Federal Register Vol. 80, No.94,

Title: Supplemental Nutrition Assistance Program Forms: Applications, Periodic Reporting and Notices.

OMB Number: 0584-0064.

Form Number: None.

Expiration Date: April 30, 2016.

Type of Request: Revision of an existing collection.

Abstract: This notice revises the Applications, Periodic Reporting, and Notices burden for the Supplemental Nutrition Assistance Program (SNAP). The Federal procedures for implementing the application and certification procedures in the Act are in Parts 271, 272, and 273 of the Title 7 of the Code of Federal Register. Part 271 contains general information and definitions, Part 272 contains requirements for participating State agencies, and Part 273 contains procedures for the certification of eligible households.

After careful review and consideration of the burden inventory under OMB No. 0584-0064, FNS has determined the burden baseline does not accurately reflect the burden activities or hours required by the SNAP under this collection. We have corrected the burden inventory baseline to establish burden estimates under OMB No. 0584-0064 that more accurately reflect the information collection burdens of SNAP's existing application and recertification process. An overview is provided in this notice and additional details are available in the docket at [Placeholder].

Section 3502.2 of the PRA defines burden as “time, effort, or financial resources expended by a person to generate, maintain, or provide information to or for a Federal agency.”

In keeping with the PRA definition of burden, we created sub-activity categories that allowed for the inclusion of time and effort expended on behalf of households and State agencies and revised the time estimates. Note that no changes have been made to the existing reporting and recordkeeping requirements. The change in burden is due to formulating more accurate burden estimates associated with the existing requirements.

The following tables compare the time estimates for activities contained in the currently approved information collection with the revised burden baseline activities.

Additionally, the burden estimates included in this collection account for the burden applicable to each SNAP applicant. The estimated number of applicants has increased from the prior estimate of approximately 11 million applicants to over 14.5 million applicants in Fiscal Year 2014.

The net impact to the burden is summarized below.

Affected Public: State and local government agencies administering SNAP and Individuals/Households.

Estimated Number of Respondents: 14,619,642.

Estimated Number of Responses per Respondent: 45.04.

Estimated Total Number of Annual Responses: 658,539,827.

Estimated Hours per Response: .1795.

Estimated Total Annual Burden Hours: 118,221,440.

Current Burden Inventory: 24,897,947.

Net Increase: 93,323,493.

Federal Agency: Rural Housing Service.

Funding Opportunity Title: Rural Community Development Initiative.

Announcement Type: Initial Announcement.

Catalog of Federal Domestic Assistance (CFDA) Number: 10.446.

Dates: The deadline for receipt of an application is 4 p.m. local time, August 13, 2015. The application date and time are firm. The Agency will not consider any application received after the deadline. Applicants intending to mail applications must provide sufficient time to permit delivery on or before the closing deadline date and time. Acceptance by the United States Postal Service or private mailer does not constitute delivery. Facsimile (FAX) and postage due applications will not be accepted.

Congress first authorized the RCDI in 1999 (Pub. L. 106-78, which was amended most recently by The Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235)). The RCDI was authorized to develop the capacity and ability of qualified private, nonprofit community-based housing and community development organizations, low-income rural communities, and federally recognized Native American Tribes to undertake projects related to housing, community facilities, or community and economic development in rural areas. Strengthening the recipient's capacity in these areas will benefit the communities they serve. The RCDI structure requires the intermediary (grantee) to provide a program of financial and technical assistance to recipients. The recipients will, in turn, provide programs to their communities (beneficiaries).

Of particular note this year, the Agency is encouraging applications for projects based in or servicing high poverty areas. This emphasis will support Rural Development's (RD) mission of improving the quality of life for rural Americans and commitment to directing resources to those who most need them.

Congress, in The Continuing and Further Continuing Appropriations Act, 2015 (Pub.L. 113-235), appropriated $4,000,000 in FY 2015 for the RCDI program. The amount of funding received in the FY 2015 Appropriations Act can also be found at the following link: http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas#nosa.

Qualified private, nonprofit and public (including tribal) intermediary organizations proposing to carry out financial and technical assistance programs will be eligible to receive the grant funding.

The intermediary will be required to provide matching funds in an amount at least equal to the RCDI grant.

A grant will be the type of assistance instrument awarded to successful applications.

The respective minimum and maximum grant amount per intermediary is $50,000 and $250,000.

Grant funds must be utilized within 3 years from date of the award.

A grantee that has an outstanding RCDI grant over 3 years old, as of the application due date in this Notice, is not eligible to apply for this round of funding.

The intermediary must provide a program of financial and technical assistance to one or more of the following: A private, nonprofit community-based housing and development organization, a low-income rural community or a federally recognized tribe.

Applicants must meet all of the following eligibility requirements by the application deadline. Applications which fail to meet any of these requirements by the application deadline will be deemed ineligible and will not be evaluated further, and will not receive a Federal award.

(a) Qualified private, nonprofit, (including faith-based and community organizations and philanthropic foundations), in accordance with 7 CFR part 16, and public (including tribal) intermediary organizations are eligible applicants. Definitions that describe eligible organizations and other key terms are listed below.

(b) The recipient must be a nonprofit community-based housing and development organization, low-income rural community, or federally recognized tribe based on the RCDI definitions of these groups.

(c) Private nonprofit, faith or community-based organizations must provide a certificate of incorporation and good standing from the Secretary of the State of incorporation, or other similar and valid documentation of nonprofit status. For low-income rural community recipients, the Agency requires evidence that the entity is a public body and census data verifying that the median household income of the community where the office receiving the financial and technical assistance is located is at, or below, 80 percent of the State or national median household income, whichever is higher. For federally recognized tribes, the Agency needs the page listing their name from the current Federal Register list of tribal entities recognized and eligible for funding services (see the definition of federally recognized tribes in this Notice for details on this list).

(d) Any corporation (1) that has been convicted of a felony criminal violation under any Federal law within the past 24 months or (2) that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; is not eligible for financial assistance provided with funds appropriated by the Consolidated and Further Continuing Appropriations Act, 2015, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

There is a matching requirement of at least equal to the amount of the grant. If this matching funds requirement is not met, the application will be deemed ineligible. See section D, Application and Submission Information, for required pre-award and post award matching funds documentation submission.

The intermediary must provide matching funds at least equal to the amount of the grant. Verification of matching funds must be submitted with the application. Matching funds must be committed for a period equal to the grant performance period. The intermediary will be required to provide matching funds in an amount at least equal to the RCDI grant. In-kind contributions such as salaries, donated time and effort, real and nonexpendable personal property and goods and services cannot be used as matching funds.

Matching funds are cash or confirmed funding commitments and must be at least equal to the grant amount and committed for a period of not less than the grant performance period. These funds can only be used for eligible RCDI activities. Matching funds must be used to support the overall purpose of the RCDI program.

In-kind contributions such as salaries, donated time and effort, real and nonexpendable personal property and goods and services cannot be used as matching funds.

Grant funds and matching funds must be used in equal proportions. This does not mean funds have to be used equally by line item.

The request for advance or reimbursement and supporting documentation must show that RCDI fund usage does not exceed the cumulative amount of matching funds used.

Grant funds will be disbursed pursuant to relevant provisions of 2 CFR parts 200 and 400. Verification of matching funds must be submitted with the application. See Section D, other program requirements, for matching funds documentation and pre-award requirements.

The intermediary is responsible for demonstrating that matching funds are available, and committed for a period of not less than the grant performance period to the RCDI proposal. Matching funds may be provided by the intermediary or a third party. Other Federal funds may be used as matching funds if authorized by statute and the purpose of the funds is an eligible RCDI purpose.

RCDI funds will be disbursed on an advance or reimbursement basis. Matching funds cannot be expended prior to execution of the RCDI Grant Agreement.

(a) The recipient and beneficiary, but not the intermediary, must be located in an eligible rural area. The physical location of the recipient's office that will be receiving the financial and technical assistance must be in an eligible rural area. If the recipient is a low-income community, the median household income of the area where the office is located must be at or below 80 percent of the State or national median household income, whichever is higher. The applicable Rural Development State Office can assist in determining the eligibility of an area.

A listing of Rural Development State Office contacts can be found at the following link: http://www.rd.usda.gov/files/RCDI_State_Contacts.pdf. A map showing eligible rural areas can be found at the following link: http://eligibility.sc.egov.usda.gov/eligibility/welcomeAction.do?pageAction=RBSmenu&NavKey=property@13.

(b) RCDI grantees that have an outstanding grant over 3 years old, as of the application due date in this Notice, will not be eligible to apply for this round of funding. Grant and matching funds must be utilized in a timely manner to ensure that the goals and objectives of the program are met.

(c) Individuals cannot be recipients.

(d) The intermediary must provide a program of financial and technical assistance to the recipient.

(e) The intermediary organization must have been legally organized for a minimum of 3 years and have at least 3 years prior experience working with private nonprofit community-based housing and development organizations, low-income rural communities, or tribal organizations in the areas of housing, community facilities, or community and economic development.

(f) Proposals must be structured to utilize the grant funds within 3 years from the date of the award.

(g) Each applicant, whether singularly or jointly, may only submit one application for RCDI funds under this Notice. This restriction does not preclude the applicant from providing matching funds for other applications.

(h) Recipients can benefit from more than one RCDI application; however, after grant selections are made, the recipient can only benefit from multiple RCDI grants if the type of financial and technical assistance the recipient will receive is not duplicative. The services described in multiple RCDI grant applications must have separate and identifiable accounts for compliance purposes.

(i) The intermediary and the recipient cannot be the same entity. The recipient can be a related entity to the intermediary, if it meets the definition of a recipient, provided the relationship does not create a Conflict of Interest that cannot be resolved to Rural Development's satisfaction.

(j) If the recipient is a low-income rural community, identify the unit of government to which the financial and technical assistance will be provided, e.g., town council or village board. The financial and technical assistance must be provided to the organized unit of government representing that community, not the community at large.

Fund uses must be consistent with the RCDI purpose. A nonexclusive list of eligible grant uses includes the following:

(a) Provide technical assistance to develop recipients' capacity and ability to undertake projects related to housing, community facilities, or community and economic development, e.g., the intermediary hires a staff person to provide technical assistance to the recipient or the recipient hires a staff person, under the supervision of the intermediary, to carry out the technical assistance provided by the intermediary.

(b) Develop the capacity of recipients to conduct community development programs, e.g., homeownership education or training for business entrepreneurs.

(c) Develop the capacity of recipients to conduct development initiatives, e.g., programs that support micro-enterprise and sustainable development.

(d) Develop the capacity of recipients to increase their leveraging ability and access to alternative funding sources by providing training and staffing.

(e) Develop the capacity of recipients to provide the technical assistance component for essential community facilities projects.

(f) Assist recipients in completing pre-development requirements for housing, community facilities, or community and economic development projects by providing resources for professional services, e.g., architectural, engineering, or legal.

(g) Improve recipient's organizational capacity by providing training and resource material on developing strategic plans, board operations, management, financial systems, and information technology.

(h) Purchase of computers, software, and printers, limited to $10,000 per award, at the recipient level when directly related to the technical assistance program being undertaken by the intermediary.

(i) Provide funds to recipients for training-related travel costs and training expenses related to RCDI.

The following is a list of ineligible grant uses:

(a) Pass-through grants, and any funds provided to the recipient in a lump sum that are not reimbursements.

(b) Funding a revolving loan fund (RLF).

(c) Construction (in any form).

(d) Salaries for positions involved in construction, renovations, rehabilitation, and any oversight of these types of activities.

(e) Intermediary preparation of strategic plans for recipients.

(f) Funding prostitution, gambling, or any illegal activities.

(g) Grants to individuals.

(h) Funding a grant where there may be a conflict of interest, or an appearance of a conflict of interest, involving any action by the Agency.

(i) Paying obligations incurred before the beginning date without prior Agency approval or after the ending date of the grant agreement.

(j) Purchasing real estate.

(k) Improvement or renovation of the grantee's, or recipient's office space or for the repair or maintenance of privately owned vehicles.

(l) Any purpose prohibited in 2 CFR part 200 or 400.

(m) Using funds for recipient's general operating costs.

(n) Using grant or matching funds for Individual Development Accounts.

(o) Purchasing vehicles.

The following are examples of eligible and ineligible purposes under the RCDI program. (These examples are illustrative and are not meant to limit the activities proposed in the application. Activities that meet the objectives of the RCDI program and meet the criteria outlined in this Notice will be considered eligible.)

(a) The intermediary must work directly with the recipient, not the ultimate beneficiaries. As an example:

The intermediary provides training to the recipient on how to conduct homeownership education classes. The recipient then provides ongoing homeownership education to the residents of the community—the ultimate beneficiaries. This “train the trainer” concept fully meets the intent of this initiative. The intermediary is providing technical assistance that will build the recipient's capacity by enabling them to conduct homeownership education classes for the public.

This is an eligible purpose. However, if the intermediary directly provided homeownership education classes to individuals in the recipient's service area, this would not be an eligible purpose because the recipient would be bypassed.

(b) If the intermediary is working with a low-income community as the recipient, the intermediary must provide the technical assistance to the entity that represents the low-income community and is identified in the application. Examples of entities representing a low-income community are a village board or a town council.

If the intermediary provides technical assistance to the Board of the low-income community on how to establish a cooperative, this would be an eligible purpose. However, if the intermediary works directly with individuals from the community to establish the cooperative, this is not an eligible purpose.

The recipient's capacity is built by learning skills that will enable them to support sustainable economic development in their communities on an ongoing basis.

(c) The intermediary may provide technical assistance to the recipient on how to create and operate a revolving loan fund. The intermediary may not monitor or operate the revolving loan fund. RCDI funds, including matching funds, cannot be used to fund revolving loan funds.

(d) The intermediary may work with recipients in building their capacity to provide planning and leadership development training. The recipients of this training would be expected to assume leadership roles in the development and execution of regional strategic plans. The intermediary would work with multiple recipients in helping communities recognize their connections to the greater regional and national economies.

(e) The intermediary could provide training and technical assistance to the recipients on developing emergency shelter and feeding, short-term housing, search and rescue, and environmental accident, prevention, and cleanup program plans. For longer term disaster and economic crisis responses, the intermediary could work with the recipients to develop job placement and training programs, and develop coordinated transit systems for displaced workers.

Entities wishing to apply for assistance may download the application documents and requirements delineated in this Notice from the RCDI Web site: http://www.rd.usda.gov/programs-services/rural-community-development-initiative-grants.

Application information for electronic submissions may be found at http://www.grants.gov.

Applicants may also request paper application packages from the Rural Development office in their state. A list of Rural Development State office contacts can be found via http://www.rd.usda.gov/files/RCDI_State_Contacts.pdf. You may also obtain a copy by calling 202-205-9685.

If the applicant is ineligible or the application is incomplete, the Agency will inform the applicant in writing of the decision, reasons therefore, and its appeal rights and no further evaluation of the application will occur.

A complete application for RCDI funds must include the following:

(a) A summary page, double-spaced between items, listing the following: (This information should not be presented in narrative form.)

(1) Applicant's name,

(2) Applicant's address,

(3) Applicant's telephone number,

(4) Name of applicant's contact person and telephone number,

(5) Applicant's fax number,

(6) County where applicant is located,

(7) Congressional district number where applicant is located,

(8) Amount of grant request, and

(9) Number of recipients.

(b) A detailed Table of Contents containing page numbers for each component of the application.

(c) A project overview, no longer than five pages, including the following items, which will also be addressed separately and in detail under “Building Capacity and Expertise” of the “Evaluation Criteria.”

(1) The type of technical assistance to be provided to the recipients and how it will be implemented.

(2) How the capacity and ability of the recipients will be improved.

(3) The overall goals to be accomplished.

(4) The benchmarks to be used to measure the success of the program. Benchmarks should be specific and quantifiable.

(d) Organizational documents, such as a certificate of incorporation and a current good standing certification from the Secretary of State where the applicant is incorporated and other similar and valid documentation of non-profit status, from the intermediary that confirms it has been legally organized for a minimum of 3 years as the applicant entity.

(e) Verification of source and amount of matching funds, e.g., a copy of a bank statement if matching funds are in cash or a copy of the confirmed funding commitment from the funding source.

The verification must show that matching funds are available for the duration of the grant performance period. The verification of matching funds must be submitted with the application or the application will be considered incomplete.

The applicant will be contacted by the Agency prior to grant award to verify that the matching funds provided with the application continue to be available. The applicant will have 15 days from the date contacted to submit verification that matching funds continue to be available.

If the applicant is unable to provide the verification within that timeframe, the application will be considered ineligible. The applicant must maintain bank statements on file or other documentation for a period of at least 3 years after grant closing except that the records shall be retained beyond the 3-year period if audit findings have not been resolved.

(f) The following information for each recipient:

(1) Recipient's entity name,

(2) Complete address (mailing and physical location, if different),

(3) County where located,

(4) Number of Congressional district where recipient is located,

(5) Contact person's name and telephone number, and

(6) Form RD 400-4, “Assurance Agreement.” If the Form RD 400-4 is not submitted for a recipient, the recipient will be considered ineligible. No information pertaining to that recipient will be included in the income or population scoring criteria and the requested funding may be adjusted due to the deletion of the recipient.

(g) Submit evidence that each recipient entity is eligible. Documentation must be submitted to verify recipient eligibility. Acceptable documentation varies depending on the type of recipient:

(1) Nonprofits—provide a current valid letter confirming non-profit status from the Secretary of the State of incorporation or the IRS, a current good standing certification from the Secretary of the State of incorporation, or other valid documentation of nonprofit status of each recipient. A nonprofit recipient must provide evidence that it is a valid nonprofit when the intermediary applies for the RCDI grant. Organizations with pending requests for nonprofit designations are not eligible.

(2) Low-income rural community—provide evidence the entity is a public body, and a copy of the 2010 census data to verify the population, and evidence that the median household income is at, or below, 80 percent of either the State or national median household income. We will only accept data and printouts from http://www.census.gov.

(3) Federally recognized tribes—provide the page listing their name from the Federal Register list of tribal entities published most recently by the Bureau of Indian Affairs. The 2014 list is available at 79 FR 4748-53 and http://www.bia.gov/cs/groups/public/documents/text/idc006989.

(h) Each of the “Evaluation Criteria” must be addressed specifically and individually by category. Present these criteria in narrative form. Documentation must be limited to three pages per criterion. The “Population and Income” criteria for recipient locations can be provided in the form of a list; however, the source of the data must be included on the page(s).

(i) A timeline identifying specific activities and proposed dates for completion.

(j) A detailed project budget that includes the RCDI grant amount and matching funds. This should be a line-item budget, by category. Categories such as salaries, administrative, other, and indirect costs that pertain to the proposed project must be clearly defined. Supporting documentation listing the components of these categories must be included. The budget should be dated: year 1, year 2, year 3, as applicable.

(k) The indirect cost category in the project budget should be used only when a grant applicant has a federally negotiated indirect cost rate. A copy of the current rate agreement must be provided with the application. Non-federal entities that have never received a negotiated indirect cost rate may use the de minimis rate of 10% of modified total direct costs (MTDC).

(l) Form SF-424, “Application for Federal Assistance.” (Do not complete Form SF-424A, “Budget Information.” A separate line-item budget should be presented as described in No. 13 of this section.)

(m) Form SF-424B, “Assurances—Non-Construction Programs.”

(n) Form AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions.”

(o) Form AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions.”

(p) Form AD-1049, “Certification Regarding Drug-Free Workplace Requirements.”

(q) Certification of Non-Lobbying Activities.

(r) Standard Form LLL, “Disclosure of Lobbying Activities,” if applicable.

(s) Form RD 400-4, “Assurance Agreement,” for the applicant.

(t) Identify and report any association or relationship with Rural Development employees. (A statement acknowledging whether or not a relationship exists is required).

(u) Form AD-3030, “Representations Regarding Felony Conviction and Tax Delinquent Status for Corporate Applicants,” if you are a corporation. A corporation is any entity that has filed articles of incorporation in one of the 50 States, the District of Columbia, the Federated States of Micronesia, the Republic of Palau, and the Republic of the Marshall Islands, or the various territories of the United States including American Samoa, Guam, Midway Islands, Northern Mariana Islands, Puerto Rico, or the U.S. Virgin Islands. Corporations include both for profit and non-profit entities.

Grant applicants must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number and register in the System for Award Management (SAM) prior to submitting a pre-application pursuant to 2 CFR 25.200(b). In addition, an entity applicant must maintain registration in SAM at all times during which it has an active Federal award or an application or plan under construction by the Agency. Similarly, all recipients of Federal financial assistance are required to report information about first-tier subawards and executive compensation in accordance to 2 CFR part 170. So long as an entity applicant does not have an exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding. See 2 CFR 170.200(b).

An applicant, unless excepted under 2 CFR 25.110(b), (c), or (d), is required to:

(a) Be registered in SAM before submitting its application;

(b) Provide a valid DUNS number in its application; and

(c) Continue to maintain an active SAM registration with current information at all times during which it has an active Federal award or an application or plan under consideration by a Federal awarding agency.

The Federal awarding agency may not make a federal award to an applicant until the applicant has complied with all applicable DUNS and SAM requirements and, if an applicant has not fully complied with the requirements by the time the Federal awarding agency is ready to make a Federal award, the Federal awarding agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.

As required by the Office of Management and Budget (OMB), all grant applications must provide a DUNS number when applying for Federal grants, on or after October 1, 2003. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free number at 1-866-705-5711 or via Internet at http://fedgov.dnb.com/webform. Additional information concerning this requirement can be obtained on the Grants.gov Web site at http://www.grants.gov. Similarly, applicants may register for SAM at https://www.sam.gov or by calling 1-866-606-8220.

The DUNS number should be identified in the “Organizational DUNS” field on Standard Form (SF) 424, “Application for Federal Assistance.” Since there are no specific fields for a Commercial and Government Entity (CAGE) code and expiration date, they may be identified anywhere on the Form SF 424. If the applicant does not provide the CAGE code and expiration date and the DUNS number in the application, it will not be considered for funding. The required forms and certifications can be downloaded from the RCDI Web site at: http://www.rd.usda.gov/programs-services/rural-community-development-initiative-grants.

The deadline for receipt of an application is 4 p.m. local time, August 13, 2015. The application date and time are firm. The Agency will not consider any application received after the deadline. You may submit your application in paper form or electronically through Grants.gov. Applicants intending to mail applications must provide sufficient time to permit delivery on or before the closing deadline date and time. Acceptance by the United States Postal Service or private mailer does not constitute delivery. Facsimile (FAX) and postage due applications will not be accepted.

To submit a paper application, the original application package must be submitted to the Rural Development State Office where the applicant's headquarters is located. A listing of Rural Development State Offices can be found via http://www.rd.usda.gov/files/RCDI_State_Contacts.pdf.

Applications will not be accepted via FAX or electronic mail.

Applicants may file an electronic application at http://www.grants.gov. Grants.gov contains full instructions on all required passwords, credentialing, and software. Follow the instructions at Grants.gov for registering and submitting an electronic application. If a system problem or technical difficulty occurs with an electronic application, please use the customer support resources available at the Grants.gov Web site.

Technical difficulties submitting an application through Grants.gov will not be a reason to extend the application deadline. If an application is unable to be submitted through Grants.gov, a paper application must be received in the appropriate Rural Development State Office by the deadline noted previously.

First time Grants.gov users should carefully read and follow the registration steps listed on the Web site. These steps need to be initiated early in the application process to avoid delays in submitting your application online.

In order to register with System for Award Management (SAM), your organization will need a DUNS number. Be sure to complete the Marketing Partner ID (MPID) and Electronic Business Primary Point of Contact fields during the SAM registration process.

These are mandatory fields that are required when submitting grant applications through Grants.gov. Additional application instructions for submitting an electronic application can be found by selecting this funding opportunity on Grants.gov.

Meeting expenses. In accordance with 31 U.S.C. 1345, “Expenses of Meetings,” appropriations may not be used for travel, transportation, and subsistence expenses for a meeting. RCDI grant funds cannot be used for these meeting-related expenses. Matching funds may, however, be used to pay for these expenses.

RCDI funds may be used to pay for a speaker as part of a program, equipment to facilitate the program, and the actual room that will house the meeting.

RCDI funds cannot be used for meetings; they can, however, be used for travel, transportation, or subsistence expenses for program-related training and technical assistance purposes. Any training not delineated in the application must be approved by the Agency to verify compliance with 31 U.S.C. 1345. Travel and per diem expenses (including meals and incidental expenses) will be allowed in accordance with 2 CFR parts 200 and 400.

Applications will be evaluated using the following criteria and weights:

The applicant must demonstrate how they will improve the recipients' capacity, through a program of financial and technical assistance, as it relates to the RCDI purposes.

Capacity-building financial and technical assistance should provide new functions to the recipients or expand existing functions that will enable the recipients to undertake projects in the areas of housing, community facilities, or community and economic development that will benefit the community. Capacity-building financial and technical assistance may include, but is not limited to: Training to conduct community development programs, e.g., homeownership education, or the establishment of minority business entrepreneurs, cooperatives, or micro-enterprises; organizational development, e.g., assistance to develop or improve board operations, management, and financial systems; instruction on how to develop and implement a strategic plan; instruction on how to access alternative funding sources to increase leveraging opportunities; staffing, e.g., hiring a person at intermediary or recipient level to provide technical assistance to recipients.

The program of financial and technical assistance that is to be provided, its delivery, and the measurability of the program's effectiveness will determine the merit of the application.

All applications will be competitively ranked with the applications providing the most improvement in capacity development and measurable activities being ranked the highest.

The narrative response must contain the following items. This list also contains the points for each item.

(1) Describe the nature of financial and technical assistance to be provided to the recipients and the activities that will be conducted to deliver the technical assistance; (10 Points)

(2) Explain how financial and technical assistance will develop or increase the recipient's capacity. Indicate whether a new function is being developed or if existing functions are being expanded or performed more effectively; (7 Points)

(3) Identify which RCDI purpose areas will be addressed with this assistance: Housing, community facilities, or community and economic development; (3 Points)

(4) Describe how the results of the technical assistance will be measured. What benchmarks will be used to measure effectiveness? Benchmarks should be specific and quantifiable; (5 Points)

(5) Demonstrate that it has conducted programs of financial and technical assistance and achieved measurable results in the areas of housing, community facilities, or community and economic development in rural areas. (10 Points)

(6) Provide the name, contact information, and the type and amount of the financial and technical assistance the applicant organization has provided to the following for the last 3 years: (5 Points)

(i) Nonprofit organizations in rural areas.

(ii) Low-income communities in rural areas (also include the type of entity, e.g., city government, town council, or village board).

(iii) Federally recognized tribes or any other culturally diverse organizations.

The applicant can receive up to 15 points for soundness of approach. The overall proposal will be considered under this criterion. Applicants must list the page numbers in the application that address these factors.

The maximum 15 points for this criterion will be based on the following:

(1) The proposal fits the objectives for which applications were invited, is clearly stated, and the applicant has defined how this proposal will be implemented. (7 Points)

(2) The ability to provide the proposed financial and technical assistance based on prior accomplishments. (6 Points)

(3) Cost effectiveness will be evaluated based on the budget in the application. The proposed grant amount and matching funds should be utilized to maximize capacity building at the recipient level. (2 Points)

Population is based on the average population from the 2010 census data for the communities in which the recipients are located. The physical address, not mailing address, for each recipient must be used for this criterion. Community is defined for scoring purposes as a city, town, village, county, parish, borough, or census-designated place where the recipient's office is physically located.

The applicant must submit the census data from the following Web site in the form of a printout of the applicable “Fact Sheet” to verify the population figures used for each recipient. The data can be accessed on the Internet at http://www.census.gov; click on “American FactFinder,” fill in field and click “Go”; the name and population data for each recipient location must be listed in this section.

The average population of the recipient locations will be used and will be scored as follows:

The average of the median household income for the communities where the recipients are physically located will determine the points awarded. The physical address, not mailing address, for each recipient must be used for this criterion. Applicants may compare the average recipient median household income to the State median household income or the national median household income, whichever yields the most points. The national median household income to be used is $51,914.

The applicant must submit the income data in the form of a printout of the applicable information from the following Web site to verify the income for each recipient.

The data being used is from the 2010 census. The data can be accessed on the Internet at http://www.census.gov; click on “American FactFinder,” fill in field and click “Go”; the name and income data for each recipient location must be listed in this section. Points will be awarded as follows:

(1) This criterion will be addressed by the Agency, not the applicant.

(2) Up to 10 points may be awarded by the Rural Development State Director to any application(s) that benefits their state regardless of whether the applicant is headquartered in their state. The total points awarded under this criterion, to all applications, will not exceed 10.

(3) When an intermediary submits an application that will benefit a state that is not the same as the state in which the intermediary is headquartered, it is the intermediary's responsibility to notify the State Director of the state which is receiving the benefit of their application. In such cases, State Directors awarding points to applications benefiting their state must notify the reviewing state in writing.

(4) Assignment of any points under this criterion requires a written justification and must be tied to and awarded based on how closely the application aligns with the Rural Development State Office's strategic goals.

This criterion will be addressed by the Agency, not the applicant. The Agency Administrator may award up to 20 points to any application to the extent that the application supports Strategic Goal One in the USDA Strategic Plan 2014-2018. This plan can be found at the following link: www.usda.gov/documents/usda-strategic-plan-fy-2014-2018.pdf.

Points may be awarded to applications that meet at least one of the following six criteria below (note: the maximum points can be given to any one of the following six criteria):

(1) The project is based in a census tract with poverty greater than or equal to 20%;

(2) The project is based in a community (village, town, city, or Census Designated Place) that is 75% CF grant eligible (rural community having a population of 5,000 or less and median household income (MHI) of 60% or less of the state's non-metropolitan median household income (NMHI);

(3) The project's service area includes at least one census tract with poverty greater than or equal to 20%;

(4) The project's service area includes at least one community (village, town, city, or Census Designated Place) that is 75% CF grant eligible (rural community having a population of 5,000 or less and MHI of 60% or less of the state's NMHI);

(5) The project serves a Strikeforce area (see link below).

(6) The project serves a Promise Zone (see link below) and eligible applicant provides evidence of partnership with a Promise Zone Lead Applicant organization.

For a listing of StrikeForce areas and designated Promise Zones, click on the following link: http://www.usda.gov/wps/portal/usda/usdahome?navid=STRIKE_FORCE, then click the StrikeForce or Promise Zones button from the left menu. For a mapping tool identifying census tracts with poverty greater than or equal to 20 percent, click on the following link: http://rdgdwe.sc.egov.usda.gov/rdpoverty/index.html

(a) Rating and ranking.

Applications will be rated and ranked on a national basis by a review panel based on the “Evaluation Criteria” contained in this Notice.

If there is a tied score after the applications have been rated and ranked, the tie will be resolved by reviewing the scores for “Building Capacity and Expertise” and the applicant with the highest score in that category will receive a higher ranking. If the scores for “Building Capacity and Expertise” are the same, the scores will be compared for the next criterion, in sequential order, until one highest score can be determined.

(b) Initial screening.

The Agency will screen each application to determine eligibility during the period immediately following the application deadline. Listed below are examples of reasons for rejection from previous funding rounds. The following reasons for rejection are not all inclusive; however, they represent the majority of the applications previously rejected.

(1) Recipients were not located in eligible rural areas based on the definition in this Notice.

(2) Applicants failed to provide evidence of recipient's status, i.e., documentation supporting nonprofit evidence of organization.

(3) Applicants failed to provide evidence of committed matching funds or matching funds were not committed for a period at least equal to the grant performance period.

(4) Application did not follow the RCDI structure with an intermediary and recipients.

(5) Recipients were not identified in the application.

(6) Intermediary did not provide evidence it had been incorporated for at least 3 years as the applicant entity.

(7) Applicants failed to address the “Evaluation Criteria.”

(8) The purpose of the proposal did not qualify as an eligible RCDI purpose.

(9) Inappropriate use of funds (e.g., construction or renovations).

(10) The applicant proposed providing financial and technical assistance directly to individuals.

(11) The application package was not received by closing date and time.

Within the limit of funds available for such purpose, the awarding official of the Agency shall make grants in ranked order to eligible applicants under the procedures set forth in this Notice.

Successful applicants will receive a selection letter by mail containing instructions on requirements necessary to proceed with execution and performance of the award. This letter is not an authorization to begin performance. In addition, selected applicants will be requested to verify that components of the application have not changed at the time of selection and on the award obligation date, if requested by the Agency.

The award is not approved until all information has been verified, and the awarding official of the Agency has signed Form RD 1940-1, “Request for Obligation of Funds” and the grant agreement.

Unsuccessful applicants will receive notification including appeal rights by mail.

Grantees will be required to do the following:

(a) Execute a Rural Community Development Initiative Grant Agreement.

(b) Execute Form RD 1940-1, “Request for Obligation of Funds.”

(c) Use Form SF 270, “Request for Advance or Reimbursement,” to request reimbursements. Provide receipts for expenditures, timesheets and any other documentation to support the request for reimbursement.

(d) Provide financial status and project performance reports on a quarterly basis starting with the first full quarter after the grant award.

(e) Maintain a financial management system that is acceptable to the Agency.

(f) Ensure that records are maintained to document all activities and expenditures utilizing RCDI grant funds and matching funds. Receipts for expenditures will be included in this documentation.

(g) Provide annual audits or management reports on Form RD 442-2, “Statement of Budget, Income and Equity,” and Form RD 442-3, “Balance Sheet,” depending on the amount of Federal funds expended and the outstanding balance.

(h) Collect and maintain data provided by recipients on race, sex, and national origin and ensure recipients collect and maintain the same data on beneficiaries. Race and ethnicity data will be collected in accordance with OMB Federal Register notice, “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” (62 FR 58782), October 30, 1997. Sex data will be collected in accordance with Title IX of the Education Amendments of 1972. These items should not be submitted with the application but should be available upon request by the Agency.

(i) Provide a final project performance report.

(j) Identify and report any association or relationship with Rural Development employees.

(k) The intermediary and recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 12250, and 7 CFR part 1901, subpart E.

(l) The grantee must comply with policies, guidance, and requirements as described in the following applicable Code of Federal Regulations, and any successor regulations:

(i) 2 CFR parts 200 and 400 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements For Federal Awards).

(ii) 2 CFR parts 417 and 180 (Government-wide Debarment and Suspension (Nonprocurement)

(m) Form AD-3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants,” Must be signed by corporate applicants who receive an award under this Notice.

After grant approval and through grant completion, you will be required to provide the following, as indicated in the Grant Agreement:

(a) SF-425, “Federal Financial Report” and SF-PPR, “Performance Progress Report” will be required on a quarterly basis (due 30 working days after each calendar quarter). The Performance Progress Report shall include the elements described in the grant agreement.

(b) Final financial and performance reports will be due 90 calendar days after the period of performance end date.

(c) A summary at the end of the final report with elements as described in the grant agreement to assist in documenting the annual performance goals of the RCDI program for Congress.

Contact the Rural Development office in the State where the applicant's headquarters is located. A list of Rural Development State Offices can be found via http://www.rd.usda.gov/files/RCDI_State_Contacts.pdf.

Survey on Ensuring Equal Opportunity for Applicants, OMB No. 1894-0010 (applies only to nonprofit applicants only—submission is optional).

No reimbursement will be made for any funds expended prior to execution of the RCDI Grant Agreement unless the intermediary is a non-profit or educational entity and has requested and received written Agency approval of the costs prior to the actual expenditure.

This exception is applicable for up to 90 days prior to grant closing and only applies to grantees that have received written approval but have not executed the RCDI Grant Agreement.

The Agency cannot retroactively approve reimbursement for expenditures prior to execution of the RCDI Grant Agreement.

Agency—The Rural Housing Service (RHS) or its successor.

Beneficiary—Entities or individuals that receive benefits from assistance provided by the recipient.

Capacity—The ability of a recipient to implement housing, community facilities, or community and economic development projects.

Conflict of interest—A situation in which a person or entity has competing personal, professional, or financial interests that make it difficult for the person or business to act impartially. Regarding use of both grant and matching funds, Federal procurement standards prohibit transactions that involve a real or apparent conflict of interest for owners, employees, officers, agents, or their immediate family members having a financial or other interest in the outcome of the project; or that restrict open and free competition for unrestrained trade. Specifically, project funds may not be used for services or goods going to, or coming from, a person or entity with a real or apparent conflict of interest, including, but not limited to, owner(s) and their immediate family members. An example of conflict of interest occurs when the grantee's employees, board of directors, or the immediate family of either, have the appearance of a professional or personal financial interest in the recipients receiving the benefits or services of the grant.

Federally recognized tribes—Tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs, based on the most recent notice in the Federal Register published by the Bureau of Indian Affairs. Tribally Designated Housing Entities are eligible RCDI recipients.

Financial assistance—Funds, not to exceed $10,000 per award, used by the intermediary to purchase supplies and equipment to build the recipient's capacity.

Funds—The RCDI grant and matching money.

Intermediary—A qualified private, nonprofit (including faith-based and community organizations and philanthropic organizations), or public (including tribal) organization that provides financial and technical assistance to multiple recipients.

Low-income rural community—An authority, district, economic development authority, regional council, or unit of government representing an incorporated city, town, village, county, township, parish, or borough whose income is at or below 80 percent of either the state or national Median Household Income as measured by the 2010 Census.

Matching funds—Cash or confirmed funding commitments. Matching funds must be at least equal to the grant amount and committed for a period of not less than the grant performance period.

Recipient—The entity that receives the financial and technical assistance from the Intermediary. The recipient must be a nonprofit community-based housing and development organization, a low-income rural community or a federally recognized Tribe.

Rural and rural area—Any area other than (i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) the urbanized area contiguous and adjacent to such city or town.

Technical assistance—Skilled help in improving the recipient's abilities in the areas of housing, community facilities, or community and economic development.

The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at http://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form.

You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email at [email protected].

Individuals who are deaf, hard of hearing, or have speech disabilities and you wish to file either an EEO or program complaint please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

Persons with disabilities who wish to file a program complaint, please see information above on how to contact us by mail directly or by email.

If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

All adverse determinations regarding applicant eligibility and the awarding of points as part of the selection process are appealable pursuant to 7 CFR part 11. Instructions on the appeal process will be provided at the time an applicant is notified of the adverse decision.

In the event the applicant is awarded a grant that is less than the amount requested, the applicant will be required to modify its application to conform to the reduced amount before execution of the grant agreement. The Agency reserves the right to reduce or withdraw the award if acceptable modifications are not submitted by the awardee within 15 working days from the date the request for modification is made. Any modifications must be within the scope of the original application.

There will be five scoping meetings with the following dates/times/locations:

1. Monday, June 1, 2015, 6 p.m., Hyatt Place Long Island/East End, 451 E. Main St., Riverhead, NY 11901; telephone: (631) 208-0002.

2. Tuesday, June 2, 2015, 6 p.m., Congress Hall Hotel, 251 Beach Ave., Cape May, NJ 08204; telephone: (888) 944-1816.

3. Tuesday, June 16, 2015, 6 p.m., Dare County Administration Building, Commissioners Meeting Room, 954 Marshall C. Collins Drive, Manteo, NC 27954; telephone: (252) 475-5700.

4. Wednesday, June 17, 2015, 6 p.m., Hilton Virginia Beach Oceanfront, 3001 Atlantic Ave., Virginia Beach, VA 23451; telephone: (757) 213-3000.

5. Thursday, June 18, 2015, 5 p.m., Ocean City Chamber of Commerce, Eunice Q. Sorin Visitor & Conference Center, 12320 Ocean Gateway, Ocean City, MD 21842; telephone: (410) 213-0552.

The South Atlantic Fishery Management Council (SAFMC) manages blueline tilefish south of Virginia, but there is currently (as of May 11, 2015) no management of blueline tilefish in Federal waters north of North Carolina. Virginia and Maryland have instituted regulations for state waters, but catches in any Federal waters north of North Carolina may be landed from Delaware north without restriction. Blueline tilefish are susceptible to overfishing due to their biology (relatively long-lived, sedentary, slow growing, and late maturing) so the Council is considering developing management measures. These potential measures could be considered via an amendment to the Council's golden tilefish FMP, or a new FMP for blueline tilefish and/or other deep-water fish such as sand tilefish, snowy grouper, and black-bellied rosefish. Management measures could include a definition of the management unit, as well as acceptable biological catches, annual catch limits, trip limits, essential fish habitat, etc.

For waters north of North Carolina, in response to recent catch increases the Council has already requested that NMFS take emergency action to implement a 300 pound (whole weight) commercial trip limit and a seven fish per-person recreational possession limit. This request was the result of a February 25, 2015 Council Meeting, the details of which may be found at: http://www.mafmc.org/briefing/2015/february-2014-blueline-tilefish-webinar-meeting. These emergency measures are intended to prevent depletion of blueline tilefish off the Mid-Atlantic on an interim basis (for a maximum of 360 days) while the Council develops long-term management measures through the normal rulemaking process. NMFS has not decided whether and/or how to respond to the Council's request.

Through the SAFMC's Amendment 32 (http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2014/am32/), NMFS implemented a 112 pound (whole weight) commercial trip limit and a one fish per boat per trip recreational trip limit (with a limited season) for the South Atlantic management unit that extends to waters off the North Carolina/Virginia border. The SAFMC has also requested that the Amendment 32 limits be extended north for all Federal waters off the U.S. East Coast via an emergency rule. The outcome of the Mid-Atlantic Fishery Management Council's and SAFMC's emergency requests was not known at the time this notice was submitted. However, because any emergency rule can only be in effect for a maximum of 360 days, the Council is moving ahead with scoping for an amendment to develop long-term management and conservation measures for blueline tilefish off the Mid-Atlantic through the normal rule-making process.

This is the first and best opportunity for members of the public to raise concerns related to the scope of issues that will be considered in the Amendment. The Council needs your input both to identify management issues and develop effective alternatives. Your comments early in the amendment development process will help us address issues of public concern in a thorough and appropriate manner. Comment topics could include the scope of issues in the amendment, concerns and potential alternatives related to blueline tilefish management, and the appropriate level of environmental analysis. Comments can be made during the scoping hearings as detailed above or in writing once the official NOI publishes. After scoping, the Council plans to develop a range of management alternatives to be considered and prepare a draft Environmental Impact Statement (DEIS) and/or other appropriate environmental analyses. These analyses will consider the impacts of the management alternatives being considered. Following a review of any comments on the draft analyses, the Council will then choose preferred management measures for submission with a Final EIS or Environmental Assessment to the Secretary of Commerce for publishing of a proposed and then final rule, both of which have additional comment periods.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

Statutory Authority: Fish and Wildlife Coordination Act 16 U.S.C. 661, as amended by the Reorganization Plan No. 4 of 1970; Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 16 U.S.C. 1891a; and Endangered Species Act, 16 U.S.C. 1535.

Catalog of Federal Domestic Assistance (CFDA): 11.463.

As noted above, the principal objective of the Coastal Ecosystem Resiliency Grants Program is to implement projects that use a proactive approach to improve or restore coastal habitat to: (1) Strengthen the resilience of our marine and coastal ecosystems to decrease the vulnerability of communities to extreme weather; and (2) support sustainable fisheries and contribute to the recovery of protected resources. Applications should demonstrate how the proposed project will enhance the resiliency of marine and coastal ecosystems to the impacts of extreme weather and changing environmental conditions thereby increasing community resilience and providing habitat to threatened and endangered species listed under the Endangered Species Act (hereafter, Listed Species), fish stocks managed under the Magnuson-Stevens Fishery Conservation and Management Act (hereafter, Managed Species), or other marine and coastal species with a nexus to NMFS management (such as through the Atlantic Coastal Fisheries Cooperative Management Act, Atlantic Striped Bass Conservation Act, Marine Mammal Protection Act, Coral Reef Conservation Act, or NMFS Species of Concern). Successful applications will (1) identify an issue limiting the resiliency of marine or coastal ecosystems to extreme weather events or changing environmental conditions at the proposed project site; (2) identify the proposed project's outcome goal(s) and describe in detail the actions and on-the-ground restoration to be undertaken to enhance resiliency and reduce risk and; (3) describe the measurable impact on the ecosystem, target species, and surrounding coastal communities to benefit from the proposed habitat restoration project. Applications selected for funding through this solicitation will primarily be funded through cooperative agreements.

Section IV.B. of the FFO describes the suggested information to include in the application narrative. Supplemental Guidance regarding application writing, a checklist to submit a complete application, and FAQs about this solicitation and the Regional Coastal Resilience Grants Program being administered by NOAA's National Ocean Service can be found at www.restoration.noaa.gov/partnerresources and www.habitat.noaa.gov/funding/coastalresiliency.html, respectively. Prospective applicants are strongly encouraged to contact NOAA Restoration Center staff before submitting an application to discuss their NOAA Coastal Ecosystem Resiliency project ideas with respect to technical merit and NOAA's objectives. NOAA will make every effort to respond to prospective applicants on a first come, first served basis. These discussions will not include review of draft proposals or site visits during the application period.

This funding opportunity is one of two FFOs being administered by NOAA to build coastal resilience. The companion competition, Regional Coastal Resilience Grants Program, is being administered by NOAA's National Ocean Service to undertake activities that build resilience of coastal regions, communities, and economic sectors to the negative impacts from extreme weather events, climate hazards, and changing ocean conditions. The Regional Coastal Resilience Grants FFO is expected to be posted in May of 2015 and may be found on www.grants.gov.

Total anticipated funding for all awards is up to $4 million, subject to the availability of appropriations. NOAA anticipates typical awards will range from $500,000 to $1 million. NOAA will not accept applications requesting less than $200,000 or more than $2 million in Federal funds from NOAA under this solicitation and the exact amount of funds that may be awarded will be determined in pre-award negotiations between the applicant and NOAA. Any funds provided to successful applicants will be at the discretion of the NOAA Office of Habitat Conservation and the NOAA Grants Management Division (GMD). In no event will NOAA or the Department of Commerce be responsible for application preparation costs if programs fail to receive funding or are cancelled because of other agency priorities. Publication of this notice does not oblige NOAA to award any specific project or to obligate any available funds and there is no guarantee that sufficient funds will be available to make awards for all top-ranked applications. The number of awards to be made as a result of this solicitation will depend on the number of eligible applications received, the amount of funds requested for coastal ecosystem resiliency projects, and the merit and ranking of the applications.

Eligible applicants are institutions of higher education, non-profits, commercial (for profit) organizations, U.S. territories, and state, local and Native American tribal governments. Applications from individuals, Federal agencies, or employees of federal agencies will not be considered. Individuals and Federal agencies are strongly encouraged to work with states, non-governmental organizations, municipal and county governments, and others that are eligible to apply. In addition, NOAA will only award funds to projects that receive and demonstrate approval of the State's Governor to implement the proposed project as evidenced by a letter or other form of documented correspondence by July 31, 2015. Funds awarded under this program must be matched with non-federal funds (cash or in-kind services) at a 2:1 ratio of Federal-to-non-federal contributions. Applications selected for funding will be bound by the percentage of cost sharing reflected in the award document signed by the NOAA Grants Officer.

The general evaluation criteria and selection factors that apply to full applications to this funding opportunity are summarized below. Further information about the evaluation criteria and selection factors can be found in the full FFO announcement in www.Grants.gov (Funding Opportunity Number NOAA-NMFS-HCPO-2015-2004410).

Reviewers will assign scores to applications ranging from 0 to 100 points based on the following five standard NOAA evaluation criteria and respective weights specified below. Applications that best address these criteria will be most competitive.

1. Importance and Applicability (35 points): This criterion ascertains whether there is intrinsic value in the proposed work and/or relevance to NOAA, federal, regional, state or local activities.

2. Technical/Scientific Merit (25 points): This criterion assesses whether the project activity or approach is technically sound, if the methods are appropriate, and whether there are clear goals and objectives.

3. Overall Qualifications of Applicant (10 points): This criterion ascertains whether the applicant possesses the necessary education, experience, training, facilities, and administrative resources to support the proposed award.

4. Project Costs (20 points): This criterion evaluates the budget to determine if it is realistic and commensurate with the project's needs and time-frame.

5. Outreach and Education (10 points): NOAA assesses whether the award can deliver a focused and effective education and outreach strategy regarding NOAA's mission to protect the Nation's natural resources.

Applications will undergo an initial administrative review to determine if they are eligible and complete, per Section III of the full FFO posted at www.Grants.gov. Eligible applications will undergo a technical review, ranking, and selection process by three or more merit reviewers to determine how well they meet the program priorities and evaluation criteria of this solicitation and the mission and goals of NOAA. After the technical review, a panel may meet to make final recommendations to the Selecting Official (SO) regarding which applications best meet the program objectives and priorities (see Sections I.A. and I.B. of the full FFO). The SO anticipates recommending applications for funding in rank order unless an application is justified to be selected out of rank order based upon one or more of the following selection factors: (1) Availability of funding; (2) Balance/distribution of funds: (a) By geographic area, (b) by type of institutions, (c) by type of partners, (d) by research areas; or (e) by project types; (3) Whether the project duplicates other projects funded or considered for funding by NOAA or other federal agencies; (4) Program priorities and policy factors set out in section I.A. and I.B. of the FFO; (5) An applicant's prior award performance; (6) Partnerships and/or participation of targeted groups; and (7) Adequacy of information necessary for NOAA staff to make a NEPA determination and draft necessary documentation before recommendations for funding are made to the NOAA GMD. Hence, awards may not necessarily be made to the highest-scored applications. In addition, as noted above, applicants must provide NOAA with documentation of approval from the State Governor for the proposed project by July 31, 2015 in order to receive an award. Unsuccessful applicants will be notified that their application was not among those recommended for funding. Unsuccessful applications submitted in hard copy will be kept on file in accordance with NOAA records requirements and then destroyed.

Applications submitted under the FFO are subject to the provisions of Executive Order 12372, “Intergovernmental Review of Programs.” Any applicant submitting an application for funding is required to complete item 16 on Form SF-424 regarding clearance by the State Single Point of Contact (SPOC). To find out about and comply with a State's process under Executive Order 12372, the names, addresses and phone numbers of participating SPOC's are listed on the Office of Management and Budget's home page at: http://www.whitehouse.gov/omb/grants_spoc.

In no event will NOAA or the Department of Commerce be responsible for proposal preparation costs if these programs fail to receive funding or are cancelled because of other agency priorities. Publication of this announcement does not oblige NOAA to award any specific project or to obligate any available funds.

NOAA must analyze the potential environmental impacts, as required by the National Environmental Policy Act (NEPA), for applicant projects or proposals which are seeking NOAA federal funding opportunities. Consequently, as part of an applicant's package, and under their description of their program activities, applicants are required to provide detailed information on the activities to be conducted, locations, sites, species and habitat to be affected, possible construction activities, and any environmental concerns that may exist. Applicants may also be requested to assist NOAA in drafting of an environmental assessment, or in identifying and implementing feasible measures to reduce or avoid any identified adverse environmental impacts of their proposal. The failure to do so shall be grounds for not selecting an application. Further details regarding NOAA's compliance with NEPA can be found in the full Federal Funding Opportunity.

The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the Federal Register notice of December 30, 2014 (79 FR 78390) are applicable to this solicitation.

This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424, 424A, 424B, and SF-LLL and CD-346 has been approved by the Office of Management and Budget (OMB) under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046, and 0605-0001. Notwithstanding any other provision of law, no person is required to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

This notice has been determined to be not significant for purposes of Executive Order 12866.

It has been determined that this notice does not contain policies with implications as that term is defined in Executive Order 13132.

Prior notices and an opportunity for public comment are not required by the Administrative Procedure Act or any other law for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements for the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

On December 1, 2014, NMFS received an application from Hilcorp for the taking of marine mammals incidental to shallow geohazard surveys in the Beaufort Sea. After receiving NMFS comments, Hilcorp submitted a revised IHA application on January 5, 2015. In addition, Hilcorp submitted a 4MP on January 21, 2015. NMFS determined that the application was adequate and complete on February 9, 2015.

The proposed activity would occur between July 1 and September 30, 2015. The actual survey is expected to be complete in 45 days, including weather and equipment downtime. Underwater noises generated from the sonar used for the survey are likely to result Level B harassment of individuals of 6 species of marine mammals.

Hilcorp plans to conduct a shallow geohazard survey and Strudel Scour survey with a transition zone component on state lands, and in federal and state waters of Foggy Island Bay in the Beaufort Sea during the open water season of 2015. The scope of this request is limited to the activities that will be conducted during the 2015 open water evaluation of the proposed Liberty field development.

Hilcorp seeks incidental harassment authorization for the period July 1 to September 30, 2015. The survey is expected to take approximately 45 days to complete, including weather and equipment downtime. About 25% of downtime is included in this total, so the actual number of days that equipment are expected to be operating is estimated at 34, based on a continuous 24-hr. operation.

The project area of the proposed Liberty shallow geohazard survey lies within Foggy Island Bay as shown in Figure 1 of Hilcorp's IHA application. The project area is 2.5 mi2 in water depths ranging from 3 to 20 ft.

The proposed sonar survey vessel (M/V Sidewinder or equivalent) is about 40 × 14 feet in size. The sub-bottom profilers and magnetometer will be deployed from the vessel. The echosounder and side scan sonar will be hull-mounted. No equipment will be placed on the sea floor as part of survey activities. Because of the extremely shallow project area, additional small vessel(s) may be utilized to safely extend vessel operations for data collection.

The total planned survey lines are approximately 300 miles, not including turns and cross-lines. Data will be acquired along the subsea pipeline corridor area using the single-beam or multibeam echosounder, side scan sonar, sub-bottom profilers, and the magnetometer. Because of the shallow nature of the project area and small size of the vessel, systems will be towed in optimal groupings that best facilitate safe operations and data quality. As necessary, a small vessel may be used to extend data collection into shallow waters. Planned survey lines will be designed to acquire 150% side scan sonar data coverage or as mandated, with line spacing dependent upon water depth. A 300 m corridor around the centerline of the proposed pipeline area will be covered.

A single-beam or multibeam echosounder and side scan sonar will be used to obtain high accuracy information regarding bathymetry of the seafloor. For accurate object detection, a side scan sonar survey is required to complement a multibeam echosounder survey.

The proposed multibeam echosounder operates at an rms source level of a maximum of 220 dB re 1 μPa @1 m. The multibeam echosounder emits high frequency (240 kHz) energy in a fan-shaped pattern of equidistant or equiangular beam spacing (Table 1). The beam width of the emitted sound energy in the along-track direction is 1.5 degrees, while the across track beam width is 1.8 degrees. The maximum ping rate of the multibeam echosounder is 40 Hz.

The proposed single-beam echosounder operates at an rms source level of approximately 220 dB re 1 μPa @1 m (Table 1). The transducer selected uses a frequency of 210 kHz and has a ping rate of up to 20 Hz. The transducer's beam width is approximately 3 degrees.

The proposed side scan sonar system will operate at about 400 kHz and 900 kHz. The rms source level is 215 dB re 1μPa @1 m. The sound energy is emitted in a narrow fan-shaped pattern, with a horizontal beam width of 0.45 degrees for 400 kHz and 0.25 degrees at 900 kHz, with a vertical beam width of 50 degrees (Table 1). The maximum ping rate is 75 Hz.

The proposed high-resolution sub-bottom profiler operates at an rms source level of 210db re 1 μPa @1 m. The proposed system emits energy in the frequency bands of 2 to 24 kHz. The beam width is 15 to 24 degrees (Table 1). Typical pulse rate is between 3 and 10 Hz.

The proposed low-resolution sub-bottom profiler operates at an rms source level of 212db re 1 μPa @1 m. This secondary sub-bottom profiler will be utilized as necessary to increase sub-bottom profile penetration. The proposed system emits energy in the frequency bands of 1 to 4 kHz.

The Beaufort Sea supports a diverse assemblage of marine mammals. Table 2 lists the 12 marine mammal species under NMFS jurisdiction with confirmed or possible occurrence in the proposed project area.

The highlighted (grayed out) species in Table 2 are so rarely sighted in the proposed project area that take is unlikely. Minke whales are relatively common in the Bering and southern Chukchi Seas and have recently also been sighted in the northeastern Chukchi Sea (Aerts et al., 2013; Clarke et al., 2013). Minke whales are rare in the Beaufort Sea. They have not been reported in the Beaufort Sea during the Bowhead Whale Aerial Survey Project/Aerial Surveys of Arctic Marine Mammals (BWASP/ASAMM) surveys (Clarke et al., 2011, 2012; 2013; Monnet and Treacy, 2005), and there was only one observation in 2007 during vessel-based surveys in the region (Funk et al., 2010). Humpback whales have not generally been found in the Arctic Ocean. However, subsistence hunters have spotted humpback whales in low numbers around Barrow, and there have been several confirmed sightings of humpback whales in the northeastern Chukchi Sea in recent years (Aerts et al., 2013; Clarke et al., 2013). The first confirmed sighting of a humpback whale in the Beaufort Sea was recorded in August 2007 (Hashagen et al., 2009), when a cow and calf were observed 54 mi east of Point Barrow. No additional sightings have been documented in the Beaufort Sea. Narwhal are common in the waters of northern Canada, west Greenland, and in the European Arctic, but rarely occur in the Beaufort Sea (COSEWIC, 2004). Only a handful of sightings have occurred in Alaskan waters (Allen and Angliss, 2013). These three species are not considered further in this proposed IHA notice. Both the walrus and the polar bear could occur in the U.S. Beaufort Sea; however, these species are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered further in this Notice of Proposed IHA.

The Beaufort Sea is a main corridor of the bowhead whale migration route. The main migration periods occur in spring from April to June and in fall from late August/early September through October to early November. During the fall migration, several locations in the U.S. Beaufort Sea serve as feeding grounds for bowhead whales. Small numbers of bowhead whales that remain in the U.S. Arctic Ocean during summer also feed in these areas. The U.S. Beaufort Sea is not a main feeding or calving area for any other cetacean species. Ringed seals breed and pup in the Beaufort Sea; however, this does not occur during the summer or early fall. Further information on the biology and local distribution of these species can be found in Hilcorp's application (see ADDRESSES) and the NMFS Marine Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/pr/species/.

This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., sonar sources and vessel movement) have been observed to or are thought to impact marine mammals. This section may include a discussion of known effects that do not rise to the level of an MMPA take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). The discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take. This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented or how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound level describes the sound's intensity and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. The logarithmic nature of the scale means that each 10-dB increase is a 10-fold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power). A 10-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder, however. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 µPa” and “re: 1 µPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part, because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.

When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

• Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;

• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;

• Phocid pinnipeds in water: Functional hearing is estimated to occur between approximately 75 Hz and 100 kHz; and

• Otariid pinnipeds in water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.

As mentioned previously in this document, six marine mammal species (three cetaceans and three phocid pinnipeds) may occur in the proposed shallow hazard survey area. Of the three cetacean species likely to occur in the proposed project area and for which take is requested, two are classified as low-frequency cetaceans (i.e., bowhead and gray whales), the beluga whale is classified as mid-frequency cetacean (Southall et al., 2007). A species functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

Although the analysis of impacts of underwater sound on marine mammals described below heavily based on studies from seismic airgun noises, Hilcorp's proposed shallow geohazard survey does not plan to use airguns. Therefore, the potential impacts to marine mammals are expected to be much lower. The reason that the analysis includes airgun impact research is because there are few studies on impacts of marine mammals from marine surveys conducted by sonar equipment.

Numerous studies have shown that underwater sounds from industry activities are often readily detectable by marine mammals in the water at distances of many kilometers. Numerous studies have also shown that marine mammals at distances more than a few kilometers away often show no apparent response to industry activities of various types (Miller et al., 2005; Bain and Williams, 2006). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound such as airgun pulses or vessels under some conditions, at other times mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995). Weir (2008) observed marine mammal responses to seismic pulses from a 24 airgun array firing a total volume of either 5,085 in3 or 3,147 in3 in Angolan waters between August 2004 and May 2005. Weir recorded a total of 207 sightings of humpback whales (n = 66), sperm whales (n = 124), and Atlantic spotted dolphins (n = 17) and reported that there were no significant differences in encounter rates (sightings/hr) for humpback and sperm whales according to the airgun array's operational status (i.e., active versus silent). However, the current geohazard survey will not use airguns. In general, pinnipeds and small odontocetes seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel noise does not seem to strongly affect pinnipeds that are already in the water. Richardson et al. (1995) went on to explain that seals on haul-outs sometimes respond strongly to the presence of vessels and at other times appear to show considerable tolerance of vessels.

Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000). Masking, or auditory interference, generally occurs when sounds in the environment are louder than, and of a similar frequency as, auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals that are trying to receive acoustic information about their environment, including sounds from other members of their species, predators, prey, and sounds that allow them to orient in their environment. Masking these acoustic signals can disturb the behavior of individual animals, groups of animals, or entire populations.

Masking occurs when anthropogenic sounds and signals (that the animal utilizes) overlap at both spectral and temporal scales. For the sonar sound generated from the proposed shallow geohazard survey, sound will consist of broadband (2-24 kHz) pulses with extremely short durations (less than one second). There is little concern regarding masking near the sound source due to the brief duration of these pulses and relatively longer silence between the pulses. However, at long distances (over tens of kilometers away), due to multipath propagation and reverberation, the durations of airgun pulses can be “stretched” to seconds with long decays (Madsen et al., 2006), although the intensity of the sound is greatly reduced.

Marine mammals may behaviorally react when exposed to anthropogenic sound. These behavioral reactions are often shown as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification have the potential to be biologically significant if the change affects growth, survival, or reproduction. Examples of significant behavioral modifications include:

• Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);

• Habitat abandonment due to loss of desirable acoustic environment; and

• Cessation of feeding or social interaction.

The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography, current activity, reproductive state) and is also difficult to predict (Gordon et al., 2004; Southall et al., 2007; Ellison et al., 2011).

Mysticetes: Baleen whales generally tend to avoid operating airguns, but avoidance radii are quite variable. Whales are often reported to show no overt reactions to pulses from large arrays of airguns at distances beyond a few kilometers, even though the airgun pulses remain well above ambient noise levels out to much greater distances (Miller et al., 2005). However, baleen whales exposed to strong noise pulses often react by deviating from their normal migration route (Richardson et al., 1999). Migrating gray and bowhead whales were observed avoiding the sound source by displacing their migration route to varying degrees but within the natural boundaries of the migration corridors (Schick and Urban, 2000; Richardson et al., 1999). Baleen whale responses to pulsed sound however may depend on the type of activity in which the whales are engaged. Some evidence suggests that feeding bowhead whales may be more tolerant of underwater sound than migrating bowheads (Miller et al., 2005; Lyons et al., 2009; Christie et al., 2010).

Results of studies of gray, bowhead, and humpback whales have determined that received levels of pulses in the 160-170 dB re 1 µPa rms range seem to cause obvious avoidance behavior in a substantial fraction of the animals exposed. In many areas, seismic pulses from large arrays of airguns diminish to those levels at distances ranging from 2.8-9 mi (4.5-14.5 km) from the source. Baleen whales within those distances may show avoidance or other strong disturbance reactions to the airgun array. Subtle behavioral changes sometimes become evident at somewhat lower received levels, and recent studies have shown that some species of baleen whales, notably bowhead and humpback whales, at times show strong avoidance at received levels lower than 160-170 dB re 1 μPa rms. Bowhead whales migrating west across the Alaskan Beaufort Sea in autumn, in particular, are unusually responsive, with avoidance occurring out to distances of 12.4-18.6 mi (20-30 km) from a medium-sized airgun source (Miller et al., 1999; Richardson et al., 1999). However, more recent research on bowhead whales (Miller et al., 2005) corroborates earlier evidence that, during the summer feeding season, bowheads are not as sensitive to seismic sources. In summer, bowheads typically begin to show avoidance reactions at a received level of about 160-170 dB re 1 µPa rms (Richardson et al., 1986; Ljungblad et al., 1988; Miller et al., 2005).

Malme et al. (1986) studied the responses of feeding eastern gray whales to pulses from a single 100 in3 airgun off St. Lawrence Island in the northern Bering Sea. They estimated, based on small sample sizes, that 50% of feeding gray whales ceased feeding at an average received pressure level of 173 dB re 1 µPa on an (approximate) rms basis, and that 10% of feeding whales interrupted feeding at received levels of 163 dB. Those findings were generally consistent with the results of experiments conducted on larger numbers of gray whales that were migrating along the California coast and on observations of the distribution of feeding Western Pacific gray whales off Sakhalin Island, Russia, during a seismic survey (Yazvenko et al., 2007).

Data on short-term reactions (or lack of reactions) of cetaceans to impulsive noises do not necessarily provide information about long-term effects. While it is not certain whether impulsive noises affect reproductive rate or distribution and habitat use in subsequent days or years, certain species have continued to use areas ensonified by airguns and have continued to increase in number despite successive years of anthropogenic activity in the area. Gray whales continued to migrate annually along the west coast of North America despite intermittent seismic exploration and much ship traffic in that area for decades (Appendix A in Malme et al., 1984). Bowhead whales continued to travel to the eastern Beaufort Sea each summer despite seismic exploration in their summer and autumn range for many years (Richardson et al., 1987). Populations of both gray whales and bowhead whales grew substantially during this time. In any event, the proposed survey will occur in summer (July through late August) when most bowhead whales are commonly feeding in the Mackenzie River Delta, Canada.

Odontocetes: Few systematic data are available describing reactions of toothed whales to noise pulses. However, systematic work on sperm whales is underway, and there is an increasing amount of information about responses of various odontocetes to seismic surveys based on monitoring studies (e.g., Stone, 2003). Miller et al. (2009) conducted at-sea experiments where reactions of sperm whales were monitored through the use of controlled sound exposure experiments from large airgun arrays consisting of 20-guns and 31-guns. Of 8 sperm whales observed, none changed their behavior when exposed to either a ramp-up at 4-8 mi (7-13 km) or full array exposures at 0.6-8 mi (1-13 km).

Seismic operators and marine mammal observers sometimes see dolphins and other small toothed whales near operating airgun arrays, but, in general, there seems to be a tendency for most delphinids to show some limited avoidance of seismic vessels operating large airgun systems. However, some dolphins seem to be attracted to the seismic vessel and floats, and some ride the bow wave of the seismic vessel even when large arrays of airguns are firing. Nonetheless, there have been indications that small toothed whales sometimes move away or maintain a somewhat greater distance from the vessel when a large array of airguns is operating than when it is silent (e.g., 1998; Stone, 2003). The beluga may be a species that (at least in certain geographic areas) shows long-distance avoidance of seismic vessels. Aerial surveys during seismic operations in the southeastern Beaufort Sea recorded much lower sighting rates of beluga whales within 10-20 km (6.2-12.4 mi) of an active seismic vessel. These results were consistent with the low number of beluga sightings reported by observers aboard the seismic vessel, suggesting that some belugas might have been avoiding the seismic operations at distances of 10-20 km (6.2-12.4 mi) (Miller et al., 2005).

Captive bottlenose dolphins and (of more relevance in this project) beluga whales exhibit changes in behavior when exposed to strong pulsed sounds similar in duration to those typically used in seismic surveys (Finneran et al., 2002, 2005). However, the animals tolerated high received levels of sound (pk-pk level >200 dB re 1 μPa) before exhibiting aversive behaviors.

Observers stationed on seismic vessels operating off the United Kingdom from 1997-2000 have provided data on the occurrence and behavior of various toothed whales exposed to seismic pulses (Stone, 2003; Gordon et al., 2004). Killer whales were found to be significantly farther from large airgun arrays during periods of shooting compared with periods of no shooting. The displacement of the median distance from the array was approximately 0.5 km (0.3 mi) or more. Killer whales also appear to be more tolerant of seismic shooting in deeper water.

Reactions of toothed whales to large arrays of airguns are variable and, at least for delphinids, seem to be confined to a smaller radius than has been observed for mysticetes. However, based on the limited existing evidence, belugas should not be grouped with delphinids in the “less responsive” category.

Pinnipeds: Pinnipeds are not likely to show a strong avoidance reaction to the airgun sources proposed for use. Visual monitoring from seismic vessels has shown only slight (if any) avoidance of airguns by pinnipeds and only slight (if any) changes in behavior. Monitoring work in the Alaskan Beaufort Sea during 1996-2001 provided considerable information regarding the behavior of Arctic ice seals exposed to seismic pulses (Harris et al., 2001; Moulton and Lawson, 2002). These seismic projects usually involved arrays of 6 to 16 airguns with total volumes of 560 to 1,500 in3. The combined results suggest that some seals avoid the immediate area around seismic vessels. In most survey years, ringed seal sightings tended to be farther away from the seismic vessel when the airguns were operating than when they were not (Moulton and Lawson, 2002). However, these avoidance movements were relatively small, on the order of 100 m (328 ft) to a few hundreds of meters, and many seals remained within 100-200 m (328-656 ft) of the trackline as the operating airgun array passed by. Seal sighting rates at the water surface were lower during airgun array operations than during no-airgun periods in each survey year except 1997. Similarly, seals are often very tolerant of pulsed sounds from seal-scaring devices (Richardson et al., 1995). However, initial telemetry work suggests that avoidance and other behavioral reactions by two other species of seals to small airgun sources may at times be stronger than evident to date from visual studies of pinniped reactions to airguns (Thompson et al., 1998). Even if reactions of the species occurring in the present study area are as strong as those evident in the telemetry study, reactions are expected to be confined to relatively small distances and durations, with no long-term effects on pinniped individuals or populations.

When animals exhibit reduced hearing sensitivity (i.e., sounds must be louder for an animal to detect them) following exposure to an intense sound or sound for long duration, it is referred to as a noise-induced threshold shift (TS). An animal can experience temporary threshold shift (TTS) or permanent threshold shift (PTS). TTS can last from minutes or hours to days (i.e., there is complete recovery), can occur in specific frequency ranges (i.e., an animal might only have a temporary loss of hearing sensitivity between the frequencies of 1 and 10 kHz), and can be of varying amounts (for example, an animal's hearing sensitivity might be reduced initially by only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is possible. PTS can also occur in a specific frequency range and amount as mentioned above for TTS.

The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity, modification of the chemical environment within the sensory cells, residual muscular activity in the middle ear, displacement of certain inner ear membranes, increased blood flow, and post-stimulatory reduction in both efferent and sensory neural output (Southall et al., 2007). The amplitude, duration, frequency, temporal pattern, and energy distribution of sound exposure all can affect the amount of associated TS and the frequency range in which it occurs. As amplitude and duration of sound exposure increase, so, generally, does the amount of TS, along with the recovery time. For intermittent sounds, less TS could occur than compared to a continuous exposure with the same energy (some recovery could occur between intermittent exposures depending on the duty cycle between sounds) (Ward, 1997). For example, one short but loud (higher SPL) sound exposure may induce the same impairment as one longer but softer sound, which in turn may cause more impairment than a series of several intermittent softer sounds with the same total energy (Ward, 1997). Additionally, though TTS is temporary, prolonged exposure to sounds strong enough to elicit TTS, or shorter-term exposure to sound levels well above the TTS threshold, can cause PTS, at least in terrestrial mammals.

PTS is considered auditory injury (Southall et al., 2007). Irreparable damage to the inner or outer cochlear hair cells may cause PTS; however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007).

Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in nonhuman animals. For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran et al., 2000, 2002, 2003, 2005, 2007; Finneran and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009; Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et al., 2006; Nachtigall et al., 2003, 2004). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak et al., 2005; Kastelein et al., 2012b).

Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. Also, depending on the degree and frequency range, the effects of PTS on an animal could range in severity, although it is considered generally more serious because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so we can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

Non-auditory physical effects might occur in marine mammals exposed to strong underwater sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. Some marine mammal species (i.e., beaked whales) may be especially susceptible to injury and/or stranding when exposed to strong pulsed sounds.

Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg, 2000; Sapolsky et al., 2005; Seyle, 1950). Once an animal's central nervous system perceives a threat, it mounts a biological response or defense that consists of a combination of the four general biological defense responses: behavioral responses; autonomic nervous system responses; neuroendocrine responses; or immune responses.

In the case of many stressors, an animal's first and most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response, which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effects on an animal's welfare.

An animal's third line of defense to stressors involves its neuroendocrine or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987), altered metabolism (Elasser et al., 2000), reduced immune competence (Blecha, 2000), and behavioral disturbance. Increases in the circulation of glucocorticosteroids (cortisol, corticosterone, and aldosterone in marine mammals; see Romano et al., 2004) have been equated with stress for many years.

The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic functions, which impair those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (sensu Seyle, 1950) or “allostatic loading” (sensu McEwen and Wingfield, 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.

Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiment; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 2000). Although no information has been collected on the physiological responses of marine mammals to anthropogenic sound exposure, studies of other marine animals and terrestrial animals would lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to anthropogenic sounds.

For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (e.g., elevated respiration and increased heart rates). Jones (1998) reported on reductions in human performance when faced with acute, repetitive exposures to acoustic disturbance. Trimper et al. (1998) reported on the physiological stress responses of osprey to low-level aircraft noise while Krausman et al. (2004) reported on the auditory and physiology stress responses of endangered Sonoran pronghorn to military overflights. Smith et al. (2004a, 2004b) identified noise-induced physiological transient stress responses in hearing-specialist fish (i.e., goldfish) that accompanied short- and long-term hearing losses. Welch and Welch (1970) reported physiological and behavioral stress responses that accompanied damage to the inner ears of fish and several mammals.

Hearing is one of the primary senses marine mammals use to gather information about their environment and communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, we assume that reducing a marine mammal's ability to gather information about its environment and communicate with other members of its species would induce stress, based on data that terrestrial animals exhibit those responses under similar conditions (NRC, 2003) and because marine mammals use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses. More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg, 2000), NMFS also assumes that stress responses could persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.

Resonance effects (Gentry, 2002) and direct noise-induced bubble formations (Crum et al., 2005) are implausible in the case of exposure to an impulsive broadband source like an airgun array. If seismic surveys disrupt diving patterns of deep-diving species, this might result in bubble formation and a form of the bends, as speculated to occur in beaked whales exposed to sonar. However, there is no specific evidence of this upon exposure to low-intensity civilian sonar pulses. Additionally, no beaked whale species occur in the proposed project area.

In general, very little is known about the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited to short distances and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. There is no definitive evidence that any of these effects occur even for marine mammals in close proximity to large arrays of airguns, which are not proposed for use during this program. In addition, marine mammals that show behavioral avoidance of industry activities, including bowheads, belugas, and some pinnipeds, are especially unlikely to incur non-auditory impairment or other physical effects.

Marine mammals close to underwater detonations of high explosive can be killed or severely injured, and the auditory organs are especially susceptible to injury (Ketten et al., 1993; Ketten, 1995). Airgun pulses are less energetic and their peak amplitudes have slower rise times. To date, there is no evidence that serious injury, death, or stranding by marine mammals can occur from exposure to airgun pulses, even in the case of large airgun arrays. Additionally, Hilcorp's project will use low-intensity sonar equipment in shallow water. NMFS does not expect any marine mammals will incur injury or mortality in the shallow waters off Beaufort Sea or strand as a result of the proposed geohazard survey.

Vessel activity and noise associated with vessel activity will temporarily increase in the action area during Hilcorp's shallow geohazard survey as a result of the operation of 1-2 vessels. To minimize the effects of vessels and noise associated with vessel activity, Hilcorp will alter speed if a marine mammal gets too close to a vessel. In addition, source vessels will be operating at slow speed (4-5 knots) when conducting surveys. Marine mammal monitoring observers will alert vessel captains as animals are detected to ensure safe and effective measures are applied to avoid coming into direct contact with marine mammals. Therefore, NMFS neither anticipates nor authorizes takes of marine mammals from ship strikes.

McCauley et al. (1996) reported several cases of humpback whales responding to vessels in Hervey Bay, Australia. Results indicated clear avoidance at received levels between 118 to 124 dB in three cases for which response and received levels were observed/measured.

Palka and Hammond (2001) analyzed line transect census data in which the orientation and distance off transect line were reported for large numbers of minke whales. The authors developed a method to account for effects of animal movement in response to sighting platforms. Minor changes in locomotion speed, direction, and/or diving profile were reported at ranges from 1,847 to 2,352 ft (563 to 717 m) at received levels of 110 to 120 dB.

Odontocetes, such as beluga whales, killer whales, and harbor porpoises, often show tolerance to vessel activity; however, they may react at long distances if they are confined by ice, shallow water, or were previously harassed by vessels (Richardson et al., 1995). Beluga whale response to vessel noise varies greatly from tolerance to extreme sensitivity depending on the activity of the whale and previous experience with vessels (Richardson et al., 1995). Reactions to vessels depends on whale activities and experience, habitat, boat type, and boat behavior (Richardson et al., 1995) and may include behavioral responses, such as altered headings or avoidance (Blane and Jaakson, 1994; Erbe and Farmer, 2000); fast swimming; changes in vocalizations (Lesage et al., 1999; Scheifele et al., 2005); and changes in dive, surfacing, and respiration patterns.

There are few data published on pinniped responses to vessel activity, and most of the information is anecdotal (Richardson et al., 1995). Generally, sea lions in water show tolerance to close and frequently approaching vessels and sometimes show interest in fishing vessels. They are less tolerant when hauled out on land; however, they rarely react unless the vessel approaches within 100-200 m (Richardson et al., 1995).

The addition of the vessels and noise due to vessel operations associated with the shallow geohazard survey is not expected to have effects that could cause significant or long-term consequences for individual marine mammals or their populations.

The primary potential impacts to marine mammal habitat and other marine species are associated with elevated sound levels produced by airguns and other active acoustic sources. However, other potential impacts to the surrounding habitat from physical disturbance are also possible. This section describes the potential impacts to marine mammal habitat from the specified activity. Because the marine mammals in the area feed on fish and/or invertebrates there is also information on the species typically preyed upon by the marine mammals in the area.

With regard to fish as a prey source for odontocetes and seals, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson and Dill, 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins, 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

Fishes produce sounds that are associated with behaviors that include territoriality, mate search, courtship, and aggression. It has also been speculated that sound production may provide the means for long distance communication and communication under poor underwater visibility conditions (Zelick et al., 1999), although the fact that fish communicate at low-frequency sound levels where the masking effects of ambient noise are naturally highest suggests that very long distance communication would rarely be possible. Fishes have evolved a diversity of sound generating organs and acoustic signals of various temporal and spectral contents. Fish sounds vary in structure, depending on the mechanism used to produce them (Hawkins, 1993). Generally, fish sounds are predominantly composed of low frequencies (less than 3 kHz).

Since objects in the water scatter sound, fish are able to detect these objects through monitoring the ambient noise. Therefore, fish are probably able to detect prey, predators, conspecifics, and physical features by listening to environmental sounds (Hawkins, 1981). There are two sensory systems that enable fish to monitor the vibration-based information of their surroundings. The two sensory systems, the inner ear and the lateral line, constitute the acoustico-lateralis system.

Although the hearing sensitivities of very few fish species have been studied to date, it is becoming obvious that the intra- and inter-specific variability is considerable (Coombs, 1981). Nedwell et al. (2004) compiled and published available fish audiogram information. A noninvasive electrophysiological recording method known as auditory brainstem response is now commonly used in the production of fish audiograms (Yan, 2004). Generally, most fish have their best hearing in the low-frequency range (i.e., less than 1 kHz). Even though some fish are able to detect sounds in the ultrasonic frequency range, the thresholds at these higher frequencies tend to be considerably higher than those at the lower end of the auditory frequency range.

Literature relating to the impacts of sound on marine fish species can be divided into the following categories: (1) Pathological effects; (2) physiological effects; and (3) behavioral effects. Pathological effects include lethal and sub-lethal physical damage to fish; physiological effects include primary and secondary stress responses; and behavioral effects include changes in exhibited behaviors of fish. Behavioral changes might be a direct reaction to a detected sound or a result of the anthropogenic sound masking natural sounds that the fish normally detect and to which they respond. The three types of effects are often interrelated in complex ways. For example, some physiological and behavioral effects could potentially lead to the ultimate pathological effect of mortality. Hastings and Popper (2005) reviewed what is known about the effects of sound on fishes and identified studies needed to address areas of uncertainty relative to measurement of sound and the responses of fishes. Popper et al. (2003/2004) also published a paper that reviews the effects of anthropogenic sound on the behavior and physiology of fishes.

Potential effects of exposure to sound on marine fish include TTS, physical damage to the ear region, physiological stress responses, and behavioral responses such as startle response, alarm response, avoidance, and perhaps lack of response due to masking of acoustic cues. Most of these effects appear to be either temporary or intermittent and therefore probably do not significantly impact the fish at a population level. The studies that resulted in physical damage to the fish ears used noise exposure levels and durations that were far more extreme than would be encountered under conditions similar to those expected during Hilcorp's proposed survey.

The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al., 1993). In general, fish react more strongly to pulses of sound rather than a continuous signal (Blaxter et al., 1981), such as the type of sound that will be produced by the drillship, and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

Investigations of fish behavior in relation to vessel noise (Olsen et al., 1983; Ona, 1988; Ona and Godo, 1990) have shown that fish react when the sound from the engines and propeller exceeds a certain level. Avoidance reactions have been observed in fish such as cod and herring when vessels approached close enough that received sound levels are 110 dB to 130 dB (Nakken, 1992; Olsen, 1979; Ona and Godo, 1990; Ona and Toresen, 1988). However, other researchers have found that fish such as polar cod, herring, and capeline are often attracted to vessels (apparently by the noise) and swim toward the vessel (Rostad et al., 2006). Typical sound source levels of vessel noise in the audible range for fish are 150 dB to 170 dB (Richardson et al., 1995a). In calm weather, ambient noise levels in audible parts of the spectrum lie between 60 dB to 100 dB.

Short, sharp sounds can cause overt or subtle changes in fish behavior. Chapman and Hawkins (1969) tested the reactions of whiting (hake) in the field to an airgun. When the airgun was fired, the fish dove from 82 to 180 ft (25 to 55 m) depth and formed a compact layer. The whiting dove when received sound levels were higher than 178 dB re 1 µPa (Pearson et al., 1992).

Pearson et al. (1992) conducted a controlled experiment to determine effects of strong noise pulses on several species of rockfish off the California coast. They used an airgun with a source level of 223 dB re 1 µPa. They noted:

• Startle responses at received levels of 200-205 dB re 1 µPa and above for two sensitive species, but not for two other species exposed to levels up to 207 dB;

• Alarm responses at 177-180 dB for the two sensitive species, and at 186 to 199 dB for other species;

• An overall threshold for the above behavioral response at about 180 dB;

• An extrapolated threshold of about 161 dB for subtle changes in the behavior of rockfish; and

• A return to pre-exposure behaviors within the 20-60 minute exposure period.

In summary, fish often react to sounds, especially strong and/or intermittent sounds of low frequency. Sound pulses at received levels of 160 dB re 1 µPa may cause subtle changes in behavior. Pulses at levels of 180 dB may cause noticeable changes in behavior (Chapman and Hawkins, 1969; Pearson et al., 1992; Skalski et al., 1992). It also appears that fish often habituate to repeated strong sounds rather rapidly, on time scales of minutes to an hour. However, the habituation does not endure, and resumption of the strong sound source may again elicit disturbance responses from the same fish.

Some of the fish species found in the Arctic are prey sources for odontocetes and pinnipeds. A reaction by fish to sounds produced by Hilcorp's proposed survey would only be relevant to marine mammals if it caused concentrations of fish to vacate the area. Pressure changes of sufficient magnitude to cause that type of reaction would probably occur only very close to the sound source, if any would occur at all. Impacts on fish behavior are predicted to be inconsequential. Thus, feeding odontocetes and pinnipeds would not be adversely affected by this minimal loss or scattering, if any, of reduced prey abundance.

Some mysticetes, including bowhead whales, feed on concentrations of zooplankton. Some feeding bowhead whales may occur in the Alaskan Beaufort Sea in July and August, but feeding bowheads are more likely to occur in the area after the cessation of survey operations. Reactions of zooplankton to sound are, for the most part, not known. Their ability to move significant distances is limited or nil, depending on the type of zooplankton. Behavior of zooplankters is not expected to be affected by the survey. These animals have exoskeletons and no air bladders. Many crustaceans can make sounds, and some crustacea and other invertebrates have some type of sound receptor. A reaction by zooplankton to sounds produced by the seismic survey would only be relevant to whales if it caused concentrations of zooplankton to scatter. Pressure changes of sufficient magnitude to cause that type of reaction would probably occur only very close to the sound source, if any would occur at all. Impacts on zooplankton behavior are predicted to be inconsequential. Thus, feeding mysticetes would not be adversely affected by this minimal loss or scattering, if any, of reduced zooplankton abundance.

Based on the preceding discussion, the proposed activity is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.

In order to issue an incidental take authorization (ITA) under sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). This section summarizes the contents of Hilcorp's Marine Mammal Monitoring and Mitigation Plan (4MP). Later in this document in the “Proposed Incidental Harassment Authorization” section, NMFS lays out the proposed conditions for review, as they would appear in the final IHA (if issued).

Hilcorp submitted a 4MP as part of its application (see ADDRESSES). Hilcorp's planned shallow geohazard survey incorporates both design features and operational procedures for minimizing potential impacts on marine mammals and on subsistence hunts. The 4MP is a combination of active monitoring in the area of operations and the implementation of mitigation measures designed to minimize project impacts to marine resources. Monitoring will provide information on marine mammals potentially affected by exploration activities, in addition to facilitating real time mitigation to prevent injury of marine mammals by industrial sounds or activities.

The general mitigation measures apply to all vessels that are part of the Foggy Island Bay sonar survey. The source vessel will operate under an additional set of specific mitigation measures during operations.

• To minimize collision risk with marine mammals, vessels shall not be operated at speeds that would make collisions likely. When weather conditions require, such as when visibility drops, vessels shall adjust speed accordingly to avoid the likelihood of marine mammal collisions.

• Vessel operators shall check the waters immediately adjacent to a vessel to ensure that no marine mammals will be injured when the vessel's propellers (or screws) are engaged.

• Vessel operators shall avoid concentrations or groups of whales and vessels shall not be operated in a way that separates members of a group. In proximity of feeding whales or aggregations, vessel speed shall be less than 10 knots.

• When within 900 ft. (300 m) of whales vessel operators shall take every effort and precaution to avoid harassment of these animals by:

○ Reducing speed and steering around (groups of) whales if circumstances allow, but never cutting off a whale's travel path;

○ Avoiding multiple changes in direction and speed.

• In general, the survey design will start in shallow water and work deeper to mitigate the potential “herding” effect.

Under current NMFS guidelines, the “exclusion zone” for marine mammal exposure to impulse sources is customarily defined as the area within which received sound levels are ≥180 dB (rms) re 1 μPa for cetaceans and ≥190 dB (rms) re 1 μPa for pinnipeds. These safety criteria are based on an assumption that SPL received at levels lower than these will not injure these animals or impair their hearing abilities, but at higher levels might have some such effects. Disturbance or behavioral effects to marine mammals from underwater sound may occur after exposure to sound at distances greater than the exclusion zones (Richardson et al. 1995). Currently, NMFS uses 160 dB (rms) re 1 μPa as the threshold for Level B behavioral harassment from impulse noise.

The sounds generated by the multibeam echosounder and sidescan sonar are outside the hearing range of marine mammals. Sounds generated by the sub-bottom profiler are within the hearing range of all marine mammal species occurring in the area. The distance to 160 dB re 1 µPa (rms) zone of influence (ZOI) is estimated at 30 m (Warner & McCrodan 2011). However, Hilcorp will establish a ZOI of 50 m around all sonar sources for more protective measures. The exclusion zones of all sonar equipment are less than 30 m from the sources.

A ramp up of the sub-bottom profiler provides a gradual increase in sound levels, and involves a step-wise increase in the number and incremental levels of the sub-bottom profiler firing until the maximum level is achieved. The purpose of a ramp up (or “soft start”) is to “warn” cetaceans and pinnipeds in the vicinity of the survey and to provide time for them to leave the area and thus reducing startling responses from marine mammals.

Although there is no exclusion zone expected from the sonar source operated by Hilcorp during its proposed shallow geohazard survey, Hilcorp proposes to implement shutdown measures when a marine mammals is sighted within the 50 m ZOI during the operation of the sub-bottom profiler.

After showdown for more than 10 minutes, ramp-up shall not start until after the marine mammal is visually seen left the ZOI; or 15 minutes have passed after the last detection of the marine mammal with shorter dive durations (pinnipeds and small odontocetes); or 30 minutes have passed after the last detection of the marine mammal with longer diver durations (mysticetes and large odontocetes, including beluga whales).

If during foggy conditions, heavy snow or rain, or darkness, the full 160 dB ZOI is not visible, sonar equipment cannot commence a ramp-up procedure from a full shut-down. If the sub-bottom profiler has been operational before nightfall or before the onset of poor visibility conditions, it can remain operational throughout the night or poor visibility conditions.

NMFS has carefully evaluated Hilcorp's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

• The manner in which, and the degree to which, the successful implementation of the measures are expected to minimize adverse impacts to marine mammals;

• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

• The practicability of the measure for applicant implementation.

Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of sub-bottom profiler, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of sub-bottom profiler or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of sub-bottom profiler or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).

5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed measures to ensure availability of such species or stock for taking for certain subsistence uses are discussed later in this document (see “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).

In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Hilcorp submitted a marine mammal monitoring plan as part of the IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period or from the peer review panel (see the “Monitoring Plan Peer Review” section later in this document).

Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, i.e., presence, abundance, distribution, and/or density of species.

2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (e.g. sound or visual stimuli), through better understanding of one or more of the following: the action itself and its environment (e.g. sound source characterization, propagation, and ambient noise levels); the affected species (e.g. life history or dive pattern); the likely co-occurrence of marine mammal species with the action (in whole or part) associated with specific adverse effects; and/or the likely biological or behavioral context of exposure to the stressor for the marine mammal (e.g. age class of exposed animals or known pupping, calving or feeding areas).

3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible, e.g., at what distance or received level).

4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: the long-term fitness and survival of an individual; or the population, species, or stock (e.g. through effects on annual rates of recruitment or survival).

5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (e.g., through characterization of longer-term contributions of multiple sound sources to rising ambient noise levels and assessment of the potential chronic effects on marine mammals).

6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.

7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.

8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.

Monitoring will provide information on the numbers of marine mammals potentially affected by the exploration operations and facilitate real-time mitigation to prevent injury of marine mammals by industrial sounds or activities. These goals will be accomplished in the Beaufort Sea during 2015 by conducting vessel-based monitoring and passive acoustic monitoring to document marine mammal presence and distribution in the vicinity of the survey area.

Visual monitoring by Protected Species Observers (PSOs) during shallow geohazard survey operations, and periods when these surveys are not occurring, will provide information on the numbers of marine mammals potentially affected by these activities and facilitate real-time mitigation to prevent impacts to marine mammals by industrial sounds or operations. Vessel-based PSOs onboard the survey vessels will record the numbers and species of marine mammals observed in the area and any observable reaction of marine mammals to the survey activities in the Beaufort Sea.

Vessel-based monitoring for marine mammals will be done by trained PSOs throughout the period of survey activities. The observers will monitor the occurrence of marine mammals near the survey vessel during all daylight periods during operation, and during most daylight periods when operations are not occurring. PSO duties will include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the survey operations; and documenting “take by harassment.”

Two PSOs will be present on the main sonar vessel. The smaller skiff may only accommodate one at a time. Of these two PSOs, one will be on watch at all times, except during darkness.

PSO teams will consist of Inupiat observers and experienced field biologists. Each vessel will have an experienced field crew leader to supervise the PSO team.

Visual monitoring by the PSOs will be required to meet the following criteria:

• 100% monitoring coverage during all periods of survey operations in daylight;

• Maximum of 4 consecutive hours on watch per PSO; and

• Maximum of 12 hours of watch time per day per PSO.

Lead PSOs will be individuals with experience as observers during recent seismic, site clearance and shallow hazards, and other monitoring projects in Alaska or other offshore areas in recent years. New or inexperienced PSOs will be paired with an experienced PSO or experienced field biologist so that the quality of marine mammal observations and data recording is kept consistent.

Resumes for candidate PSOs will be provided to NMFS for review and acceptance of their qualifications. Inupiat observers will be experienced in the region and familiar with the marine mammals of the area. All observers will complete a training course designed to familiarize individuals with monitoring and data collection procedures.

The PSOs will watch for marine mammals during all periods of source operations and for a minimum of 30 minutes prior to the planned start of sonar operations after an extended shutdown. Marine mammal monitoring shall continue throughout sonar operations and last for 30 minutes after the finish of sonar operations during daylight hours. Hilcorp vessel crew and operations personnel will also watch for marine mammals, as practical, to assist and alert the PSOs for the sub-bottom profiler to be shut down if marine mammals are observed in or about to enter the 50-m ZOI.

PSOs will also perform vessel-based marine mammal monitoring during vessel transit when the shallow geohazard survey is not being conducted. Marine mammal sighting data collected during the non-survey period will be compared with those during the survey to analyze the effects of the activities.

The PSOs will watch for marine mammals from the best available vantage point on the vessels. The PSOs will scan the area around the vessel systematically with reticle binoculars (e.g., 7 x 50 and 16-40 x 80) and with the naked eye. GPS unit and laptop computer(s) will also be available for PSOs onboard survey vessels.

The observers will give particular attention to the areas within the marine mammal exclusion zones around the source vessels.

When a marine mammal is seen approaching or within the 50-m ZOI, the survey crew will be notified immediately so that mitigation measures called for in the applicable authorization(s) can be implemented.

Information to be recorded by PSOs will include:

• Species, group size, age/size/sex categories (if determinable), physical description of features that were observed or determined not to be present in the case of unknown or unidentified animals;

• Behavior when first sighted and after initial sighting;

• Heading (if consistent), bearing and distance from observer;

• Apparent reaction to activities (e.g., none, avoidance, approach, paralleling, etc.), closest point of approach, and behavioral pace;

• Time, location, speed, and activity of the vessel, sea state, ice cover, visibility, and sun glare; and

• Positions of other vessel(s) (if present) in the vicinity of the observer location.

The vessel's position, speed, water depth, sea state, ice cover, visibility, and sun glare will also be recorded at the start and end of each observation watch, every 30 minutes during a watch, and whenever there is a change in any of those variables.

Passive acoustic monitoring (PAM) will be conducted to document ambient noise conditions, to examine the spatial and temporal distribution of marine mammals based on acoustic detections of their vocalizations, and to characterize the long-range propagation of sounds produced during the geohazard survey. The goal of the program is to address knowledge gaps about ambient sound levels and the distributions and migration paths of several marine mammal species including bowhead whales, beluga whales, and seals.

The acoustic data will be collected with Autonomous Multichannel Acoustic Recorder (AMAR) systems deployed on the seabed for an extended period. Two AMARs with different sampling rates will be deployed on the seabed for 3 months. An AMAR with a sampling rate of 64 kHz (24 bits) will be deployed at 500 m from the offshore end of the survey line and will record continuously. A high-frequency AMAR with a sampling rate of 380 kHz (16 bits) will be deployed at 5,000 m from the offshore end of the survey line. This high-frequency AMAR will be operated at 380 kHz (16 bits) for 2 minutes each hour and the rest of the time at 64 kHz (24 bits). The AMARs will be calibrated using pistonphone calibrators immediately before and after each deployment. These calibrations are accurate to less than 0.5 dB absolute.

The MMPA requires that monitoring plans be independently peer reviewed “where the proposed activity may affect the availability of a species or stock for taking for subsistence uses” (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, “Upon receipt of a complete monitoring plan, and at its discretion, [NMFS] will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan” (50 CFR 216.108(d)).

NMFS has established an independent peer review panel to review Hilcorp's 4MP for the proposed shallow geohazard survey in the Beaufort Sea. The panel has met in early March 2015, and provided comments and recommendations to NMFS in April 2015. The full panel report can be viewed on the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

NMFS provided the panel with Hilcorp's IHA application and monitoring plan and asked the panel to answer the following questions:

1. Will the applicant's stated objectives effectively further the understanding of the impacts of their activities on marine mammals and otherwise accomplish the goals stated above? If not, how should the objectives be modified to better accomplish the goals above?

2. Can the applicant achieve the stated objectives based on the methods described in the plan?

3. Are there technical modifications to the proposed monitoring techniques and methodologies proposed by the applicant that should be considered to better accomplish their stated objectives?

4. Are there techniques not proposed by the applicant (i.e., additional monitoring techniques or methodologies) that should be considered for inclusion in the applicant's monitoring program to better accomplish their stated objectives?

5. What is the best way for an applicant to present their data and results (formatting, metrics, graphics, etc.) in the required reports that are to be submitted to NMFS (i.e., 90-day report and comprehensive report)?

The peer-review panel report contains recommendations that the panel members felt were applicable to the Hilcorp' monitoring plans. The panel believes that the objectives for both vessel-based and passive acoustic monitoring are appropriate, and agrees that the objective of real-time mitigation of potential disturbance of marine mammals would be met through visual monitoring. Nevertheless, the panel is concerned that there may also be behavioral effects resulting from the use of single and multi-beam echosounders and side-scan sonar that may warrant real-time mitigation to avoid disturbance, and provide a series of recommendations to improve efficiencies and effectiveness of monitoring and mitigation measures.

Specific recommendations provided by the peer review panel to enhance marine mammal monitoring and reporting measures are:

(1) Deploying an additional observer on the source vessel such that at least two observers are on watch during all daylight hours;

(2) Monitoring for marine mammals also be conducted during non-survey activities to assist in the collection of baseline information from which to analyze the effects of the activities;

(3) Deploying a third autonomous multichannel acoustic recorder (AMAR) and arrange the AMARs in a triangular array, as depicted in Figure 1 of the panel report, with the 500 m AMAR be a high-frequency AMAR, for marine mammal monitoring;

(4) Using AMAR to collect data on cumulative sound exposure level over 24 hours (cSEL24), in particular during the use of the two sub-bottom profilers;

(5) Ground-truthing data collected by AMARs in consultation with biologists experienced in Arctic species vocalizations and to include error rates for automatic detection to ensure the accurate classification of vocalizations by species;

(6) Collaborating with other entities collecting data on marine mammal vocalizations in the Beaufort Sea to improve auto-detection and manual capabilities for identifying species in which acoustic data are limited or lacking (e.g., spotted seals); and

(7) Including information from high frequency acoustic recordings in reports to provide a better understanding of source levels and other acoustic characteristics of the active acoustics survey equipment, such as spectral content, and received levels in root-mean-squared (RMS) dB, sound exposure level (SEL), dB peak to peak and 1/3 octave bands.

In addition, although not requested by NMFS under the MMPA, the panel also provided several mitigation measures. These recommendations are:

(1) Hilcorp limit operations at night or during periods of low visibility so that marine mammals do not enter the safety zone undetected;

(2) Hilcorp specify that the delay for ramp-up and after a shut-down should be 15 minutes for species with short dive durations (small odontocetes and pinnipeds) and 30 minutes for species with longer diver durations (mysticetes and large odontocetes, including beluga whales);

(3) Additional sound source information from the various active acoustic equipment proposed for the survey be obtained by maneuvering the source vessels over the high frequency AMARs; and

(4) Hilcorp conduct the survey starting closest to shore and proceeding offshore to avoid any potential “herding” effect of marine mammals into shallow waters, as was implicated in a mass stranding of melon headed whales off Madagascar during a multi-beam echosounder survey (Southall et al. 2013).

NMFS discussed these recommendations with Hilcorp to improve its monitoring and reporting measures, and to some extent, as well as mitigation measures. As a result, Hilcorp agrees to implement the following recommendations:

(1) Hilcorp will perform vessel-based marine mammal monitoring by protected species observers (PSOs) during vessel transit when the shallow geohazard survey is not being conducted. Marine mammal sighting data collected during the non-survey period will be compared with those during the survey to analyze the effects of the activities.

(2) Hilcorp and its contractor JASCO will deploy a high-frequency AMAR at the 5000 m site for detecting beluga clicks. The high-frequency AMAR would be operated at 380 kHz (16 bits) for about 2 minutes each hour and the rest of the time at 64 kHz (24 bits) for the 3 months deployment. The reason for deploying the high-frequency AMAR at 5000 m location, which NMFS concurs, is that there is a higher likelihood of detecting marine mammal acoustics in the deeper water farther from the island.

(3) Hilcorp will work with JASCO to use AMAR to collect data on cumulative sound exposure level over 24 hours (cSEL24), in particular during the use of the two sub-bottom profilers.

(4) Hilcorp will work with JASCO to ground-truth data collected by AMARs in consultation with biologists experienced in Arctic species vocalizations and to include error rates for automatic detection to ensure the accurate classification of vocalizations by species.

(5) Hilcorp is open to sharing data and work with its contractor JASCO to collaborate with other researchers. In addition, Hilcorp and JASCO will make the passive acoustic recording data, including data on marine mammal vocalizations, publically available for researchers. These data sharing/collaboration efforts will enable scientists to purse a variety of studies concerning the acoustic environment, marine mammal bioacoustics, and potential activity effects on marine mammals in the survey area.

(6) Hilcorp will including information from high frequency acoustic recordings in reports to provide a better understanding of source levels and other acoustic characteristics of the active acoustics survey equipment, such as spectral content, and received levels in root-mean-squared (RMS) dB, sound exposure level (SEL), dB peak to peak and 1/3 octave bands.

Furthermore, Hilcorp agrees to implement the following mitigation recommendation and provided additional information in regard to the peer-review panel report:

(1) Hilcorp will specify that the delay for ramp-up and after a shut-down should be 15 minutes for species with short dive durations (small odontocetes and pinnipeds) and 30 minutes for species with longer diver durations (mysticetes and large odontocetes, including beluga whales).

(2) Regarding sound source information from the various active acoustic equipment proposed for Hilcorp's shallow geohazard survey, acoustic characteristics of these equipment or its equivalents were previously measured by JASCO. The measurement results in the following reports that are posted on NMFS Web site:

• Statoil 2011 Shallow Hazards Survey 90-day Report (Chapter 3) (http://www.nmfs.noaa.gov/pr/pdfs/permits/statoil_90day_report2011.pdf).

• Shell 2013 Shallow Hazards Survey 90-day Report (Chapter 2) (http://www.nmfs.noaa.gov/pr/permits/incidental/oilgas/2013_shell_monitoringreport.pdf).

(3) Regarding the panel's recommendation on Hilcorp's survey transect design, Hilcorp states that it can start in shallow water and work deeper to mitigate the potential “herding” effect. Hilcorp's plan is to divide the corridor into multiple sub-sections based on depth and work each section independently. This method is necessary for side scan sonar operations as each subsection will have a different range setting and line spacing that is related to depth.

All these aforementioned recommendations from the peer-review panel are included in the proposed mitigation and monitoring measures for Hilcorp's 2015 open-water shallow geohazard survey in the Beaufort Sea.

However, Hilcorp will not able to increase the number of vessel-based PSOs onboard the survey vessel. The number of PSOs onboard the vessel is limited by the available berth space. The survey vessels used for the proposed shallow geohazard survey can only accommodate maximum of 2 PSOs. Nevertheless, NMFS considers that due to the exceptionally small ensonified zones (no exclusion zone, with the radius of ZOI at 30 m from the source), one PSO on watch onboard the survey vessel is adequate.

In regard to an additional AMAR to be deployed in the vicinity of the survey area, NMFS worked with Hilcorp and determined that deployment of three AMARs would be cost prohibitive to Hilcorp, given the small project budget of the shallow geohazard survey. In addition, due to the short duration and minimal impact of the proposed shallow geohazard survey, the currently passive acoustic monitoring, improved with a high-frequency AMAR, is adequate to provide needed information to assess potential environmental effects from the proposed project.

Finally, NMFS does not agree with one of the panel's recommendations that Hilcorp limit operations at night or during periods of low visibility so that marine mammals do not enter the safety zone undetected. As mentioned previously, there is not no safety zone (exclusion zone) because of the low intensity high-frequency sonar equipment being employed in the proposed shallow geohazard survey. In addition, limiting survey at night or during periods of low visibility would increase the survey duration, thus extend the noise output from survey vessels in the area. NMFS believes that as long as the 50-m ZOI is cleared of marine mammals before the ramp-up of sonar equipment during daylight hours with good visibility, shallow hazard survey can be carried out with minimum adverse effects to marine mammals.

The results of Hilcorp's 2015 vessel-based monitoring, including estimates of “take” by harassment, will be presented in a “90-day” draft Technical Report, to be submitted to NMFS within 90 days after the end of the shallow geohazard survey, and then in a final Technical Report, which will address any comments NMFS had on the draft. The Technical Report will include:

(a) Summaries of monitoring effort (e.g., total hours, total distances, and marine mammal distribution through the study period, accounting for sea state and other factors affecting visibility and detectability of marine mammals);

(b) Analyses of the effects of various factors influencing detectability of marine mammals (e.g., sea state, number of observers, and fog/glare);

(c) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;

(d) Data analysis separated into periods when a sonar source is operating and when it is not, to better assess impacts to marine mammals—the final and comprehensive report to NMFS should summarize and plot:

• Data for periods when a sonar source is active and when it is not; and

• The respective predicted received sound conditions over fairly large areas (tens of km) around operations;

(e) Sighting rates of marine mammals during periods with and without sonar activities (and other variables that could affect detectability), such as:

• Initial sighting distances versus sonar activity state;

• Closest point of approach versus sonar activity state;

• Observed behaviors and types of movements versus sonar activity state;

• Numbers of sightings/individuals seen versus sonar activity state;

• Distribution around the survey vessel versus sonar activity state; and

• Estimates of take by harassment;

(f) Results from all hypothesis tests, including estimates of the associated statistical power, when practicable;

(g) Estimates of uncertainty in all take estimates, with uncertainty expressed by the presentation of confidence limits, a minimum-maximum, posterior probability distribution, or another applicable method, with the exact approach to be selected based on the sampling method and data available; and

(h) A clear comparison of authorized takes and the level of actual estimated takes.

In addition, the technical report will include analysis on acoustic monitoring such as:

(a) Cumulative sound exposure level over 24 hours (cSEL24), in particular during the use of the two sub-bottom profilers;

(b) Ground-truth of data collected by AMARs in consultation with biologists experienced in Arctic species vocalizations with error rates for automatic detection to ensure the accurate classification of vocalizations by species; and

(c) Information of source levels and other acoustic characteristics of the active acoustics survey equipment, such as spectral content, and received levels in root-mean-squared (RMS) dB, sound exposure level (SEL), dB peak to peak and 1/3 octave bands.

Finally, Hilcorp will share data and work with its contractor JASCO to collaborate with other researchers. The passive acoustic recording data, including data on marine mammal vocalizations, will be made publically available for researchers. These data sharing/collaboration efforts will enable scientists to purse a variety of studies concerning the acoustic environment, marine mammal bioacoustics, and potential activity effects on marine mammals in the survey area.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as a serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Hilcorp would immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinators. The report would include the following information:

• Time, date, and location (latitude/longitude) of the incident;

• Name and type of vessel involved;

• Vessel's speed during and leading up to the incident;

• Description of the incident;

• Status of all sound source use in the 24 hours preceding the incident;

• Water depth;

• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

• Description of all marine mammal observations in the 24 hours preceding the incident;

• Species identification or description of the animal(s) involved;

• Fate of the animal(s); and

• Photographs or video footage of the animal(s) (if equipment is available).

Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Hilcorp to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Hilcorp would not be able to resume its activities until notified by NMFS via letter, email, or telephone.

In the event that Hilcorp discovers a dead marine mammal, and the lead PSO determines that the cause of the death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Hilcorp would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Hilcorp to determine whether modifications in the activities are appropriate.

In the event that Hilcorp discovers a dead marine mammal, and the lead PSO determines that the death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Hilcorp would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators, within 24 hours of the discovery. Hilcorp would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Hilcorp can continue its operations under such a case.

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B behavioral harassment is anticipated as a result of the proposed shallow geohazard survey. Noise propagation from subbottom profilers is expected to harass, through behavioral disturbance, affected marine mammal species or stocks.

The full suite of potential impacts to marine mammals from various industrial activities was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the proposed shallow geohazard survey without any mitigation might include one or more of the following: Tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson et al., 1995a). As discussed in the following sections in this document, NMFS estimates that Hilcorp's activities will most likely result in behavioral disturbance, including avoidance of the ensonified area or changes in speed, direction, and/or diving profile of one or more marine mammals. For reasons discussed previously in this document, hearing impairment (TTS and PTS) is highly unlikely to occur based on the fact that most of the equipment to be used during Hilcorp's proposed shallow geohazard survey does not have source levels high enough to elicit even mild TTS and/or the fact that certain species are expected to avoid the ensonified areas close to the operations. Additionally, non-auditory physiological effects are anticipated to be minor, if any would occur at all.

For impulsive sounds, such as the signals produced by the subbottom profiler sources during the shallow geohazard survey, NMFS uses a received level of 160-dB (rms) to indicate the onset of Level B harassment. Hilcorp provided calculations of the 160-dB isopleth produced by the subbottom profiler and then used that isopleth to estimate takes by harassment. Hilcorp provides a full description of the methodology used to estimate takes by harassment in its IHA application (see ADDRESSES), which is also provided in the following sections.

Hilcorp has requested authorization to take bowhead, gray, humpback, minke, killer, and beluga whales, harbor porpoise, and ringed, spotted, bearded, and ribbon seals incidental to shallow geohazard survey in the Beaufort Sea. However, as stated previously in this document, humpback, minke, and killer whales, harbor porpoise, and ribbon seal are considered extralimital in the proposed shallow geohazard survey area. Therefore, NMFS is not proposing to authorize take of these species.

“Take by Harassment” is described in this section and was calculated in Hilcorp's application by multiplying the expected densities of marine mammals that may occur near the shallow geohazard survey areas where received noise levels are higher than 160 dB re 1 μPa (rms) created by the subbottom profiler during the survey.

Whale species are migratory and therefore show a seasonal distribution, with different densities for the summer period (covering July and August) and the fall period (covering September and October). Seal species in the Beaufort Sea do not show a distinct seasonal distribution during the open water period between July and October. Data acquisition of the proposed sonar survey will only take place in summer (before start of Nuiqsut whaling), therefore only estimates of marine mammal densities for the summer are included in the take calculation. Whale and seal densities in the Beaufort Sea will further depend on the presence of sea ice. However, if ice cover within or close to the sonar survey area is more than approximately 10%, sonar survey activities may not start or be halted for safety reasons. Densities related to ice conditions are therefore not included in the take estimates.

Spatial differentiation is another important factor for marine mammal densities, both in latitudinal and longitudinal gradient. Taking into account the shallow water operations of the proposed sonar survey area and the associated area of influence, data from the nearshore zone of the Beaufort Sea is used for the calculation of densities, if available.

Density estimates are based on best available data. Because available data did not always cover the area of interest, estimates are subject to large temporal and spatial variation. Though correction factors for perception and availability bias have been calculated for certain coastal areas they were not always known for this study area. There is some uncertainty in the 2014 raw data and assumptions were used in the estimated number of exposures. To provide allowance for these uncertainties, maximum density estimates have been provided in addition to average density estimates.

A summary of marine mammal density in the proposed Hilcorp survey area is provided in Table 3.

As discussed earlier in this document, the operating frequencies of the multibeam, single-beam, and sidescan sonar equipment in Hilcorp's proposed shallow geohazard survey are above the hearing range of all marine mammals and therefore are not expected to have take of marine mammals. Estimated distance to sound pressure levels of 160 dB re 1 μPa, generated by the proposed sub-bottom equipment is 30 m from the source. However, as stated in this document earlier, Hilcorp proposes to implement a 50 m shutdown zone for the Level B behavioral harassment. Therefore, the calculation of marine mammal take is based on the number of animals exposed within the 50 m radius.

This section provides estimates of the number of individuals potentially exposed to pulsed sound levels ≥160 dB re 1 μPa rms by shallow geohazard survey using a subbottom profiler. The estimates are based on a consideration of the number of marine mammals that might be affected by operations in the Beaufort Sea during 2015 and the anticipated area exposed to those sound levels.

The potential number of bowhead whales and belugas that might be exposed to the 160 dB re 1 μPa (rms) sound pressure level was calculated by multiplying:

• The expected bowhead and beluga density as provided in Table 3;

• The total 160 dB re 1 μPa (rms) ensonified area in a single hour by the vessel travelling at 3 knots; and

• The estimated number of hours that the source vessels are operating.

The calculated area (0.0079 km2) expected to be ensonified is determined based on the maximum distance to the 160 dB re 1 μPa (rms) sound pressure level for the Sub-bottom profiler, which is 0.05 km.

The estimated number of 24-hr days of sonar operations was determined by assuming a 25% downtime during the planned 45-day time span of the sonar survey period. Downtime is related to weather, equipment maintenance, mitigation implementation, and other circumstances. The total number of full 24-hr days that data acquisition is expected to occur is ~34 days or 816 hours.

The total 160 dB re 1 μPa (rms) ensonified area in a single hour by the vessel is calculated as 0.556 km2/hr.

The average and maximum number of bowhead whales potentially exposed to sonar sound levels of 160 dB re 1μPa (rms) or more is estimated at 4 and 9 respectively. The limited number of exposures is due to the low estimated density of bowheads in Foggy Island Bay during July and August, the short duration of the survey, and the small acoustic footprint. For the requested authorization, the maximum number was increased by three to account for unexpected bowhead occurrences.

The average and maximum number of potential beluga exposures to 160 dB is <1. Belugas are known to show aggregate behavior and can occur in large numbers in nearshore zones, as evidenced by the sighting from Endicott in August 2013. Although beluga whales are not expected to frequent the vicinity of the Liberty Unit shallow geohazard survey area, their occurrence is still a possibility. To account for the potential average take of 1 beluga whale per day during the 45-day survey period, NMFS proposes a take authorization of 45 beluga whales for Hilcorp's shallow geohazard survey. Chance encounters with small numbers of other whale species are possible, but exposures to 160 dB or more are very unlikely for these species.

Although gray whale density is not known, this species has been occasionally sited in the Arctic, and Hilcorp is requesting takes of 3 individuals of gray whales by Level B behavioral harassment (Table 4).

The estimated number of seals that might be exposed to pulsed sounds of 160 dB re 1 μPa (rms) is calculated by multiplying:

• The expected species specific sighting rate as provided in Table 3; and

• The total number of hours that each source vessel will be operating during the data acquisition period.

The estimated number of hours that the sonar equipment will operate was determined by assuming a 25% downtime during a 45-day survey period, which is a total of 816 hours (34 days of 24 hour operations).

These estimated exposures do not take into account the mitigation measures that will be implemented, such as marine mammal observers watching for animals, shutdowns or power downs of the equipment when marine mammals are seen within defined ranges. These measures will further reduce the number of exposures and expected short-term reactions, and minimize any effects on hearing sensitivity.

A summary of the request takes and percent take among the population is provided in Table 4.

Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

No injuries or mortalities are anticipated to occur as a result of Hilcorp's proposed shallow geohazard survey, and none are proposed to be authorized. Additionally, animals in the area are not expected to incur hearing impairment (i.e., TTS or PTS) or non-auditory physiological effects. The takes that are anticipated and authorized are expected to be limited to short-term Level B behavioral harassment. While the sonar sources are expected to be operated for approximately 45 days, the project timeframe will occur when cetacean species are typically not found in the project area or are found only in low numbers. While pinnipeds are likely to be found in the proposed project area more frequently, their distribution is dispersed enough that they likely will not be in the Level B harassment zone continuously. As mentioned previously in this document, pinnipeds appear to be more tolerant of anthropogenic sound than mysticetes.

Most of the marine mammals encountered will likely show overt disturbance (avoidance) only if they receive sonar sounds with levels ≥ 160 dB re 1 μPa. However, the estimated 160 dB zone is only 30 m from the source, which means that the animals have to be very close to the source vessel to be exposure to noise levels that could cause Level B harassment. In addition, Hilcorp will implement shutdown measures if a marine mammal is sighted within or is moving towards the 160 dB isopleths.

Taking into account the mitigation measures that are planned, effects on marine mammals are generally expected to be restricted to avoidance of a limited area around Hilcorp's proposed open-water activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Mitigation measures, such as controlled vessel speed, dedicated marine mammal observers, non-pursuit, ramp up procedures, and shut downs or power downs when marine mammals are seen within or approaching the ZOI, will further reduce short-term reactions. In all cases, the effects are expected to be short-term, with no lasting biological consequence.

Of the six marine mammal species likely to occur in the proposed marine survey area, bowhead whale and ringed seal are listed as endangered and threatened under the ESA, respectively. These species are also designated as “depleted” under the MMPA. Despite these designations, the Bering-Chukchi-Beaufort stock of bowheads has been increasing at a rate of 3.4 percent annually for nearly a decade (Allen and Angliss 2010). Additionally, during the 2001 census, 121 calves were counted, which was the highest yet recorded. The calf count provides corroborating evidence for a healthy and increasing population (Allen and Angliss 2010). There is no critical habitat designated in the U.S. Arctic for the bowhead whales. The Arctic stock of ringed seals have been listed by NMFS as threatened under the ESA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.

Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance of food sources of marine mammals is possible, any impacts are anticipated to be minor enough as to not affect rates of recruitment or survival of marine mammals in the area. The marine survey activities would occur in a localized area, and given the vast area of the Arctic Ocean where feeding by marine mammals occurs, any missed feeding opportunities in the direct project area could be offset by feeding opportunities in other available feeding areas.

In addition, no important feeding or reproductive areas are known in the vicinity of Hilcorp's proposed shallow geohazard survey. No critical habitat of ESA-listed marine mammal species occurs in the Beaufort Sea.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from Hilcorp's proposed shallow geohazard survey in the Beaufort Sea, Alaska, will have a negligible impact on the affected marine mammal species or stocks.

The requested takes proposed to be authorized represent less than 0.2% of all populations or stocks potentially impacted (see Table 4 in this document). These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment if each animal is taken only once. The numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks. In addition, the mitigation and monitoring measures (described previously in this document) proposed for inclusion in the IHA (if issued) are expected to reduce even further any potential disturbance to marine mammals.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

Marine mammals are legally hunted in Alaskan waters by coastal Alaska Natives and represent between 60% and 80% of their total subsistence harvest. The species regularly harvested by subsistence hunters in and around the Beaufort Sea are bowhead and beluga whales, and ringed, spotted, and bearded seals. The importance of each of the subsistence species varies among the communities and is mainly based on availability and season.

The communities closest to the project area are, from west to east, the villages of Barrow, Nuiqsut and Kaktovik. Barrow is located >200 mi west from the Hilcorp's proposed survey area. It is the largest community on the Alaska's Beaufort Sea coast. Important marine subsistence resources for Barrow include bowhead and beluga whales, and ice seals. Nuiqsut is located near the mouth of the Colville River, about 55 mi southwest of the proposed project area. Most important marine subsistence resource for Nuiqsut is the bowhead whale, and to a lesser extent belugas and seals. Nuiqsut hunters use Cross Island, (~20 mi northwest of the project area) as a base to hunt for bowhead whales during the fall migration and have historically hunted bowhead whales as far east as Flaxman Island. Kaktovik is located on Barter Island, about 120 mi east of the project area. Major marine subsistence resources include bowhead and beluga whales, and seals.

The bowhead whale is a critical subsistence and cultural resource for the North Slope communities of Barrow, Nuiqsut, and Kaktovik. The level of allowable harvest is determined under a quota system in compliance with the International Whaling Commission (IWC 1980; Gambell 1982). The quota is based on the nutritional and cultural needs of Alaskan Natives as well as on estimates of the size and growth of the Bering-Chukchi-Beaufort seas stock of bowhead whales (Donovan 1982; Braund 1992). The AEWC allots the number of bowhead whales that each community is permitted to harvest. Contemporary whaling in Kaktovik dates from 1964 and in Nuiqsut from 1973 (EDAW/AECOM 2007; Galginaitis and Koski 2002). The number of boats used or owned in 2011 by the subsistence whaling crew of the villages of Kaktovik, Nuiqsut, and Barrow was 8, 12, and 40, respectively. These numbers presumably change from year to year.

Bowhead harvesting in Barrow occurs both during the spring (April-May) and fall (September-October) when the whales migrate relatively close to shore (ADNR 2009). During spring bowheads migrate through open ice leads close to shore. The hunt takes place from the ice using umiaks (bearded seal skin boats). During the fall, whaling is shore-based and boats may travel up to 30 mi a day (EDAW/AECOM 2007). In Barrow, most whales were historically taken during spring whaling. More recently, however, the efficiency of the spring harvest appeared to be lower than the autumn harvest due to ice and weather conditions as well as struck whales escaping under the ice (Suydam et al. 2010). In the past few years the bowhead fall hunt has become increasingly important.

Nuiqsut and Kaktovik hunters harvest bowhead whales only during the fall. The bowhead spring migration in the Beaufort Sea occurs too far from shore for hunting because ice leads do not open up nearshore (ADNR 2009). In Nuiqsut, whaling takes place from early September through mid-to-late September as the whales migrate west (EDAW/AECOM 2007). Three to five whaling crews base themselves at Cross Island, a barrier island approximately 20 mi northwest of the Liberty Unit shallow geohazard survey area. Nuiqsut whalers harvest an average of 2 bowheads each year. Whaling from Kaktovik also occurs in the fall, primarily from late August through late September or early October (EDAW/AECOM 2007). Kaktovik whalers hunt from the Okpilak and Hulahula rivers east to Tapkaurak Point (ADNR 2009). Whaling activities are staged from the community rather than remote camps; most whaling takes place within 12 mi of the community (ADNR 2009). Kaktovik whalers harvest an average of 2-3 bowhead whales each year.

The harvest of belugas is managed cooperatively through an agreement between NMFS and the Alaska Beluga Whale Committee (ABWC). From 2005-2009, between 5 and 48 belugas were harvested annually from the Beaufort Sea stock (Allen and Angliss 2014); with a mean annual take of 25.8 animals. Both Nuiqsut and Kaktovik harvest few belugas, mostly opportunistically during the fall bowhead hunt.

Seals represent an important subsistence resource for the North Slope communities. Harvest of bearded seals usually takes place during the spring and summer open water season from Barrow (EDAW/AECOM 2007) with only a few animals taken by hunters from Kaktovik or Nuiqsut. Seals are also taken during the ice-covered season, with peak hunting occurring in February (ADNR 2009). In 2003, Barrow-based hunters harvested 776 bearded seals, 413 ringed seals and 12 spotted seals (ADNR 2009). Nuiqsut hunters harvest seals in an area from Cape Halkett to Foggy Island Bay. For the period 2000-2001, Nuiqsut hunters harvested one bearded seal and 25 ringed seals (ADNR 2009). Kaktovik hunters also hunt seals year-round. In 2002-2003, hunters harvested 8 bearded seals and 17 ringed seals.

NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as: “an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

The proposed shallow geohazard survey will take place between July 1 and September 30, 2015, with data acquisition occurring in July and August. The project area is located >200 mi east from Barrow, approximately 55 mi northeast from Nuiqsut (20 mi southeast of Cross Island), and 120 mi west from Kaktovik. Potential impact on the subsistence hunt from the planned activities is expected mainly from sounds generated by sonar equipment. Due to the timing of the project and the distance from the surrounding communities, there will be no effects on spring harvesting and little or no effects on the occasional summer harvest of beluga and subsistence seal hunts (ringed and spotted seals are primarily harvested in winter while bearded seals are hunted during July-September in the Beaufort Sea). The community of Nuiqsut may begin fall whaling activities in late August to early September from Cross Island (northwest of the survey area).

Regulations at 50 CFR 216.104(a)(12) require IHA applicants for activities that take place in Arctic waters to provide a Plan of Cooperation (POC) or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes.

Hilcorp has prepared a draft POC and is currently establishing a dialogue to coordinate activities with the villages. A POC will include the aforementioned mitigation measures and includes plans for and results of meetings with Alaska Native communities.

Liberty Unit was transferred to Hilcorp ownership along with the Northstar, Milne Point and Endicott facilities. Previously, BP Exploration, Alaska (BPXA) coordinated with communities and stakeholders regarding the Liberty Unit work during the 2014 season:

• December 13-14, 2012: Meeting with the Alaska Eskimo Whaling Commission (AEWC) and Whaling Captains' Associations during the AEWC Quarterly meeting in Anchorage.

• February 7-8, 2013: CAA discussions with AEWC and Whaling Captains' Associations during the AEWC Annual Convention in Barrow.

Hilcorp plans to continue attending the above meetings and has engaged stakeholders and Native community members throughout 2014. A list of meetings follows:

• Informal engagement with AEWC—July 2014

• Meeting with Native Village of Barrow leadership—August 2014

• Meeting with North Slope Borough (NSB) Wildlife Management Dept.—August 2014

• Meeting with NSB Assembly—August 2014

• Meeting with NSB Planning Commission—October 2014

• Presentation and discussion with AEWC—October 2014

• Meeting with NSB Jacob Adams and NSB Counsel—October 2014

• Cultural awareness/subsistence presentation and Q&A with Uum's Consulting—October 2014

Additional pre-season meetings maybe planned if needed to address additional requests for coordination. Any subsistence discussions will be documented and forwarded to the NMFS as part of the POC.

Hilcorp has begun discussions with the AEWC to develop a Conflict Avoidance Agreement (CAA) intended to minimize potential interference with bowhead subsistence hunting. Hilcorp will attend and participate in the CAA meetings scheduled in 2015. The CAA, when executed, will describe measures to minimize any adverse effects on the availability of bowhead whales for subsistence uses.

The North Slope Borough Department of Wildlife Management (NSB-DWM) was consulted, and the project was also presented to the NSB Planning Commission in January 2015. Hilcorp will hold meetings with key stakeholders in the community of Nuiqsut, Barrow, and Kaktovik to present the proposed project, address questions and concerns, and provide them with contact information of project management to which they can direct concerns during the survey.

The following are measures that Hilcorp will take to reduce impacts to the subsistence community:

• Hilcorp will comply with the CAA terms to address plans to meet with the affected community to resolve conflicts and notify the communities of any changes in the operation.

• Inupiat Marine Mammal Observers on board the vessels are tasked with looking out for whales and other marine mammals in the vicinity of the vessel to assist the vessel captain in avoiding harm to whales and other marine mammals.

• Vessels will be operated in a manner to avoid areas where species that are sensitive to noise or movement are concentrated at times when such species are concentrated.

• Communications and conflict resolution are detailed in the CAA. Hilcorp is planning to participate in the Communications Center that is operated annually during the bowhead subsistence hunt.

• Communications with the villages of Barrow, Kaktovik, and Nuiqsut—discuss community questions or concerns including all subsistence hunting activities.

Hilcorp plans to engage with the relevant subsistence communities regarding its future Beaufort Sea activities. With regard to the 2015 Liberty Unit shallow geohazard survey project, Hilcorp will present the data on marine mammal sightings and the results of the marine mammal monitoring and mitigation as part of our 90-day report to the regulatory authorities.

NMFS considers that these mitigation measures including measures to reduce overall impacts to marine mammals in the vicinity of the proposed shallow geohazard survey area and measures to mitigate any potential adverse effects on subsistence use of marine mammals are adequate to ensure subsistence use of marine mammals in the vicinity of Hilcorp's proposed survey in the Beaufort Sea.

Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the proposed mitigation and monitoring measures, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses from Hilcorp's proposed activities.

There are two marine mammal species listed as endangered under the ESA with confirmed or possible occurrence in the proposed project area: The bowhead whale and ringed seal. NMFS' Permits and Conservation Division has initiated consultation with NMFS' Endangered Species Division under section 7 of the ESA on the issuance of an IHA to Hilcorp under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.

NMFS is preparing an Environmental Assessment (EA), pursuant to NEPA, to determine whether the issuance of an IHA to Hilcorp for its 2015 shallow geohazard activities may have a significant impact on the human environment. NMFS has released a draft of the EA for public comment along with this proposed IHA.

As a result of these preliminary determinations, NMFS proposes to issue an IHA to Hilcorp for conducting shallow geohazard survey in the Beaufort Sea during the 2015 Arctic open-water season, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

(1) This Authorization is valid from July 1, 2015, through September 30, 2015.

(2) This Authorization is valid only for activities associated with Hilcorp's 2015 Beaufort Sea shallow geohazard survey. The specific area where Hilcorp's shallow geohazard survey will be conducted lies within Foggy Island Bay in the U.S. Beaufort Sea, as shown in Figure 1 of Hilcorp's IHA application.

(3)(a) The incidental taking of marine mammals, by Level B harassment only, is limited to the following species: Bowhead whale; gray whale; beluga whale; ringed seal; bearded seal; and spotted seal, as shown in Table 4.

(3)(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:

(i) Sonar sources used for shallow geohazard survey; and

(ii) Vessel activities related to the shallow geohazard survey.

(3)(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the Alaska Regional Administrator (907-586-7221) or his designee in Anchorage (907-271-3023), National Marine Fisheries Service (NMFS) and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, or her designee (301-427-8418).

(4) The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of shallow geohazard survey (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).

(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 4. The taking by injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.

(b) The taking of any marine mammal is prohibited whenever the required source vessel protected species observers (PSOs), required by condition 7(a)(i), are not onboard in conformance with condition 7(a)(i) of this Authorization.

(a) Establishing Zone of Influence (ZOI)

(i) Establish and monitor with trained PSOs a ZOI zone surrounding the sub-bottom profiler on the source vessel where the received level would be 160 dB (rms) re 1 µPa for all marine mammals.

(ii) The sizes of the ZOI is 50 m radius from the source vessel.

(b) Vessel Movement Mitigation:

(i) Avoid concentrations or groups of whales by all vessels under the direction of Hilcorp.

(ii) If any vessel approaches within 1.6 km (1 mi) of observed bowhead whales, except when providing emergency assistance to whalers or in other emergency situations, the vessel operator will take reasonable precautions to avoid potential interaction with the bowhead whales by taking one or more of the following actions, as appropriate:

(A) Reducing vessel speed to less than 5 knots within 300 yards (900 feet or 274 m) of the whale(s);

(B) Steering around the whale(s) if possible;

(C) Operating the vessel(s) in such a way as to avoid separating members of a group of whales from other members of the group;

(D) Operating the vessel(s) to avoid causing a whale to make multiple changes in direction; and

(E) Checking the waters immediately adjacent to the vessel(s) to ensure that no whales will be injured when the propellers are engaged.

(iii) When weather conditions require, such as when visibility drops, adjust vessel speed accordingly, but not to exceed 5 knots, to avoid the likelihood of injury to whales.

(iv) In general, the survey design will start in shallow water and work deeper to mitigate the potential “herding” effect.

(c) Mitigation Measures for Sonar Sources

(i) Ramp-up:

(A) A ramp up, following a cold start, can be applied if the ZOI has been free of marine mammals for a consecutive 30-minute period. The entire ZOI must have been visible during these 30 minutes. If the entire ZOI is not visible, then ramp up from a cold start cannot begin.

(B) If a marine mammal(s) is sighted within the ZOI during the 30-minute watch prior to ramp up, ramp up will be delayed until the marine mammal(s) is sighted outside of the ZOI or the animal(s) is not sighted for at least 15 minutes for pinnipeds, or 30 minutes for cetaceans.

(C) If, for any reason, the sub-bottom profiler has been discontinued for a period of 10 minutes or more, ramp-up procedures shall be implemented. If the PSO watch has been suspended during that time, a 30-minute clearance of the ZOI is required prior to commencing ramp-up. Discontinuation of sonar activity for less than 10 minutes does not require a ramp-up.

(D) The survey operator and PSOs shall maintain records of the times when ramp-ups start and when the sub-bottom profiler reaches full power.

(ii) Power-down/Shutdown:

(A) The sub-bottom profiler shall be immediately powered down whenever a marine mammal is sighted approaching close to or within the sub-bottom profiler at full power, but is outside the ZOI of the sub-bottom profiler at reduced power.

(B) If a marine mammal is already within or is about to enter the ZOI when first detected, the sub-bottom profiler shall be shutdown immediately.

(C) After showdown for more than 10 minutes, ramp-up shall not start until after the marine mammal is visually seen left the ZOI; or 15 minutes have passed after the last detection of the marine mammal with shorter dive durations (pinnipeds and small odontocetes); or 30 minutes have passed after the last detection of the marine mammal with longer diver durations (mysticetes and large odontocetes, including beluga whales).

(iii) Poor Visibility Conditions:

(A) If during foggy conditions, heavy snow or rain, or darkness, the full 160 dB ZOI is not visible, the sub-bottom profiler cannot commence a ramp-up procedure from a full shut-down.

(B) If the sub-bottom profiler has been operational before nightfall or before the onset of poor visibility conditions, they can remain operational throughout the night or poor visibility conditions.

(iv) Firing Sub-bottom Profiler During Turns and Transits

(A) Throughout the shallow geohazard survey, during turning movements and short transits, Hilcorp will employ the use of the lowest setting for the sub-bottom profiler to deter marine mammals from being within the immediate area of the survey. The sub-bottom profiler would be operated at approximately one shot per minute and would not be operated for longer than three hours in duration.

(d) Mitigation Measures for Subsistence Activities:

(i) For the purposes of reducing or eliminating conflicts between subsistence whaling activities and Hilcorp's survey program, the holder of this Authorization will participate with other operators in the Communication and Call Centers (Com-Center) Program. Com-Centers will be operated to facilitate communication of information between Hilcorp and subsistence whalers. The Com-Centers will be operated 24 hours/day during the 2015 fall subsistence bowhead whale hunt.

(ii) All vessels shall report to the appropriate Com-Center at least once every six hours, commencing each day with a call at approximately 06:00 hours.

(iii) The appropriate Com-Center shall be notified if there is any significant change in plans. The appropriate Com-Center also shall be called regarding any unsafe or unanticipated ice conditions.

(iv) Upon notification by a Com-Center operator of an at-sea emergency, the holder of this Authorization shall provide such assistance as necessary to prevent the loss of life, if conditions allow the holder of this Authorization to safely do so.

(v) Hilcorp shall monitor the positions of all of its vessels and exercise due care in avoiding any areas where subsistence activity is active.

(vi) Routing barge and transit vessels:

(A) Vessels transiting in the Beaufort Sea east of Bullen Point to the Canadian border shall remain at least 5 miles offshore during transit along the coast, provided ice and sea conditions allow.

(B) From August 31 to October 31, vessels in the Chukchi Sea or Beaufort Sea shall remain at least 20 miles offshore of the coast of Alaska from Icy Cape in the Chukchi Sea to Pitt Point on the east side of Smith Bay in the Beaufort Sea, unless ice conditions or an emergency that threatens the safety of the vessel or crew prevents compliance with this requirement. This condition shall not apply to vessels actively engaged in transit to or from a coastal community to conduct crew changes or logistical support operations.

(C) Vessels shall be operated at speeds necessary to ensure no physical contact with whales occurs, and to make any other potential conflicts with bowheads or whalers unlikely. Vessel speeds shall be less than 10 knots in the proximity of feeding whales or whale aggregations.

(D) If any vessel inadvertently approaches within 1.6 kilometers (1 mile) of observed bowhead whales, except when providing emergency assistance to whalers or in other emergency situations, the vessel operator will take reasonable precautions to avoid potential interaction with the bowhead whales by taking one or more of the following actions, as appropriate:

• Reducing vessel speed to less than 5 knots within 900 feet of the whale(s);

• Steering around the whale(s) if possible;

• Operating the vessel(s) in such a way as to avoid separating members of a group of whales from other members of the group;

• Operating the vessel(s) to avoid causing a whale to make multiple changes in direction; and

• Checking the waters immediately adjacent to the vessel(s) to ensure that no whales will be injured when the propellers are engaged.

(vii) Hilcorp shall complete operations in time to allow such vessels to complete transit through the Bering Strait to a point south of 59 degrees North latitude no later than November 15, 2015. Any vessel that encounters weather or ice that will prevent compliance with this date shall coordinate its transit through the Bering Strait to a point south of 59 degrees North latitude with the appropriate Com-Centers. Hilcorp vessels shall, weather and ice permitting, transit east of St. Lawrence Island and no closer than 10 miles from the shore of St. Lawrence Island.

(a) Vessel-based Visual Monitoring:

(i) Vessel-based visual monitoring for marine mammals shall be conducted by NMFS-approved PSOs throughout the period of survey activities.

(ii) PSOs shall be stationed aboard the survey vessels through the duration of the surveys.

(iii) A sufficient number of PSOs shall be onboard the survey vessel to meet the following criteria:

(A) 100% monitoring coverage during all periods of survey operations in daylight;

(B) Maximum of 4 consecutive hours on watch per PSO; and

(C) Maximum of 12 hours of watch time per day per PSO.

(iv) The vessel-based marine mammal monitoring shall provide the basis for real-time mitigation measures as described in (6)(c) above.

(v) Results of the vessel-based marine mammal monitoring shall be used to calculate the estimation of the number of “takes” from the marine surveys and equipment recovery and maintenance program.

(i) PSO teams shall consist of Inupiat observers and NMFS-approved field biologists.

(ii) Experienced field crew leaders shall supervise the PSO teams in the field. New PSOs shall be paired with experienced observers to avoid situations where lack of experience impairs the quality of observations.

(iii) Crew leaders and most other biologists serving as observers in 2015 shall be individuals with experience as observers during recent seismic or shallow hazards monitoring projects in Alaska, the Canadian Beaufort, or other offshore areas in recent years.

(iv) Resumes for PSO candidates shall be provided to NMFS for review and acceptance of their qualifications. Inupiat observers shall be experienced in the region and familiar with the marine mammals of the area.

(v) All observers shall complete a training course designed to familiarize individuals with monitoring and data collection procedures. The training course shall be completed before the anticipated start of the 2015 open-water season. The training session(s) shall be conducted by qualified marine mammalogists with extensive crew-leader experience during previous vessel-based monitoring programs.

(vi) Crew members should not be used as primary PSOs because they have other duties and generally do not have the same level of expertise, experience, or training as PSOs, but they could be stationed on the fantail of the vessel to observe the near field, especially the area around the survey vessels, and implement a power-down or shutdown if a marine mammal enters the safety zone (or exclusion zone).

(vii) If crew members are to be used as PSOs, they shall go through some basic training consistent with the functions they will be asked to perform. The best approach would be for crew members and PSOs to go through the same training together.

(viii) PSOs shall be trained using visual aids (e.g., videos, photos), to help them identify the species that they are likely to encounter in the conditions under which the animals will likely be seen.

(ix) Hilcorp shall train its PSOs to follow a scanning schedule that consistently distributes scanning effort according to the purpose and need for observations. All PSOs should follow the same schedule to ensure consistency in their scanning efforts.

(x) PSOs shall be trained in documenting the behaviors of marine mammals. PSOs should record the primary behavioral state (i.e., traveling, socializing, feeding, resting, approaching or moving away from vessels) and relative location of the observed marine mammals.

(i) PSOs shall watch for marine mammals from the best available vantage point on the survey vessels, typically the bridge.

(ii) Observations by the PSOs on marine mammal presence and activity shall begin a minimum of 30 minutes prior to the estimated time that the sub-bottom profiler is to be turned on and/or ramped-up. Monitoring shall continue during the survey operations and last until 30 minutes after the sonar equipment stop firing.

(iii) For comparison purposes, PSOs shall also document marine mammal occurrence, density, and behavior during at least some periods when the sonar equipment used for survey is off.

(iv) PSOs will scan the area around the vessel systematically with reticle binoculars (e.g., 7 × 50 and 16-40 × 80) and with the naked eye. GPS unit and laptop computer(s) will also be available for PSOs onboard survey vessels.

(v) Personnel on the bridge shall assist the marine mammal observer(s) in watching for marine mammals.

(vi) PSOs aboard the marine survey vessel shall give particular attention to the areas within the marine mammal ZOI around the source vessel, as noted in (6)(a)(i) and (ii). They shall avoid the tendency to spend too much time evaluating animal behavior or entering data on forms, both of which detract from their primary purpose of monitoring the exclusion zone.

(vii) Monitoring shall consist of recording of the following information:

(A) The species, group size, age/size/sex categories (if determinable), the general behavioral activity, heading (if consistent), bearing and distance from survey vessel, sighting cue, behavioral pace, and apparent reaction of all marine mammals seen near the survey vessel (e.g., none, avoidance, approach, paralleling, etc);

(B) The time, location, heading, speed, and activity of the vessel (sub-bottom profiler firing or not), along with sea state, visibility, cloud cover and sun glare at (I) any time a marine mammal is sighted (including pinnipeds hauled out on barrier islands), (II) at the start and end of each watch, and (III) during a watch (whenever there is a change in one or more variable);

(C) The identification of all vessels that are visible within 5 km of the survey vessel whenever a marine mammal is sighted and the time observed;

(D) Any identifiable marine mammal behavioral response (sighting data should be collected in a manner that will not detract from the PSO's ability to detect marine mammals);

(E) Any adjustments made to operating procedures; and

(F) Visibility during observation periods so that total estimates of take can be corrected accordingly.

(vii) Distances to nearby marine mammals will be estimated with binoculars containing a reticle to measure the vertical angle of the line of sight to the animal relative to the horizon. Observers may use a laser rangefinder to test and improve their abilities for visually estimating distances to objects in the water.

(viii) PSOs shall understand the importance of classifying marine mammals as “unknown” or “unidentified” if they cannot identify the animals to species with confidence. In those cases, they shall note any information that might aid in the identification of the marine mammal sighted. For example, for an unidentified mysticete whale, the observers should record whether the animal had a dorsal fin.

(ix) Additional details about unidentified marine mammal sightings, such as “blow only,” mysticete with (or without) a dorsal fin, “seal splash,” etc., shall be recorded.

(x) When a marine mammal is seen approaching or within the exclusion zone applicable to that species, the marine survey crew shall be notified immediately so that mitigation measures described in (6) can be promptly implemented.

(i) PSOs aboard the vessels shall maintain a digital log of shallow geohazard survey, noting the date and time of all changes in survey activity (ramp-up, power-down, shutdowns, etc.) and any corresponding changes in monitoring radii in a software spreadsheet.

(ii) PSOs shall utilize a standardized format to record all marine mammal observations and mitigation actions (sub-bottom profiler power-downs, shut-downs, and ramp-ups).

(iii) Information collected during marine mammal observations shall include the following:

(iv) Data shall be recorded directly into handheld computers or as a back-up, transferred from hard-copy data sheets into an electronic database.

(v) A system for quality control and verification of data shall be facilitated by the pre-season training, supervision by the lead PSOs, and in-season data checks, and shall be built into the software.

(vi) Computerized data validity checks shall also be conducted, and the data shall be managed in such a way that it is easily summarized during and after the field program and transferred into statistical, graphical, or other programs for further processing.

(i) Hilcorp shall conduct passive acoustic monitoring using fixed hydrophone(s) to

(A) Document ambient noise conditions;

(B) Examine the spatial and temporal distribution of marine mammals based on acoustic detections of their vocalizations; and

(C) Characterize the long-range propagation of sounds produced during the geohazard survey; and

(ii) Bottom-Mounted Acoustic Sensors:

(A) Recorders shall be capable of recording marine mammal sounds and making both ambient and anthropogenic noise measurements.

(B) Two recorders be deployed near the Liberty prospect and be aligned with the geohazard survey line, at distances of 500 m (AMAR with sampling rate of 64 kHz) and 5000 m (AMAR with sampling rate of 380 kHz) from the offshore end of the survey line.

(C) Recorders shall be located inside of the barrier islands.

(a) Estimation of potential takes or exposures shall be improved for times with low visibility (such as during fog or darkness) through interpolation or possibly using a probability approach. Those data could be used to interpolate possible takes during periods of restricted visibility.

(b) Hilcorp shall provide the information collected, plus a number of summary analyses and graphics to help NMFS assess the potential impacts of Hilcorp's survey. Specific summaries/analyses/graphics would include:

(i) A table or other summary of survey activities (i.e., did the survey proceed as planned);

(ii) A table of sightings by time, location, species, and distance from the survey vessel;

(iii) A geographic depiction of sightings for each species by area and month;

(iv) A table and/or graphic summarizing behaviors observed by species;

(v) A table and/or graphic summarizing observed responses to the survey by species;

(vi) A table of mitigation measures (e.g., power-downs, shutdowns) taken by date, location, and species;

(vii) A graphic of sightings by distance for each species and location;

(viii) A table or graphic illustrating sightings during the survey versus sightings when the sub-bottom profiler was silent; and

(ix) A summary of times when the survey was interrupted because of interactions with marine mammals.

(c) Hilcorp shall collaborate with other industrial operators in the area to integrate and synthesize monitoring results as much as possible (such as submitting “sightings” from their monitoring projects to an online data archive, such as OBIS-SEAMAP) and archive and make the complete databases available upon request.

(a) Technical report: A draft technical report will be submitted to the Director, Office of Protected Resources, NMFS, within 90 days after the end of HIlcorp's 2015 open-water shallow geohazard survey in the Beaufort Sea. The report will describe in detail:

(i) Summaries of monitoring effort (e.g., total hours, total distances, and marine mammal distribution through the study period, accounting for sea state and other factors affecting visibility and detectability of marine mammals);

(ii) Summaries that represent an initial level of interpretation of the efficacy, measurements, and observations, rather than raw data, fully processed analyses, or a summary of operations and important observations;

(iii) Summaries of all mitigation measures (e.g., operational shutdowns if they occur) and an assessment of the efficacy of the monitoring methods;

(iv) Analyses of the effects of various factors influencing detectability of marine mammals (e.g., sea state, number of observers, and fog/glare);

(v) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;

(vi) Data analysis separated into periods when the sub-bottom profiler is operating and when it is not, to better assess impacts to marine mammals;

(vii) Sighting rates of marine mammals during periods with and without the sub-bottom profiler (and other variables that could affect detectability), such as:

(A) Initial sighting distances versus survey activity state;

(B) Closest point of approach versus survey activity state;

(C) Observed behaviors and types of movements versus survey activity state;

(D) Numbers of sightings/individuals seen versus survey activity state;

(E) Distribution around the survey vessel versus survey activity state; and

(F) Estimates of take by harassment;

(viii) A clear comparison of authorized takes and the level of actual estimated takes;

(ix) Cumulative sound exposure level over 24 hours (cSEL24), in particular during the use of the two sub-bottom profilers;

(x) Ground-truth of data collected by AMARs in consultation with biologists experienced in Arctic species vocalizations with error rates for automatic detection to ensure the accurate classification of vocalizations by species; and

(xi) Information of source levels and other acoustic characteristics of the active acoustics survey equipment, such as spectral content, and received levels in root-mean-squared (RMS) dB, sound exposure level (SEL), dB peak to peak and 1/3 octave bands.

(b) The draft technical report shall be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under this Authorization if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report.

(c) Hilcorp will share data and work with its contractor JASCO to collaborate with other researchers. The passive acoustic recording data, including data on marine mammal vocalizations, will be made publically available for researchers.

(10)(a) In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by this Authorization, such as an injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Hilcorp shall immediately cease survey operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to [email protected] and [email protected] and the Alaska Regional Stranding Coordinators ([email protected] and [email protected]). The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) The name and type of vessel involved;

(iii) The vessel's speed during and leading up to the incident;

(iv) Description of the incident;

(v) Status of all sound source use in the 24 hours preceding the incident;

(vi) Water depth;

(vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

(viii) Description of marine mammal observations in the 24 hours preceding the incident;

(ix) Species identification or description of the animal(s) involved;

(x) The fate of the animal(s); and

(xi) Photographs or video footage of the animal (if equipment is available).

Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with Hilcorp to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Hilcorp may not resume their activities until notified by NMFS via letter, email, or telephone.

(b) In the event that Hilcorp discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Hilcorp will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected] and [email protected] and the NMFS Alaska Stranding Hotline (1-877-925-7773) and/or by email to the Alaska Regional Stranding Coordinators ([email protected] and [email protected]). The report must include the same information identified in Condition 10(a) above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Hilcorp to determine whether modifications in the activities are appropriate.

(c) In the event that Hilcorp discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 3 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Hilcorp shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected] and [email protected] and the NMFS Alaska Stranding Hotline (1-877-925-7773) and/or by email to the Alaska Regional Stranding Coordinators ([email protected] and [email protected]), within 24 hours of the discovery. Hilcorp shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Hilcorp can continue its operations under such a case.

(11) Activities related to the monitoring described in this Authorization do not require a separate scientific research permit issued under section 104 of the Marine Mammal Protection Act.

(12) The Plan of Cooperation outlining the steps that will be taken to cooperate and communicate with the native communities to ensure the availability of marine mammals for subsistence uses, must be implemented.

(13) This Authorization may be modified, suspended, or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.

(14) A copy of this Authorization and the Incidental Take Statement must be in the possession of each survey vessel operator taking marine mammals under the authority of this Incidental Harassment Authorization.

(15) Hilcorp is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.

NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for Hilcorp's proposed shallow geohazard survey in the Beaufort Sea. Please include with your comments any supporting data or literature citations to help inform our final decision on Hilcorp's request for an MMPA authorization.

Recovery plans describe actions beneficial to the conservation and recovery of species listed under the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 et seq.). Section 4(f)(1) of the ESA requires that recovery plans incorporate: (1) Objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the Plan's goals; and (3) estimates of the time required and costs to implement recovery actions. The ESA requires the development of recovery plans for each listed species unless such a plan would not promote its recovery.

NMFS began conducting comprehensive and systematic aerial surveys of the Cook Inlet beluga whale population in 1993. These surveys documented a decline in abundance from 653 whales in 1994 to 347 whales in 1998, a decline of nearly 50 percent. This rapid decline was associated with a substantial, unregulated subsistence hunt. Subsequent cooperative efforts between NMFS and Alaska Native subsistence users dramatically reduced subsistence hunts beginning in 1999. If subsistence harvest was the only factor limiting population growth, this reduction in hunting should have allowed the Cook Inlet beluga whale population to begin recovering at a rate of 2 to 6 percent per year; however, survey data indicated that the population was not recovering upon removal of hunting pressure. This lack of population growth led NMFS to reevaluate the status of Cook Inlet beluga whales. In October 2008, NMFS listed the Cook Inlet beluga whale distinct population segment (DPS) as endangered under the ESA (73 FR 62919, October 22, 2008). The most recent (2014) abundance survey indicates a population of 340 Cook Inlet beluga whales that has declined 0.4 percent per year over the past ten years.

The Cook Inlet belugas are the most reproductively and demographically isolated of all the Alaskan belugas, and are unique in Alaska because their habitat, a semi-enclosed tidal estuary in southcentral Alaska, is in close proximity to most of Alaska's human population. The distribution of Cook Inlet belugas has changed significantly since the 1970s; in recent years the summer range has contracted to the upper reaches of Cook Inlet near Anchorage. This range contraction was coincident with the decline in population size.

Ten potential threat types are identified and assessed in this draft recovery plan, based on current knowledge of threat factors. Assessments were made based on the information and data gaps presented in the plan's background section. Climate change, while considered a potential threat to Cook Inlet beluga recovery, is not addressed as a separate threat, but rather is discussed with respect to how it may affect each of the listed threats. The ten identified threats were ranked in order of their relative concern (high, medium, low) to the Cook Inlet beluga population.

Due to an incomplete understanding of the threats facing Cook Inlet beluga whales, NMFS is unable to identify with certainty the actions that will most immediately encourage recovery. Until we know which threats are limiting recovery, the strategy of this recovery plan is to focus on threats identified as medium or high concern. This should focus efforts and resources on actions that are more likely to benefit Cook Inlet beluga whale recovery.

Under section 4(f)(1) of the ESA, recovery plans must contain objective, measurable criteria which, when met, would result in a determination that the species be delisted. This recovery plan contains both demographic and threats-based criteria for down- and delisting. The threat-based recovery criteria are designed to evaluate the five ESA section 4(a)(1) factors described in the ESA listing determination of the Cook Inlet belugas. The draft recovery plan proposes that Cook Inlet beluga whales may be reclassified from endangered to threatened (i.e., downlisted) when all of the following have been met: (1) The abundance estimate for the Cook Inlet beluga whale DPS is greater than or equal to 520 individuals and there is 95 percent or greater probability that the 25-year population abundance trend (representative of one full generation) is positive; and (2) the 15 downlisting threats-based criteria are satisfied. The draft recovery plan proposes that the population will be considered for delisting when all of the following are met: (1) The abundance estimate for the Cook Inlet beluga whale DPS is greater than or equal to 780 individuals and there is 95 percent or greater probability that the 25-year population abundance trend (representative of one full generation) is positive; and (2) the 15 downlisting and 6 delisting threats-based criteria are satisfied.

When determining recovery actions, we aimed to improve understanding of whether a particular threat is limiting recovery and to eliminate or mitigate that threat, or to improve our understanding of, and ability to manage, that threat. The actions in this recovery plan include research, management, monitoring, and outreach efforts, since a comprehensive approach to Cook Inlet beluga whale recovery is likely to have greater success than focusing on any one type of action. There are also actions targeted at incorporating new information and conducting regular reassessments, making this recovery plan an adaptive management plan.

The total time and cost to recovery are very difficult to predict with the current information, and the total cost to recovery will be largely dependent upon the number of recovery actions requiring implementation. Since that cannot be determined prior to implementation of portions of this plan, the total cost presented assumes implementation of all recovery actions. As recovery progresses and we better understand the relationship between discrete threats and population dynamics, it may become apparent that there are some threats that need not be addressed to achieve recovery. However, we expect that recovery may take at least two generations (50 years).

If every identified recovery action is implemented, and if recovery implementation lasts for 50 years (two generations), then the estimated cost of implementing this entire recovery program would be approximately $78.3 million. Any projections of total costs over the full recovery period are likely to be imprecise, and the cost estimates do not imply that funding will necessarily be available for all Cook Inlet beluga whale recovery tasks.

NMFS requests and will consider all substantive comments and information presented during the public comment period as we finalize this Plan. NMFS concludes that the Draft Recovery Plan meets the requirements of the ESA.

ONMS serves as the trustee for 14 marine protected areas encompassing more than 170,000 square miles of ocean and Great Lakes waters from the Hawaiian Islands to the Florida Keys, and from Lake Huron to American Samoa. National marine sanctuaries protect our Nation's most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustains healthy environments that are the foundation for thriving communities and stable economies. One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. National marine sanctuary advisory councils are community-based advisory groups established to provide advice and recommendations to the superintendents of the national marine sanctuaries on issues including management, science, service, and stewardship; and to serve as liaisons between their constituents in the community and the sanctuary. Additional information on ONMS and its advisory councils can be found at http://sanctuaries.noaa.gov. Information related to the purpose, policies and operational requirements for advisory councils can be found in the charter for a particular advisory council (http://sanctuaries.noaa.gov/management/ac/council_charters.html) and the National Marine Sanctuary Advisory Council Implementation Handbook (http://www.sanctuaries.noaa.gov/management/ac/acref.html).

The following is a list of the vacant seats, including positions (i.e., primary member or alternate), for each of the advisory councils currently seeking applications for members and alternates:

Channel Islands National Marine Sanctuary Advisory Council: Non-consumptive Recreation (primary); and Non-consumptive Recreation (alternate).

Flower Garden Banks National Marine Sanctuary Advisory Council: Recreational Fishing (primary).

Gray's Reef National Marine Sanctuary Advisory Council: Conservation (primary); University Education (primary); Sport Diving (primary); and Citizen-at-Large (primary).

Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Commercial Shipping (primary); Commercial Shipping (alternate); Hawaii County (alternate); Lanai Island (alternate); Citizen-at-Large (alternate); Education (alternate); Tourism (alternate); and Whale Watching (alternate).

Monitor National Marine Sanctuary Advisory Council: Commercial and Recreational Fishing (primary).

National Marine Sanctuary of American Samoa Advisory Council: Business and Industry (primary); and Community-at-Large: Tutuila—West Side (primary).

Stellwagen Bank National Marine Sanctuary Advisory Council: At-Large (primary); Business Industry (primary); Diving (primary); Diving (alternate); Education (2 primary seats); Fixed Gear Commercial Fishing (primary); Fixed Gear Commercial Fishing (alternate); Mobile Gear Commercial Fishing (alternate); Recreational Fishing (alternate); Research (2 alternate seats); and Whale Watch (primary).

The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

The applicant proposes to film a variety of marine mammals along the California coast from Point Año Nuevo south to the Channel Islands. A maximum of 1000 long-beaked common dolphins (Delphinus capensis), 1000 short-beaked common dolphins (Delphinus delphis), 1000 Risso's dolphins (Grampus griseus), 50 bottlenose dolphins (Tursiops truncatus), 50 harbor seals (Phoca vitulina), and 1000 California sea lions (Zalophus californianus) would be approached for filming. In addition, up to 200 Northern elephant seals (Mirounga angustirostris) would be filmed while hauled out on land. Fifty Steller sea lions (Eumetopias jubatus) and 50 Northern fur seals (Callorhinus ursinus) may be incidentally harassed and filmed during operations. Cetaceans would be filmed from boats and pole cameras. Pinnipeds would be filmed from boats, pole cameras, underwater divers, and while hauled out on land. Hydrophones would be used to record sounds. Footage would be used for a Big Blue Live television series examining marine issues and conservation successes along the coast of California. Filming would occur July through September 2015. The permit would be valid until September 30, 2015.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

This notice informs the public that the Board of FirstNet will convene an open public meeting on June 3, 2015, preceded by open public meetings of the Board Committees on June 2, 2015.

Background: The Middle Class Tax Relief and Job Creation Act of 2012 (Act), Public Law 112-96, 126 Stat. 156 (2012), established FirstNet as an independent authority within the National Telecommunications and Information Administration that is headed by a Board. The Act directs FirstNet to ensure the building, deployment, and operation of a nationwide, interoperable public safety broadband network. The FirstNet Board is responsible for making strategic decisions regarding FirstNet's operations. The FirstNet Board held its first public meeting on September 25, 2012.

Matters to be Considered: FirstNet will post detailed agendas of each meeting on its Web site, http://www.firstnet.gov, prior to the meetings. The agenda topics are subject to change. Please note that the subjects that will be discussed by the Committees and the Board may involve commercial or financial information that is privileged or confidential, personnel matters, or other legal matters affecting FirstNet. As such, the Committee Chairs and Board Chair may call for a vote to close the meetings only for the time necessary to preserve the confidentiality of such information, pursuant to 47 U.S.C. 1424(e)(2).

Times and Dates of Meetings: On June 2, 2015, between 9:00 a.m. and 6:00 p.m. Pacific Daylight Time, there will be sequential open public meetings of FirstNet's four committees. The open public meeting of the full FirstNet Board will be held on June 3, 2015, between 8:00 a.m. and 10:00 a.m. Pacific Daylight Time.

Place: The meetings on June 2 and June 3, 2015 will be held at the Omni San Diego Hotel, 675 L Street, San Diego, CA 92101.

Other Information: These meetings are open to the public and press on a first-come, first-served basis. Space is limited. In order to get an accurate headcount, all expected attendees are asked to provide notice of intent to attend by sending an email to [email protected]. If the number of RSVPs indicates that expected attendance has reached capacity, FirstNet will respond to all subsequent notices indicating that capacity has been reached and that in-person viewing may no longer be available but that the meeting may still be viewed by webcast as detailed below. For access to the meetings, valid government issued photo identification may be requested for security reasons.

The meetings are accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Uzoma Onyeije, Secretary, FirstNet, at (703) 648-4165 or [email protected], at least five (5) business days before the applicable meeting(s).

The meetings will also be webcast. Please refer to FirstNet's Web site at www.firstnet.gov for webcast instructions and other information. The meetings will also be available to interested parties by phone. To be connected to the meetings in listen-only mode by telephone, please dial (888) 997-9859 and passcode 3572169. If you have technical questions regarding the webcast, please contact Margaret Baldwin at (703) 648-4161 or by email at [email protected].

Records: FirstNet maintains records of all Board proceedings. Minutes of the Board Meeting and the Committee meetings will be available at www.firstnet.gov.

This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the service listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.

The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:

The following products are proposed for deletion from the Procurement List:

The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). The Committee plans to submit a request to OMB to approve a revised collection of information concerning annual certification of nonprofit agencies serving people who are blind or who have other significant disabilities to participate in the AbilityOne Program. The Committee is requesting a 3-year term of approval for this information collection activity.

Federal agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the current collections of information are 3037-0001 and 3037-0002. The OMB control number for the revised collection of information is 3037-0013.

The JWOD Act of 1971 (41 U.S.C. 8501-8506) is the authorizing legislation for the AbilityOne Program. The AbilityOne Program creates jobs and training opportunities for people who are blind or who have other severe disabilities. Its primary means of doing so is by requiring Government agencies to purchase selected products and services from nonprofit agencies employing such individuals. The AbilityOne Program is administered by the Committee. Two national, independent organizations, National Industries for the Blind (NIB) and SourceAmerica, help State and private nonprofit agencies participate in the AbilityOne Program.

The implementing regulations for the JWOD Act, which are located at 41 CFR Chapter 51, provide the requirements, procedures, and standards for the AbilityOne Program. Section 51-4.3 of the regulations sets forth the standards that a nonprofit agency must meet to maintain qualification for participation in the AbilityOne Program. Under this section of the regulations, a nonprofit agency that wants to continue to participate in the AbilityOne Program must submit a completed copy of the appropriate Annual Certification form (Committee Form 403 or 404). This documentation helps the Committee determine whether the applicant nonprofit agency is meeting the requirements of the AbilityOne Program.

This information collection request seeks approval for the Committee to continue to collect the information required under 41 CFR 51-4.3 of the regulations, but in a revised and expanded format, so that the Committee can continue to verify the appropriateness of nonprofit agencies that would like to participate in the AbilityOne Program. The previous separate forms have been combined into one form. The items being certified have been revised to match the regulatory requirements of section 51-4.3 and to collect other pertinent information on the qualifications of nonprofit agencies. New questions concerning nonprofit agency hours, wages, people performing direct labor, subcontracting and veterans have been added. In addition, the language at the bottom of the certification section has been revised.

Title: Annual Representations and Certifications For AbilityOne Qualified Nonprofit Agency.

OMB Control Number: 3037-0013.

Form Number: Reps and Certs.

Description of Respondents: Nonprofit agencies serving people who are blind or significantly disabled that participate in the AbilityOne Program.

Annual Number of Respondents: About 570 nonprofit agencies serving people who are blind or significantly disabled will annually participate in the AbilityOne Program.

Total Annual Burden Hours: Burden is estimated to average 8 hours per respondent. Total annual burden is 4,560 hours. Note: this burden estimate is only for the reporting of information; a separate burden estimate exists for the recordkeeping requirement.

We invite comments concerning this renewal on: (1) Whether the collection of information is necessary for the proper performance of our agency's functions, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents.

Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, the CFTC is publishing notice of the proposed collection of information listed below.

Title: Customer Clearing Documentation and Timing of Acceptance for Clearing (OMB Control No. 3038-0092). This is a request for extension of a currently approved information collection.

Abstract: Section 4d(c) of the Commodity Exchange Act (“CEA” or “Act”), as amended by the Dodd-Frank Act, directs the Commission to require futures commission merchants to implement conflict of interest procedures that address such issues the Commission determines to be appropriate. Similarly, section 4s(j)(5), as added by the Dodd-Frank Act, requires swap dealers and major swap participants to implement conflict of interest procedures that address such issues the Commission determines to be appropriate. Section 4s(j)(5) also requires swap dealers and major swap participants to ensure that any persons providing clearing activities or making determinations as to accepting clearing customers are separated by appropriate informational partitions from persons whose involvement in pricing, trading, or clearing activities might bias their judgment or contravene the core principle of open access. Section 4s(j)(6) of the CEA prohibits a swap dealer and major swap participant from adopting any process or taking any action that results in any unreasonable restraint on trade or imposes any material anticompetitive burden on trading or clearing, unless necessary or appropriate to achieve the purposes of the Act. Section 2(h)(1)(B)(ii) of the CEA requires that derivatives clearing organization rules provide for the non-discriminatory clearing of swaps executed bilaterally or through an unaffiliated designated contract market or swap execution facility.

Pursuant to these provisions, the Commission adopted § 1.71(d)(1) relating to FCMs and § 23.605(d)(1) relating to swap dealers and major swap participants. These regulations prohibit swap dealers and major swap participants from interfering or attempting to influence the decisions of affiliated FCMs with regard to the provision of clearing services and activities and would prohibit FCMs from permitting them to do so. The Commission also adopted § 23.607 to prohibits a swap dealer and major swap participant from adopting any process or taking any action that results in any unreasonable restraint on trade or imposes any material anticompetitive burden on trading or clearing, unless necessary or appropriate to achieve the purposes of the Act. The Commission adopted § 39.12(b)(2) to require that derivatives clearing organization rules provide for the non-discriminatory clearing of swaps executed bilaterally or through an unaffiliated designated contract market or swap execution facility.

As discussed further below, the additional information collection burden arising from the regulations primarily is restricted to the costs associated with the affected registrants' obligation to maintain records related to clearing documentation between the customer and the customer's clearing member.

The information collection obligations imposed by the regulations are necessary to implement certain provisions of the CEA, including ensuring that registrants exercise effective risk management and for the efficient operation of trading venues among SDs, MSPs, FCMs, and DCOs.

With respect to the collection of information, the CFTC invites comments on:

• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and

• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.1

The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the Information Collection Request will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

Burden Statement: The respondent burden for this collection is estimated to average between 16 hours for FCMs and SDs and MSPs, and 40 hours for DCOs per response. This estimate includes the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. The total annual cost burden per respondent is estimated to be $736 for FCMs, SDs, and MSPs and $1,840 for DCOs. The Commission based its calculation on an hourly wage rate of $46 for a financial manager to maintain the data.

Respondents/Affected Entities: Swap dealers, Major Swap Participants, Futures Commission Merchants, and Derivatives Clearing Organizations.

Estimated number of respondents: 239 Swap Dealers, Major Swap Participants and Futures Commission Merchants, and 14 Derivatives Clearing Organizations.

Estimated total annual burden on respondents: 3,824 for FCMs, SDs, and MSPs, and 560 hours for DCOs.

Frequency of collection: As needed.

Title; Associated Form; and OMB Number: “Department of Defense Security Agreement,” “Appendage to Department of Defense Security Agreement,” “Certificate Pertaining to Foreign Interests;” DD Forms, 441, 441-1 and SF 328; OMB No. 0704-0194.

Needs and Uses: Executive Order (EO) 12829 as amended, “National Industrial Security Program (NISP),” stipulates that the Secretary of Defense shall serve as the Executive Agent for inspecting and monitoring the contractors, licensees, and grantees who require or will require access, to or who store or will store classified information; and for determining the eligibility for access to classified information of contractors, licensees, and grantees and their respective employees. The specific requirements necessary to protect classified information released to private industry are set forth in Department of Defense (DoD) 5220.22M, “National Industrial Security Program Operating Manual (NISPOM),” dated February 28, 2006 as amended by Conforming Change 1, dated March 28, 2013. These forms are mandated in the Industrial Security Regulation DoD 5220.22-R dated December 1985 as amended, DoD 5220.22—NISP Volume 3, dated April 17, 2014 and The Federal Acquisition Regulation. Respondents must execute DD Form 441, “Department of Defense Security Agreement,” which is the initial agreement between the contractor and the government regarding security requirements necessary to protect classified information associated with the contract. This legally binding document details the responsibility of both parties and obligates the contractor to fulfill the requirements outlined in DoD 5220.22M. The DD Form 441-1, “Appendage to Department of Defense Security Agreement,” is used to extend the agreement to branch offices of the contractor. The SF Form 328, “Certificate Pertaining to Foreign Interests,” must be submitted to provide certification regarding elements of Foreign Ownership, Control or Influence (FOCI) as stipulated in paragraph 2-302 of the NISPOM.

DSS proposes to make changes to the DD Form 441 and SF 328. The requirement for execution of the corporate “Certificate” section and the use of a corporate seal is being deleted. Currently the government does not require all corporations to execute the corporate Certificate portion of the Forms. Only those corporations who are in possession of a seal were being required to execute the Certificate. Corporations that do not have a seal and other types of businesses structures such as limited liability companies, partnership and sole proprietors are only required to have the signing of the agreement witnessed. DSS proposes that a witness is sufficient for all companies whether or not they are a corporation.

Affected Public: Business, other profit, and non-profit organizations under DoD Security Cognizance.

DD 441 Total Annual Burden Hours: 698.13.

DD Form 441 Number of Respondents: 2,992.

Total DD Form 441 Responses: 2,992.

Average Burden Hours per Respondent: 14 minutes.

Number of Responses per Respondent: 1.

DD Form 441-1 Total Annual Burden Hours: 171.5.

Total DD Form 441-1 Respondents: 1,029.

Total DD Form 441-1 Responses: 1,029.

Average Burden Hours per Respondent: 10 minutes.

Number of Responses per Respondent: 1.

SF 328 Total Annual Burden Hours: 3,301.67.

Total SF 328 Respondents: 2,830.

Total SF 328 Responses: 2,830.

Averge Burden Hours per Respondent: 1 hour 10 minutes or 70 MINUTES.

Number of Responses per Respondent: 1.

Combined Total Number of Respondents: 6,851.

Combined Total Number of Responses: 6,851.

Combined Total Burden Hours: 4,171.3.

Combined Total Burden Hours per Respondent: 1.5 or 94 minutes.

Frequency: On occasion.

The execution of the DD Form 441, 441-1 and SF 328 is a factor in making a determination as to whether a contractor company is eligible to have a facility security clearance. It is also a legal basis for imposing NISP security requirements on eligible contractors. These requirements are necessary in order to preserve and maintain the security of the United States through establishing standards to prevent the improper disclosure of classified information.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Health Education Assistance Loan (HEAL) Program: Forms.

OMB Control Number: 1845-0128.

Type of Review: A revision of an existing information collection.

Respondents/Affected Public: Individuals or Households, Private Sector.

Total Estimated Number of Annual Responses: 167.

Total Estimated Number of Annual Burden Hours: 24.

Abstract: The Health Education Assistance Loan (HEAL) forms are required for lenders to make application to the HEAL insurance program, to report accurately and timely on loan actions, including transfer of loans to a secondary agent, and to establish the repayment status of borrowers who qualify for deferment of payments using form 508. The reports assist in the diligent administration of the HEAL program, protecting the financial interest of the federal government.

Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management and related activities.

Tentative Agenda:

Public Participation: The EM SSAB, Paducah, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Jennifer Woodard as soon as possible in advance of the meeting at the telephone number listed above. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Jennifer Woodard at the telephone number listed above. Requests must be received as soon as possible prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comments will be provided a maximum of five minutes to present their comments. The EM SSAB, Paducah, will hear public comments pertaining to its scope (clean-up standards and environmental restoration; waste management and disposition; stabilization and disposition of non-stockpile nuclear materials; excess facilities; future land use and long-term stewardship; risk assessment and management; and clean-up science and technology activities). Comments outside of the scope may be submitted via written statement as directed above. This notice is being published less than 15 days prior to the meeting date due to programmatic issues that had to be resolved prior to the meeting date.

Minutes: Minutes will be available by writing or calling Jennifer Woodard at the address and phone number listed above. Minutes will also be available at the following Web site: http://www.pgdpcab.energy.gov/2015Meetings.html.

Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB.

Abstract: Clean Air Act section 182 and EPA's regulations (40 CFR part 51, subpart S) establish the requirements for state and local I/M programs that are included in state implementation plans (SIPs). To provide general oversight and support to these programs, the U.S. Environmental Protection Agency requires that state agencies with basic and enhanced I/M programs collect two varieties of reports for submission to EPA:

• An annual report providing general program operating data and summary statistics, addressing the program's current design and coverage, a summary of testing data, enforcement program efforts, quality assurance and quality control efforts, and other miscellaneous information allowing for an assessment of the program's relative effectiveness; and

• A biennial report on any changes to the program over the two-year period and the impact of such changes, including any weaknesses discovered and corrections made or planned.

General program effectiveness is determined by the degree to which a program misses, meets, or exceeds the emission reductions committed to in the state's approved SIP, which, in turn, must meet or exceed the minimum emission reductions expected from the relevant performance standard, as promulgated under EPA's revisions to 40 CFR, part 51, subpart S, in response to requirements established in section 182 of the Clean Air Act. This information is used by EPA to determine a program's progress toward meeting requirements under 40 CFR, part 51, subpart S, and to provide background information in support of program evaluations. Additional information regarding the current renewal of this ICR as well as previous renewals can be found in Docket ID No. EPA-HQ-OAR-2008-0707.

Form Numbers: None.

Respondents/affected entities: state I/M program managers.

Respondent's obligation to respond: mandatory (40 CFR 51.366).

Estimated number of respondents: 28 state air quality agencies (total).

Frequency of response: annual and biennial.

Total estimated burden: 2,408 hours (per year). Burden is defined at 5 CFR 1320.03(b)

Total estimated cost: $147,462 (per year), includes $0 annualized capital or operation & maintenance costs.

Changes in Estimates: There is no change in the total estimated respondent burden compared with the ICR currently approved by OMB.

This is a summary of the Commission's documents [DA 15-535] dated and released May 5, 2015, [DA 15-324] dated and released March 17, 2015 and [DA-14-1806] dated and released December 10, 2014.

By Public Notice [DA 14-1806] dated and released December 10, 2014, the Commission announced the renewal of the Committee for an eighth two year term, and solicited applications for membership thereon. This renewal was necessary and in the public interest. Numerous applications were received through January 20, 2015, at which time the period for receipt of applications closed.

On March 12, 2015, the Commission released a Report and Order on Remand, Declaratory Ruling, and Order in the Matter of Protecting and Promoting the Open Internet (NG Docket No. 1428), adopted on February 26, 2015. The Commission's Open Internet Order directed the CAC to “formulate and submit to the Commission a proposed [Open Internet enhanced transparency rule] disclosure format, based on input from a broad range of stakeholders, within six months of the time that its new membership is reconstituted, but, in any event, no later than October 31, 2015.” This disclosure format must be accessible to persons with disabilities. The Commission stated its expectation that the CAC “will consider whether to propose the same or different formats for fixed and mobile broadband providers.” Additionally, the Commission expects the CAC to consider “whether and how a standard format for mobile broadband providers will allow providers to continue to differentiate their services competitively, as well as how mobile broadband providers can effectively disclose commercial terms to consumers regarding myriad plans in a manner that is not administratively burdensome.” This recommendation may serve as a potential safe harbor for broadband providers seeking to meet the Commission's Open Internet transparency requirements.

To assist the Committee in responding to this charge and in furtherance of the Committee's other responsibilities, the Commission, by public Notice [DA 15-324], dated and released March 17, 2015 announced a second solicitation of applications for membership on the Committee. Several additional applications were received through April 1, 2015, at which time the period for receipt of second round applications closed.

The Committee will operate in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. App. 2 (1988). Each meeting of the Committee will be open to the public. A notice of each meeting will be published in the Federal Register at least fifteen (15) days in advance of the meeting. Records will be maintained of each meeting and made available for public inspection.

During the Committee's eighth term, it is anticipated that the Committee will meet in Washington, DC for a minimum of two (2) one-day plenary meetings per year. In addition, as needed, working groups or subcommittees will be established to facilitate the Committee's work between meetings of the full Committee. Meetings will be fully accessible to individuals with disabilities.

Members must be willing to commit to a two (2) year term of service, and should be willing and able to attend a minimum of two (2) one-day plenary committee meetings per year in Washington, DC Committee members are also expected to participate in deliberations of at least one (1) working group or subcommittee.

By Public Notice [DA 15-535] dated and released May 5, 2015, the Commission announced the appointment of thirty-seven (37 members of the Committee. Of these, twenty-one (21) represent general consumer organizations/academia, two (2) represent disability organizations, eight (8) represent industry, four (4) represent regulators, one (1) represents seniors, and one (1) represents unions. The Committee's membership is designed to be representative of the Commission's many constituencies, and the diversity of the selected members will provide a balanced point of view as required by the Federal Advisory Committee Act. In addition, Chairman Wheeler reappoints Debra R. Berlyn representing the National Consumers League as Chairperson of the Committee. All appointments and reappointments are effective immediately and shall terminate October 21, 2016, or when the Committee is terminated, whichever is earlier.

The Committee's roster by organization name and primary representative is as follows:

The first meeting of the Committee under its renewed charter will take place on June 12, 2015, from 9:00 a.m. to 4:00 p.m. at the Commission's headquarters building, Commission Meeting Room TW-C305, 445 12th Street SW., Washington, DC 20554.

At its June 12, 2015 meeting, the Committee will consider administrative and procedural matters relating to its functions and will also discuss development of a proposed Open Internet enhanced transparency rule disclosure format, as directed in the Commission's Open Internet Order referenced above.

The Committee may receive briefings from commission staff and/or outside speakers on issues of interest to the Committee. A limited amount of time will be available on the agenda for comments from the public. If time permits, the public may ask questions of presenters via the email address [email protected] or via Twitter using the hashtag #fcclive. In addition, the public may also follow the meeting on Twitter @fcc or via the Commission's Facebook page at www.facebook.com/fcc. Alternatively, members of the public may send written comments to: Scott Marshall, Designated Federal Officer of the Committee at the address provided above.

The meeting is open to the public and the site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, assistive listening devices, and Braille copies of the agenda and committee roster will be provided on site. Meetings of the Committee are also broadcast live with open captioning over the Internet from the FCC Live Web page at www.fcc.gov/live/.

Other reasonable accommodations for people with disabilities are available upon request. The request should include a detailed description of the accommodation needed and contact information. Please provide as much advance notice as possible; last minute requests will be accepted, but may not be possible to fill. To request an accommodation, send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for May 5, 2015), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before June 5, 2015. Write “ZF Friedrichshafen AG's and TRW Automotive Holdings Corp.—Consent Agreement; File No. 141-0235” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/zftrwautomativeconsent by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

If you file your comment on paper, write “ZF Friedrichshafen AG's and TRW Automotive Holdings Corp.—Consent Agreement; File No. 141-0235” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before June 5, 2015. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see http://www.ftc.gov/ftc/privacy.htm.

The Federal Trade Commission (“Commission”) has accepted from ZF Friedrichshafen AG (“ZF”) and TRW Automotive Holdings Corp. (“TRW”), subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) designed to remedy the anticompetitive effects resulting from ZF's proposed acquisition of TRW.

Pursuant to an Agreement and Plan of Merger dated September 15, 2014, the parties agreed that ZF would acquire TRW for $105.60 per share in an all-cash deal valued at approximately $12.4 billion (“the Acquisition”). The proposed Acquisition would result in a duopoly in the heavy vehicle tie rod market. The Commission's Complaint alleges that the proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC Act, as amended, 15 U.S.C. 45, by substantially lessening competition in the market for heavy vehicle tie rods in North America.

Under the terms of the proposed Decision and Order (“Order”) contained in the Consent Agreement, the parties are required to divest TRW's Linkage and Suspension Business in a manner, and to an acquirer, that meets Commission approval. The divestiture package includes five manufacturing facilities in North America and Europe, along with related assets including intellectual property. The acquirer also has the option to enter into transitional services and supply agreements. The Consent Agreement provides an acquirer with everything needed to compete effectively in the North American heavy vehicle tie rod market. The parties must complete the divestiture within six months of executing the Consent Agreement.

The Consent Agreement has been placed on the public record for 30 days to solicit comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the Consent Agreement and the comments received, and decide whether it should withdraw from the Consent Agreement, modify it, or make it final.

Headquartered in Friedrichshafen, Germany, ZF is a privately held global automotive and industrial products manufacturer. ZF makes light and heavy vehicle components for the powertrain, chassis, and driveline. ZF designs, manufacturers, and sells heavy vehicle tie rods, amongst several other products, in its chassis division.

Headquartered in Livonia, Michigan, TRW sells chassis systems, electronic systems, passive occupant safety systems, and other automotive components. Like ZF, TRW designs, manufactures, and sells heavy vehicle tie rods.

The relevant line of commerce in which to analyze the effects of the Acquisition is heavy vehicle tie rods. A heavy vehicle is generally defined as one that weighs six tons or more, and a tie rod is a rigid connecter that links a vehicle's individual wheels with the steering control mechanism. Customers and other market participants did not identify any substitutes for heavy vehicle tie rods.

North America is the relevant geographic market in which to analyze the effects of the Acquisition on the heavy vehicle tie rod market. The size and weight of heavy vehicle tie rods generally make it uneconomical to ship them long distances. Customers interviewed primarily consider manufacturers in North America, and have found more distant firms uncompetitive for reasons including: (1) Price; (2) logistics; and (3) quality. Therefore, North America is the relevant geographic market.

The market for heavy vehicle tie rods in North America is highly concentrated. It is served primarily by ZF, TRW, and USK Internacional S.A. DE C.V. (“Urresko”). These three firms have a share of nearly 99% of the market based on unit sales. The merger would reduce the number of competitors from three to two, and increase the Herfindahl-Hirschman Index from 4,218 to 5,046, an increase of 828.

Entry into the North American heavy vehicle tie rod market is not likely to deter or counteract any anticompetitive effects of the proposed Acquisition. Entry is unlikely in light of the relatively small market size, strong position of incumbents, high capital costs, switching costs, and knowledge barriers that exist. The parties did not identify any likely entrants, and those firms best situated for entry—manufacturers of related heavy vehicle components—expressed no interest in entering the North American heavy vehicle tie rod market.

The proposed Acquisition would increase the likelihood of coordinated interaction among the remaining competitors in the North American heavy vehicle tie rod market. The combined company would have only one remaining significant competitor in North America, Urresko. Reducing the number of competitors from three to two would eliminate much uncertainty and make it easier for the remaining firms to reach agreement on terms of coordination, whether the coordination focuses on customer allocation, price, or some other aspect of competition.

Additionally, the proposed Acquisition would eliminate direct competition between ZF and TRW, resulting in the increased probability that customers would pay higher prices for heavy vehicle tie rods. In the past, customers have been able to use competition between ZF and TRW to obtain better prices by obtaining competing bids. Customers have also switched between ZF and TRW. That competition would be lost absent the merger.

The Consent Agreement eliminates the competitive concerns raised by ZF's proposed acquisition of TRW by requiring the parties to divest TRW's North American and European Linkage and Suspension Business (“the L&S Business”). The proposed divestiture includes everything needed for an acquirer to compete effectively in the North American market for heavy vehicle tie rods, and also includes additional products that ensure the business will be viable. Given the robust nature of the divested business, the Commission is confident that a post-order divestiture is sufficient to protect its interest in restoring competition.

Pursuant to the Order, the parties are required, no later than six months from execution of the Consent Agreement, to divest the L&S Business to a Commission-approved acquirer. That business consists of both heavy and light vehicle components, and includes—in addition to tie rods—control arms, ball joints, stabilizer links, conventional steering linkages, drag links, V-links, radius rods, and I-shafts. The divestiture buyer will receive all rights and assets relating to the L&S Business, including five TRW manufacturing facilities, Portland (U.S.), Tillsonburg-Plant 2 (Canada), St. Catharines (Canada), Dacice (Czech Republic), and Krefeld-Gellep (Germany), as well as leased space previously occupied by L&S research and development at TRW's Dusseldorf Tech Center. The divested assets also include intellectual property rights as well as all books, records, and confidential business information related to the L&S Business.

To ensure that the divestiture is successful, the Order requires the parties to provide transition services such as logistical and administrative support at the option of the acquirer. Moreover, the acquirer will have the option to enter into a transition supply agreement with the parties for key manufacturing inputs necessary to perform existing customer contracts. The Consent Agreement also includes other standard terms designed to ensure the viability of the divestiture, including requirements that the parties assist the acquirer in hiring the existing work force of the business, and refrain from soliciting those employees for up to two years.

Given the robustness of the divested business and the protections contained in the Order, the Commission is confident that a post-order divestiture will be sufficient to preserve competition. The L&S Business has been run largely as a standalone business within TRW, and potential buyers have confirmed that the divested assets include everything necessary to compete effectively as a viable business. Similarly, potential customers have confirmed that an acquirer of the L&S Business would be a workable option as a supplier.

To ensure compliance with the Order, the Commission will appoint an Interim Monitor to oversee ZF's and TRW's performance of their obligations pursuant to the Consent Agreement, and to keep the Commission informed about the status of the divestiture. The Order also allows the Commission to appoint a Divestiture Trustee to accomplish the divestiture if the parties fail to divest within the required timeframe. Lastly, the Consent Agreement contains standard reporting requirements and terminates in ten years.

The Commission has also issued an Order to Hold Separate and Maintain Assets to protect the assets until they are divested. During the hold separate period, the parties must fund the business' operations, including capital projects, according to existing plans. To ensure compliance with the Hold Separate Order, a Commission-approved Hold Separate Monitor will oversee the L&S Business during the interim period.

The purpose of this analysis is to facilitate public comment on the Consent Agreement to aid the Commission in determining whether it should make the Consent Agreement final. This analysis is not an official interpretation of the proposed Consent Agreement and does not modify its terms in any way.

The Commission has issued a proposed complaint and consent order to address narrow competitive concerns associated with ZF Friedrichshafen AG's proposed $12.4 billion acquisition of TRW Automotive Holdings Corp.1 Specifically, we have reason to believe that this proposed acquisition is likely to substantially reduce competition in the manufacture and sale of heavy vehicle tie rods in North America. The proposed remedy, which involves a divestiture of TRW's linkage and suspension business in North America and Europe, addresses our competitive concerns and will bolster the viability of the divested business in the hands of a buyer, without eliminating efficiencies that otherwise might arise from the combination of the two companies.

ZF and TRW are global automotive parts manufacturers. Both companies manufacture and sell a wide variety of components for discrete systems within a motor vehicle such as the chassis, powertrain, and suspension systems. They each have production facilities located throughout the United States, Canada, and Mexico.

The proposed transaction will create the second-largest global auto parts supplier. Our competitive concerns arise from a limited aspect of the proposed combination, namely, its likely effect in the market for the manufacture and sale of heavy vehicle tie rods for customers in North America. Tie rods are part of a motor vehicle's steering and linkage system; they are rigid connectors that link the wheels to the vehicle's steering control mechanism. To perform their intended function within the linkage systems of vehicles weighing six tons or more, these tie rods have to be large (approximately three to six feet long) and heavy (weighing approximately 50 pounds). This means that tie rods designed for light vehicles are not practical substitutes since they would be too small and light and therefore not as strong structurally. At the same time, tie rods designed for much heavier, industrial vehicles (like mining vehicles weighing hundreds of tons) would not be substitutes either.

Because of their weight, it is not economical to ship heavy vehicle tie rods over long distances. For this reason, North American customers primarily consider manufacturers with production facilities in the United States, Canada, and Mexico and generally do not regard suppliers outside of North America as viable options for reasons of price, logistics, and quality. As a result, ZF and TRW, together with a Mexican firm, USK Internacional, S.A. de C.V. (“Urresko”), account for virtually all (99%) of the sales of heavy vehicle tie rods in North America. We estimate the market shares of ZF, TRW, and Urresko to be 23%, 18%, and 58%, respectively. Fringe competitors hold the remaining 1% market share.

The parties' proposed combination will therefore reduce the number of significant competitors in the relevant market from three to two and substantially increase concentration in an already highly concentrated market.2 Based on this increase in concentration and current market conditions, we believe the transaction is likely to produce substantial anticompetitive effects in the relevant market, in particular, by increasing the potential for coordination. Furthermore, there is unlikely to be any entry that would alleviate our competitive concerns. The small market size, the strong position of the incumbents, switching costs, and capital and knowledge barriers, among other factors, would more than likely deter North American manufacturers of related automotive parts—the most logical candidates for entry—from expanding their product offerings to include heavy vehicle tie rods. Consequently, we have reason to believe that the proposed combination would substantially lessen competition in the relevant market and harm customers and consumers, thereby violating Section 7 of the Clayton Act.

In light of the foregoing, we respectfully disagree with Commissioner Wright's assertions that we lack a “credible basis” on which to conclude that the merger may enhance the risk of coordination and that our action is otherwise inconsistent with the 2010 Horizontal Merger Guidelines.3 Under the 2010 Guidelines, substantial increases in concentration caused by a merger rightly continue to play an important role in our merger analysis.4 They do so for the simple reason that highly concentrated markets are more conducive to anticompetitive outcomes than less concentrated markets.5 Accordingly, the lens we apply to the evidence in a merger that reduces the number of firms in a market to three or two is, and should be, different than the lens we apply to a merger that reduces the number of firms to seven or six. Where, as here, a proposed merger significantly increases concentration in an already highly concentrated market, a presumption of competitive harm is justified under both the Guidelines and well-established case law.6

Despite Commissioner Wright's insistence to the contrary, our inquiry extended beyond consideration of market concentration and application of the Guidelines presumption of competitive harm. We also examined the transaction's likely anticompetitive effects, and are satisfied that there is sufficient evidence to support the issuance of our complaint and proposed consent order.7 As noted above, we are particularly concerned that the transaction is likely to enhance the potential for coordination.8 As set forth in the Guidelines, the Commission is likely to challenge a merger under a coordinated effects theory if: “(1) The merger would significantly increase concentration and lead to a moderately or highly concentrated market; (2) that market shows signs of vulnerability to coordinated conduct [ ]; and (3) the [Commission has] a credible basis on which to conclude that the merger may enhance that vulnerability.” 9 We have reason to believe that all three factors are satisfied here.10

First, as noted above, the proposed transaction results in a highly concentrated relevant market.11 Second, the market is susceptible to coordinated conduct, as evidenced by several recent cases of collusion in the auto parts industry.12 Third, by reducing the number of significant competitors to only two, the merger would decrease the impediments to reaching common terms of coordination and make it easier to monitor compliance with, and retaliate against potential deviation from, a coordinated scheme. Specifically, as remaining duopolists with nearly equal shares (41% and 58%, respectively), the combined firm and Urresko would have greater incentives to take advantage of a market with relatively few customers that purchase homogeneous products through individual purchase orders rather than long-term supply contracts. They would also find it easier to divide customers and monitor their allocations.

Our concern that the merger may enhance the relevant market's vulnerability to coordination is backed by the well-accepted view that markets with only two or three firms are more conducive to anticompetitive outcomes than markets with four or more firms.13 The proposed merger would eliminate a third competitor and create greater symmetry between the two remaining firms.

Additionally, there is no evidence that fringe competitors, which have higher prices, or new entrants, which are unlikely to materialize, could disrupt any coordination between the combined firm and Urresko. For these reasons, we have ample basis to conclude that the merger may enhance the vulnerability to coordinated effects that already exists in the relevant market.14

As we noted above, the parties have chosen to address our limited competitive concerns in the heavy vehicle tie rods market through a proposal to divest TRW's linkage and suspension business in North America and Europe. This allows the parties to address our competition concerns, as well as those of the European Commission. The EC has already accepted the proposed settlement and ordered the divestiture of the European assets.15 Furthermore, there is no evidence that the divestiture of TRW's linkage and suspension business would eliminate any efficiencies that otherwise might result from the parties' proposed combination.

In sum, because we have reason to believe that customers and consumers are likely to suffer a substantial loss of competition as a result of the proposed transaction, and there are no demonstrated countervailing efficiencies, we believe the public interest is best served by accepting the proposed consent order to remedy our competitive concerns.

I voted in favor of issuing for public comment the proposed consent agreement in this matter. As discussed below, there is sufficient evidence to provide me with a reason to believe that, absent a remedy, the transaction is likely to violate Section 7 of the Clayton Act. I also find that the proposed consent, which is intended to remedy any such violation, is in the public interest.

Based on the evidence presented to me—including the evidence discussed in the Analysis to Aid Public Comment and the majority statement in this matter—I am satisfied that the “reason to believe” prong that the Commission must assess in issuing a complaint, including in the consent context, is met here. It is important to note that the Commission makes the reason to believe determination before a full evidentiary and legal record is developed during a trial on the merits, which suggests that the standard must necessarily be lower than what the Commission or a court should apply for finding ultimate liability. Individual Commissioners, of course, have different views on how much evidence is necessary to satisfy the reason to believe standard. Unfortunately, there does not appear to be a consensus view on what the standard requires. I respect Commissioner Wright's view that the standard was not met for him in this case. For the reasons identified in the majority statement in this matter, I determined that there is a credible basis on which to conclude that this merger may enhance the vulnerability to coordinated effects that already exists in the relevant market at issue.1

I further view this consent to be in the public interest. In my time as a Commissioner, I have advocated for transparency, predictability, and fairness across a variety of settings.2 Those three critical goals apply equally to the merger context. A practical problem in our merger review process arises, however, where investigations are cut short by the merging parties, which, for business, strategic, or other reasons, offer staff and then ultimately the Commission a proposed remedy in lieu of responding to a Second Request or other compulsory process. In such cases, the available evidence may be sufficient to provide reason to believe the proposed transaction would violate Section 7, but a full investigation might (or might not) reveal additional evidence sufficient to counterbalance the available evidence and support closing the investigation altogether. In that situation, the goals of predictability and fairness counsel against forcing merging parties (and Commission staff) to incur the significant costs associated with a full-phase investigation. Merging parties also expend non-trivial amounts of time and money in developing and then proposing remedies to FTC staff; those good-faith efforts—particularly ones that involve coordination of remedies across antitrust jurisdictions—should not be discounted. The public interest analysis thus should take into account the need for predictability and fairness for merging parties in these circumstances.

The Commission has voted to issue a Complaint and Decision & Order against ZF Friedrichshafen AG (“ZF”) to remedy the allegedly anticompetitive effects of ZF's proposed acquisition of TRW Automotive Holdings Corp. (“TRW”). I respectfully dissent because the evidence is insufficient to provide reason to believe ZF's acquisition will substantially lessen competition for heavy vehicle tie rods sold in North America. In particular, I believe the Commission has not met its burden to show that the acquisition will result in an increased likelihood of harm from coordinated effects or from unilateral effects. As a consequence, the Commission should close the investigation and allow the parties to complete the proposed transaction without imposing a remedy.

I write separately today to explain my vote and to discuss the quality and quantity of evidence necessary to support a coordinated and unilateral effects challenge under the 2010 Horizontal Merger Guidelines (“Merger Guidelines”).

The Complaint alleges the proposed transaction increases the likelihood of coordinated effects and unilateral effects in the market for heavy vehicle tie rods sold in North America.1 After the proposed transaction, ZF and TRW would have a combined 41% share. The remaining competitor, Urresko, has a 58% share. Fringe suppliers have a 1% share.

The Complaint implicates an important question with regard to coordinated effects: What evidence is necessary to establish reason to believe a proposed transaction may substantially lessen competition by “enabling or encouraging post-merger coordinated interaction among firms in the relevant market that harms customers.” 2

Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for May 4, 2015), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before June 4, 2015. Write “Holcim Ltd. and Lafarge SA—Consent Agreement; File No. 141-0129” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/holcimlafargeconsent by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

If you file your comment on paper, write “Holcim Ltd. and Lafarge SA—Consent Agreement; File No. 141-0129” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before June 4, 2015. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see http://www.ftc.gov/ftc/privacy.htm.

The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) designed to remedy the anticompetitive effects resulting from the proposed acquisition of Lafarge S.A (“Lafarge”) by Holcim Ltd. (“Holcim”). Under the terms of the proposed Consent Agreement, Lafarge is required to divest to Continental Cement Company (“Continental”) its Davenport cement plant and quarry located in Buffalo, Iowa along with cement terminals and associated distribution assets in Minneapolis and St. Paul, Minnesota; La Crosse, Wisconsin; Memphis, Tennessee; and Convent and New Orleans, Louisiana. The Consent Agreement also requires Holcim to divest its Skyway slag cement plant located in Chicago, Illinois to Eagle Materials Inc. (“Eagle”), its slag cement plant located in Camden, New Jersey and its terminal near Boston, Massachusetts to Essroc Cement Corporation (“Essroc”), and its cement terminals in Grandville and Elmira, Michigan and Rock Island, Illinois to Buzzi Unicem USA (“Buzzi”). Finally, the Consent Agreement requires Holcim to divest to a buyer or buyers approved by the Commission (1) Holcim's Trident, Montana cement plant and two related terminals in Alberta, Canada, and (2) Holcim's Mississauga cement plant located in Ontario, Canada and related cement terminals in Duluth, Minnesota; Detroit and Dundee, Michigan; Cleveland, Ohio; and Buffalo, New York.

The Consent Agreement has been placed on the public record for 30 days to solicit comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the Consent Agreement and the comments received, and decide whether it should withdraw from the Consent Agreement, modify it, or make final the Decision and Order (“Order”).

Pursuant to a Combination Agreement dated July 7, 2014, Holcim proposes to acquire 100 percent of the existing shares of Lafarge in a transaction valued at $24.95 billion at that time. The Commission's Complaint alleges that the proposed acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by substantially lessening competition in certain regional markets in the United States for the manufacture and sale of portland cement and slag cement. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that would otherwise be eliminated by the proposed acquisition.

Holcim is a Swiss-based, vertically integrated global building materials company. The company's products include cement, clinker, concrete, lime, and aggregates. In the United States, Holcim currently operates nine portland cement and three slag grinding plants, as well as a large network of distribution assets.

Lafarge is a vertically-integrated global building materials company incorporated in France and headquartered in Paris. Lafarge primarily produces and sells cement, aggregates, and ready-mix concrete. In the United States, Lafarge currently operates six portland cement and three slag cement grinding plants as well as numerous distribution terminals.

In the United States, both parties manufacture and sell portland cement. Portland cement is an essential ingredient in making concrete, a cheap and versatile building material. Because portland cement has no close substitute and the cost of cement usually represents a relatively small percentage of a project's overall construction costs, few customers are likely to switch to other products in response to a small but significant increase in the price of portland cement.

Both parties also manufacture and sell ground, granulated blast furnace slag (“slag cement”), a specialty cement product with unique characteristics that can serve as a partial substitute for portland cement. Customers add slag cement to portland cement to enhance the physical properties of a concrete mixture. It is appropriate to treat slag cement as a separate relevant product because an insufficient number of purchasers would switch to other products in response to a small but significant increase in the price of slag cement to render such a price increase unprofitable.

The primary purchasers of portland and slag cement are ready-mix concrete firms and producers of concrete products. These customers usually pick up portland and slag cement from a cement company's plant or terminal in trucks. Because portland and slag cement are heavy and relatively cheap commodities, transportation costs limit the distance customers can economically travel to pick up the products. The precise scope of the area that can be served by a particular plant or terminal depends on a number of factors, including the density of the specific region and local transportation costs.

Due to transportation costs, cement markets are local or regional in nature. The relevant geographic markets in which to analyze the effects of the proposed acquisition on portland cement competition are (1) the Minneapolis-St. Paul, Minnesota area; (2) the Duluth, Minnesota area; (3) western Wisconsin; (4) eastern Iowa; (5) the Memphis, Tennessee area; (6) the Baton Rouge, Louisiana area; (7) the New Orleans, Louisiana area; (8) the Detroit, Michigan area; (9) northern Michigan; (10) the Grand Rapids, Michigan area; (11) western Montana; and (12) the Boston, Massachusetts/Providence, Rhode Island area. The proper geographic markets in which to analyze the effects of the proposed transaction on slag cement are (1) the Mid-Atlantic region and (2) the western Great Lakes region.

The relevant markets for portland cement and slag cement are already highly concentrated. For each of the relevant markets, the parties are either the only suppliers in the market, two of only three suppliers, or two of only four suppliers.

Entry into the relevant portland cement and slag cement markets would not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the proposed transaction. The cost to construct a new portland cement plant of sufficient size to be competitive would likely cost over $300 million and take more than five years to permit, design, and construct while the expansion of an existing facility would likely cost hundreds of millions of dollars and take four or more years to complete. Building competitive cement distribution terminals is also difficult and time consuming. It can take more than two years to obtain the necessary permits and complete construction of a competitive terminal in the relevant markets. New entrants into slag cement markets face the additional hurdle of having to obtain a cost-effective source for the raw material. There are few domestic sources for granulated blast furnace slag because there are a limited number of active blast furnaces in the United States. Given the difficulties of entry, it is unlikely that any new entry could be accomplished in a timely manner in the relevant markets to defeat a likely price increase caused by the proposed acquisition.

Unless remedied, the proposed merger would likely result in competitive harm in each of the relevant portland and slag cement markets. The merger would eliminate substantial head-to-head competition between the parties in each of these markets and significantly increase market concentration. For many customers in these markets, the merger would combine the two closest competitors for their business, leaving the merged entity with the power to increase prices to these customers unilaterally. Further, because the merger would reduce the number of significant competitors to, at most, two or three in the relevant markets, it would enhance the likelihood of collusion or coordinated action between the remaining competitors by reducing impediments to reaching common terms of coordination and making it easier to monitor and retaliate against potential deviation from a coordinated scheme.

The proposed Consent Agreement eliminates the competitive concerns raised by Holcim's proposed acquisition of Lafarge by requiring the parties to divest assets in each relevant market. Lafarge is required to divest a cement plant in Buffalo, Iowa and a network of distribution terminals along the Mississippi River in Louisiana, Tennessee, Wisconsin, and Minnesota to Continental. Continental, in turn, will sell its cement terminal located in Bettendorf, Iowa to Lafarge in order to eliminate the competitive overlap that would otherwise be created by its acquisition of Lafarge's Davenport cement plant. Because Lafarge will be able to supply the Bettendorf terminal at a comparable or lower cost than Continental, the transactions contemplated in the Consent Agreement will maintain the competitive status quo in the eastern Iowa market. Holcim is required to divest distribution terminals in Illinois and Michigan to Buzzi. Holcim is further required to divest a terminal in Massachusetts and a slag plant in New Jersey to Essroc and a slag plant in Illinois to Eagle. Each of the identified buyers possesses the experience and capability to become significant competitors in the relevant markets. The parties must accomplish the divestitures to these buyers within ten days after the proposed acquisition is accomplished.

The Commission's goal in evaluating possible purchasers of divested assets is to maintain the competitive environment that existed prior to the proposed acquisition. If the Commission determines that any of the identified buyers is not an acceptable acquirer, the proposed Order requires the parties to divest the assets to a Commission-approved acquirer within 90 days of the Commission notifying the parties that the proposed acquirer is not acceptable. If the Commission determines that the manner in which any divestiture was accomplished is not acceptable, the Commission may direct the parties, or appoint a divestiture trustee, to effect such modifications as may be necessary to satisfy the requirements of the Order.

Finally, the proposed Consent Agreement requires Holcim to divest to a buyer or buyers approved by the Commission (1) a cement plant in Trident, Montana and two distribution terminals in Alberta, Canada (the “Trident Assets”), and (2) a cement plant in Mississauga, Ontario and cement terminals in Minnesota, Michigan, Ohio, and New York (the “Great Lakes Assets”). The divestiture of the Trident plant would eliminate the proposed merger's potential anticompetitive impact on purchasers of portland cement located in western Montana. The two Alberta terminals distribute cement produced at the Trident plant and are included in the Consent Agreement in order to preserve the viability and marketability of the Trident Assets. Holcim's Mississauga plant supplies portland cement into the United States both directly and via terminals located in Duluth; Detroit; Dundee, Michigan; Cleveland, Ohio; and Buffalo, New York. The divestiture of the Great Lakes Assets would remedy the proposed merger's anticompetitive effects in the Duluth and Detroit areas. The Cleveland and Buffalo terminals are included in the Consent Agreement in order to preserve the viability and marketability of the Great Lakes Assets. The Trident Assets and Great Lakes Assets are also part of a larger group of Holcim assets located in Canada that the Respondents have agreed to divest in order to resolve competitive concerns raised by the Canadian Competition Bureau (“CCB”). Commission staff worked cooperatively with staff from the CCB to ensure that our respective proposed remedies would be consistent and effective.

The proposed Order provides that Holcim must find a buyer (or buyers) for the Trident Assets and the Great Lakes Assets, at no minimum price, that is acceptable to the Commission, no later than 120 days from the date on which the parties consummate the proposed acquisition. The Consent Agreement also contains an Order to Hold Separate and Maintain Assets, which will serve to ensure that these assets are held separate and operated independently from the merged company and protect the viability, marketability, and competitiveness of the divestiture asset packages until the assets are divested to a buyer or buyers approved by the Commission.

To ensure compliance with the proposed Order, the Commission has agreed to appoint an Interim Monitor to ensure that Holcim and Lafarge comply with all of their obligations pursuant to the Consent Agreement and to keep the Commission informed about the status of the transfer of the rights and assets to appropriate purchasers.

The purpose of this analysis is to facilitate public comment on the Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Decision and Order or to modify its terms in any way.

The Federal Trade Commission has voted to accept a settlement to resolve the likely anticompetitive effects of Holcim Ltd.'s (“Holcim”) proposed $25 billion acquisition of Lafarge S.A. (“Lafarge”). We have reason to believe that, absent a remedy, the proposed acquisition is likely to substantially reduce competition in the manufacture and sale of portland cement and slag cement. As we explain below, we believe the proposed remedy, tailored to counteract the likely anticompetitive effects of the proposed acquisition without eliminating any efficiencies that might arise from the combination of the two companies, is in the public interest.1

Holcim is a Switzerland-based, vertically integrated global building materials company, with products that include cement, clinker, concrete, lime, and aggregates. Lafarge is a France-based, vertically integrated global building materials company that primarily produces and sells cement, aggregates, and ready-mix concrete.

The merged company will be the world's largest cement manufacturer, with combined 2014 revenues of approximately $35 billion and operations in more than 90 countries. Our competitive concerns pertain to specific geographic markets in the United States where Holcim and Lafarge each make significant cement sales. The proposed merger would likely harm competition for the distribution and sale of portland cement, an essential ingredient in making concrete, in 12 local or regional markets. It would also threaten to lessen competition for the distribution and sale of slag cement, a specialty cement product used in certain applications, in two other regional markets.

The merger would create a merger to monopoly in some of the challenged relevant markets, while in others at most three competitors would remain post-merger. Absent a remedy, the Herfindahl-Hirschman Index (“HHI”) in each of these markets would exceed 3,400, making every market highly concentrated according to the 2010 Horizontal Merger Guidelines.2 The increase in HHI in each market would exceed 900, well above the 200-point change necessary to trigger the Guidelines' presumption that the merger is “likely to enhance market power.” 3 There is no evidence rebutting this presumption. If anything, the evidence suggests that the estimates of market concentration understate our concerns.