Federal Register Vol. 81, No.73,

The Secretary's Advisory Committee on Animal Health (the Committee) advises the Secretary of Agriculture on matters of animal health, including means to prevent, conduct surveillance on, monitor, control, or eradicate animal diseases of national importance. In doing so, the Committee will consider public health, conservation of natural resources, and the stability of livestock economies.

Tentative topics for discussion during the May 2, 2016, meeting include:

• One Health

○ U.S. Department of Agriculture Antimicrobial Resistance Action Plan; and

○ Zoonotic Diseases.

Tentative topics for discussion during the June 16, 2016, meeting include:

• Emerging Disease Response; and

• Comprehensive Integrated Animal Health Surveillance.

A final agenda will be posted on the Committee Web site 2 weeks prior to each scheduled meeting.

Those wishing to listen in on the meetings should complete a brief registration form by clicking on the “SACAH Meeting Sign-up” button on the Committee's Web site (http://www.aphis.usda.gov/animalhealth/sacah). Members of the public may join the teleconference in “listen-only” mode by dialing 1-800-619-4086 and then entering the public passcode, 4414646# for the May 2 meeting, and 9786716# for the June 16 meeting.

Questions and written statements for the Committee's consideration may be submitted up to 5 working days before each scheduled meeting. They may be sent to [email protected] or mailed to the person listed in this notice under FOR FURTHER INFORMATION CONTACT. Statements filed with the Committee must include the name of the individual listed under FOR FURTHER INFORMATION CONTACT, the docket number listed in this notice, and specify the meeting to which they pertain.

This notice of meeting is given pursuant to section 10 of the Federal Advisory Committee Act (5 U.S.C. App. 2).

The purpose of the meeting is:

1. To review and vote on project proposals for 2016.

The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by May 1, 2016 to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Amy Baumer, Public Affairs Officer; 1206 S. Challis St., Salmon, Idaho 83467; or by email to Salmon, Idaho, or via facsimile to 208-756-5289.

Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

Background and Purpose

In January 2003, the National Veterinary Medical Service Act (NVMSA) was passed into law adding section 1415A to the National Agricultural Research, Extension, and Teaching Policy Act of 1997 (NARETPA). This law established a new Veterinary Medicine Loan Repayment Program (7 U.S.C. 3151a) authorizing the Secretary of Agriculture to carry out a program of entering into agreements with veterinarians under which they agree to provide veterinary services in veterinarian shortage situations.

Section 7105 of FCEA amended section 1415A to revise the determination of veterinarian shortage situations to consider (1) geographical areas that the Secretary determines have a shortage of veterinarians; and (2) areas of veterinary practice that the Secretary determines have a shortage of veterinarians, such as food animal medicine, public health, epidemiology, and food safety. This section also added that priority should be given to agreements with veterinarians for the practice of food animal medicine in veterinarian shortage situations.

NARETPA section 1415A requires the Secretary, when determining the amount of repayment for a year of service by a veterinarian to consider the ability of USDA to maximize the number of agreements from the amounts appropriated and to provide an incentive to serve in veterinary service shortage areas with the greatest need. This section also provides that loan repayments may consist of payments of the principal and interest on government and commercial loans received by the individual for the attendance of the individual at an accredited college of veterinary medicine resulting in a degree of Doctor of Veterinary Medicine or the equivalent. This program is not authorized to provide repayments for any government or commercial loans incurred during the pursuit of another degree, such as an associate or bachelor degree. Loans eligible for repayment include educational loans made for one or more of the following: Loans for tuition expenses; other reasonable educational expenses, including fees, books, and laboratory expenses, incurred by the individual; and reasonable living expenses as determined by the Secretary. In addition, the Secretary is directed to make such additional payments to participants as the Secretary determines appropriate for the purpose of providing reimbursements to participants for individual tax liability resulting from participation in this program. Finally, this section requires USDA to promulgate regulations within 270 days of the enactment of FCEA (i.e., June 18, 2008). The Secretary delegated the authority to carry out this program to NIFA. The final rule was published in the Federal Register on April 19, 2010 [75 FR 20239-20248] allowing eligible veterinarians to competitively apply for and receive a VMLRP award.

From FY 2010 through FY 2015, NIFA received 996 applications from which 340 VMLRP awards were offered. Additional information by funding year can be found at http://nifa.usda.gov/vmlrp-reports-and-statistics. On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), which appropriated $5,000,000 for the VMLRP. Funding for future years will be based on annual appropriations and balances, if any, remaining from prior years.

The eligibility criteria for applicants and the application forms and associated instructions needed to apply for a VMLRP award can be viewed and downloaded from the VMLRP Web site at: http://nifa.usda.gov/vmlrp-applicants.

On August 3, 2015, the Department of Commerce (the Department) published in the Federal Register a notice of “Opportunity to Request Administrative Review” of the antidumping duty order on silicomanganese from Ukraine for the period of review (POR), August 1, 2014, through July 31, 2015.1 On September 3, 2015, we received an untimely-filed request 2 for an administrative review from two Ukrainian producers and/or exporters of silicomanganese, JSC Zaporizhya Ferroalloy Plant (ZFP) and JSC Nikopol Ferroalloy Plant (NFP), requesting an administrative review of exports of subject merchandise for the period of September 1, 2014, through August 31, 2015. On September 21, 2015, we received comments from a domestic interested party, Eramet Marietta, Inc. (Eramet), objecting to initiation and placing on the record certain import statistics stating that there were no entries of subject merchandise from Ukraine during the period of review.

On October 6, 2015, the Department initiated the administrative review of the antidumping duty order on silicomanganese from Ukraine with respect to ZFP and NFP for the POR, August 1, 2014, through July 31, 2015,3 notwithstanding the untimely nature of the Ukrainian producers' request for review.

In accordance with our practice, we requested information from U.S. Customs and Border Protection (CBP) concerning imports of subject merchandise from these companies during the POR. We received the requested CBP information, which showed that neither ZFP nor NFP had suspended entries of subject merchandise during the POR. On October 6, 2015, we documented this finding and invited comments from interested parties regarding this CBP query result.4

On October 19, 2015, we received comments from domestic interested parties, Eramet and Felman Production, LLC (collectively, U.S. producers). On October 20, 2015, we received comments from ZFP and NFP (Ukrainian producers). ZFP's and NFP's October 20, 2015, submission contained documentation establishing that both companies made both a sale and an entry of subject merchandise in August 2015.

Because there is no evidence that there were entries of subject merchandise into the United States from Ukraine during the POR, on November 17, 2015, the Department placed a memorandum on the record notifying interested parties of its intent to rescind the 2014-2015 administrative review of silicomanganese from Ukraine, and invited comments.5 In its November 17, 2015, memorandum, the Department rejected the Ukrainian producers' arguments that the Department provided defective or inadequate notice concerning the correct anniversary month of the antidumping duty order on silicomanganese from Ukraine, and found no basis to alter the POR to capture the Ukrainian producers' entries of subject merchandise made after the POR.6

On November 24, 2015, we received comments from ZFP and NFP. On November 30, 2015, we received rebuttal comments from U.S. producers.

It is the Department's practice to rescind an administrative review pursuant to 19 CFR 351.213(d)(3) when there are no suspended entries of subject merchandise during the POR from the country in question.7 At the end of an administrative review, all suspended entries during the POR for the parties under review are liquidated at the assessment rate computed in the final results of review.8 Therefore, since the purpose of an administrative review is to assess antidumping duties, there must be a suspended AD/CVD entry to be liquidated at the newly calculated assessment rate. As discussed in the Decision Memorandum accompanying this notice,9 we find that, because there were no entries of subject merchandise during the POR from Ukraine, we are rescinding the 2014-2015 administrative review of the antidumping duty order on silicomanganese from Ukraine, pursuant to 19 CFR 351.213(d)(3).

All issues raised by parties in this administrative review are addressed in the accompanying Decision Memorandum, which is adopted by this notice. The Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed and electronic versions of the Decision Memorandum are identical in content.

This notice is published in accordance with section 751 of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).

The U.S. Travel and Tourism Advisory Board (Board) is established pursuant to Department of Commerce authority under 15 U.S.C. 1512 and under the Federal Advisory Committee Act, as amended, 5 U.S.C. App. (FACA), and advises the Secretary of Commerce (Secretary) on matters relating to the U.S. travel and tourism industry. The Board provides a means of ensuring regular contact between the U.S. Government and the travel and tourism industry. The Board advises the Secretary on government policies and programs that affect United States travel and tourism, and the Board serves as a forum for discussing and proposing solutions to industry-related problems. The Board acts as a liaison among the stakeholders represented by the membership and provides a forum for those stakeholders on current and emerging issues in the travel and tourism sector. The Board recommends ways to ensure that the United States remains the preeminent destination for international visitation and tourism throughout the world.

The Office of Advisory Committees and Industry Outreach is accepting applications for Board members. The Board shall consist of no more than 32 members appointed by the Secretary. Members shall represent companies and organizations in the travel and tourism sector from a broad range of products and services, company sizes, and geographic locations and shall be drawn from large, medium, and small travel and tourism companies, private-sector organizations involved in the export of travel and tourism-related products and services, and other tourism-related entities.

Each Board member shall serve as the representative of a U.S. company in the travel and tourism industry, a private sector U.S. organization involved in the export of travel and tourism-related products and services, or a tourism-related U.S. entity. For eligibility purposes, a “U.S. company” is a for-profit firm that is incorporated in the United States (or an unincorporated U.S. firm with its principal place of business in the United States) that is controlled by U.S. citizens or by other U.S. companies. A company is not a U.S. company if 50 percent plus one share of its stock (if a corporation, or a similar ownership interest of an unincorporated entity) is known to be controlled, directly or indirectly, by non-U.S. citizens or non-U.S. companies. For eligibility purposes, a “U.S. organization” is an organization, including trade associations and nongovernmental organizations (NGOs), established under the laws of the United States, that is controlled by U.S. citizens, by another U.S. organization (or organizations), or by a U.S. company (or companies), as determined based on its board of directors (or comparable governing body), membership, and funding sources, as applicable. For eligibility purposes, a U.S. entity is a tourism-related entity that can demonstrate U.S. ownership or control, including but not limited to state and local tourism marketing entities, state government tourism offices, state and/or local government-supported tourism marketing entities, and multi-state tourism marketing entities.

Members of the Board will be selected, in accordance with applicable Department of Commerce guidelines, based on their ability to carry out the objectives of the Board as set forth in the charter. Members of the Board shall be selected in a manner that ensures that the Board is balanced in terms of points of view, industry subsector, range of products and services, demographics, geography, and company size.

Additional factors which will be considered in the selection of Board members include candidates' proven experience in the strategic development and management of travel and tourism-related or other service-related organizations; or the candidate's proven experience in promoting, developing, and implementing advertising and marketing programs for travel-related or tourism-related industries.

Priority may be given to a Chief Executive Officer, Executive Director, or President (or comparable level of responsibility) of a U.S. company, U.S. organization, or U.S. entity in the travel and tourism sector.

Members shall serve a term of two years from the date of appointment, at the discretion of the Secretary of Commerce. Although the Board's current charter terminates in September 2017, it is anticipated that it will be rechartered.

Members shall serve in a representative capacity, representing the views and interests of their particular industry subsector. Board members are not special government employees, and will receive no compensation for their participation in Board activities. Members participating in Board meetings and events will be responsible for their travel, living and other personal expenses. Meetings will be held regularly and, to the extent practical, not less than twice annually, usually in Washington, DC.

For immediate consideration for membership, please provide the following information by the Friday, May 6, 2016 deadline to the address listed in the ADDRESSES section:

1. Name and title of the individual requesting consideration.

2. A sponsor letter from the applicant on his or her company/organization/entity letterhead or, if the applicant is to represent a company/organization/entity other than his or her employer, a letter from the company/organization/entity to be represented, containing a brief statement of why the applicant should be considered for membership on the Board. This sponsor letter should also address the applicant's travel and tourism-related experience.

3. The applicant's personal resume.

4. An affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

5. If the applicant is to represent a company, information regarding the control of the company, including the stock holdings as appropriate, signifying compliance with the criteria set forth above.

6. If the applicant is to represent an organization, information regarding the control of the organization, including the governing structure, members, and revenue sources as appropriate, signifying compliance with the criteria set forth above.

7. If the applicant is to represent a tourism-related entity, the functions and responsibilities of the entity, and information regarding the entity's U.S. ownership or control, signifying compliance with the criteria set forth above.

8. The company's, organization's, or entity's size, product or service line and major markets in which the company, organization, or entity operates.

9. Brief statement describing how the applicant will contribute to the work of the Board based on his or her unique experience and perspective (not to exceed 100 words).

The recreational fishery for Atlantic migratory group cobia is scheduled to close on June 20, 2016. The closure applies to those fishing for cobia recreationally in federal waters from Georgia to New York from a private vessel, charter vessel, or headboat. The closure is the result of accountability measures required by federal regulations to protect the cobia resource and prevent overfishing. The 2015 recreational catch was 1,540,775 pounds, 123% over the recreational Annual Catch Limit (ACL) of 690,000 pounds.

The scheduled recreational closure has caused concerns from fishermen, particularly those from North Carolina and Virginia where the closure will have negative economic and social impacts due to the seasonality of the fishery. As a result, the two Councils will host a Cobia Q&A public meeting to provide information and help address questions and concerns. Council staff will give a presentation that includes an overview of the Council federal management process, historical management of cobia, and information about current cobia management and the pending recreational closure. The presentation will also include an overview of future management actions for cobia currently under consideration by the South Atlantic Council. Council staff and area Council members will be available to answer questions following the presentation.

Written comments should be directed to Gregg Waugh, Executive Director, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405. Email comments to [email protected] with the Subject Line “Cobia Comments”. FAX comments to (843) 769-4520. Comments must be received in the Council office by 5 p.m. on May 20, 2016.

This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see ADDRESSES) 5 days prior to the meeting.

Recipients of recent Scallop Research Set-Aside (RSA) awards will provide a status update and summary of preliminary findings to the Scallop Plan Development Team (PDT) and Advisory Panel (AP). Presentations will include RSA projects that have not yet been used directly in the scallop management process. This meeting is not a formal review of the methods or results of these projects. Instead, this meeting is only an overview to better inform the PDT and AP of current research status and help identify future research priority recommendations. The PDT and AP will review current RSA research priorities and discuss potential recommended changes for the 2017/2018 Scallop RSA funding announcement. Other business discussed as necessary.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at 978-465-0492, at least 5 days prior to the meeting date.

The agenda for the two public hearings and one webinar are as follows: Council staff will brief the public on Reef Fish Amendment 43. The staff will then open the meeting for questions and public comments.

Monday, May 9, 2016; Holiday Inn Express & Suites, 1785—5th Avenue South, Naples, FL 34102; telephone: (239) 261-3500.

Tuesday, May 10, 2016; Holiday Inn Express, 2171—54th Avenue North, St. Petersburg, FL 33714; telephone: (727) 520-7800.

Wednesday, May 11, 2016, Webinar—6 p.m. EST at: https://attendee.gotowebinar.com/register/3081763240819912449.

After registering, you will receive a confirmation email containing information about joining the webinar.

These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira (see ADDRESSES), at least 5 working days prior to the meeting date.

Availability

An electronic copy of the application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/. In case of problems accessing these documents, please call the contact listed above.

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 March 11, 2016, NMFS received an application from DWBI for the taking of marine mammals incidental to the installation of the BIWF export and inter-array cables. This work was originally authorized by NMFS as part of a September 2014 (modified in June 2015) IHA issued to DWBI for construction of the BIWF (offshore installation of wind turbine generator [WTG] jacket foundations and export/inter-array cable installation [79 FR 53409]); however, only the construction activities associated with the WTG jacket foundation installation were performed during that one-year authorization which expired in October 2015. DWBI has, therefore, reapplied for a new IHA to complete the remaining export and inter-array cable installation activities. The proposed export and inter-array cable installation activities remain the same as those described in the Federal Register notice for the original 2014 BIWF IHA. NMFS determined that the application was adequate and complete on March 14, 2016.

DWBI has begun construction of the BIWF, a 30 megawatt offshore wind farm. Construction activities began in July of 2015 with the installation of the five WTG foundations. The submarine cable (export and inter-array cables) installation is scheduled to occur sometime between May and October, 2016. Use of dynamically positioned (DP) vessel thrusters during cable installation may result in the take of marine mammals. Take, by Level B Harassment only, of individuals of nine species is anticipated to result from the specified activity.

The BIWF will consist of five, 6 megawatt WTGs, a submarine cable interconnecting the WTGs, and a transmission cable. The WTG jacket foundations were installed in 2015. Erection of the five WTGs, installation of the inter-array and export cable, and construction of the onshore components of the BIWF is planned for 2016. The generation of underwater noise during use of vessel thrusters while the cable laying vessel is keeping position by its DP system during installation activities may result in the incidental take of marine mammals.

BIWF cable installation activities are scheduled to occur sometime between May and October, 2016. NMFS is proposing to issue an authorization effective May 2016 through April 2017, based on the anticipated work window for the in-water cable installation activities construction that could result in the incidental take of marine mammals. While project activities may occur for over a 6-month period, use of the DP vessel thruster during cable installation activities is expected to occur for approximately 28 days. Cable installation (and subsequent use of the DP vessel thruster) would be conducted 24 hours per day.

The offshore components of the BIWF will be located in state territorial waters. The WTGs will be located on average of about 4.8 kilometers (km) southeast of Block Island, and about 25.7 km south of the Rhode Island mainland. The WTGs will be arranged in a radial configuration spaced about 0.8 km apart. The inter-array cable will connect the five WTGs for a total length of 3.2 km from the northernmost WTG to the southernmost WTG (Figure 1-1 of DWBI's application). Water depths along the inter-array cable range up to 23.3 meters (m). The export cable will originate at the northernmost WTG and travel 10 km to a manhole located in the town of New Shoreham (Block Island) in Washington County, Rhode Island. Water depths along the export cable submarine route range up to 36.9 m. Construction staging and laydown for offshore construction is planned to occur at the Port of Providence, Providence, Rhode Island.

The inter-array cable and submarine portions of the export cable will be installed by a jet plow supported by a DP vessel.

DWBI would use a jet plow, supported by a DP cable installation barge, to install the export cable and inter-array cable below the seabed. The jet plow would be positioned over the trench and pulled from shore by the cable installation vessel. The jet plow would be pulled along the seafloor behind the cable-laying barge with assistance of a non-DP material barge. High-pressure water from vessel- mounted pumps would be injected into the sediments through nozzles situated along the plow, causing the sediments to temporarily fluidize and create a liquefied trench. DWBI anticipates a temporary trench width of up to 1.5 m. As the plow is pulled along the route behind the barge, the cable would be laid into the temporary, liquefied trench through the back of the plow. The trench would be backfilled by the water current and the natural settlement of the suspended material. Umbilical cords would connect the submerged jet plow to control equipment on the vessel to allow the operators to monitor and control the installation process and make adjustments to the speed and alignment as the installation proceeds across the water.

The Export Cable and Inter-Array Cable would be buried to a target depth of 1.8 m beneath the seafloor. The actual burial depth depends on substrate encountered along the route and could vary from 1.2 to 2.4 m. If less than 1.2 m burial is achieved, DWBI may elect to install additional protection, such as concrete matting or rock piles. At each of the WTGs, the Inter-Array cable would be pulled into the jacket foundation through J-tubes installed on the sides of the jacket foundations. At the J-tubes, additional cable armoring such as sand bags and/or rocks would be used to protect the inter-array cable.

A DP vessel would be used during cable installation in order to maintain precise coordinates. DP systems maintain their precise coordinates in waters through the use of automatic controls. These control systems use variable levels of power to counter forces from current and wind. During cable-lay activities, DWBI expects that a reduced 50 percent power level will be used by DP vessels. DWBI modeled scenarios using a source level of 180 dB re 1 micro Pascal (μPa) for the DP vessel thruster, assuming water depths of 7, 10, 20, and 40 m, and thruster power of 50 percent. Detailed information on the acoustic modeling for this source is provided in Appendix A of DWBI's application. Installation of the export cable and inter-array cable is expected to take approximately 28 days. Cable installation will occur 24 hours per day, seven days a week.

There are 38 species of marine mammals protected under the MMPA that potentially occur within the marine waters around Rhode Island Sound (see Table 3-1 of DWBI's application). The majority of these species are pelagic and/or northern species, or are so rarely sighted that their presence in the project area is unlikely. Six marine mammal species are listed under the Endangered Species Act (ESA) and are known to be present, at least seasonally, in the waters of Southern New England: Blue whale, fin whale, humpback whale, right whale, sei whale, and sperm whale. These species are highly migratory and do not spend extended periods of time in a localized area; the waters of Southern New England are primarily used as a stopover point for these species during seasonal movements north or south between important feeding and breeding grounds. While fin, humpback, and right whales have the potential to occur within the project area, the sperm, blue, and sei whales are more pelagic and/or northern species, and their presence within the shallow waters of the project area is unlikely. Because the potential for sperm, blue, and sei whales to occur within the project area during the marine construction period is unlikely, these species will not be described further in this analysis.

The following species are both common in the waters of Rhode Island Sound and have the highest likelihood of occurring, at least seasonally, in the project area: North Atlantic right whale (Eubalaena glacialis), humpback whale (Megaptera novaeangliae), fin whale (Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), Atlantic white-sided dolphin (Lagenorhynchus acutus), short-beaked common dolphin (Delphinus delphis), harbor seal (Phoca vitulina), and gray seal (Halichorus grypus) (Right Whale Consortium, 2014) (Table 1).

Further information on the biology, ecology, abundance, and distribution of those species likely to occur in the project area can be found in section 4 of the application (which NMFS has reviewed and concluded as adequate), and the NMFS Marine Mammal Stock Assessment Reports (see Waring et al., 2015), which are available online at: http://www.nmfs.noaa.gov/pr/sars/. Marine mammal species descriptions are also available online at: http://www.nmfs.noaa.gov/pr/species/mammals/.

This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity have been observed to impact marine mammals. This 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 (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). 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, and 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 “Potential Effects of the Specified Activity on Marine Mammals” 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.

Use of the DP vessel thrusters during the BIWF project may temporarily impact marine mammals in the area due to elevated in-water sound levels. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) are widespread throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to: (1) Social interactions; (2) foraging; (3) orientation; and (4) predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance, or received levels of sound depend on the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor to the sound (Richardson et al., 1995). Type and significance of marine mammal reactions to sound are likely dependent on a variety of factors including, but not limited to, (1) the behavioral state of the animal (e.g., feeding, traveling, etc.); (2) frequency of the sound; (3) distance between the animal and the source; and (4) the level of the sound relative to ambient conditions (Southall et al., 2007).

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. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Southall et al., 1997; Wartzok and Ketten, 1999; Au and Hastings, 2008).

Southall et al. (2007) designated “functional hearing groups” for marine mammals based on available behavioral data; audiograms derived from auditory evoked potentials; anatomical modeling; and other data. Southall et al. (2007) also estimated the lower and upper frequencies of functional hearing for each group. However, animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. Note that direct measurements of hearing sensitivity do not exist for all species of marine mammals, including low-frequency cetaceans. The functional hearing groups and the associated frequencies developed by Southall et al. (2007) were revised by Finneran and Jenkins (2012) and have been further modified by NOAA. Table 2 provides a summary of sound production and general hearing capabilities for marine mammal species (note that values in this table are not meant to reflect absolute possible maximum ranges, rather they represent the best known ranges of each functional hearing group). For purposes of the analysis in this document, marine mammals are arranged into the following functional hearing groups based on their generalized hearing sensitivities: High-frequency cetaceans, mid-frequency cetaceans, low-frequency cetaceans (mysticetes), phocids (true seals), and otariids (sea lion and fur seals). A detailed discussion of the functional hearing groups can be found in Southall et al. (2007) and Finneran and Jenkins (2012).

When sound travels (propagates) from its source, its loudness decreases as the distance traveled by the sound increases. Thus, the loudness of a sound at its source is higher than the loudness of that same sound a kilometer away. Acousticians often refer to the loudness of a sound at its source (typically referenced to one meter from the source) as the source level and the loudness of sound elsewhere as the received level (i.e., typically the receiver). For example, a humpback whale 3 km from a device that has a source level of 230 dB may only be exposed to sound that is 160 dB loud, depending on how the sound travels through water (e.g., spherical spreading [6 dB reduction with doubling of distance] was used in this example). As a result, it is important to understand the difference between source levels and received levels when discussing the loudness of sound in the ocean or its impacts on the marine environment.

As sound travels from a source, its propagation in water is influenced by various physical characteristics, including water temperature, depth, salinity, and surface and bottom properties that cause refraction, reflection, absorption, and scattering of sound waves. Oceans are not homogeneous and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine the sound's speed through the water will change with depth, season, geographic location, and with time of day (as a result, in actual active sonar operations, crews will measure oceanic conditions, such as sea water temperature and depth, to calibrate models that determine the path the sonar signal will take as it travels through the ocean and how strong the sound signal will be at a given range along a particular transmission path). As sound travels through the ocean, the intensity associated with the wavefront diminishes, or attenuates. This decrease in intensity is referred to as propagation loss, also commonly called transmission loss.

As mentioned previously in this document, nine marine mammal species (seven cetaceans and two pinnipeds) are most likely to occur in the project area. Of the seven cetacean species likely to occur in the project area, four are classified as low-frequency cetaceans (i.e., minke whale, fin whale, humpback whale, and North Atlantic right whale), two are classified as mid-frequency cetaceans (i.e., Atlantic white-sided dolphin and short-beaked common dolphin), and one is classified as a high-frequency cetacean (i.e., harbor porpoise) (Southall et al., 2007). A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥40 dB (that is, 40 dB of TTS). PTS is considered auditory injury (Southall et al., 2007) and occurs in a specific frequency range and amount. 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). Given the higher level of sound and longer durations of exposure necessary to cause PTS as compared with TTS, it is considerably less likely that PTS would occur during DP vessel thruster use associated with the cable laying activities.

TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days, can be limited to a particular frequency range, and can occur to varying degrees (i.e., a loss of a certain number of dBs of sensitivity). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the noise ends.

Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (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. 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 takes place during a time when the animals is traveling through the open ocean, 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 a time when communication is critical for successful mother/calf interactions could have more serious impacts if it were in the same frequency band as the necessary vocalizations and of a severity that it impeded communication. The fact that animals exposed to levels and durations of sound that would be expected to result in this physiological response would also be expected to have behavioral responses of a comparatively more severe or sustained nature is also notable and potentially of more importance than the simple existence of a TTS.

Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale [Delphinapterus leucas], harbor porpoise, and Yangtze finless porpoise [Neophocoena asiaeorientalis]) and three species of pinnipeds (northern elephant seal, harbor seal, and California sea lion) exposed to a limited number of sound sources (i.e., mostly tones and octave-band noise) in laboratory settings (e.g., Finneran et al., 2002 and 2010; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Mooney et al., 2009; Popov et al., 2011; Finneran and Schlundt, 2010). In general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower TTS onset than other measured pinniped or cetacean species. However, even for these animals, which are better able to hear higher frequencies and may be more sensitive to higher frequencies, exposures on the order of approximately 170 dB rms or higher for brief transient signals are likely required for even temporary (recoverable) changes in hearing sensitivity that would likely not be categorized as physiologically damaging (NEFSC, 2014). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall et al. (2007), Finneran and Jenkins (2012), and Finneran (2015).

Scientific literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound exposures of equal energy, quieter sounds (lower SPL) of longer duration were found to induce TTS onset more than louder sounds (higher SPL) of shorter duration. For intermittent sounds, less threshold shift will occur than from a continuous exposure with the same energy (some recovery will occur between intermittent exposures) (Kryter et al., 1966; Ward, 1997). For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the sound ends. Southall et al. (2007) considers a 6 dB TTS (that is, baseline thresholds are elevated by 6 dB) to be a sufficient definition of TTS-onset. NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider TTS-onset to be the lowest level at which Level B harassment may occur.

Although the duration of the DP thruster sound source has the potential to induce TTS onset, animals in the project during the inter-array and export cable installation activities are not expected to incur more than mild TTS hearing impairment due to low source levels and the fact that most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the survey location.

Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Chronic exposure to excessive, though not high-intensity, noise has the potential to cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al. 2009). Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey. Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson et al., 1995).

Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (e.g., on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked. Ambient sound is highly variable on continental shelves (Thompson, 1965; Myrberg, 1978; Chapman et al., 1998; Desharnais et al., 1999). This results in a high degree of variability in the range at which marine mammals can detect anthropogenic sounds.

Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson et al., 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous. Masking is typically of greater concern for those marine mammals that utilize low-frequency communications, such as baleen whales, because of how far low-frequency sounds propagate. Therefore, since noise generated from vessels dynamic positioning activity is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales).

As the DP vessel is continually moving along the cable route over a 24-hour period, the area within the 120 dB isopleth is constantly moving and shifting within a 24-hour period.

Therefore, no single area in Rhode Island Sound will have noise levels above 120 dB for more than a few hours. While continuous sound from the DP thruster when in use is predicted to extend up to 4.75 km to the 120 dB threshold, the low source levels, coupled with the likelihood of animals to avoid the sound source, would result in very little opportunity for this activity to mask the communication of local marine mammals for more than a brief period of time.

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

An animal's third line of defense to stressors involves its neuroendocrine systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier, 1995), 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 function, which impairs 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 its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle, 1950) or “allostatic loading” (McEwen and Wingfield, 2003). This pathological state 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 experiments; 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). Information has also been collected on the physiological responses of marine mammals to exposure to anthropogenic sounds (Fair and Becker, 2000; Romano et al., 2002; Wright et al., 2008). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales. In a conceptual model developed by the Population Consequences of Acoustic Disturbance (PCAD) working group, serum hormones were identified as possible indicators of behavioral effects that are translated into altered rates of reproduction and mortality.

Studies of other marine animals and terrestrial animals would also 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 high frequency, mid-frequency, or low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (for example, 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), for example, 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 to communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, it seems reasonable to assume that reducing an animal's ability to gather information about its environment and to communicate with other members of its species would be stressful for animals that 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 because terrestrial animals exhibit those responses under similar conditions (NRC, 2003). 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), we also assume that stress responses are likely to 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.

In general, there are few data on 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). There is no definitive evidence that any of these effects occur even for marine mammals in close proximity to an anthropogenic sound source. In addition, marine mammals that show behavioral avoidance of vessels and related sound sources, are unlikely to incur non-auditory impairment or other physical effects. NMFS does not expect that the generally short-term and transitory cable installation activities would create conditions of long-term, continuous noise leading to long-term physiological stress responses in marine mammals.

Behavioral responses to sound are highly variable and context-specific. An animal's perception of and response to (in both nature and magnitude) an acoustic event can be influenced by prior experience, perceived proximity, bearing of the sound, familiarity of the sound, etc. (Southall et al., 2007). If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007).

Southall et al. (2007) reports the results of the efforts of a panel of experts in acoustic research from behavioral, physiological, and physical disciplines that convened and reviewed the available literature on marine mammal hearing and physiological and behavioral responses to human-made sound with the goal of proposing exposure criteria for certain effects. This peer-reviewed compilation of literature is very valuable, though Southall et al. (2007) note that not all data are equal, some have poor statistical power, insufficient controls, and/or limited information on received levels, background noise, and other potentially important contextual variables—such data were reviewed and sometimes used for qualitative illustration but were not included in the quantitative analysis for the criteria recommendations. All of the studies considered, however, contain an estimate of the received sound level when the animal exhibited the indicated response.

In the Southall et al. (2007) publication, for the purposes of analyzing responses of marine mammals to anthropogenic sound and developing criteria, the authors differentiate between pulse sounds (single and multiple) and non-pulse sounds.

The studies that address responses of low-frequency cetaceans to non-pulse sounds sounds (such as the sound emitted from a DP vessel thruster) include data gathered in the field and related to several types of sound sources, including: Vessel noise, drilling and machinery playback, low-frequency M-sequences (sine wave with multiple phase reversals) playback, tactical low-frequency active sonar playback, drill ships, and non-pulse playbacks. These studies generally indicate no (or very limited) responses to received levels in the 90 to 120 dB re: 1µPa range and an increasing likelihood of avoidance and other behavioral effects in the 120 to 160 dB range. As mentioned earlier, though, contextual variables play a very important role in the reported responses and the severity of effects do not increase linearly with received levels. Also, few of the laboratory or field datasets had common conditions, behavioral contexts, or sound sources, so it is not surprising that responses differ.

The studies that address responses of mid-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources, including: Pingers, drilling playbacks, ship and ice-breaking noise, vessel noise, Acoustic harassment devices (AHDs), Acoustic Deterrent Devices (ADDs), mid-frequency active sonar, and non-pulse bands and tones. Southall et al. (2007) were unable to come to a clear conclusion regarding the results of these studies. In some cases animals in the field showed significant responses to received levels between 90 and 120 dB, while in other cases these responses were not seen in the 120 to 150 dB range. The disparity in results was likely due to contextual variation and the differences between the results in the field and laboratory data (animals typically responded at lower levels in the field).

The studies that address responses of high-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources, including: Pingers, AHDs, and various laboratory non-pulse sounds. All of these data were collected from harbor porpoises. Southall et al. (2007) concluded that the existing data indicate that harbor porpoises are likely sensitive to a wide range of anthropogenic sounds at low received levels (around 90 to 120 dB), at least for initial exposures. All recorded exposures above 140 dB induced profound and sustained avoidance behavior in wild harbor porpoises (Southall et al., 2007). Rapid habituation was noted in some but not all studies.

The studies that address the responses of pinnipeds in water to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources, including: AHDs, various non-pulse sounds used in underwater data communication, underwater drilling, and construction noise. Few studies exist with enough information to include them in the analysis. The limited data suggest that exposures to non-pulse sounds between 90 and 140 dB generally do not result in strong behavioral responses of pinnipeds in water, but no data exist at higher received levels (Southall et al., 2007).

The low source level and relatively short duration of the DP vessel thrusters during cable installation activities would likely result in only brief startling reactions or short-term and temporary avoidance of the area, rather than permanent abandonment, by marine mammals.

Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many kilometers. However, other studies have shown that marine mammals at distances more than a few kilometers away often show no apparent response to industrial activities of various types (Miller et al., 2005). 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 from sources 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; Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). In general, pinnipeds seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel sound 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, and Brueggeman et al. (1992) observed ringed seals (Pusa hispida) hauled out on ice pans displaying short-term escape reactions when a ship approached within 0.16-0.31 mi (0.25-0.5 km).

Ship strikes of marine mammals can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007).

The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., the sperm whale). In addition, some baleen whales, such as the North Atlantic right whale, seem generally unresponsive to vessel sound, making them more susceptible to vessel collisions (Nowacek et al., 2004). These species are primarily large, slow moving whales. Smaller marine mammals (e.g., bottlenose dolphin) move quickly through the water column and are often seen riding the bow wave of large ships. Marine mammal responses to vessels may include avoidance and changes in dive pattern (NRC, 2003).

An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus, 2001; Laist et al., 2001; Jensen and Silber, 2003; Vanderlaan and Taggart, 2007). In assessing records with known vessel speeds, Laist et al. (2001) found a direct relationship between the occurrence of a whale strike and the speed of the vessel involved in the collision. The authors concluded that most deaths occurred when a vessel was traveling in excess of 24.1 km/h (14.9 mph; 13 kts).

Given the slow vessel speeds and predictable course necessary for jet-plowing and related cable installation activities for the BIWF project, ship strike is unlikely to occur. Marine mammals would be able to easily avoid vessels and are likely already habituated to the presence of numerous vessels in the area. Right whales have been observed in or near Rhode Island during all four seasons; however, they are most common in the spring when they are migrating and in the fall during their southbound migration (Kenney and Vigness-Raposa, 2009). Portions of the BIWF project area are located within the NMFS-designated Mid-Atlantic seasonal management area (SMA) (see 50 CFR 224.105); thus, to minimize the potential for vessel collision with right whales and other marine mammal species all DWBI vessels associated with the BIWF construction will operate at speeds of 10 knots or less from the November 1 to April 30 time period, regardless of whether they are inside or outside of the designated SMA. In addition, all DWBI vessels associated with the BIWF construction will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf), including maintaining a distance of at least 1,500 feet from right whales and having dedicated protected species observers who will communicate with the captain to ensure that all measures to avoid whales are taken. NMFS believes that the size of right whales, their slow movements, and the amount of time they spend at the surface will make them extremely likely to be spotted by protected species observers during construction activities within the BIWF project area.

There are no feeding areas, rookeries, or mating grounds known to be biologically important to marine mammals within the proposed project area. There is also no designated critical habitat for any ESA-listed marine mammals. Harbor seals haul out on Block Island and points along Narragansett Bay, the most important haul-out being on the edge of New Harbor, about 2.4 km from the proposed BIWF landfall on Block Island. The only consistent haul-out locations for gray seals within the vicinity of Rhode Island are around Monomoy National Wildlife Refuge and Nantucket Sound in Massachusetts (more than 80 nautical miles from the proposed project area). As discussed above, NMFS' regulations at 50 CFR 224 designated the nearshore waters of the Mid-Atlantic Bight as the Mid-Atlantic U.S. SMA for right whales in 2008. Mandatory vessel speed restrictions are in place in that SMA from November 1 through April 30 to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds.

The BIWF involves activities that would disturb the seafloor and potentially affect benthic and finfish communities. Installation of the inter-array cable and export cable would result in the temporary disturbance of no more than 3.7 and 11.6 acres of seafloor, respectively. These installation activities would also result in temporary and localized increases in turbidity around the proposed project area. DWBI may also be required to install additional protective armoring in areas where the burial depth achieved is less than 1.2 m. DWBI expects that additional protection would be required at a maximum of 1 percent of the entire submarine cable, resulting in a conversion of up to 0.4 acres of soft substrate to hard substrate along the cable route. During the installation of additional protective armoring at the cable crossings and as necessary along the cable route, anchors and anchor chains would temporarily impact about 1.8 acres of bottom substrate during each anchoring event.

Jet-plowing and impacts from construction vessel anchor placement and/or sweep would cause either the displacement or loss of benthic and finfish resources in the immediate areas of disturbance. This may result in a temporary loss of forage items and a temporary reduction in the amount of benthic habitat available for foraging marine mammals in the immediate proposed project area. However, the amount of habitat affected represents a very small percentage of the available foraging habitat in the proposed project area. It is likely that marine mammals may temporarily shift their foraging efforts to other areas within or around the project area. While this would affect the movements of individual marine mammals, it is likely to be temporary and is not likely to affect marine mammal nourishment or result in any injury or mortality. Increased underwater sound levels may temporarily result in marine mammals avoiding or abandoning the area.

Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse 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).

With NMFS' input during the application process, DWBI is proposing the following mitigation measures during cable installation operations using DP vessel thruster use. These mitigation measures were also reviewed and approved by NMFS for the BIWF IHA issued in 2014 and amended in June 2015, and are consistent with the terms and conditions of the amended Incidental Take Statement for the Biological Opinion on the Construction and Operation of the Block Island Wind Farm:

Exclusion and Monitoring Zones: Exclusion zones (defined by NMFS as the Level A harassment zone of influence [ZOI] out to the 180/190 dB isopleth) and monitoring zones (defined by NMFS as the Level B harassment ZOI out to the 120 dB isopleth for continuous noise) are typically established to minimize impacts to marine mammals. However, noise analysis has indicated that DP vessel thruster use will not produce sound levels at 180/190 dB at any appreciable distance (see DWBI's Underwater Acoustic Modeling Report in Appendix A of the application). This is consistent with acoustic modeling results for other Atlantic wind farm projects using DP vessel thrusters (Tetra Tech, 2014; DONG Energy, 2016), as well as subsea cable-laying activities using DP vessel thruster use (Quintillion, 2015 and 2016). Therefore, injury to marine mammals is not expected and no Level A harassment exclusion zone is proposed.

Consultation with NMFS has indicated that the monitoring zones established out to the 120 dB isopleth for continuous noise will result in zones too large to effectively monitor (up to 4.75 km). Therefore, based on precedent set by the U.S. Department of the Navy and recent European legislation regarding compliance thresholds for wind farm construction noise (DoN, 2012; OSPAR, 2008), and consistent with the previous IHA's issued to DWBI and Deepwater Wind Block Island Transmission, L.L.C. (DWBITS), DWBI will establish a monitoring zone equivalent, at a minimum, to the size of the predicted 160 dB isopleth for DP vessel thruster use (5-m radius from the DP vessel) based on DWBI's underwater acoustic modeling. All marine mammal sightings which are visually feasible beyond the 160 dB isopleth will be recorded and potential takes will be noted.

DP Thruster Power Reduction—During cable installation a constant tension must be maintained to ensure the integrity of the cable. Any significant stoppage in vessel maneuverability during jet plow activities has the potential to result in significant damage to the cable. Therefore, during cable lay if marine mammals enter or approach the established 160 dB isopleth monitoring zone, DWBI proposes to reduce DP thruster to the maximum extent possible, except under circumstances when reducing DP thruster use would compromise safety (both human health and environmental) and/or the integrity of the Project. Reducing thruster energy will effectively reduce the potential for exposure of marine mammals to sound energy. After decreasing thruster energy, protected species observers (PSOs) will continue to monitor marine mammal behavior and determine if the animal(s) is moving towards or away from the established monitoring zone. If the animal(s) continues to move towards the sound source then DP thruster use would remain at the reduced level. Normal thruster use will resume when PSOs report that marine mammals have moved away from and remained clear of the monitoring zone for a minimum of 30 minutes since last the sighting.

Vessel Speed Restrictions—To minimize the potential for vessel collision with North Atlantic right whales and other marine mammals, all DWBI project vessels shall operate at speeds of 10 knots or less from November 1 through April 30.

Ship Strike Avoidance—DWBI shall adhere to NMFS guidelines for marine mammal ship strike avoidance (http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf).

NMFS has carefully evaluated DWBI's mitigation measures in the context of ensuring that we prescribe 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 measure is 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 here:

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

• A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

• 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 activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

• A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

• 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.

• 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.

In order to issue an IHA 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.

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.

DWBI submitted a marine mammal monitoring and reporting 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.

Visual Monitoring—Visual observation of the 160-dB monitoring zone established for DP vessel operation during cable installation will be performed by qualified and NMFS approved protected species observers (PSOs), the resumes of whom will be provided to NMFS for review and approval prior to the start of construction activities. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. A minimum of two PSOs will be stationed aboard the cable lay vessel. Each PSO will monitor 360 degrees of the field of vision. PSOs stationed on the DP vessel will begin observation of the monitoring zone as the vessel initially leaves the dock. Observations of the monitoring zone will continue throughout the cable installation and will end after the DP vessel has returned to dock.

Observers would estimate distances to marine mammals visually, using laser range finders, or by using reticle binoculars during daylight hours. During night operations, night vision binoculars will be used. If vantage points higher than 25 ft (7.6 m) are available, distances can be measured using inclinometers. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting, vessel position change, and any environmental change.

Each PSO stationed on the cable lay vessel will scan the surrounding area for visual indication of marine mammal presence that may enter the monitoring zone. Observations will take place from the highest available vantage point on the cable lay vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence.

Data on all observations will be recorded based on standard PSO collection requirements. This will include dates and locations of construction operations; time of observation; location and weather; distance from sound source, DP vessel thruster status (i.e., energy level); details of marine mammal sightings (e.g., species, age classification [if known], numbers); details of any observed “taking” (behavioral disturbances or injury/mortality); and reaction of the animal(s) to relevant sound source (if any) and observed behavior, including bearing and direction of travel. All marine mammal sightings which are visually feasible beyond the 160 dB isopleth, will also be recorded and potential takes will be noted.

In addition, prior to initiation of construction work, all crew members on barges, tugs and support vessels, will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the construction supervisors and crews, the PSOs, and DWBI. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures. The DWBI Construction Compliance Manager (or other authorized individual) will have the authority to stop or delay construction activities, if deemed necessary. New personnel will be briefed as they join the work in progress.

Acoustic Field Verification—DWBI would perform field verification to confirm the 160-dB isopleth monitoring zone. Field verification during cable installation using DP thrusters will be performed using acoustic measurements from two reference locations at two water depths (a depth at mid-water and a depth at approximately 1 m above the seafloor). As necessary, the monitoring zone will be modified to ensure adequate protection to marine mammals.

Observers would record dates and locations of construction operations; times of observations; location and weather; details of marine mammal sightings (e.g., species, age, numbers, behavior); and details of any observed take.

DWBI proposes to provide the following notifications and reports during construction activities:

• Notification to NMFS and the U.S. Army Corps of Engineers (USACE) within 24-hours of beginning construction activities and again within 24-hours of completion;

• The USACE and NMFS should be notified within 24 hours whenever a monitoring zone is re-established by DWBI. After any re-establishment of the monitoring zone, DWBI will provide a report to the USACE and NMFS detailing the field-verification measurements within 7 days. This includes information, such as: a detailed account of the levels, durations, and spectral characteristics of DP thruster use, and the peak, RMS, and energy levels of the sound pulses and their durations as a function of distance, water depth, and tidal cycle. The USACE and NMFS will be notified within 24 hours if field verification measurements suggest a larger DP thruster power reduction zone.

• Within 120 days after completion of the construction activities, a final technical report will be provided to USACE, and NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals that may have been taken during construction activities, and provides an interpretation of the results and effectiveness of all monitoring tasks

• Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified activities 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), DWBI would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NOAA Greater Atlantic Regional Fisheries Office (GARFO) Stranding Coordinator. 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 event. NMFS would work with DWBI to minimize reoccurrence of such an event in the future. DWBI would not resume activities until notified by NMFS.

In the event that DWBI discovers an injured or dead marine mammal and 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), DWBI would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the GARFO Stranding Coordinator. 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 the Applicant to determine if modifications in the activities are appropriate.

In the event that DWBI discovers an injured or dead marine mammal and determines that the injury or 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), DWBI would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Greater Atlantic Regional Fisheries Office Regional Stranding Coordinator, within 24 hours of the discovery. DWBI would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. DWBI 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].

Underwater sound associated with the use of DP vessel thrusters during inter-array and export cable installation is the only project activity that has the potential to harass marine mammals, as defined by the MMPA. Harassment could take the form of temporary threshold shift, avoidance, or other changes in marine mammal behavior. NMFS anticipates that impacts to marine mammals would be in the form of Level B behavioral harassment and no take by injury, serious injury, or mortality is proposed. NMFS does not anticipate take resulting from the movement of vessels (i., vessel strike) associated with construction because there will be a limited number of vessels moving at slow speeds over a relatively shallow, nearshore area, and PSOs on the vessels will be monitoring for marine mammals and will be able to alert the vessels to avoid any marine mammals in the area.

NMFS' current acoustic exposure criteria for estimating take are shown in Table 3 below. DWBI's modeled distances to these acoustic exposure criteria are shown in Table 4. Details on the model characteristics and results are provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. As discussed in the application and in Appendix A, acoustic modeling took into consideration sound sources using the loudest potential operational parameters, bathymetry, geoacoustic properties of the project area, time of year, and marine mammal hearing ranges. Results from the acoustic modeling showed that estimated maximum critical distance to the 120 dB re 1 μPa (rms) MMPA threshold was approximately 4,750 m for 10-m water depth, 4,275 m for 20-m water depth, and 3,575 m for 40-m water depth. More information on results including figures displaying critical distance information can be found in Appendix A. DWBI and NMFS believe that these estimates represent the worst-case scenario and that the actual distances to the Level B harassment threshold may be shorter. DP vessel thruster use will not produce sound levels at 180/190 dB at any appreciable distance; therefore, no injurious (Level A harassment) takes have been requested or are being proposed for authorization. To verify the distance to the MMPA thresholds calculated by underwater acoustic modeling, DWBI has committed to conducting real-time underwater acoustic measurements of the DP vessel thrusters. Field verification of actual sound propagation will enable adjustment of the MMPA threshold level distances to fit actual construction conditions, if necessary.

DWBI estimated species densities within the proposed project area in order to estimate the number of marine mammal exposures to sound levels above 120 dB (continuous noise). The data used as the basis for estimating species density for the project area are sightings per unit effort (SPUE) taken from Kenney and Vigness-Raposa (2009). SPUE (or, the relative abundance of species) is derived by using a measure of survey effort and number of individual cetaceans sighted. SPUE allows for comparison between discrete units of time (i.e. seasons) and space within a project area (Shoop and Kenney, 1992). SPUE calculated by Kenney and Vigness-Raposa (2009) was derived from a number of sources including: (1) North Atlantic Right Whale Consortium database; (2) CeTAP (CeTAP, 1982); (3) sightings data from the Coastal Research and Education Society of Long Island, Inc. and Okeanos Ocean Research Foundation; (4) the Northeast Regional Stranding network (marine mammals); and (5) the NOAA Northeast Fisheries Science Center's Fisheries Sampling Branch (Woods Hole, MA).

The Northeast Navy Operations Area (OPAREA) Density Estimates (DoN, 2007) were also used in support for estimating take for seals, which represents the only available comprehensive data for seal abundance. However, abundance estimates for the Southern New England area includes breeding populations on Cape Cod, and therefore using this dataset alone will result in a substantial over-estimate of take in the Project Area. However, based on reports conducted by Kenney and Vigness-Raposa (2009), Schroeder (2000), and Ronald and Gots (2003), harbor seal abundance off the Southern New England coast in the vicinity of the survey is likely to be approximately 20 percent of the total abundance. In addition, because the seasonality of, and habitat use by, gray seals roughly overlaps with harbor seals, the same abundance assumption of 20 percent of the southern New England population of gray seals can be applied when estimating abundance. Per this data, take due to Level B harassment for harbor seals and gray seals have been calculated based on 20 percent of the Northeast Navy OPAREA abundance estimates and resulting adjusted density values.

The methodology for calculating takes is the same as that described in the Federal Register notice for the original 2014 (modified in 2015) BIWF IHA. Estimated takes were calculated by multiplying the maximum species density (per 100 km2) by the zone of influence (ZOI), multiplied by a correction factor of 1.5 to account for marine mammals underwater, multiplied by the number of days of the specified activity.

A detailed description of the model used to calculate zones of influence is provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. Acoustic modeling was completed with the U.S. Naval Research Laboratory's Range-dependent Acoustic Model (RAM) which is widely used by sound engineers and marine biologists due to its adaptability to describe highly complex acoustic scenarios. This modeling analysis method considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and geoacoustic properties (e.g. hard rock, sand, mud) along propagation transects radiating from the sound source. Transects are run along compass points (45°, 90°, 135°, 180°, 225°, 270°, 315°, and 360°) to determine received sound levels at a given location. These values are then summed across frequencies to provide broadband received levels at the MMPA Level A and Level B harassment thresholds as described in Table 3. The representative area ensonified to the MMPA Level B threshold for DP vessel thruster use during cable installation was used to estimate take. The distances to the MMPA thresholds were used to conservatively estimate how many marine mammals would receive a specified amount of sound energy in a given time period and to support the development of monitoring and/or mitigation measures.

DWBI used a ZOI of 9.7 mi2 (25.1 km2) and a maximum installation period of 28 days to estimate take from use of the DP vessel thruster during cable installation. The ZOI represents the average ensonified area across the three representative water depths (10 m, 20 m, and 40 m) along a 13.2-km cable route. DWBI expects cable installation to occur between May and October. To be conservative, take calculations were based on the highest seasonal species density when cable installation may occur (see Table 5). The resulting take estimates (rounded to the nearest whole number) based upon these conservative assumptions for North Atlantic right, humpback, fin, and minke whales, as well as, short-beaked common and Atlantic white-sided dolphins, harbor porpoise, and harbor and gray seals are presented in Table 5. These numbers represent less than 1.5 percent of the stock for these species, respectively (Table 5). These percentages are the upper boundary of the animal population that could be affected.

DWBI's requested take numbers are provided in Table 5 and this is also the number of takes NMFS is proposing to authorize. DWBI's take calculations do not take into account whether a single animal is harassed multiple times or whether each exposure is a different animal. Therefore, the numbers in Table 5 are the maximum number of animals that may be harassed during the cable installation activities (i.e., DWBI assumes that each exposure event is a different animal). These estimates do not account for prescribed mitigation measures that DWBI would implement during the specified activities and the fact that powerdown procedures shall be implemented if an animal enters the Level B harassment zone (160 dB), further reducing the potential for any takes to occur during these activities.

DWBI did not request, and NMFS is not proposing, take from vessel strike. We do not anticipate marine mammals to be impacted by vessel movement because a limited number of vessels would be involved in construction activities and they would mostly move at slow speeds during DP vessel thruster use during cable installation activities. However, DWBI shall implement measures (e.g., vessel speed restrictions and separation distances; see Proposed Mitigation Measures) to further minimize potential impacts to marine mammals from vessel strikes during vessel operations and transit in the project area.

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 takes, alone, is not enough information on which to base an impact determination, as the severity of harassment may vary greatly depending on the context and duration of the behavioral response, many of which would not be expected to have deleterious impacts on the fitness of any individuals. In determining whether the expected takes will have a negligible impact, in addition to considering estimates of the number of marine mammals that might be “taken,” 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, and the status of the species.

To avoid repetition, the discussion of our analyses applies to all the species listed in Table 5, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is no information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.

As discussed in the Potential Effects section, permanent threshold shift, masking, non-auditory physical effects, and vessel strike are not expected to occur. There is some potential for limited TTS; however, animals in the area would likely incur no more than brief hearing impairment (i.e., TTS) due to low source levels and the fact that most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Moreover, as the DP vessel is continually moving along the cable route over a 24-hour period, the area within the 120 dB isopleth is constantly moving (i.e., transient sound field) and shifting within a 24-hour period. Therefore, no single area in Rhode Island Sound will have noise levels above 120 dB for more than a few hours; once an area has been surveyed, it is not likely that it will be surveyed again, therefore reducing the likelihood of repeated impacts within the project area.

Potential impacts to marine mammal habitat were discussed previously in this document (see the Anticipated Effects on Habitat section). Marine mammal habitat may be impacted by elevated sound levels and some sediment disturbance, but these impacts would be temporary. Feeding behavior is not likely to be significantly impacted. Prey species are mobile, and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. There are no feeding areas known to be biologically important to marine mammals within the proposed project area.

There are no rookeries or mating grounds known to be biologically important to marine mammals within the proposed project area. ESA-listed species for which takes are proposed are North Atlantic right, humpback, and fin whales. Recent estimates of abundance indicate a stable or growing humpback whale population, while examination of the minimum number alive population index calculated from the individual sightings database for the years 1990-2010 suggests a positive and slowly accelerating trend in North Atlantic right whale population size (Waring et al., 2015). There are currently insufficient data to determine population trends for fin whale) (Waring et al., 2015). There is no designated critical habitat for any ESA-listed marine mammals within the project area, and none of the stocks for non-listed species proposed to be taken are considered “depleted” or “strategic” by NMFS under the MMPA.

The proposed mitigation measures are expected to reduce the potential for exposure of marine mammals by reducing the DP thruster power if a marine mammal is observed within the 160 dB isopleth monitoring zone. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit in the Study Area. DWBI vessels associated with the BIWF construction will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf), including maintaining a distance of at least 1,500 feet from right whales and having dedicated protected species observers who will communicate with the captain to ensure that all measures to avoid whales are taken. NMFS believes that the size of right whales, their slow movements, and the amount of time they spend at the surface will make them extremely likely to be spotted by protected species observers during construction activities within the project area.

DWBI did not request, and NMFS is not proposing, take of marine mammals by injury, serious injury, or mortality. NMFS expects that all takes would be in the form of short-term Level B behavioral harassment in the form of brief startling reaction and/or temporary vacating of the area, or decreased foraging (if such activity were occurring)—reactions that are considered to be of low severity and with no lasting biological consequences (e.g., Southall et al., 2007). This is largely due to the short time scale of the proposed activities and the nature of the DP vessel noise (i.e., low source level, constantly moving resulting in a transient sound field), as well as the required mitigation.

Based on best available science, NMFS preliminarily concludes that exposures to marine mammal species and stocks due to DWBI's DP vessel thruster use during cable installation activities would result in only short-term (temporary and short in duration) and relatively infrequent effects to individuals exposed, and not of the type or severity that would be expected to be additive for the very small portion of the stocks and species likely to be exposed. Given the intensity of the activities, and the fact that shipping contributes to the ambient sound levels in the surrounding waters, NMFS does not anticipate the proposed take estimates to impact annual rates of recruitment or survival. Animals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success, are not expected.

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 DWBI's DP vessel thruster use during cable installation activities will have a negligible impact on the affected marine mammal species or stocks.

The requested takes proposed to be authorized for the cable installation activities utilizing DP vessel thrusters represent 0.22 percent of the Western North Atlantic (WNA) stock of North Atlantic right whale, 0.24 percent of the Gulf of Maine stock of humpback whale, 1.42 percent of the WNA stock of fin whale, 0.02 percent of the Canadian East Coast stock of minke whale, 0.07 percent of the WNA stock of short-beaked common dolphin, 0.16 percent of the WNA stock of Atlantic white-sided dolphin, 0.01 percent of the Gulf of Maine/Bay of Fundy stock of harbor porpoise, 0.03 percent of the WNA stock of harbor seal, and 0.01 percent of the North Atlantic stock of gray seal. These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment and represent extremely small numbers (less than 1.5 percent) relative to the affected species or stock sizes. Further, the proposed take numbers are the maximum numbers of animals that are expected to be harassed during the project; it is possible that some of these exposures may occur to the same individual. Therefore, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

There are three marine mammal species that are listed as endangered under the ESA: Fin whale, humpback whale, and North Atlantic right whale. Under section 7 of the ESA, the U.S. Army Corps of Engineers (the federal permitting agency for the actual construction) consulted with NMFS on the proposed BIWF project. NMFS also consulted internally on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. NMFS' Greater Atlantic Regional Fisheries Office (GARFO) issued a Biological Opinion on January 30, 2014 which was amended on June 5, 2015, concluding that the Block Island Wind Farm project may adversely affect but is not likely to jeopardize the continued existence of fin whale, humpback whale, or North Atlantic right whale.

NMFS conducted the required analysis under NEPA and prepared an EA for its issuance of the original BIWF IHA, issuing a Finding of No Significant Impact (FONSI) for the action on August 21, 2014 (reaffirmed on June 9, 2015). The potential environmental impacts of the proposed IHA are within the scope of the environmental impacts analyzed in the NMFS' EA, which was used to support NMFS' FONSI. NMFS has determined that there are no substantial changes to the action and that there are no new direct, indirect, or cumulative effects to the human environment resulting from the IHA modifications. Therefore, NMFS has determined that a new or supplemental EA or Environmental Impact Statement are unnecessary, and reaffirms the existing FONSI for this action.

As a result of these preliminary determinations, NMFS proposes to issue an Incidental Harassment Authorization (IHA) to DWBI for cable installation activities that use DP vessel thrusters from May 2016 through April 2017, 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).

Deepwater Wind Block Island, LLC, 56 Exchange Terrace, Suite 101, Providence, RI, 02903-1772, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to harass marine mammals incidental to dynamic positioning vessel thruster use associated with inter-array and export cable installation activities off the southeast coast of Block Island, Rhode Island.

1. This Authorization is valid from May 1, 2016 through April 30, 2017.

2. This Authorization is valid only for DP vessel thruster use associated with cable installation activities, as described in the IHA application.

3. The holder of this authorization (Holder) is hereby authorized to take, by Level B harassment only, 13 Atlantic white-sided dolphins (Lagenorhynchus acutus), 28 short-beaked common dolphins (Delphinus delphis), 8 harbor porpoises (Phocoena phocoena), 2 minke whales (Balaenoptera acutorostrata), 23 fin whales (Balaenoptera physalus), 2 humpback whales (Megaptera novaeangliae), 1 North Atlantic right whales (Eubalaena glacialis), 30 gray seals (Halichoerus grypus), and 21 harbor seals (Phoca vitulina) incidental to the Block Island Wind Farm inter-array and export cable installation activities using dynamic positioning (DP) vessel thrusters.

4. The taking of any marine mammal in a manner prohibited under this IHA must be reported immediately to NMFS' Greater Atlantic Regional Fisheries Office (GARFO), 55 Great Republic Drive, Gloucester, MA 01930-2276; phone 978-281-9300, and NMFS' Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; phone 301-427-8401.

5. The Holder or designees must notify NMFS' GARFO and Office of Protected Resources (Headquarters) at least 24 hours prior to the seasonal commencement of the specified activity (see contact information in 4 above).

6. The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, or her designee at least 24 hours prior to the start of survey activities (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible) at 301-427-8401 or to [email protected].

The Holder is required to abide by the following mitigation conditions listed in 7(a)-(c). Failure to comply with these conditions may result in the modification, suspension, or revocation of this IHA.

(a) DP Thruster Power Reduction—During cable installation, if marine mammals enter or approach the established 160 dB isopleth monitoring zone, DWBI shall reduce DP thruster to the maximum extent possible, except under circumstances when reducing DP thruster use would compromise safety (both human health and environmental) and/or the integrity of the Project. After decreasing thruster energy, protected species observers (PSOs) will continue to monitor marine mammal behavior and determine if the animal(s) is moving towards or away from the established monitoring zone. If the animal(s) continues to move towards the sound source then DP thruster use would remain at the reduced level. Normal thruster use will resume when PSOs report that marine mammals have moved away from and remained clear of the monitoring zone for a minimum of 30 minutes since last the sighting.

(b) Vessel Speed Restrictions: All project vessels shall operate at speeds of 10 knots or less from November 1 through April 30.

(c) Ship Strike Avoidance: The Holder shall adhere to NMFS guidelines for marine mammal ship strike avoidance (http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf).

The Holder is required to abide by the following monitoring conditions listed in 8(a)-(b). Failure to comply with these conditions may result in the modification, suspension, or revocation of this IHA.

(a) Visual Monitoring—Visual observation of the 160-dB monitoring zone will be performed by qualified and NMFS approved protected species observers (PSOs). Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. A minimum of two PSOs will be stationed aboard the DP vessel. Each PSO will monitor 360 degrees of the field of vision. PSOs stationed on the DP vessel will begin observation of the monitoring zone as the vessel initially leaves the dock. Observations of the monitoring zone will continue throughout the cable installation and will end after the DP vessel has returned to dock. Observers would estimate distances to marine mammals visually, using laser range finders, or by using reticle binoculars during daylight hours. During night operations, night vision binoculars will be used. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting, vessel position change, and any environmental change. Each PSO stationed on the cable lay vessel will scan the surrounding area for visual indication of marine mammal presence that may enter the monitoring zone. Observations will take place from the highest available vantage point on the cable lay vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence. Information recorded during each observation shall be used to estimate numbers of animals potentially taken and shall include the following:

• Dates and locations of construction operations;

• Number of observations;

• Time and frequency of observations;

• Location (i.e., distance from sound source);

• DP vessel thruster status (i.e., energy level)

• Weather conditions;

• Details of mammal sightings (species, age classification [if known], numbers)

• Reaction of the animal(s) to relevant sound source (if any) and observed behavior, including bearing and direction of travel; and

• Details of any observed “taking” (behavioral disturbances or injury/mortality;

All marine mammal sightings which are visually feasible beyond the 160 dB isopleth, shall also be recorded and potential takes shall be noted.

(b) Acoustic Field Verification—DWBI would perform field verification to confirm the 160-dB isopleth monitoring zone. Field verification during cable installation using DP thrusters will be performed using acoustic measurements from two reference locations at two water depths (a depth at mid-water and a depth at approximately 1 m above the seafloor). As necessary, the monitoring zone will be modified to ensure adequate protection to marine mammals.

(a) The Holder shall provide the following notifications during construction activities:

• Notification to NMFS and the U.S. Army Corps of Engineers (USACE) within 24-hours of beginning construction activities and again within 24-hours of completion

• The USACE and NMFS shall be notified within 24 hours whenever a monitoring zone is re-established by DWBI. After any re-establishment of the monitoring zone, DWBI will provide a report to the USACE and NMFS detailing the field-verification measurements within 7 days. This shall include the following information: a detailed account of the levels, durations, and spectral characteristics of DP thruster use, and the peak, RMS, and energy levels of the sound pulses and their durations as a function of distance, water depth, and tidal cycle. The USACE and NMFS will be notified within 24 hours if field verification measurements suggest a larger DP thruster power reduction zone. Implementation of a smaller zone shall be contingent on NMFS' review and shall not be used until NMFS approves the change.

• Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified activities 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), DWBI would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NOAA Greater Atlantic Regional Fisheries Office (GARFO) Stranding Coordinator. 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 event. NMFS would work with DWBI to minimize reoccurrence of such an event in the future. DWBI would not resume activities until notified by NMFS.

In the event that DWBI discovers an injured or dead marine mammal and 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), DWBI would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the GARFO Stranding Coordinator. 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 the Applicant to determine if modifications in the activities are appropriate.

In the event that DWBI discovers an injured or dead marine mammal and determines that the injury or 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), DWBI would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Greater Atlantic Regional Fisheries Office Regional Stranding Coordinator, within 24 hours of the discovery. DWBI would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. DWBI can continue its operations under such a case.

(b) The Holder shall provide a final technical report to USACE and NMFS, within 120 days after completion of the construction activities, that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals that may have been taken during construction activities, and provides an interpretation of the results and effectiveness of all monitoring tasks. The report shall contain the following information:

• A summary of the activity and monitoring plan (i.e., dates, times, locations);

• A summary of mitigation implementation;

• Monitoring results and a summary that addresses the goals of the monitoring plan, including the following:

○ Environmental conditions when observations were made:

○ Water conditions (i.e., Beaufort sea-state, tidal state)

○ Weather conditions (i.e., percent cloud cover, visibility, percent glare)

○ Date and time survey initiated and terminated

○ Date, time, number, species, age, and any other relevant data regarding marine mammals observed

○ Description of the observed behaviors (in both the presence and absence of activities):

If possible, the correlation to underwater sound level occurring at the time of any observable behavior

• Estimated exposure/take numbers during activities; and

• An assessment of the implementation and effectiveness of prescribed mitigation and monitoring measures.

10. 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.

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

12. The Holder 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 DWBI's proposed dynamic positioning vessel thruster use associated with inter-array and export cable installation activities off the southeast coast of Block Island, Rhode Island. Please include with your comments any supporting data or literature citations to help inform our final decision on DWBI's request for an MMPA authorization.

ACCRES was established by the Secretary of Commerce on May 21, 2002, to advise the Secretary, through the Under Secretary of Commerce for Oceans and Atmosphere, on matters relating to the U.S. commercial remote sensing industry and NOAA's activities to carry out responsibilities of the Department of Commerce as set forth in Title 51 U.S.C. 60101, et seq, the National and Commercial Space Programs Act of 2010.

Committee members serve in a representative capacity for a term of two years and may serve additional terms, if reappointed. No more than 20 individuals at a time may serve on the Committee. ACCRES will have a fairly balanced membership consisting of approximately 9 to 20 members. Nominations are encouraged from all interested U.S. persons and organizations representing interests affected by the National and Commercial Space Programs Act of 2010 and the U.S. commercial space based remote sensing policy. Nominees must possess demonstrable expertise in a field related to the spaced based commercial remote sensing industry or exploitation of space based commercial remotely sensed data and be able to attend committee meetings that are held usually two times per year. Membership is voluntary, and service is without pay. Each nomination that is submitted should include the proposed committee member's name and organizational affiliation, a brief description of the nominee's qualifications and interest in serving on the Committee, a curriculum vitae or resume of the nominee, and no more than three supporting letters describing the nominee's qualifications and interest in serving on the Committee. Self-nominations are acceptable. The following contact information should accompany each submission: the nominee's name, address, phone number, fax number, and email address.

Nominations should be sent to Tahara Dawkins, Director, Commercial Remote Sensing Regulatory Affairs Office, 1335 East-West Highway, Room 8260, Silver Spring, Maryland 20910. Nominations must be postmarked no later than 30 days from the publication date of this notice. The full text of the Committee Charter and its current membership can be viewed at the Agency's Web page at: http://www.nesdis.noaa.gov/CRSRA/accresHome.html.

The items of discussion are as follows:

1. Review and consideration of ongoing SEDAR projects including data best practices, identification of priority stocks to address MRIP data revisions, SSC and Council feedback on the research track process, and the NMFS stock assessment prioritization.

2. Review and consideration of the SEDAR assessment schedule, including updates on 2016 assessment projects, 2017 workshop schedules and data deadlines, and future assessment priorities.

Although non-emergency issues not contained on this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 10 business days prior to the meeting.

The items of discussion on the agenda are as follows:

The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's Web site and click on the File Server link in the lower left of the Council Web site: http://www.gulfcouncil.org. The username and password are both “gulfguest”. Click on the “Library Folder”, then scroll down to “Ad Hoc Reef Fish Headboat AP”.

The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

I. Background

The USPTO held a roundtable on March 5, 2014 (“Roundtable”), to solicit public opinion regarding the written description requirement of 35 U.S.C. 112(a), or pre-America Invents Act (“AIA”) 35 U.S.C. 112, para. 1 (“35 U.S.C. 112(a)”) as applied to design applications in certain limited situations. Specifically, the USPTO sought comments on the application of the written description requirement to an amended claim or a claim in a continuing design application (“later-claimed design”) that includes only a subset of originally disclosed elements (the later-claimed design does not introduce any new elements that were not originally disclosed). See Request for Comments and Notice of Roundtable Event on the Written Description Requirement for Design Applications, 79 FR 7171 (Feb. 6, 2014) (“the Notice”). As discussed in the Notice, it has been the experience of the USPTO that in the vast majority of cases there is no question that a later-claimed design, composed of only a subset of originally disclosed elements, satisfies the written description requirement. In certain limited situations, however, the subset of originally disclosed elements, although visible in the original disclosure, composes a later-claimed design that an ordinary designer might not have recognized in the original disclosure. In those certain limited situations, a question arises as to whether the later-claimed design satisfies the written description requirement.

In the Notice, the USPTO requested input on its proposed factors-based approach, in which design examiners would consider certain enumerated factors when evaluating a claim for compliance with the written description requirement. The Roundtable featured public presentations and discussion of the topics identified in the Notice. The USPTO also received written comments on the topics identified in the Notice and discussed at the Roundtable. Details of the Roundtable, as well as the public presentations, the USPTO's examples presented for discussion, the webcast recording, and the written comments received are available at http://www.uspto.gov/patent/contact-patents/roundtable-written-description-requirement-design-applications.

The USPTO considered all of the comments, both those expressed at the Roundtable and those received in writing. Responsive to these comments, the USPTO has decided not to pursue the factors-based approach set forth in the Notice. Also, in view of the comments, it became clear that there exists a need to supplement the current provisions in the Manual of Patent Examining Procedure (“MPEP”) relating to 35 U.S.C. 112 for design applications. A majority of the comments urged that the USPTO focus on precedent from the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) pertaining to written description issues in the context of design patents and applications. Specific emphasis was placed on Racing Strollers Inc. v. TRI Industries Inc., 878 F.2d 1418 (Fed. Cir. 1989) (en banc) and In re Daniels, 144 F.3d 1452 (Fed. Cir. 1998). Most comments suggested that these cases establish “a simple visual test” for determining compliance with the written description requirement; that is, the written description requirement is satisfied because the elements of the later-claimed design are visible in the original disclosure. Several comments also addressed In re Owens, 710 F.3d 1362 (Fed. Cir. 2013). In developing the proposed approach set forth in section III of this notice, the USPTO considered these Federal Circuit design cases, along with other seminal Federal Circuit cases concerning the written description requirement.

35 U.S.C. 112(a) provides that “[t]he specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same . . . .” The Federal Circuit has explained that “requiring a written description of the invention plays a vital role in curtailing claims . . . that have not been invented, and thus cannot be described.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010) (en banc). Further, “the purpose of the written description requirement is to `ensure that the scope of the right to exclude, as set forth in the claims, does not overreach the scope of the inventor's contribution to the field of art as described in the patent specification.' ” Id., 598 F.3d at 1353-54 (citations omitted).

In evaluating written description, “the test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id., 598 F.3d at 1351 (citations omitted). See also Daniels, 144 F.3d at 1456. With respect to showing possession, the Federal Circuit has emphasized that “the hallmark of written description is disclosure” and “[t]hus, `possession as shown in the disclosure' is a more complete formulation.” Ariad, 598 F.3d at 1351. Accordingly, “the test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art” and “[b]ased on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed.” Id.

The test for sufficiency of written description is the same for design and utility patents. Daniels, 144 F.3d at 1456. For designs, “[i]t is the drawings of the design patent that provide the description of the invention.” Id. (stating, “Although linguists distinguish between a drawing and a writing, the drawings of the design patent are viewed in terms of the `written description' requirement of Section 112.”).

In Racing Strollers, the Federal Circuit stated, “[a]s a practical matter, meeting the [written description] requirement of § 112 is, in the case of an ornamental design, simply a question of whether the earlier application contains illustrations, whatever form they may take, depicting the ornamental design illustrated in the later application and claimed therein . . . .” Racing Strollers, 878 F.2d at 1420. Subsequent cases explain that the written description analysis must be conducted from the perspective of an ordinary designer. For example, in finding that the inventor in Daniels had possession of a later-claimed design to a leecher without leaf ornamentation where an earlier design application depicted the leecher with leaf ornamentation, the Federal Circuit stated, “The leecher as an article of manufacture is clearly visible in the earlier design application, demonstrating to the artisan viewing that application that [the inventor] had possession at that time of the later claimed design of that article . . . .” Daniels, 144 F.3d at 1456-57 (citations omitted) (emphasis added).

This principle is articulated again in Owens, where the Federal Circuit found that a parent application disclosing a design for a bottle with an undivided pentagonal center-front panel did not provide written description support for a continuation claiming only the trapezoidal top portion of the center-front panel. Owens, 710 F.3d at 1368. Specifically, the Federal Circuit stated that “the question for written description purposes is whether a skilled artisan would recognize upon reading the parent's disclosure that the trapezoidal top portion of the front panel might be claimed separately from the remainder of that area.” Owens, 710 F.3d at 1368 (citing Ariad, 598 F.3d at 1351) (emphasis added). These design cases are consistent with the written description case law requiring that the application relied upon must reasonably convey to a person of skill in the art that the inventor had possession of the claimed subject matter. See Ariad, 598 F.3d at 1351 (stating, “the test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art” and “[b]ased on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed.”).

A question as to whether the original or earlier disclosure of a design provides an adequate written description may arise when an amended claim is presented, or where a claim to entitlement of an earlier priority date or effective filing date (e.g., under 35 U.S.C. 120) has been made. A continuation application must comply with the written description requirement to be entitled to a parent application's effective filing date. See Owens, 710 F.3d at 1366 (citing Daniels, 144 F.3d at 1456). Similarly, an amended claim must find written description support in the original disclosure. In determining whether a claim complies with the written description requirement, an examiner would bear in mind that “the written description question does not turn upon what has been disclaimed, but instead upon whether the original disclosure `clearly allow[s] persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.' ” Owens, 710 F.3d at 1368 (quoting Ariad, 598 F.3d at 1351) (alternations in original) (emphasis added).

Issues of compliance with the written description requirement may arise where a later-claimed design is composed of only a subset of originally disclosed elements (the later-claimed design does not introduce any new elements that were not originally disclosed). In the vast majority of such situations, the fact that the subset of originally disclosed elements composing the later-claimed design is visible (claimed or unclaimed) in the original/earlier application is sufficient to demonstrate to the ordinary designer viewing the original/earlier application that the inventor had possession of the later-claimed design at the time of filing the original/earlier application. See Racing Strollers, 878 F.2d at 1420 (stating “[a]s a practical matter, meeting the [written description] requirement of § 112 is, in the case of an ornamental design, simply a question of whether the earlier application contains illustrations, whatever form they may take, depicting the ornamental design illustrated in the later application and claimed therein . . . .”); see also Daniels, 144 F.3d at 1456 (stating “when an issue of priority arises under § 120 in the context of design patent prosecution, one looks to the drawings of the earlier application for disclosure of the subject matter claimed in the later application” and finding that “[t]he leecher as an article of manufacture is clearly visible in the earlier design application, demonstrating to the artisan viewing that application that [the inventor] had possession at that time of the later claimed design of that article [alone without the leaf ornamentation claimed in the earlier design application]”). In these situations, no further analysis by the examiner would be necessary with respect to the written description requirement.

However, as mentioned earlier, limited situations may exist where a later-claimed design, composed of only a subset of originally disclosed elements (claimed or unclaimed), raises a question as to whether the later-claimed design is supported by the original/earlier disclosure, even though the elements composing the later-claimed design are visible in the original/earlier disclosure. An example of such limited situations is the situation in which there is an original disclosure composed of a grid of one hundred blocks (or a grid of several million pixels) and a later-claimed design composed of only a subset of interior blocks (or pixels) that form patterns (e.g., a smiling face or a frowning face). In this situation, there is a question as to whether the later-claimed design is supported by the original disclosure, even though the interior blocks (or pixels) composing the patterns are visible in the original disclosure. See also, “AIPLA Comments to USPTO on Written Description,” March 14, 2014, at page 3, available at http://www.uspto.gov/patents/law/comments/dr_a-aipla_20140314.pdf, for a similar concept. In such limited situations, the examiner would determine whether an ordinary designer would recognize upon reviewing the complete original/earlier application that the inventor had possession of the later-claimed design in the original/earlier disclosure. See Daniels, 144 F.3d at 1456 (stating, “In general, precedent establishes that although the applicant `does not have to describe exactly the subject matter claimed, . . . the description must clearly allow persons of ordinary skill in the art to recognize that [the applicant] invented what is claimed.' ”) (citations omitted). See also Owens, 710 F.3d at 1368 (quoting Ariad, 598 F.3d at 1351).

When making this determination, the examiner would consider what the original/earlier application, in its totality (e.g., including the title, any descriptive statements, and the drawings), would have reasonably conveyed to an ordinary designer at the time of the invention, and how an ordinary designer in the art would have designed the article that is the subject of the design claim. Such considerations can include the nature and intended use of the article embodying the claimed design as identified by the title or description (see, e.g., MPEP § 1503.01 I (9th ed. 2015)). If, based on these considerations, the examiner determines that an ordinary designer would not recognize upon reviewing the complete original/earlier application the later-claimed design in the original/earlier disclosure, the examiner would reject the claim for lack of written description (or in the case of a priority or benefit claim, the application would not be entitled to the earlier date).

Since the Office has the initial burden of establishing a prima facie case of lack of written description, should an examiner determine that a rejection is appropriate, the examiner must set forth express findings of fact which support the lack of written description determination (see MPEP § 2163 for examination guidelines pertaining to the written description requirement). Upon reply by applicant, before rejecting the claim again under 35 U.S.C. 112(a) for lack of written description, the examiner would need to review the basis for the rejection in view of the record as a whole, including amendments, arguments, and any evidence submitted by applicant, such as affidavits or declarations.

If the record as a whole demonstrates that the written description requirement is satisfied, the rejection would not be repeated in the next Office action. If, on the other hand, the record does not demonstrate that the written description is adequate to support the claim, the examiner again would reject the claim under 35 U.S.C. 112(a), fully respond to applicant's rebuttal arguments, and properly treat any further showings submitted by applicant in the reply. When rejecting the claim again for lack of written description, the examiner would need to thoroughly analyze and discuss any affidavits or declarations filed by applicant that are relevant to the 35 U.S.C. 112(a) written description requirement. See In re Alton, 76 F.3d 1168, 1176 (Fed. Cir. 1996).

The USPTO is requesting written public comments on the USPTO's proposed approach for applying the written description requirement in design applications as discussed in this notice. Because the USPTO is considering providing examples after reviewing public comments on the proposed approach, the USPTO also is requesting specific examples that the public believes would be helpful to illustrate the proposed approach or any suggested approach for applying the written description requirement in design applications. In particular, the USPTO is seeking examples from the public that demonstrate adequate written description as well as examples that demonstrate a lack of written description. Additionally, examples of situations in which the presence or lack of written description is not readily apparent, i.e., examples that are close to the line between adequate written description and insufficient written description, would be most helpful. Once the USPTO has considered the comments and examples received, the USPTO will determine how best to proceed in view of the public feedback on the proposed approach for applying the written description requirement in design applications.

Background: Article 4.3.3 of the USMFTA provides that, on the request of either Party, the Parties shall consult to consider whether the rules of origin applicable to a particular textile or apparel good should be revised to address issues of availability of supply of fibers, yarns, or fabrics in the territories of the Parties. In the consultations, pursuant to Article 4.3.4 of the USMFTA, each Party shall consider data presented by the other Party that demonstrate substantial production in its territory of a particular fiber, yarn, or fabric. The Parties shall consider that there is substantial production if a Party demonstrates that its domestic producers are capable of supplying commercial quantities of the fiber, yarn, or fabric in a timely manner. The USMFTA Implementation Act provides the President with the authority to proclaim as part of the HTSUS, modifications to the USMFTA rules of origin set out in Annex 4-A of the USMFTA as are necessary to implement an agreement with Morocco under Article 4.3.6 of the USMFTA, subject to the consultation and layover requirements of Section 104 of the USMFTA Implementation Act. See Section 203(j)(2)(B)(i) of the USMFTA Implementation Act. Executive Order 11651 established CITA to supervise the implementation of textile trade agreements and authorizes the Chairman of CITA to take actions or recommend that appropriate officials or agencies of the United States take actions necessary to implement textile trade agreements. 37 FR 4699 (March 4, 1972).

The Government of the United States received a request from the Government of Morocco, dated March 1, 2016, on behalf of ARYANS, requesting that the United States consider whether the USMFTA rule of origin for dresses, skirts, blouses and tops classified in HTSUS chapter 62, should be modified to allow the use of 87%-93% cotton/5%-9% polyester/2%-4% elastane woven fabric classified in subheading 5209.42 of the HTSUS that is not originating under the USMFTA.

CITA is soliciting public comments regarding this request, particularly with respect to whether 87%-93% cotton/5%-9% polyester/2%-4% elastane woven fabric described above can be supplied by the U.S. domestic industry in commercial quantities in a timely manner. Comments must be received no later than May 16, 2016.

Interested persons are invited to submit such comments or information electronically to [email protected], and/or in hard copy to: Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC 20230.

If comments include business confidential information, commenters must submit a business confidential version in hard copy to the Chairman of CITA, and also provide a public version, either in hard copy or electronically. CITA will protect any information that is marked business confidential from disclosure to the full extent permitted by law. All public versions of the comments will be posted on OTEXA's Web site for Commercial Availability proceedings under the Morocco FTA: http://otexa.trade.gov/Morocco_CA.htm.

Authority:

Section 203 (j)(2)(B)(i) of the United States—Morocco Free Trade Agreement

Background: Article 4.3.3 of the USMFTA provides that, on the request of either Party, the Parties shall consult to consider whether the rules of origin applicable to a particular textile or apparel good should be revised to address issues of availability of supply of fibers, yarns, or fabrics in the territories of the Parties. In the consultations, pursuant to Article 4.3.4 of the USMFTA, each Party shall consider data presented by the other Party that demonstrate substantial production in its territory of a particular fiber, yarn, or fabric. The Parties shall consider that there is substantial production if a Party demonstrates that its domestic producers are capable of supplying commercial quantities of the fiber, yarn, or fabric in a timely manner. The USMFTA Implementation Act provides the President with the authority to proclaim as part of the HTSUS, modifications to the USMFTA rules of origin set out in Annex 4-A of the USMFTA as are necessary to implement an agreement with Morocco under Article 4.3.6 of the USMFTA, subject to the consultation and layover requirements of Section 104 of the USMFTA Implementation Act. See Section 203(j)(2)(B)(i) of the USMFTA Implementation Act. Executive Order 11651 established CITA to supervise the implementation of textile trade agreements and authorizes the Chairman of CITA to take actions or recommend that appropriate officials or agencies of the United States take actions necessary to implement textile trade agreements. 37 FR 4699 (March 4, 1972).

The Government of the United States received a request from the Government of Morocco, dated March 9, 2016, on behalf of MODALINE HOLDING, requesting that the United States consider whether the USMFTA rule of origin for women's pants classified in HTSUS heading 6204 should be modified to allow the use of certain woven fabrics that are not originating under the USMFTA. The fabrics subject to this request are:

Fabric 1: 45%-52% polyester, 45%-52% rayon, 1%-7% spandex woven synthetic bi-stretch fabric, classified in subheading 5515.11 of the HTSUS;

Fabric 2: 60%-68% polyester, 29%-37% rayon, 1%-7% spandex woven poly-viscose fabric, classified in subheading 5515.11 of the HTSUS;

Fabric 3: 31%-37% viscose, 17%-23% polyester, 17%-23% cotton, 13%-19% wool, 5%-11% nylon, 1%-6% spandex woven herringbone fabric, classified in subheading 5408.33 of the HTSUS;

Fabric 4: 94%-99% virgin wool, 1%-6% spandex, twill stretch flannel reactive dyed fabric, classified in subheading 5112.11 of the HTSUS; and

Fabric 5: 89%-95% polyester, 5%-11% spandex printed and solid woven polyester crepe fabric (with filament yarn size of 120D + 40D*120D + 40D and a construction of 175*104), classified in subheading 5407.61 of the HTSUS.

CITA is soliciting public comments regarding this request, particularly with respect to whether the fabrics described above can be supplied by the U.S. domestic industry in commercial quantities in a timely manner. Comments must be received no later than May 16, 2016. Interested persons are invited to submit such comments or information electronically to [email protected], and/or in hard copy to: Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC 20230.

If comments include business confidential information, commenters must submit a business confidential version in hard copy to the Chairman of CITA, and also provide a public version, either in hard copy or electronically. CITA will protect any information that is marked business confidential from disclosure to the full extent permitted by law. All public versions of the comments will be posted on OTEXA's Web site for Commercial Availability proceedings under the Morocco FTA: http://otexa.trade.gov/Morocco_CA.htm.

Background: Article 4.3.3 of the USMFTA provides that, on the request of either Party, the Parties shall consult to consider whether the rules of origin applicable to a particular textile or apparel good should be revised to address issues of availability of supply of fibers, yarns, or fabrics in the territories of the Parties. In the consultations, pursuant to Article 4.3.4 of the USMFTA, each Party shall consider data presented by the other Party that demonstrate substantial production in its territory of a particular fiber, yarn, or fabric. The Parties shall consider that there is substantial production if a Party demonstrates that its domestic producers are capable of supplying commercial quantities of the fiber, yarn, or fabric in a timely manner.

The USMFTA Implementation Act provides the President with the authority to proclaim as part of the HTSUS, modifications to the USMFTA rules of origin set out in Annex 4-A of the USMFTA as are necessary to implement an agreement with Morocco under Article 4.3.6 of the USMFTA, subject to the consultation and layover requirements of Section 104 of the USMFTA Implementation Act. See Section 203(j)(2)(B)(i) of the USMFTA Implementation Act. Executive Order 11651 established CITA to supervise the implementation of textile trade agreements and authorizes the Chairman of CITA to take actions or recommend that appropriate officials or agencies of the United States take actions necessary to implement textile trade agreements. 37 FR 4699 (March 4, 1972).

The Government of the United States received a request from the Government of Morocco, submitted on March 9, 2016, and updated on April 1, 2016, on behalf of CROSSING, requesting that the United States consider whether the USMFTA rule of origin for pants, skirts, jackets, shirts, and casual dresses classified in HTSUS subheading 6204.52 and 6206.40 should be modified to allow the use of certain woven fabrics that are not originating under the USMFTA. The fabrics subject to this request are:

Fabric 1: 100% lyocell classified in subheading 5516.11 and 5516.12 of the HTSUS;

Fabric 2: Lyocell/cotton classified in subheading 5516.41, 5516.42, and 5516.43 of the HTSUS;

Fabric 3: Cotton/polyester classified in subheading 5210.49 and 5211.42 of the HTSUS;

Fabric 4: Cotton/polyester/elastane classified in subheading 5210.49 and 5211.4210 of the HTSUS;

Fabric 5: Corduroy with cotton classified in subheading 5801.22 of the HTSUS; and

Fabric 6: Corduroy polyester classified in subheading 5801.32 of the HTSUS.

CITA is soliciting public comments regarding this request, particularly with respect to whether the fabrics described above can be supplied by the U.S. domestic industry in commercial quantities in a timely manner. Comments must be received no later than May 16, 2016. Interested persons are invited to submit such comments or information electronically to [email protected], and/or in hard copy to: Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC 20230.

If comments include business confidential information, commenters must submit a business confidential version in hard copy to the Chairman of CITA, and also provide a public version, either in hard copy or electronically. CITA will protect any information that is marked business confidential from disclosure to the full extent permitted by law. All public versions of the comments will be posted on OTEXA's Web site for Commercial Availability proceedings under the Morocco FTA: http://otexa.trade.gov/Morocco_CA.htm.

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 additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from the nonprofit agencies employing persons who are blind or have other severe disabilities.

The following services are proposed for addition to the Procurement List for provision by the nonprofit agencies listed:

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

Title; Associated Form; and OMB Number: Application for Former Spouse Payments From Retired Pay, DD Form 2293; OMB Number 0730-0008.

Needs and Uses: The information collection requirement is necessary to provide DFAS with the basic data needed to process court orders for division of military retired pay as property or order alimony and child support payment from that retired pay per Title 10 U.S.C. 1408, “Payment of retired or retainer pay in compliance with court orders.” The former spouse may apply to the DFAS for direct payment of these monies by using DD Form 2293.

Affected Public: Individuals and households.

Annual Burden Hours: 6741.

Number of Respondents: 26,963.

Responses per Respondent: 1.

Annual Responses: 26,963.

Average Burden per Response: 15 minutes.

Frequency: On occasion.

The respondents of this information collection are spouses or former spouses of military members. The applicant submits a DD Form 2293 to the DFAS. The information from the DD Form 2293 is used by DFAS in processing the applicant's request as authorized under 10 U.S.C. 1408. The DD Form 2293 was devised to standardize applications for payment under the Act. Information on the form is also used to determine the applicant's current status and contains statutory required certifications the applicant/former spouse must make when applying for payments.

The Defense Health Agency notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at the Defense Privacy and Civil Liberties Division Web site at http://dpcld.defense.gov/. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on April 1, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).

The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at http://dpcld.defense.gov/. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on April 1, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).

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: Fiscal Operations Report for 2014-2015 and Application to Participate 2016-2017 (FISAP) and Reallocation Form.

OMB Control Number: 1845-0030.

Type of Review: An extension of an existing information collection.

Respondents/Affected Public: State, Local, and Tribal Governments; Private Sector.

Total Estimated Number of Annual Responses: 4,223.

Total Estimated Number of Annual Burden Hours: 86,022.

Abstract: The data submitted electronically in the Fiscal Operations Report and Application to Participate (FISAP) through FISAP on the Web is used by the Department of Education to determine the institution's funding need for the award year and monitor program effectiveness and accountability of fund expenditures.

The Reallocation form is part of FISAP on the Web. The Higher Education Amendments (HEA) requires that if an institution anticipates not using all of its allocated funds for the Perkins, Federal Work Study (FWS), and Federal Supplemental Education Opportunity Grant (FSEOG) programs by the end of an award year, it must specify the anticipated remaining unused amount to the Secretary. In addition to renewing the expiration date, references to dates and award years dates have been updated on the forms and in the instructions for both documents. The FISAP form has been revised: (1) To use technology to gather existing data electronically from other sources requiring less data entry concerning Additional Institutions in Part I; (2) per discussions with OMB staff on 11/26/12 with concurrence on 11/30/12 to allow applicable aggregate level data entry concerning graduate and professional students for schools with non-traditional academic calendars; and (3) per OMB staff request and discussions on 8/21/12 with concurrence on 8/24/12, to expand the income grid in the Part VI summary to collect a more concise breakdown of student data at the aggregate level.

Statutory Authority and Function: The President's Advisory Commission on Educational Excellence for African Americans is established under Executive Order 13621, dated July 26, 2012 and extended by Executive Order 13708 dated September 15, 2015. The Commission is governed by the provisions of the Federal Advisory Committee Act (FACA) (Pub. L. 92-463; as amended, 5 U.S.C.A., Appendix 2) which sets forth standards for the formation and use of advisory committees. The purpose of the Commission is to advise the President and the Secretary of Education on matters pertaining to the educational attainment of the African American community, including: (a) The development, implementation, and coordination of educational programs and initiatives at the Department and other agencies to improve educational opportunities and outcomes for African Americans of all ages; (2) efforts to increase the participation of the African American community and institutions that serve the African American community in the Department's programs and in education programs at other agencies; (3) efforts to engage the philanthropic, business, nonprofit, and education communities in a national dialogue on the mission and objectives of this order; and (4) the establishment of partnerships with public, private, philanthropic, and nonprofit stakeholders to meet the mission and policy objectives of its Executive Order.

9:00 a.m.-11:00 a.m. EST  Policy Updates

12:00 p.m.-12:30 p.m. EST  Policy Updates from Undersecretary Ted Mitchell

12:30 p.m.-1:30 p.m. EST  Commission Member Deliberation & Discussion

1:00 p.m.-3:00 p.m. EST  Work through the end of the term

4:00 p.m. EST Adjournment

Access to Records of the Meeting: The Department will post the official report of the meeting on the PACEEAA's Web site 90 days after the meeting. Pursuant to the FACA, the public may also inspect the materials at 400 Maryland Avenue SW., Washington, DC, by emailing [email protected] or by calling (202) 453-5721 to schedule an appointment.

Reasonable Accommodations: The meeting site is accessible to individuals with disabilities. If you will need an auxiliary aid or service to participate in the meeting (e.g., interpreting service, assistive listening device, or materials in an alternate format), notify Lauren Mims listed in this notice at least two weeks before the scheduled meeting date. Although we will attempt to meet a request received after that date, we may not be able to make available the requested auxiliary aid or service because of insufficient time to arrange it.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

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: International Computer and Information Literacy Study (ICILS 2018) Field Test and Recruitment for Main Study.

OMB Control Number: 1850-New

Type of Review: A new information collection.

Respondents/Affected Public: Individuals or Households.

Total Estimated Number of Annual Responses: 1,983.

Total Estimated Number of Annual Burden Hours: 1,984.

Abstract: The International Computer and Information Literacy Study (ICILS) is a computer-based international assessment of eighth-grade students' computer and information literacy (CIL) skills that will provide a comparison of U.S. student performance and technology access and use with those of the international peers. ICILS collects data on eighth-grade students' abilities to collect, manage, evaluate, and share digital information; their understanding of issues related to the safe and responsible use of electronic information; on student access to, use of, and engagement with ICT at school and at home; school environments for teaching and learning CIL; and teacher practices and experiences with ICT. The data collected through ICILS will also provide information about the nature and extent of the possible “digital divide” and has the potential to inform understanding of the relationship between technology skills and experience and student performance in other core subject areas. ICILS is conducted by the International Association for the Evaluation of Educational Achievement (IEA), an international collective of research organizations and government agencies that create the assessment framework, assessment, and background questionnaires. In the U.S., the National Center for Education Statistics (NCES) conducts this study. In preparation for the ICILS 2018 main study, NCES will conduct a field test from March through May 2017 to evaluate new assessment items and background questions, to ensure practices that promote low exclusion rates, and to ensure that classroom and student sampling procedures proposed for the main study are successful. The U.S. ICILS main study will be conducted in the spring of 2018. Field recruitment will begin in October 2016 and main study recruitment in May of 2017. This request is for the 2017 field test and the 2018 main study recruitment activities and the 2017 field test data collection.

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: EZ-Audit: Electronic Submission of Financial Statements and Compliance Audits.

OMB Control Number: 1845-0072.

Type of Review: An extension of an existing information collection.

Respondents/Affected Public: State, Local, and Tribal Governments; Private Sector.

Total Estimated Number of Annual Responses: 6,100.

Total Estimated Number of Annual Burden Hours: 2,491.

Abstract: eZ-Audit is a web-based process designed to facilitate the submission of compliance and financial statement audits, expedite the review of those audits by the Department, and provide more timely and useful information to public, non-profit and proprietary institutions regarding the Department's review. eZ-Audit establishes a uniform process under which all institutions submit directly to the Department any audit required under the Title IV, HEA program regulations. eZ-Audit continues to have minimal number of financial template line items and general information questions. No additional burden hours have been added.

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.

Public Participation: The EM SSAB, Oak Ridge, 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 Melyssa P. Noe at least seven days in advance of the meeting at the phone 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 the agenda item should contact Melyssa P. Noe at the address or telephone number listed above. Requests must be received five days 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.

Minutes: Minutes will be available by writing or calling Melyssa P. Noe at the address and phone number listed above. Minutes will also be available at the following Web site: http://energy.gov/orem/services/community-engagement/oak-ridge-site-specific-advisory-board.

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.

Public Participation: The meeting is open to the public. The EM SSAB, Portsmouth, 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 Greg Simonton at least seven days in advance of the meeting at the phone 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 Greg Simonton at the address or telephone number listed above. Requests must be received five days 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.

Minutes: Minutes will be available by writing or calling Greg Simonton at the address and phone number listed above. Minutes will also be available at the following Web site: http://www.ports-ssab.energy.gov/.

In a petition received July 21, 2015, Superior requested that the U.S. Department of Energy (“DOE”) grant a waiver to certain models of larger commercial package boilers that cannot be tested under the existing DOE test procedure. The models of commercial packaged boilers at issue are models with higher input capacities that typically require higher steam pressure and alternative instrumentation due to the large quantities of fluids being measured.

Title III, Part C of the Energy Policy and Conservation Act of 1975 (EPCA), as amended (42 U.S.C. 6311 et seq.), established the Energy Conservation Program for certain industrial equipment, which includes commercial packaged boilers.1 Part C specifically includes definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316). Part C authorizes the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results that measure energy efficiency, energy use, and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) With respect to commercial packaged boilers, Part C requires DOE to use industry test procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) or the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), as referenced in ASHRAE/IES 2 Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE is required to amend its test procedure to be consistent with the amended industry test procedure, unless it determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, and estimated operating costs of that equipment during a representative average use cycle. (42 U.S.C. 6314(a)(4)(B)). The test procedure for commercial packaged boilers is contained in 10 CFR part 431, subpart E.

DOE's regulations permit a person to seek a waiver from the test procedure requirements for covered commercial equipment if at least one of the following conditions is met: (1) The petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures; or (2) the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 431.401(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 431.401(b)(1)(iii).

DOE may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 431.401(f)(2). As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. 10 CFR 431.401(l).

On July 21, 2015, Superior submitted a petition for waiver from the DOE test procedure for certain basic models of its commercial packaged boilers. The DOE test procedure for commercial packaged boilers is set forth at 10 CFR 431.86 and incorporates by reference Hydronics Institute (HI) BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers” (BTS-2000).

According to Superior, there are several issues that make BTS-2000 incompatible with larger commercial packaged boilers, including those identified in its petition for waiver. Superior stated that the requirements to use test conditions specified in BTS-2000 and the instrumentation requirements are outdated. Specifically, Superior indicated the following regarding the test conditions:

• The 0 to 2 psig test pressure for steam boilers may be adequate for residential and small commercial (cast iron) boilers sized [commercial packaged] boilers, however such steam pressures are not compatible with large [commercial packaged] boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates;

• Typically test steam pressures in the range of 10 to 12 psig are required; and

• Test temperatures defined for hot water [commercial packaged] boilers cause thermal shock problems in large [commercial packaged] boilers.

Superior also indicated the following regarding the instrumentation chart in Table 1 of section 6.0, “Instruments,” of BTS-2000:

• Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned; the correct instrument is a Bourdon Tube Gauge for pressures of 0 to 30 psig;

• Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this;

• The use of scales to measure water/condensate/moisture flow rates is incompatible with the volume of these fluids being used or generated by large [commercial packaged] boilers;

• Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter;

• The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large [commercial packaged] boiler industry; direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air;

• Carbon Monoxide levels are no longer measured as a percentage; the current preferred unit is parts per million (ppm).

To address these concerns, Superior proposes to use the newly published American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 1500-2015, “Standard for Performance Rating of Commercial Space Heating Boilers” (ANSI/AHRI Standard 1500-2015) in place of BTS-2000. AHRI developed ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in order to make the test procedure suitable for use with larger commercial packaged boilers, as well as improve and clarify the test method. Superior claims that use of this ANSI/AHRI Standard 1500-2015 is necessary as it is compatible with the size of commercial packaged boilers they manufacture.

Additionally, for the large commercial packaged boilers capable of supplying either steam or hot water identified in this petition, Superior requests that, when determining the combustion efficiency in hot water mode based on testing in steam mode only, the combustion efficiency rating be determined based on an adjusted combustion efficiency. Superior requests that an adjustment be made to the measured stack temperature to be used in calculating combustion efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature when operating in steam mode as opposed to hot water using the following relationship:

The following basic models are included in Superior's petition: Arrowhead, Triad, Apache, Seminole, Super Seminole, Mohican, Aztec, Mohawk, Osage, SX-6, and SX-8.

DOE notes that it has published a notice of proposed rulemaking (March 2016 CPB TP NOPR) to amend its test procedure for commercial packaged boilers prescribed in 10 CFR part 431 subpart E. 81 FR 14641 (Mar. 17, 2016). The proposed amended test procedure addresses, among other changes, the issues raised in this waiver request by incorporating by reference ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in the DOE test procedure for commercial packaged boilers. In addition to adopting ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000, DOE further proposes several modifications to its test procedure that are not captured in ANSI/AHRI Standard 1500-2015 in order to improve repeatability, add clarification, and accommodate testing of some equipment that has experienced difficulty in testing to the existing DOE test procedure. Among these changes, DOE proposes to adopt the stack temperature adjustment described by Superior when using the tested combustion efficiency of large steam commercial packaged boilers to represent the combustion efficiency of large commercial packaged boilers in hot water mode.

Through this notice, DOE is publishing Superior's petition for waiver pursuant to 10 CFR 431.401(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure applicable to measurement of energy efficiency of certain models of commercial packaged boilers manufactured by Superior.

DOE solicits comments from interested parties on all aspects of the petition, including the suggested alternate test procedure. Pursuant to 10 CFR 431.401(d), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is: Mokhtar Matallah, Vice President, Engineering, Superior Boiler Works, Inc., 3524 E. 4th St., Hutchinson, KS 67504. All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: one copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

We previously submitted a waiver request on June 30, 2015 but wish to submit this revised waiver request in place of it. In accordance with the provisions of the Code of Federal Regulations Part 431, paragraph 431.401, Superior Boiler Works, Inc. is hereby petitioning for a waiver from the following specific test procedures specified for Commercial Packaged Boilers:

1. Paragraph 431.86 Uniform test method for the measurement of energy efficiency of commercial packaged boilers. This section requirements that boilers be tested using the provisions of HI BTS-2000. We propose to use the newly published AHRI Standard 1500, 2015 Standard for Performance Rating of Commercial Space Heating Boilers. There are several issues that make BTS 2000 incompatible with larger boilers that were previously identified and discussed. AHRI has worked diligently over the last year or so to revise BTS-2000 in order to address those issues and make BTS 2000 suitable for larger boilers. AHRI Standard 1500 is the result of that work. Use of this new standard is desirable as it is compatible with the various size boilers we manufacture.

2. Paragraph 431.86(c)(1)(iv) The requirement to use test conditions specified in BTS-2000 specifically the requirements for the test pressure for steam boilers, the required water temperatures for hot water boilers and instrumentation requirements seem to refer back to the middle of the last century rather than the present day, for example:

• The 0 to 2 psig test pressure for steam boilers may be perfectly adequate for residential and small commercial (cast iron) boilers sized boilers, however is not compatible with large boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates. Typically test pressures in range 10 to 12 psig are required.

• Test temperatures defined for hot water boilers are guaranteed to cause thermal shock problems in large boilers.

• The instrumentation chart, Table 1, has several problem areas, as follows:

○ Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned. The correct instrument is a Bourdon Tube Gauge 0 to 30 psig

○ Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this.

○ The use of scales to measure water/condensate/moisture flow rates is incompatible with the sheer volume of these fluids being used or generated by large boilers. Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter.

○ The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large boiler industry. Direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air.

○ Carbon Monoxide levels are no longer measured as a percentage. The current preferred unit is ppm.

3. Paragraph 431.86(c)(2)(iii)(B) Rating. This paragraph specifies that for boilers capable of supplying either steam or hot water, that are tested on steam only, the hot water efficiency shall be based on the testing in the steam mode. We propose to use an adjusted steam efficiency for hot water when testing on steam only. The adjustment is made to the measured stack temperature to be used in calculating efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature when operating on steam vs. hot water using the following relationship:

The dominant heat transfer variable for both steam and hot water boilers is the gas side coefficient and there is very little difference in the overall heat transfer coefficient between steam and hot water boilers. It is possible therefore to determine what a hot water boiler stack temperature will be based on a steam test based on the difference in the bulk fluid temperature in the boiler. We believe that using this adjusted stack temperature to calculate efficiency is a more accurate representation of the actual efficiency when operating as a hot water boiler than simply using the steam efficiency value.

The basic models that this request is applicable to are scotch marine, firetube boilers used for commercial packaged space heating, Section IV ASME applications. The specific models offered by Superior Boiler Works in this category for section IV ASME applications includes the following:

1. Arrowhead

2. Triad

3. Apache

4. Seminole

5. Super Seminole

6. Mohican

7. Aztec

8. Mohawk

9. Osage

10. SX-6

11. SX-8

Other know manufacturers of similar products are listed below. These manufacturers will be notified by Superior Boiler Works, Inc. of this waiver, if and when the deviation is granted, in accordance with paragraph 431.401(c).

We appreciate your consideration of this request. If you have any additional questions please don't hesitate to contact me.

In a petition received July 24, 2015, Cleaver-Brooks requested that the U.S. Department of Energy (“DOE”) grant a waiver to certain models of larger commercial package boilers that cannot be tested under the existing DOE test procedure. The models of commercial packaged boilers at issue are models with higher input capacities that typically require higher steam pressure and alternative instrumentation due to the large quantities of fluids being measured.

Title III, Part C of the Energy Policy and Conservation Act of 1975 (EPCA), as amended (42 U.S.C. 6311 et seq.), established the Energy Conservation Program for certain industrial equipment, which includes commercial packaged boilers.1 Part C specifically includes definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316). Part C authorizes the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results that measure energy efficiency, energy use, and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) With respect to commercial packaged boilers, Part C requires DOE to use industry test procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) or the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), as referenced in ASHRAE/IES 2 Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE is required to amend its test procedure to be consistent with the amended industry test procedure, unless it determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, and estimated operating costs of that equipment during a representative average use cycle. (42 U.S.C. 6314(a)(4)(B)). The test procedure for commercial packaged boilers is contained in 10 CFR part 431, subpart E.

DOE's regulations for covered products and equipment permit a person to seek a waiver from the test procedure requirements for covered commercial equipment if at least one of the following conditions is met: (1) The petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures; or (2) the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 431.401(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 431.401(b)(1)(iii).

DOE may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 431.401(f)(2). As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. 10 CFR 431.401(l).

On July 24, 2015, Cleaver-Brooks submitted a petition for waiver from the DOE test procedure for certain basic models of its commercial packaged boilers. The DOE test procedure for commercial packaged boilers is set forth at 10 CFR 431.86 and incorporates by reference Hydronics Institute (HI) BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers” (BTS-2000).

According to Cleaver-Brooks, there are several issues that make BTS-2000 incompatible with larger commercial packaged boilers, including those identified in its petition for waiver. Cleaver-Brooks stated that the requirements to use test conditions specified in BTS-2000 and the instrumentation requirements are outdated. Specifically, Cleaver-Brooks indicated the following regarding the test conditions:

• The 0 to 2 psig test pressure for steam boilers may be adequate for residential and small commercial (cast iron) boilers sized [commercial packaged] boilers, however such steam pressures are not compatible with large [commercial packaged] boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates;

• Typically test steam pressures in the range of 10 to 12 psig are required; and

• Test temperatures defined for hot water [commercial packaged] boilers cause thermal shock problems in large [commercial packaged] boilers.

Cleaver-Brooks also indicated the following regarding the instrumentation chart in Table 1 of section 6.0, “Instruments,” of BTS-2000:

• Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned; the correct instrument is a Bourdon Tube Gauge for pressures of 0 to 30 psig;

• Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this;

• The use of scales to measure water/condensate/moisture flow rates is incompatible with the volume of these fluids being used or generated by large [commercial packaged] boilers;

• Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter;

• The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large [commercial packaged] boiler industry; direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air;

• Carbon Monoxide levels are no longer measured as a percentage; the current preferred unit is parts per million (ppm).

To address these concerns, Cleaver-Brooks proposes to use the newly published American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 1500-2015, “Standard for Performance Rating of Commercial Space Heating Boilers” (ANSI/AHRI Standard 1500-2015) in place of BTS-2000. AHRI developed ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in order to make the test procedure suitable for use with larger commercial packaged boilers, as well as improve and clarify the test method. Cleaver-Brooks claims that use of this ANSI/AHRI Standard 1500-2015 is necessary as it is compatible with the size of commercial packaged boilers they manufacture.

Additionally, for the large commercial packaged boilers capable of supplying either steam or hot water identified in this petition, Cleaver-Brooks requests that, when determining the combustion efficiency in hot water mode based on testing in steam mode only, the combustion efficiency rating be determined based on an adjusted combustion efficiency. Cleaver-Brooks requests that an adjustment be made to the measured stack temperature to be used in calculating combustion efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature when operating in steam mode as opposed to hot water using the following relationship:

The following basic models are included in Cleaver-Brooks' petition: CBEX-E, CBEX-P, 4WI/4WG, CBLE, CBR, CBL, CB, CFC, CFLC, CFW, CFH, FLX and M5.

DOE notes that it has published a notice of proposed rulemaking (March 2016 CPB TP NOPR) to amend its test procedure for commercial packaged boilers prescribed in 10 CFR part 431 subpart E. 81 FR 14641 (Mar. 17, 2016). The proposed amended test procedure addresses, among other changes, the issues raised in this waiver request by incorporating by reference ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in the DOE test procedure for commercial packaged boilers. In addition to adopting ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000, DOE further proposes several modifications to its test procedure that are not captured in ANSI/AHRI Standard 1500-2015 in order to improve repeatability, add clarification, and accommodate testing of some equipment that has experienced difficulty in testing to the existing DOE test procedure. Among these changes, DOE proposes to adopt the stack temperature adjustment described by Cleaver-Brooks when using the tested combustion efficiency of large steam commercial packaged boilers to represent the combustion efficiency of large commercial packaged boilers in hot water mode.

Through this notice, DOE is publishing Cleaver-Brooks' petition for waiver pursuant to 10 CFR 431.401(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure applicable to measurement of energy efficiency of certain models of commercial packaged boilers manufactured by Cleaver-Brooks.

DOE solicits comments from interested parties on all aspects of the petition, including the suggested alternate test procedure. Pursuant to 10 CFR 431.401(d), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is: Peter A. Molvie, P.E., Manager, Codes & Standards, Cleaver-Brooks Product Development, 3232 W. Lancaster Ave., Milwaukee, WI 53209. All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

In accordance with the provisions of the Code of Federal Regulations Part 431, paragraph 431.401, Cleaver-Brooks is hereby petitioning for a waiver from the following test procedures specified for Commercial Packaged Boilers:

1. Paragraph 431.86 Uniform test method for the measurement of energy efficiency of commercial packaged boilers. This section requires the boilers be tested using the provisions of HI BTS-2000. We propose to use the newly published AHRI 1500, 2015 Standard for Performance Rating of Commercial Space Heating Boilers. There are several issues that make BTS 2000 incompatible with the larger boilers that were identified in previous waiver requests. AHRI has worked diligently over the past year to revise BTS-2000 in order to address those issues and make BTS-2000 suitable for use with larger boilers. AHRI Standard 1500 is the result of that work. Use of this new standard is required as it is compatible with the size boilers we manufacture.

2. Paragraph 431.86(c)(1)(iv) The requirement to use test conditions specified in BTS-2000 specifically the requirements for the test pressure for steam boilers, the required water temperatures for hot water boilers and instrumentation requirements seem to refer back to the middle of the last century rather than the present day, for example:

• The 0 to 2 psig test pressure for steam boilers may be perfectly adequate for residential and small commercial (cast iron) boilers sized boilers, however is not compatible with large boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates. Typically test pressures in range 10 to 12 psig are required.

• Test temperatures defined for hot water boilers are guaranteed to cause thermal shock problems in large boilers.

• The instrumentation chart, Table 1, has several problem areas, as follows:

○ Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned. The correct instrument is a Bourdon Tube Gauge 0 to 30 psig

○ Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this.

○ The use of scales to measure water/condensate/moisture flow rates is incompatible with the sheer volume of these fluids being used or generated by large boilers. Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter.

○ The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large boiler industry. Direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air.

○ Carbon Monoxide levels are no longer measured as a percentage. The current preferred unit is ppm.

3. Paragraph 431.86(c)(2)(iii)(B) Rating. This paragraph specifies that for boilers capable of supplying either steam or hot water, that they are tested on steam only, the hot water efficiency shall be based on the testing in the steam mode. We propose to use an adjusted steam efficiency for hot water when testing on steam only. The adjustment is made to the measured stack temperature to be used in calculating efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature when operating on steam v hot water using the following relationship:

The dominant heat transfer variable for both steam and hot water boilers is the gas side coefficient and there is very little difference in the overall heat transfer coefficient between steam and hot water boilers. It is possible therefore to determine what a hot water boiler stack temperature will be, based on a steam test and the bulk fluid temperature difference within the boiler. We believe that using this adjusted stack temperature to calculate efficiency is a more accurate representation of the actual efficiency when operating as a hot water boiler than simply using the steam efficiency value.

The basic models that this request is applicable to are as follows: CBEX-E, CBEX-P, 4WI/4WG, CBLE, CBR, CBL, CB, CFC, CFLC, CFW, CFH, FLX and M5.

Other known Manufacturers of similar products are listed below. These manufacturers will be notified by Cleaver-Brooks of this waiver, if and when the deviation is granted, in accordance with paragraph 431.401(c).

In a petition received July 21, 2015, York-Shipley requested that the U.S. Department of Energy (“DOE”) grant a waiver to certain models of larger commercial package boilers that cannot be tested under the existing DOE test procedure. The models of commercial packaged boilers at issue are models with higher input capacities that typically require higher steam pressure and alternative instrumentation due to the large quantities of fluids being measured.

Title III, Part C of the Energy Policy and Conservation Act of 1975 (EPCA), as amended (42 U.S.C. 6311 et seq.), established the Energy Conservation Program for certain industrial equipment, which includes commercial packaged boilers.1 Part C specifically includes definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316). Part C authorizes the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results that measure energy efficiency, energy use, and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) With respect to commercial packaged boilers, Part C requires DOE to use industry test procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) or the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), as referenced in ASHRAE/IES 2 Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE is required to amend its test procedure to be consistent with the amended industry test procedure, unless it determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, and estimated operating costs of that equipment during a representative average use cycle. (42 U.S.C. 6314(a)(4)(B)). The test procedure for commercial packaged boilers is contained in 10 CFR part 431, subpart E.

DOE's regulations permit a person to seek a waiver from the test procedure requirements for covered commercial equipment if at least one of the following conditions is met: (1) The petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures; or (2) the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 431.401(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 431.401(b)(1)(iii).

DOE may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 431.401(f)(2). As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. 10 CFR 431.401(l).

On July 21, 2015, York-Shipley submitted a petition for waiver from the DOE test procedure for certain basic models of its commercial packaged boilers. The DOE test procedure for commercial packaged boilers is set forth at 10 CFR 431.86 and incorporates by reference Hydronics Institute (HI) BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers” (BTS-2000).

According to York-Shipley, there are several issues that make BTS-2000 incompatible with larger commercial packaged boilers, including those identified in its petition for waiver. York-Shipley stated that the requirements to use test conditions specified in BTS-2000 and the instrumentation requirements are outdated. Specifically, York-Shipley indicated the following regarding the test conditions:

• The 0 to 2 psig test pressure for steam boilers may be adequate for residential and small commercial (cast iron) boilers sized [commercial packaged] boilers, however such steam pressures are not compatible with large [commercial packaged] boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates;

• Typically test steam pressures in the range of 10 to 12 psig are required; and

• Test temperatures defined for hot water [commercial packaged] boilers cause thermal shock problems in large [commercial packaged] boilers.

York-Shipley also indicated the following regarding the instrumentation chart in Table 1 of section 6.0, “Instruments,” of BTS-2000:

• Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned; the correct instrument is a Bourdon Tube Gauge for pressures of 0 to 30 psig;

• Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this;

• The use of scales to measure water/condensate/moisture flow rates is incompatible with the volume of these fluids being used or generated by large [commercial packaged] boilers;

• Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter;

• The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large [commercial packaged] boiler industry; direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air;

• Carbon Monoxide levels are no longer measured as a percentage; the current preferred unit is parts per million (ppm).

To address these concerns, York-Shipley proposes to use the newly published American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 1500-2015, “Standard for Performance Rating of Commercial Space Heating Boilers” (ANSI/AHRI Standard 1500-2015) in place of BTS-2000. AHRI developed ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in order to make the test procedure suitable for use with larger commercial packaged boilers, as well as improve and clarify the test method. York-Shipley claims that use of this ANSI/AHRI Standard 1500-2015 is necessary as it is compatible with the size of commercial packaged boilers they manufacture.

Additionally, for the large commercial packaged boilers capable of supplying either steam or hot water identified in this petition, York-Shipley requests that, when determining the combustion efficiency in hot water mode based on testing in steam mode only, the combustion efficiency rating be determined based on an adjusted combustion efficiency. York-Shipley requests that an adjustment be made to the measured stack temperature to be used in calculating combustion efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature when operating in steam mode as opposed to hot water using the following relationship:

The following basic models are included in York-Shipley's petition:

DOE notes that it has published a notice of proposed rulemaking (March 2016 CPB TP NOPR) to amend its test procedure for commercial packaged boilers prescribed in 10 CFR part 431 subpart E. 81 FR 14641 (Mar. 17, 2016). The proposed amended test procedure addresses, among other changes, the issues raised in this waiver request by incorporating by reference ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000 in the DOE test procedure for commercial packaged boilers. In addition to adopting ANSI/AHRI Standard 1500-2015 as a replacement for BTS-2000, DOE further proposes several modifications to its test procedure that are not captured in ANSI/AHRI Standard 1500-2015 in order to improve repeatability, add clarification, and accommodate testing of some equipment that has experienced difficulty in testing to the existing DOE test procedure. Among these changes, DOE proposes to adopt the stack temperature adjustment described by York-Shipley when using the tested combustion efficiency of large steam commercial packaged boilers to represent the combustion efficiency of large commercial packaged boilers in hot water mode.

Through this notice, DOE is publishing York-Shipley's petition for waiver pursuant to 10 CFR 431.401(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure applicable to measurement of energy efficiency of certain models of commercial packaged boilers manufactured by York-Shipley.

DOE solicits comments from interested parties on all aspects of the petition, including the suggested alternate test procedure. Pursuant to 10 CFR 431.401(d), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is: Kevin J. Hoey, President & CEO, York-Shipley Global, Division of AESYS Technologies, LLC, 693 North Hills Road, York, PA 17402-2211. All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

In accordance with the provisions of the Code of Federal Regulations Part 431, paragraph 431.401, York-Shipley Global—Division of AESYS Technologies, LLC is hereby petitioning for a waiver from the following test procedures specified for Commercial Packaged Space Heating Boilers:

A. Paragraph 431.86 Uniform test method for the measurement of energy efficiency of commercial packaged boilers. This section requires the boilers be tested using the provisions of HI BTS-2000. We propose to use the newly published ANSI/AHRI 1500-2015, 2015 Standard for Performance Rating of Commercial Space Heating Boilers. There are several issues that make BTS 2000 incompatible with the larger boilers that were identified in previous waiver requests. AHRI has worked diligently over the past year to revise BTS-2000 in order to address those issues and make BTS-2000 suitable for use with larger boilers. ANSI/AHRI Standard 1500-2015 is the result of that work. Use of this new standard is required as it is compatible with the size boilers we manufacture.

B. Paragraph 431.86(c)(1)(iv) The requirement to use test conditions specified in BTS-2000 specifically the requirements for the test pressure for steam boilers, the required water temperatures for hot water boilers and instrumentation requirements seem to refer back to the middle of the last century rather than the present day, for example:

1. The 0 to 2 psig test pressure for steam boilers may be perfectly adequate for residential and small commercial (cast iron) boilers sized boilers, however is not compatible with large boilers as it will cause water carryover in large quantities, and an inability to meet design water flow rates and firing rates. Typically test pressures in range 10 to 12 psig are required.

2. Test temperatures defined for hot water boilers are guaranteed to cause thermal shock problems in large boilers.

3. The instrumentation chart, Table 1, has several problem areas, as follows:

a. Steam pressure cannot be measured by mercury manometer as the use of mercury in instruments and controls is banned. The correct instrument is a Bourdon Tube Gauge 0 to 30 psig

b. Large boilers typically fire into a positive pressure combustion chamber, thus gas pressure, firebox pressure and vent/flue pressure instruments all need to reflect this.

c. The use of scales to measure water/condensate/moisture flow rates is incompatible with the sheer volume of these fluids being used or generated by large boilers. Water flow meters should be used and in the case of moisture content, current practice is to use a throttling calorimeter.

d. The measurement of carbon dioxide as a means of calculating excess air or oxygen is considered obsolete in the large boiler industry. Direct measurement of excess oxygen is the preferred method as modern oxygen meters can easily be calibrated against the oxygen in the ambient air.

e. Carbon Monoxide levels are no longer measured as a percentage. The current preferred unit is ppm.

ANSI/AHRI 1500-2015 has taken into account these changes.

C. Paragraph 431.86(c)(2)(iii)(B) Rating. This paragraph specifies that for boilers capable of supplying either steam or hot water, that they are tested on steam only, the hot water efficiency shall be based on the testing in the steam mode. We propose to use an adjusted steam efficiency for hot water when testing on steam only. The adjustment is made to the measured stack temperature to be used in calculating efficiency based on the relative difference between the flue gas temperature and the bulk fluid temperature, when operating on steam versus hot water, using the following relationship:

The dominant heat transfer variable for both steam and hot water boilers is the gas side coefficient and there is very little difference in the overall heat transfer coefficient between steam and hot water boilers. It is possible therefore to determine what a hot water boiler stack temperature will be, based on a steam test and the bulk fluid temperature difference within the boiler. We believe that using this adjusted stack temperature to calculate efficiency is a more accurate representation of the actual efficiency when operating as a hot water boiler than simply using the steam efficiency value.

The basic York-Shipley Global—Division of AESYS Technologies, LLC model series for which this request is applicable to, are as follows:

Other known Manufacturers of similar products are listed below. These manufacturers will be notified by York-Shipley Global—Division of AESYS Technologies, LLC of this waiver, if and when the deviation is granted, in accordance with paragraph 431.401(c).

We kindly request your consideration for this waiver. If there are any further comments or concerns, please feel free to call.

You may be potentially affected by this action if you work in an agricultural setting, or if you are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA) of 1996; the Pesticide Registration Improvement Act (PRIA), and the Endangered Species Act (ESA). Potentially affected entities may include, but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer, and farm worker groups; pesticide users and growers; animal rights groups; pest consultants; State, local, and tribal governments; academia; public health organizations; and the public. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0198 is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

The PPDC is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463. EPA established the PPDC in September 1995 to provide advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides. The following sectors are represented on the current PPDC: Environmental/public interest and animal rights groups; farm worker organizations; pesticide industry and trade associations; pesticide user, grower, and commodity groups; Federal and State/local/tribal governments; the general public; academia; and public health organizations.

PPDC meetings are free, open to the public, and no advance registration is required. Public comments may be made during the public comment session of each meeting or in writing to the person listed under FOR FURTHER INFORMATION CONTACT.

I. What information is EPA particularly interested in?

Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.

2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.

3. Enhance the quality, utility, and clarity of the information to be collected.

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.

Title: Notice of Arrival of Pesticides and Devices under section 17(c) of FIFRA.

ICR number: EPA ICR No. 0152.11.

OMB control number: OMB Control No. 2070-0020.

ICR status: This ICR is currently scheduled to expire on November 30, 2016. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the Code of Federal Regulations (CFR), after appearing in the Federal Register when approved, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers for certain EPA regulations is consolidated in 40 CFR part 9.

Abstract: The U.S. Customs and Border Protection (Customs) regulations at 19 CFR 12.112 require that an importer desiring to import a pesticide or device into the United States shall, prior to the shipment's arrival in the United States, submit a Notice of Arrival (NOA) of Pesticides and Devices (EPA Form 3540-1) to EPA. Once EPA receives the NOA, EPA will determine the disposition of the shipment upon its arrival in the United States. Upon completing its review, the EPA response is sent to the importer of record or licensed customs broker, who must present the NOA to Customs upon arrival of the shipment at the port of entry. This is necessary to ensure that EPA is notified of the arrival of pesticides and pesticidal devices as required under FIFRA section 17(c), and that EPA has the ability to examine such shipments to determine compliance with FIFRA. Customs compares entry documents for the shipment with the NOA and notifies the EPA regional office of any discrepancies.

Burden statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 0.43 hours per response. Burden is defined in 5 CFR 1320.3(b).

The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:

Respondents/affected entities: Entities potentially affected by this ICR are pesticide importers, which includes many types of business entities ranging from Commercial and Institutional Building Construction (NAICS 236220) to Pesticide and Other Agricultural Chemical Manufacturing (NAICS 325300) and even Public Administration: Executive Offices (NAICS 921110). Other business and institutions that import pesticides include Agriculture, Forestry, Fishing and Hunting (Sector 11), Wholesale Trade, (Sector 42). The majority of responses come from businesses that fall under NAICS code 325300.

Estimated total number of potential respondents: 38,000.

Frequency of response: On occasion.

Estimated total average number of responses for each respondent: 1.

Estimated total annual burden hours: 16,340 hours.

Estimated total annual costs: $1,006,034. This is the estimated burden cost; there is no cost for capital investment or maintenance and operational costs.

There is an increase of 3,870 hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. This increase reflects EPA's updating of burden estimates for this collection based upon historical information on the number of NOAs received by EPA. Based upon revised estimates, the number of NOAs received has increased from 35,000 to 38,000. The average burden hours per response will remain unchanged from the previous ICR renewal of 0.43 hours per response. This change is an adjustment.

EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another Federal Register document pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

The Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub. L. 104-134) and the Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 1998 (Pub. L. 105-65) authorize EPA to combine categorical grant funds appropriated in EPA's State and Tribal Assistance Grant (STAG) account and award the funds as PPGs. Public Law 104-134 states, in relevant part, that: “the Administrator is authorized to make grants annually from funds appropriated under this heading, subject to such terms and conditions as the Administrator shall establish, to any State or federally recognized Indian tribe for multimedia or single media pollution prevention, control and abatement and related environmental activities at the request of the Governor or other appropriate State official or the tribe.”

Public Law 105-65 amended the PPG authority by authorizing “interstate agencies, tribal consortia, and air pollution control agencies” to receive PPGs. Pursuant to the authority granted in Public Law 104-134 and Public Law 105-65, EPA promulgated PPG regulations in January of 2001 as part of the Agency's revision of 40 CFR part 35, the rules governing categorical environmental program grants. The regulation at 40 CFR 35.133(b) states that: “The Administrator may, in guidance or regulation, describe subsequent additions, deletions, or changes to the list of environmental programs eligible for inclusion in Performance Partnership Grants.”

EPA is authorized under the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), Title II of Division G to award $21 million in multi-purpose grants to states and tribes for implementation of environmental programs and projects that complement existing environmental program grants, including interagency agreements. The conference report's language clarifies that these funds will allow states and tribes to have the necessary flexibility to direct resources for the implementation of high priority activities, including the processing of permits, which complement programs under established environmental statutes.

The multi-purpose categorical grant program is funded under EPA's STAG appropriations account and, therefore, is eligible for inclusion in PPGs. This notice is made pursuant to 40 CFR 35.133(b), to inform entities eligible to receive PPGs that the program listed above may be included in a PPG subject to any limitations herein defined. Hereafter, multi-purpose grants are eligible for inclusion in PPGs and may be included in a PPG at the request of the appropriate official of an eligible entity, subject to EPA's regulations at 2 CFR part 200 and 2 CFR part 1500 and 40 CFR 35.001-35.138 and 35.500-35.538. The authority to issue this Federal Register notice has been delegated to the Deputy Associate Administrator for Intergovernmental Relations.

This notice announces a change in procedures by which EPA Region 5 issues public notices seeking comment under 40 CFR 130.7(d)(2) for its proposed listing of impaired waters where the Region disapproves a state's 303(d) list, or proposes to establish TMDLs.

Under Section 303(d)(1)(A) of the CWA, each state is required to identify and prioritize the waters within its boundaries for which technology-based effluent limitations and other required controls are not stringent enough to achieve the applicable water quality standards. See also 40 CFR 130.7(b)(1). Each state must submit biennially a 303(d) list to the EPA Regional Administrator for review and approval. See 40 CFR 130.7(d)(1). Within 30 days of a state's submission, EPA must approve or disapprove the state's list. If EPA disapproves the state's 303(d) list, it must identify the impaired waters that should be listed within 30 days from the date of disapproval. EPA regulations provide that the Regional Administrator must promptly issue a public notice seeking comment on EPA's listing decision. After considering public comment and making appropriate revisions, the Region is required to transmit the list to the state. See 40 CFR 130.7(d)(2).

Under Section 303(d)(1)(C) of the CWA, each state is required to establish TMDLs for 303(d) listed waters. See also 40 CFR 130.7(c)(1). After a state develops a TMDL, the state must submit the TMDL to EPA for review and approval. See 40 CFR 130.7(d)(1). Within 30 days of a state's submission, EPA must approve or disapprove the state's TMDL. If EPA disapproves the state's TMDL, it must establish the TMDL within 30 days from the date of disapproval. EPA may also establish TMDLs in certain circumstances where the State has not previously submitted a TMDL for review. EPA regulations provide that the Regional Administrator must promptly issue a public notice seeking comment on EPA's TMDL. After considering public comment and making appropriate revisions, the Region is required to transmit the TMDL to the state. See 40 CFR 130.7(d)(2).

In the past, EPA Region 5 has issued public notices through publication in the Federal Register. In light of EPA's quest for improvements in efficiency, EPA Region 5 intends to notify the public of listing and TMDL actions under 40 CFR 130.7(d)(2) by placing notices directly on the Regional Internet Page rather than by publication in the Federal Register. The Region believes that placing the notices on the 303(d)/TMDL Program Web page (http://www.epa.gov/tmdl/impaired-waters-and-tmdls-region-5) provides a more effective, and efficient of providing notice. The Region also plans to issue notifications to the affected states so that these states can include links to the notices on their state Web sites. The letters and accompanying documents transmitting final lists and/or federal TMDLs to the state will also be accessible from the 303(d)/TMDL Program Web page.

To the extent that this announcement may be considered a rule, EPA considers it to be a procedural rule, which is exempt from notice and comment rulemaking requirements under 5 U.S.C. 553(b)(3)(A).

The National Environmental Education Act requires that the council be comprised of (11) members appointed by the Administrator of the EPA. Members represent a balance of perspectives, professional qualifications, and experience. The Act specifies that members must represent the following sectors: Primary and secondary education (one of whom shall be a classroom teacher), two members; colleges and universities, two members; business and industry, two members; non-profit organizations, two members; state departments of education and natural resources, two members, and one member to represent senior Americans. Members are chosen to represent various geographic regions of the country, and the Council strives for a diverse representation. The professional backgrounds of Council members should include education, science, policy, or other appropriate disciplines. Each member of the Council shall hold office for a one (1) to three (3) year period. Members are expected to participate in up to two (2) meetings per year and monthly or more conference calls per year. Members of the council shall receive compensation and allowances, including travel expenses at a rate fixed by the Administrator.

Expertise Sought: The NEEAC staff office seeks candidates with demonstrated experience and or knowledge in any of the following environmental education issue areas: (a) Integrating environmental education into state and local education reform and improvement; (b) state, local and tribal level capacity building for environmental education; (c) cross-sector partnerships to foster environmental education; (d) leveraging resources for environmental education; (e) design and implementation of environmental education research; (f) evaluation methodology; professional development for teachers and other education professionals; and targeting under-represented audiences, including low-income, multi-cultural, senior citizens and other adults.

The NEEAC is best served by a structurally and geographically diverse group of individuals. Each individual will demonstrate the ability to make a time commitment. In addition, the individual will demonstrate both strong leadership and analytical skills. Also, strong writing skills, communication skills and the ability to evaluate programs in an unbiased manner are essential. Team players, which can meet deadlines and review items on short notice are ideal candidates.

How to apply: Any interested and qualified individuals may be considered for appointment on the National Environmental Education Advisory Council. In order to apply, the following four items should be submitted in electronic format to the Designated Federal Officer, Javier Araujo, [email protected] and contain the following: (1) Contact information including name, address, phone and fax numbers and an email address; (2) a curriculum vitae or resume; (3) the specific area of expertise in environmental education and the sector or slot the applicant is applying for; (4) recent service on other national advisory committees or national professional organizations; a one page commentary on the applicant's philosophy regarding the need for, development, implementation and or management of environmental education nationally.

Persons having questions about the application procedure or who are unable to submit applications by electronic means, should contact Javier Araujo (DFO), at the contact information provided above in this notice. Non-electronic submissions must contain the same information as the electronic. The NEEAC staff Office will acknowledge receipt of the application. The NEEAC staff office will develop a short list of candidates for more detailed consideration. The short list candidates will be required to fill out the Confidential Disclosure Form for Special Government Employees serving Federal Advisory Committees at the U.S. Environmental Protection Agency. (EPA form 3110-48). This confidential form allows government officials to determine whether there is a statutory conflict between that person's public responsibilities (which include membership on a Federal Advisory Committee) and private interests and activities and the appearance of a lack of impartiality as defined by Federal regulation. The form may be viewed and downloaded from the following URL address. Please note this form is not an application form. http://intranet.epa.gov/ogc/ethics/EPA3110-48ver3.pdf.

OMB Control Number: 3060-1190.

Title: Section 87.287(b), Aeronautical Advisory Stations (Unicoms)—“Squitters.”

Form No.: N/A.

Respondents: Business or other for-profit entities, not for profit institutions and state, local or tribal government.