al (2016) wherein noise levels These thresholds are provided in activities. We note that while these were measured in absence of pile Table 4 below. The references, analysis, basic factors can contribute to a basic driving from May 27 through May 30, and methodology used in the calculation to provide an initial 2016 at two locations: Ambient-Dock development of the thresholds are prediction of takes, additional and Ambient- Offshore. NMFS described in NMFS 2018 Technical information that can qualitatively considers the median sound levels to be Guidance, which may be accessed at inform take estimates is also sometimes most appropriate when considering https://www.fisheries.noaa.gov/ available (e.g., previous monitoring background noise levels for purposes of national/marine-mammal-protection/ results or average group size). Below, we evaluating the potential impacts of the marine-mammal-acoustic-technical- describe the factors considered here in POA’s PCT Project on marine mammals. guidance.

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TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

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

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

Ensonified Area The estimated sound source levels are presented in Table 5. We note that and transmission loss coefficient used both sound source verification tests (in Here, we describe operational and in our analysis are based on direct situ measurements at 10 m to refine environmental parameters of the measurements during installation of source levels) as well as measurements activities that will feed into identifying unattenuated 48-in piles during the taken at the estimated Level B the areas ensonified above the acoustic POA’s 2016 TPP and measurements harassment isopleths and in the far field thresholds, which include source levels collected during marine construction (+1 km) will be collected at the onset of and transmission loss coefficient. projects conducted by the U.S. Navy. pile driving to verify these estimates. All source levels used in our analysis

TABLE 5—ESTIMATED SOUND SOURCE LEVELS WITH AND WITHOUT A BUBBLE CURTAIN

Method and pile size Sound level at 10 m

Unattenuated 1 Bubble curtain Data source Vibratory db rms 7 dB reduction, dB rms

144-in ...... 178 171 Caltrans 2015. 48-in ...... 168 161 Austin et al 2016. 36-in ...... 166 159 Navy 2015. 24-in ...... 161 154 Navy 2015.

Unattenuated 1 Bubble curtain Impact dB rms dB SEL dB peak dB rms dB SEL dB peak

144-in ...... 209 198 220 202 191 213. Caltrans 2015 48-in ...... 200 187 215 193 180 208 Austin et al 2016. 36-in ...... 194 184 211 187 177 204 Navy 2015. 24-in ...... 193 181 210 186 174 203 Navy 2015. 1 We note the only piles that may be driven or removed without a bubble curtain are 24-in battered piles. We included unattenuated SLs here for 36-in, 48-in, and 144-in piles to demonstrate how the 7dB reduction for bubble curtains was applied.

During the TPP, JASCO computed other hammers. The TL coefficient for reflection of how SPLrms or SEL is transmission loss (TL) coefficients, the unattenuated diesel impact hammer dissipated in the marine environment. derived from fits of the received sound averaged 17.5. Sounds from the During underwater sound propagation, level data versus range. TL coefficients unattenuated vibratory hammer had the pressure amplitude tends to suffer more varied between piles with values lowest TL coefficient, with values of loss due to multipath propagation and ranging from 13 to 19.2 for impact pile 16.1 and 16.9. reverberation, while acoustic energy driving and from 12.6 to 17.9 for Based on these data, the POA does not dissipate as rapidly. vibratory pile driving when using sound proposed different transmission loss Accordingly, the POA proposed using attenuation devices. Results for the rates depending on if SEL (used for TL rate of 16.85 for assessing potential unattenuated hydraulic impact hammer Level A harassment) or rms (used for for Level A harassment from impact pile yielded the highest TL coefficient, 19.2, Level B harassment) values were being driving but a TL rate of 18.35, based on indicating that sounds from the evaluated. SPLrms is a pressure metric Austin et al. (2016), when assessing hydraulic impact hammer decayed most and SEL an energy metric. The potential for Level B harassment from rapidly with range compared to the difference in TL coefficient is a impact pile driving. For vibratory pile

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driving, SPLrms is used for both Level with marine mammal density or duration of the activity, it would not A harassment and Level B harassment occurrence to help predict takes. We incur PTS. analysis and, based on Austin et al. note that because of some of the The User Spreadsheet also includes a (2016) the POA applied a TL rate of assumptions included in the methods default, single frequency weighting 16.5. NMFS found these transmission used for these tools, we anticipate that factor adjustment (WFA) to account for loss rates acceptable and carried them isopleths produced are typically going frequency hearing groups. During the forward in our analysis. Again, on site to be overestimates of some degree, acoustic monitoring in both the near which may result in some degree of 2016 TPP, the POA collected direct and far field (to capture any sediment- overestimate of Level A harassment measurements of sound generated borne noise) at the onset of pile driving take. However, these tools offer the best during installation of 48-in piles. The will verify estimates made in our way to predict appropriate isopleths spectra associated with impact and analysis. when more sophisticated 3D modeling vibratory driving 48-in unattenuated When the NMFS Technical Guidance methods are not available, and NMFS piles was also derived. Therefore, we (2016) was published, in recognition of continues to develop ways to accepted POA’s applied spectra the fact that ensonified area/volume quantitatively refine these tools, and approach for 48-in piles but relied on could be more technically challenging will qualitatively address the output the User Spreadsheet default WFA for to predict because of the duration where appropriate. For stationary all other pile sizes. component in the new thresholds, we sources (such as pile driving), NMFS Inputs used in the User Spreadsheet developed a User Spreadsheet that User Spreadsheet predicts the closest for 24-in, 36-in and 144-in pilesare includes tools to help predict a simple distance at which, if a marine mammal reported in Table 6. isopleth that can be used in conjunction remained at that distance the whole

TABLE 6—NMFS USER SPREADSHEET INPUTS

24-in 24-in 36-in 48-in 144-in (unattenuated) (bubble curtain) (bubble curtain) (bubble curtain) (bubble curtain)

User Spreadsheet Input: Impact Pile Driving (TL = 16.85)

Spreadsheet Tab (E.1) Impact pile driving ...... (E.1) Impact pile (E.1) Impact pile (E.1) Impact pile (E.1) Impact pile Used. driving. driving. driving. driving. Source Level (Single 181 ...... 174 ...... 177 ...... 180 ...... 191 Strike/shot SEL). Weighting Factor 2 ...... 2 ...... 2 ...... measured spectra ... 2 Adjustment (kHz). Number of strikes 50 (re-strikes) ...... 50 (re-strikes) ...... 3,000 ...... 2,300 or 3,000 ...... 5,000 pile. Piles per day ...... 1–4 ...... 1–4 ...... 1–3 ...... 1–3 ...... 0.3 or 0.7

User Spreadsheet Input: Vibratory Pile Driving (TL = 16.5)

24-in 24-in 36-in 48-in 144-in (unattenuated) (bubble curtain) (bubble curtain) (bubble curtain) (bubble curtain)

Spreadsheet Tab (A) Non-Impul, Stat, Cont. .. (A) Non-Impul, Stat, (A) Non-Impul, Stat, (A) Non-Impul, Stat, (A) Non-Impul, Stat, Used. Cont.. Cont.. Cont.. Cont. Source Level (SPL 161 ...... 154 ...... 159 ...... 161 ...... 171 RMS). Weighting Factor 2.5 ...... 2.5 ...... 2.5 ...... measured spectra ... 2.5 Adjustment (kHz). Time to drive single 75 ...... 75 ...... 75 ...... 30 ...... 45 pile (minutes) 1. Piles per day ...... 1–4 ...... 1–4 ...... 1–4 ...... 1 2 ...... 1 1 In some cases, only 30 minutes may be required to drive a pile using a vibratory hammer; however, here we default to the greatest amount of time indicated per pile. 2 The POA indicated a vibratory hammer would only be used if an obstruction is encountered; therefore, the most probable scenario is, at most, only one 48-in pile per day would require use of a vibratory hammer.

To calculate the Level B harassment coefficients of 18.35 and 16.5 for impact Level B harassment isopleths are isopleths, NMFS considered SPLrms and vibratory pile driving, respectively. presented in Table 7. source levels and the corresponding TL The resulting Level A harassment and TABLE 7—DISTANCES TO LEVEL A HARASSMENT, BY HEARING GROUP, AND LEVEL B HARASSMENT THRESHOLDS PER PILE TYPE AND INSTALLATION METHOD

Piles Level A harassment (m) Level B Pile size Hammer type Attenuation installed/ harassment day LF MF HF PW OW (m)

48-in (2,300 strikes per Impact ...... Bubble Curtain ...... 1 655 34 766 376 36 1 824 pile). 2 989 51 1,156 567 55 3 1,258 65 1,470 721 70

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TABLE 7—DISTANCES TO LEVEL A HARASSMENT, BY HEARING GROUP, AND LEVEL B HARASSMENT THRESHOLDS PER PILE TYPE AND INSTALLATION METHOD—Continued

Piles Level A harassment (m) Level B Pile size Hammer type Attenuation installed/ harassment day LF MF HF PW OW (m)

48-in (3,000 strikes per Impact ...... Bubble Curtain ...... 1 767 39 897 440 43 824 pile). 2 1,158 59 1,353 664 64 3 1,473 76 1,721 844 82 48-in ...... Vibratory ...... Bubble Curtain...... 1 5 1 7 3 0 2,247 36-in ...... Vibratory ...... Bubble Curtain ...... 3 12 1 17 8 1 1,699 4 14 2 20 9 1 Impact ...... Bubble Curtain...... 1 509 26 595 292 28 296 2 768 39 898 440 43 3 978 50 1,142 560 54 24-in ...... Vibratory ...... Bubble Curtain...... 3 3 0 5 2 0 846 4 7 1 10 4 0 ...... Unattenuated (6 bat- 3 16 2 22 10 1 2,247 tered piles in Phase 2). 4 19 2 27 12 1 Impact (50 re-strikes Bubble Curtain...... 1 30 2 35 17 2 261 per pile) 2. 4 68 4 79 39 4 ...... Unattenuated (6 bat- 1 78 4 91 44 4 629 tered piles in Phase 2). 4 176 9 206 101 10 144-in ...... Impact ...... Bubble Curtain ...... 0.3 2,286 117 2,672 1,311 127 1,945 0.7 3,781 194 4,418 2,167 210 1,945 Vibratory ...... 1 24 3 34 15 1 9,069 1 The Level B harassment isopleth of 824 m is an average of modeled distances based on in situ data presented in Austin et al. (2016; Table 12). 2 For impact hammering of 24-in temporary piles, we include information only for one or four piles, to provide the general range of very small zones. The number of piles may vary from one to four piles per day.

Marine Mammal Occurrence and Take 3 through June 21, 2016. Based on these over 214 days from March through Estimation observations, the sighting rate during December). The average number of seals In this section we provide the the 2016 TPP construction monitoring observed per year across all years of information about the presence, density, period was one harbor seal every 3 monitoring was 17 seals. Therefore, it is or group dynamics of marine mammals hours, or approximately four harbor reasonable to assume our originally and present take calculations. seals per 12-hour work day. Given the proposed take estimates are more than For all species of cetaceans other than likely increase in harbor seal abundance sufficient to account for potential beluga whales, density data is not over the years, the POA and NMFS harassment from the PCT project, as the available for upper Cook Inlet. doubled this number to estimate take take estimates for Phase 1 and Phase 2 Therefore, the POA relied on marine (i.e., up to 8 seals per day could be taken are more than 17 and 10 times the mammal monitoring data collected by harassment). However, the maximum number of seals observed in during past POA projects. These data Commission commented that because any given prior year, respectively. This cover the construction season (April previous monitoring data indicated a 10 to 17 fold increase adequately through November) across multiple maximum of nine seals were observed accounts for seals present at greater than years. Estimated exposure from pile on a particular day during previous 2 kms. Therefore, we maintain our installation for all marine mammals monitoring, we should use 9 seals (not original take estimate approach. except beluga whales is calculated by 8) for days when Level B harassment Pile installation and removal is the following equation: Exposure zones are within 2 km and double this anticipated to take approximately 127 estimate = N * # days of pile number (18 seals per day) when Level days for Phase 1 and 75 days for Phase installation, where: N = highest daily B harassment zones extend to 4 kms 2. Therefore, we estimate no more than abundance estimate for each species in since all seals were observed within 2 1,016 instances of harbor seal take project area across all years of data. kms, as they are difficult to observe during Phase 1 (8 harbor seals per day beyond this distance. While this is * 127 days) and 600 instances of harbor Harbor Seals conceptually a reasonable alternative, seal take (8 harbor seals per day * 75 Marine mammal monitoring data the take numbers resulting from use of days) during Phase 2. collected during previous POA projects 8 seals per day far exceed what the years The mouth of Ship Creek, where were used to estimate daily sighting of monitoring data indicate as harbor seals tend to concentrate is rates for harbor seals in the project area reasonable estimates of potential located approximately 700 m from the (see Table 4–1 in POA’s application). harassment. Over the course of 8 years southern end of the PCT, and is The highest individual sighting rate of data (no monitoring was conducted in therefore located outside the harbor seal recorded for a previous year was used 2012, 2013, and 2014 as no pile driving Level A harassment zone for the to quantify take of harbor seals for pile was conducted at the POA during these majority of pile sizes for both impact installation associated with the PCT. years), the maximum number of seals and vibratory pile installation. However, The number of sightings of harbor seals observed in a year (2009) was 57 seals there is potential for Level A harassment during 2016 TPP construction (while other years ranged from 0–34 near Ship Creek during installation of monitoring was 28 sightings recorded seals total). The monitoring conducted three 48-in piles per day and over 83.5 hours of monitoring from May during 2009 was extensive (3,222 hours installation of 144-in piles. We estimate

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30 percent of the estimated take could every 2 days]) and 38 takes during Phase risk of exposure of a humpback whale be in the form of Level A harassment, 2 (75 days for Phase 2 * [1 harbor to sounds exceeding the Level B as approximately 30 percent of the work porpoise every 2 days]). This estimate harassment threshold is low. Few, if may result in Level A harassment also covers the possibility that larger any, humpback whales are expected to isopleths extending to Ship Creek. groups (2–3 individuals) of harbor approach the project area. However, Therefore, the POA has requested, and porpoise could occur occasionally. there were two sightings in 2017 of what NMFS has authorized 305 Level A Harbor porpoises are relatively small was likely a single individual at the harassment and 711 Level B harassment cetaceans that move at high velocities, Ship Creek Boat Launch (ABR 2017) takes in Phase 1 and 180 Level A which can make their detection and which is located south of the project harassment and 420 Level B harassment identification at great distances difficult. area. Based on these data, the POA takes in Phase 2. Using the NMFS User Spreadsheet, conservatively estimates one humpback impact driving 36-in, 48-in and 144-in whale could be harassed every 16 days Steller Sea Lions piles results in Level A harassment of pile driving. Therefore, the POA Steller sea lions are anticipated to be isopleths larger than the Level B requested 8 humpback whale takes encountered in low numbers, if at all, harassment isopleth. Vibratory driving during Phase 1 (127 days for Phase 1 * within the project area. Three sightings and removal result in much smaller [1 humpback whale every 16 days]) and of what was likely a single individual Level A harassment zones than Level B 5 takes (75 days for Phase 2 * [1 occurred in the project area in 2009 and harassment zones and many temporary humpback whale every 16 days]) for two sightings occurred in 2016. Based piles (the bulk of the work) would be Phase 2. This could include sighting a on observations in 2016, we anticipate installed and removed with a vibratory cow-calf pair on multiple days or an exposure rate of 2 individuals every hammer. Further, the Level A multiple sightings of single humpback 19 days during PCT pile installation and harassment isopleths consider long whales. The POA did not request Level removal. Based on this rate, we are durations and harbor porpoise are likely A harassment take of humpback whales; authorizing 13 sea lion takes during moving through the area, if present, not however, based on the large distances to Phase 1 (127 days * [2 sea lions every lingering. Therefore, we authorized the Level A harassment thresholds 19 days]) and 8 Steller sea lion takes approximately one-third of the total relative to Level B harassment isopleths during Phase 2 (75 days for Phase 2 * expected take in the form of Level A and the fact humpback whale sightings [2 sea lions every 19 days]). During harassment. For Phase 1, we authorized in Upper Cook Inlet are rare, NMFS installation of 144-in piles (Phase 2), the 21 takes by Level A harassment and 43 authorized two Level A harassment Level A harassment isopleth extends takes by Level B harassment. For Phase takes per year to account for a single beyond 100 m. Although Steller sea 2, we authorized 13 Level A harassment individual or a cow/calf pair. Therefore, lions are readily detectable at these and 25 Level B harassment takes. NMFS has authorized two Level A distances, we are not requiring the POA Killer Whales harassment takes and six Level B to shut down if a Steller sea lion is harassment takes during Phase 1 and observed. Steller sea lions are rarely Few, if any, killer whales are expected two Level A harassment takes and three present in Knik Arm; however, they can to approach the project area. No killer Level B harassment takes for Phase 2. linger in the area for multiple days. whales were sighted during previous During Phase 1, the Level A harassment monitoring programs for the Knik Arm Beluga Whales isopleth is less than the 100 m Crossing and POA construction projects, For beluga whales, we looked at shutdown zone for all scenarios; including the 2016 TPP. The infrequent several sources of information on therefore, the potential for Level A sightings of killer whales that are marine mammal occurrence in upper harassment take is discountable. During reported in upper Cook Inlet tend to Cook Inlet to determine how best to installation of the 144-in piles in Phase occur when their primary prey estimate the potential for exposure to 2, there is a low potential for Level A (anadromous fish for resident killer pile driving noise from the PCT Project. harassment and an animal may remain whales and beluga whales for transient In their application, the POA took a for a couple of days; therefore, we killer whales) are also in the area two-step approach to estimating Level B allocate two takes in Phase 2 to Level A (Shelden et al. 2003). Previous sightings harassment take. The POA first harassment. of transient killer whales have estimated the numbers of beluga whales documented pod sizes in upper Cook potentially exposed to noise levels Harbor Porpoise Inlet between one and six individuals above the Level B harassment threshold Previous monitoring data at the POA (Shelden et al. 2003). The potential for for pile installation and removal using were used to evaluate daily sighting exposure of killer whales within the the following formula: Beluga Exposure rates for harbor porpoises in the project Level B harassment isopleths is Estimate = N * Area * number of days area. During most years of monitoring, anticipated to be extremely low. Level B of pile installation/removal, where: N = no harbor porpoises were observed. The harassment take is conservatively maximum predicted # of beluga whales/ highest individual sighting rate for any estimated at no more than 12 km2 in Knik Arm (0.291 whales/km2) recorded year during pile installation individuals during Phase 1 and Phase 2 based on data from Goetz et al. (2012a) and removal associated with the PCT to account for two large (n=12) groups and Area = Area ensonified above Level was an average of 0.09 harbor porpoises or several smaller groups. No Level A B harassment threshold (km2). We note per day during 2009 construction harassment take for killer whales is the actual beluga whale densities within monitoring, but this value may not anticipated or authorized due to the the Level B harassment isopleths account for increased sightings in Upper small Level A harassment zones and predicted for the PCT project ranged Cook Inlet (Shelden et al. 2014). implementation of a 100 m shutdown from 0.042 to 0.236 beluga whales/km2. Therefore, the POA assumed that one which is larger than Level A harassment However, the POA applied the highest harbor porpoise could be observed every isopleths. beluga whale density in upper Knik 2 days of pile driving. Based on this Arm. The higher densities north of the assumption, the POA has requested, and Humpback Whales POA are expected as beluga whales tend NMFS has authorized, 64 takes during Sightings of humpback whales in the to concentrate in Eagle Bay to forage Phase 1 (127 days * [1 harbor porpoise project area are rare, and the potential whereas in the lower Arm, where the

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POA is located, habitat use is more the Goetz density data for this specific take, and considered group size. First, in commonly associated with traveling. project does not represent the best lieu of density data, NMFS applied The POA’s simple calculation results in available scientific information in this sighting rate data presented in Kendell 103 takes in Phase 1 and 125 takes in circumstance because the density data is and Cornick (2015) to estimate hourly Phase 2. The second step in POA’s take based on June aerial surveys while the sighting rates per month (April through estimate approach was to apply a 50 PCT project is occurring from April November). We then identified hours of percent correction factor to their through November, the data is over pile driving per month. The POA density-based calculation. The POA seven years old, and the multiple years indicated there will be extended provided several reasons why this of monitoring data collected by the POA durations when no pile driving is reduction factor was appropriate, is not incorporated into this approach. happening (e.g., later in the season including, but not limited to: The POA’s Regarding the rationale for applying a when decking and other out-of-water commitment to using a bubble curtain 50 percent correction factor, we found work is occurring); however, the means that noise levels along the the use of a bubble curtain and the fact schedule could not be more refined than western side of Knik Arm will remain the majority of pile driving would assuming an equal work distribution below the regulatory thresholds; ensonify half or less than half of the across the construction season. The providing a travel corridor for beluga width of Knik Arm is already captured whales to access upper Knik Arm; for by the ensonsified area which is POA did indicate the first two weeks of the majority of PCT construction and embedded into the take calculation. The April and the last two weeks in pile installation and removal, only POA is not pile driving during winter November would be most likely utilized approximately half of the width of Knik when beluga whale abundance is lowest for equipment mobilization and Arm, along the eastern shore, would be and although early summer tends to see demobilization; therefore, pile driving ensonified; beluga whales observed in lower beluga abundance, the density effort during those months were limited Knik Arm during the autumn were most used in the take calculation is from June to two weeks. The data and calculated frequently sighted on the western side surveys. exposure estimates are presented below of the arm (Funk et al. 2005); and beluga To better capture beluga whale in Table 8. These calculations assume whales are present in Knik Arm year- distribution and abundance, we no mitigation (i.e., uncorrected take round, but sightings are much lower in undertook a multi-step analysis estimates) and that all animals observed winter through early summer. consisting of an evaluation of long-term, would enter a given Level B harassment We reviewed the POA’s density-based seasonal sighting data, mitigation and zone during pile driving. In total, we take calculation approach and their monitoring measures, the amount of would expect approximately 94 reasons for applying a 50 percent documented exposure from previous exposures in Phase 1 and 60 exposures correction factor. We determined use of POA projects compared to authorized in Phase 2.

TABLE 8—UNCORRECTED BELUGA WHALE EXPOSURE ESTIMATES FOR PHASE 1 AND PHASE 2

Monitoring data 1 Estimated instances of take

Month Number of Average Pile driving CIBW Pile driving CIBW Effort hours whales whale/hr hours exposures hours exposures observed phase 1 2 phase 1 phase 2 2 phase 2

April ...... 12 2 0.17 25.64 4.27 16.37 2.73 May ...... 156 40 0.26 51.29 13.15 32.71 8.39 June ...... 280 8 0.03 51.29 1.47 32.71 0.94 July ...... 360 2 0.01 51.29 0.28 32.71 0.18 August ...... 426 269 0.63 51.29 32.38 32.71 20.65 Sept ...... 447 169 0.38 51.29 19.37 32.71 12.35 October ...... 433 22 0.05 51.29 2.61 32.71 1.66 Nov ...... 215 175 0.82 25.64 20.91 16.37 13.35

Total ...... 2,317 685 0.30 359.02 94.44 229.00 60.25 1 From Kendell and Cornick 2015. 2 Assumes equal work distribution/month except in April and November when the POA has indicated they would be conducting only 2 weeks of pile driving due to time needed for mobilization and demobilization.

NMFS then considered the prescribed monitoring, sometimes beluga whales harassment zone and shutdown was mitigation as well as distribution of were initially observed when they called, but the beluga whales swam into beluga whales in Knik Arm. In the surfaced within the harassment zone. the harassment zone before activities POA’s application, they proposed a 100- For example, on November 4, 2009, 15 could be halted, and exposure within m shutdown zone for all marine whales were initially sighted the harassment zone occurred. For mammals. However, as described in approximately 950 meters north of the example, on September 14, 2009, a more detail below, NMFS has project site near the shore, and then construction observer sighted a beluga prescribed additional mitigation they surfaced in the Level B harassment whale just outside the harassment zone, designed to reduce Level B harassment zone during vibratory pile driving (ICRC moving quickly towards the 1,300 m take as well as avoid Level A 2009b). Construction activities were Level B harassment zone during harassment take. We recognize that in immediately shut down, but the 15 vibratory pile driving. The animal certain situations, pile driving may not whales were nevertheless exposed entered the harassment zone before be able to be shut down prior to whales within the Level B harassment zone. On construction activity could be shut entering the Level B harassment zone other occasions, beluga whales were down (ICRC 2009c). However, we note due to safety concerns. During previous initially sighted outside of the that for the PCT, there will be four PSO

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stations, with the southern-most station uncorrected numbers, which does not with an average of 36 percent (Table 9). near Point Woronzof and the northern- account for any mitigation, we looked at The previous method of estimating take most station at the north end of POA previous monitoring results at the POA was based on density; however, the property (immediately south of Cairn in relation to authorized take numbers. results between using densities versus Point). No less than 11 PSOs will be on Between 2008 and 2012, NMFS sighting rate are somewhat comparable watch at any given time during days authorized 34 beluga whale takes per (e.g., 94 exposures in Phase 1 using pile driving is occurring. In addition, we year to POA, with the same Level B sighting rates versus 103 exposures expect the Level B harassment zones for harassment shutdown mitigation using the highest density in Knik Arm). a majority of work to be smaller than measure that are included in the IHAs Further, there was extensive scientific previous zones given the use of the (we note that in these IHAs, we have monitoring and POA construction confined bubble curtain system with the also included additional mitigation monitoring occurring during these time casing pile. For these reasons, we believe the ability to detect whales and designed to reduce the potential for periods; therefore, we believe there is shut down prior to them entering the take). The percent of the authorized little potential that animals were taken Level B harassment zones will be takes that may have occurred as a result but not observed. Therefore we believe enhanced from previous years. of documented exposures within this first step in our analysis is To more accurately estimate potential harassment zones during this time reasonable. exposures than simply using the period ranged from 12 to 59 percent

TABLE 9—AUTHORIZED AND REPORTED BELUGA WHALE TAKES DURING POA ACTIVITIES FROM 2009–2012

Reported Authorized Percent of ITA effective dates authorized takes take takes occurred

15 July 2008–14 July 2009 ...... 12 34 35 15 July 2009–14 July 2010 ...... 20 34 59 15 July 2010–14 July 2011 ...... 13 34 38 15 July 2011–14 July 2012 ...... 4 34 12

Second, we applied the highest 2 (n=64) will actually be realized. This monitoring effort and POA percentage of previous takes (59 approach is further supported by the opportunistic data to determine if these percent) to ensure potential impacts to mitigation measures, which are strict numbers represented realistic scenarios. beluga whales are adequately evaluated. shutdown requirements for CIBWs, with Figure 4 presents data from the Therefore, we assume that a goal of avoiding Level B harassment scientific monitoring program. The approximately 59 percent of the takes take altogether. scientific monitoring data set calculated for Phase 1 (n=94) and Phase Finally, we then considered group documented 390 beluga whale sightings. size from the long-term scientific

Group size exhibits a mode of 1 and group size from the APU scientific groups consisted of more than 11.1 a median of 2, indicating that over half monitoring data set is 11.1 beluga whales. We conclude the amount of take of the beluga groups observed over the whales. This means that, of the 390 authorized following the approach 5-year span of the monitoring program documented beluga whale groups in this above allows for the potential for both were of individual beluga whales or data set, 95 percent consisted of fewer several small and some large groups to groups of 2. The 95th percentile of than 11.1 whales; 5 percent of the be exposed to noise above NMFS

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harassment thresholds. When harassment zone), the amount of take exposure to Level B harassment from considering the extensive monitoring authorized is justified. the PCT Project. We conclude there is (four PSO locations) and mitigation For reasons described above, NMFS the potential for 55 exposures in Phase never before required (e.g., pre- believes this approach adequately 1 and 35 exposures in Phase 2 (Table clearance of greater than the Level B analyzes the risk of beluga whale 10).

TABLE 10—BELUGA WHALE LEVEL B HARASSMENT EXPOSURES

PCT construction phase Calculated Authorized exposure take 1

Phase 1—2020 ...... 94 55 Phase 2—2021 ...... 60 35 1 Authorized take is identified as 59 percent of the calculated exposures using sighting rates.

In summary, the total amount of Level authorized for each marine mammal A harassment and Level B harassment stock is presented in Table 11.

TABLE 11—AUTHORIZED AMOUNT OF TAKE, BY STOCK AND HARASSMENT TYPE

Phase 1 (2020) Phase 2 (2021) Species Stock Percent Percent Level A Level B of stock Level A Level B of stock

Humpback whale ...... Central or Western N Pacific ...... 2 6 0.7 2 3 0.7 Beluga whale ...... Cook Inlet ...... 0 55 19.7 0 35 12.5 Killer whale ...... Transient/Alaska Resident ...... 0 12 2 0 12 2 Harbor porpoise ...... Gulf of Alaska ...... 21 43 0.2 13 25 0.2 Steller sea lion ...... Western ...... 0 13 <0.1 2 6 <0.1 Harbor seal ...... Cook Inlet/Shelikof ...... 305 711 3.6 180 420 2.1

Mitigation the nature of the potential adverse Phase 1 when water depth is deep In order to issue an IHA under impact being mitigated (likelihood, enough to deploy the bubble curtain. At Section 101(a)(5)(D) of the MMPA, scope, range). It further considers the this time, NMFS is not requiring an NMFS must set forth the permissible likelihood that the measure will be confined bubble curtain for Phase 2 methods of taking pursuant to such effective if implemented (probability of because the contractor has not been activity, and other means of effecting accomplishing the mitigating result if chosen by POA at this time, the the least practicable adverse impact on implemented as planned), the effectiveness of the confined bubble such species or stock and its habitat, likelihood of effective implementation curtain will be proven during Phase 1 paying particular attention to rookeries, (probability implemented as planned), and currently, there is no casing pile mating grounds, and areas of similar and; large enough to encapsulate 144-in significance, and on the availability of (2) the practicability of the measures piles. However, at minimum, an such species or stock for taking for for applicant implementation, which unconfined bubble curtain will be certain subsistence uses. NMFS may consider such things as cost, required for all plumb piles in Phase 2. regulations require applicants for impact on operations, and, in the case In addition to noise attenuation incidental take authorizations to include of a military readiness activity, devices, NMFS considered practicable information about the availability and personnel safety, practicality of work restrictions. For installation of feasibility (economic and technological) implementation, and impact on the 144-in piles included in Phase 2 (2021), of equipment, methods, and manner of effectiveness of the military readiness NMFS has determined that given the conducting such activity or other means activity. extensive Level B harassment zone of effecting the least practicable adverse The POA presented mitigation generated from this activity, vibratory impact upon the affected species or measures in section 11 of their driving these large piles during peak stocks and their habitat (50 CFR application that NMFS found did not beluga whale season poses an amount of 216.104(a)(11)). effect the least practicable adverse risk and uncertainty to the degree that In evaluating how mitigation may or impact on marine mammals, namely it should be minimized. This August may not be appropriate to ensure the CIBWs. Therefore, NMFS worked with peak is confirmed through acoustic least practicable adverse impact on the POA to greatly improve on monitoring (Castellote et al. 2020) where species or stocks and their habitat, as mitigation measures that both reduce the authors indicate beluga whales well as subsistence uses where noise into the aquatic environment and appeared concentrated in the upper applicable, we carefully consider two reduce the potential for CIBWs to be inlet year-round, but particularly primary factors: adversely impacted from any feeding in river mouths from April– (1) The manner in which, and the unavoidable noise exposure. December, shifting their geographical degree to which, the successful A key mitigation measure NMFS foraging preferences from the Susitna implementation of the measure(s) is considered for this project is reducing River region towards Knik Arm in mid- expected to reduce impacts to marine noise levels propagating into the August, and dispersing towards the mid mammals, marine mammal species or environment. The POA will use a inlet throughout the winter. Therefore, stocks, and their habitat. This considers confined bubble curtain on all piles in vibratory driving 144-in piles will not

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occur during August. Further, to mitigation measure more effective. For effectively monitor all waters within the minimize the potential for overlapping these reasons, the IHAs include a 100- CIBW Level B harassment due to sound fields from multiple stressors, the m shutdown zone for all marine environmental conditions (e.g., fog, rain, POA will not simultaneously operate mammals (except CIBWs) and has wind), pile driving may continue only two vibratory hammers for either pile issued Level A take, where appropriate. until the current segment of pile is installation or removal. This measure is For beluga whales, NMFS determined driven; no additional sections of pile or designed to reduce simultaneous in- the proposed shutdown zone of 100 m additional piles may be driven until water noise exposure. Because impact or the Level A harassment zone (if conditions improve such that the Level hammers will not likely be dropping at greater than 100 m) was not consistent B harassment zone can be effectively the same time, and to expedite with the conservation intentions of the monitored. If the Level B harassment construction of the project to minimize POA nor what NMFS would consider as zone cannot be monitored for more than pile driving during peak beluga whale effecting the least practicable adverse 15 minutes, the entire Level B abundance periods, NMFS is not impact based on the proposed project harassment zone must be cleared again proposing to restrict the operation of description and acoustic analysis. for 30 minutes prior to pile driving. two impact hammers at the same time. NMFS and the POA entered into In addition to these measures which NMFS also considered other means by discussions to address these issues and greatly reduce the potential for which to remove piles since the have determined that measures from harassment to CIBWs and establish majority of piles installed for this previous IHAs should be carried over shutdown zones that realistically reflect project are temporary. NMFS inquired (e.g., shutdown at the Level B non-beluga whale detectability, NMFS about the potential to direct pull piles harassment zone) but additional is including the following additional or cut them off at the mudline; thereby, measures would ensure valuable mitigation measures: reducing in-water noise levels. The POA protection and conservation of CIBWs. • PSOs shall begin observing for responded that the depth at which Therefore, NMFS has included marine mammals 30 minutes before pile temporary piles would be installed and mitigation measures exceeding those driving begins for the day and must substrate type precludes directly pulling proposed by the POA in their continue for 30 minutes when pile the piles. Cutting piles at the mudline application: driving ceases at any time. If pile also presents navigational (e.g., • Prior to the onset of pile driving, driving has ceased for more than 30 anchoring) and safety concerns. should a CIBW be observed approaching minutes within a day, another 30- Therefore, temporary piles will be the mouth of Knik Arm, pile driving minute pre-pile driving observation removed with a vibratory hammer; will be delayed. This in-bound pre- period is required before pile driving however, all will be done so in the clearance line extends from Point may commence. confines of a bubble curtain. Woronzof to approximately 2.5 kms • If a marine mammal is entering or In their IHA application, the POA west of Point McKenzie. Pile driving is observed within an established proposed a 100-m shutdown zone for all may commence once the whale(s) shutdown zone, pile driving must be marine mammals or, where the Level A moves at least 100 m past the Level B halted or delayed. Pile driving may not harassment zone was deemed to be harassment zone and on a path away commence or resume until either the greater than 100 m, a shutdown zone from the zone. A similar pre-pile driving animal has voluntarily left and been equivalent to the Level A harassment clearance zone will be established to the visually confirmed beyond the zone. NMFS found this measure did not north of the POA (from Cairn Point to shutdown zone or 15 minutes (non- effect the least practicable adverse the opposite bank), allowing whales to CIBW) or 30 minutes (CIBW) have impact on all marine mammals for leave Knik Arm undisturbed. Similar to passed without subsequent detections. several reasons. the in-bound whale clearance zone, pile NMFS may adjust the shutdown zones First, except for 48-in piles, the Level driving may not commence until a pending review and approval of an A harassment zones in the application whale(s) moves at least 100 m past the acoustic monitoring report. were based on estimated spectra, a Level B harassment zone and on a path • POA must use soft start techniques methodology that NMFS does not away from the zone. If non-beluga whale when impact pile driving. Soft start believe appropriate. Therefore, NMFS species are observed within or likely to requires contractors to provide an initial calculated Level A harassment zones for enter the Level B harassment zone prior set of three strikes at reduced energy, all piles (except 48-in piles) using the to pile driving, the POA may commence followed by a thirty-second waiting single frequency, default weighting pile driving but only if those animals period, then two subsequent reduced factor adjustment provided in the NMFS are outside the 100 m shutdown zone. energy strike sets. A soft start must be User Spreadsheet. As shown in Table 7, • If pile driving has commenced and implemented at the start of each day’s Level A harassment zones for low- a CIBW is observed within or likely to impact pile driving and at any time frequency and high frequency cetaceans enter the Level B harassment zone, pile following cessation of impact pile and pinnipeds are relatively large when driving will shut down and not re- driving for a period of thirty minutes or considering multiple piles installed per commence until the whale is out of and longer. day and installation of the 144-in piles. on a path away from the Level B • For in-water construction other Sighting rates at these distances, harassment zone or until no beluga than pile driving, the POA must cease specifically for harbor seals and whale has been observed in the Level B operations or reduce vessel speed to the porpoise, are likely ineffective to avoid harassment zone for 30 minutes. minimum level required to maintain take. Therefore, the POA’s proposal to • If vibratory hammering is required steerage and safe working conditions if shutdown at the Level A harassment on a 144-in pile, it may not be possible a marine mammal approaches within 10 zone is unlikely to be effective for to monitor the entire Level B m of the equipment or vessel. smaller species (i.e., harbor seal and harassment zone, as this zone may • POA is required to conduct harbor porpoise). Therefore, while the extend beyond the pre-clearance zone. briefings for construction supervisors POA has the liberty to shutdown at In this case, the pre-clearance zone and crews, the monitoring team, and greater than 100 m; this is likely a more remains applicable. POA staff prior to the start of all pile reasonable distance to observe these • If, during pile driving 24-, 36-, and driving activity, and when new small, erratic species, making the 48-in piles, PSOs can no longer personnel join the work, in order to

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explain responsibilities, communication action; or (4) biological or behavioral consistent identification of marine procedures, the marine mammal context of exposure (e.g., age, calving or mammal locations relative to the monitoring protocol, and operational feeding areas). harassment zones, regardless of procedures. • Individual marine mammal observation station. • If a species for which authorization responses (behavioral or physiological) The POA’s IHA application addresses has not been granted, or a species for to acoustic stressors (acute, chronic, or the majority of these recommendations which authorization has been granted cumulative), other stressors, or in its Marine Mammal Monitoring Plan but the authorized takes are met, is cumulative impacts from multiple (Appendix A in POA’s application) and observed approaching or within the stressors. NMFS has included additional monitoring zone (Table 7), pile driving • How anticipated responses to measures here. NMFS is requiring four and removal activities must shut down stressors impact either: (1) Long-term monitoring stations, and requiring at immediately using delay and shut-down fitness and survival of individual least three PSOs (two on-watch and one procedures. Activities must not resume marine mammals; or (2) populations, to record data) to be positioned at the until the animal has been confirmed to species, or stocks. northern and southern stations while have left the area or the 15 (non-CIBW) • Effects on marine mammal habitat two PSOs will be on-watch at the PCT or 30 (CIBW) minute observation period (e.g., marine mammal prey species, (i.e., pile driving) station. Each station has elapsed. acoustic habitat, or other important will be equipped with several pieces of Based on our evaluation of the physical components of marine equipment (see section 2.4 in Appendix applicant’s proposed measures, as well mammal habitat). A of POA’s application), including 25x as other measures considered by NMFS, • Mitigation and monitoring binoculars and a range finders, as NMFS has determined that the effectiveness. recommended above. One station will mitigation measures provide the means During the 2016 TPP, observers for have a theodolite. PSOs may observe for of effecting the least practicable adverse that project provided a number of no more than 4 hours at time and no impact on the affected species or stocks recommendations to improve marine more than 12 hours per day. The POA and their habitat, paying particular mammal monitoring for POA projects. will submit all PSO CVs to NMFS prior attention to rookeries, mating grounds, These recommendations included: to a PSO working on this project. In and areas of similar significance and on • A minimum of three PSOs at an addition, if POA is conducting non- the availability of such species or stock observation station is necessary to PCT-related in-water work that includes for subsistence uses. prevent fatigue and increase accuracy of PSOs, the PCT PSOs must be in real- detecting marine mammals, especially time contact with those PSOs, and both Monitoring and Reporting for large-radius zones. When using three sets of PSOs must share all information In order to issue an IHA for an PSOs, one PSO is observing, one PSO is regarding marine mammal sightings activity, Section 101(a)(5)(D) of the recording data (and observing when with each other. MMPA states that NMFS must set forth there are no data to record), and the To improve beluga whale detection, requirements pertaining to the third PSO is resting. A fourth PSO NMFS has worked with the POA to monitoring and reporting of such taking. allows the scanning of a 90-degree arc, include PSO stations in different The MMPA implementing regulations at instead of a 180-degree arc, increasing locations than the three stations 50 CFR 216.104 (a)(13) indicate that scan intensity and the likelihood of originally proposed by the POA, which requests for authorizations must include detecting marine mammals. Thirty to 60 were all on POA property. In addition, the suggested means of accomplishing minute rotations work well with this since publication of the notice of the necessary monitoring and reporting schedule. proposed IHAs, the POA has included a that will result in increased knowledge • Communications between the pile fourth monitoring station. One PSO of the species and of the level of taking driving/construction contractor and the station will be located at the PCT pile or impacts on populations of marine PSOs should take place between one driving site. One station will be at Port mammals that are expected to be dedicated point of contact, or Lead PSO, Woronzof or a similar location, rather present in the action area. Effective for each shift. than on the POA property, to maximize reporting is critical both to compliance • Each observation station should beluga whale detection outside of Knik as well as ensuring that the most value employ a pair of 25-power binoculars as Arm and the mouth of Knik Arm. PSOs is obtained from the required they were superior to the 7- and 10- at this location will have unencumbered monitoring. power binoculars at detecting and views of the entrance to Knik Arm and Monitoring and reporting identifying marine mammals at greater can provide information on beluga requirements prescribed by NMFS distances. whale group dynamics (e.g., group size, should contribute to improved • Electronic data collection methods demographics, etc) and behavior of understanding of one or more of the should be considered. Tablet animals approaching Knik Arm in the following: applications and other technological absence of and during pile driving. We • Occurrence of marine mammal advances make it possible to collect data also considered moving a station from species or stocks in the area in which quickly and accurately. A theodolite can the POA property to Port MacKenzie for take is anticipated (e.g., presence, be plugged into the device and marine an improved view of beluga whales abundance, distribution, density). mammal locations can be calculated on moving from north to south within Knik • Nature, scope, or context of likely the spot, minimizing uncertainty. Data Arm. However, Port MacKenzie is not marine mammal exposure to potential can be downloaded throughout the day an available option due to logistical stressors/impacts (individual or to a database, eliminating the need for reasons; therefore, the northern station cumulative, acute or chronic), through data entry by hand, and allowing will be located on POA property. A better understanding of: (1) Action or quicker data assessment. fourth PSO station will be located at environment (e.g., source • Hard copy maps with pre- Ship Creek. characterization, propagation, ambient established grid-cells and harassment For both Phase 1 and Phase 2, NMFS noise); (2) affected species (e.g., life zones specific to the pile location being is requiring the POA to submit interim history, dive patterns); (3) co-occurrence driven were invaluable. These maps weekly and monthly monitoring reports of marine mammal species with the allowed for immediate, accurate and (that include data sheets) during the

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PCT construction season. These reports cause of the injury or death is unknown and Phase 2 activities), as the must include a summary of marine and the death is relatively recent (e.g., anticipated effects of both Phase 1 and mammal species and behavioral in less than a moderate state of Phase 2 activities on marine mammals observations, pile driving shutdowns or decomposition), POA must immediately are expected to be relatively similar in delays, and pile driving work report the incident to the Office of nature. For CIBWs, there are meaningful completed. A final end-of season report Protected Resources, NMFS, and the differences in anticipated individual will be submitted to NMFS within 90 Alaska Region Stranding Coordinator, responses to activities, impact of days following pile driving. The report NMFS. In addition, in the event that expected take on CIBWs, or impacts on must include: Dates and times (begin POA discovers an injured or dead habitat; therefore, we provide a and end) of all marine mammal marine mammal, and the lead observer supplemental analysis for CIBWs, monitoring; a description of daily determines that the injury or death is independent of the other species for construction activities, weather not associated with or related to the which we authorize take. parameters and water conditions during specified activities (e.g., previously NMFS has identified key factors each monitoring period; number of wounded animal, carcass with moderate which may be employed to assess the marine mammals observed, by species, to advanced decomposition, or level of analysis necessary to conclude distances and bearings of each marine scavenger damage), POA must report the whether potential impacts associated mammal observed to the pile being incident to the Office of Protected with a specified activity should be driven or removed, age and sex class, if Resources, NMFS, and the Alaska considered negligible. These include possible; number of individuals of each Region Stranding Coordinator, NMFS, (but are not limited to) the type and species (differentiated by month as within 24 hours of the discovery. magnitude of taking, the amount and importance of the available habitat for appropriate) detected within the Negligible Impact Analyses and the species or stock that is affected, the monitoring zone, and estimates of Determinations number of marine mammals taken, by duration of the anticipated effect to the species (a correction factor may be NMFS has defined negligible impact species or stock, and the status of the applied); description of mitigation as an impact resulting from the species or stock. The following factors implemented, and description of specified activity that cannot be support negligible impact attempts to distinguish between the reasonably expected to, and is not determinations for the affected stocks of number of individual animals taken and reasonably likely to, adversely affect the humpback whales, killer whales, harbor species or stock through effects on the number of incidences of take. In porpoise, harbor seals, and Steller sea annual rates of recruitment or survival addition, any acoustic data and analysis lions. Some of these also apply to (50 CFR 216.103). A negligible impact collected throughout the year will also CIBWs; however, a more detailed finding is based on the lack of likely be made available to NMFS in the form analysis for CIBWs is provided below. adverse effects on annual rates of • of an interim report within 10 days of No takes by mortality or serious recruitment or survival (i.e., population- data collection for 24 to 48-in piles and injury are anticipated or authorized; level effects). An estimate of the number • 72 hours for 144-in piles. The POA will The number of total takes (by Level of takes alone is not enough information also submit draft and final reports A and Level B harassment) are less than on which to base an impact within 60 days of the conclusion of 3 percent of the best available determination. In addition to acoustic monitoring each season. abundance estimates for all stocks; considering estimates of the number of • Take would not occur in places Reported metrics will include, but are marine mammals that might be ‘‘taken’’ and/or times where take would be more not limited to, monitoring methods, through harassment, NMFS considers likely to accrue to impacts on mean, median, and peak sound source other factors, such as the likely nature reproduction or survival, such as within levels (dB re: 1mPa): cumulative sound of any responses (e.g., intensity, ESA-designated or proposed critical exposure level (SELcum), peak sound duration), the context of any responses habitat, biologically important areas pressure level (SPLpeak), root mean (e.g., critical reproductive time or (BIA), or other habitats critical to square sound pressure level (SPLrms), location, migration), as well as effects recruitment or survival (e.g., rookery); and single-strike sound exposure level on habitat, and the likely effectiveness • Take would occur over a short (SELs-s), spectra, and amount of pile of the mitigation. We also assess the timeframe, being limited to the short strikes or vibratory hammer duration. In number, intensity, and context of duration a marine mammal would likely addition, during PCT hydroacoustic estimated takes by evaluating this be present within a Level B harassment monitoring, allin-water work occurring information relative to population zone during pile driving; in the area (e.g., dredging, other in-water status. Consistent with the 1989 • Any impacts to marine mammal work at the POA, vessel transit) must be preamble for NMFS’s implementing habitat from pile driving are temporary documented (e.g., type of activity, regulations (54 FR 40338; September 29, and minimal; and location relative to recordings, date/ 1989), the impacts from other past and • Take would only occur within time) and reported in the acoustic ongoing anthropogenic activities are upper Cook Inlet—a limited, confined monitoring report. incorporated into this analysis via their area of any given stock’s home range. NMFS has also included reporting impacts on the environmental baseline For CIBWs, we further discuss our requirements for unanticipated (e.g., as reflected in the regulatory status negligible impact findings in the context situations. In the unanticipated event of the species, population size and of potential impacts to this endangered that the specified activity clearly causes growth rate where known, ongoing stock. As described in the Recovery Plan the take of a marine mammal in a sources of human-caused mortality, or for the Cook Inlet Beluga Whale (NMFS, manner prohibited by this IHA, such as ambient noise levels). Below we present 2016), NMFS determined the following serious injury, or mortality, POA must our analysis for each IHA. physical or biological features are immediately cease the specified To avoid repetition, the discussion essential to the conservation of this activities and report the incident to below applies to all the species listed in species: (1) Intertidal and subtidal NMFS. In the event POA discovers an Table 11 for which we authorized take, waters of Cook Inlet with depths less injured or dead marine mammal, and other than CIBWs, for each IHA (i.e., the than 30 feet mean lower low water (9.1 the lead observer determines that the POA’s planned activities for Phase 1 m) and within 5 mi (8 km) of high and

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medium flow anadromous fish streams; masking of vocalizations used for the POA shutdown based on more (2) Primary prey species consisting of communication and prey location, and vulnerable life stages (e.g., calf four species of Pacific salmon (Chinook, habitat degradation. The 2016 workshop presence) but ultimately determined all sockeye, chum, and coho), Pacific on beluga whales was specifically beluga whales warranted pile driving eulachon, Pacific cod, walleye pollock, designed to provide regulators with a shutdown to be protective of potential saffron cod, and yellowfin sole, (3) tool to help understand whether chronic vulnerable life stages, such as Waters free of toxins or other agents of and acute anthropogenic noise from pregnancy, that could not be determined a type and amount harmful to CI beluga various sources and projects are likely from observations, and to avoid more whales, (4) Unrestricted passage within to be limiting recovery of the CIBW severe behavioral reaction. or between the critical habitat areas, and population. The full report can be found Monitoring data from the POA suggest (5) Waters with in-water noise below at http://www.smruconsulting.com/ pile driving does not discourage beluga levels resulting in the abandonment of publications/ and we provide a whales from entering Knik Arm and critical habitat areas by CI beluga summary of the expert elicitation travelling to critical foraging grounds whales. The PCT would not impact portion of the workshop here. such as those around Eagle Bay. As essential features 1–3 listed above. All For each of the noise effect previously described, sighting rates construction would be done in a manner mechanisms chosen for expert were not different in the presence or implementing best management elicitation, the experts provided a set of absence of pile driving. This is not practices to preserve water quality and parameters and values that determined surprising as food is a strong motivation no work would occur around creek the forms of a relationship between the for marine mammals. As described in mouths or river systems leading to prey number of days of disturbance a female Forney et al. (2017), animals typically abundance reductions. In addition, no CIBW experiences in a particular period favor particular areas because of their physical structures would restrict and the effect of that disturbance on her importance for survival (e.g. feeding or passage; however, impacts to the energy reserves. Examples included the breeding), and leaving may have acoustic habitat are of concern. Previous number of days of disturbance during significant costs to fitness (reduced marine mammal monitoring data at the the period April, May and June that foraging success, increased predation POA demonstrate beluga whales indeed would be predicted to reduce the energy risk, increased exposure to other pass by the POA during pile driving. As reserves of a pregnant CIBW to such a anthropogenic threats). Consequently, described above, there was no level that she is certain to terminate the animals may be highly motivated to significant difference in beluga sighting pregnancy or abandon the calf soon after maintain foraging behavior in historical rate with and in the absence of pile birth, the number of days of disturbance foraging areas despite negative impacts driving (Kendell and Cornick, 2015). in the period April-September required (e.g., Rolland et al. 2012). Previous However, beluga whales do swim faster to reduce the energy reserves of a monitoring data indicates beluga whales and in tighter formation in the presence lactating CIBW to a level where she is are responding to pile driving noise but of pile driving (Kendell and Cornick, certain to abandon her calf, and the not through abandonment of critical 2015). number of days of disturbance where a habitat, including primary foraging During review of the POA’s female fails to gain sufficient energy by areas north of the port. Instead, they application, NMFS was concerned that the end of summer to maintain travel faster past the POA, more quietly, exposure to pile driving at the PCT themselves and their calves during the and in tighter groups (which may be could result in beluga whales avoiding subsequent winter. Overall, median linked to the decreased communication Knik Arm and thereby not accessing the values ranged from 16 to 69 days of patterns). This traveling behavior past productive foraging grounds north of disturbance depending on the question. the POA has also been verified by POA such as Eagle River flats based on However, for this elicitation, a ‘‘day of acoustic monitoring. Castellote et al. the proposed project and mitigation disturbance’’ was defined as any day on (2020) found low echolocation detection measures—thus, impacting essential which an animal loses the ability to rates in lower Knik Arm indicating feature number 5 above. Although the forage for at least one tidal cycle (i.e., it belugas moved through that area data previously presented demonstrate forgoes 50–100% of its energy intake on relatively quickly when entering or whales are not abandoning the area (i.e., that day). Therefore, disturbance in this exiting the Arm. We anticipate these no significant difference in sighting rate context is not equivalent to Level B behaviors to continue, and do not with and without pile driving), we harassment but would represent believe exposure to elevated noise levels considered the results of a recent expert increased severity compared with Level during transit past the POA has adverse elicitation (EE) at a 2016 workshop, B harassment as defined in the MMPA. effects on reproduction or survival as which predicted the impacts of noise on The mitigation measures NMFS has the whales continue to access critical CIBW survival and reproduction given prescribed for the PCT project are foraging grounds north of the POA, and lost foraging opportunities, to inform designed to avoid the potential that any tight associations help to mitigate the our assessment of impacts on this stock. animal would lose the ability to forage potential for any contraction of The 2016 EE workshop used conceptual for one or more tidal cycles. While Level communication space for a group. models of an interim population B harassment (behavioral disturbance) is Finally, as described previously, both consequences of disturbance (PCoD) for authorized, our mitigation measures telemetry (tagging) and acoustic data marine mammals (NRC 2005; New et al. would limit the severity of the effects of suggest beluga whales likely stay in 2014, Tollit et al., 2016) to help in that Level B harassment to behavioral upper Knik Arm for several days or understanding how noise-related changes such as increased swim speeds, weeks before exiting Knik Arm. stressors might affect vital rates tighter group formations, and cessation Specifically, a beluga instrumented with (survival, birth rate and growth) for of vocalizations, not the loss of foraging a satellite link time/depth recorder CIBW (King et al. 2015). NMFS (2015, capabilities. Regardless, this elicitation entered Knik Arm on August 18th and section IX.D—CI Beluga Hearing, recognized that pregnant or lactating remained in Eagle Bay until September Vocalization, and Noise Supplement) females and calves are inherently more 12th (Ferrero et al. 2000). Further, a suggests that the main direct effects of at risk than other animals, such as recent detailed re-analysis of the noise on CIBW are likely to be through males. NMFS first considered proposing satellite telemetry data confirms how

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several tagged whales exhibited this • No critical foraging grounds (e.g. mammals and their habitat, and taking same movement pattern: whales entered Eagle Bay, Eagle River, Susitna Delta) into consideration the implementation Knik Arm and remained there for would be impacted by pile driving; and of the required monitoring and several days before exiting through • While animals could be harassed mitigation measures, we find that the lower Knik Arm (Shelden et al. 2018). more than once, exposures are not likely total marine mammal take from the This longer-term use of upper Knik Arm to exceed more than a few per year for POA’s construction activities in Phase 2 would avoid repetitive exposures from any given individual and are not will have a negligible impact on the pile driving noise. expected to occur on sequential days; affected marine mammal species or thereby, decreasing the likelihood of NMFS has prescribed mitigation stocks. physiological impacts caused by chronic measures beyond those proposed by the stress or masking. Small Numbers POA in the IHA application, We also considered our negligible As noted above, only small numbers specifically, not commencing pile impact analysis with respect to NMFS’ of incidental take may be authorized driving if beluga whales are observed technical report released in January under Sections 101(a)(5)(A) and (D) of within Knik Arm or within 1 km of the 2020 regarding the abundance and the MMPA for specified activities other mouth of Knik Arm, shutting down pile status of CIBWs (Sheldon and Wade, than military readiness activities. The driving should a beluga whale approach 2019). As described in the marine MMPA does not define small numbers or enter the Level B harassment zone, mammal section, new analysis indicates and so, in practice, where estimated stationing PSOs at Point Woronzof and the CIBW stock is smaller and declining numbers are available, NMFS compares Ship Creek, and not vibratory pile faster than previously recognized. While the number of individuals taken to the driving 144-in piles during August this is concerning, NMFS continues to most appropriate estimation of (peak beluga season). These measures believe the taking authorized (allowed abundance of the relevant species or are designed to ensure beluga whales for in the cases where shutdowns stock in our determination of whether will not abandon critical habitat and cannot occur in time to avoid Level B an authorization is limited to small exposure to pile driving noise will not harassment take) will have a negligible numbers of marine mammals. result in adverse impacts on the impact. The monitoring measures (four Additionally, other qualitative factors reproduction or survival of any stations each equipped with two PSOs may be considered in the analysis, such individuals. The location of PSOs at simultaneously on watch at each as the temporal or spatial scale of the Point Woronzof allows for detection of station) are extensive, such that we find activities. beluga whales at much farther distances it unlikely whales would go undetected. For all non-CIBW stocks, for both the than previous years and behavioral The mitigation measures reduce noise Phase 1 and Phase 2 IHAs, the amount observations prior to whales entering entering the water column (a benefit for of taking is less than one-third of the Knik Arm. Although NMFS does not all marine mammals) through the use of best available population abundance anticipate beluga whales would a confined bubble curtain and noise estimate (in fact it is less than 4 percent abandon entering Knik Arm in the levels would be verified upon the onset for all stocks considered here). Further, presence of pile driving with the of pile driving to verify estimated the amount of take authorized likely required mitigation measures, these harassment zones. Further, the exposure represents smaller numbers of PSOs will be integral to identifying if risk to CIBWs is greatly minimized individual harbor seals and Steller sea belugas are potentially altering through the incorporation of in-bound lions. Harbor seals tend to concentrate pathways they would otherwise take in and out-bound whale pre-pile driving near Ship Creek and have small home the absence of pile driving. Because the clearance zones. Finally, should pile ranges; therefore, the amount of take POA is submitting weekly and monthly driving be occurring at the same time a authorized likely represents repeat reports, NMFS will be able to regularly whale is detected, pile driving would exposures to the same animals. Previous evaluate if the impacts of the project are shut down prior to its entering the Level Steller sea lion sightings identified that having a greater than anticipated impact B harassment zone. All these measures, if a Steller sea lion is within Knik Arm, on beluga whales. If we find the project as well as other required measures such it is likely lingering to forage on salmon is having a greater than negligible as soft-starts, greatly reduce the risk of or eulachon runs and may be present for impact on marine mammals, the IHA animals not accessing important several days. may be modified or revoked. Finally, foraging areas north of the POA, which We provide additional information take by mortality, serious injury, or could result in impacts to annual rates with respect to CIBW. They are known Level A harassment of CIBWs is not of recruitment or survival. For these to enter Knik Arm and then exit after anticipated or authorized. reasons, the new status of CIBWs does several days of remaining within Knik In summary and as described above, not ultimately change our findings with Arm. There is potential an individual is the following factors primarily support respect to the specified activities. taken on both ingress and egress; our determination that the impacts Phase 1 IHA—Based on the analysis however, due to the mitigation measures resulting from the activities analyzed contained herein of the likely effects of (essentially takes are for animals where under each of these two separate IHAs the specified activity on marine pile driving cannot be shut down before are not expected to adversely affect mammals and their habitat, and taking exposure), the circumstances would CIBWs through effects on annual rates into consideration the implementation have to be such that pile driving is of recruitment or survival: of the required monitoring and occurring while the whale is both • mitigation measures, we find that the entering and exiting Knik Arm and that No mortality or serious injury is total marine mammal take from the the animal is missed or taken due to anticipated or authorized; POA’s construction activities in Phase 1 logistical constraints of shutting down • Area of exposure would be limited will have a negligible impact on the pile driving immediately in both cases. to travel corridors. Data demonstrates affected marine mammal species or Phase 1 IHA—Based on the analysis Level B harassment manifests as stocks. contained herein of the likely effects of increased swim speeds past the POA Phase 2 IHA—Based on the analysis the specified activity in Phase 1 on and tight group formations and not contained herein of the likely effects of marine mammals and their habitat, and through habitat abandonment; the specified activity on marine taking into consideration the

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implementation of the mitigation and relied on harbor seals, Steller sea lions authorizing the take of humpback monitoring measures, we find that small and sea otters (we note the sea otter is whales (Mexico DPS, Western North numbers of marine mammals will be under the jurisdiction of the USFWS; Pacific DPS), wDPS Steller sea lions, taken relative to the populations of the therefore, it is not a part of our analysis). and CIBWs. On March 23, 2020, NMFS affected species or stocks. The potential impacts from AKR released a Biological Opinion Phase 2 IHA—Based on the analysis harassment on stocks that are harvested concluding the proposed action would contained herein of the likely effects of in Cook Inlet would be limited to minor not jeopardize the continued existence the specified activity in Phase 2 on behavioral changes (e.g., increased swim of the aforementioned species and marine mammals and their habitat, and speeds, changes in dive time, temporary would not destroy or adversely modify taking into consideration the avoidance near the POA, etc.) within the critical habitat. implementation of the mitigation and vicinity of the POA. Some PTS may National Environmental Policy Act monitoring measures, we find that small occur; however, the shift is likely to be numbers of marine mammals will be slight due to the implementation of To comply with the National taken relative to the populations of the mitigation measures (e.g., shutdown Environmental Policy Act of 1969 affected species or stocks. zones) and the shift would be limited to (NEPA; 42 U.S.C. 4321 et seq.) and lower pile driving frequencies which are NOAA Administrative Order (NAO) Unmitigable Adverse Impact Analysis on the lower end of phocid and otariid and Determination 216–6A, NMFS must review our hearing ranges. In summary, any proposed action (i.e., the issuance of an In order to issue an IHA, NMFS must impacts to harbor seals would be incidental harassment authorization) find that the specified activity will not limited to those seals within Knik Arm with respect to potential impacts on the have an ‘‘unmitigable adverse impact’’ (outside of any hunting area) and the human environment. on the subsistence uses of the affected very few takes of Steller sea lions in Knik Arm would be far removed in time NMFS prepared a draft EA to consider marine mammal species or stocks by the environmental impacts associated Alaskan Natives. NMFS has defined and space from any hunting in lower Cook Inlet. with the issuance of two IHAs which ‘‘unmitigable adverse impact’’ in 50 CFR was made available to the public during 216.103 as an impact resulting from the Finally, we have not received any communication from Alaska Natives the public comment period on the specified activity: (1) That is likely to proposed IHAs. NMFS’ final EA reduce the availability of the species to that this project raises concern regarding their subsistence use. The POA alerted considered comments submitted during a level insufficient for a harvest to meet the public comment period and found subsistence needs by: (i) Causing the 14 tribal organizations and communities to the notice of proposed IHAs. No that authorizing take of marine marine mammals to abandon or avoid mammals by issuing the IHAs would hunting areas; (ii) Directly displacing tribes commented on or expressed concern over subsistence use during the not result in significant direct, indirect, subsistence users; or (iii) Placing or cumulative impacts to the human physical barriers between the marine public comment period for the proposed IHAs. environment. Accordingly, NMFS mammals and the subsistence hunters; For all these reasons, relevant to both determined that issuance of the IHAs to and (2) That cannot be sufficiently the Phase 1 and Phase 2 IHAs, NMFS the POA would not significantly impact mitigated by other measures to increase has determined that the total taking of the quality of the human environment the availability of marine mammals to affected species or stocks would not and signed a Finding of No Significant allow subsistence needs to be met. have an unmitigable adverse impact on Impact (FONSI). NMFS’ Final EA and No subsistence use of CIBWs occurs the availability of such species or stocks FONSI are available online at https:// and subsistence harvest of other marine for taking for subsistence purposes. www.fisheries.noaa.gov/permit/ mammals in upper Cook Inlet is limited incidental-take-authorizations-under- to harbor seals. Steller sea lions are rare Endangered Species Act (ESA) marine-mammal-protection-act. in upper Cook Inlet; therefore, Section 7(a)(2) of the Endangered subsistence use of this species is not Species Act of 1973 (ESA: 16 U.S.C. Authorization common. However, Steller sea lions are 1531 et seq.) requires that each Federal As a result of these determinations, taken for subsistence use in lower Cook agency insure that any action it NMFS has issued the two requested Inlet. In 2013 and 2014, the ADF&G authorizes, funds, or carries out is not IHAs to the POA for the PCT Project, conducted studies to document the likely to jeopardize the continued provided the previously mentioned harvest and use of wild resources by existence of any endangered or mitigation, monitoring, and reporting residents of four tribal communities in threatened species or result in the requirements are incorporated. A copy Cook Inlet: Tyonek, Nanwalek, Port destruction or adverse modification of of the final IHAs can be found at https:// Graham, and Seldovia (Jones and designated critical habitat. To ensure www.fisheries.noaa.gov/permit/ Kostick 2016). Tyonek is the community ESA compliance for the issuance of incidental-take-authorizations-under- in closest proximity to Knik Arm while IHAs, NMFS consults internally, in this marine-mammal-protection-act. the other communities are located lower case with the Alaska Region Protected in Cook Inlet. The only marine mammal Resources Division (AKR), whenever we Dated: April 1, 2020. species taken by the Tyonek community propose to authorize take for Donna S. Wieting, was harbor seals (from the McArthur endangered or threatened species. Director, Office of Protected Resources, River Flats north to the Beluga River On November 18, 2019, NMFS National Marine Fisheries Service. (Jones et al. 2015)- south of Knik Arm) requested consultation on the issuance [FR Doc. 2020–07106 Filed 4–3–20; 8:45 am] while communities lower in the inlet of two successive IHAs to the POA BILLING CODE 3510–22–P

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Part IV

Department of Labor

Wage and Hour Division 29 CFR Part 826 Paid Leave Under the Families First Coronavirus Response Act; Temporary Rule

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DEPARTMENT OF LABOR O. Prohibited Acts and Enforcement experiencing a substantially similar P. Effect of Other Laws, Employer condition, as specified by the Secretary Wage and Hour Division Practices, and Collective Bargaining of Health and Human Services. The Agreements FFCRA also requires covered employers 29 CFR Part 826 IV. Statutory and Regulatory Requirements A. Administrative Procedure Act to provide up to twelve weeks of RIN 1235–AA35 B. Executive Order 12866, Regulatory expanded family and medical leave, up Planning and Review; and Executive to ten weeks of which must be paid at Paid Leave Under the Families First Order 13563, Improved Regulation and partial pay, up to a specified cap, when Coronavirus Response Act Regulatory Review an eligible employee is unable to work C. Regulatory Flexibility Act because of a need to care for the AGENCY: Wage and Hour Division, D. Unfunded Mandates Reform Act of 1995 employee’s son or daughter whose Department of Labor. E. Executive Order 13132 (Federalism) school or place of care is closed, or ACTION: Temporary rule. F. Indian Tribal Governments whose child care provider is G. Paperwork Reduction Act unavailable, due to COVID–19 related SUMMARY: The Secretary of Labor I. Executive Summary reasons. (‘‘Secretary’’) is promulgating temporary The FFCRA covers private employers On March 18, 2020, President Trump regulations to implement public health with fewer than 500 employees and signed into law the FFCRA, which emergency leave under Title I of the certain public employers. Small creates two new emergency paid leave Family and Medical Leave Act (FMLA), employers with fewer than 50 requirements in response to the COVID– and emergency paid sick leave to assist employees may qualify for an working families facing public health 19 global pandemic. Division E of the exemption from the requirement to emergencies arising out of Coronavirus FFCRA, ‘‘The Emergency Paid Sick provide paid leave due to school, place Disease 2019 (COVID–19) global Leave Act’’ (EPSLA), entitles certain of care, or child care provider closings pandemic. The leave is created by a employees to take up to two weeks of or unavailability, if the leave payments time-limited statutory authority paid sick leave. Division C of the would jeopardize the viability of their established under the Families First FFCRA, ‘‘The Emergency Family and business as a going concern. Coronavirus Response Act, Public Law Medical Leave Expansion Act’’ Under the FFCRA, covered private 116–127 (FFCRA), and is set to expire (EFMLEA), which amends Title I of the employers qualify for reimbursement on December 31, 2020. The FFCRA and Family and Medical Leave Act, 29 through refundable tax credits as this temporary rule do not affect the U.S.C. 2601 et seq. (FMLA), permits administered by the Department of the FMLA after December 31, 2020. certain employees to take up to twelve Treasury, for all qualifying paid sick DATES: This rule is effective from April weeks of expanded family and medical leave wages and qualifying family and 2, 2020, through December 31, 2020. leave, ten of which are paid, for medical leave wages paid to an This rule became operational on April 1, specified reasons related to COVID–19. employee who takes leave under the 2020. On March 27, 2020, President Trump FFCRA, up to per diem and aggregate FOR FURTHER INFORMATION CONTACT: signed into law the Coronavirus Aid, caps, and for allocable costs related to Amy DeBisschop, Director, Division of Relief, and Economic Security Act, the maintenance of health care coverage Regulations, Legislation, and Public Law 116–136 (CARES Act), under any group health plan while the Interpretation, Wage and Hour Division, which amends certain provisions of the employee is on the leave provided U.S. Department of Labor, Room S– EPSLA and the provisions of the FMLA under the FFCRA. For information on 3502, 200 Constitution Avenue NW, added by the EFMLEA. the tax credits, see https://www.irs.gov/ Washington, DC 20210, telephone: (202) In general, the FFCRA requires forms-pubs/about-form-7200 see also 693–0406 (this is not a toll-free covered employers to provide eligible https://www.irs.gov/pub/irs-drop/n-20- number). employees up to two weeks of paid sick 21.pdf. For more information on the leave at full pay, up to a specified cap, COVID–19 related small business loans, SUPPLEMENTARY INFORMATION: when the employee is unable to work see https://www.sba.gov/page/ I. Executive Summary because the employee is subject to a II. Background coronavirus-covid-19-small-business- A. Emergency Paid Sick Leave Act (EPSLA) Federal, State, or local quarantine or guidance-loan-resources. B. Emergency Family and Medical Leave isolation order related to COVID–19, has The CARES Act amended the FFCRA Expansion Act (EFMLEA) been advised by a health care provider by providing certain technical III. Discussion to self-quarantine due to concerns corrections, as well as clarifying the A. General related to COVID–19, or is experiencing caps for payment of leave; expanded B. Paid Leave Entitlements COVID–19 symptoms and seeking a family and medical leave to certain C. Employee Eligibility medical diagnosis. The FFCRA also employees who were laid off or D. Employer Coverage provides up to two weeks of paid sick terminated after March 1, 2020, but are E. Intermittent Leave leave at partial pay, up to a specified F. Leave To Care for a Child Due to School reemployed by the same employer prior or Place of Care Closure or Child Care cap, when an employee is unable to to December 31, 2020; and provided Unavailability—Interaction Between the work because of a need to care for an authority to the Director of the Office of EPSLA and the EFMLEA individual subject to a Federal, State, or Management and Budget (OMB) to G. Leave To Care for a Child Due to School local quarantine or isolation order exclude certain Federal employees from or Place of Care Closure or Child Care related to COVID–19 or who has been paid sick leave and expanded family Unavailability—Interaction Between the advised by a health care provider to self- and medical leave. EFMLEA and the FMLA quarantine due to concerns related to The FFCRA grants authority to the H. Employer Notice COVID–19; because of a need to care for Secretary to issue regulations for certain I. Employee Notice of Need for Leave J. Documentation of Need for Leave the employee’s son or daughter whose purposes. In particular, sections K. Health Care Coverage school or place of care is closed, or 3102(b), as amended by section 3611(7) L. Multiemployer Plans whose child care provider is of the CARES Act, and 5111(3) of the M. Return to Work unavailable, due to COVID–19 related FFCRA grant the Secretary authority to N. Recordkeeping reasons; or because the employee is issue regulations ‘‘as necessary, to carry

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out the purposes of this Act, including taking paid sick leave; similarly, the described in sections 216 and 217 of the to ensure consistency’’ between the Secretary has the authority to exclude FLSA. 29 U.S.C. 215(a)(3), 216, 217. The EPSLA and the EFMLEA. The by rulemaking ‘‘certain health care EPSLA also authorizes the Secretary to Department is issuing this temporary providers and emergency responders’’ investigate and gather data to ensure rule to carry out the purposes of the from the requirements of the EPSLA. compliance with the EPSLA in the same FFCRA. These new paid sick leave and FFCRA sections 5102(a), 5102(e)(1), manner as authorized by sections 9 and expanded family and medical leave 5111(1). The CARES Act also added 11 of the FLSA, and the CARES Act requirements became operational on certain exemptions that may apply to section 3611(9) (adding FFCRA section April 1, 2020, effective on April 2, 2020, Federal employers and employees, 5105(c)); 29 U.S.C. 209, 211. and will expire on December 31, 2020. which are discussed below. The EPSLA requires employers to Pursuant to the Congressional Review The EPSLA entitles full-time covered post a notice of employees’ rights under Act (5 U.S.C. 801 et seq.), the Office of employees to up to 80 hours of paid sick the EPSLA. It permits, but does not Information and Regulatory Affairs leave, and generally entitles part-time require, employers who are signatories (OIRA) designated this rule as a ‘‘major employees to up to the number of hours to multiemployer collective bargaining rule’’, as defined by 5 U.S.C. 804(2). that they work on average over a two- agreements to fulfill their obligations week period, although special rules may under the EPSLA by making II. Background apply to part-time employees with contributions to a multiemployer fund, A. Emergency Paid Sick Leave Act varying schedules. For an employee plan, or program, subject to certain (EPSLA) who takes paid sick leave because he or requirements. Nothing in the EPSLA she is subject to a quarantine or diminishes the rights or benefits that an The EPSLA requires employers to isolation order, has been advised to self- employee is entitled to under any other provide paid sick leave to employees quarantine by a health care provider, or Federal, State, or local law; collective who are unable to work for six reasons is experiencing symptoms of COVID–19 bargaining agreement; or existing having to do with COVID–19 where the and is seeking a medical diagnosis, the employer policy. Moreover, the EPSLA employee (1) is subject to a Federal, EPSLA provides for paid sick leave at does not require financial or other State, or local quarantine or isolation the greater of the employee’s regular rate reimbursement by an employer to an order related to COVID–19; (2) has been of pay under section 7(e) of the Fair employee for unused paid sick leave advised by a health care provider to self- Labor Standards Act of 1938, as upon the employee’s separation from quarantine due to concerns related to amended, 29 U.S.C. 201 et seq. (FLSA) employment. COVID–19; (3) is experiencing (29 U.S.C. 207(e)), or the applicable B. Emergency Family and Medical Leave symptoms of COVID–19 and is seeking minimum wage (federal, state, or local), Expansion Act (EFMLEA) a medical diagnosis; (4) is caring for an up to $511 per day and $5,110 in the individual who is subject to an order as aggregate. An employee who takes paid The EFMLEA requires employers to described in (1), or who has been sick leave for any other qualifying provide expanded paid family and advised as described in (2); (5) is caring reason under the EPSLA is entitled to be medical leave to eligible employees who for his or her son or daughter whose paid two-thirds of that amount, up to are unable to work because the school or place of care has been closed $200 per day and $2,000 in the employee is caring for his or her son or or whose child care provider is aggregate. An employer may not require daughter whose school or place of care unavailable due to COVID–19 related an employee to use other paid leave is closed or whose child care provider reasons; or (6) is experiencing any other provided by the employer before the is unavailable due to a public health substantially similar condition specified employee uses the paid sick leave, nor emergency, defined as an emergency by the Secretary of Health and Human may an employer require the employee with respect to COVID–19, declared by Services in consultation with the involved to search for or find a a Federal, State, or local authority. Secretary of the Treasury and the replacement employee to cover the The EFMLEA applies to different sets Secretary of Labor. hours during which the employee is of employers and employees from the Private employers with fewer than using paid sick leave. other provisions of the FMLA. Private 500 employees, as well as public The EPSLA also provides that employers with fewer than 500 agencies with one or more employees, employers who fail to provide paid sick employees must comply with the must comply with the EPSLA, although leave as required are considered to have EFMLEA, although the Secretary has the the Secretary has authority to exempt by failed to pay minimum wages in authority to exempt by rulemaking rulemaking certain employers with violation of section 6 of the FLSA, and employers with fewer than 50 fewer than 50 employees from providing that such employers are subject to employees from EFMLEA’s paid sick leave to an employee who is enforcement proceedings described in requirements when compliance with the unable to work because the employee is sections 16 and 17 of the FLSA. 29 EFMLEA would ‘‘jeopardize the caring for his or her son or daughter U.S.C. 206, 216, 217. In addition, the viability of the business as a going whose school or place of care has been EPSLA prohibits employers from concern.’’ FFCRA section 3102(b) closed or whose child care provider is discharging, disciplining, or in any (adding FMLA section 110(a)(1)(B), unavailable due to COVID–19 related other manner discriminating against an (3)(B)). Generally, public agencies as reasons when compliance with this employee who takes paid sick leave defined at § 826.10(a) must comply with requirement would ‘‘jeopardize the under the EPSLA, files any complaint the EFMLEA. As it relates to the Federal viability of the business as a going under or relating to the EPSLA, government, however, only those concern.’’ FFCRA sections institutes any proceeding under or Federal employees covered by Title I of 5100(2)(B)(i)–(ii), 5111(2). The EPSLA relating to the EPSLA, or testifies in any the FMLA are potentially eligible under applies to employees of covered such proceeding. See FFCRA section the EFMLEA. 29 U.S.C. 2611(2)(B)(i). employers regardless of how long an 5104, as amended by CARES Act section The EFMLEA applies to employees of employee has worked for an employer, 3611(8). Employers who violate this covered employers if such employees except that employers may exclude prohibition are considered to have have been employed by the employer employees who are health care violated section 15(a)(3) of the FLSA, for at least 30 calendar days. This providers or emergency responders from and are subject to the penalties includes employees who were laid off or

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otherwise terminated on or after March provisions, 29 U.S.C. 2617, apply for when an employee may take leave to 1, 2020, had worked for the employer purposes of the EFMLEA, except that an care for his or her son or daughter for at least thirty of the prior 60 calendar employee’s right to file a lawsuit whose school or place of care is closed days, and were subsequently rehired or directly against an employer does not or child care provider is unavailable due otherwise reemployed by the same extend to employers who were not to COVID–19 related reasons. The employer. CARES Act section 3605 previously covered by the FMLA. Department is therefore treating the (amending FMLA section 110(a)(1)(A)). The EFMLEA permits, but does not definitions as the same (i.e., to include As with the EPSLA, employers may, require, employers who are signatories children under 18 years of age and however, exclude employees who are to multiemployer collective bargaining children age 18 or older who are health care providers or emergency agreements to fulfill their obligations incapable of self-care because of a responders from taking expanded family under the EFMLEA by making mental or physical disability), pursuant and medical leave, and similarly, the contributions to a multiemployer fund, to its statutory authority to issue Secretary has the authority to exclude plan, or program, subject to certain regulations to ensure consistency by rulemaking ‘‘certain health care requirements. between the EPSLA and the EFMLEA. Only one other definition in the providers and emergency responders’’ III. Discussion from the requirements of the EFMLEA. FFCRA—‘‘telework’’—bears further An employee is entitled to take up to The paid leave requirements of the discussion here. Section 826.10 defines twelve weeks of leave for the purpose EPSLA and the EFMLEA are described the word broadly to effectuate the described in the EFMLEA. 29 U.S.C. and interpreted by the Secretary in statute’s underlying purposes and also 2611(a)(1). The first two weeks (usually regulations to appear in new Part 826 of outlines when an employee is able to ten workdays) of this leave are unpaid, Title 29 of the Code of Federal telework. The definition also clarifies though an employee may substitute paid Regulations, and addressed below. that telework is no less work than if it sick leave under the EPSLA or paid A. General were performed at an employer’s leave under the employer’s preexisting worksite. As a result, employees who policies for these two weeks of unpaid Section 826.10 contains definitions of are teleworking for COVID–19 related leave. Unlike FMLA leave taken for terms used in the EPSLA and the reasons must always record—and be other reasons, the following period of EFMLEA as well as in this rule. As a compensated for—all hours actually up to ten weeks of expanded family and general matter, the FMLA definitions worked, including overtime, in medical leave must be paid. apply to the EFMLEA unless specific accordance with the requirements of the Specifically, after the first two weeks of definitions were included in the FLSA. See 29 CFR 785.11–13; 785.48; leave, expanded family and medical EFMLEA. The majority of the terms see also 29 U.S.C. 206, 207; 29 CFR part leave under the FFCRA must be paid at found in the EPSLA and the EFMLEA 778. However, an employer is not two-thirds the employee’s regular rate of are based on terms that are defined in required to compensate employees for pay. For each day of leave, the employee other statutes and/or their implementing unreported hours worked while receives compensation based on the regulations, such as the FLSA. For teleworking for COVID–19 related number of hours he or she would example, the EPSLA expressly adopts reasons, unless the employer knew or otherwise be normally scheduled to the definition of ‘‘person’’ from the should have known about such work, although special rules may apply FLSA and the definition of ‘‘son or telework. See, e.g., Allen v. City of to employees with varying schedules. daughter’’ from the FMLA. Chicago, 865 F.3d 936 (7th Cir. 2017), An eligible employee may elect to use, The EFMLEA defines ‘‘qualifying cert. denied, 138 S. Ct. 1302, 200 L. Ed. or an employer may require that an need related to a public health 2d 474 (2018). While the Department’s employee use, such expanded family emergency’’ as a need for leave ‘‘to care regulations and interpretations of the and medical leave concurrently with for the son or daughter under 18 years FLSA generally apply to employees who any leave offered under the employer’s of age of such employee if the school or are teleworking for COVID–19 related policies that would be available for the place of care has been closed, or the reasons, the Department has concluded employee to take to care for his or her child care provider of such son or that § 790.6 and its continuous workday child, such as vacation or personal leave daughter is unavailable, due to a public guidance are inconsistent with the or paid time off. The total EFMLEA health emergency.’’ FFCRA section objectives of the FFCRA and CARES Act payment per employee for this ten-week 3102(b) (adding FMLA section only with respect to such employees. period is capped at $200 per day and 110(a)(1)(A)). This definition could be The FFCRA and these regulations $10,000 in the aggregate, for a total of read to narrow the FMLA definition of encourage employers and employees to no more than $12,000 when combined ‘‘son or daughter’’ for purposes of implement highly flexible telework with two weeks of paid leave taken expanded family and medical leave, as arrangements that allow employees to under the EPSLA. the FMLA expressly includes children perform work, potentially at The EFMLEA provides that if the 18 years of age or older and incapable unconventional times, while tending to need for expanded family and medical of self-care because of a mental or family and other responsibilities, such leave is foreseeable, employees shall physical disability. 29 U.S.C. 2611(12). as teaching children whose schools are provide employers with notice of the The EFMLEA does not contain a closed for COVID–19 related reasons. leave as soon as practicable. The definition of ‘‘son or daughter,’’ But section 790.6 and the Department’s EFMLEA defines conditions under however, and therefore the FMLA continuous workday guidance generally which employees who take leave are definition of that term applies to provide that all time between entitled to be restored to their positions, expanded family and medical leave. The performance of the first and last while exempting employers with fewer EPSLA also adopts the FMLA definition principal activities is compensable work than twenty-five employees from this of ‘‘son or daughter.’’ As addressed time. See 29 CFR 790.6(a). Applying this requirement under certain more fully below in the discussion of guidance to employers with employees circumstances. The FMLA’s general § 826.20, the Department believes it who are teleworking for COVID–19 prohibitions on interference with rights would create needless confusion and related reasons would disincentivize and discrimination, 29 U.S.C. 2615, as complication to have different rules and undermine the very flexibility in well as the FMLA’s enforcement under the EFMLEA and the EPSLA for teleworking arrangements that are

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critical to the FFCRA framework employee would be unable to work even advice to self-quarantine must be based Congress created within the broader if he or she were not required to comply on the health care provider’s belief that national response to COVID–19. As a with the quarantine or isolation order. the employee has COVID–19, may have result, the Department has determined For example, if a coffee shop closes COVID–19, or is particularly vulnerable that an employer allowing such temporarily or indefinitely due to a to COVID–19. And, self-quarantining flexibility during the COVID–19 downturn in business related to COVID– must prevent the employee from pandemic shall not be required to count 19, it would no longer have any work working. An employee who is self- as hours worked all time between the for its employees. A cashier previously quarantining is able to telework, and first and last principal activity employed at the coffee shop who is therefore may not take paid sick leave performed by an employee teleworking subject to a stay-at-home order would for this reason, if (a) his or her employer for COVID–19 related reasons as hours not be able to work even if he were not has work for the employee to perform; worked. For example, an employee may required to stay at home. As such, he (b) the employer permits the employee agree with an employer to perform may not take paid sick leave because his to perform that work from the location telework for COVID–19 related reasons inability to work is not due to his need where the employee is self- on the following schedule: 7–9 a.m., to comply with the stay-at-home order, quarantining; and (c) there are no 12:30–3 p.m., and 7–9 p.m. on but rather due to the closure of his place extenuating circumstances, such as weekdays. This allows an employee, for of employment.1 That said, he may be serious COVID–19 symptoms, that example, to help teach children whose eligible for state unemployment prevent the employee from performing school is closed or assist the employee’s insurance and should contact his State that work. For instance, if the lawyer in parents who are temporarily living with workforce agency or State the above example would be able to the family, reserving work times when unemployment insurance office for work while self-quarantining at home, there are fewer distractions. Of course, specific questions about his eligibility. she may not take paid sick leave due to the employer must compensate the Additionally, § 826.20(a)(2) explains a need to self-quarantine. that an employee subject to a quarantine employee for all hours actually The third reason for paid sick leave or isolation order is able to telework, worked—7.5 hours—that day, but not applies where an employee is and therefore may not take paid sick all 14 hours between the employee’s experiencing symptoms of COVID–19 first principal activity at 7 a.m. and last leave, if (a) his or her employer has and seeking a medical diagnosis. at 9 p.m. Section 790.6 and the work for the employee to perform; (b) Section 826.20(a)(4) explains that Department’s guidance regarding the the employer permits the employee to symptoms that could trigger this are: continuous workday continue to apply perform that work from the location Fever, dry cough, shortness of breath, or to all employees who are not where the employee is being other COVID–19 symptoms identified teleworking for COVID–19 related quarantined or isolated; and (c) there are by the U.S. Centers for Disease Control reasons. no extenuating circumstances that prevent the employee from performing and Prevention (CDC). Additionally, B. Paid Leave Entitlements that work. For example, if a law firm paid sick leave taken for this reason Section 826.20 of Title 29 of the Code permits its lawyers to work from home, must be limited to the time the of Federal Regulations describes the a lawyer would not be prevented from employee is unable to work because he circumstances under which a covered working by a stay-at-home order, and or she is taking affirmative steps to employer must provide paid sick leave thus may not take paid sick leave as a obtain a medical diagnosis. Thus, an and/or expanded family and medical result of being subject to that order. In employee experiencing COVID–19 leave to an eligible employee. this circumstance, the lawyer is able to symptoms may take paid sick leave, for Section 826.20(a) explains that an telework even if she is required to use instance, for time spent making, waiting employee may take paid sick leave if the her own computer instead of her for, or attending an appointment for a employee is unable to work because of employer’s computer. But, she would test for COVID–19. But, the employee any one of six qualifying reasons related not be able to telework in the event of may not take paid sick leave to self- to COVID–19. The first reason for paid a power outage or similar extenuating quarantine without seeking a medical sick leave applies where an employee is circumstance and would therefore be diagnosis. An employee who is waiting unable to work because he or she is eligible for paid sick leave during the for the results of a test is able to subject to a Federal, State, or local period of the power outage or telework, and therefore may not take COVID–19 quarantine or isolation order. extenuating circumstance due to the paid sick leave, if: (a) His or her Quarantine or isolation orders include a quarantine or isolation order. employer has work for the employee to broad range of governmental orders, The second reason for paid sick leave perform; (b) the employer permits the including orders that advise some or all applies where an employee is unable to employee to perform that work from the citizens to shelter in place, stay at home, work because he or she has been location where the employee is waiting; quarantine, or otherwise restrict their advised by a health care provider, as and (c) there are no extenuating own mobility. Section 826.20(a)(2) defined in 29 CFR 825.102, to self- circumstances, such as serious COVID– explains that an employee may take quarantine for a COVID–19 reason. 19 symptoms, that may prevent the paid sick leave only if being subject to Section 826.20(a)(3) explains that the employee from performing that work. one of these orders prevents him or her An employee may continue to take leave from working or teleworking as 1 This analysis holds even if the closure of the while experiencing any of the symptoms described therein. The question is coffee shop was substantially caused by a stay-at- specified at § 826.20(a)(4), however; or whether the employee would be able to home order. If the coffee shop closed due to its may continue to take leave after testing customers being required to stay at home, the work or telework ‘‘but for’’ being reason for the cashier being unable to work would positive for COVID–19, regardless of required to comply with a quarantine or be because those customers were subject to the stay- symptoms experienced, provided that isolation order. at-home order, not because the cashier himself was the health care provider advises the An employee subject to one of these subject to the order. Similarly, if the order forced employee to self-quarantine. In the coffee shop to close, the reason for the cashier orders may not take paid sick leave being unable to work would be because the coffee addition, an employee who is unable to where the employer does not have work shop was subject to the order, not because the telework may continue to take paid sick for the employee. This is because the cashier himself was subject to the order. leave under this reason while awaiting

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a test result, regardless of the severity of parent, co-guardian, or the usual child of the employee if: (a) The school or the COVID–19 symptoms that he or she care provider—is available to provide place of care of the son or daughter has might be experiencing. In the case of an the care the employee’s child needs. been closed; or (b) the child care employee who exhibits COVID–19 The sixth reason for paid sick leave provider of such son or daughter is symptoms and seeks medical advice but applies if the employee is unable to unavailable, due to COVID–19 related is told that he or she does not meet the work because the employee is reasons. criteria for testing and is advised to self- experiencing any other substantially The Department considered quarantine, he or she is eligible for leave similar condition specified by the interpreting the leave provision of the under the second reason, provided he or Secretary of Health and Human Services EFMLEA to apply only when an she meets all the requirements spelled in consultation with the Secretary of the employee is unable to work because of out above. Treasury and the Secretary of Labor. a need to care for a child under age 18 The fourth reason for paid sick leave Section 826.20(b) explains that an years of age, and not to apply when a applies where an employee is unable to employee may take expanded family child is 18 years of age or older and work because he or she needs to care for and medical leave if the employee is incapable of self-care because of a an individual who is either: (a) Subject unable to work due to a need for leave mental or physical disability. The to a Federal, State, or local quarantine to care for his or her son or daughter if Department also recognizes there could or isolation order; or (b) has been the child’s school or place of care is be other interpretations of the ‘‘under 18 advised by a health care provider to self- closed, or the child care provider of years of age’’ phrase within the quarantine due to concerns related to such son or daughter is unavailable, for EFMLEA. However, the Department has COVID–19. This qualifying reason reasons related to COVID–19. The decided not to employ these alternative applies only if but for a need to care for EFMLEA provides that this reason for interpretations because it sees an individual, the employee would be leave is for closures or unavailability significant disadvantages to having able to perform work for his or her ‘‘due to a public health emergency,’’ different rules under the EFMLEA and employer. Accordingly, an employee which the statute defines as ‘‘an the EPSLA for when an employee may caring for an individual may not take emergency with respect to COVID–19 take leave to care for his or her son or paid sick leave if the employer does not declared by a Federal, State, or local daughter. Having different rules would have work for him or her. Furthermore, authority.’’ FFCRA section 3102(b) introduce unnecessary complexity and if the employee must have a genuine (adding FMLA section 110(a)(2)(A), (B)). incongruity into the leave provisions need to care for the individual. In keeping with the Department’s and could improperly deny leave to Accordingly, § 826.20(a)(5) explains that statutory authority to issue regulations employees with a need to care for a paid sick leave may not be taken to care to ensure consistency between the child age 18 or older who is incapable for someone with whom the employee EPSLA and the EFMLEA, the regulatory of caring for himself or herself because has no personal relationship. Rather, the text uses ‘‘for reasons related to COVID– of a mental or physical disability. The individual being cared for must be an 19’’ to match the regulatory text related Department is therefore treating the immediate family member, roommate, to the same reason for taking paid sick definitions as the same pursuant to its or a similar person with whom the leave. In other words, the leave authority under section 5111 of the employee has a relationship that creates authorized by the EFMLEA is the same EPSLA and section 110(a) of the FMLA, an expectation that the employee would as the fifth reason discussed above as amended by the EFMLEA, and the care for the person if he or she self- authorized by the EPSLA, i.e., leave CARES Act, and will issue regulations quarantined or was quarantined. required when an employee is unable to to ensure consistency between the Additionally, the individual being cared work because of a need to care for his EPSLA and the EFMLEA. for must: (a) Be subject to a Federal, or her son or daughter if the school or The Department intends that State, or local quarantine or isolation place of care of the son or daughter is providing maximum flexibility to order as described above; or (b) have closed, or the child care provider of the employers and employees during the been advised by a health care provider son or daughter is unavailable, due to public health emergency should not to self-quarantine based on a belief that COVID–19 related reasons. impact the underlying relationships he or she has COVID–19, may have The Department recognizes that between an employer and an employee. COVID–19, or is particularly vulnerable section 3102 of the EFMLEA defines More specifically, nothing in this Act to COVID–19. ‘‘qualifying need related to a public should be construed as impacting an The fifth reason for paid sick leave health emergency’’ as a need for leave employee’s exempt status under the applies when the employee is unable to ‘‘to care for the son or daughter under FLSA. For example, an employee’s use work because the employee needs to 18 years of age of such employee if the of intermittent leave combined with care for his or her son or daughter if: (a) school or place of care has been closed, either paid sick leave or expanded The child’s school or place of care has or the child care provider of such son family and medical leave should not be closed; or (b) the child care provider is or daughter is unavailable, due to a construed as undermining the unavailable, due to COVID–19 related public health emergency.’’ FFCRA employee’s salary basis for purposes of reasons. Again, the employee must be section 3102(b) (adding FMLA section 29 U.S.C. 213 and 29 CFR part 541. able to perform work for his or her 110(a)(2)(A), (B)). This definition can be Section 826.21 explains how much employer but for the need to care for his read to narrow the FMLA definition of paid sick leave an employee is entitled or her son or daughter, which means an son or daughter, which includes to under the EPSLA. Under section employee may not take paid sick leave children under 18 years of age or 18 5102(b)(2) of the EPSLA, a full-time if the employer does not have work for years of age or older and incapable of employee is entitled to 80 hours of paid him or her. Moreover, an employee may self-care because of a mental or physical sick leave, and a part-time employee is take paid sick leave to care for his or her disability. 29 U.S.C. 2611(12). Section entitled to the ‘‘number of hours that child only when the employee needs to, 5110(4) of the EPSLA states that the such employee works, on average, over and actually is, caring for his or her FMLA definition of son or daughter a 2-week period.’’ Section 5110(5)(C)(i) child. Generally, an employee does not applies when, among other things, the further provides that if the part-time need to take such leave if another employee is unable to work because the employee’s ‘‘schedule varies from week suitable individual—such as a co- employee is caring for a son or daughter to week . . . the average number of

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hours that the employee was scheduled workweeks, or at least 40 hours each period’’ under section 5102(b)(2)(B) to per day over the 6-month period ending workweek. As a result, the Department determine the amount of paid sick leave on the date on which the employee defines a full-time employee as an to which an employee is entitled. Again, takes the paid sick time’’ shall be used employee who is normally scheduled to the Department does not believe that in in place of the ‘‘number of hours that work at least 40 hours each workweek the EPSLA Congress intended for ‘‘the such employee works, on average, over in § 826.21(a)(2). Further, § 826.21(a)(3) reasonable expectation . . . of the a 2-week period’’ under section provides that an employee who does not average number of hours per day’’ to be 5102(b)(2)(B) to determine the number have a normal weekly schedule may used ‘‘in place of’’ the average number of paid sick leave hours. also be a full-time employee if he or she of hours worked ‘‘over a 2-week The Department does not believe the is scheduled to work, on average, at period.’’ Rather, Congress intended to EPSLA intended to replace the average least 40 hours each workweek. For use the expected daily average number number of hours worked ‘‘over a 2-week consistency purposes, this weekly of hours to estimate the two-week period’’ with the average number of average should be computed over the average. The Department further hours scheduled ‘‘per day’’ as the same six-month period as the ‘‘Varying believes such ‘‘reasonable expectation’’ number of paid sick leave hours because Schedule Hours Calculation’’ for certain is best evidenced by an agreement such replacement would create a part-time employees under section between the employer and employee at contradiction within the statute and 5110(5)(C)(i) of the FFCRA. Thus, the time of hiring. lead to an absurd outcome. Setting § 826.21(a)(3) provides that the average Thus, § 826.21(b)(3) states that a part- hours of paid sick leave ‘‘equal to the hours per workweek for an employee time employee with a varying schedule average number of hours that the who does not have a normal weekly who has been employed for fewer than employee was scheduled per day,’’ as schedule should be calculated over the six months is entitled to fourteen times section 5110(5)(C)(i) requires, would six-months prior to the date on which the expected number of hours the violate the requirement under section leave is requested to determine if he or employee and employer agreed at the 5102(b)(2)(B) that ‘‘hours of paid sick she is a full-time employee. If the time of hiring that the employee would time to which an employee is entitled employee has been employed for less work, on average, each calendar day. shall be . . . equal to the number of than six months, the average hours per This is equal to twice the average hours that such employee works, on workweek is computed over the entire number of hours that the employee average, over a 2-week period’’ for the period of employment. would be expected to work each obvious reason that a day is different Under § 826.21(b), a part-time workweek. The agreement could have from a two-week period. And the employee is an employee who is used any time period—e.g., each number of hours an employee typically normally scheduled to work fewer than workweek, month, or year—to express works in a day is an order of magnitude 40 hours each workweek or—if the the average number of hours the lower than the number of hours that an employee lacks a normal weekly employee was expected to work, so long employee typically works in a two-week schedule—who is scheduled to work, on as that daily average could be period. Thus, an employee who works average, fewer than 40 hours each extrapolated. In the absence of such an a varied schedule would be entitled to workweek. Under § 826.21(b)(1), a part- agreement, the Department believes that an order of magnitude fewer hours of time employee who works a normal the actual average number of hours the paid sick leave than if the employee had schedule is entitled to paid sick leave employee was scheduled to work each worked a regular schedule. In light of equal to the number of hours he or she workday demonstrates ‘‘the reasonable the FFCRA, the Department can think of is normally scheduled to work over a expectation . . . of the average number no reason why Congress would penalize two-workweek period. As discussed of hours per day that the employee part-time employees who work varied as above, the Department believes that a would normally be scheduled to work.’’ opposed to regular schedules. part-time employee whose weekly work FFCRA section 5110(5)(C)(ii). Rather, the Department believes schedule varies should be entitled to Accordingly, § 826.21(b)(3) further Congress intended to use the daily paid sick leave equal to fourteen times states that, in the absence of an average to compute the two-week the average number of hours that the agreement regarding the expected average. Because there are fourteen employee was scheduled to work per number of hours worked each day, a calendar days over a two-week period, calendar day over the six-month period part-time employee with a varying the Department believes Congress ending on the date on which the schedule who has been employed for intended for the EPSLA to provide part- employee takes paid sick leave, fewer than six months ‘‘is entitled to up time employees whose weekly schedule including hours for which the employee to the number of hours of paid sick varies with paid sick leave equal to took leave of any type. This leave equal to fourteen times the average fourteen times the ‘‘number of hours computation is possible only if the number of hours per calendar day that that the employee was scheduled per employee has been employed for at least the employee was scheduled to work [calendar] day,’’ averaged over the six months. Thus, § 826.21(b)(2) over the entire period of employment, above-mentioned six-month period. An provides variable-schedule part-time including hours for which the employee employer may also use twice the employees with such an amount of paid took leave of any type.’’ An employer number of hours that an employee was sick leave. may also use twice the number of hours scheduled to work per workweek, Section 5110(5)(C)(ii) of the EPSLA that an employee was scheduled to averaged over the six-month period. further provides that, if a part-time work per workweek, on average, over The EPSLA does not define what it employee with a varying weekly the six-month period. means to be a ‘‘full-time’’ or ‘‘part-time’’ schedule has been employed for fewer Section 826.22 explains the amount of employee. Because paid sick leave is than six months, ‘‘the reasonable pay due to employees who take paid designed to provide leave ‘‘over a 2- expectation of the employee at the time sick leave. If the employee takes paid week period,’’ and the EPSLA provides of hiring of the average number of hours sick leave because he or she is subject up to 80 hours of such leave to full-time per day that the employee would to a Federal, State, or local COVID–19 employees, the Department believes a normally be scheduled to work’’ should quarantine or isolation order; has been full-time employee is an employee who be used ‘‘in place of’’ the average advised by a health care provider to self- works at least 80 hours over two number of hours worked ‘‘over a 2-week quarantine for COVID-related reasons;

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or is experiencing COVID–19 symptoms or paid time off concurrently with the within each workweek could prevent an and seeking a medical diagnosis, the expanded family and medical leave employer from determining the number employer must pay the employee his or under the EFMLEA. Although Section of hours an employee would have been her regular rate of pay (subject to the 102(d)(2)(B) is read broader in the scheduled to work on a particular qualifications described below) for each traditional FMLA context to include workday.2 Thus, § 826.24(b) provides hour of paid sick leave taken. If an sick and medical leave, the Department that the six-month average set forth in employee takes paid sick leave because notes that the FMLA is in part a medical section 110(b)(2)(C) of the FMLA, as of any other COVID–19 qualifying leave, whereas the leave provided under amended by the EFMLEA, is to be used reason, the employer must pay the the FFCRA is solely for care for a family to compute pay for each day of employee two-thirds of the employee’s (i.e., a child whose school or place of expanded family and medical leave regular rate of pay (subject to the care is closed or whose child care taken where an employee’s work qualifications described below). provider is unavailable). The schedule varies, without a week-to-week If the employee’s regular rate of pay Department believes that this flexibility requirement, and has been employed for is lower than the Federal, State, or local carries out the purposes of the FFCRA at least six months. minimum wage (if applicable to the by allowing employees to receive full For an employee with a varying employee), the employee should instead pay during the period for which they schedule of hours who has been be paid the highest of such amounts. have preexisting accrued vacation or employed for fewer than six months, That means an employee taking paid personal leave or paid time off, and section 110(b)(2)(C)(i) of the FMLA, as sick leave because he or she is subject allowing employers to require amended by the EFMLEA, provides that to a Federal, State, or local COVID–19 employees to take such leave and ‘‘the reasonable expectation of the quarantine or isolation order; has been minimize employee absences. employee at the time of hiring of the advised by a health care provider to self- Section 826.24 explains the amount average number of hours per day that quarantine for COVID-related reasons; an employer must pay an employee for the employee would normally be or is experiencing COVID–19 symptoms each day of expanded family and scheduled to work’’ should be used to and seeking a medical diagnosis must be medical leave under the EFMLEA taken compute the amount of pay for each day paid the highest applicable minimum to care for his or her child whose school of expanded family and medical leave wage (federal, state, or local). And, an or place of care is closed, or whose child he or she takes after the initial unpaid employee taking paid sick leave for any care provider is unavailable, for a period. The Department believes such other COVID–19 qualifying reason must COVID–19 related reason. The payment ‘‘reasonable expectation’’ is best be paid at least two-thirds of the highest requirement under the EFMLEA is evidenced by an agreement between the applicable minimum wage. triggered after two weeks that an employer and employee at the time of The amount an employer is required employee uses leave for this reason. For hiring. Thus, § 826.21(b)(2)(ii) explains to pay is capped at $511 per day of paid each day of expanded family and the number of hours per day used to sick leave taken and $5,110 in total per medical leave after the initial two-week compute pay for an employee with a covered employee for all paid sick leave period, the employer must pay an varying schedule who has been pay. Furthermore, where an employee is employee taking such leave two-thirds employed for less than six months is taking paid sick leave at two-thirds pay, of the employee’s regular rate times the equal to the number of hours that the the amount of pay is subject to a lower number of hours the employee would employee and the employer agreed at cap of $200 per day of leave and $2,000 normally be scheduled to work that day, the time of hiring that the employee in total per covered employee for all up to a maximum of $200 per day or would be expected to work, on average, paid sick leave that is paid at two-thirds $10,000 in total for the additional ten each workday. The agreement could pay. workweeks. have expressed the average number of Section 826.23 explains that Some employees do not have a regular hours over any time period—e.g., each expanded family and medical leave is a work schedule. If the employee’s week, month, or year—so long as that type of FMLA leave that is available for ‘‘schedule varies week to week to such daily average could be extrapolated. In certain eligible employees between an extent that an employer is unable to the absence of such an agreement, the April 1, 2020, and December 31, 2020. determine with certainty [that] number Department believes that the actual As such, § 826.23(a) explains that an of hours,’’ section 110(b)(2)(C)(i) of the average number of hours the employee eligible employee is entitled to up to FMLA, as amended by the EFMLEA, was scheduled to work each workday twelve workweeks of expanded family requires the employer to compute pay evinces ‘‘the reasonable expectation and medical leave, as provided under per day of expanded family and medical . . . of the average number of hours per section 102 of the FMLA, during that leave based on ‘‘the average number of day that the employee would normally period. See 29 U.S.C. 2612; see also 29 hours the employee was scheduled per be scheduled to work.’’ Accordingly, CFR 825.200. Section 826.23(b) further day over the six-month period ending § 826.21(b)(2)(ii) further states that, in clarifies that any time taken by an on the date on which the employee the absence of an agreement regarding eligible employee as expanded family takes such leave, including hours for the expected number of hours worked and medical leave counts towards the which the employee took leave of any twelve workweeks of FMLA leave to type.’’ This six-month average of daily each day, the employer should use ‘‘the which the employee is entitled under hours is possible only if the employee average number of hours per workday section 102 of the FMLA and 29 CFR has been employed for at least six that the employee was scheduled to 825.200. Because the FFCRA amends months. The Department does not work over the entire period of the FMLA, and in particular references believe Congress intended for the employment, including hours for which Section 102(d)(2)(B) of the FMLA, EFMLEA to use this six-month average the employee took leave of any type’’ to § 826.23 explains that an employee may only where an employee’s ‘‘schedule compute the amount of pay for an elect to use, or an employer may require varies week to week,’’ but also where employee with a varying schedule who an employee to use, accrued leave that the schedule varies day to day. This is 2 For instance, an employee may always work 40 under the employer’s policies would be because, even if an employee is hours each workweek, but on some weeks the available to the employee to care for a scheduled for the same number of hours employee works five eight-hour shifts and on other child, such as vacation or personal leave each workweek, day-to-day variations weeks he or she works four ten-hour shifts.

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has been employed for fewer than six at the same rate. The unpaid period is hours of leave than needed for that months. therefore intended to ensure that the purpose. Accordingly, pursuant to the The Department recognizes that the employee has sufficient leave for a Secretary’s authority to issue regulations two-week initial unpaid period of constant stream of income at two-thirds ‘‘to ensure consistency’’ between the expanded family and medical leave the regular rate, up to $200 per day, two types of paid leave under the under § 826.60 is different from the ten- while taking care of his or her child, but FFCRA, § 826.24 states that the unpaid day unpaid period set forth in section not more paid leave than necessary for period for expanded family and medical 110(b)(1)(A) of the FMLA, as amended that purpose. leave lasts for two weeks rather than ten by the EFMLEA. This deviation is As explained above, a ten-day period days.3 necessary to ensure that expanded of unpaid expanded family and medical In subsection (d), we made clear that family and medical leave provided leave satisfies these purposes for an despite the cap on pay, an employee under the EFMLEA and paid sick leave employee who works a regular 40-hour may elect to use, or an employer may provided under the EPSLA work week. But the twin purposes of require that an employee take leave together—as Congress intended—to providing sufficient, yet not excessive, under the employer’s policies that permit an employee to have a paid leave are not satisfied with respect would be available to the employee to continuous income stream while taking to employees who work unconventional care for a child, such as vacation or FFCRA paid leave to care for his or her hours. For instance, consider an personal leave or paid time off, child whose school or place of care is employee who works twelve hours each concurrently with expanded family and closed, or whose child care provider is day for three days each workweek, or a medical leave, and the employer must unavailable, for a COVID–19 related total of 36 hours each workweek. This pay the employee a full day’s pay for reason. employee would be entitled to 72 hours that day. The EFMLEA provides that, during of paid sick leave under the EPSLA to Section 826.25 explains how to the unpaid period of expanded family care for his or her child, which lasts for calculate the regular rate that is used to and medical leave, an employee may two workweeks. The employee, determine the amount an employer receive pay by using other paid leave to however, would not be able to take paid must pay an eligible employee who which he or she may be entitled, expanded family and medical leave at takes paid sick leave or expanded family including paid sick leave provided by the end of two workweeks time because and medical leave (after the initial two- the EPSLA. Paid sick leave may be used he would have taken only six workdays week unpaid period). An employee’s for the same reason as expanded family of such leave, and the ten-day period of regular rate is computed for each and medical leave, i.e., to care for a unpaid leave would still be in effect. In workweek as defined under section 7(e) child whose school or place of care is order to have a continuous income of the FLSA, as ‘‘all [non-overtime] closed, or whose child care provider is stream until the ten-day unpaid period remuneration for employment’’ paid to unavailable, for a COVID–19 related of expanded family and medical leave the employee except for eight statutory reason. And the amount of pay per hour expired, the employee would need an exclusions, divided by the number of of paid sick leave is guaranteed to be at additional 48 hours of paid sick leave. hours worked in that workweek. See 29 least as much as the amount of pay per As another example, consider a U.S.C. 207(e); see also Bay Ridge hour for paid expanded family and second employee who works six hours Operating Co. v. Aaron, 334 U.S. 446, medical leave, i.e., two-thirds of the each day for six days each workweek, 458 (1948) (stating that the ‘‘regular rate employee’s regular rate, up to $200 per also for a total of 36 hours each must be computed by dividing the total day. Furthermore, the entitlement to workweek. The second employee would number of hours worked into the total paid sick leave of an employee with a likewise be entitled to 72 hours of paid [non-overtime] compensation regular work schedule, i.e., eight hours sick leave under the EPSLA to care for each day for five days for a total of 40 his or her child, which lasts for two received’’). hours each workweek—is the same as workweeks or twelve workdays. The The Department’s regulations at 29 the ten-day period of unpaid expanded period of unpaid expanded family and CFR parts 531 and 778 explain how to family and medical leave. Such an medical leave would expire after ten calculate the regular rate in different employee is entitled to 80 hours of paid workdays—two workdays before the circumstances. For example, the sick leave, which provides pay at two- second employee runs out of paid sick Department uses the computation of an thirds of the employee’s regular rate, as leave. The second employee may employee’s regular rate with respect to defined in § 826.25, for ten workdays. If transition from paid sick leave to tips in § 531.60. Moreover, the the employee were concurrently taking expanded family and medical leave after Department clarifies how to compute an expanded family and medical leave, he ten workdays, leaving two days of paid employee’s regular rate under different or she would be able to take paid sick leave unused. In other words, the compensation arrangements, including expanded family and medical leave at second employee would have two more commissions and piece rates, at two-thirds the regular rate as soon as the days of paid leave than necessary to §§ 778.110–.122, and explains what 80 hours of paid sick leave runs out. have a continuous income stream at types of compensation are excludable Thus, paid sick leave and expanded two-thirds the regular rate while caring from the regular rate, at §§ 778.200– family and medical leave are designed for his or her child. .225. The regular rate used to determine to work in tandem to provide In short, there is inconsistency the amount of pay due an employee continuous income for an employee to between the provisions for expanded who takes paid sick leave or expanded care for his or her child whose school family and medical leave under the family and medical leave must be or place of care is closed, or whose child EFMLEA and paid sick leave under the computed using the same methods as care provider is unavailable, for a EPSLA with respect to the first those described in 29 CFR parts 531 and COVID–19 related reason. Put another employee because he or she would be 778. way, the reason for an unpaid initial 48 hours short of being able to have period of expanded family and medical continuous income. And there is 3 As a practical matter, the unpaid period for employees who work regular Monday-through- leave is because an eligible employee inconsistency between the two Acts Friday schedules would still be ten days because already may concurrently use paid sick with respect to the second employee that is the number of days they would work in two leave for the same reason and get paid because he or she would have more weeks.

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The regular rate must also be day, i.e., a six-month period ending on had been on the employer’s payroll for computed on a workweek to workweek the date on which the employee first thirty or more of the sixty calendar days basis. See, e.g., § 778.104 (‘‘Each takes paid sick leave or expanded family prior to the date the employee was laid workweek stands alone’’). Neither the and medical leave. The Department has off or otherwise terminated. ‘‘For EPSLA nor the EFMLEA, however, selected this six-month period because example, an employee who was explains which workweek should be it is sufficiently representative under originally hired by an employer on used to compute the regular rate that is both the EPSLA and the EFMLEA. And January 15, 2020, but laid off on March the basis for determining the amount of it minimizes regulatory burden by 14, 2020, would be eligible for leave pay for leave taken. The Department allowing employers to use the same under the EFMLEA and the EPSLA, if does not believe it would be appropriate payroll and schedule records to the same employer rehired the to use the workweek in which an compute both an employee’s average employee on October 1, 2020.’’ employee takes leave because an number of hours worked per day and The EFMLEA and the EPSLA both employee’s hours worked, and therefore average regular rate. Of course, provide that an employer may exclude regular rate, in such a workweek is computing an average regular rate used employees who are health care unlikely to be representative. Indeed, if to determine the amount of pay should providers or emergency responders from the employee takes leave for the entire be computed over a six-month period is leave requirements under the Acts. workweek, the regular rate would equal not possible if the employee at issue has Section 826.30(c) reiterates this option zero. not been employed for at least six and defines which employees are Instead, the Department believes the months. In such a case, the average ‘‘health care providers’’ or ‘‘emergency regular rate used to determine the regular rate should be computed over responders’’ whom employers may amount of pay under the EPSLA and the the entire term of the employment. exclude from eligibility for the EPSLA EFMLEA should be representative of the and the EFMLEA’s leave requirements. C. Employee Eligibility for Leave Under An employer’s exercise of this option employee’s regular rate from week to the EPSLA and the EFMLEA week. Section 826.25 therefore requires does not impact an employee’s earned an employer to use an average of the Section 826.30 sets out the criteria for or accrued sick, personal, vacation, or employee’s regular rate over multiple an employee’s eligibility to receive paid other employer-provided leave under workweeks.4 Such an average should be sick leave under the EPSLA and/or the employer’s established policies. weighted by the number of hours expanded family and medical leave Further, an employer’s exercise of this worked each workweek. For example, under the EFMLEA, which have similar, option does not authorize an employer consider an employee who receives but not identical, eligibility to prevent an employee who is a health $400 of non-excludable compensation requirements for leave. This section also care provider or emergency responder in one week for working 40 hours and addresses when employers may elect to from taking earned or accrued leave in $200 of non-excludable compensation exclude certain otherwise-eligible accordance with established employer in the next week for working ten hours. employees from coverage under these policies. Because an employer is not The regular rate in the first week is $10 Acts. required to exercise this option, if an Sections 826.30(a) and (b) provide per hour ($400 ÷ 40 hours), and the employer does not elect to exclude an that all employees employed by a regular rate for the second week is $20 otherwise-eligible health care provider covered employer are eligible to take per hour ($200 ÷ 10 hours). The or emergency responder from taking paid sick leave under the EPSLA paid leave under the EPSLA or the weighted average, however, is not regardless of their duration of computed by averaging $10 per hour EFMLEA, such leave is subject to all employment, and all employees who other requirements of those laws and and $20 per hour (which would be $15 have been employed by a covered per hour). Rather, it is computed by this Part, and should be treated in the employer for at least thirty calendar same manner for purposes of the tax adding up all compensation over the days are eligible to take expanded relevant period (here, two workweeks), credit created by the FFCRA. To family and medical leave under the minimize the spread of COVID–19, the which is $600, and then dividing that EFMLEA, subject to the exceptions sum by all hours worked over the same Department encourages employers to be described in §§ 826.30(c)–(d) and .40(b). judicious when using this definition to period, which is 50 hours. Thus, the Section 826.30(b)(1)(i) further exempt health care providers and weighted average regular rate over this explains that an employee is considered emergency responders from the two-week period is $12 per hour ($600 to have been employed for at least thirty ÷ provisions of the FFCRA. 50 hours). calendar days for purposes of EFMLEA The Department recognizes that To be representative, the period over eligibility if the employer had the health care providers whom an which the regular rate is averaged employee on its payroll for the thirty employer may exempt pursuant to should be substantially greater than the calendar days immediately prior to the sections 3105 and 5102(a) of the FFCRA two workweeks used in the above day that the employee’s leave would is broader than the definition of health example. The Department believes it begin. For example, for an employee to care provider under 29 CFR 825.102. would be appropriate to compute the be eligible to take leave under the Section 5110(4) of the FFCRA adopts average regular rate over the same EFMLEA on April 1, 2020, the employee the FMLA definition of ‘‘health care period used by the EPSLA and the must have been on the employer’s providers,’’ which includes licensed EFMLEA to compute the employee’s payroll as of March 2, 2020. Section doctors of medicine or osteopathy and average number of hours worked per 826.30(b)(1)(ii) provides that an ‘‘any other person determined by the employee who is laid off or otherwise Secretary to be capable of providing 4 The Department notes that § 778.104 states that the FLSA ‘‘does not permit averaging of hours over terminated by an employer on or after health care services.’’ 29 U.S.C. 2611(6). 2 or more weeks’’ for the purpose of computing the March 1, 2020, is nevertheless also The Department defined ‘‘health care regular rate. But this prohibition against averaging considered to have been employed for at provider’’ narrowly in § 825.102 to applies when the regular rate is used for its purpose least thirty calendar days, provided the mean medical professionals who are under the FLSA to compute overtime pay due. It does not apply when, as here, the regular rate is employer rehires or otherwise capable of diagnosing serious health used as a metric for an employee’s average hourly reemploys the employee on or before conditions in light of the FMLA’s non-overtime wages. December 31, 2020, and the employee requirement for such health care

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providers to issue certifications The specific parameters of the This determination is dependent on regarding the nature and probable Department’s definition of ‘‘emergency the number of employees at the time an duration of serious health conditions. responder’’ derive from consultation of employee would take leave. For See 29 U.S.C. 2613; see also 58 FR various statutory and regulatory example, if an employer has 450 31800 (‘‘Because health care providers definitions and from the consideration employees on April 20, 2020, and an will need to indicate their diagnosis in of input provided to the Department by employee is unable to work starting on health care certificates, such a broad various stakeholders and public that date because a health care provider definition was considered officials. The Department endeavored to has advised that employee to self- inappropriate.’’). include those categories of employees quarantine because of concerns related The term ‘‘health care provider’’ as who (1) interact with and aid to COVID–19, the employer must used in sections 3105 and 5102(a) of the individuals with physical or mental provide paid sick leave to that FFCRA, however, is not limited to health issues, including those who are employee. If, however, the employer diagnosing medical professionals. or may be suffering from COVID–19; (2) hires 75 new employees between April Rather, such health care providers ensure the welfare and safety of our 21, 2020, and August 3, 2020, such that include any individual who is capable communities and of our Nation; (3) have the employer employs 525 employees as of providing health care services specialized training relevant to of August 3, 2020, the employer would necessary to combat the COVID–19 emergency response; and (4) provide not be required to provide paid sick public health emergency. Such essential services relevant to the leave to a different employee who is individuals include not only medical American people’s health and unable to work for the same reason professionals, but also other workers wellbeing. While the Department beginning on August 3, 2020. who are needed to keep hospitals and endeavored to identify these categories Section 826.40(a) also addresses how similar health care facilities well of workers, it was cognizant that no list to determine who counts as an supplied and operational. They further could be fully inclusive or account for employee for this purpose, including include, for example, workers who are the differing needs of specific discussing categories of workers who do involved in research, development, and communities. Therefore, the definition (and do not) count toward the 500- production of equipment, drugs, allows for the highest official of a state employee threshold. In making this vaccines, and other items needed to or territory to identify other categories determination, the employer should combat the COVID–19 public health of emergency responders, as necessary. include full-time and part-time emergency. Accordingly, the Section 826.30(d) explains that the employees, employees on leave, Department is adopting a definition of CARES Act grants authority to the temporary employees who are jointly ‘‘health care provider’’ that is broader Director of OMB to exclude, for good employed by the employer and another than the diagnosing medical cause, certain federal government employer, and day laborers supplied by professionals under § 825.102 for the employers from eligibility to take paid a temporary placement agency. limited purpose of identifying sick leave or expanded family and Independent contractors that provide employees whom an employer may medical leave. As to the EFMLEA, the services for an employer do not count exclude under sections 3105 and Director of OMB may exclude certain towards the 500-employee threshold. 5102(a) of the FFCRA. The definition of categories of United States Executive Nor do employees count who have been health care provider under § 825.102 Branch employees from expanded laid off or furloughed and have not continues to apply for other purposes of family and medical leave. As to the subsequently been reemployed. the FFCRA, such as, for instance, EPSLA, the Director of OMB may Furthermore, employees must be identifying health care providers who exclude certain categories of federal employed within the United States. For may advise an employee to self- government employees if they are example, if an employer employs 1,000 quarantine for COVID–19 related covered by Title II of the FMLA, occupy employees in North America, but only reasons under section 5102(a)(2). a position in the civil service (as defined 250 are employed in a U.S. State, the The authority for employers to in 5 U.S.C. 2101(1)), and/or are District of Columbia, or a territory or exempt emergency responders is employees of a United States Executive possession of the United States, that reflective of a balance struck by the Agency (as defined in 5 U.S.C. 105), employer will be considered to have 250 FFCRA. On the one hand, the FFCRA which includes employees of the U.S. employees and is thus subject to the provides for paid sick leave and Postal Service and the U.S. Postal and FFCRA. expanded family and medical leave so Regulatory Commission. Section 826.40(a) further explains that employees will not be forced to choose joint or integrated employers must between their paychecks and the D. Employer Coverage Under the EPSLA combine employees in determining the individual and public health measures and the EFMLEA number of employees they employ for necessary to combat COVID–19. On the Section 826.40 addresses which this purpose. The FLSA’s test for joint other hand, providing paid sick leave or employers are covered by the EPSLA employer status applies in determining expanded family and medical leave and the EFMLEA, that is, which who is a joint employer for purposes of does not come at the expense of fully employers must provide paid leave to coverage, and the FMLA’s test for staffing the necessary functions of employees as described in those Acts. integrated employer status applies in society, including the functions of Section 826.40(a) explains which determining who is an integrated emergency responders. The FFRCA private employers must provide paid employer, under both the EPSLA and should be read to complement—and not sick leave and expanded family and the EFMLEA. detract from—the work being done on medical leave to their employees. Section 826.40(a) does not distinguish the front lines to treat COVID–19 Specifically, it explains that, subject to between for-profit and non-profit patients, prevent the spread of COVID– the exemption described in § 826.40(b), entities; employers of both types must 19, and simultaneously keep Americans all private employers that employ fewer comply with the FFCRA if they safe and with access to essential than 500 employees at the time an otherwise meet the requirements for services. Therefore, the Department employee would take leave must coverage. interprets ‘‘emergency responder’’ comply with the EPSLA and the Section 826.40(b) describes the small broadly. EFMLEA. employer exemption pursuant to the

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Secretary’s regulatory authority to expenses and financial obligations to care providers or emergency responders exempt small private employers with exceed available business revenue, pose as described in § 826.30(c). fewer than 50 employees from having to a substantial risk, or prevent the small Section 826.40(c) provides further provide an employee with paid sick employer from operating at minimum information about which parts of the leave and expanded family and medical capacity, respectively. Federal government must comply with leave to care for his or her child whose Section 826.40(b)(2) explains that if a these Acts. Because the EFMLEA only school or place of care is closed, or small employer decides to deny paid amends Title I of the FMLA, only child care provider is unavailable, when sick leave or expanded family and employers of employees covered by such leave would jeopardize the medical leave to an employee or Title I of the FMLA are subject to the viability of the business as a going employees whose child’s school or requirements of the EFMLEA. concern. The American Institute of place of care is closed, or whose child Employers of federal employees covered Certified Public Accountants (AICPA) care provider is unavailable, the small by Title II of the FMLA are not subject allows companies to use the ‘‘ongoing employer must document the facts and to requirements of the EFMLEA. concern assumption’’ to defer some of circumstances that meet the criteria set Section 826.40(c) provides certain its prepaid expenses until future forth in § 826.40(b)(1) to justify such clarifications as to the EPSLA’s and the accounting periods because the entity denial. The employer should not send EFMLEA’s applicability to public can continue in business for the such material or documentation to the employers. It explains that all public foreseeable future without the intention Department, but rather should retain agencies must provide their eligible nor the necessity to liquidate, cease such records for its own files. employees with paid sick leave, subject trading, or seek protection from In exercising its authority to exempt to the exceptions set forth in creditors pursuant to laws or certain employers with fewer than 50 § 826.30(c)–(d). In general, public regulations. In other words, the business employees, the Department balanced agencies must also provide their eligible is considered to remain a viable two potentially competing objectives of employees with expanded family and business for the foreseeable future. the FFCRA. On the one hand, the leave medical leave, subject to the exceptions There is no formula provided by the afforded by the FFCRA was designed to and limitations set forth in § 826.30(b)– AICPA to determine the viability of a be widely available to employees to (d). However, as § 826.40(c) clarifies, business as a going concern, but rather assist them navigating the social and only certain employees of the United the standard considers conditions or economic impacts of COVID–19 as well States or agencies of the United States events in the aggregate. as public and private efforts to contain (‘‘federal employees’’) are potentially and slow the spread of the virus. On the eligible to take expanded family and The Department believes it is other hand, the Department recognizes medical leave. Those who are necessary to set forth objective criteria that FFCRA leave entitlements have potentially eligible are the federal for when a small business with fewer little value if they cause an employer to employees covered by Title I of the than 50 employees can deny an go out of business and, in so doing, FMLA. Those who are not potentially employee paid sick leave or expanded deny employees not only leave but also eligible for expanded family and family and medical leave to care for the jobs. In § 826.40(b), the Department medical leave are the federal employees employee’s son or daughter whose attempted to extend the leave benefits as whose FMLA coverage is found school or place of care is closed, or broadly as practicable, but not in elsewhere, including in Title II of the child care provider is unavailable, for circumstances that would significantly FMLA (codified in Title 5 of the U.S. COVID–19 related reasons. To that end, increase the likelihood that small Code). Section 826.40(c)(i)–(viii) sets section 826.40(b)(1) explains that a businesses would be forced to close. forth specific examples of federal small employer is exempt from the The Department rejected alternative employees covered by Title I of the requirement to provide such leave arrangements that excessively favored FMLA and therefore potentially eligible when: (1) Such leave would cause the either the extension of leave or for expanded family and medical leave. small employer’s expenses and financial exclusion of small businesses or which E. Intermittent Leave obligations to exceed available business imposed compliance requirements that revenue and cause the small employer were overly burdensome, particularly in Section 826.50 outlines the to cease operating at a minimal capacity; economic conditions resulting from circumstances and conditions under (2) the absence of the employee or COVID–19. which paid sick leave or expanded employees requesting such leave would Section 826.40(c) explains which family and medical leave may be taken pose a substantial risk to the financial public employers must comply with the intermittently under the FFCRA. In this health or operational capacity of the EPSLA and the EFMLEA. It uses the section, the Department has imported small employer because of their term ‘‘Public Agency,’’ which as and applied to the FFCRA certain specialized skills, knowledge of the explained in the definitions section, has concepts of intermittent leave from its business, or responsibilities; or (3) the the same meaning as in section 203(x) FMLA regulations. However, it has also small employer cannot find enough of the FLSA. Specifically, public agency modified these concepts and added other workers who are able, willing, and means the Government of the United additional limitations on the use of qualified, and who will be available at States; the government of a State or intermittent leave in circumstances the time and place needed, to perform political subdivision of a State; or an where the Department believes it is the labor or services the employee or agency of the United States (including incompatible with Congress’ objectives employees requesting leave provide, the United States Postal Service and to slow the spread of COVID–19. and these labor or services are needed Postal Regulatory Commission), a State, One basic condition applies to all for the small employer to operate at a or a political subdivision of a State; or employees who seek to take their paid minimal capacity. For reasons (1), (2), any interstate governmental agency. All sick leave or expanded family and and (3), the employer may deny paid covered public agencies must comply medical leave intermittently—they and sick leave or expanded family and with both the EPSLA and the EFMLEA their employer must agree. Absent medical leave only to those otherwise regardless of the number of employees agreement, no leave under the FFCRA eligible employees whose absence they employ, although such employers may be taken intermittently. Subsection would cause the small employer’s may exclude employees who are health (a) does not require an employer and

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employee to reduce to writing or spread COVID–19 by reporting to the and ensures that employees are able to similarly memorialize their agreement. employer’s worksite while taking use the full leave entitlement. But, in the absence of a written intermittent paid leave. This is not true, agreement, there must be a clear and however, when the employee takes paid F. Leave To Care for a Child Due to mutual understanding between the sick leave for other qualifying reasons. School or Place of Care Closure or Child parties that the employee may take Subsection (b)(2) prohibits employees Care Unavailability—Intersection intermittent paid sick leave or who report to an employer’s worksite Between the EPSLA and the EFMLEA from taking paid sick leave intermittent expanded family and Both the EPSLA and the EFMLEA intermittently, notwithstanding any medical leave, or both. Additionally, permit an employee to take paid leave agreement between the employer and where an employer and employee agree when needed to care for his or her son employee to the contrary, if the leave is that the latter may take paid sick leave or daughter whose school or place of taken because the employee: (1) Is or expanded family and medical leave care is closed, or child care provider is intermittently, they also must agree on subject to a Federal, State, or local unavailable, due to COVID–19 related the increments of time in which leave quarantine or isolation order related to reasons. Section 826.60 sets forth how may be taken, as explained in COVID–19; (2) has been advised by a the requirements of the EFMLEA and subsections (b)(1) and (c). health care provider to self-quarantine Section 826.50(c) provides that if an due to concerns related to COVID–19; the EPSLA interact when an employee employer directs or allows an employee (3) is experiencing symptoms of qualifies for both types of leave. to telework, subject to an agreement COVID–19 and is taking leave to obtain Generally, when an employee between the employer and employee, a medical diagnosis; (4) is caring for an qualifies for leave under both Acts, an the employee may take paid sick leave individual who either is subject to a employee may first use the two weeks or expanded family and medical leave quarantine or isolation order related to of paid leave provided by the EPSLA. intermittently, in any agreed increment COVID–19 or has been advised by a This use runs concurrent with the first of time, while the employee is health care provider to self-quarantine two weeks of unpaid leave under the teleworking. This section intentionally due to concerns related to COVID–19; or EFMLEA. Any remaining leave taken for affords teleworking employees and (5) is experiencing any other this purpose is paid under the EFMLEA. employers broad flexibility under the substantially similar condition specified Section 826.60 further explains that FFCRA to agree on arrangements that by the Secretary of Health and Human where an employee has already taken balance the needs of each teleworking Services. As the Department explains in some FMLA leave in the current twelve- employee with the needs of the subsection (b)(2), where paid leave is month leave year as defined by 29 CFR employer’s business. Moreover, as taken for these reasons, ‘‘the employee 825.200(b), the maximum twelve weeks teleworking employees present no risk is, may be, or is reasonably likely to of EFMLEA leave is reduced by the of spreading COVID–19 to work become, sick with COVID–19, or is amount of the FMLA leave entitlement colleagues, intermittent leave for any exposed to someone who is, may be, or taken in that year. If an employee has qualifying reason furthers the statute’s is reasonably likely to become, sick with exhausted his or her twelve workweeks objective to contain the virus. COVID–19.’’ In these situations, the of FMLA or EFMLEA leave, he or she In contrast, employees who continue employee may not take intermittent may still take EPSLA leave for a to report to an employer’s worksite may leave due to the unacceptably high risk COVID–19 qualifying reason. only take paid sick leave or expanded that the employee might spread COVID– family and medical leave intermittently 19 to other employees when reporting to Section 826.60(b) addresses an and in any increment—subject to the the employer’s worksite. Once such an employee’s prior use of emergency paid employer and employee’s agreement— employee begins taking paid sick leave sick leave, which does not prevent the in circumstances where there is a for one or more of these qualifying employee from taking expanded family minimal risk that the employee will reasons, the employee must continue to and medical leave. For example, if the spread COVID–19 to other employees at take paid sick leave each day until the employee takes two weeks of paid sick an employer’s worksite. Therefore, employee either uses the full amount of leave for a qualifying reason under subsection (b)(1) allows an employer paid sick leave or no longer has a EPSLA section 5102(a)(1)–(4) and (6), and employee who reports to an qualifying reason for taking paid sick the employee has exhausted the paid employer’s worksite to agree that the leave. The Department believes that sick leave available to the employee employee may take paid sick leave or such a requirement furthers Congress’ under the EPSLA and may not take expanded family and medical leave objective to slow the spread of COVID– additional paid sick leave for any intermittently solely to care for the 19. qualifying reason. If the employee then employee’s son or daughter whose Finally, subsection (d) clarifies that needs to take leave under the EFMLEA, school or place of care is closed, or where an employer and employee have the employee may do so, but the first whose child care provider is agreed that FFCRA leave may be taken ten days of expanded family and unavailable, because of reasons related intermittently, only the amount of leave medical leave may be unpaid. The to COVID–19. In this context, the actually taken may be counted toward employee may, however, choose to absence of confirmed or suspected the employee’s leave entitlements. This substitute earned or accrued paid leave, COVID–19 in the employee’s household is consistent with the requirements for as provided by the employer’s reduces the risk that the employee will intermittent leave use under the FMLA established policies.

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G. Leave To Care for a Child Due to employee took three weeks of leave in access information at the worksite, School or Place of Care Closure or Child January 2020 for the employee’s own through email, or online. An employer Care Unavailability—Intersection serious health condition, the employee may post or distribute the required Between the EFMLEA and the FMLA would only have nine weeks of information provided in the model Section 826.70 addresses the expanded family and medical leave notice in a different format, as long as interaction between the new entitlement available. Additionally, employees are the content is accurate and readable. to take FMLA leave to care for an limited to a total of twelve weeks of Although the FFCRA does not require employee’s child due to school or place expanded family and medical leave employers to provide a translated notice of care closure or child care under the EFMLEA, even if the to employees, the Department has unavailability under the EFMLEA and applicable time period (April 1 to issued a Spanish language version of the December 31, 2020) spans two twelve- poster. For employers who are covered an employee’s entitlement to take FMLA month leave periods under the FMLA. by the EFMLEA but are not covered by leave for other reasons, such as bonding Finally, for employees who are eligible the other provisions of the FMLA, with a newborn or newly placed child, to take leave under the FMLA and the posting of this FFCRA notice satisfies for the employee’s own serious health EFMLEA, and who take leave to care for their FMLA general notice obligation. condition, or to care for a covered a service member with a serious injury See 29 U.S.C. 2619; 29 CFR 825.300. family member with a serious health or illness, the total amount of leave The Department is aware that condition. The EFMLEA amended the available to the employee will be employers newly affected by the FMLA to add a sixth reason to take the calculated as set forth in 29 CFR EFMLEA requirements of the FFCRA twelve-week FMLA entitlement: To care 825.127(e). will not have established policies and for an employee’s son or daughter As explained in the above discussion practices for administering FMLA leave. whose school or place of care is closed of § 826.60, the first two weeks of In consideration of these employers, the or child care provider is unavailable due expanded family and medical leave may number of employees who will be to COVID–19 related reasons. be unpaid and the employee may eligible to use the FMLA for the first Eligibility requirements for employees substitute paid sick leave under the time for a limited period of time, and to take expanded family and medical EPSLA or employer-provided earned interruptions to normal business leave under the EFMLEA differ from and accrued paid leave during this operations from emergency conditions, standard FMLA leave. Not all period. After the first two weeks of the Department did not adopt in the employees who are eligible to take leave, expanded family and medical FFCRA employer notice regulations or expanded family and medical leave will leave is paid at two-thirds the employer ‘‘specific notice’’ obligations be eligible to take FMLA leave for other employee’s regular rate of pay, up to that are required in the FMLA reasons. Employees only need to have $200 per day. See § 826.24. Because this regulations. The FFCRA regulations do been employed for 30 calendar days in period of expanded family and medical not require employers to respond to order to be eligible for expanded family leave is paid, the FMLA provision for employees who request or use EFMLEA and medical leave to care for their child substitution of the employee’s accrued leave with notices of eligibility, rights due to school or place of care closure or paid leave is inapplicable, and neither and responsibilities, or written child care unavailability under the the employee nor the employer may designations that leave use counts EFMLEA. In contrast, to be eligible to require the substitution of paid leave. against employees’ FMLA leave take FMLA leave for other reasons, However, employers and employees allowances. However, an employer that employees generally need to have may agree, where Federal or state law has established practices for providing worked for the employer for at least permits, to have accrued paid leave individual employees with specific twelve months, have 1,250 hours of supplement the two-thirds pay under notices compliant with the FMLA service in the twelve-month period prior the EFMLEA so that the employee regulatory guidance at 29 CFR 825.300 to the leave, and work at a location receives the full amount of their normal may prefer to apply their existing where the employer has at least 50 pay. Federal agencies generally lack practices to EFMLEA leave users. employees within 75 miles. authority to provide for such a I. Employee Notice of Need for Leave Employer coverage also differs under supplement. the EFMLEA and the FMLA. Most Section 826.90 addresses an significantly, the EFMLEA applies to all H. Employer Notice employee’s notice to his or her employers with fewer than 500 Section 826.80 addresses the FFCRA employer regarding the need to take employees, while the FMLA generally requirement that employers post and leave. Section 826.90(a) explains that for does not apply to employers with fewer keep posted a notice of the law’s paid sick leave or expanded family and than 50 employees. Further, employers requirements. As required by the medical leave to care for the employee’s of health care providers and emergency FFCRA, the Department made a model son or daughter whose school or place responders may exclude such notice available on March 25, 2020, and of care is closed, or whose child care employees from the EFMLEA’s leave employers may, free of charge, provider is unavailable, due to COVID– requirements, but not the FMLA’s. download the poster (WHD1422 REV 19 related reasons, an employer may An employee’s ability to take 03/20) from the WHD website at https:// require employees to follow reasonable EFMLEA leave depends on his or her www.dol.gov/whd. In addition to notice procedures as soon as practicable use of FMLA leave during the 12-month posting the notice in a conspicuous after the first workday or portion of a FMLA leave year pursuant to 29 CFR place where employees or job applicants workday for which an employee 825.200(b) for a reason unrelated to at a worksite may view it, an employer receives paid sick leave in order to COVID–19. If an employee has already may distribute the notice to employees continue to receive such leave. Sections taken such leave, the employee may not by email, or post the required notice 826.90(b) and (c) explain that it will be be able to take the full twelve weeks of electronically on an employee reasonable for an employer to require expanded family and medical leave information website to satisfy the notice as soon as practicable after the under the EFMLEA. For example, if the FFCRA requirement. An employer may first workday is missed, and to require employer uses the calendar year as the also directly mail the required notice to that employees provide oral notice and twelve-month FMLA leave year and an any employees who are not able to sufficient information for an employer

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to determine whether the requested condition related to COVID–19, or to leave. The employer must give the leave is covered by the FFCRA. The care for the employee’s spouse, son, employee notice of any opportunity to employer may not require the notice to daughter, or parent with a serious health change plans or benefits, and if the include documentation beyond what is condition related to COVID–19, the employee requests the changed coverage allowed by § 826.100. normal FMLA certification requirements it must be provided by the employer. Section 826.90(d) states that it is still apply. See 29 CFR 825.306. Employees in a group health plan reasonable for the employer to require who take paid sick leave or expanded the employee to comply with the K. Health Care Coverage family and medical leave remain employer’s usual notice procedures and Section 826.110 explains that an responsible for paying the same portion requirements, absent unusual employee who takes expanded family of the plan premium that the employee circumstances. If an employee fails to and medical leave or paid sick leave is paid prior to taking leave. If premiums give proper notice, the employer should entitled to continued coverage under the are adjusted, the employee is required to give him or her notice of the failure and employer’s group health plan on the pay the new employee premium an opportunity to provide the required same terms as if the employee did not contribution on the same terms as other documentation prior to denying the take leave. See 29 U.S.C. 2614(c); see employees. The employee’s share of request for leave. also 29 U.S.C. 1182 and 26 CFR premiums must be paid by the method 54.9802–1(e)(2)(i); 29 CFR normally used during any paid leave; in J. Documentation of Need for Leave 2590.702(e)(2)(i) and 45 CFR many cases, this will be through a An employee must provide his or her 146.121(e)(2)(i) (providing that an payroll deduction. For unpaid leave, or employer documentation in support of employer cannot establish a rule for where the pay provided by the EFMLEA paid sick leave or expanded family and group health plan eligibility or set any or the EPSLA is insufficient to cover the medical leave. As provided in § 826.100, individual’s premium or contribution employee’s premiums, the rule directs such documentation must include a rate based on whether an individual is employers to 29 CFR 825.210(c), which signed statement containing the actively at work, unless the employer specifies how employers can obtain following information: (1) The treats employees who are absent from payment. If an employee chooses not to employee’s name; (2) the date(s) for work on sick leave as being actively at retain group health plan coverage while which leave is requested; (3) the work). This rule defines ‘‘group health taking paid sick leave or expanded COVID–19 qualifying reason for leave; plan’’ using the definition under the family and medical leave, the employee and (4) a statement representing that the FMLA. See 29 CFR 825.102. is entitled upon returning from leave to employee is unable to work or telework Maintenance of individual health be reinstated on the same terms as prior because of the COVID–19 qualifying insurance policies purchased by an to taking the leave, including family reason. employee from an insurance provider, member coverage. An employee must provide additional as described in 29 CFR 825.209(a), is the documentation depending on the responsibility of the employee. L. Multiemployer Plans COVID–19 qualifying reason for leave. Section 826.110(b)–(g) explains what An employer that is a signatory to a An employee requesting paid sick leave an employer must do to continue group multiemployer collective bargaining under § 826.20(a)(1)(i) must provide the health plan coverage on the same terms agreement may satisfy its obligations name of the government entity that as if the employee did not take paid sick under the EFMLEA and the EPSLA by issued the quarantine or isolation order leave or expanded family and medical making contributions to a to which the employee is subject. An leave. These requirements are similar to multiemployer fund, plan, or other employee requesting paid sick leave the regulatory requirements for program consistent with its bargaining under § 826.20(a)(1)(ii) must provide the employers when employees take FMLA obligations and its collective bargaining name of the health care provider who leave for other reasons. In particular, agreement. The contributions must be advised him or her to self-quarantine for while an employee is taking paid sick based on the amount of paid sick leave COVID–19 related reasons. An leave or expanded family and medical and expanded family and medical leave employee requesting paid sick leave leave, the employer must maintain the to which the employee is entitled under under § 826.20(a)(1)(iv) to care for an same group health plan benefits the applicable provisions of the FFCRA individual must provide either (1) the provided to an employee and his or her based on each employee’s work under government entity that issued the family members covered under the plan the multiemployer collective bargaining quarantine or isolation order to which prior to taking leave—including medical agreement. The fund, plan, or other the individual is subject or (2) the name care, surgical care, hospital care, dental program must allow employees to of the health care provider who advised care, eye care, mental health counseling, obtain their pay for the leave to which the individual to self-quarantine, substance abuse treatment, and other they are entitled under the FFRCA. depending on the precise reason for the benefit coverage. This requirement also Alternatively, an employer that is part request. An employee requesting to take applies to benefits provided through a of a multiemployer collective bargaining paid sick leave under § 826.20(a)(1)(v) supplement to a group health plan, agreement may choose to satisfy its or expanded family and medical leave whether or not the supplement is obligations under the FFCRA by means to care for his or her child must provide provided through a flexible spending other than through contribution to a the following information: (1) The name account or other component of a plan, fund, or program, provided they of the child being care for; (2) the name cafeteria plan. are consistent with its bargaining of the school, place of care, or child care Likewise, if an employer provides a obligations and collective bargaining provider that closed or became new health plan (including a new agreement. unavailable due to COVID–19 reasons; benefit package option) or benefits or and (3) a statement representing that no changes health benefits or plans while M. Return to Work other suitable person is available to care an employee is taking paid sick leave or Section 826.130 describes an for the child during the period of expanded family and medical leave, the employee’s right to return to work after requested leave. employee is entitled to the new or taking paid leave under the EPSLA or For leave taken under the FMLA for changed plan/benefits to the same the EFMLEA. In most instances, an an employee’s own serious health extent as if the employee was not on employee is entitled to be restored to

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the same or an equivalent position upon documentation provided pursuant to wage for each hour of paid sick leave return from paid sick leave or expanded § 826.100 for four years, regardless of denied, and an additional equal amount family and medical leave in the same whether leave was granted or denied. If as liquidated damages, or to obtain an manner that an employee would be an Employee provided oral statements injunction against the employer. returned to work after FMLA leave. See to support his or her request for paid Finally, in the case of a repeated or the FMLA job restoration provisions at sick leave or expanded family and willful violation, the employer shall 29 CFR 825.214 and the FMLA medical leave, the employer is required also be subject to a civil penalty for each equivalent position provisions at 29 to document and retain such violation, and liable in an additional CFR 825.215. information for four years. If an amount, as liquidated damages, equal to However, the new statute does not employer denies an employee’s request the minimum wage for each hour of protect an employee from employment for leave pursuant to the small business paid sick leave denied. actions, such as layoffs, that would have exemption under § 826.40(b), the Section 826.151(a) explains that, for affected the employee regardless of employer must document its authorized purposes of the EFMLEA, employers are whether the leave was taken. The officer’s determination that the subject to the prohibitions that apply employer must be able to demonstrate prerequisite criteria for that exemption with respect to all FMLA leave, which that the employee would have been laid are satisfied and retain such are set forth at 29 U.S.C. 2615. off even if he or she had not taken leave. documentation for four years. Section Specifically, employers are prohibited This provision tracks the existing 826.140 also explains what documents from interfering with, restraining, or provision under the FMLA in 29 CFR the employer should create and retain to denying an employee’s exercise of or 825.216. The employer has the same support its claim for tax credits from the attempt to exercise any right under the burden of proof to show that an Internal Revenue Service (IRS). A more FMLA, including the EFMLEA; employee would not otherwise have detailed explanation of how Employers discriminating against an employee for been employed at the time may claim tax credits can be found at opposing any practice made unlawful reinstatement is requested in order to https://www.irs.gov/forms-pubs/about- by the FMLA, including the EFMLEA; deny restoration to employment. form-7200 and https://www.irs.gov/pub/ or interfering with proceedings initiated The EFMLEA amendments to the irs-drop/n-20-21.pdf. under the FMLA, including the EFMLEA. FMLA specify that the FMLA’s O. Prohibited Acts and Enforcement restoration provision in 29 U.S.C. Section 826.151(b) explains that, for 2614(a)(1) does not apply to an Sections 826.150 and 826.151 purposes of the EFMLEA, employers are employer who has fewer than twenty- describe certain acts that are prohibited subject to the enforcement provisions five employees if all four of the under the EPSLA and the EFMLEA, as set forth in section 107 of the FMLA, following conditions are met: well as enforcement mechanisms. with one exception: an employee may (a) The employee took leave to care Section 826.150(a) explains that, not bring a private action against an for his or her son or daughter whose under the EPSLA, employers are employer under the EFMLEA if the school or place of care was closed or prohibited from discharging, employer, although subject to the whose child care provider was disciplining, or discriminating against EFMLEA, is not otherwise subject to the unavailable; any employee because the employee FMLA. See 29 U.S.C. 2617; 29 CFR (b) The employee’s position no longer took paid sick leave, initiated a 825.400. In other words, an employee exists due to economic or operating proceeding under or related to paid sick can only bring an action against an conditions that (i) affect employment leave, or testified or is about to testify employer under the EFMLEA if the and (ii) are caused by a public health in such a proceeding. employer has had 50 or more employees emergency (i.e., due to COVID–19 Section 826.150(b) explains that an for each working day during each of related reasons) during the period of the employer who violates the paid sick twenty or more calendar workweeks in employee’s leave; leave requirements is considered to the current or preceding calendar year, (c) The employer made reasonable have failed to pay the minimum wage as required by section 101(4)(A)(i) of the efforts to restore the employee to the required by section 6 of the FLSA, and FMLA. same or an equivalent position; and an employer who violates the Section 826.152 provides that (d) If the employer’s reasonable efforts prohibition on discharge, discipline, or employees may file complaints alleging to restore the employee fail, the discrimination described in section violations of the EPSLA and/or the employer makes reasonable efforts for a 826.150(a) is considered to have EFMLEA with WHD. period of time to contact the employee violated section 15(a)(3) of the FLSA. Section 826.153 sets out the if an equivalent position becomes See 29 U.S.C. 206, 215(a)(3). With Secretary’s investigative authority under available. The period of time is respect to such violations, the relevant the EPSLA and the EFMLEA. Under the specified to be one year beginning either enforcement provisions of sections 16 EPSLA, the Secretary may investigate on the date the leave related to COVID– and 17 of the FLSA apply. See 29 U.S.C. and gather data in the same manner as 19 reasons concludes or the date twelve 216, 217. authorized by sections 9 and 11 of the weeks after the employee’s leave began, For instance, an employee may FLSA. See 29 U.S.C. 209, 211. Under the whichever is earlier. maintain, on behalf of the employee and EFMLEA, the Secretary may investigate In addition, as these provisions any other similarly-situated employees, and gather data in the same manner as amend the FMLA, the existing an action in any federal or state court of authorized by sections 106(a) and (d) of limitation to job restoration for ‘‘key’’ competent jurisdiction to recover an the FMLA. See 29 U.S.C. 2616(a), (d). employees is applicable to leave taken amount equal to the federal minimum The provisions authorize, among other under the EFMLEA. The FMLA’s key wage for each hour of paid sick leave things, the Secretary to enter a employee regulations are in 29 CFR denied, an additional equal amount as workplace and have access to, inspect, 825.217. liquidated damages, and an amount for and copy documents, and/or require costs and reasonable attorney’s fees. witness attendance and testimony, N. Recordkeeping Moreover, the Secretary may bring an relating to any matter under Section 826.140 explains that an action against an employer to recover an investigation, from any person or entity employer is required to retain all amount equal to the Federal minimum being investigated or proceeded against,

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at any stage of any proceeding or The Department interprets ‘‘existing to deny the employee the paid sick investigation, at any place in the United employer policy’’ in section 5107(1)(C) leave to which he or she is entitled. States. They also permit the Secretary to of the FFCRA to include a COVID–19 Section 826.160(c) explains the compel the production of relevant related offering of paid leave that the sequencing of expanded family and documents or testimony by subpoena as employer voluntarily issued prior to medical leave with other types of leave. permitted by these provisions of law, April 1, 2020, and under which No employer shall require, coerce, or including that in the event of any failure employees were offered more paid leave unduly influence an employee to use or refusal to comply with such a than under the employer’s standard or another source of paid leave before subpoena, the Secretary may obtain current policy. The Department taking expanded family and medical from any district court in the United acknowledges that some employers leave. However, an eligible employee States an order to compel production voluntarily offered and provided such may elect to use, or an employer may and/or testimony. Failure to obey such leave to help their employees in this require that an employee use, leave the an order may be enforced through time of emergency. Nonetheless, the employee has available under the contempt proceedings. FFCRA still requires those employers to employer’s policies to care for a child, provide the entirety of the paid sick such as vacation or personal leave or P. Effect of Other Laws, Employer leave and expanded family and medical paid time off, concurrently. If expanded Practices, and Collective Bargaining leave to which its employees are family and medical leave is used Agreements eligible, regardless of whether an concurrently with another source of Section 826.160 discusses the effect of employee took the additional paid leave paid leave, then the employer has to pay taking paid sick leave and expanded the employer voluntarily offered. Doing the employee the full amount to which family and medical leave on other so is necessary to ensure all eligible the employee is entitled under the rights, benefits, employer practices, and employees receive the full extent of paid employer’s preexisting paid leave policy collective bargaining agreements. The sick leave and expanded family and for the period of leave taken, even if that statutory provisions underlying this medical leave to which they are entitled amount is greater than $200 per day or section appear in the EPSLA. under the EPSLA and the EFMLEA. $10,000 in the aggregate. But the Section 826.160(a)(1) explains that an However, an employer may employer’s eligibility for tax credits is employee’s entitlement to, or actual use prospectively terminate such a still limited to the cap of $200 per day or $10,000 in the aggregate. of, paid sick leave is not grounds for voluntary additional paid leave offering Section 826.160(d)–(e) explains that diminishment, reduction, or elimination as of April 1, 2020, or thereafter, an employer has no obligation to of any other right or benefit to which the provided that the employer had not already amended its leave policy to provide, and an employee has no right employee is entitled under any other or entitlement to receive, financial reflect the voluntary offering. This federal, state, or local law, under any compensation or other reimbursement means the employer must pay collective bargaining agreement, or for unused paid sick leave or unused employees for leave already taken under under any employer policy that existed expanded family and medical leave in such an offering before it is terminated, prior to April 1, 2020. See 29 U.S.C. the event the employee’s employment but the employer need not continue the 2651(b), 2652. Paid sick leave is in ends after April 1, 2020, but before the offering in light of the FFCRA taking addition to, and not a substitute for, FFCRA’s expiration on December 31, effect. other sources of leave which the 2020. Moreover, the Department employee had already accrued, was Finally, the Department clarifies that interprets sections 5107(2) and 5109 of already entitled to, or had already used, employees do not have any right or the FFCRA to mean that no employer before the EPSLA became operational entitlement to use paid sick leave or has an obligation to provide, and no on April 1, 2020, and effective on April expanded family and medical leave employee or former employee has a 2, 2020. Therefore, neither eligibility retroactively, meaning they have no right or entitlement to receive, financial for, nor use of, paid sick leave may right or entitlement to be paid through compensation or other reimbursement count against an employee’s balance or paid sick leave or expanded family and for unused paid sick leave or unused accrual of any other source or type of medical leave for any unpaid or expanded family and medical leave leave. partially paid leave taken before April 1, upon or after the FFCRA’s expiration on Section 826.160(a)(2) explains that an 2020. December 31, 2020. employer may not deny an employee Section 826.160(b) explains the Section 826.160(f) explains that any paid sick leave or expanded family and sequencing of paid sick leave with other one individual employee is limited to a medical leave on the grounds that the types of leave. Pursuant to section 5102 maximum of two weeks (80 hours) paid employee has already taken another of the FFRCA, an employee may choose sick leave as described in § 826.160. type of leave or taken leave from to use paid sick leave prior to using any Thus, the absolute upper limit of 80 another source, including leave taken other type of paid leave to which he or hours of paid sick leave to which one for reasons related to COVID–19. she is entitled under any other Federal, could potentially be eligible is per Regardless of how much other leave an State, or local law; collective bargaining person and not per job. Should an employee has taken up to the date he or agreement; or employer policy that employee change positions during the she requests paid sick leave or existed prior to April 1, 2020. As this period of time in which the paid sick expanded family and medical leave, the decision is at the employee’s discretion, leave is in effect, he or she is not employer must permit the employee to § 826.160(b)(2) clarifies that no entitled to a new round of paid sick immediately take any and all paid sick employer shall require, coerce, or leave. Once an employee takes the leave or expanded family and medical unduly influence an employee to use maximum 80 hours of paid sick leave, leave to which he or she is entitled and another source of paid leave before he or she is not entitled to any paid sick eligible under the EPSLA and the taking paid sick leave. Of course, an leave from a subsequent employer. If an EFMLEA. However, the preceding employer may not require or influence employee changes positions before analysis does not apply to or affect the an employee to use unpaid leave prior taking 80 hours of paid sick leave, then FMLA’s twelve workweeks within a to taking paid sick leave; doing so his or her new employer (if covered by twelve-month period cap. would be akin to denying or attempting FFCRA) must provide paid sick leave

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until the employee has taken 80 hours 110(a)(3)), 5111; CARES Act section 2. Overview of the Rule of paid sick leave total regardless of the 3611(1)–(2). For the reasons stated The rule implements the EPSLA and employer providing it. above, the Department has concluded it the EFMLEA, as modified by the CARES has good cause to make this temporary IV. Statutory and Regulatory Act. The EPSLA requires that certain rule effective immediately and until the Requirements employers provide two workweeks (up underlying statute sunsets on December to 80 hours) of paid sick leave to eligible A. Administrative Procedure Act 31, 2020. employees who need to take leave from This rule is issued without prior B. Executive Order 12866, Regulatory work for specified reasons. The notice and opportunity to comment and Planning and Review; and Executive EFMLEA requires that certain with an immediate effective date Order 13563, Improved Regulation and employers provide up to twelve weeks pursuant to the Administrative Regulatory Review of expanded family and medical leave to Procedure Act (APA). 5 U.S.C. 553(b) eligible employees who need to take and (d). 1. Introduction leave from work because the employee is caring for his or her son or daughter 1. Good Cause To Forgo Notice and Under E.O. 12866, OIRA determines whose school or place of care is closed Comment Rulemaking whether a regulatory action is or child care provider is unavailable due The APA, 5 U.S.C. 553(b)(B), significant and therefore, subject to the to COVID–19 related reasons. Payments authorizes an agency to issue a rule requirements of the E.O. and OMB from employers to employees for such without prior notice and opportunity to review. Section 3(f) of E.O. 12866 paid leave, as well as allocable costs comment when the agency, for good defines a ‘‘significant regulatory action’’ related to the maintenance of health cause, finds that those procedures are as an action that is likely to result in a benefits during the period of the ‘‘impracticable, unnecessary, or contrary rule that (1) has an annual effect on the required leave, is to be reimbursed by to the public interest.’’ The FFCRA economy of $100 million or more, or the Department of the Treasury via tax authorizes the Department to issue adversely affects in a material way a credits, up to statutory limits, as regulations under the EPSLA and the sector of the economy, productivity, provided under the FFCRA. competition, jobs, the environment, EFMLEA pursuant to the good cause 3. Economic Impacts exception of the APA. FFCRA sections public health or safety, or state, local, or 3102(b) (adding FMLA section tribal governments or communities (also The Department estimated the 110(a)(3)), 5111. referred to as economically significant); number of affected employers and The Department is bypassing advance (2) creates serious inconsistency or quantified the costs associated with this notice and comment because of the otherwise interferes with an action temporary rule. The paid sick leave and exigency created by sections 3106 and taken or planned by another agency; (3) the expanded family and medical leave 5108 of the FFCRA, which go into effect materially alters the budgetary impacts provisions of the FFCRA both apply to on April 1, 2020, and expire on of entitlement grants, user fees, or loan employers with fewer than 500 December 31, 2020. The COVID–19 programs, or the rights and obligations employees. The 2017 Statistics of U.S. pandemic has escalated at a rapid pace of recipients thereof; or (4) raises novel Businesses (SUSB) reports that there are and scale, leaving American families legal or policy issues arising out of legal 5,976,761 private firms in the U.S. with 5 with difficult choices in balancing work, mandates, the President’s priorities, or fewer than 500 employees. This child care, and the need to seek medical the principles set forth in the E.O. As temporary rule says that small attention for illness caused by the virus. described below, this temporary rule is employers with fewer than 50 To avoid economic harm to American economically significant. The employees may qualify for an families facing these conditions, a Department has prepared a Regulatory exemption from the requirement to decision to undertake notice and Impact Analysis (RIA) in connection provide leave due to school or place of comment rulemaking would likely delay with this rule, as required under section care closings or child care unavailability final action on this matter by weeks or 6(a)(3) of Executive Order 12866, and if the leave payments would jeopardize months, and would, therefore, OMB has reviewed the rule. OIRA has the viability of their business as a going complicate and likely preclude the designated this rule as a ‘‘major rule’’, concern. The 2017 SUSB reports that Department from successfully exercising as defined by 5 U.S.C. 804(2). there are 5,755,307 private firms with the authority created by sections 3106 Executive Order 13563 directs fewer than 50 employees, representing and 5108. Moreover, such delay would agencies to propose or adopt a 96 percent of all impacted firms (firms be counter to one of the FFCRA’s main regulation only upon a reasoned with fewer than 500 employees). The purposes in establishing paid leave: determination that its benefits justify its employers who are not able to qualify enabling employees to leave the costs; the regulation is tailored to for the exemption discussed above are workplace now to help prevent the impose the least burden on society, those with fewer than 500 employees spread of COVID–19. consistent with achieving the regulatory but greater than or equal to 50 objectives; and in choosing among employees. Using the SUSB data 2. Good Cause To Proceed With an alternative regulatory approaches, the mentioned above, the Department Immediate Effective Date agency has selected those approaches estimates that there are 221,454 firms The APA also authorizes agencies to that maximize net benefits. Executive that meet this criteria. make a rule effective immediately, upon Order 13563 recognizes that some Although the rule exempts certain a showing of good cause, instead of benefits are difficult to quantify and health care providers and emergency imposing a 30-day delay. 5 U.S.C. provides that, where appropriate and responders from the definition of 553(d)(3). The FFCRA authorizes the permitted by law, agencies may eligible employee for purposes of the Department to issue regulations that are consider and discuss qualitatively FFCRA, their employers may have some effective immediately under the EPSLA values that are difficult or impossible to 5 Statistics of U.S. Businesses 2017, https:// and the EFMLEA pursuant to the good quantify, including equity, human www.census.gov/data/tables/2017/econ/susb/2017- cause exception of the APA. FFCRA dignity, fairness, and distributive susb-annual.html, 2017 SUSB Annual Data Tables sections 3102(b) (adding FMLA section impacts. by Establishment Industry.

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employees who do not meet this personnel, emergency medical spend one hour to read the rule and definition, so these employers may still technicians, paramedics, emergency determine their responsibilities to be impacted by the provisions of the management personnel, 911 operators, provide paid sick leave and expanded FFCRA. child welfare workers and service family and medical leave. The The Department estimates that providers, and public works personnel. Department estimates that this will be a employees who work for employers Because this list consists of occupations one-time rule familiarization cost, as the with fewer than 500 employees could spread across various industries, the provisions of the Act sunset on potentially benefit from this rule. Department is unable to use the SUSB December 31, 2020. According to the 2017 SUSB data, the data to determine the magnitude of The Department’s analysis assumes 5,976,761 firms that meet this criteria potential affected emergency that the rule would be reviewed by employ 60,556,081 workers. Not all responders. According to the May 2018 Compensation, Benefits, and Job eligible employees will require use of BLS Occupational Employment and Analysis Specialists (SOC 13–1141) or the paid sick leave or expanded family Wages estimates, these occupations employees of similar status and and medical leave provisions of the have a combined employment of 4.4 comparable pay. The median hourly FFCRA. The Department lacks data to million.7 This may be an over count or wage for these workers is $30.29 per determine how many employees will an under count of the potentially hour.8 In addition, the Department also use this leave, which type of leave they exempt emergency responders. The assumes that benefits are paid at a rate will use and for what reason, and the estimate may be an over count because of 46 percent 9 and overhead costs are wages of those who will use the leave. it includes employees who work for paid at a rate of 17 percent of the base Certain health care providers and employers of all sizes, not just those wage, resulting in a fully-loaded hourly emergency responders may be excluded with fewer than 500 employees. The wage of $49.37.10 The Department from this group of impacted employees. estimate may be an under count because estimates that the total rule The rule defines health care provider to it does not include military or national familiarization cost to employers with include anyone employed at any guard, as they are not counted in the fewer than 50 employees, who spend doctor’s office, hospital, health care OES estimates. one hour reviewing the rule, will be center, clinic, post-secondary $284,139,507 (5,755,307 firms × 1 hour i. Costs × educational institution offering health $49.37). The Department estimates care instruction, medical school, local This temporary rule implementing the that the total rule familiarization cost to health department or agency, nursing paid sick leave and expanded family employers with greater than or equal to facility, retirement facility, nursing and medical leave provisions of the 50 but fewer than 500 employees will be × × home, home health care provider, any FFCRA will result in four different $10,933,184 (221,454 firms 1 hour facility that performs laboratory or categories of costs to employers: Rule $49.37). Total rule familiarization costs medical testing, pharmacy, or any familiarization costs, documentation for all impacted firms will therefore be similar institution. According to the costs, costs of posting a notice, and $295,072,691. other managerial and operating costs. SUSB data mentioned above, employers b. Costs of Documentation with fewer than 500 employees in the The temporary rule will also result in health care and social assistance increased costs to the Department to Employers with fewer than 50 employees are able to be exempt from industry employ 9.0 million workers.6 administer the rule and handle providing paid sick leave for child care This estimate is likely to be the upper complaints and claims related to the provisions of the Acts. purposes and expanded family and bound of potentially exempt health care medical leave under the FFCRA if they industry workers, because it could a. Rule Familiarization Costs are able to show that complying with include workers that may not be The Department estimates that all the requirements would jeopardize the employed at an institution covered by employers with fewer than 500 viability of their business as a going the exemption. This estimate may not, employees will need to review the rule concern. These employers will need to however, include employees who to determine their responsibilities. For demonstrate this burden, and to show provide services to the health care those 5,755,307 employers with fewer that they are exempt. These small industry. The SUSB data does not than 50 employees, they will need to employers must document the facts and include further industry breakouts, and review the rule to determine what the circumstances to demonstrate this so the Department is unable to rules are for all businesses, what the burden if they have employees who are determine the exact number of workers small employer exemptions are, and requesting paid sick leave or expanded employed at these organizations with how to either comply or show that the family and medical leave. Although the fewer than 500 employees. requirements of the rule would The rule defines emergency employers are not required to send such jeopardize the viability of their material or documentation to the responders as anyone necessary for the business. The Department estimates that provision of transport, care, healthcare, Department, they are required to retain these small employers will likely spend such records for their own files. Some comfort and nutrition of such patients, one hour to understand their or others needed for the response to employers will not qualify for the responsibilities under the rule. For the exemption. The Department lacks COVID–19. The rule provides a list of 221,454 employers with fewer than 500 occupations that includes but is not specific data to estimate the number of employees, but greater than or equal to small employers who will use the limited to military or National Guard, 50 employees, they will likely need to law enforcement officers, correctional exemption, but the Department assumes institution personnel, fire fighters, 7 Occupational Employment and Wages, May 8 2018, https://www.bls.gov/oes/2018/may/ Occupational Employment and Wages, May emergency medical services personnel, 2018, https://www.bls.gov/oes/2018/may/ physicians, nurses, public health oes131141.htm. The Department used SOC codes 29–1060 (Physicians and Surgeons), 29–1141 oes131141.htm. (Registered Nurses), 29–1171 (Nurse Practitioners), 9 The benefits-earnings ratio is derived from the 6 Statistics of U.S. Businesses 2017, https:// 29–2041 (Emergency Medical Technicians and Bureau of Labor Statistics’ Employer Costs for www.census.gov/data/tables/2017/econ/susb/2017- Paramedics), 33–2000 (Fire Fighting and Prevention Employee Compensation data using variables susb-annual.html, 2017 SUSB Annual Data Tables Workers), and 33–3000 (Law Enforcement Workers), CMU1020000000000D and CMU1030000000000D. by Establishment Industry. to represent the occupations listed in the rule. 10 $30.29 + $30.29(0.46) + $30.29(0.17) = $49.37.

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that until the end of the year, potentially leave and expanded family and medical Department estimates that all 5,976,761 up to 10 percent of these 5,755,307 leave provisions of the FFCRA are firms with fewer than 500 employees employers (575,531) will likely required to post this notice. The could potentially incur this cost, but is document that the requirements of the Department estimates that all 5,976,761 unable to determine the extent to which Act will jeopardize the viability of their employers with fewer than 500 leave will be used by employees given businesses. The Department estimates employees will post this notice, and that the various eligibility requirements, and that each of these employers will spend 99 percent of employers (5,916,993) will therefore cannot estimate the total one hour for creating and documenting post the information electronically managerial and operation costs these records. Costs of documentation while 1 percent (59,768) will physically incurred. for these small employers will therefore post the notice on employee bulletin There are likely other costs to be $28,413,965 (575,531 firms × 1 hour boards. The Department estimates that it employers for which the Department is × $49.37). will take 15 minutes (or 0.25 hours) for unable to quantify in part because the Employers are required to retain all employers posting the provision number of employees who will qualify records or documentation provided by electronically to prepare and post the for leave under the FFCRA and take the employee prior to taking paid sick provision, and it will take 75 minutes such leave at each employer is unknown leave or expanded family and medical (or 1.25 hours) for employers posting and because the productivity losses leave. When employees take expanded the notice manually to prepare the caused by employees taking leave likely family and medical leave, employees notice and post it in a conspicuous vary by employer and for each must provide their employers with place where notices to employees are individual employee, but which are appropriate documentation in support customarily posted. Employers who discussed qualitatively here. The new of such leave. Employers must retain post electronically will incur a one-time paid leave provisions of the Act may this documentation, as it may be cost of $73,030,486 (5,916,993 × 0.25 × result in an increase in the number of required for tax credits and other $49.37) and those who physically post employees who take advantage of sick purposes under the FFCRA. For the the notice will incur a one-time cost of leave and family and medical leave, 221,454 employers with between 50 and $3,688,433 (59,768 × 1.25 × $49.37). compared to the number of employees 500 employees, the Department Therefore, the total cost of posting this who would use leave absent the new estimates that they will spend an notice will be $76,718,919. Employers provisions. When an employee takes additional one hour, on average, on may also incur a small cost of manually leave, the overall productivity of the documentation associated with this producing the notices, including paper, business likely will suffer (although rule. For the 5,755,307 employers with printer ink, etc., but the Department there could be some offsetting fewer than 50 employees, the believes that this cost will be minimal productivity improvements if coworkers Department assumes that they will compared to the cost of the time spent are less likely to become infected) and, spend 30 minutes, on average, on preparing and posting the notice. in some instances, the business may documentation associated with this face unique operational challenges rule. The time spent by small employers d. Other Managerial and Operating which could hinder its ability to will be lower because they have fewer Costs continue operations for the same employees, and some of them will be In order to comply with the paid sick duration or at the same capacity as able to use the small business leave and expanded family and medical before the employee(s) took leave. These exemption from the requirement to leave provisions of the FFCRA, costs are difficult to quantify, but likely provide leave due to school or childcare employers may incur additional will be significant, especially if a large closings. The Department believes an managerial and operating costs that the number of employees are eligible for, average of one hour or 30 minutes is Department is unable to quantify. For and take, leave. These costs are not appropriate for the year, because some example, when employees require the created specifically because of any employers will not have any employees use of this paid leave, employers will unique features of this temporary rule, that will request leave, so will therefore need to determine if their employees are but are directly linked to the statute’s not need any documentation, while eligible for the leave, and will need to leave provisions. other employers will have multiple calculate the amount that an employee employees requesting this leave. should receive, and will need to make e. Costs to the Department Documentation costs for these the adjustments to an employee’s WHD will also incur costs associated employers will therefore be paycheck, and will also need to adjust with the paid sick leave and expanded $153,002,937 (5,755,307 × 0.5 hours × bookkeeping practices to track the family and medical leave provisions of $49.37) + (221,454 × 1 hour × $49.37). amount of leave used by an employee. the FFCRA. Prior to this Act, WHD had Total documentation costs for Because the Department lacks data on not enforced a comprehensive paid sick employers of all sizes are therefore how many employees will require either leave program applicable to a large estimated to be $181,416,902 paid sick leave or expanded family and segment of the U.S. workforce (minus ($28,413,965 + $153,002,937). medical leave through the end of the the exemptions). WHD will incur the year, the total managerial and operation additional costs of setting up a new c. Costs of Posting a Notice costs incurred by employers cannot be enforcement program, administering the Section 5103(a) of the FFCRA requires quantified. However, for illustrative program, and processing complaints employers to post a notice to inform purposes, for each employee that associated with this new provision. The their employees of the requirements of requires the use of this leave, the Department does not have data to assess the EPSLA. The notice must be posted Department estimates it will take an this cost to the Department. in a conspicuous place on the premises employer two hours to complete these of the employer where notices to additional tasks. If these tasks are ii. Cost Summary employees are customarily posted, or performed by a Compensation, Benefits, As discussed above, the quantified emailed or direct mailed to employees, and Job Analysis Specialist with a fully- costs associated with the paid sick leave or posted electronically on an employee loaded hourly wage of $49.37, then the and expanded family and medical leave information internal or external website. cost to each employer per employee provisions of the FFCRA and with this All employers covered by the paid sick requiring leave is $98.74. The temporary rule are rule familiarization

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costs, costs of documentation, and the dollars. The Department estimates that cost of posting a notice. Table 1 total costs in 2020 are $553 million. summarizes all of these costs in 2018

iii. Transfers would also need to determine the which is facing unique challenges due The transfers associated with this rule number of days each employee would to the COVID–19 global pandemic. are the paid sick leave and expanded take leave, the type of leave employees The expanded family and medical family and medical leave that would take, and whether EFMLEA leave leave provisions of the FFCRA will employees will receive as a result of the would run concurrently with certain allow parents to care for their children FFCRA. The paid leave will initially be previously-provided leave, all of which who are out of school, or whose provided by employers, who will then would vary depending on whether they childcare provider is unavailable due to be reimbursed by the Department of the are taking paid sick leave or expanded COVID–19 related reasons. This will allow parents to avoid extra childcare Treasury through a tax credit, up to family and medical leave. If an costs that they otherwise may have to statutory limits, which is then employee requires the use of paid sick leave to self-quarantine, they will likely incur. ultimately paid for by taxpayers Without this paid sick leave and (although there may be some offsetting take the entire 80 hours allotted, because the CDC’s guidelines expanded family and medical leave taxpayer effects due to statutory limits, (that is, without the policy of tying some which is then ultimately paid for by recommend a quarantine period of two weeks. Additionally, an employee may federal COVID–19 assistance to taxpayers’ reduced reliance on social employment arrangements), there could assistance programs). Such transfers take up to ten weeks of paid expanded family and medical leave to care for his be long-term costs in addition to the may be reduced if employees opt to use short term impacts listed above. For or employers require that employees use or her child whose school or place of care is closed or child care provider is example, there could be substantial certain pre-existing leave (i.e., personal rehiring costs for employers when the or vacation leave or paid time off) unavailable. For school districts that have closed through the end of the 2020 public health concern has abated and, concurrently with any EFMLEA leave. simultaneously, transition costs to As discussed above, the total number of school year, it is likely that these parents would take the entire twelve workers as they restart their careers. A employees who are potentially eligible spillover effect of these frictions might for this leave is as high as 61 million, week allotment. The Department lacks data to determine which employees will be increased reliance on social but the number of employees who will assistance programs. actually use the leave will be a smaller need leave, how many days of leave will share of this total. The Department does ultimately be used, and how much pay v. Regulatory Alternatives not know to what extent employees will employers will be required to provide The Department notes that the FFCRA be exposed to COVID–19 themselves, for such leave. Although the Department delegates to the Secretary the authority will be subject to a Federal, State, or is unable to quantify the transfer of paid to issue regulations to ‘‘exclude certain local quarantine, will be caring for an leave, we expect that it is likely to health care providers and emergency individual exposed to COVID–19, or exceed $100 million in 2020. responders from the definition of will need to stay home to take care of iv. Benefits eligible employee’’ under section a child out of school or child care (and 110(a)(1)(A) of the EFMLEA and 5110(1) unable to telework), and therefore does The benefits of the paid sick leave and of the EPSLA; ‘‘to exempt small not know how many employees will expanded family and medical leave businesses with fewer than 50 require use of the paid leave provided provisions of the FFCRA are vast, and employees from the requirements’’ of in the Act. In order to quantify the although unable to be quantified, are section 102(a)(1)(F) of EFMLEA and potential transfer, the Department expected to greatly outweigh any costs 5102(a)(5) of the EPSLA ‘‘when the would need to determine the number of of these provisions. With the availability imposition of such requirements would days of leave that would be taken, and of paid leave, sick or potentially jeopardize the viability of the business the monetary value of those days of exposed workers will be encouraged to as a going concern’’; and ‘‘as necessary leave. The FFCRA requires employers to stay home, thereby helping to curb the to carry out the purposes of the EPSLA pay leave based on an employee’s spread of the virus and lessen the strain to ensure consistency between it and regular rate, so the Department would on hospitals and health care providers. Division C and Division G of the need to determine the regular rate of If employees still receive pay while on FFCRA.’’ each employee who requests leave. This leave, they will benefit from being able Because the FFCRA itself establishes estimate could vary greatly depending to cover necessary expenses, and to the basic expanded family and medical on the occupations and industries of continue to spend money to help leave and paid sick leave requirements employees requesting leave. The share support the economy. This will have that the Department is responsible for of the regular rate used to calculate the spillover effects not only on the implementing, many potential transfer would also depend on the individuals who receive pay while on regulatory alternatives would be beyond reason for which an employee requires leave, but also on their communities the scope of the Department’s authority the use of paid leave. The Department and the national economy as a whole, in issuing this temporary rule. The

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Department considered two regulatory to perform critical services needed to may result in increased expenditures by alternatives to determine the correct battle COVID–19. state, local, and tribal governments, in balance between providing benefits to the aggregate, or by the private sector, of C. Regulatory Flexibility Analysis employees and imposing compliance $165 million ($100 million in 1995 costs on covered employers. This The Regulatory Flexibility Act of 1980 dollars adjusted for inflation using the section presents the two alternatives to (RFA), 5 U.S.C. 601 et seq., as amended CPI–U) or more in at least one year. This the provisions set forth in this by the Small Business Regulatory statement must: (1) Identify the temporary rule. Enforcement Fairness Act of 1996, authorizing legislation; (2) present the The Department considered one Public Law 104–121 (March 29, 1996), estimated costs and benefits of the rule regulatory alternative that would be less requires federal agencies engaged in and, to the extent that such estimates restrictive than what is currently being rulemaking to consider the impact of are feasible and relevant, its estimated issued and two that would be more their proposals on small entities, effects on the national economy; (3) restrictive. For the less-restrictive consider alternatives to minimize that summarize and evaluate state, local, and option, the Department considered impact, and solicit public comment on tribal government input; and (4) identify excluding all small businesses with their analyses. The RFA requires the reasonable alternatives and select, or fewer than 50 employees from the assessment of the impact of a regulation explain the non-selection, of the least requirements of the FFCRA, assuming on a wide range of small entities, costly, most cost-effective, or least that any requirement to provide including small businesses, not-for- burdensome alternative. expanded family and medical leave or profit organizations, and small paid sick leave for child care to their governmental jurisdictions. Agencies (1) Authorizing Legislation employees would jeopardize the must perform a review to determine This rule is issued pursuant to the viability of those small businesses. The whether a proposed or final rule would FFCRA. Department concluded, however, that have a significant economic impact on (2) Assessment of Quantified Costs and requiring small businesses to a substantial number of small entities. 5 Benefits demonstrate that the viability of their U.S.C. 603 and 604. business will be jeopardized if they As discussed above, the Department For purposes of the UMRA, this rule have to provide paid leave would calculated rule familiarization costs, includes a federal mandate that is ensure uniformity among these documentation costs, and the cost of expected to result in increased employers, help the Department posting a notice for all employers with expenditures of more than $165 million administer sections 102(a)(1)(F) of fewer than 500 employees. For in the first year. Based on the cost FMLA and 5102(a)(5) of the EPSLA, and employers with fewer than 50 analysis in this temporary rule, the would best conform to the FFCRA. employees, their one-time rule Department determined that the rule For the first more restrictive familiarization cost would be $49.37. will result in Year 1 total costs for rule alternative, the Department considered Their cost for documentation would be familiarization, documentation, and requiring small businesses with fewer $24.69, and the cost of posting a notice posting of notices totaling $553 million than 50 employees to maintain formal would be $12.84. Total cost to these (see Table 1). There will be no records in order to demonstrate a need employers would be $111.58. An additional costs incurred in subsequent for exemption from the rule’s additional ten percent of employers years. requirements. The Department with fewer than 50 employees will have UMRA requires agencies to estimate concluded, however, that this an additional documentation cost of the effect of a regulation on the national requirement would be unnecessarily $49.37 for qualifying for the small economy if, at its discretion, such onerous for these employers, employer exemption, bringing their total estimates are reasonably feasible and the particularly given that they are not cost to $160.95. For employers with at effect is relevant and material.11 otherwise subject to the FMLA. The least 50 employees but fewer than 500 However, OMB guidance on this Department believes that the employees, their one-time rule requirement notes that such requirements issued in this temporary familiarization cost would be $49.37. macroeconomic effects tend to be rule will ensure that small employers Their cost for documentation would be measurable in nationwide econometric have the flexibility they need to balance $49.37, and the cost of posting a notice models only if the economic effect of their staffing and business needs during would be $12.84. The average the regulation reaches 0.25 percent to the COVID–19 public health emergency. managerial and operational cost to an 0.5 percent of GDP, or in the range of For the second more restrictive employer would be $98.74. Total cost to $51.5 billion to $102.9 billion (using alternative, the Department considered these employers would be $210.32. 2018 GDP). A regulation with smaller using a more narrow definition of health These estimated costs will be minimal aggregate effect is not likely to have a care provider and emergency responder for small business entities, and will be measurable effect in macroeconomic for purposes of excluding such well below one percent of their gross terms unless it is highly focused on a employees from the EPSLA’s paid sick annual revenues, which is typically at particular geographic region or leave requirements and/or the least $100,000 per year for the smallest economic sector, which is not the case EFMLEA’s expanded family and businesses. Based on this determination, with this rule. Given OMB’s guidance, medical leave requirements. The the Department certifies that the rule the Department has determined that a Department considered only allowing will not have a significant economic full macroeconomic analysis is not employers to exclude those workers impact on a substantial number of small likely to show that these costs would who directly work with COVID–19 entities. have any measurable effect on the patients, but felt that such a limitation economy. would not provide sufficient flexibility D. Unfunded Mandates Reform Act of to the health care community to make 1995 (3) Least Burdensome Option Explained necessary staffing decisions to address The Unfunded Mandates Reform Act The Department believes that it has the COVID–19 public health emergency. of 1995 (UMRA) requires agencies to chosen the least burdensome option Further, a more narrow definition could prepare a written statement for rules leave health care facilities without staff that include any federal mandate that 11 See 2 U.S.C. 1532(a)(4).

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given the FFCRA’s provisions. Although retain information submitted by an Signed at Washington, DC, this 1st day of the Department is requiring small employees to support requests for paid April, 2020. employers with fewer than 50 sick leave and expanded family and Cheryl M. Stanton, employees to maintain formal records in medical leave. Section 826.140(a) Administrator, Wage and Hour Division. order to demonstrate a need for further requires any employer that ■ For the reasons set out in the exemption from the rule’s requirements denies a request for leave pursuant to preamble, the Department of Labor they are not required to provide any the small business exemption under amends title 29 of the Code of Federal documents to the Department. The § 826.40(b) must document and retain Regulations by adding part 826 to read Department believes that the the determination by its authorizing as follows: requirements issued in this temporary officer that it meets the criteria for that rule will ensure that small employers exemption. Finally, § 826.140(c) PART 826—PAID LEAVE UNDER THE have the flexibility they need to balance advises, but does not require, employers FAMILIES FIRST CORONAVIRUS their staffing and business needs during to create and maintain certain records RESPONSE ACT the COVID–19 pandemic. for the purpose of obtaining a tax credit Sec. E. Executive Order 13132 (Federalism) from the Internal Revenue Service. Purpose and Use: WHD and 826.10 General. 826.20 Paid leave entitlements. This rule does not have substantial employees use employer records to direct effects on the States, on the 826.21 Amount of Paid Sick Leave. determine whether covered employers 826.22 Amount of pay for Paid Sick Leave. relationship between the National have complied with various Government and the States, or on the 826.23 Amount of Expanded Family and requirements under the FFCRA. Medical Leave. distribution of power and Employers use the records to document 826.24 Amount of pay for Expanded Family responsibilities among the various compliance with the FFCRA. and Medical Leave. levels of government. Therefore, in Technology: The regulations prescribe 826.25 Calculating the Regular Rate under accordance with section 6 of Executive the FFCRA. no particular order or form of records, Order No. 13132, 64 FR 43255 (Aug. 4, 826.30 Employee eligibility for leave. and employers may preserve records in 1999), this rule does not have sufficient 826.40 Employer coverage. forms of their choosing, provided that federalism implications to warrant the 826.50 Intermittent leave. facilities are available for inspection and preparation of a federalism summary 826.60 Leave to care for a Child due to transcription of the records. School or Place of Care closure or Child impact statement. Minimizing Small Entity Burden: Care unavailability—intersection F. Executive Order 13175, Indian Tribal Although the FLSA recordkeeping between the EPSLA and the EFMLEA. Governments requirements do involve small 826.70 Leave to care for a Child due to School or Place of Care closure or Child This rule would not have substantial businesses, including small state and Care unavailability—intersection of the direct effects on one or more Indian local government agencies, the EFMLEA and the FMLA. tribes, on the relationship between the Department minimizes respondent 826.80 Employer notice. Federal Government and Indian tribes, burden by requiring no specific order or 826.90 Employee notice of need for leave. or on the distribution of power and form of records in responding to this 826.100 Documentation of need for leave. responsibilities between the Federal information collection. 826.110 Health care coverage. Total annual burden estimates, which 826.120 Multiemployer plans. Government and Indian tribes. 826.130 Return to work. reflect the new responses for the G. Paperwork Reduction Act 826.140 Recordkeeping. recordkeeping information collection, 826.150 Prohibited acts and enforcement The Paperwork Reduction Act of 1995 are summarized as follows: under the EPSLA. (PRA), 44 U.S.C. 3501 et seq., and its Type of Review: Approval of a new 826.151 Prohibited acts and enforcement attendant regulations, 5 CFR part 1320, collection. under the EFMLEA. require the Department to consider the Agency: Wage and Hour Division, 826.152 Filing a complaint with the Federal agency’s need for its information Department of Labor. Government. 826.153 Investigative authority of the collections, their practical utility, as Title: Paid Leave under the Families well as the impact of paperwork and Secretary. First Coronavirus Response Act. 826.160 Effect on other laws, employer other information collection burdens OMB Control Number: 1235–0NEW. practices, and collective bargaining imposed on the public, and how to Affected Public: Private Sector: agreements. minimize those burdens. The businesses or other for-profits, farms, Authority: Pub. L. 116–127 sections Department is seeking emergency and not-for-profit institutions: State, 3102(b) and 5111(3); Pub. L. 116–136 section approval related to the collection of Local and Tribal governments; and 3611(7). information described herein. Persons individuals or households. are not required to respond to the § 826.10 General. Estimated Number of Respondents: information collection requirements (a) Definitions. For the purposes of 7,903,071. until OMB approves them under the this rule: PRA. This temporary rule creates a new Estimated Number of Responses: Child Care Provider. The term ‘‘Child information collection specific to paid 7,903,071. Care Provider’’ means a provider who leave under the FFCRA. The Estimated Burden Hours: 801,962 receives compensation for providing Department has created a new hours. child care services on a regular basis. information collection request and Estimated Time per Response: The term includes a center-based child submitted the request to OMB for Various. care provider, a group home child care approval under OMB control number Frequency: Various. provider, a family child care provider, 1235–0NEW (Paid Leave under the Other Burden Cost: $4,255,500 or other provider of child care services Families First Coronavirus Response (operations/maintenance). for compensation that is licensed, regulated, or registered under State law Act) for this action. List of Subjects in 29 CFR Part 826 Summary: Section 826.140(a) requires as described in section 9858c(c)(2)(E) of covered employer to document and Wages. Title 42; and satisfies the State and local

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requirements, including those referred (D) Includes the Government their appointment is subject to approval to in section 9858c(c)(2)(F) of Title 42. Accountability Office and the Library of by an elected official. See § 825.108 of Under the Families First Coronavirus Congress. this chapter. Response Act (FFCRA), the eligible (ii) For purposes of the EPSLA, Public Health Emergency. The term child care provider need not be ‘‘Employer’’ also specifically identifies ‘‘Public Health Emergency’’ means an compensated or licensed if he or she is the following as an employer: emergency with respect to COVID–19 a family member or friend, such as a (A) An entity employing a State declared by a Federal, State, or local neighbor, who regularly cares for the Employee described in section 304(a) of authority. Employee’s child. the Government Employee Rights Act of School. The term ‘‘School’’ means an Commerce. The terms ‘‘Commerce’’ 1991; ‘‘elementary school’’ or ‘‘secondary and ‘‘industry or activity affecting (B) An employing office, as defined in school’’ as such terms are defined commerce’’ mean any activity, business, section 101 of the Congressional below, in accordance with section 8101 or industry in commerce or in which a Accountability Act of 1995; of the Elementary and Secondary labor dispute would hinder or obstruct (C) An employing office, as defined in Education Act of 1965 (20 U.S.C. 7801). commerce or the free flow of commerce, 3 U.S.C. 411(c); and ‘‘Elementary school’’ means a nonprofit and include ‘‘commerce’’, and any (D) An Executive Agency as defined institutional day or residential school, ‘‘industry affecting commerce’’, as in section 5 U.S.C. 105, and including including a public elementary charter defined in paragraphs (1) and (3) of the U.S. Postal Service and the Postal school that provides elementary section 501 of the Labor Management Regulatory Commission. education, as determined under State EPSLA. The term ‘‘EPSLA’’ means the Relations Act of 1947 (29 U.S.C. 142 (1) law. ‘‘Secondary school’’ means a Emergency Paid Sick Leave Act, and (3)). nonprofit institutional day or residential Division E of the FFCRA. COVID–19. The term ‘‘COVID–19’’ has school, including a public secondary Expanded Family and Medical Leave. the meaning given the term in section charter school that provides secondary The term ‘‘Expanded Family and 506 of the Coronavirus Preparedness education, as determined under State Medical Leave’’ means paid leave under Response Supplemental Appropriations law, except that the term does not the EFMLEA. Act, 2020. include any education beyond grade 12. FFCRA. The term ‘‘FFCRA’’ means the Secretary. The term ‘‘Secretary’’ EFMLEA. The term ‘‘EFMLEA’’ means Families First Coronavirus Response means the Secretary of Labor or his or the Emergency Family and Medical Act, Public Law 116–127. her designee. Leave Expansion Act, Division C of the FLSA Terms. The terms ‘‘employ’’, Son or Daughter. The term ‘‘Son or FFCRA. ‘‘person’’, and ‘‘State’’ have the Daughter’’ has the meaning given such Employee. The term ‘‘Employee’’ has meanings given such terms in section 3 term in section 101 of the FMLA (29 the same meaning given that term in of the FLSA (29 U.S.C. 203). U.S.C. 2611). Accordingly, the term section 3(e) of the Fair Labor Standards Paid Sick Leave. The term ‘‘Paid Sick means a biological, adopted, or foster Act of 1938 (FLSA) (29 U.S.C. 203(e)). Leave’’ means paid leave under the child, a stepchild, a legal ward, or a Eligible Employee. For the purposes of EPSLA. child of a person standing in loco the EFMLEA, the term ‘‘Eligible Place of Care. The term ‘‘Place of parentis, who is under 18 years of age; Employee’’ means an Employee who has Care’’ means a physical location in or 18 years of age or older who is been employed for at least 30 calendar which care is provided for the incapable of self-care because of a days by the Employer. Employee’s child while the Employee mental or physical disability. Employer: works for the Employer. The physical Subject to a quarantine or isolation (i) Subject to paragraph (ii) of this location does not have to be solely order. For the purposes of the EPSLA, definition, ‘‘Employer’’: dedicated to such care. Examples a quarantine or isolation order includes (A) Means any person engaged in include day care facilities, preschools, quarantine, isolation, containment, Commerce or in any industry or activity before and after school care programs, shelter-in-place, or stay-at-home orders affecting commerce that: schools, homes, summer camps, issued by any Federal, State, or local (1) In the case of a private entity or summer enrichment programs, and government authority that cause the individual, employs fewer than 500 respite care programs. Employee to be unable to work even Employees; and Public Agency. The term ‘‘Public though his or her Employer has work (2) In the case of a Public Agency or Agency’’ means the Government of the that the Employee could perform but for any other entity that is not a private United States; the government of a State the order. This also includes when a entity or individual, employs one or or political subdivision thereof; any Federal, State, or local government more Employees; agency of the United States (including authority has advised categories of (B) Includes: the United States Postal Service and citizens (e.g., of certain age ranges or of (1) Any person acting directly or Postal Regulatory Commission), a State, certain medical conditions) to shelter in indirectly in the interest of an employer or a political subdivision of a State; or place, stay at home, isolate, or in relation to an Employee (within the any interstate governmental agency. See quarantine, causing those categories of meaning of such phrase in section 3(d) 29 U.S.C. 203(x); 29 U.S.C. Employees to be unable to work even of the FLSA (29 U.S.C. 203(d)); 5110(2)(B)(i)(III). A Public Agency shall though their Employers have work for (2) Any successor in interest of an be considered to be a person engaged in them. employer; Commerce or in an industry or activity Telework. The term ‘‘Telework’’ (3) Joint employers as defined under affecting Commerce. See 29 U.S.C. means work the Employer permits or the FLSA, part 791 of this chapter, with 2611(4)(B); 29 U.S.C. 5110(2)(B)(ii). allows an Employee to perform while respect to certain Employees; and Whether an entity is a Public Agency, as the Employee is at home or at a location (4) Integrated employers as defined distinguished from a private Employer, other than the Employee’s normal under the Family and Medical Leave is determined by whether the agency workplace. An Employee is able to Act (FMLA), § 825.104(c)(2) of this has taxing authority, or whether the Telework if: His or her Employer has chapter. chief administrative officer or board, work for the Employee; the Employer (C) Includes any Public Agency; and etc., is elected by the voters-at-large or permits the Employee to work from the

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Employee’s location; and there are no 2020, and will be effective April 2, person if he or she were quarantined or extenuating circumstances (such as 2020, to December 31, 2020. self-quarantined. For this purpose, serious COVID–19 symptoms) that (2) Subject to a Quarantine or ‘‘individual’’ does not include persons prevent the Employee from performing Isolation Order. Any Employee Subject with whom the Employee has no that work. Telework may be performed to a Quarantine or Isolation Order may personal relationship. during normal hours or at other times take Paid Sick Leave for the reason (6) An Employee may not take Paid agreed by the Employer and Employee. described in paragraph (a)(1)(i) of this Sick Leave for the reason described in Telework is work for which wages must section only if, but for being subject to paragraph (a)(1)(iv) of this section be paid as required by applicable law the order, he or she would be able to unless, but for a need to care for an and is not compensated as paid leave perform work that is otherwise allowed individual, the Employee would be able under the EPSLA or the EFMLEA. or permitted by his or her Employer, to perform work for his or her Employer, Employees who are teleworking for either at the Employee’s normal either at the Employee’s normal COVID–19 related reasons must be workplace or by Telework. An workplace or by Telework. An compensated for all hours actually Employee Subject to a Quarantine or Employee caring for an individual may worked and which the Employer knew Isolation Order may not take Paid Sick not take Paid Sick Leave where the or should have known were worked by Leave where the Employer does not Employer does not have work for the the Employee. However, the provisions have work for the Employee as a result Employee. of § 790.6 of this chapter shall not apply of the order or other circumstances. (7) An Employee may take Paid Sick to Employees while they are (3) Advised by a health care provider Leave for the reason described in teleworking for COVID–19 related to self-quarantine. For the purposes of paragraph (a)(1)(iv) of this section if the reasons. this section, the term health care Employee is unable to perform work for (b) Effective period. (1) This part provider has the same meaning as that his or her Employer and if the became operational on April 1, 2020, term is defined in § 825.102 of this individual depends on the Employee to and effective on April 2, 2020. chapter. An Employee may take Paid care of him or her and is either: (2) This part expires on December 31, Sick Leave for the reason described in (i) Subject to a Quarantine or Isolation 2020. paragraph (a)(1)(ii) of this section only Order as described in paragraph if: (a)(1)(ii) of this subsection; or § 826.20 Paid Leave Entitlements. (i) A health care provider advises the (ii) Has been advised to self- (a) Qualifying reasons for Paid Sick Employee to self-quarantine based on a quarantine by a health care provider Leave. (1) An Employer shall provide to belief that— because of a belief that— each of its Employees Paid Sick Leave (A) The Employee has COVID–19; (A) The individual has COVID–19; to the extent that Employee is unable to (B) The Employee may have COVID– (B) The individual may have COVID– work due to any of the following 19; or 19 due to known exposure or symptoms (C) The individual is particularly reasons: (C) The Employee is particularly vulnerable to COVID–19. (i) The Employee is subject to a vulnerable to COVID–19; and (ii) Following the advice of a health (8) Caring for a Son or Daughter. An Federal, State, or local quarantine or Employee has a need to take Paid Sick isolation order related to COVID–19; care provider to self-quarantine prevents the Employee from being able to work, Leave if he or she is unable to work due (ii) The Employee has been advised either at the Employee’s normal to a need to care for his or her Son or by a health care provider to self- workplace or by Telework. Daughter whose School or Place of Care quarantine due to concerns related to (4) Seeking medical diagnosis for has been closed, or whose Child Care COVID–19; COVID–19. An Employee may take Paid Provider is unavailable, for reasons (iii) The Employee is experiencing Sick Leave for the reason described in related to COVID–19 only if no other symptoms of COVID–19 and seeking paragraph (a)(1)(iii) of this section if the suitable person is available to care for medical diagnosis from a health care Employee is experiencing any of the the Son or Daughter during the period provider; following symptoms: of such leave. (iv) The Employee is caring for an (i) Fever; (9) An Employee may not take Paid individual who is subject to an order as (ii) Dry cough; Sick Leave to care for his or her Son or described in this paragraph (a)(1)(i) or (iii) Shortness of breath; or Daughter unless, but for a need to care directed as described in this paragraph (iv) Any other COVID–19 symptoms for the Son or Daughter, the Employee (a)(1)(ii); identified by the U.S. Centers for would be able to perform work for his (v) The Employee is caring for his or Disease Control and Prevention. or her Employer, either at the her Son or Daughter whose School or (v) Any Paid Sick Leave taken for the Employee’s normal workplace or by Place of Care has been closed for a reason described in paragraph (a)(1)(iii) Telework. An Employee caring for his or period of time, whether by order of a of this subsection is limited to time the her Son or Daughter may not take Paid State or local official or authority or at Employee is unable to work because the Sick Leave where the Employer does not the decision of the individual School or Employee is taking affirmative steps to have work for the Employee. Place of Care, or the Child Care Provider obtain a medical diagnosis, such as (b) Qualifying reason for Expanded of such Son or Daughter is unavailable, making, waiting for, or attending an Family and Medical Leave. An Eligible for reasons related to COVID–19; or appointment for a test for COVID–19. Employee may take Expanded Family (vi) The Employee has a substantially (5) Caring for an individual. For the and Medical Leave because he or she is similar condition as specified by the purpose of paragraph (a)(1)(iv) of this unable to work due to a need to care for Secretary of Health and Human section, ‘‘individual’’ means an his or her Son or Daughter whose Services, in consultation with the Employee’s immediate family member, School or Place of Care has been closed, Secretary of the Treasury and the a person who regularly resides in the or whose Child Care Provider is Secretary of Labor. The substantially Employee’s home, or a similar person unavailable, for reasons related to similar condition may be defined at any with whom the Employee has a COVID–19. Eligible Employee has need point during the Effective Period. This relationship that creates an expectation to take Expanded Family and Medical rule became operational on April 1, that the Employee would care for the Leave for this purpose only if no

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suitable person is available to care for scheduled to work each calendar day Eligible Employee takes counts towards his or her Son or Daughter during the over the six-month period ending on the the twelve workweeks of FMLA leave to period of such leave. date on which the Employee takes Paid which the Eligible Employee is entitled (1) An Eligible Employee may not take Sick Leave, including any hours for for any qualifying reason in a twelve- Expanded Family and Medical Leave to which the Employee took leave of any month period under § 825.200 of this care for his or her Son or Daughter type. chapter, see § 826.70. unless, but for a need to care for an (ii) If the part-time Employee has been (c) Section 2612(d)(2)(A) of the FMLA individual, the Eligible Employee would employed for fewer than six months, the shall be applied, provided however, that be able to perform work for his or her Employee is entitled to up to the the Eligible Employee may elect, and Employer, either at the Eligible number of hours of Paid Sick Leave the Employer may require the Eligible Employee’s normal workplace or by equal to fourteen times the number of Employee, to use only leave that would Telework. An Eligible Employee caring hours the Employee and the Employer be available to the Eligible Employee for for his or her Son or Daughter may not agreed to at the time of hiring that the the purpose set forth in § 826.20(b) take Expanded Family and Medical Employee would work, on average, each under the Employer’s existing policies, Leave where the Employer does not calendar day. If there is no such such as personal leave or paid time off. have work for the Eligible Employee. agreement, the Employee is entitled to Any leave that an Eligible Employee (2) [Reserved] up to the number of hours of Paid Sick elects to use or that an Employer (c) Impact on FLSA exemptions. The Leave equal to fourteen times the requires the Eligible Employee to use taking of Paid Sick Leave or Expanded average number of hours per calendar would run concurrently with Expanded Family and Medical Leave shall not day that the Employee was scheduled to Family and Medical Leave taken under impact an Employee’s status or work over the entire period of this section. eligibility for any exemption from the employment, including hours for which requirements of section 6 or 7, or both, the Employee took leave of any type. § 826.24 Amount of pay for Expanded of the FLSA. Family and Medical Leave. § 826.22 Amount of Pay for Paid Sick Subject to § 826.60, after the initial § 826.21 Amount of Paid Sick Leave. Leave. two weeks of Expanded Family and (a) Full-time Employees. (1) A full- (a) Subject to § 826.22(c), for each Medical Leave, the Employer shall pay time Employee is entitled to up to 80 hour of Pick Sick Leave taken by an the Eligible Employee two-thirds of the hours of Paid Sick Leave. Employee for qualifying reasons set Eligible Employee’s average regular rate, (2) An Employee is considered to be forth in sections § 826.20(a)(1) as computed under § 826.25, times the a full-time Employee under this section through(3), the Employer shall pay the Eligible Employee’s scheduled number if he or she is normally scheduled to higher of: of hours for each day of such leave work at least 40 hours each workweek. (1) The Employee’s average regular taken. (3) An Employee who does not have rate as computed under § 826.25; (a) In no event shall an Employer be a normal weekly schedule under (2) The Federal minimum wage to required to pay more than $200 per day § 826.21(a)(2) is considered to be a full- which the Employee is entitled; or and $10,000 in the aggregate per Eligible (3) Any State or local minimum wage time Employee under this section if the Employee when an Eligible Employee to which the Employee is entitled. average number of hours per workweek (b) Subject to § 826.22(c), for each takes Expanded Family and Medical that the Employee was scheduled to hour of Paid Sick Leave taken by an Leave for up to ten weeks after the work, including hours for which the Employee for qualifying reasons set initial two-week period of unpaid Employee took leave of any type, is at forth in § 826.20(a)(4) through (6), the Expanded Family and Medical Leave. (b) For the purpose of this section, the least 40 hours per workweek over a Employer shall pay the Employee two- ‘‘scheduled number of hours’’ is period of time that is the lesser of: thirds of the amount described in (i) The six-month period ending on determined as follows: § 826.24(a). (1) If the Eligible Employee has a the date on which the Employee takes (c) Limitations on payments: Paid Sick Leave; or (1) In no event shall an Employer be normal work schedule, the number of (ii) The entire period of the required to pay more than $511 per day hours the Eligible Employee is normally Employee’s employment. and $5,110 in the aggregate per scheduled to work on that workday; (2) If the Eligible Employee has a (b) Part-time Employees. An Employee when an Employee takes Paid work schedule that varies to such an Employee who does not satisfy the Sick Leave for qualifying reasons set extent that an Employer is unable to requirements of § 826.21(a) is forth in sections § 826.20(a)(1) through determine the number of hours the considered to be a part-time Employee. (3). (1) If the part-time Employee has a (2) In no event shall an Employer be Eligible Employee would have worked normal weekly schedule, the Employee required to pay more than $200 per day on the day for which leave is taken and is entitled to up to the number of hours and $2,000 in the aggregate per has been employed for at least six of Paid Sick Leave equal to the number Employee when an Employee takes Paid months, the average number of hours of hours that the Employee is normally Sick Leave for qualifying reasons set the Eligible Employee was scheduled to scheduled to work over two workweeks. forth in sections § 826.20(a)(4) through work each workday, over the six-month (2) If the part-time Employee lacks a (6). period ending on the date on which the normal weekly schedule under Eligible Employee first takes Expanded § 826.21(b)(1), the number of hours of § 826.23 Amount of Expanded Family and Family and Medical Leave, including Paid Sick Leave to which the Employee Medical Leave. hours for which the Eligible Employee is entitled is calculated as follows: (a) An Eligible Employee is entitled to took leave of any type; or (i) If the part-time Employee has been take up to twelve workweeks of (3) If the Eligible Employee has a employed for at least six months, the Expanded Family and Medical Leave work schedule that varies to such an Employee is entitled to up to the during the period April 1, 2020 through extent that an Employer is unable to number of hours of Paid Sick Leave December 31, 2020. determine the number of hours the equal to fourteen times the average (b) Any time period of Expanded Eligible Employee would have worked number of hours that the Employee was Family and Medical Leave that an on the day for which leave is taken and

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the Eligible Employee has been regular rate under the FLSA, and office, hospital, health care center, employed for fewer than six months, the § 531.60 and part 778 of this chapter. clinic, post-secondary educational average number of hours the Eligible institution offering health care Employee and the Employer agreed at § 826.30 Employee eligibility for leave. instruction, medical school, local health the time of hiring that the Eligible (a) Eligibility under the EPSLA. All department or agency, nursing facility, Employee would work each workday. If Employees of an Employer are eligible retirement facility, nursing home, home there is no such agreement, the for Paid Sick Leave under the EPSLA, health care provider, any facility that scheduled number of hours is equal to except as provided in paragraphs (c) and performs laboratory or medical testing, the average number of hours per (d) of this section and in § 826.40(b). pharmacy, or any similar institution, workday that the Eligible Employee was (b) Eligibility under the EFMLEA. All Employer, or entity. This includes any scheduled to work over the entire Employees employed by an Employer permanent or temporary institution, period of employment, including hours for at least thirty calendar days are facility, location, or site where medical for which the Eligible Employee took eligible for Expanded Family and services are provided that are similar to leave of any type. Medical Leave under the EFMLEA, such institutions. (c) As an alternative, the amount of except as provided in paragraphs (c) and (ii) This definition includes any pay for Expanded Family and Medical (d) in this section and in § 826.40(b). individual employed by an entity that Leave may be computed in hourly (1) An Employee is considered to contracts with any of these institutions increments instead a full day. For each have been employed by an Employer for described above to provide services or hour of Expanded Family and Medical at least thirty calendar days if: to maintain the operation of the facility Leave taken after the first two weeks, (i) The Employer had the Employee where that individual’s services support the Employer shall pay the Eligible on its payroll for the thirty calendar the operation of the facility. This also Employee two-thirds of the Eligible days immediately prior to the day that includes anyone employed by any entity Employee’s average regular rate, as the Employee’s leave would begin; or that provides medical services, (ii) The Employee was laid off or computed under § 826.25. produces medical products, or is (d) Notwithstanding paragraph (a) of otherwise terminated by the Employer otherwise involved in the making of this section, if an Eligible Employee on or after March 1, 2020, and rehired COVID–19 related medical equipment, elects or is required to use leave or otherwise reemployed by the tests, drugs, vaccines, diagnostic available to the Eligible Employee for Employer on or before December 31, vehicles, or treatments. This also the purpose set forth in § 826.20(b) 2020, provided that the Employee had includes any individual that the highest under the Employer’s policies, such as been on the Employer’s payroll for official of a State or territory, including vacation or personal leave or paid time thirty or more of the sixty calendar days the District of Columbia, determines is off, concurrently with Expanded Family prior to the date the Employee was laid a health care provider necessary for that and Medical Leave, the Employer must off or otherwise terminated. State’s or territory’s or the District of (2) If an Employee employed by a pay the Eligible Employee a full day’s Columbia’s response to COVID–19. temporary placement agency is pay for that day. However, the Employer (iii) Application limited to leave subsequently hired by the Employer, the is capped at taking $200 a day or under the EPSLA and the EFMLEA. The Employer will count the days worked as $10,000 in the aggregate in tax credits definition of ‘‘health care provider’’ a temporary Employee at the Employer for Expanded Family and Medical Leave contained in this subsection applies toward the thirty-day eligibility period. paid under the EFMLEA. only for the purpose of determining (3) An Employee who has been whether an Employer may elect to § 826.25 Calculating the Regular Rate employed by a covered Employer for at exclude an Employee from taking leave under the Family First Coronavirus least thirty calendar days is eligible for under the EPSLA and/or the EFMLEA, Response Act. Expanded Family and Medical Leave and does not otherwise apply for (a) Average regular rate. The ‘‘average under the EFMLEA regardless of purposes of the FMLA or section regular rate’’ used to compute pay for whether the Employee would otherwise 5102(A)(2) of the EPSLA. Paid Sick Leave and Expanded Family be eligible for leave under the FMLA. (2) Emergency responders— and Medical Leave is calculated as Thus, for example, an Employee need (i) For the purposes of Employees follows: not have been employed for 1,250 hours who may be excluded from Paid Sick (1) Use the methods contained in of service and twelve months of Leave or Expanded Family and Medical parts 531 and 778 of this chapter to employment as otherwise required Leave by their Employer under the compute the regular rate for each full under the FMLA, see § 825.110(a)(1)(2) FFCRA, an emergency responder is workweek in which the Employee has of this chapter, to be eligible for leave anyone necessary for the provision of been employed over the lesser of: under the EFMLEA. transport, care, healthcare, comfort and (i) The six-month period ending on (c) Exclusion of Employees who are nutrition of such patients, or others the date on which the Employee takes health care providers and emergency needed for the response to COVID–19. Paid Sick Leave or Expanded Family responders. An Employer whose This includes but is not limited to and Medical Leave; or Employee is a health care provider or an military or national guard, law (ii) The entire period of employment. emergency responder may exclude such enforcement officers, correctional (2) Compute the average of the weekly Employee from the EPSLA’s Paid Sick institution personnel, fire fighters, regular rates under paragraph (a)(1) of Leave requirements and/or the emergency medical services personnel, this section, weighted by the number of EFMLEA’s Expanded Family and physicians, nurses, public health hours worked for each workweek. Medical Leave requirements. personnel, emergency medical (b) Calculating the regular rate for (1) Health care provider— technicians, paramedics, emergency commissions, tips, and piece rates. An (i) For the purposes of this definition management personnel, 911 operators, Employee’s commissions, tips, and Employees who may be exempted from child welfare workers and service piece rates are incorporated into the Paid Sick Leave or Expanded Family providers, public works personnel, and regular rate for purposes of the FFCRA and Medical Leave by their Employer persons with skills or training in to the same extent that they are under the FFCRA, a health care provider operating specialized equipment or included in the calculation of the is anyone employed at any doctor’s other skills needed to provide aid in a

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declared emergency, as well as Employees have worked for the section 5102(a)(5) of the EPSLA would individuals who work for such facilities Employer; result in the small business’s expenses employing these individuals and whose (B) Any Employees on leave of any and financial obligations exceeding work is necessary to maintain the kind; available business revenues and cause operation of the facility. This also (C) Employees of temporary the small business to cease operating at includes any individual whom the placement agencies who are jointly a minimal capacity; highest official of a State or territory, employed under the FLSA, see part 791 (ii) The absence of the Employee or including the District of Columbia, of this chapter, by the Employer and Employees requesting leave under either determines is an emergency responder another Employer (regardless of which section 102(a)(1)(F) of the FMLA or necessary for that State’s or territory’s or Employer’s payroll the Employee section 5102(a)(5) of the EPSLA would the District of Columbia’s response to appears on); and entail a substantial risk to the financial COVID–19. (D) Day laborers supplied by a health or operational capabilities of the (ii) [Reserved] temporary placement agency (regardless business because of their specialized (d) Exclusion by OMB. The Director of of whether the Employer is the skills, knowledge of the business, or the Office of Management and Budget temporary placement agency or the responsibilities; or (OMB) has authority to exclude, for client firm). (iii) There are not sufficient workers good cause, certain U.S. Government (iii) The number of Employees does who are able, willing, and qualified, and Employers with respect to certain not include workers who are who will be available at the time and categories of Executive Branch Eligible independent contractors, rather than place needed, to perform the labor or Employees from the requirement to Employees, under the FLSA. Nor does services provided by the Employee or provide paid leave under the EFMLEA. the number of Employees include Employees requesting leave under either See CARES Act section 4605. workers who have been laid off or section 102(a)(1)(F) of the FMLA or (e) The Director of the OMB has furloughed and have not subsequently section 5102(a)(5) of the EPSLA, and authority to exclude certain Employees, been reemployed. these labor or services are needed for for good cause, from the definition of (2) To determine the number of the small business to operate at a ‘‘Employee’’ for purposes of the EPSLA. Employees employed, all common minimal capacity. See CARES Act section 4605. The Employees of joint employers or all (2) To elect this small business categories of Employees the Director of Employees of integrated employers must exemption, the Employer must the OMB has authority to so exclude be counted together. document that a determination has been from EPSLA are: (i) Typically, a corporation (including made pursuant to the criteria set forth (1) Federal officers or Employees its separate establishments or divisions) by the Department in § 826.40(b)(1). The covered under Title II of the FMLA is considered a single Employer and all Employer should not send such (which is codified in subchapter V of of its Employees must be counted documentation to the Department, but chapter 63 of title 5 of the United States together. rather retain the records in its files. Code); (ii) Where one corporation has an (3) Regardless of whether a small (2) Other individuals occupying a ownership interest in another Employer chooses to exempt one or position in the civil service (as that term corporation, the two corporations are more Employees, the Employer is still is defined in 5 U.S.C. 2101(1)); and separate Employers unless they are joint required to post a notice pursuant to (3) Employees of a United States employers under the FLSA, see part 791 § 826.80. Executive Agency, as defined in 5 of this chapter, with respect to certain (c) Public Employers. (1) Any public U.S.C. 105, including the U.S. Postal Employees. Employer must provide its Employees Service and U.S. Postal Regulatory (iii) In general, two or more entities Paid Sick Leave except as provided in Commission. are separate Employers unless they meet § 826.30(c) through (d). the integrated employer test under the (2) Any public Employer must § 826.40 Employer coverage. FMLA. See § 825.104(c)(2) of this provide its Eligible Employees (a) Private Employers. Any private chapter. If two entities are an integrated Expanded Family and Medical Leave, entity or individual who employs fewer employer under this test, then except as provided in paragraph (c)(3) of than 500 Employees must provide Paid Employees of all entities making up the this section and in § 826.30(c) through Sick Leave and Expanded Family and integrated employer must be counted. (d). Medical Leave, except as provided in (b) Exemption from requirement to (3) The EFMLEA amended only Title paragraph (b) of this section or in provide leave under the EPSLA Section I of the FMLA, resulting in a divide in § 826.30(c). 5102(a)(5) and the EFMLEA for coverage as to Employees of the United (1) To determine the number of Employers with fewer than 50 States and of agencies of the United Employees employed, the Employer Employees. States (Federal Employees). Federal must count all full-time and part-time (1) An Employer, including a religious Employees covered by Title I of the Employees employed within the United or nonprofit organization, with fewer FMLA are eligible for Expanded Family States at the time the Employee would than 50 Employees (small business) is and Medical Leave. But most Federal take leave. For purposes of this count, exempt from providing Paid Sick Leave Employees are instead covered under every part-time Employee is counted as under the EPSLA and Expanded Family Title II of the FMLA, which was not if he or she were a full-time Employee. and Medical Leave under the EFMLEA amended by the EFMLEA. Such Federal (i) For this purpose, ‘‘within the when the imposition of such Employees are not within the EFMLEA’s United States’’ means any State within requirements would jeopardize the purview and are therefore not eligible the United States, the District of viability of the business as a going for Expanded Family and Medical Columbia, or any Territory or concern. A small business under this Leave. The Federal Employees covered possession of the United States. section is entitled to this exemption if by Title I of the FMLA are therefore (ii) The number of Employees an authorized officer of the business has eligible for Expanded Family and includes: determined that: Medical Leave, subject to the limitations (A) All Employees currently (i) The leave requested under either and exceptions set forth in § 826.30(b) employed, regardless of how long those section 102(a)(1)(F) of the FMLA or through (d), including:

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(i) Employees of the U.S. Postal and Medical Leave intermittently, and exhausted his or her Paid Sick Leave Service; in any agreed increment of time (but entitlement. (ii) Employees of the U.S. Postal only when the Employee is unavailable (2) Under the circumstances in (b)(1) Regulatory Commission; to Telework because of a COVID–19 of this section, the Eligible Employee (iii) Part-time Employees who do not related reason). may choose to substitute earned or have an established regular tour of duty (d) Calculation of Leave. If an accrued paid leave provided by the during the administrative workweek; Employee takes Paid Sick Leave or Employer during this period. The term (iv) Employees serving under an Expanded Family and Medical Leave substitute means that the preexisting intermittent appointment or temporary intermittently as the Employee and paid leave provided by the Employer, appointment with a time limitation of Employer have agreed, only the amount which has been earned or accrued one year or less; of leave actually taken may be counted pursuant to established policies of the (v) Employees of the Government toward the Employee’s leave Employer, will run concurrently with Accountability Office; entitlements. For example, an Employee the unpaid Expanded Family and (vi) Employees of the Library of who normally works forty hours in a Medical Leave. Accordingly, the Eligible Congress; and workweek only takes three hours of Employee receives pay pursuant to the (vii) Other Federal Employees not leave each work day (for a weekly total Employer’s preexisting paid leave covered by Title II of the FMLA. of fifteen hours) has only taken fifteen policy during the period of otherwise § 826.50 Intermittent leave. hours of the Employee’s Paid Sick Leave unpaid Expanded Family and Medical (a) General Rule. Subject to the or 37.5% of a workweek of the Leave. (3) If the Eligible Employee does not conditions and applicable limits, an Employee’s Expanded Family and elect to substitute paid leave for unpaid Employee may take Paid Sick Leave or Medical Leave. Expanded Family and Medical Leave Expanded Family and Medical Leave § 826.60 Leave to care for a Child due to under the above conditions and intermittently (i.e., in separate periods School or Place of Care Closure or Child circumstances, the Eligible Employee of time, rather than one continuous Care unavailability—intersection between will remain entitled to any paid leave period) only if the Employer and the EPSLA and the EFMLEA. that the Eligible Employee has earned or Employee agree. The Employer and (a) An Eligible Employee who needs accrued under the terms of his or her Employee may memorialize in writing leave to care for his or her Son or Employer’s plan. any agreement under this section, but a Daughter whose School or Place of Care clear and mutual understanding is closed, or whose Child Care Provider § 826.70 Leave to care for a Child due to between the parties is sufficient. is unavailable, due to COVID–19 related School or Place of Care closure or Child (b) Reporting to Worksite. The ability reasons may be eligible to take leave Care unavailability—intersection of the of an Employee to take Paid Sick Leave under both the EPSLA and the EFMLEA and the FMLA. or Expanded Family and Medical Leave EFMLEA. If so, the benefits provided by (a) Certain employees are entitled to intermittently while reporting to an the EPSLA run concurrently with those a total of twelve workweeks of FMLA Employer’s worksite depends upon the provided under the EFMLEA. leave in the twelve-month period reason for the leave. (1) Intersection between the EPSLA defined in § 825.200(b) of this chapter (1) If the Employer and Employee and the EFMLEA. An Eligible Employee for the following reasons: agree, an Employee may take up to the may take up to twelve weeks of (1) The birth of the employee’s son or entire portion of Paid Sick Leave or Expanded Family and Medical Leave to daughter, and to care for the newborn Expanded Family and Medical Leave care for his or her Son or Daughter child; intermittently to care for the Employee’s whose School or Place of Care has been (2) The placement with the employee Son or Daughter whose School or Place closed, or whose Child Care Provider is of a son or daughter for adoption or of Care is closed, or Child Care Provider unavailable, due to COVID–19 related foster care, and to care for the newly is unavailable, because of reasons reasons. placed child; related to COVID–19. Under such (2) The first two weeks of leave (up to (3) To care for the employee’s spouse, circumstances, intermittent Paid Sick 80 hours) may be paid under the son, daughter, or parent with a serious Leave or paid Expanded Family and EPSLA; the subsequent weeks are paid health condition; Medical Leave may be taken in any under the EFMLEA. (4) Because of a serious health increment of time agreed to by the (3) An Employee’s prior use of Paid condition that makes the employee Employer and Employee. Sick Leave under EPSLA will impact unable to perform one or more of the (2) An Employee may not take Paid the amount of Paid Sick Leave that essential functions of his or her job; Sick Leave intermittently if the leave is remains available to the Employee. (5) Because of any qualifying exigency taken for any of the reasons specified in (4) An Eligible Employee who has arising out of the fact that the § 826.20(a)(1)(i) through (iv) and (vi). exhausted his or her twelve workweek employee’s spouse, son, daughter, or Once the Employee begins taking Paid FMLA entitlement, see § 826.70, is not parent is a military member on covered Sick Leave for one or more of such precluded from taking Paid Sick Leave. active duty status (or has been notified reasons, the Employee must use the (b) Supplementing Expanded Family of an impending call or order to covered permitted days of leave consecutively and Medical Leave with other accrued active duty); and until the Employee no longer has a Employer-provided leave. (6) To care for the Eligible Employee’s qualifying reason to take Paid Sick (1) Where an Eligible Employee takes Son or Daughter whose School or Place Leave. Expanded Family and Medical Leave of Care is closed, or Child Care Provider (c) Teleworking. If an Employer after taking all or part of his or her Paid is unavailable, due to COVID–19 related directs or allows an Employee to Sick Leave for a reason other than that reasons. Telework, or the Employee normally provided in § 826.20(a)(1)(v), all or part (b) If an Eligible Employee has already works from home, the Employer and of the Eligible Employee’s first ten days taken some FMLA leave for reasons Employee may agree that the Employee (or first two weeks) of Expanded Family (a)(1) through (5) during the twelve- may take Paid Sick Leave for any and Medical Leave may be unpaid month period, the Eligible Employee qualifying reason or Expanded Family because the Eligible Employee will have may take up to the remaining portion of

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the twelve workweek leave for regular rate of pay or accrued paid leave (e) For Employers who are covered by Expanded Family and Medical Leave. If provided by the Employer during this the EFMLEA but are not covered by the an Eligible Employee has already taken period (see § 826.60). After the first two other provisions of the FMLA, posting the full twelve workweeks of FMLA weeks of leave, Expanded Family and of this FFCRA notice satisfies their leave during the twelve-month period, Medical Leave is paid at two-thirds the FMLA general notice obligation. See 29 the Eligible Employee may not take Eligible Employee’s regular rate of pay, U.S.C. 2619; § 825.300 of this chapter. Expanded Family and Medical Leave. up to $200 per day per Eligible An Eligible Employee’s entitlement to Employee. Because this period of § 826.90 Employee notice of need for leave. take up to two weeks of Paid Sick Leave Expanded Family and Medical Leave is under the EPSLA is not impacted by the not unpaid, the FMLA provision for (a) Requirement to provide notice. (1) Eligible Employee’s use of FMLA leave. substitution of the Employee’s accrued An Employer may require an Employee For example, if an Eligible Employee paid leave is inapplicable, and neither to follow reasonable notice procedures used his or her full FMLA leave the Eligible Employee nor the Employer after the first workday (or portion entitlement for birth and bonding with may require the substitution of paid thereof) for which an Employee takes a newborn, he or she would still be leave. However, Employers and Eligible Paid Sick Leave for any reason other entitled to take Paid Sick Leave (for any Employees may agree, where Federal or than that described in § 826.20(a)(1)(v). covered reason), but could not take state law permits, to have paid leave Whether a procedure is reasonable will Expanded Family and Medical Leave in supplement pay under the EFMLEA so be determined under the facts and the same twelve-month period if his or that the Employee receives the full circumstances of each particular case. her child’s day care closed due to amount of his or her normal pay. For Nothing in this section precludes an COVID–19 related reasons. example, an Eligible Employee and Employee from offering notice to an (c) If an Eligible Employee takes fewer Employer may agree to supplement the Employer sooner; the Department than twelve weeks of Expanded Family Expanded Family and Medical Leave by encourages, but does not require, and Medical Leave, the Employee may substituting one-third hour of accrued Employees to notify Employers about take up to the remaining portion of the vacation leave for each hour of their request for Paid Sick Leave or twelve weeks FMLA leave entitlement Expanded Family and Medical Leave. If Expanded Family and Medical Leave as for reasons described in paragraphs the Eligible Employee and Employer do soon as practicable. If an Employee fails (a)(1) through (5) of this section. For not agree to supplement paid leave in to give proper notice, the Employer example, if an Eligible Employee takes the manner described above, the should give him or her notice of the eight weeks of Expanded Family and Employee will remain entitled to all the failure and an opportunity to provide Medical Leave to care for his or her Son paid leave which is earned or accrued the required documentation prior to or Daughter whose School is closed due under the terms of the Employer’s plan denying the request for leave. to COVID–19 related reasons, he or she for later use. This option is not available (2) In any case where an Employee could take up to four workweeks of to Federal agencies if such partial leave requests leave in order to care for the unpaid FMLA leave for his or her own payment would be contrary to a Employee’s Son or Daughter whose serious health condition later in the governing statute or regulation. School or Place of Care is closed, or twelve-month period. Child Care Provider is unavailable, due (d) If an employee has taken FMLA § 826.80 Employer notice. to COVID–19 related reasons, if that leave to care for a covered service (a) Every Employer covered by leave was foreseeable, an Employee member with a serious injury or illness, FFCRA’s paid leave provisions is shall provide the Employer with notice the remaining FMLA leave entitlement required to post and keep posted on its of such Paid Sick Leave or Expanded that may be used for Expanded Family premises, in conspicuous places a Family and Medical Leave as soon as and Medical Leave is calculated in notice explaining the FFCRA’s paid practicable. If an Employee fails to give accordance with § 825.127(e) of this leave provisions and providing proper notice, the Employer should give chapter. information concerning the procedures him or her notice of the failure and an (e) An Eligible Employee can take a for filing complaints of violations of the opportunity to provide the required maximum of twelve workweeks of FFCRA with the Wage and Hour documentation prior to denying the Expanded Family and Medical Leave Division. request for leave. during the period in which the leave (b) An Employer may satisfy this (b) Timing and delivery of notice. may be taken (April 2, 2020 to requirement by emailing or direct Notice may not be required in advance, December 31, 2020) even if that period mailing this notice to Employees, or and may only be required after the first spans two FMLA leave twelve-month posting this notice on an Employee workday (or portion thereof) for which periods. For example, if an Employer’s information internal or external website. an Employee takes Paid Sick Leave or twelve-month period begins on July 1, (c) To meet the requirements of Expanded Family and Medical Leave. and an Eligible Employee took seven paragraph (a) of this section, Employers After the first workday, it will be weeks of Expanded Family and Medical may duplicate the text of the reasonable for an Employer to require Leave in May and June, 2020, the Department’s model notice (WHD 1422 notice as soon as practicable under the Eligible Employee could only take up to REV 03/20) or may use another format facts and circumstances of the particular five additional weeks of Expanded so long as the information provided case. Generally, it will be reasonable for Family and Medical Leave between July includes, at a minimum, all of the notice to be given by the Employee’s 1 and December 31, 2020, even though information contained in that notice. spokesperson (e.g., spouse, adult family the first seven weeks of Expanded Prototypes are available at www.dol.gov/ member, or other responsible party) if Family and Medical Leave fell in the whd. Employers furnishing notices to the Employee is unable to do so prior twelve-month period. sensory-impaired individuals must also personally. (f) The first two weeks of Expanded comply with all applicable requirements (c) Content of notice. Generally, it will Family and Medical Leave may be under Federal or State law. be reasonable for an Employer to require unpaid and the Eligible Employee may (d) This section does not require oral notice and sufficient information substitute Paid Sick Leave under the translation or provision of the notice in for an Employer to determine whether EPSLA at two-thirds the Employee’s languages other than English. the requested leave is covered by the

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EPSLA or the EFMLEA. An Employer which the Employee takes Paid Sick Employee is entitled to the new or may not require the notice to include Leave or Expanded Family and Medical changed plan/benefits to the same documentation beyond what is allowed Leave. extent as if the Employee was not on by § 826.100. (f) The Employer may also request an leave. Any other plan changes (e.g., in (d) Complying with Employer policy. Employee to provide such additional coverage, premiums, deductibles, etc.) Generally, it will be reasonable for the material as needed for the Employer to which apply to all Employees of the Employer to require the Employee to support a request for tax credits workforce would also apply to comply with the Employer’s usual and pursuant to the FFCRA. The Employer Employees taking Paid Sick Leave or customary notice and procedural is not required to provide leave if Expanded Family and Medical Leave. requirements for requesting leave, materials sufficient to support the (d) Notice of any opportunity to absent unusual circumstances. applicable tax credit have not been change plans or benefits must also be provided. For more information, please given to an Employee taking Paid Sick § 826.100 Documentation of need for consult https://www.irs.gov/newsroom/ Leave or Expanded Family and Medical leave. covid-19-related-tax-credits-for- Leave. If the Employee requests the (a) An Employee is required to required-paid-leave-provided-by-small- changed coverage, the Employer must provide the Employer documentation and-midsize-businesses-faqs. provide it. containing the following information (e) An Employee remains responsible prior to taking Paid Sick Leave under § 826.110 Health care coverage. for paying his or her portion of group the EPSLA or Expanded Family and (a) While an Employee is taking Paid health plan premiums which had been Medical Leave under the EFMLEA: Sick Leave or Expanded Family and paid by the Employee prior to taking (1) Employee’s name; Medical Leave, an Employer must Paid Sick Leave or Expanded Family (2) Date(s) for which leave is maintain the Employee’s coverage under and Medical Leave. If premiums are requested; any group health plan (as defined in the raised or lowered, the Employee would (3) Qualifying reason for the leave; Internal Revenue Code of 1986 at 26 be required to pay the new Employee and U.S.C. 5000(b)(1)) on the same premium contribution on the same (4) Oral or written statement that the conditions as coverage would have been terms as other Employees. The Employee is unable to work because of provided if the Employee had been Employee’s share of premiums must be the qualified reason for leave. continuously employed during the paid by the method normally used (b) To take Paid Sick Leave for a entire leave period. All Employers during any paid leave, presumably as a qualifying COVID–19 related reason covered by the EPSLA or the EFMLEA payroll deduction. If leave is unpaid, or under § 826.20(a)(1)(i), an Employee are subject to the requirement to the Employee’s pay during leave is must additionally provide the Employer maintain health coverage. The term insufficient to cover the Employee’s with the name of the government entity ‘‘group health plan’’ has the same share of the premiums, the Employer that issued the Quarantine or Isolation meaning as under the FMLA (see may obtain payment from the Employee Order. § 825.102 of this chapter). Maintenance in accordance with § 825.210(c) of this (c) To take Paid Sick Leave for a of individual health insurance policies chapter. qualifying COVID–19 related reason purchased by an Employee from an (f) An Employee may choose not to under § 826.20(a)(1)(ii) an Employee insurance provider, as described in retain group health plan coverage while must additionally provide the Employer § 825.209(a) of this chapter, is the an Employee is taking Paid Sick Leave with the name of the health care responsibility of the Employee. or Expanded Family and Medical Leave. provider who advised the Employee to (b) The same group health plan However, when an Employee returns self-quarantine due to concerns related benefits provided to an Employee prior from leave, the Employee is entitled to to COVID–19. to taking Paid Sick Leave or Expanded be reinstated on the same terms as prior (d) To take Paid Sick Leave for a Family and Medical Leave must be to taking the leave, including family or qualifying COVID–19 related reason maintained while an Employee is taking dependent coverages, without any under § 826.20(a)(1)(iii) an Employee Paid Sick Leave or Expanded Family additional qualifying period, physical must additionally provide the Employer and Medical Leave. For example, if examination, exclusion of pre-existing with either: family member coverage is provided to conditions, etc. (1) The name of the government entity an Employee, family member coverage (g) Except as required by the that issued the Quarantine or Isolation must be maintained while an Employee Consolidated Omnibus Budget Order to which the individual being is taking Paid Sick Leave or Expanded Reconciliation Act of 1986 (COBRA), an care for is subject; or Family and Medical Leave. Similarly, Employer’s obligation to maintain (2) The name of the health care benefit coverage for medical care, health benefits while an Employee is provider who advised the individual surgical care, hospital care, dental care, taking Paid Sick Leave or Expanded being cared for to self-quarantine due to eye care, mental health counseling, Family and Medical Leave ceases under concerns related to COVID–19. substance abuse treatment, etc., must be this section if and when the (e) To take Paid Sick Leave for a maintained while an Employee is taking employment relationship would have qualifying COVID–19 related reason Paid Sick Leave or Expanded Family terminated if the Employee had not under § 826.20(a)(1)(v) or Expanded and Medical Leave if provided in an taken Paid Sick Leave or Expanded Family and Medical Leave, an Employee Employer’s group health plan, including Family and Medical Leave (e.g., if the must additionally provide: a supplement to a group health plan, Employee fails to return from leave, or (1) The name of the Son or Daughter whether or not provided through a if the entitlement to leave ceases being cared for; flexible spending account or other because an Employer closes its (2) The name of the School, Place of component of a cafeteria plan. business). Care, or Child Care Provider that has (c) If an Employer provides a new closed or become unavailable; and health plan or benefits or changes health § 826.120 Multiemployer plans. (3) A representation that no other benefits or plans while an Employee is (a) Paid Sick Leave. In accordance suitable person will be caring for the taking Paid Sick Leave or Expanded with its existing collective bargaining Son or Daughter during the period for Family and Medical Leave, the obligations, an Employer signatory to a

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multiemployer collective bargaining (1) An Employee is not protected from to document and maintain such agreement may satisfy its obligations to employment actions, such as layoffs, information in its records for four years. provide Paid Sick Leave by making that would have affected the Employee (b) An Employer that denies an contributions to a multiemployer fund, regardless of whether he or she took Employee’s request for Paid Sick Leave plan, or other program. Such leave. In order to deny restoration to or Expanded Family and Medical Leave contributions must be based on the employment, an Employer must be able pursuant to § 826.40(b) shall document hours of Paid Sick Leave to which each to show that an Employee would not the determination by its authorized Employee is entitled under the EPSLA otherwise have been employed at the officer that it is eligible for such according to each Employee’s work time reinstatement is requested in order exemption and retain such under the multi-employer collective to deny restoration to employment. documentation for four years. bargaining agreement. (2) For leave taken under the (c) In order to claim tax credits from (b) Expanded Family and Medical EFMLEA, an Employer may deny job the Internal Revenue Service (IRS), an Leave. In accordance with its existing restoration to key Eligible Employees, as Employer is advised to maintain the collective bargaining obligations, an defined under the FMLA (§ 825.217 of following records for four years: Employer signatory to a multiemployer this chapter), if such denial is necessary (1) Documentation to show how the collective bargaining agreement may to prevent substantial and grievous Employer determined the amount of satisfy its obligations to provide economic injury to the operations of the paid sick leave and expanded family Expanded Family and Medical Leave by Employer. and medical leave paid to Employees making contributions to a (3) An Employer who employs fewer that are eligible for the credit, including multiemployer fund, plan, or other than twenty-five Eligible Employees records of work, Telework and Paid Sick program. Such contributions must be may deny job restoration to an Eligible Leave and Expanded Family and based on the hours of paid family and Employee who has taken Expanded Medical Leave; medical leave to which each Eligible Family and Medical Leave if all four of (2) Documentation to show how the Employee is entitled under the the following conditions exist: Employer determined the amount of EFMLEA, according to each Eligible (i) The Eligible Employee took leave qualified health plan expenses that the Employee’s work under the to care for his or her Son or Daughter Employer allocated to wages; (3) Copies of any completed IRS multiemployer collective bargaining whose School or Place of Care was Forms 7200 that the Employer agreement. closed, or whose Child Care Provider (c) Employee access. Any submitted to the IRS; was unavailable, for COVID–19 related multiemployer fund, plan, or program (4) Copies of the completed IRS Forms reasons; under section (a) or (b) of this section 941 that the Employer submitted to the must enable or otherwise allow (ii) The position held by the Eligible IRS or, for Employers that use third Employees to secure payments for Paid Employee when the leave commenced party payers to meet their employment Sick Leave or Expanded Family and does not exist due to economic tax obligations, records of information Medical Leave. If the multiemployer conditions or other changes in operating provided to the third party payer fund, plan, or program does not enable conditions of the Employer that affect regarding the Employer’s entitlement to or otherwise allow Employees to secure employment and are caused by a Public the credit claimed on IRS Form 941, and payments for paid leave to which they Health Emergency during the period of (5) Other documents needed to are entitled under the FFCRA based on leave; support its request for tax credits their work under the multiemployer (iii) The Employer makes reasonable pursuant to IRS applicable forms, collective bargaining agreement, the efforts to restore the Eligible Employee instructions, and information for the multiemployer fund, plan, or program to a position equivalent to the position procedures that must be followed to does not satisfy the requirements of the the Eligible Employee held when the claim a tax credit. For more information, FFCRA. leave commenced, with equivalent please consult https://www.irs.gov/ (d) Alternative means of compliance. employment benefits, pay, and other newsroom/covid-19-related-tax-credits- In accordance with its existing terms and conditions of employment; for-required-paid-leave-provided-by- collective bargaining obligations, an and small-and-midsize-businesses-faqs. Employer signatory to a multiemployer (iv) Where the reasonable efforts of collective bargaining agreement may the Employer to restore the Eligible § 826.150 Prohibited acts and enforcement under the EPSLA. satisfy its obligations to provide Paid Employee to an equivalent position fail, Sick Leave under the EPSLA or the Employer makes reasonable efforts (a) Prohibited acts. An Employer is Expanded Family and Medical Leave to contact the Eligible Employee during prohibited from discharging, under the EFMLEA by means other than a one-year period, if an equivalent disciplining, or discriminating against those set forth in paragraph (a) and (b) position becomes available. The one- any Employee because such Employee of this section, provided such means are year period begins on the earlier of the took Paid Sick Leave under the EPSLA. consistent with its existing bargaining date the leave related to a Public Health Likewise, an Employer is prohibited obligations and any applicable Emergency concludes or the date twelve from discharging, disciplining, or collective bargaining agreement. weeks after the Eligible Employee’s discriminating against any Employee leave began. because such Employee has filed any § 826.130 Return to work. complaint or instituted or caused to be (a) General rule. On return from Paid § 826.140 Recordkeeping. instituted any proceeding, including an Sick Leave or Expanded Family and (a) An Employer is required to retain enforcement proceeding, under or Medical Leave, an Employee has a right all documentation provided pursuant to related to the EPSLA, or has testified or to be restored to the same or an § 826.100 for four years, regardless is about to testify in any such equivalent position in accordance with whether leave was granted or denied. If proceeding. §§ 825.214 and 825.215 of this chapter. an Employee provided oral statements (b) Enforcement. (1) Failure to provide (b) Restoration limitations. to support his or her request for Paid Paid Sick Leave. An Employer who fails Notwithstanding paragraph (a) of this Sick Leave or Expanded Family and to provide its Employee Paid Sick Leave section: Medical Leave, the Employer is required under the EPSLA is considered to have

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failed to pay the minimum wage as authority set forth in section 106(d) of section 102(d)(2)(B) of the FMLA, 29 required by section 6 of the FLSA, 29 the FMLA, 29 U.S.C. 2616(d). U.S.C. 2612(d)(2)(B), an Eligible U.S.C. 206, and shall be subject to the Employee may elect to use, or an enforcement provisions set forth in § 826.160 Effect on other laws, employer practices, and collective bargaining Employer may require that an Eligible sections 16 and 17 of the FLSA, 29 agreements. Employee use, provided or accrued U.S.C. 216, 217. (a) No diminishment of other rights or leave available to the Eligible Employee (2) Discharge, discipline, or benefits. (1) An Employee’s entitlement for the purpose set forth in § 826.20(b) discrimination. An Employer who to, or actual use of, Paid Sick Leave under the Employer’s policies, such as discharges, disciplines, or discriminates under the EPSLA is in addition to—and vacation or personal leave or paid time against an Employee in the manner shall not in any way diminish, reduce, off, concurrently with Expanded Family described in subsection (a) is considered or eliminate—any other right or benefit, and Medical Leave. to have violated section 15(a)(3) of the including regarding Paid Sick Leave, to FLSA, 29 U.S.C. 215(a)(3), and shall be (2) If an Eligible Employee elects, or which the Employee is entitled under subject to the enforcement provisions an Employer requires, concurrent leave, any of the following: relevant to such violations set forth in the Employer must pay the Eligible (i) Another Federal, State, or local sections 16 and 17 of the FLSA, 29 Employee the full amount to which the law, except the FMLA as provided in U.S.C. 216, 217. Eligible Employee is entitled under the § 826.70; Employer’s preexisting paid leave (ii) A collective bargaining agreement; § 826.151 Prohibited acts and enforcement policy for the period of leave taken. under the EFMLEA. or (d) No creation of requirements upon (a) Prohibited acts. The prohibitions (iii) An Employer policy that existed against interference with the exercise of prior to April 1, 2020. end of employment. An Employer has rights, discrimination, and interference (2) That an Employee already used no obligation to provide—and an with proceedings or inquiries described any type of leave prior to April 1, 2020, Employee or former Employee has no in the FMLA, 29 U.S.C. 2615, apply to for reasons related to COVID–19 or right or entitlement to receive— Employers with respect to Eligible otherwise, shall not be grounds for his financial compensation or other Employees taking, or attempting to take, or her Employer to deny him or her Paid reimbursement for unused Paid Sick leave under the EFMLEA. Sick Leave and Expanded Family and Leave or Expanded Family and Medical (b) Enforcement. An Employer who Medical Leave or for the Employer to Leave upon the Employee’s termination, commits a prohibited act described in delay or postpone the Employee’s use of resignation, retirement, or any other paragraph (a) of this section shall be Paid Sick Leave and Expanded Family separation from employment. subject to the enforcement provisions and Medical Leave. The foregoing is subject to the exception of FMLA leave (e) No creation of requirements upon set forth in section 107 of the FMLA, 29 expiration. An Employer has no U.S.C. 2617, and § 825.400 of this as provided in § 826.70. An Employer shall permit an Employee to obligation to provide—and an Employee chapter, except that an Eligible or former Employee has no right or Employee may file a private action to immediately use the Paid Sick Leave and Expanded Family and Medical entitlement to receive—financial enforce the EFMLEA only if the compensation or other reimbursement Employer is otherwise subject to the Leave to which he or she is entitled for unused Paid Sick Leave or Expanded FMLA in the absence of EFMLEA. under the EPSLA and the EFMLEA. However, no Employer is obligated or Family and Medical Leave upon the § 826.152 Filing a complaint with the required to provide, and no Employee expiration of the FFCRA on December Federal Government. has a right or entitlement to receive, any 31, 2020. A complaint alleging any violation of retroactive reimbursement or financial (f) One time use. Any person is the EPSLA and/or the EFMLEA may be compensation through Paid Sick Leave limited to a total of 80 hours Paid Sick filed in person, by mail, or by or Expanded Family and Medical Leave Leave. An Employee who has taken all telephone, with the Wage and Hour for any unpaid or partially paid leave such leave and then changes Employers taken prior to April 1, 2020, even if such Division, U.S. Department of Labor, is not entitled to additional Paid Sick leave was taken for COVID–19-reated including at any local office of the Wage Leave from his or her new Employer. An reasons. and Hour Division. No particular form Employee who has taken some, but of complaint is required, except that a (b) Sequencing of Paid Sick Leave. (1) fewer than 80 hours of Paid Sick Leave, complaint must be in writing and An Employee may first use Paid Sick and then changes Employers is entitled should include a full statement of the Leave before using any other leave to acts and/or omissions, with pertinent which he or she is entitled by any: only to the remaining portion of such dates, that are believed to constitute the (i) Other Federal, State, or local law; leave from his or her new Employer and violation. (ii) Collective bargaining agreement; only if his or her new Employer is or covered by the Emergency Paid Sick § 826.153 Investigative authority of the (iii) Employer policy that existed Leave Act. Such an Employee’s Paid Secretary. prior to April 1, 2020. Sick Leave would expire upon reaching (a) Investigative authority under the (2) No Employer may require, coerce, 80 hours of Paid Sick Leave total, EPSLA. For purposes of the EPSLA, the or unduly influence any Employee to regardless of the Employer providing it, Secretary has the investigative authority first use any other paid leave to which or when the Employee reaches the and subpoena authority set forth in the Employee is entitled before the number of hours of Paid Sick Leave to sections 9 and 11 of the FLSA, 29 U.S.C. Employee uses Paid Sick Leave. Nor which he or she is entitled based on a 209, 211. may an Employer require, coerce, or part-time schedule with the new (b) Investigative authority under the unduly influence an Employee to use Employer. EFMLEA. For purposes of EFMLEA, the any source or type of unpaid leave prior [FR Doc. 2020–07237 Filed 4–2–20; 8:45 am] Secretary has the investigative authority to taking Paid Sick Leave. set forth in section 106(a) of the FMLA, (c) Sequencing of Expanded Family BILLING CODE 4510–27–P 29 U.S.C. 2616(a), and the subpoena and Medical Leave. (1) Consistent with

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Part V

The President

Proclamation 10001—Cancer Control Month, 2020 Proclamation 10002—National Child Abuse Prevention Month, 2020 Proclamation 10003—National Donate Life Month, 2020 Proclamation 10004—National Sexual Assault Awareness and Prevention Month, 2020 Proclamation 10005—Second Chance Month, 2020

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Federal Register Presidential Documents Vol. 85, No. 66

Monday, April 6, 2020

Title 3— Proclamation 10001 of March 31, 2020

The President Cancer Control Month, 2020

By the President of the United States of America

A Proclamation During Cancer Control Month, we commend the unwavering courage of those across our country who are battling cancer and remember all who have been taken from us by this horrible disease. We also rejoice with the nearly 17 million cancer survivors in the United States who show us that victory over cancer is possible. We extend our sincere appreciation to the devoted healthcare professionals, scientists, and researchers who have committed their lives to discovering a cure for cancer. While tremendous progress has been made in the fight against cancer, there is still much work to be done. Cancer remains the second-leading cause of death in the United States. Thanks to early detection, preventive measures, and medical innovation, survival rates for the most common cancer types— lung, colorectal, breast, and prostate—have vastly improved, providing much- needed hope to millions of patients and their families nationwide. Despite the decreasing death rate from cancer of nearly 30 percent over the last few decades, the disease claims the lives of roughly 1,600 Americans daily, resulting in nearly 600,000 deaths annually. Research shows that a large proportion of cancers can be prevented, paving the way for millions of Americans to take charge of their lives by avoiding unhealthy behaviors and habits as well as commonly known carcinogens that can cause cancer. For example, the majority of melanoma cancer cases diagnosed annually could have been prevented by protecting skin from ultraviolet radiation through the use of sunscreen with sun protection factor 15 or higher and other preventive measures that shield skin from the sun’s harmful rays. Moreover, tobacco products such as cigarettes and cigars are responsible for almost 9 out of every 10 cases of lung cancer. Preventive screenings, consulting your physician when detecting abnormalities, and awareness of family history can be the difference between life and death. That is why it is critical for Americans to see their doctors or healthcare providers regularly and stick to a healthy diet and routine physical activity. My Administration is also working aggressively to protect our Nation’s youth and ensure their lives are not shattered because of a cancer diagnosis. We initiated a new effort that invests $500 million over the next decade to improve pediatric cancer research. This funding will assist our Nation’s most talented health professionals in learning more about the devastating cancer diagnoses our children face and finding the best cures. The National Institutes of Health has announced the Childhood Cancer Data Initiative, which supports childhood cancer research and aims to make it easier for researchers to learn from each of the approximately 16,000 children and adolescents diagnosed with cancer in the United States each year. As we observe Cancer Control Month, we honor all those we have lost to cancer by renewing our commitment to raising awareness, emphasizing prevention and early detection, supporting innovative treatments, and prioritizing our health. By remaining steadfast in our dedication to taking preventative measures and finding a cure, we will one day defeat this disease.

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NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2020 as Cancer Control Month. I call upon the people of the United States to speak with their doctors and healthcare providers to learn more about preventative measures that can save lives. I encourage citizens, government agencies, private businesses, nonprofit organizations, and other interested groups to join in appropriate activities that will increase awareness of what Americans can do to prevent and control cancer. I also invite the Governors of the States and Territories and officials of other areas subject to the jurisdiction of the United States to join me in recognizing Cancer Control Month. IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand twenty, and of the Independ- ence of the United States of America the two hundred and forty-fourth.

[FR Doc. 2020–07299 Filed 4–3–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10002 of March 31, 2020

National Child Abuse Prevention Month, 2020

By the President of the United States of America

A Proclamation Childhood should be filled with joy, hope, unconditional love, and accept- ance. Tragically, however, far too many of our Nation’s young people spend this foundational time of their lives in fear, pain, and uncertainty, enduring abuse and neglect that threatens their health and well-being. During National Child Abuse Prevention Month, we condemn this horrific depravity and reaffirm our unwavering commitment to protecting our children and strength- ening our families. Each year, hundreds of thousands of children across our country suffer from abuse and neglect, a fact that is both sobering and heart-wrenching. In January, I signed an Executive Order to coordinate the Federal Govern- ment’s efforts to prosecute individuals who sexually exploit children online, protect and support victims of child exploitation, and provide prevention education to raise awareness and help lower the incidence of child exploi- tation. I also signed into law legislation to enhance our child welfare systems by supporting at-risk families through mental health and substance abuse treatment and programs to develop parenting skills. With our international partners in Australia, Canada, New Zealand, and the United Kingdom, the United States developed the Voluntary Principles to Counter Online Child Sexual Exploitation and Abuse. The Voluntary Principles establish a baseline framework for companies that provide online services to deter use of the internet as a tool for sexually exploiting and abusing children. Several major technology companies have publicly adopted the principles and more will follow in the coming months. These companies have a responsibility to prevent their platforms from becoming a haven for child predators and to also ensure law enforcement is able to investigate and prosecute offenders when children have been victimized. Child abuse causes the loss of innocence and hope. Loving, devoted, and caring families can serve as a bulwark against our children suffering from neglect and abuse. Child Welfare Information Gateway, the information serv- ice of the Department of Health and Human Services’ Children’s Bureau, offers several resources on preventing child abuse and promoting healthy families through its National Child Abuse Prevention Month website. Famil- iarizing yourself with the information provided by the Department of Health and Human Services can help you learn more about what you and your community can do to support children and families during this month and throughout the year. To eradicate this blight on our society, compassionate and concerned Ameri- cans must work to effect change and impact young lives. Child welfare agencies, clergy members, educators, medical and law enforcement profes- sionals, neighbors, friends, and extended family members all contribute to protecting and nurturing our Nation’s youth. Foster, kinship, and adoptive parents open their hearts and their homes to children in crisis and empower them to find happiness and achieve their dreams. Working together, these forces for good can ensure the welfare of children who have experienced the traumas of abuse or neglect and give them a promising future.

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The success of our Nation is reflected in our economic and cultural prosperity and military might, but our character is revealed by how we cherish and protect the weak, innocent, and vulnerable. All children are uniquely created in the image of God and gifted with both purpose and unlimited potential. We can and must relentlessly protect our children, homes, and communities from the scourge of these shameful tragedies and support families and com- munities to ensure that all children have the opportunity to reach their potential. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2020 as National Child Abuse Prevention Month. I call upon all Americans to invest in the lives of our Nation’s children, to be aware of their safety and well- being, and to support efforts that promote their psychological, physical, and emotional development. IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand twenty, and of the Independ- ence of the United States of America the two hundred and forty-fourth.

[FR Doc. 2020–07303 Filed 4–3–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10003 of March 31, 2020 National Donate Life Month, 2020

By the President of the United States of America

A Proclamation During National Donate Life Month, we honor the selfless individuals whose remarkable generosity has helped give others the gift of life. Countless Ameri- cans have benefited from people who have registered as organ, eye, or tissue donors, and we recognize our Nation’s unrivaled medical community for helping make donor transplants possible. Through the talents of doctors all across our country and the gifts of donors, the quality of life for thousands of Americans has been improved. Approximately 60 percent of American adults have registered as organ, eye, and tissue donors. In 2019, almost 40,000 American patients received transplants, which resulted in the most lives saved through organ donations ever during a single year. We all have the power to help: One donor can save up to 8 lives through organ donation and help improve more than 75 other lives through eye and tissue donation. Today, more than 110,000 men, women, and children in the United States are awaiting lifesaving organ transplants. While tremendous progress has been made, the need for additional organ donors is vital. Every 9 minutes another name is added to the long list of Americans desperately waiting for transplants. Additionally, nearly 18,000 people in the United States have been diagnosed with illnesses for which blood stem cell transplantation is the best treatment option. Over 65 percent of these individuals do not have appropriately matched family members and rely upon blood stem cell donors from outside their family to help save their lives. We are grateful for the more than 30 million adults who are currently registered as marrow donors. But more are needed to ensure all who need a transplant can find a match. To help increase access to transplants, in July 2019, I signed an Executive Order on Advancing American Kidney Health. The Executive Order increases access to kidney transplants by modernizing the organ recovery and trans- plantation systems and updating and fixing outdated and counterproductive regulations. It also provides increased support for living donors, increasing the supply of transplantable kidneys by removing financial barriers to living donations. Every person is a potential organ or tissue donor with the power to give the gift of life. This month, we are grateful to the generous Americans who register as donors and to the researchers, scientists, and medical profes- sionals who ensure transplants are safe and successful. I strongly encourage all willing and able Americans to sign up as organ or tissue donors to help instill greater hope in those awaiting a donor match and improve and save the lives of their fellow citizens. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2020 as National Donate Life Month. I call upon health professionals, volunteers, educators, government agencies, faith-based and community groups, and private organi- zations to help raise awareness of the urgent need for organ and tissue donors throughout our Nation.

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IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand twenty, and of the Independ- ence of the United States of America the two hundred and forty-fourth.

[FR Doc. 2020–07305 Filed 4–3–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10004 of March 31, 2020 National Sexual Assault Awareness and Prevention Month, 2020

By the President of the United States of America

A Proclamation No person should ever have to endure the anguish and indignity of sexual assault. This horrific crime affects Americans of every age, ethnicity, and socioeconomic status. During National Sexual Assault Awareness and Preven- tion Month, we reaffirm our commitment to supporting survivors of sexual assault, encouraging strong criminal justice responses to these crimes, and ending the scourge of sexual violence in our homes and communities. Sexual assault is a particularly egregious and dehumanizing form of violence. Even after physical injuries of a sexual assault have healed, emotional and mental trauma can persist. Survivors often struggle with lingering anxiety, fear, anger, shame, and depression. The devastating aftermath of sexual assault can also harm a survivor’s relationships with their loved ones. My Administration has made combating sexual assault a top priority. Last year, I signed an Executive Order establishing the Task Force on Missing and Murdered American Indians and Alaska Natives to address unacceptable acts of violence against Native Americans, particularly women and girls. Too often, sexual assaults are committed in conjunction with other forms of violence against women and girls in Indian Country. This Task Force is enhancing collaboration across the Federal Government to improve the ability of law enforcement and prosecutors to respond to new and unsolved cases in these communities and to ensure they receive vital health and human services. In addition, the Office on Violence Against Women and the Office for Victims of Crime within the Department of Justice (DOJ) are spearheading an initiative to ensure that sexual assault victims in Native and Tribal communities have access to high-quality medical care from trained Sexual Assault Forensic Examiners and other services they may need to heal and achieve justice. DOJ is also providing grant funding to facilitate the analysis of thousands of sexual assault kits in crime laboratories across our Nation to identify criminals. The Department is also making sure that law enforcement officers, prosecutors, and victim advocates have the resources they need to support victims and bring offenders to justice. Further, DOJ and the Department of Health and Human Services have identified best practices in the collection and preservation of forensic evidence, as well as in the care and treatment of survivors of sexual assault. Human trafficking has become rampant throughout the world, and often includes sexual assault. In 2019 alone, the National Human Trafficking Hotline received reports of nearly 12,000 cases of potential human trafficking in the United States, identifying more than 25,000 victims. More than 65 percent of these cases referenced women, and more than one in five ref- erenced children. My Administration will use every tool at our disposal to dismantle this global problem, deliver justice, and ensure the safety and well-being of the survivors. That is why I signed an Executive Order on Combating Human Trafficking and Online Child Exploitation in the United States, which prioritizes the Federal Government’s resources to prosecute offenders, assist victims, and provide prevention education to combat human

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trafficking and online sexual exploitation of children. I also signed into law legislation authorizing $430 million to fight sex and labor trafficking, and my fiscal year 2021 budget request to Congress seeks an increase of $42.5 million to address human trafficking. And importantly, we are holding these foreign governments that fail to address human trafficking to account by imposing restrictions on foreign assistance. This month, we pause to recognize the devastation caused by sexual assault and to recommit ourselves to eliminating this atrocious crime. We are grateful to the professionals serving in healthcare, victim and human services, law enforcement, and criminal justice for their steadfast resolve against sexual assault while also caring for and supporting survivors. As a Nation, we stand with the courageous men, women, and children who have survived sexual assault and pledge to use every tool at our disposal to help prevent Americans from ever enduring the trauma of sexual assault. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2020 as National Sexual Assault Awareness and Prevention Month. I urge all Americans, families, law enforcement personnel, healthcare providers, and community and faith-based organizations to support survivors of sexual assault and work together to prevent these crimes in their communities. IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand twenty, and of the Independ- ence of the United States of America the two hundred and forty-fourth.

[FR Doc. 2020–07308 Filed 4–3–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10005 of March 31, 2020

Second Chance Month, 2020

By the President of the United States of America

A Proclamation As Americans, we believe that every person has unbound potential. It is therefore important that we offer former inmates who have served their sentences and learned from their earlier mistakes the opportunity for redemp- tion through a second chance to become productive members of society. During Second Chance Month, we celebrate those who have set out to create better lives following incarceration and recommit to helping former inmates contribute to the strength and prosperity of our Nation. In 2018, I signed into law the First Step Act, landmark legislation that brought needed reform to our criminal justice system. The First Step Act reduced penalties and eliminated the three-strike mandatory life sentence provision for certain non-violent offenders. This legislation also expanded judges’ discretion to impose sentences that are below the mandatory min- imum for drug offenders with little or no criminal history. Additionally, it allows certain low-level drug offenders to petition the courts for a review of their sentence, which a judge can reduce after reviewing all the cir- cumstances, including public safety, criminal history, and the nature of the offense. Further, through expanded rehabilitative programs my Adminis- tration has established in accordance with this legislation, inmates are receiv- ing training and education to help them develop skills that will help them re-enter society successfully. Based on an assessment of their risk of recidi- vism and needs, inmates that complete some of these programs can secure early release to home confinement or a halfway house. While we must be tough on crime, we can also be smart about reducing recidivism. One of the best ways to break the cycle of crime is to help former inmates find rewarding work. That is why my Administration is promoting second chance hiring to build on the reforms of the First Step Act and help former inmates live crime-free lives. I launched the Federal Interagency Crime Prevention and Improving Reentry Council to create more second chances for those returning home from prison. We are also working to expand Pell Grants to provide education and training to inmates before release and providing grants to States to expand their use of fidelity bonds to help persons with criminal records find gainful employment. This month, we extend our heartfelt thanks to all who know in their hearts that redemption is possible. Second chances are possible only through a network of people who believe in themselves and others, former inmates determined to improve their lives, judges and public servants dedicated to reducing recidivism, and families and community members willing to lend their support to people striving to triumph over their past mistakes. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2020 as Second Chance Month. I call on all Americans to commemorate this month with events and activities that raise public awareness about preventing crime and providing those who have completed their sentences an opportunity for an honest second chance.

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IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand twenty, and of the Independ- ence of the United States of America the two hundred and forty-fourth.

[FR Doc. 2020–07309 Filed 4–3–20; 8:45 am] Billing code 3295–F0–P

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Part VI

The President

Notice of April 3, 2020—Continuation of the National Emergency With Respect to Somalia

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Federal Register Presidential Documents Vol. 85, No. 66

Monday, April 6, 2020

Title 3— Notice of April 3, 2020

The President Continuation of the National Emergency With Respect to So- malia

On April 12, 2010, by Executive Order 13536, the President declared a national emergency pursuant to the International Emergency Economic Pow- ers Act (50 U.S.C. 1701 et seq.) to deal with the unusual and extraordinary threat to the national security and foreign policy of the United States con- stituted by the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have been the subject of the United Nations Security Council resolutions, and violations of the arms embargo imposed by the United Nations Security Council. On July 20, 2012, the President issued Executive Order 13620 to take addi- tional steps to deal with the national emergency declared in Executive Order 13536 in view of United Nations Security Council Resolution 2036 of February 22, 2012, and Resolution 2002 of July 29, 2011, and to address: exports of charcoal from Somalia, which generate significant revenue for al-Shabaab; the misappropriation of Somali public assets; and certain acts of violence committed against civilians in Somalia, all of which contribute to the deterioration of the security situation and the persistence of violence in Somalia. The situation with respect to Somalia continues to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. For this reason, the national emergency declared on April 12, 2010, and the measures adopted on that date and on July 20, 2012, to deal with that emergency, must continue in effect beyond April 12, 2020. There- fore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13536.

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This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, April 3, 2020. [FR Doc. 2020–07373 Filed 4–3–20; 11:15 am] Billing code 3295–F0–P

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Reader Aids Federal Register Vol. 85, No. 66 Monday, April 6, 2020

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