Federal Register Vol. 83, No.54,

Members of the public can listen to the discussion. This meeting is available to the public through the above toll-free call-in number. Any interested member of the public may call this number and listen to the meeting.

An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at [email protected]. Persons who desire additional information may contact the Midwestern Regional Office at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Michigan Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=255). Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Midwestern Regional Office at the above email or street address.

Interested members of the public may listen to the discussion by calling the following toll-free conference call number: 1-888-334-3020 and conference call ID: 8405258. Please be advised that before placing them into the conference call, the conference call operator may ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number herein.

Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call number: 1-888-334-3020 and conference call ID: 8405258.

Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Evelyn Bohor at [email protected]. Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

Records and documents discussed during the meeting will be available for public viewing as they become available at https://www.facadatabase.gov/committee/meetings.aspx?cid=272; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

The EFPs are requested under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.), and regulations at 50 CFR 600.745(b) concerning exempted fishing.

On March 12, 2018, NMFS published in the Federal Register a notice of receipt of applications for EFPs and requested public comment (83 FR 10683). In that notice, four statements were in error. First, the amount of red snapper requested by FWC was incorrectly stated as 1,305,360 lb (592,101 kg), round weight. This is the amount that Florida used to project its season, which is 20 percent below the requested amount of 1,631,700 lb (740,127 kg), round weight. Also, the FWC proposed response to any overage of the quota in 2018 was not accurately stated; FWC would not reduce the quota for 2019, but would adjust the season in 2019. Next, the published notice contained the statement “Currently, ADCNR is projecting a 47-day season from June 1 through July 17.” That statement is incorrect as the planned season of 47 fishing days for Alabama in 2018 is not intended to consist of consecutive calendar days but instead to consist of weekends only. Therefore, the sentence should read as, “Currently, ADCNR is projecting a season of 47 fishing days.” Finally, the amount of red snapper requested by TPWD was incorrectly stated as 1,056,495 lb (479,218 kg), round weight. This amount was based on the 2017 adjusted recreational quota while the correct amount requested was 1,077,280 lb (488,646 kg), round weight, and is based on the 2018 recreational quota. The previously published comment period deadline of April 2, 2018, remains in effect and all comments received from either the March 12, 2018, or this notice will be considered.

Currently, the recreational harvest of red snapper in the Gulf EEZ is managed, among other measures, through the use of a 2-fish recreational bag limit, 16-inch (40-6 cm), total length (TL) minimum size limit, and separate quotas and annual catch targets (ACTs) for the private angling and Federal for-hire components within the recreational sector. State-permitted for-hire vessels are included in the private angling component, but are not able to fish in Federal waters. The recreational sector for red snapper in or from Federal waters is closed from January 1 through May 31 each year. Prior to June 1 each year, NMFS determines the respective component Federal season lengths based on the ACTs, taking into account red snapper recreational seasons in state waters. The recreational components were established through Amendment 40 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), which allocated red snapper resources between the private angling and Federal for-hire components; established component-specific accountability measures (AMs) through the use of component ACTs to reduce the likelihood of quota overages, and implemented a 3-year sunset provision for the regulations implemented through Amendment 40 (80 FR 22422, April 22, 2015). The sunset provision was subsequently extended for an additional 5 years (through December 31, 2022) by Amendment 45 to the FMP (81 FR 86971, December 2, 2016). The Gulf EEZ recreational quota for red snapper is 6.733 million lb (3.054 million kg), round weight. The current component quotas are 2.848 million lb (1.292 million kg), round weight, for for-hire and 3.885 million lb (1.762 million kg), round weight, for private angling.

The recreational harvest of red snapper is also constrained by section 407(d) of the Magnuson-Stevens Act. This section requires separate quotas for commercial and recreational fishing (which for the purposes of the subsection includes charter fishing), and a prohibition on the retention of fish when each sector quota is reached. Thus, should the total recreational sector quota be reached, recreational fishing in the Gulf EEZ is prohibited.

The marine resource management agencies of the five Gulf states have submitted EFP applications for the recreational harvest of red snapper for the 2018 and 2019 fishing years. These EFPs would be used to test data collection and quota monitoring efforts for state management of red snapper. Under the proposed EFPs, persons landing red snapper in the participating states would be exempt from current Federal regulations authorizing the annual closed Federal fishing seasons (seasonal closure and ACT closure) and, therefore, could fish for and possess red snapper in the EEZ consistent with the state seasons. The timing of state season openings would be determined by each state. Each Gulf state would monitor its respective recreational landings, and if the landings reach, or are projected to reach, the assigned quota, the state would close its season for the remainder of the fishing year. Private anglers and for-hire operators landing red snapper in the states participating in the EFPs would be required to have the appropriate permits and licenses for the states where they will land the fish and abide by any other relevant Federal regulations, including a recreational bag limit of 2 fish per person per day and a minimum size limit of 16 inches (40.6 cm), TL. The following provides an overview of each state's EFP application. More detailed information is provided in the respective applications and can be viewed at website: http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/LOA_and_EFP/2018/RS%20state%20pilot/home.html.

FWC requests an EFP to conduct a pilot study during the 2018 and 2019 fishing years to test data collection and quota monitoring methodologies for the private angling component. The EFP application does not include federally permitted for-hire vessels. FWC requests that 1,631,700 lb (740,127 kg), round weight, of red snapper from the Gulf recreational private angling component quota be made available each year for fish landed in Florida. This requested quota is based on the proportion of red snapper landed in Florida during 2006 through 2015, except for 2010 landings, which are excluded as a result of the Deepwater Horizon MC252 oil spill. The quota, reduced by a 20 percent buffer to account for management uncertainty, would be the basis for calculating Florida's Special Red Snapper Fishing Season. Private anglers would be required to sign up for the state's Gulf Reef Fish Angler program to land select reef fish species not included in the EFP application and still subject to applicable regulations, as well as red snapper. Red snapper landings would be monitored through the state's Gulf Reef Fish Survey. In addition, anglers would provide landings information through a smartphone/tablet application. For 2018, the projected red snapper fishing season for private anglers would be May 25 through June 17 for the Gulf waters off Florida, based on the requested quota. If recreational landings are less than the assigned quota at the end of this season, and the Federal recreational quota has not been met, fishing could reopen in the fall of 2018 and/or 2019 to land the uncaught portion of the quota. Should the recreational quota be exceeded in 2018, FWC proposes to make adjustments in red snapper regulations to account for the overage in the following year.

The purpose of the EFP requested by ADCNR is to test an Alabama red snapper management program for the private angling component. The EFP application does not include federally permitted for-hire vessels. ADCNR proposes an annual state private angling component quota of 984,291 lb (446,467 kg), round weight, for 2018 and 2019. ADCNR determined that this quota equals 10 percent of the red snapper biomass estimated by university researchers to occur in waters off Alabama. The red snapper biomass is estimated from fishery-independent biomass estimates over the three most recent years that data are available (the years 2014 through 2016 for the 2018 fishing year). For 2018, ADCNR would allow red snapper to be landed in Alabama on weekends (Friday through Sunday) starting on June 1 and continuing until the assigned quota, less 10 percent used as a buffer to prevent quota overages, is reached or projected to be reached. Currently, ADCNR is projecting a season of 47 fishing days. If sufficient quota is available, ADCNR would reopen the season in the fall. The 2019 state private angling recreational season would be determined at a later date. Red snapper landings by anglers fishing from private angler vessels and state-permitted charter vessels would be monitored through a mandatory electronic reporting program. Should the assigned quota be exceeded in 2018, ADCNR proposes a payback of the quota overage for the following year.

MDMR is requesting an EFP to determine if a state recreational quota for red snapper can be accurately managed through a state management program for the private angling component. In addition, recreational harvest and biological information on this species would be collected and analyzed by the state. The EFP application does not include federally permitted for-hire vessels. The EFP application requests an annual quota of 137,949 lb (62,573 kg), round weight, of red snapper for the private angling component to be landed in Mississippi for 2018 and 2019. This quota is based on 2017 landings reported to MDMR's mandatory Tails n Scales electronic reporting system. Landings in 2018 and 2019 would be tracked by the state through this same electronic reporting system and managed to the quota, reduced by a 10 percent buffer to prevent quota overages, before closing the season. In addition, landings would be validated by MDMR staff through a dockside survey, phone survey, and visual effort survey conducted by MDMR. The red snapper season would begin on May 1 of each year and remain open until the quota is projected to be reached. Should the assigned quota be exceeded in 2018, MDMR proposes a payback of the quota overage for the following year.

The EFP application from the LDWF proposes to test a state-based management approach for red snapper. The application requests that the state recreational quota be 743,000 lb (337,019 kg), round weight, for the private angling component and 317,000 lb (143,789 kg), round weight, for the Federal for-hire component for the 2018 and 2019 fishing years. LDWF determined these quotas based on the historical landings formula (50 percent * [1986-2005, 2007-2009, 2011-2013 landings in pounds] + 50 percent * [2007-2009, 2011-2013 landings in pounds] applied to Federal for-hire and private angling component allocations from Amendment 40 (80 FR 22422, April 22, 2015). LDWF proposes to begin both the private angling and for-hire seasons on May 25 in 2018, and May 24 in 2019 (the Friday before Memorial Day) until the respective quota is reached. The private angling season would consist of 3-day weekends (Friday through Sunday), but also include the Memorial Day, Independence Day, and Labor Day holidays each year. The Federal for-hire season would be 7 days per week. Recreational landings would be monitored through LDWF's LA Creel survey; however, private anglers and for-hire operators would be encouraged to also report landings though a state-approved electronic reporting system. Should the overall recreational quota for the state be exceeded in 2018, LDWF proposes a payback of the overage for the 2019 fishing year.

The purpose of the EFP submitted by TPWD is to test data collection and recreational quota monitoring methodologies during the 2018 and 2019 fishing years for use in managing the recreational harvest of red snapper off Texas. TPWD requests 1,077,280 lb (488,646 kg), round weight, of red snapper to be used by the private angling and Federal for-hire components. The red snapper private angling season in state waters begins January 1 each year. Because offshore weather conditions off Texas are generally unfavorable around the traditional June 1 Federal recreational red snapper season start date, TPWD, working through the Texas Parks and Wildlife Commission, proposes to prohibit red snapper caught in Federal waters from being landed in Texas until sometime after June 1 in 2018. At that time, a season will be established allowing red snapper from Federal waters to be landed. In 2019, the recreational season could start prior to June 1 to take advantage of better weather conditions that occur off Texas in the winter and spring and would be determined by the state at a later date. The red snapper recreational harvest would be monitored using the Texas Marine Sport Harvest Monitoring Program (TMSHMP), NOAA`s Southeast Region Headboat Survey, and a self-reported harvest system using the iSnapper application for smartphones and tablets. To ensure timely reporting of private angler and charter vessel landings, intercepts from the TMSHMP creel survey would be sent in daily to TPWD. Additionally, weekly landing reports from NOAA`s Southeast Region Headboat Survey would be used to monitor headboat landings. Texas will project total landings by sector based on the number of red snapper observed by samplers during the season. All red snapper landed in Texas will be counted against Texas' assigned recreational quota and the Texas season would be closed when the combined estimated recreational red snapper landings are projected to reach the recreational quota. Should the assigned quota be exceeded in 2018, TPWD proposes to make adjustments in red snapper regulations such as shortening the season for catching fish in the Gulf EEZ, changing the timing of the season, or revising state bag limits to account for the overage.

The Gulf of Mexico Fishery Management Council (Council) reviewed the EFP applications at its January 2018 meeting. The Council recommended approval of each state's EFP application as long as the length of the Gulf-wide Federal for-hire component season is not affected by the issuance of these EFPs.

Because all the state EFP applications include the private angling component, if they are all issued and accepted that component's overall Gulf quota would be divided among the states, as requested, and landings would be regulated through each state's management program covered under the EFP. Federal waters would be closed to red snapper private angling, but the EFP would exempt from the closure those individuals with a license from a state that is open to land red snapper. However, if not all of the EFPs are issued and accepted, NMFS would set a Gulf-wide Federal private angling season to allow those anglers from the non-participating states to fish for red snapper in the EEZ.

For the Federal for-hire component, only LDWF and TPWD have proposed including this component in their EFPs. Therefore, if EFPs were approved as submitted by the five Gulf states, NMFS would still set a Federal season throughout the entire Gulf EEZ for the Federal for-hire component. Depending on the parameters of any final EFPs, the potential exists for Texas and Louisiana federally permitted for-hire vessels to fish during both the state season covered under an EFP and the Federal for-hire Gulf EEZ season.

In addition, the quotas requested by Texas and Louisiana are based on higher landings from past years rather than landings in recent years. Because NMFS projects the Federal season based on recent landings, NMFS would have to reduce the length of the Federal for-hire season to account for the additional pounds of fish requested by Texas and Louisiana. This would be inconsistent with the Council's recommendation that NMFS issue the EFPs as long as the length of the Gulf-wide Federal for-hire component season is not affected. Alternatively, NMFS could reduce the quotas requested by Texas and Louisiana to be consistent with recent landings. Regardless of whether both or just one of the components is managed under the state EFPs, should NMFS determine that the Gulf-wide recreational red snapper quota has been met, the exemption from the closure under the EFP would no longer be valid for that fishing year because the retention of red snapper in Federal waters would be prohibited under the regulations that implement the mandatory provisions of Section 407(d) of the Magnuson-Stevens Act.

NMFS finds these applications warrant further consideration. If they are granted, NMFS may include conditions or modifications such as changes to the amount of the quotas assigned to each state and removal of the Federal for-hire component from the EFP. The applications are considered together in this notice because they each would require a portion of the private-angling and Federal for-hire quotas; however, each application is independent and will be considered individually as part of the overall recreational management of Gulf red snapper.

Final decisions on issuance of the EFPs will depend on a NMFS review of public comments received on the applications, consultations with the affected states, the Council, and the U.S. Coast Guard, and a determination that each is consistent with all applicable laws.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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.

The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

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).

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

On October 23, 2017, NMFS received a request from ADOT&PF for an IHA to take marine mammals incidental to conducting improvements at the Tenakee Springs city dock and ferry terminal, in Tenakee Springs, Alaska. The application was considered adequate and complete on January 30, 2018. ADOT&PF's request is for take of seven species of marine mammals by Level B harassment only. Neither ADOT&PF nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate. The planned activity is not expected to exceed one year, hence, we do not expect subsequent MMPA IHAs to be issued for this particular activity.

The ADOT&PF plans to make improvements to the Tenakee Springs Ferry Terminal located in Tenakee Springs, Alaska, on Chichigof Island in southeast Alaska (Figure 1-1 of the application). The facility is a multi-function dock and active ferry terminal located in the center of town (see Figure 1-2 and Figure 1-3 in application). The project's proposed activities that have the potential to take marine mammals include vibratory and impact pile driving, drilling operations for pile installation (down-hole hammer), and vibratory pile removal.

The purpose of the project is to replace the existing, aging mooring and transfer structures nearing the end of their operational life due to corrosion and wear with modern facilities that provide improved operations for Alaska Marine Highway System (AMHS) ferry vessels, as well as freight and fueling operators, servicing the community of Tenakee Springs. Planned improvements include the installation of new shore side facilities and marine structures and the renovation of existing structures. This will accommodate cargo and baggage handling, vessel mooring, passenger and vehicle access gangways, and re-establish existing electrical and fuel systems. Improvements will enhance public safety and security.

In-water project construction activities will begin no sooner than June 1, 2019. Pile installation and removal is expected to be completed in 93 working days within a 4-month window beginning sometime after June 1, 2019. Pile installation will be intermittent and staggered depending on weather, construction and mechanical delays, marine mammal shutdowns, and other potential delays and logistical constraints. Given the possibility of schedule delays and other unforeseen circumstances, an IHA is being requested for a full year, from June 1, 2019 through May 31, 2020.

Specific Geographic Region—The Tenakee Springs Ferry Terminal is located in the City of Tenakee Springs, Alaska, at 57°46′45.6″ N, 135°13′09.1″ W, on Chichagof Island, on the north shore of Tenakee Inlet, in southeast Alaska (Figure 1-1 and Figure 1-2). Tenakee Springs is part of the Hoonah-Angoon Census Area. In 2016, there were an estimated 130 residents of Tenakee Springs. It is the second largest city on Chichagof Island.

The Tenakee Springs Ferry Terminal is an active ferry terminal located in Tenakee Inlet and provides the primary access point to the city of Tenakee Springs. Improvements and new construction will take place in the same location as the existing dock. A sea plane float is located immediately east of the ferry terminal and a small boat harbor is located approximately 700 meters east of the terminal (see Figure 1-2 of application).

The town of Tenakee Springs is located on the north side of Tenakee Inlet, about 16 kilometers (km) (9.9 miles) west of where the Inlet opens to Chatham Strait. Tenakee Inlet is a long, narrow fjord with steep, rocky sides interspersed with extensive mudflats and intertidal zones. Water depths consistently reach 900 to 1,100 meters (2,950 to 3,600 feet) in the center of the Inlet, with at least one location deeper than 1,280 meters (4,200 feet). The shoreline is complex and meandering, interspersed with numerous coves, islands, and rocky outcroppings. Numerous rivers and creeks feed into the Inlet, contributing to the highly productive marine environment.

The Inlet supports abundant marine resources, including salmon, herring, crab, and shrimp. Marine mammals use the Inlet regularly, attracted to the rich foraging grounds. Humpback whales are seen bubble feeding in summer, and harbor seals haul out on rocky islets around the area.

Baseline background (ambient) sound levels in Tenakee Inlet are unknown. The areas around the existing ferry terminal are frequented by ferries, fishing vessels, and tenders; barges and tugboats; float planes; and other commercial and recreational vessels that use the small-boat harbor, city dock, and other commercial facilities.

The proposed action includes pile installation and removal for the various aspects of the project (see Figure 1-4 of application). There will be no dredging or removal of substrate, nor any deposition of fill or armor rock associated with the project. Above-water construction will consist of the installation of concrete platform decking panels, utility lines, and a fuel building. The new facility will continue to serve as the AMHS ferry terminal and will support shipping and receiving of commercial and service-industry goods. Given the lack of road access to Tenakee Springs, the ferry terminal is an essential component of infrastructure, providing critical access between Tenakee Springs and the rest of the region. Planned improvements will not add any additional berths for vessels, and the existing capacity of the facilities will remain the same.

The project includes the following components:

• Removal and replacement of an existing 12-foot by 240-foot approach dock decking and installation of additional steel pipe support piles;

• Removal of an existing city storage and fuel building and pile-supported dock and timber fender piles;

• Removal of an existing steel gangway float, platform, and associated steel pipe piles; and

• Removal of three, three-pile berthing and mooring dolphins.

The project will also include the installation of:

• A 50-foot by 70-foot pile-supported ferry staging dock;

• A 50-foot by 60-foot pile-supported dock with new fuel building and associated dock mounted fender system;

• An 11-foot by 90-foot steel transfer bridge and pile-supported abutment;

• A steel bridge support float with adjustable intermediate ramp and apron with two, four-pile float restraint dolphins;

• Four, four-pile berthing dolphins; and

• A ferry access skiff float and associated steel pipe pile restraints.

The project will require the removal of approximately 84 piles of varying sizes and materials (Table 1-1). Not all existing structures and piles will be removed (Figure 1-4). It is anticipated that, when possible, existing piles will be extracted by directly lifting them with a crane. A vibratory hammer will be used only if necessary to extract piles that cannot be directly lifted. Removal of each old pile is estimated to require no more than 15 minutes of vibratory hammer use.

The Project will require the installation of 121 piles of varying sizes and materials (see Table 2). Tension anchors will be installed in 86 of the 121 total piles. Initial installation of steel piles through the sediment layer may be done using vibratory methods for up to 15 minutes per pile. If the sediment layer is very thin, instead of vibratory methods, a few strikes from an impact hammer may be used to seat some steel piles into the weathered bedrock before drilling begins. It is possible that only an impact hammer and drilling will be used for some piles, and only a vibratory hammer and drilling will be used for other piles, depending on sediment conditions and as decided by the construction contractor. Following initial pile installation, the mud accumulation on the inside of the pile will be augured out (or cleaned through another method), as necessary. Next, a hole (rock socket) will be drilled in the underlying bedrock by using a down-hole hammer (see Figure 1-5 of IHA application). A down-hole hammer is a drill bit that drills through the bedrock and a pulse mechanism that functions at the bottom of the hole, using a pulsing bit to break up the rock to allow removal of the fragments and insertion of the pile. The head extends so that the drilling takes place below the pile. Drill cuttings are expelled from the top of the pile as dust or mud and allowed to settle at the base of the pile. It is estimated that drilling piles through the layered bedrock will take about 2-3 hours per pile.

Drilling will create a 10-foot-deep bedrock socket that holds the pile in place. The bedrock will attenuate noise production from drilling and reduce noise propagation into the water column. Additionally, the casing used during drilling acts like a cofferdam and will block noise, further reducing noise levels (82 Federal Register [FR] 34632; proposed IHA for the Gary Paxton Industrial Park Dock Modification Project in Sitka, Alaska). However, noise levels from drilling the bedrock socket to support piles will likely exceed the 120-decibel (dB) root mean square (rms) threshold for Level B harassment from continuous noise (Section 6.2.2) during at least a portion of the drilling.

If necessary after drilling, no more than 30 blows from an impact hammer will be used to confirm that piles are set into bedrock (proofed). Proofing will require approximately 5-10 minutes per pile.

Tension anchors will be installed on 86 of the 121 steel piles. In general, the farthest seaward piles will utilize tension anchors. To anchor each pile following pile installation, a 10-inch casing will be inserted into the center of the pile and an 8-inch rock anchor drill will be lowered into the casing and used to drill into bedrock. Rock fragments will be removed through the top of the casing as dust or mud. Finally, the drill and casing will be removed, and an anchor attached by an anchor rod will be inserted into the hole. The hole will be filled with grout, which will harden, thereby encapsulating the anchor in the borehole and securing the pile and anchor to bedrock. Once installed, tension anchors are tightened, applying tension to the pile to prevent movement within the rock socket. Eight of the tension anchors will be passive, which means they will not be tightened. This will provide the pile with a small amount of play, which will allow the pile to move until it meets the extent of the tension anchor.

Drilling for anchors takes place below the 10-foot-deep bedrock socket that holds the pile in place, and the bedrock serves to attenuate noise production from drilling activity and reduce noise propagation into the water column. Additionally, the casing acts like a cofferdam and will block noise; therefore, anchor drilling will result in low levels of in-water noise that do not approach injury or harassment levels for marine mammals (82 FR 34632; proposed IHA for the Gary Paxton Industrial Park Dock Modification Project in Sitka, Alaska). No take for harassment of marine mammals from anchor drilling is requested.

Installation of timber piles will use only an impact hammer, and will require approximately 75 strikes per pile, or approximately 20-30 minutes to install each pile.

Pile installation activities will occur in waters from zero to 36 feet (0 to 11 meters) deep within or immediately adjacent to the existing dock footprint. It is anticipated that an ICE model vibratory driver or equivalent hammer and a Delmag D30 or Vulcan impact hammer, or equivalent hammer will be used to install the piles.

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.nmfs.noaa.gov/pr/species/mammals/).

Table 3 lists all species with expected potential for occurrence in Tenakee Springs, Alaska and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Alaska SARs (Muto 2017a). All values presented in Table 3 are the most recent available at the time of publication and are available in the 2016 SARs (Muto, 2017a), Towers et al., 2015 (solely for northern resident killer whales), and draft 2017 SARs (Muto 2017b).

Two cetacean species have ranges near Tenakee Inlet but are unlikely to occur in the project area: The Pacific white-sided dolphin (Lagenorhynchus obliquidens) and gray whale (Eschrichtius robustus). The ranges of both the Pacific white-sided dolphin and gray whale are suggested to overlap with Tenakee Inlet (Muto, 2017a), but no sightings have been documented in the project area (Dahlheim et al. 2009).

All species that could potentially occur in the proposed survey areas are included in Table 3. As described below, all seven species (with nine managed stocks) temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. In addition, sea otters may be found in Tenakee Springs. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document.

The Steller sea lion is the largest of the eared seals, ranging along the North Pacific Rim from northern Japan to California, with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands. Steller sea lions were listed as threatened range-wide under the ESA on November 26, 1990 (55 FR 49204). Subsequently, NMFS published a final rule designating critical habitat for the species as a 20 nautical mile buffer around all major haulouts and rookeries, as well as associated terrestrial, air and aquatic zones, and three large offshore foraging areas (58 FR 45269; August 27, 1993). In 1997, NMFS reclassified Steller sea lions as two distinct population segments (DPS) based on genetic studies and other information (62 FR 24345; May 5, 1997). Steller sea lion populations that primarily occur west of 144° W (Cape Suckling, Alaska) comprise the western DPS (wDPS), while all others comprise the eastern DPS (eDPS); however, there is regular movement of both DPSs across this boundary (Jemison et al., 2013). Upon this reclassification, the wDPS became listed as endangered while the eDPS remained as threatened (62 FR 24345; May 5, 1997) and in November 2013, the eDPS was delisted (78 FR 66140). No critical habitat for this species is designated in Southeast Alaska.

Steller sea lions are known to occur within the project area; however, systematic counts or surveys have not been completed throughout Tenakee Inlet. Therefore, the best information regarding sea lion abundance and distribution comes from anecdotal reports from local residents and extrapolations from nearby haulouts that have been regularly monitored.

Anecdotal reports indicate that sea lions are generally present only in the fall and winter. Reports of these anecdotal observations also suggest that as many as 10-20 may swim by on a winter day, although most feed at night when their herring prey tend to be near the water's surface (Wheeler, K., pers. comm.).

Steller sea lions use terrestrial haulout sites to rest and take refuge. They also gather on well-defined, traditionally used rookeries to pup and breed. These habitats are typically gravel, rocky, or sand beaches; ledges; or rocky reefs. The closest Steller sea lion haulout to the project area is the Tenakee Cannery Point haulout, which is approximately 8.9 km (4.8 nautical miles) east of the project site (Fritz et al., 2016c; see Figure 4-1 of application). Recent summer counts have not recorded any Steller sea lions at this haulout, and historical counts between April and September have not exceeded 12 individuals during any survey (Fritz et al., 2016b). This haulout appears to be most active between October and March (Figure 4-2), which is consistent with anecdotal reports of sea lion abundance in the project area (Rasanen, L., pers. comm.; Wheeler, K., pers. comm.). Non-pup counts conducted between October and March from 2001 to 2004 averaged 106 individuals and ranged from 16 to 251 (Fritz et al., 2016b). Pups have not been counted at this haulout (Fritz et al., 2016a). In addition to those counted at the haulouts, as many as a few hundred more sea lions occur throughout Tenakee Inlet in small hunting groups (Rasanen, L., pers. comm.). The Point Marsden and Emmons haulouts are also located within 20 nautical miles of Tenakee Springs, but it is unlikely that individuals from those haulouts regularly inhabit Tenakee Inlet. Experts with the Alaska Fisheries Science Center of NMFS estimate that roughly 17.8 percent of the Steller sea lions at the Tenakee Cannery Point haulout are members of the western DPS (L. Fritz, pers. comm; L. Fritz, unpublished data) while the rest (82.2 percent) are from the eastern DPS. Steller sea lions are included in Alaska subsistence harvests. Since subsistence harvest surveys began in 1992, the number of households hunting and harvesting sea lions has remained relatively constant at low levels (Wolf et al., 2013).

Harbor seals range from Baja California north along the west coasts of Washington, Oregon, California, British Columbia, and Southeast Alaska; west through the Gulf of Alaska, Prince William Sound, and the Aleutian Islands; and north in the Bering Sea to Cape Newenham and the Pribilof Islands. They haul out on rocks, reefs, beaches, and drifting glacial ice, and feed in marine, estuarine, and occasionally fresh waters. Harbor seals are generally non-migratory, with local movements associated with such factors as tides, weather, season, food availability, and reproduction (Muto, 2017a).

Harbor seals in Alaska are partitioned into 12 separate stocks based largely on genetic structure: (1) The Aleutian Islands stock, (2) the Pribilof Islands stock, (3) the Bristol Bay stock, (4) the North Kodiak stock, (5) the South Kodiak stock, (6) the Prince William Sound stock, (7) the Cook Inlet/Shelikof stock, (8) the Glacier Bay/Icy Strait stock, (9) the Lynn Canal/Stephens Passage stock, (10) the Sitka/Chatham stock, (11) the Dixon/Cape Decision stock, and (12) the Clarence Strait stock. Only the Glacier Bay/Icy Strait stock is considered in this proposed IHA. The range of this stock includes Cape Fairweather southeast to Column Point, extending inland to Glacier Bay, Icy Strait, and from Hanus Reef south to Tenakee Inlet (Muto, 2017a).

Survey data from 2003 through 2011 indicate that there are eight harbor seal haulouts in Tenakee Inlet and a number of others nearby in Chatham Strait and Freshwater Bay (Figure 4-3). The nearest haulout to the project site is located on Tenakee Reef, near Tenakee Reef Light (a navigational and warning light for vessels), approximately 1 km south of the ferry terminal. Anecdotal observations indicate that up to 200 harbor seals may haul out on the rocks at and around the Tenakee Reef Light at any time of year (Rasanen, L., pers. comm.). Two additional harbor seal haulouts are located approximately 5.2 and 10.0 km from the ferry terminal, on Strawberry Island and in Crab Bay, respectively.

Aerial haulout surveys conducted in August 2011 divide Tenakee Inlet into four survey units. The survey unit along the north shore of the Inlet, including the project site, had a population estimate of 61 individuals. Other survey units in Tenakee Inlet had between 1 and 64 individuals. This information comes from a single year of surveys, and standard errors on these estimates are very high; therefore, confidence is low (London et al., 2015). Researchers estimate that the total abundance in Tenakee Inlet was approximately 259 seals in 2011, including about 170 in the upper inlet and approximately 89 near the mouth (London, J., pers. comm.).

Because harbor seals are non-migratory, we do not suspect that abundance fluctuates seasonally, but distribution throughout Tenakee Inlet and Chatham Strait likely fluctuates drastically based on numerous environmental factors.

The humpback whale is distributed worldwide in all ocean basins. In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres, and migrate to high latitudes in the summer to feed. The historic summer feeding range of humpback whales in the North Pacific encompassed coastal and inland waters around the Pacific Rim from Point Conception, California, north to the Gulf of Alaska and the Bering Sea, and west along the Aleutian Islands to the Kamchatka Peninsula and into the Sea of Okhotsk and north of the Bering Strait (Johnson and Wolman 1984).

Under the MMPA, there are three stocks of humpback whales in the North Pacific: (1) The California/Oregon/Washington and Mexico stock, consisting of winter/spring populations in coastal Central America and coastal Mexico which migrate to the coast of California to southern British Columbia in summer/fall; (2) the central North Pacific stock, consisting of winter/spring populations of the Hawaiian Islands which migrate primarily to northern British Columbia/Southeast Alaska, the Gulf of Alaska, and the Bering Sea/Aleutian Islands; and (3) the western North Pacific stock, consisting of winter/spring populations off Asia which migrate primarily to Russia and the Bering Sea/Aleutian Islands. The central North Pacific stock is the only stock that is found near the project activities.

On September 8, 2016, NMFS published a final rule dividing the globally listed endangered species into 14 DPSs, removing the worldwide species-level listing, and in its place listing four DPSs as endangered and one DPS as threatened (81 FR 62259; effective October 11, 2016). Two DPSs (Hawaii and Mexico) are potentially present within the action area. The Hawaii DPS is not listed and the Mexico DPS is listed as threatened under the ESA. The Hawaii DPS is estimated to contain 11,398 animals where the Mexico DPS is estimated to contain 3,264 animals.

Within the action area, humpback whales are seen most frequently from September through February although sightings may extend into April (Straley and Pendell 2017). Humpback whales are found throughout southeast Alaska in a variety of marine environments, including open-ocean, near-shore waters, and areas with strong tidal currents (Dahlheim et al., 2009). Most humpback whales are migratory and spend winters in the breeding grounds off either Hawaii or Mexico. Humpback whales generally arrive in southeast Alaska in March and return to their wintering grounds in November. Some humpback whales depart late or arrive early to feeding grounds, and therefore the species occurs in southeast Alaska year-round (Straley 1990). Across the region, there have been no recent estimates of humpback whale density, and there have been no systematic surveys of humpback whales in or near the project area. Marine mammal experts in the region have indicated that there are as many as 12 humpbacks present in Tenakee Inlet from spring through fall. During the winter, they are less common, but are regularly present (S. Lewis and M. Dahlheim, pers. comm.).

Minke whales are found throughout the northern hemisphere in polar, temperate, and tropical waters. In the North Pacific, minke whales occur from the Bering and Chukchi seas south to near the Equator (Leatherwood et al., 1982). In Alaska, the minke whale diet consists primarily of euphausiids and walleye pollock. Minke whales are generally found in shallow, coastal waters within 200 meters of shore (Zerbini et al., 2006) and are usually solitary or in small groups of 2 to 3. Rarely, loose aggregations of up to 400 animals have been associated with feeding areas in arctic latitudes. In Alaska, seasonal movements are associated with feeding areas that are generally located at the edge of the pack ice (NMFS 2014). Surveys in southeast Alaska have consistently identified individuals throughout inland waters in low numbers (Dahlheim et al., 2009).

Little is known about minke whale abundance and distribution in the project area as there have been no systematic studies conducted on the species in or near Tenakee Inlet. Surveys throughout southeast Alaska between 1991 and 2007 recorded minke whales infrequently, but noted a wide variety of habitat types used throughout all inland waters and little seasonal variation. During these surveys, the observation nearest to Tenakee Springs was in Chatham Strait, approximately 10 miles south of the mouth of Tenakee Inlet. Concentrations of minke whales were observed near the entrance to Glacier Bay. Most minke whales observed during the surveys were individual animals (Dahlheim et al., 2009).

Killer whales have been observed in all the world's oceans, but the highest densities occur in colder and more productive waters found at high latitudes (NMFS 2016a). Killer whales occur along the entire Alaska coast, in British Columbia and Washington inland waterways, and along the outer coasts of Washington, Oregon, and California (Muto et al., 2017a).

Based on data regarding association patterns, acoustics, movements, and genetic differences, eight killer whale stocks are now recognized within the Pacific U.S. Exclusive Economic Zone. This proposed IHA considers only the Alaska resident stock, northern resident and the west coast transient, all other stocks occur outside the geographic area under consideration (Muto et al., 2017a).

The Alaska Resident stock occurs from southeastern Alaska to the Aleutian Islands and Bering Sea. Photo-identification studies between 2005 and 2009 identified 2,347 individuals in this stock, including approximately 121 in southeast Alaska (Muto et al., 2017a). The West Coast transient stock occurs from California north through southeast Alaska. Between 1975 and 2012, surveys identified 521 individual West Coast transient killer whales. Dahlheim et al. (2009) noted a 5.2 percent annual decline in transient killer whales observed in southeast Alaska. The northern resident stock occurs from Washington State through part of southeastern Alaska. The trend for the Northern resident stock is an increasing population with an average of 2.1 percent annual increase over a 36-year period.

Surveys between 1991 and 2007 encountered resident killer whales during all seasons throughout southeast Alaska. Both residents and transients were common in a variety of habitats and all major waterways, including protected bays and inlets. During this study, strong seasonal variation in abundance or distribution of killer whales was not present, but there was substantial variability between years (Dahlheim et al., 2009). In Tenakee Inlet, systematic surveys of killer whales have not been completed. Nevertheless, local marine mammal experts estimate that approximately one killer whale pod passes by Tenakee Springs each month (Lewis, S., pers. comm.). It is not known whether these are resident or transient whales.

The harbor porpoise inhabits temporal, subarctic, and arctic waters. In the eastern North Pacific, harbor porpoises range from Point Barrow, Alaska, to Point Conception, California. Harbor porpoise primarily frequent coastal waters and occur most frequently in waters less than 100 m deep (Hobbs and Waite 2010). They may occasionally be found in deeper offshore waters.

In Alaska, harbor porpoises are currently divided into three stocks, based primarily on geography: (1) The Southeast Alaska stock—occurring from the northern border of British Columbia to Cape Suckling, Alaska, (2) the Gulf of Alaska stock—occurring from Cape Suckling to Unimak Pass, and (3) the Bering Sea stock—occurring throughout the Aleutian Islands and all waters north of Unimak Pass. Only the Southeast Alaska stock is considered in this proposed IHA because the other stocks are not found in the geographic area under consideration. The 2016 SAR for this stock further delineated population estimates (Muto et al., 2017a). The total estimated annual level of human-caused mortality and serious injury for Southeast Alaska harbor porpoise (n= 34) exceeds the calculated PBR of 8.9 porpoises. However, the calculated PBR is considered unreliable for the entire stock because it is based on estimates from surveys of only a portion (the inside 7of Southeast Alaska) of the range of this stock as currently designated. Because the total stock abundance estimates are more than eight years old (with the exception of the 2010-2012 abundance estimates provided for the inland waters of Southeast Alaska), and the frequency of incidental mortality and serious injury in U.S. commercial fisheries throughout Southeast Alaska is not known, the Southeast Alaska stock of harbor porpoise is classified as a strategic stock. Population trends and status of this stock relative to its Optimum Sustainable Population are currently unknown.

There are no subsistence use of this species; however, as noted above, entanglement in fishing gear contributes to human-caused mortality and serious injury. Muto et al. (2017a) also reports harbor porpoise are vulnerable to physical modifications of nearshore habitats resulting from urban and industrial development (including waste management and nonpoint source runoff) and activities such as construction of docks and other over-water structures, filling of shallow areas, dredging, and noise (Linnenschmidt et al., 2013).

Information on harbor porpoise abundance and distribution in Tenakee Inlet has not been systematically collected. Anecdotal observations from marine mammal researchers indicate that harbor porpoise are seen a few times per month in groups of 3 to 5 individuals, but there is no seasonal trend to these observations (Dahlheim, M., pers. comm.).

Dall's porpoise are widely distributed across the entire North Pacific Ocean. They are found over the continental shelf adjacent to the slope and over deep (2,500+ meters) oceanic waters (Hall 1979). They have been sighted throughout the North Pacific as far north as 65° N (Buckland et al., 1993) and as far south as 28° N in the eastern North Pacific (Leatherwood and Fielding 1974). The only apparent distribution gaps in Alaska waters are upper Cook Inlet and the shallow eastern flats of the Bering Sea. Throughout most of the eastern North Pacific they are present during all months of the year, although there may be seasonal onshore-offshore movements along the west coast of the continental U.S. (Loeb 1972, Leatherwood and Fielding 1974) and winter movements of populations out of areas with ice such as Prince William Sound (Hall 1979).

There currently is no information on the presence or abundance of Dall's porpoises in Tenakee Inlet. Local marine mammal experts indicate that the species is rarely seen near Tenakee Springs (Lewis, S., pers. comm.). Dall's porpoises likely occur more often in the deeper waters of Chatham Strait, although waters more than 600 feet (182 meters) deep are found within the central portion of Tenakee Inlet between Tenakee Springs and Chatham Strait (Figure 4-4). Average pod size in southeast Alaska ranges from three to six individuals (Dahlheim et al., 2009). Dall's porpoise commonly “bowride,” or ride the wake created by large, relatively fast-moving vessels. It is possible that Dall's porpoises may bowride alongside a vessel into the project area, but we would not expect individuals to stay for long periods or congregate in the project area, nor to venture farther up Tenakee Inlet due to shallow water depths.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibels (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below in Table 4 (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. As previously discussed, seven marine mammal species (five cetacean and two pinniped (one otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 3. Of the cetacean species that may be present, two are classified as low-frequency cetaceans (i.e., all mysticete species), one is classified as a mid-frequency cetaceans (i.e., killer whale), and two are classified as high-frequency cetaceans (i.e., harbor and Dall's porpoise).

This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the dB scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to one microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 µPa and all airborne sound levels in this document are referenced to a pressure of 20 µPa.

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 1983). 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 (Hastings and Popper 2005). 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 than by peak pressures.

When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

• Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kilohertz (kHz) (Mitson 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

• Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

• Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

• Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound.

The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

In-water construction activities associated with the project would include impact pile driving, vibratory pile driving and removal, and drilling. The sounds produced by these activities fall into one of two general sound types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts.

Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI 1995; NIOSH 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems. The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman et al., 2009). Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (Nedwell and Edwards 2002; Carlson et al., 2005). Drilling to insert the steel piles (not for tension anchors) will be operated by a down-hole hammer. A down-hole hammer is a drill bit that drills through the bedrock using a pulse mechanism that functions at the bottom of the hole. This pulsing bit breaks up rock to allow removal of debris and insertion of the pile. The head extends so that the drilling takes place below the pile. The pulsing sounds produced by the hammer method are continuous and reduces sound attenuation because the noise is primarily contained within the steel pile and below ground rather than impact hammer driving methods which occur at the top of the pile (R&M 2016).

Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound from active acoustic sources can potentially result in one or more of the following; temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007; Gotz et al., 2009). The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure. In general, sudden, high level sounds can cause hearing loss, as can longer exposures to lower level sounds. Temporary or permanent loss of hearing will occur almost exclusively for noise within an animal's hearing range. We first describe specific manifestations of acoustic effects before providing discussion specific to ADOT&PF's construction activities.

Richardson et al. (1995) described zones of increasing intensity of effect that might be expected to occur, in relation to distance from a source and assuming that the signal is within an animal's hearing range. First is the area within which the acoustic signal would be audible (potentially perceived) to the animal, but not strong enough to elicit any overt behavioral or physiological response. The next zone corresponds with the area where the signal is audible to the animal and of sufficient intensity to elicit behavioral or physiological responsiveness. Third is a zone within which, for signals of high intensity, the received level is sufficient to potentially cause discomfort or tissue damage to auditory or other systems. Overlaying these zones to a certain extent is the area within which masking (i.e., when a sound interferes with or masks the ability of an animal to detect a signal of interest that is above the absolute hearing threshold) may occur; the masking zone may be highly variable in size.

We describe the more severe effects (i.e., permanent hearing impairment, certain non-auditory physical or physiological effects) only briefly as we do not expect that there is a reasonable likelihood that ADOT&PF's activities may result in such effects (see below for further discussion). Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005b). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Repeated sound exposure that leads to TTS could cause PTS. In severe cases of PTS, there can be total or partial deafness, while in most cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985).

When PTS occurs, there is physical damage to the sound receptors in the ear (i.e., tissue damage), whereas TTS represents primarily tissue fatigue and is reversible (Southall et al., 2007). In addition, other investigators have suggested that TTS is within the normal bounds of physiological variability and tolerance and does not represent physical injury (e.g., Ward 1997). Therefore, NMFS does not consider TTS to constitute auditory injury.

Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak et al., 2008)—but are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several dB above a 40-dB threshold shift approximates PTS onset; e.g., Kryter et al., 1966; Miller, 1974 found that inducing mild TTS (a 6-dB threshold shift) approximates TTS onset (e.g., Southall et al., 2007). Based on data from terrestrial mammals, a precautionary assumption is that the PTS thresholds for impulse sounds (such as impact pile driving pulses as received close to the source) are at least 6 dB higher than the TTS threshold on a peak-pressure basis and PTS cumulative sound exposure level thresholds are 15 to 20 dB higher than TTS cumulative sound exposure level thresholds (Southall et al., 2007). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.

Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during a time when communication is critical for successful mother/calf interactions could have more serious impacts.

Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin (Tursiops truncatus), 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; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Popov et al., 2011). 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. 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) and Finneran and Jenkins (2012).

In addition to PTS and TTS, there is a potential for non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions (e.g., change in dive profile as a result of an avoidance reaction) caused by exposure to sound. These impacts can include neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack 2007). The AKOT & PF's activities do not involve the use of devices such as explosives or mid-frequency active sonar that are associated with these types of effects.

When a live or dead marine mammal swims or floats onto shore and is incapable of returning to sea, the event is termed a “stranding” (16 U.S.C. 1421h(3)). Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series (e.g., Geraci et al., 1999). However, the cause or causes of most strandings are unknown (e.g., Best 1982). Combinations of dissimilar stressors may combine to kill an animal or dramatically reduce its fitness, even though one exposure without the other would not be expected to produce the same outcome (e.g., Sih et al., 2004). For further description of stranding events see, e.g., Southall et al., 2006; Jepson et al., 2013; Wright et al., 2013.

Behavioral effects—Behavioral disturbance may include a variety of effects, including subtle changes in behavior (e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors (e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source (e.g., whether it is moving or stationary, number of sources, distance from the source). Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a “progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,” rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud-pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds 2002; see also Richardson et al., 1995; Nowacek et al., 2007).

Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. 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; NRC 2005). However, there are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight.

Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (e.g., Frankel and Clark 2000; Costa et al., 2003; Ng and Leung 2003; Nowacek et al., 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging) or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response.

Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance (e.g., Croll et al., 2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal.

Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et al., 2007).

Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales (Eubalaena glacialis) have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007b). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994).

Avoidance is the displacement of an individual from an area or migration path because of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales (Eschrictius robustus) are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Avoidance may be short-term, with animals returning to the area once the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996; Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006).

A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (e.g., directed movement, rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine mammal strandings (Evans and England 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves 2008), and whether individuals are solitary or in groups may influence the response.

Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (e.g., Beauchamp and Livoreil 1997; Fritz et al., 2002; Purser and Radford 2011). In addition, chronic disturbance can cause population declines through reduction of fitness (e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both (e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a five-day period did not cause any sleep deprivation or stress effects.

Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses.

Stress responses—An animal's perception of a threat may be sufficient to trigger stress responses consisting of some combination of behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 2000). In many cases, an animal's first and sometimes most economical (in terms of energetic costs) response is behavioral avoidance of the potential stressor. Autonomic nervous system responses to stress typically involve changes in heart rate, blood pressure, and gastrointestinal activity. These responses have a relatively short duration and may or may not have a significant long-term effect on an animal's fitness.

Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (e.g., Moberg 1987; Blecha 2000). Increases in the circulation of glucocorticoids are also equated with stress (Romano et al., 2004).

The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the 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 serious fitness consequences. 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 functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.

Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well studied through controlled experiments and for both laboratory and free-ranging animals (e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005). Stress responses due to exposure to anthropogenic sounds or other stressors and their effects on marine mammals have also been reviewed (Fair and Becker 2000; Romano et al., 2002b) and, more rarely, studied in wild populations (e.g., Romano et al., 2002a). 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. These and other studies lead to a reasonable expectation that some marine mammals will experience physiological stress responses upon exposure to acoustic stressors and that it is possible that some of these would be classified as “distress.” In addition, any animal experiencing TTS would likely also experience stress responses (NRC, 2003).

Auditory masking—Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest (e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, navigation) (Richardson et al., 1995). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural (e.g., snapping shrimp, wind, waves, precipitation) or anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. The ability of a noise source to mask biologically important sounds depends on the characteristics of both the noise source and the signal of interest (e.g., signal-to-noise ratio, temporal variability, direction), in relation to each other and to an animal's hearing abilities (e.g., sensitivity, frequency range, critical ratios, frequency discrimination, directional discrimination, age or TTS hearing loss), and existing ambient noise and propagation conditions.

Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (e.g., Clark et al., 2009) and may result in energetic or other costs as animals change their vocalization behavior (e.g., Miller et al., 2000; Foote et al., 2004; Parks et al., 2007b; Di Iorio and Clark 2009; Holt et al., 2009). Masking can be reduced in situations where the signal and noise come from different directions (Richardson et al., 1995), through amplitude modulation of the signal, or through other compensatory behaviors (Houser and Moore 2014). Masking can be tested directly in captive species (e.g., Erbe 2008), but in wild populations it must be either modeled or inferred from evidence of masking compensation. There are few studies addressing real-world masking sounds likely to be experienced by marine mammals in the wild (e.g., Branstetter et al., 2013).

Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (e.g., from vessel traffic), contribute to elevated ambient sound levels, thus intensifying masking.

Potential Effects of DTH drilling and Pile Driving—The effects of sounds from DTH drilling and pile driving might include one or more of the following: temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2003; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving or drilling on marine mammals are dependent on several factors, including the type and depth of the animal; the pile size and type, and the intensity and duration of the pile driving or drilling sound; the substrate; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving and DTH drilling activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the frequency, received level, and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock), which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

In the absence of mitigation, impacts to marine species could be expected to include physiological and behavioral responses to the acoustic signature (Viada et al., 2008). Potential effects from impulsive sound sources like pile driving can range in severity from effects such as behavioral disturbance to temporary or permanent hearing impairment (Yelverton et al., 1973). Due to the nature of the pile driving sounds in the project, behavioral disturbance is the most likely effect from the proposed activity. Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shifts. PTS constitutes injury, but TTS does not (Southall et al., 2007). Based on the best scientific information available, the SPLs for the construction activities in this project are below the thresholds that could cause TTS or the onset of PTS (Table 5 in Estimated Take Section).

Non-Auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving or removal to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds. With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short-term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries). Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff 2006). If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals, and if so potentially on the stock or species, could potentially be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007).

The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

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

• Longer-term habitat abandonment due to loss of desirable acoustic environment; and

• Longer-term cessation of feeding or social interaction.

The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

Natural and artificial sounds can disrupt behavior by masking. The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water pile driving and removal and DTH drilling is mostly concentrated at low-frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. The most intense underwater sounds in the proposed action are those produced by impact pile driving. Given that the energy distribution of pile driving covers a broad frequency spectrum, sound from these sources would likely be within the audible range of marine mammals present in the project area. Impact pile driving activity is relatively short-term, with rapid pulses occurring for approximately fifteen minutes per pile. The probability for impact pile driving resulting from this proposed action masking acoustic signals important to the behavior and survival of marine mammal species is low. Vibratory pile driving is also relatively short-term, with rapid oscillations occurring for approximately one and a half hours per pile. It is possible that vibratory pile driving resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for DTH drilling and vibratory and impact pile driving, and which have already been taken into account in the exposure analysis.

Acoustic Effects, Airborne—Pinnipeds that occur near the project site could be exposed to airborne sounds associated with pile driving and removal and DTH drilling that have the potential to cause behavioral harassment, depending on their distance from pile driving activities. Cetaceans are not expected to be exposed to airborne sounds that would result in harassment as defined under the MMPA.

Airborne noise will primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' because of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple instances of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.

The proposed activities at the project area would not result in permanent negative impacts to habitats used directly by marine mammals, but may have potential short-term impacts to food sources such as forage fish and may affect acoustic habitat (see masking discussion above). There are no known foraging hotspots or other ocean bottom structure of significant biological importance to marine mammals present in the marine waters of the project area during the construction window. Therefore, the main impact issue associated with the proposed activity would be temporarily elevated sound levels and the associated direct effects on marine mammals, as discussed previously in this document. The primary potential acoustic impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal and DTH drilling in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

Construction activities would produce continuous (i.e., vibratory pile driving and DTH drilling) and pulsed (i.e. impact driving) sounds. Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality.

The most likely impact to fish from pile driving and drilling activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

The area likely impacted by the project is relatively small compared to the available habitat in Tenakee Inlet (e.g., most of the impacted area is limited near the mouth of the inlet. Avoidance by potential prey (i.e., fish) of the immediate area due to the temporary loss of this foraging habitat is also possible. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity in Tenakee Inlet.

The duration of the construction activities is relatively short. The construction window is for a maximum of 93 days and each day, construction activities would only occur for a few hours during the day. Impacts to habitat and prey are expected to be minimal based on the short duration of activities.

In summary, given the short daily duration of sound associated with individual pile driving and drilling events and the relatively small areas being affected, pile driving and drilling activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of 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).

Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to pile driving and drilling. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdowns—discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.

Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.

Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g. vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns and impact pile driving) or intermittent (e.g., scientific sonar) sources.

ADOT&PF's proposed activity includes the use of continuous (vibratory pile driving and drilling) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.

Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) because of exposure to noise from two different types of sources (impulsive or non-impulsive).

These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 5 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2016 Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

Although ADOT&PF's construction activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and drilling) sources, the shutdown zones set by the applicant are large enough to ensure Level A harassment will be prevented. The level A zones for the proposed project are illustrated in Table 7. The highest level A zone shown (176 meters for high- and low-frequency cetaceans) is roughly 24 meters less than the total distance of the largest shutdown zone (200 meters for high- and low-frequency cetaceans). To assure the largest shutdown zone can be fully monitored, protected species observers (PSOs) will be positioned in the possible best vantage points during all piling/drilling activities to guarantee a shutdown if a high- and/or low-frequency cetacean approaches or enters the 200-meter shutdown zone. These measures are described in full detail below in the Proposed Mitigation and Monitoring Sections.

Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project, i.e., impact pile driving, vibratory pile driving, and vibratory pile removal. Vibratory hammers produce constant sound when operating, and produce vibrations that liquefy the sediment surrounding the pile, allowing it to penetrate to the required seating depth. An impact hammer would then generally be used to place the pile at its intended depth. The actual durations of each installation method vary depending on the type and size of the pile. An impact hammer is a steel device that works like a piston, producing a series of independent strikes to drive the pile. Impact hammering typically generates the loudest noise associated with pile installation. Factors that could potentially minimize the potential impacts of pile installation associated with the project include:

• The relatively shallow waters in the project area (Taylor et al., 2008);

• Land forms around Tenakee Springs that would block the noise from spreading; and

• Vessel traffic and other commercial and industrial activities in the project area that contribute to elevated background noise levels.

In order to calculate distances to the Level A and Level B sound thresholds for piles of various sizes being used in this project, NMFS used acoustic monitoring data from other locations (see Table 6). Note that piles of differing sizes have different sound source levels.

Empirical data from recent ADOT&PF sound source verification (SSV) studies at Ketchikan, Kodiak, and Auke Bay, Alaska were used to estimate sound source levels (SSLs) for vibratory, impact, and drilling installations of 30-inch steel pipe piles (MacGillivray et al., 2016, Warner and Austin 2016b, Denes et al., 2016a, respectively). These Alaskan construction sites were generally assumed to best represent the environmental conditions found in Tenakee and represent the nearest available source level data for 30-inch steel piles. Similarities among the sites include thin layers of soft sediments overlying a bedrock layer and comparable bedrock depths. However, the use of data from Alaska sites was not appropriate in all instances. Details are described below.

For vibratory driving of 24-inch steel piles, data from two Navy project locations in the state of Washington were reviewed. These include data from proxy sound source values at Navy installations in Puget Sound (Navy, 2015) and along the waterfront at Naval Base Kitsap (NBK), Bangor (Navy 2012). After assessing these two sources, ADOT&PF selected an average source level of 161 dB rms, which NMFS concurs with as an appropriate sound source. In addition, for a fourth project at NBK, Bangor, construction crews drove 16-inch hollow steel piles with measured levels similar to those for the 24-inch piles. Therefore, NMFS elects to use 161 dB rms as a source level for vibratory driving of 18-inch and 16-inch steel piles.

For vibratory driving of 14-inch steel and timber piles and 12.75-inch steel piles, ADOT&PF suggested a source level of 155 dB rms, which NMFS also concurs with. This source level was derived from summary data pertaining to vibratory driving of 18-inch steel piles in Kake, Alaska (MacGillivray 2015).

In their application, ADOT&PF derived source levels for impact driving of 30-inch steel piles by averaging the individual mean values associated with impact driving of the same size and type from Ketchikan (Warner and Austin 2016a). Mean values from Ketchikan were the most conservative dataset for 30-inch impact pile driving in Southeast Alaska. The average mean value from this dataset was 194.7 dB rms and 180.8 dB SEL.

For 24-inch impact pile driving, NMFS used data from a Navy (2015) study of proxy sound source values for use at Puget Sound military installations. The Navy study recommended a value of 193 dB rms and 181 dB SEL, which was derived from data generated by impact driving of 24-inch steel piles at the Bainbridge Island Ferry Terminal Preservation project and the Friday Harbor Restoration Ferry Terminal project. NMFS found this estimated source level to be appropriate.

For impact driving of 20, 18, and 14-inch steel piles, ADOT&PF used source levels of 186.6 dB, 158 dB, and 158 dB respectively. These source levels were derived from Caltrans SSV studies at the Stockton Wastewater Treatment Plant (20-inch) and Caltrans SSV studies at Prichard Lake Pumping Plant in Sacramento, CA (18 and 14-inch) (Caltrans 2015). In regards to the proposed drilling activities, a source level of 165 dB for all pile types originated from ADOT&PF SSV studies for piling operations in Kodiak, Alaska (Warner and Austin 2016b).

The formula below is used to calculate underwater sound propagation. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

NMFS typically recommends a default practical spreading loss of 15 dB tenfold increase in distance. ADOT&PF analyzed the available underwater acoustic data utilizing this metric.

When NMFS' Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving and drilling, NMFS' User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet and the resulting isopleths are reported in Tables 6 and 7.

Pulse duration from the SSV studies described above are unknown. However, all necessary parameters were available for the SELcum (cumulative Single Strike Equivalent) method for calculating isopleths for 30-inch, 24-inch, and 20-inch impact piles. Therefore, this method was selected for those piles. To account for potential variations in daily productivity during impact installation, isopleths were calculated for different numbers of piles that could be installed each day (see Table 7). Should the contractor expect to install fewer piles in a day than the maximum anticipated, a smaller Level A shutdown zone would be employed to monitor take.

To derive Level A harassment isopleths associated with impact driving 30-inch steel piles, ADOT&PF utilized a single strike SEL of 180.8 dB and assumed 30 strikes per pile for 1 to 3 piles per day. For 24-inch and 20-inch steel piles, ADOT&PF used a single strike SEL of 181 dB SEL and 175.5 SEL respectively, also assuming 30 strikes at a rate of 1 to 3 piles per day. To calculate Level A harassment isopleths associated with impact piling 18-inch and 14-inch steel/timber piles, a source level (rms SPL) of 158dB was used with a pulse duration of .05 seconds.

To calculate Level A harassment for vibratory driving of 30-inch piles, ADOT&PF utilized a source level (rms SPL) of 165 dB and assumed 45 minutes of driving per day. For installing 24, 20, and 18-inch piles, ADOT&PF used a source level of 161 dB and assumed up to 45 minutes of driving per day. For removal of 18 and 16-inch piles, ADOT&PF assumed use of 18-inch piles and used the same source level of 161 dB for up to 45 minutes. Level A harassment for the installation/removal of piles 14-inches and under in diameter used a source level of 155 dB rms and assumed 2.5 hours of driving/removal a day. In regards to Level A for drilling, a source level of 165 dB rms was used for all pile types with varying levels of activity for each pile type (see Tables 1 & 2 for information on drilling duration and max number of piles drilled each day). Results for all Level A isopleths are shown in Table 7. Isopleths for Level B harassment associated with impact (160 dB) and vibratory harassment (120 dB) were also calculated and are included in Table 7.

It is important to note that the actual area ensonified by pile driving activities is constrained by local topography relative to the total threshold radius (particularly for the Level B ensonified zones). The actual ensonified area was determined using a straight line-of-sight projection from the anticipated pile driving locations. Overall, Level A harassment zones for impact installation are relatively small because of the few strikes required to proof the piles. The maximum aquatic areas ensonified within the Level A harassment isopleths do not exceed 0.1 square km (see Figures 6-1 and Figure 6-2 in application). The corresponding areas of the Level B ensonified zones for impact driving and vibratory installation/removal are shown in Table 8 below.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Potential exposures to impact and vibratory pile driving noise for each threshold were estimated using local marine mammal density datasets where available and local observational data. As previously stated, only Level B take will be considered for this action as Level A take will be avoided via mitigation (see Mitigation and Monitoring Sections). As presented in Table 7, the largest Level A zone for the project is 176 meters for high- and low-frequency cetaceans. As a result, the shutdown zone (which is described in detail in the Proposed Mitigation Section) for these activities will be 200 meters for high- and low-frequency cetaceans. Level B take is calculated differently for some species based on differences in density, year-round habitat use, and other contextual factors. See below for specific methodologies by species.

Steller sea lion abundance in the project area is highly seasonal in nature with sea lions being most active between October and March (Figure 4-2). Level B exposure estimates are conservatively based on the average winter (October to March) abundance of 140 sea lions at the Tenakee Cannery haulout, which is 8.9 km away from the project site (Jemison, 2017, unpublished data). However, it is unlikely that the entire Steller sea lion population from the Tenakee Cannery haulout would forage to the west near the Tenakee Springs ferry terminal. Additionally, Steller sea lions do not generally forage every day, but tend to forage every 1-2 days and return to haulouts to rest between foraging trips (Merrick and Loughlin 1997; Rehburg et al., 2009). Overall, this information indicates that only half of the Steller sea lions at the Tenakee Cannery haulout (i.e., average of 140 during winter) is likely to approach the project site on any given day and be exposed to sound levels that constitute behavioral harassment. As a result, an estimated 70 individuals is a conservative estimate of the number of Steller sea lions likely to forage in the underwater behavioral harassment zone on a given day. Therefore: 70 Steller sea lions per day * 93 days of potential exposure = 6,510 potential exposures.

To assign take to the eDPS and wDPS stocks of Steller sea lions, data from researchers at NMFS' Alaska Fisheries Science Center were used. Researchers at NMFS' Alaska Fisheries Science Center state that roughly 17.8 percent of Steller sea lions at the Tenakee Cannery Point haulout are members of the wDPS whereas 82.2 percent are from the eDPS (L. Fritz, pers. comm; L. Fritz, unpublished data). Therefore, it is estimated that only 1,159 takes (17.8 percent of 6,510) have the potential to occur for wDPS Steller sea lions and 5,351 (82.2 percent of 6,510) takes have the potential to occur for eDPS Steller sea lions. In addition, since there is only an average of 140 Steller sea lions located at the Tenakee Cannery haulout, it is predicted that only 115 (82.2 percent of 140) individuals from the eDPS and 25 (17.8 percent of 140) individuals from the wDPS have the potential to be harassed.

Harbor seals are non-migratory; therefore, the exposure estimates are not dependent on season. We anticipate Level B harbor seal take to be relatively high, given the presence of three established haulouts within the largest (ten km) Level B harassment zone of the project site. The best available abundance estimate for Tenakee Inlet is 259 individual harbor seals (London, J., pers. comm.).

The number of harbor seals that could potentially be exposed to elevated sound levels for the project was estimated by calculating the percentage of available harbor seal habitat within the largest Level B harassment zone. Of the 233.35 square km of available habitat in Tenakee Inlet, 78.9 square km or 33.82 percent will be within the largest Level B harassment zone. Of the 259 harbor seals that haul out in the Inlet, approximately 87.57 harbor seals (33.82 percent of 259 individuals) could be within the Level B harassment zone and exposed to sound levels that reach the Level B threshold each day. Therefore: 87.57 harbor seals per day * 93 days of potential exposure = 8,144 potential exposures.

Harbor porpoises are non-migratory; therefore, our exposure estimates are not dependent on season. Harbor porpoise surveys conducted in southeast Alaska during the summers of 1991-1993, 2006, 2007, and 2010-2012 included Chatham Strait (near the action area). The average density estimate for all survey years in Chatham Strait was 0.013 harbor porpoise per square km (Dahlheim et al., 2015). Surveys in 1997, 1998, and 1999 reported an average harbor porpoise density of .033 per square km in Southeast Alaska (Hobbs and Waite 2010). Based on a more conservative density estimate of 0.033 harbor porpoise per square km in Southeast Alaska, we estimate that approximately 2.6 (.033*78.9) harbor porpoises could occur daily within the 78.9 square km (Table 8) Level B harassment zone. Therefore: 2.6 harbor porpoises per day * 93 days of potential exposure = 242 potential exposures.

Dall's porpoise are non-migratory; therefore, our exposure estimates are not dependent on season. Based on anecdotal evidence citing rare occurrences of the species in the action area, we anticipate approximately one observation of a Dall's porpoise pod in the Level B harassment zone each week during construction (Lewis, S., pers. comm.). Based on an average pod size of 3.7 (Wade et al., 2003), we estimate 49 Dall's porpoise could be exposed to Level B harassment noise during the 93 day construction period (i.e., 3.7 individuals per week * 13.2 weeks of potential exposure = 48.84 (rounded up to 49) total potential exposures).

Local marine mammal experts indicate that approximately one killer whale pod is observed in Tenakee Inlet each month, year-round (Lewis, S., pers. comm.). It is assumed that all three killer whale stocks are equally likely to occur in the area because no data exist on relative abundance of the three stocks in Tenakee Inlet. The exposure estimate is conservatively based on a resident pod size, which has been quantified and is known to be larger than other stocks. Resident killer whales occur in a mean group size of 19.3 during the fall in southeast Alaska (Dahlheim et al., 2009). Therefore, we assume that a total of approximately 60 killer whales could be exposed to Level B harassment over the course of the project (i.e., [19.3 individuals per pod * 1 pods per month] * 3.1 months = 59.83 [rounded up to 60]). Since there are no data that exist for killer stocks in Tenakee Inlet, 60 Level B takes were applied to each stock.

Humpback whales are present in Tenakee Inlet year-round. Local experts indicate that as many as 12 humpback whales are present on some days from spring through fall, with lower numbers during the winter (S. Lewis and M. Dahlheim, pers. comm.). We conservatively estimate that half of those, or six individuals on average, could be exposed to Level B harassment during each day of pile installation and removal, therefore:

Minke whales may be present in Tenakee Inlet year-round. Their abundance throughout southeast Alaska is very low, and anecdotal reports have not included minke whales near the project area. However, minke whales are distributed throughout a wide variety of habitats and could occur near the project area. Therefore, we conservatively estimate that one minke whale could be exposed to Level B harassment each month during construction or a total of three minke whales during the 93-day construction period.

In order to issue an IHA 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 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 (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;

(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

In addition to the measures described later in this section, ADOT&PF will employ the following standard mitigation measures:

• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity, and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;

• For in-water heavy machinery work other than pile driving (e.g., standard barges, tug boats), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location; or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile);

• Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted;

• For those marine mammals for which Level B take has not been requested, in-water pile installation/removal and drilling will shut down immediately when the animals are sighted;

• If Level B take reaches the authorized limit for an authorized species, pile installation will be stopped as these species approach the Level B zone to avoid additional take of them.

The following measures would apply to ADOT&PFs mitigation requirements:

Establishment of Shutdown Zone for Level A—For all pile driving/removal and drilling activities, ADOT&PF will establish a shutdown zone. The purpose of a shutdown zone is generally to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). A conservative shutdown zone of 100 meters will be used during monitoring to prevent any form of incidental Level A exposure for most species. However, during impact installation of 24-inch and 30-inch steel piles at a frequency of 2 or 3 piles per day, the Level A harassment zone exceeds the 100-meter shutdown zone for low- and high-frequency cetaceans (i.e., humpback whales, harbor porpoises, and Dall's porpoises; see Table 7). During these activities, PSOs will implement a 200-meter shutdown zone to avoid take of harbor porpoises, Dall's porpoises, minke whales, and humpback whales (low- and high-frequency cetaceans). The placement of PSOs during all pile driving and drilling activities (described in detail in the Proposed Monitoring and Reporting Section) will ensure that the 200-meter shutdown zone is visible during impact installation of 24-inch and 30-inch steel piles at a frequency of two or three piles per day. Nonetheless, a 100-meter shutdown will be implemented for Steller sea lions, harbor seals, and killer whales during all activities.

Establishment of Monitoring Zones for Level B—ADOT&PF will establish Level B disturbance zones or zones of influence (ZOI) which are areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory driving and drilling. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring zones enable observers to be aware of and communicate the presence of marine mammals in the project area outside the shutdown zone and thus prepare for a potential cease of activity should the animal enter the shutdown zone. The Level B zones are depicted in Table 7. As shown, the largest Level B zone is equal to 78.9 km2, making it impossible for the PSOs to view the entire harassment area. Due to this, Level B exposures will be recorded and extrapolated based upon the number of observed take and the percentage of the Level B zone that was not visible.

Soft Start—The use of a soft-start procedure are believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors will be required to provide an initial set of strikes from the hammer at 40 percent energy, each strike followed by no less than a 30-second waiting period. This procedure will be conducted a total of three times before impact pile driving begins. Soft Start is not required during vibratory pile driving and removal activities.

Pre-Activity Monitoring—Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 minutes or longer occurs, the observer will observe the shutdown and monitoring zones for a period of 30 minutes. The shutdown zone will be cleared when a marine mammal has not been observed within the zone for that 30-minute period. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 30 minutes (for cetaceans) and 15 minutes (for pinnipeds). If the Level B harassment zone has been observed for 30 minutes and non-permitted species are not present within the zone, soft start procedures can commence and work can continue even if visibility becomes impaired within the Level B zone. When a marine mammal permitted for Level B take is present in the Level B harassment zone, piling activities may begin and Level B take will be recorded. As stated above, if the entire Level B zone is not visible at the start of construction, piling or drilling activities can begin. If work ceases for more than 30 minutes, the pre-activity monitoring of both the Level B and shutdown zone will commence.

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 authorizations 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. Effective reporting is critical both for compliance as well as ensuring that the most value is obtained from the required monitoring.

Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

• Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

• Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

• Mitigation and monitoring effectiveness.

Monitoring would be conducted 30 minutes before, during, and 30 minutes after pile driving and removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.

PSOs would be land-based observers. A primary PSO would be placed at the terminal where pile driving would occur. A second observer would range the uplands on foot or by ATV via Tenakee Ave., and go from Grave Point east of the harbor up and west of the project site to get a full view of the Level A zone and as much of the Level B zone as possible. PSOs would scan the waters using binoculars, and/or spotting scopes, and would use a handheld GPS or range-finder device to verify the distance to each sighting from the project site. All PSOs would be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained and/or experienced professionals, with the following minimum qualifications:

• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target.

• Independent observers (i.e., not construction personnel).

• Observers must have their CVs/resumes submitted to and approved by NMFS.

• Advanced education in biological science or related field (i.e., undergraduate degree or higher). Observers may substitute education or training for experience.

• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

• At least one observer must have prior experience working as an observer.

• Experience or training in the field identification of marine mammals, including the identification of behaviors.

• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.

• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior.

• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:

• Date and time that monitored activity begins or ends;

• Construction activities occurring during each observation period;

• Weather parameters (e.g., percent cover, visibility);

• Water conditions (e.g., sea state, tide state);

• Species, numbers, and, if possible, sex and age class of marine mammals;

• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

• Locations of all marine mammal observations; and

• Other human activity in the area.

If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, ADOT&PF would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report would include the following information:

• Description of the incident;

• Environmental conditions (e.g., Beaufort sea state, visibility);

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

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

• Fate of the animal(s); and

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

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

In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition as described in the next paragraph), ADOT&PF would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding 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 ADOT&PF to determine whether modifications in the activities are appropriate.

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

NMFS has defined negligible impact 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 (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. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

As stated in the proposed mitigation section, shutdown zones equal to or exceeding Level A isopleths shown in Table 7 will be implemented, and in this case, Level A take is not anticipated nor authorized. Behavioral responses of marine mammals to pile driving and removal at the ferry terminal, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day and that pile driving, removal, and drilling would occur for 93 days, any harassment would be temporary. In addition, the project was designed with relatively small-diameter piles, which will avoid the elevated noise impacts associated with larger piles. In addition, there are no known biologically important areas near the project zone that would be moderately or significantly impacted by the construction activities. The region of Tenakee Inlet where the project will take place is located in a developed area with regular marine vessel traffic. Although there is a harbor seal haulout approximately one kilometer south of the project site, it would not be located within the project's Level B zone.

In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

• No mortality is anticipated or authorized.

• There are no known biologically important areas within the project area.

• ADOT&PF would implement mitigation measures such as vibratory driving piles to the maximum extent practicable, soft-starts, and shut downs.

• Monitoring reports from similar work in Alaska have documented little to no effect on individuals of the same species impacted by the specified activities.

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 the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

Overall, ADOT&PF proposes 15,566 total Level B takes of these marine mammals. Table 9 below shows take as a percent of population for each of the species listed above.

Table 9 presents the number of animals that could be exposed to received noise levels causing Level B harassment for the proposed work at the Tenakee Springs Ferry Terminal. Our analysis shows that less than 25 percent of each affected stock could be taken by harassment. Therefore, the numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For pinnipeds, especially harbor seals and Steller sea lions, occurring in the vicinity of the project site, there will almost certainly be some overlap in individuals present day-to-day, and these takes are likely to occur only within some small portion of the overall regional stock. For harbor porpoise, the abundance estimates used in the percentage of population were taken from inland Southeast Alaska waters. These abundance estimates have not been corrected for g(0) and are likely conservative, therefore it is expected for the proposed percentage of population that will be taken to be overestimated. In addition, high percentage totals for northern resident (20.7 percent) and western transient (24.7 percent) killer whales were based on the possibility that all 60 takes for killer whales would occur for each stock, which is a highly unlikely scenario.

Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily 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. The proposed project is not known to occur in an important subsistence hunting area. It is a developed area with regular marine vessel traffic. However, DOT&PF plans to provide advanced public notice of construction activities to reduce construction impacts on local residents, ferry travelers, adjacent businesses, and other users of the Tenakee Springs ferry terminal and nearby areas. This will include notification to local Alaska Native tribes that may have members who hunt marine mammals for subsistence. Of the marine mammals considered in this IHA application, only harbor seals are known to be used for subsistence in the project area. If any tribes express concerns regarding project impacts to subsistence hunting of marine mammals, further communication between will take place, including provision of any project information, and clarification of any mitigation and minimization measures that may reduce potential impacts to marine mammals.

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

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with NMFS' Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species.

NMFS is proposing to authorize take of western DPS Steller sea lions and Mexico DPS humpback whales, which are listed under the ESA. The Permit and Conservation Division has requested initiation of Section 7 consultation with NMFS' Alaska Regional Office for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.

As a result of these preliminary determinations, NMFS proposes to issue an IHA to ADOT&PF for conducting piling and drilling activities associated with improvements at the Tenakee Springs city dock and ferry terminal, in Tenakee Springs, Alaska provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

1. This Incidental Harassment Authorization (IHA) is valid from June 1, 2019 to May 31, 2020.

2. This IHA is valid only for in-water construction activities associated with improvements at the Tenakee Springs city dock and ferry terminal, in Tenakee Springs, Alaska.

3. General Conditions.

(a) A copy of this IHA must be in the possession of the ADOT&PF, its designees, work crew, and marine mammal monitoring personnel operating under the authority of this IHA.

(b) The species authorized for taking are humpback whale (Megaptera novaeangliae), killer whale (Orcinus orca), Harbor porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), Steller sea lion (Eumetopias jubatus), and harbor seal (Phoca vitulina) and minke whale (Balaenoptera acutorostrata).

(c) The taking, by Level B harassment only, is limited to the species/stocks listed in condition 3(b). See Table 1 for numbers of take authorized.

(d) For those marine mammals for which Level B take has not been requested, in-water pile installation/removal and drilling shall shut down immediately when the animals are sighted.

(e) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

(f) ADOT&PF shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team, and ADOT&PF staff prior to the start of all piling and drilling activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

(g) Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted.

4. Mitigation Measures.

The holder of this Authorization is required to implement the following mitigation measures:

(a) Shutdown Measures.

(i) For all pile driving/removal and drilling activities, ADOT&PF shall implement shutdown measures in which operations shall cease if a marine mammal enters or approaches a shutdown zone for which it is not permitted to be in during piling or drilling operations. Shutdown zones are defined below.

(ii) For all impact pile driving, vibratory pile driving/removal, and drilling the ADOT&PF shall implement a minimum shutdown zone of 100 meters around each pile (undergoing piling/drilling activities) for all species authorized for Level B take.

(iii) ADOT&PF shall implement a 200-meter radius shutdown zone for high- and low-frequency cetaceans (harbor porpoises, Dall's porpoises, minke whales, and humpback whales) during impact installation of 24-inch and 30-inch steel piles at a frequency of two or three piles per day.

(iv) ADOT&PF shall implement shutdown measures if the number of any allotted marine mammal Level B takes reaches the limit under the IHA and if such marine mammals are sighted within the vicinity of the project area and are approaching their respective Level A or Level B harassment zone.

(v) If a marine mammal comes within 10 meters of in-water, heavy machinery work other than pile driving or drilling (e.g., standard barges, tugboats), operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.

(b) ADOT&PF shall establish Level A and Level B harassment zones as shown in Tables 2 and 3.

(c) Soft Start for Impact Pile Driving

(i) At the start of any pile driving activities or when there has been downtime of 30 minutes or more without impact pile driving, the contractor shall initiate the driving with ramp-up procedures described below.

(ii) Soft start for impact hammers requires contractors to provide an initial set of strikes from the impact hammer at 40 percent energy, followed by no less than a 30-second waiting period. This procedure shall be conducted three times before impact pile driving begins.

(d) Use the minimum hammer energy needed to install piles.

(e) Drive piles with a vibratory hammer to the maximum extent practicable.

5. Monitoring.

The holder of this Authorization is required to conduct marine mammal monitoring during pile driving/removal and drilling activities. Monitoring and reporting shall be conducted in accordance with the Monitoring Plan.

(a) Pre-Activity Monitoring.

(i) Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 minutes or longer occurs, the observer(s) shall observe the shutdown and monitoring zones for a period of 30 minutes.

(ii) The shutdown zone shall be cleared when a marine mammal has not been observed within that zone for that 30-minute period.

(iii) If a marine mammal is observed within the shutdown zone, a soft-start can proceed if the animal is observed leaving the zone or has not been observed for 30 minutes (for cetaceans) or 15 minutes (for pinnipeds), even if visibility of Level B zone is impaired.

(iv) If the Level B harassment zone has been observed for 30 minutes and non-permitted species are not present within the zone, in-water construction can commence and work can continue even if visibility becomes impaired within the Level B zone.

(v) When a marine mammal permitted for Level B take is present in the Level B harassment zone, piling and drilling activities may begin and or continue and Level B take shall be recorded.

(vi) If the entire Level B zone is not visible while work continues, exposures shall be recorded and extrapolated based upon the amount of total observed exposures and the percentage of the Level B zone that was not visible.

(b) Monitoring shall be conducted by qualified protected species observers (PSOs), with minimum qualifications as described previously in the Monitoring and Reporting section.

(i) Two observers shall be on site to actively observe the shutdown and disturbance zones during all pile driving, removal, and drilling.

(ii) Observers shall use their naked eye with the aid of binoculars, and/or a spotting scope during all pile driving and extraction activities.

(iii) Monitoring location(s) shall be identified with the following characteristics:

1. Unobstructed view of pile being driven;

2. Unobstructed view of all water within the Level A zone (if applicable) and as much of the Level B harassment zone as possible for piles being driven.

(c) If waters exceed a sea-state, which restricts the PSOs ability to observe within the marine mammal shutdown zone (e.g., excessive wind or fog), pile installation and removal shall cease. Pile driving shall not be initiated until the entire shutdown zone is visible.

(d) Marine mammal location shall be determined using a rangefinder and a GPS or compass.

(e) Ongoing in-water pile installation may be continued during periods when conditions such as low light, darkness, high sea state, fog, ice, rain, glare, or other conditions prevent effective marine mammal monitoring of the entire Level B harassment zone. PSOs would continue to monitor the visible portion of the Level B harassment zone throughout the duration of driving activities.

(f) Post-construction monitoring shall be conducted for 30 minutes beyond the cessation of piling and drilling activities at end of day.

6. Reporting.

The holder of this Authorization is required to:

(a) Submit a draft report on all monitoring conducted under the IHA within ninety calendar days of the completion of marine mammal monitoring. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed, including the total number extrapolated from observed animals across the entirety of relevant monitoring zones A final report shall be prepared and submitted within thirty days following resolution of comments on the draft report from NMFS. This report must contain the following:

(i) Date and time a monitored activity begins or ends;

(ii) Construction activities occurring during each observation period;

(iii) Record of implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any;

(iv) Weather parameters (e.g., percent cover, visibility);

(v) Water conditions (e.g., sea state, tide state);

(vi) Species, numbers, and, if possible, sex and age class of marine mammals;

(vii) Description of any observable marine mammal behavior patterns;

(viii) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

(ix) Locations of all marine mammal observations; and

(x) Other human activity in the area.

(b) Reporting injured or dead marine mammals:

(i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, ADOT&PF shall immediately cease the specified activities and report the incident to the Office of Protected Resources (301-427-8401), NMFS, and the Alaska Regional Stranding Coordinator (907-271-1332), NMFS. The report must include the following information:

1. Time and date of the incident;

2. Description of the incident;

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

4. Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;

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

6. Fate of the animal(s); and

7. Photographs or video footage of the animal(s).

Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ADOT&PF to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF may not resume their activities until notified by NMFS.

(ii) In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), ADOT&PF shall immediately report the incident to the Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator, NMFS.

The report must include the same information identified in 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS shall work with ADOT&PF to determine whether additional mitigation measures or modifications to the activities are appropriate.

(iii) In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead observer 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), ADOT&PF shall report the incident to the Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. ADOT&PF shall provide photographs, video footage, or other documentation of the stranded animal sighting to NMFS.

7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

The meeting will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen to the meeting by webinar. The meeting agenda may change to accommodate other AAC priorities. For agenda updates and instructions to access the meeting as a webinar (forthcoming), please visit the AAC committee site at: http://www.cftc.gov/About/CFTCCommittees/AgriculturalAdvisory/aac_meetings.

After the meeting, a transcript of the meeting will be published through a link on the CFTC's website, http://www.cftc.gov. All written submissions provided to the CFTC in any form will also be published on the CFTC's website.

The public meeting is physically accessible to people with disabilities. Persons requiring special accommodations to attend the meeting such as sign language interpretation or other ancillary aids because of a disability are asked to notify the contact person above at least ten (10) days in advance of the meeting.

(Authority: 5 U.S.C. app. 2 § 10(a)(2)).

Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency surveys. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. Accordingly, CPSC is publishing notice of the proposed collection of information set forth in this document.

The Commission is authorized under section 5(a) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2054(a), to conduct studies and investigations relating to the causes and prevention of deaths, accidents, injuries, illnesses, other health impairments, and economic losses associated with consumer products. Section 5(b) of the CPSA, 15 U.S.C. 2054(b), further provides that the Commission may conduct research, studies, and investigations on the safety of consumer products or test consumer products and develop product safety test methods and testing devices.

In 1992, the CPSC sponsored a national in-home survey to collect information on the number of residential smoke alarms in actual use in homes and to evaluate the operability of the sampled alarms. The results were published in the 1994 report, Consumer Product Safety Commission Smoke Detector Operability Survey Report on Findings. 1 Although the survey results were instrumental for many years in developing state and local codes and standards related to smoke alarms, subsequent changes in technology, installation codes, and state/local ordinances in the past 25 years have rendered the information outdated and less effective. Stakeholders' groups for fire loss prevention have identified a need for an updated national survey to increase the installation and maintenance of smoke alarms in the United States. In addition, installations of CO alarms have increased since 1992. Accordingly, CPSC seeks to update its data information collection related to smoke and CO alarm use through a new survey.

CPSC has entered into a contract with Eureka Facts to conduct a national in-home survey that will estimate the use and functionality of smoke and CO alarms in households, as well as user hazard perceptions regarding such alarms. The information collected from this survey will provide CPSC updated national estimates regarding the use of smoke alarms and CO alarms in households based on direct observation of alarm installations. The survey also will help CPSC identify the groups that do not have operable smoke alarms and/or CO alarms and the reasons they do not have such alarms. With this information, CPSC will be able to target better its messaging to improve consumer use and awareness regarding the operability of these alarms. In addition, the survey results will help to inform CPSC's recommendations to voluntary standards groups and state/local jurisdictions regarding their codes, standards, and/or regulations on smoke and CO alarms.

The survey seeks to collect information from 1,185 households within the United States, with an initial group of 50 households that will be processed and analyzed to identify any issues regarding the survey instrument and data collection procedures. The survey will use a mixed-mode, multistage approach to data collection. The data will be collected through two modes: Face-to-face, in-home interviews, and telephone surveys. The survey instrument will be programmed on Vovici software and will be administered via in-home interviews using a Computer-Assisted Personal Interview (CAPI) format, or by telephone, using a Computer-Assisted Telephone Interview (CATI) format.

Smoke alarms are more prevalent in homes than CO alarms are. Accordingly, during the screening process, if respondents indicate that they have a smoke alarm that may be tested directly, the respondents will be scheduled for an in-home interview for the full survey. However, if the smoke alarm cannot be tested directly because the household does not have a smoke alarm installed, or the smoke alarms are connected to a central alarm system that will notify the police or fire department, the respondent is not eligible for the in-home survey. Instead of the in-home survey, these households would be given a subset of survey questions about safety attitudes and demographics that would be collected over the telephone. For participants eligible for in-home interviews, a two-member survey team will ask household residents questions related to installed smoke and CO alarms. The survey team will then test residents' smoke and CO alarms. If any of the alarms do not work, the survey team will offer to replace them free of charge.

The survey interview will take between 20 to 60 minutes, depending on whether the survey is administered via the telephone (about 20 minutes) or by an in-home interview (60 minutes). We estimate the number of respondents to be 1,185. We estimate the total annual burden hours for respondents to be 1,422 hours based on the total time required to respond to the invitation, screener, and the actual survey. The monetized hourly cost is $35.64, as defined by the average total hourly cost to employers for employee compensation for employees across all occupations as of September 2017, reported by the Bureau of Labor Statistics. Accordingly, we estimate the total annual cost burden to all respondents to be $50,680. (1,422 hours × $35.64 = $50,680.). The total cost to the federal government for the contract to design and conduct the survey is $721,773.

The CPSC invites comments on these topics:

• Whether the proposed collection of information is necessary for the proper performance of CPSC's functions, including whether the information will have practical utility;

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

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

• Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.

Purpose of the Meeting: The purpose of the Board is to advise and assist the President, NPS, in educational and support areas, providing independent advice and recommendations on items such as, but not limited to, organizational management, curricula, methods of instruction, facilities, and other matters of interest.

Agenda: The agenda for Wednesday is as follows: 8:00 a.m.-8:30 a.m.: Welcome/Administrative Business, 8:30 a.m.-8:45 a.m.: Annual Ethics Update, 8:45 a.m.-9:45 a.m.: President's Update, 10:00 a.m.-11:00 a.m. :Provost's Update, 11:00 a.m.-11:45 a.m.: Meet with Faculty/Deans, 12:00 p.m.-1:00 p.m.: Meet with Students, 1:15 p.m.-2:30 p.m.: Campus Tour Classroom/Labs, 2:45 p.m.-3:45 p.m.: Board Discussion, 3:45 p.m.-4:30 p.m.: NPS Foundation Update. The agenda for Thursday is as follows: 7:30 a.m.-8:30 a.m.: Meet with faculty, 8:45 a.m.-9:45 a.m.: Professional Education Program Discussion, 10:00 a.m.-11:00 a.m.: Facilities Update, 11:15 a.m.-12:00 p.m.: Board Discussion, 12:00 p.m.-1:30 p.m.: Personal Time, 1:30 p.m.-4:30 p.m.: Board Discussion, 4:30 p.m. Meeting Adjourned.

Meeting Accessibility: The meeting is accessible to persons with disabilities.

Written Statements: For access, information, or to send written statements for consideration at the committee meeting contact Ms. Jaye Panza, Designated Federal Officer, Naval Postgraduate School, 1 University Circle, Monterey, CA 93943-5001 or by fax 831-656-2337 by April 20, 2018.

Purpose of the Council: The National Coal Council provides advice and recommendations to the Secretary of Energy on general policy matters relating to coal and the coal industry.

Purpose of Meeting: The 2018 Spring Meeting of the National Coal Council.

Attendees are requested to register in advance for the meeting at: http://www.nationalcoalcouncil.org/page-NCC-Events.html

Public Participation: The meeting is open to the public. If you would like to file a written statement with the Council, you may do so either before or after the meeting. If you would like to make oral statements regarding any item on the agenda, you should contact Joseph Giove, 301-903-4130 or [email protected] (email). You must make your request for an oral statement at least 5 business days before the meeting. Reasonable provision will be made to include oral statements on the scheduled agenda. The Chairperson of the Council will lead the meeting in a manner that facilitates the orderly conduct of business. Oral statements are limited to 10-minutes per organization and per person.

Minutes: A link to the transcript of the meeting will be posted on the NCC website at: http://www.nationalcoalcouncil.org/.

As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection.

Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

OMB Control No.: 3060-XXXX.

Title: Section 74.803(c) and (d), Wireless Microphones.

Form No.: N/A.

Type of Review: New collection.

Respondents: Business or other for-profit; Not-for-profit institutions.

Number of Respondents and Responses: 215 respondents; 2,365 responses.

Estimated Time per Response: 22 hours.

Frequency of Response: One-time and on occasion reporting requirements.

Obligation To Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 1, 4(i), 4(j), 7(a) 301, 302(a), 303(f), 307(e), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 302(a), 303(f), 307(e), and 332.

Total Annual Burden: 2,490 hours.

Total Annual Cost: $166,563.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: No information is requested that would require assurance of confidentiality.

Needs and Uses: The Commission will submit this information collection to OMB as a new collection after this 60-day comment period to obtain the full three-year clearance from them.

On July 14, 2017 the Federal Communications Commission released an Order on Reconsideration and Further Notice of Proposed Rulemaking, Promoting Spectrum Access for Wireless Microphone Operations; Amendment of Part 15 of the Commission's Rules for Unlicensed Operations in the Television Bands, Repurposed 600 MHz Band, 600 MHz Guard Bands and Duplex Gap, and Channel 37; Amendment of Part 74 of the Commission's Rules for Low Power Auxiliary Stations in the Repurposed 600 MHz Band and 600 MHz Duplex Gap; Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions; Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band; Public Interest Spectrum Coalition, Petition for Rulemaking Regarding Low Power Auxiliary Stations, Including Wireless Microphones, and the Digital Television Transition; Amendment of Parts 15, 74 and 90 of the Commission's Rules Regarding Low Power Auxiliary Stations, Including Wireless Microphones, Order on Reconsideration and Further Notice of Proposed Rulemaking, GN Docket No. 14-166, ET Docket No. 14-165, GN Docket No. 12-268, WT Docket No. 08-167, and ET Docket No. 10-24, in which the Commission permits certain qualifying professional theaters, music, and performing arts organizations to obtain a part 74 license that would allow them as licensees to obtain such interference protection in the TV bands and, when needed, also to operate in other spectrum bands available for licensed wireless microphone operations under part 74. In addition, with respect to licensed wireless microphone operations in other frequency bands, revisions to the channelization plan for licensed wireless microphone operations in the 169-172 MHz band, generally affirm but provide clarifications regarding the 30-megahertz limit placed on licensed wireless microphone users' access to spectrum in the 1435-1525 MHz band, and clarify coordination requirements and operational limitations for licensed wireless microphone operations in the 941.5-944 MHz band. With these various revisions and clarifications, the Commission finalized the technical rules for wireless microphone operations and, the Commission promotes our goal of accommodating wireless microphone users' needs through access to spectrum resources following the incentive auction and reconfiguration of the TV bands.

To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of Commission ICRs currently under review appears, look for the Title of this ICR and then click on the ICR Reference Number. A copy of the Commission's submission to OMB will be displayed.

OMB Control Number: 3060-0687.

Title: Access to Telecommunications Equipment and Services by Persons with Disabilities, CC Docket No. 87-124 and CG Docket No. 13-46.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Businesses or other for-profit entities; not-for-profit entities.

Number of Respondents and Responses: 331 respondents; 3,028 responses.

Estimated Time per Response: .25 hours (15 minutes) to 24 hours.

Frequency of Response: Annual and on-occasion reporting requirements; Third party disclosure requirement.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in section 710 of the Communications Act of 1934, as amended, 47 U.S.C. 610.

Total Annual Burden: 7,236 hours. Total Annual Cost: $991,618.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information from individuals.

Privacy Impact Assessment: No impact(s).

Needs and Uses: This notice and request for comments pertains to the extension of the currently approved information collection requirements concerning hearing aid compatibility (HAC) for wireline handsets used with the legacy telephone network, updated estimates of existing burdens that were included in the February 2015 PRA submission to OMB, and new collections related to HAC for wireline handsets used with advanced communications services (ACS), such as Voice over internet Protocol (VoIP). These handsets are known as ACS telephonic customer premises equipment (ACS telephonic CPE).

Beginning in the 1980s, the Commission adopted a series of regulations to implement statutory directives requiring wireline telephone handsets in the United States (for use with the legacy telephone network) to be hearing aid compatible. In 2010, the Twenty-First Century Communications and Video Accessibility Act (CVAA), Public Law 111-260, sec. 102, 710(b), 124 Stat. 2751, 2753 (CVAA) (codified at 47 U.S.C. 610(b)), amended by Public Law 111-265, 124 Stat. 2795 (technical corrections to the CVAA), amended section 710(b) of the Communications Act of 1934 to apply the HAC requirements to ACS telephonic CPE, including VoIP telephones. In accordance with this provision, the Commission adopted Access to Telecommunications Equipment and Services by Persons with Disabilities et al., Report and Order and Order on Reconsideration, FCC 17-135, released October 26, 2017, which amended the HAC rules to cover ACS telephonic CPE to the extent such devices are designed to be held to the ear and provide two-way voice communication via a built-in speaker.

The information collections contain third-party disclosure and labeling requirements. The information is used to inform consumers who purchase or use wireline telephone equipment whether the telephone is hearing aid compatible; to ensure that manufacturers comply with applicable regulations and technical criteria; to ensure that information about ACS telephonic CPE is available in a database administered by the Administrative Council for Terminal Attachments (ACTA); and to facilitate the filing of complaints about the ACS telephonic CPE.

• 47 CFR 68.224 requires that every non-hearing aid compatible wireline telephone used with the legacy wireline network that is offered for sale to the public contain in a conspicuous location on the surface of its packaging a statement that the telephone is not hearing aid compatible. If the handset is offered for sale without a surrounding package, then the telephone must be affixed with a written statement that the telephone is not hearing aid compatible. In addition, each handset must be accompanied by instructions in accordance with 47 CFR 62.218(b)(2).

• 47 CFR 68.300 requires that all wireline telephones used with the legacy wireline network that are manufactured in the United States (other than for export) or imported for use in the United States and that are hearing aid compatible have the letters “HAC” permanently affixed.

• New § 68.502(a) of the Commission's rules contains information collection requirements for ACS telephonic CPE that are similar to the HAC label and notice requirements in 47 CFR 68.224 and 68.300 (discussed above), i.e., the “HAC” labeling requirement for hearing aid compatible equipment, and the package information for non-hearing aid compatible equipment, apply to ACS telephonic CPE.

• New § 68.501 of the Commission's rules requires responsible parties to obtain certifications of their equipment by using a third-party Telecommunications Certification Body (TCB) or a Supplier's Declaration of Conformity. (A responsible party is the party, such as the manufacturer, that is responsible for the compliance of ACS telephonic CPE with the hearing aid compatibility rules and other applicable technical criteria. A Supplier's Declaration of Conformity is a procedure whereby a responsible party makes measurements or takes steps to ensure that CPE complies with technical standards, which results in a document by the same name.) Section 68.501 of the Commission's rules applies to ACS telephonic CPE rule sections defining the roles of TCBs and the uses of Supplier's Declarations of Conformity for wireline handsets used with the legacy telephone network.

• New § 68.504 of the Commission's rules requires information about ACS telephonic CPE to be included in a database administered by ACTA. (ACTA is an organization, previously created pursuant to FCC regulations, whose key function is to maintain a database of telephone equipment.) In addition, ACS telephonic CPE must be labeled as required by ACTA.

• New § 68.502(b)-(d) of the Commission's rules requires responsible parties to: Warrant that ACS telephonic CPE complies with applicable regulations and technical criteria; give the user instructions required by ACTA for ACS telephonic CPE that is hearing aid compatible; give the user a notice for ACS telephonic CPE that is not hearing aid compatible; and notify the purchaser or user of ACS telephonic CPE whose approval is revoked, that the purchaser or user must discontinue its use.

• New § 68.503 of the Commission's rules requires manufacturers of ACS telephonic CPE to designate an agent for service of process for complaints that may be filed at the FCC.

OMB Control No.: 3060-0678.

Title: Part 25 of the Federal Communications Commission's Rules: Governing the Licensing of, and Spectrum Usage by, Commercial Earth Stations and Space Stations.

Form Nos.: FCC Form 312; Schedule A; Schedule B; Schedule S; FCC Form 312-EZ; FCC Form 312-R.

Type of Review: Revision of a currently approved information collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 5,036 respondents; 5,094 responses.

Estimated Time per Response: 0.5-80 hours per response.

Frequency of Response: On occasion, one time, and annual reporting requirements; third-party disclosure requirement; recordkeeping requirement.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721.

Total Annual Burden: 35,622 hours.

Annual Cost Burden: $12,411,120.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: In general, there is no need for confidentiality with this collection of information. Certain information collected regarding international coordination of satellite systems is not routinely available for public inspection pursuant to 5 U.S.C. 552(b) and 47 CFR 0.457(d)(vii).

Needs and Uses: On September 27, 2017, the Commission released a Report and Order, FCC 17-122, titled, “Update to Parts 2 and 25 Concerning Non-Geostationary, Fixed-Satellite Service Systems and Related Matters.” In this Report and Order, the Commission updated and streamlined its rules governing satellite constellations that operate in the fixed-satellite service. Many of the amendments are substantive changes intended to give licensees greater operational flexibility. At the same time, however, many more applications for non-geostationary, fixed-satellite service systems have been filed, increasing the overall information collection burden.

The information collection requirements in this collection are needed to determine the technical, legal, and other qualifications of applicants and licensees to operate a radio station and to determine whether grant of an authorization serves the public interest, convenience and necessity. Without such information, the Commission could not determine whether to permit respondents to provide communications services in the United States. Therefore, the Commission would not be able to fulfill its statutory responsibilities in accordance with the Communications Act of 1934, as amended, and the obligations imposed on parties to the World Trade Organization Basic Telecom Agreement.

OMB Control Number: 3060-1033.

Title: Multi-Channel Video Program Distributor EEO Program Annual Report, FCC Form 396-C.

Form Number: FCC Form 396-C.

Type of Review: Extension of a currently approved collection.

Respondents: Business or other for-profit entities; Not-for-profit institutions.

Number of Respondents and Responses: 2,200 respondents and 2,620 responses.

Frequency of Response: Recordkeeping requirement; Once every five year reporting requirement; Annual reporting requirement.

Estimated Time per Response: 10 minutes—2.5 hours.

Total Annual Burden: 3,187 hours.

Total Annual Cost to Respondents: None.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority is contained in Sections 154(i), 303 and 634 of the Communications Act of 1934, as amended.

Nature and Extent of Confidentiality: There is no assurance of confidentiality provided to respondents.

Privacy Impact Assessment: No impact(s).

Needs and Uses: The FCC Form 396-C is a collection device used to assess compliance with the Equal Employment Opportunity (EEO) program requirements by Multi-channel Video Programming Distributors (“MPVDs”). It is publicly filed to allow interested parties to monitor a “MPVD's” compliance with the Commission's EEO requirements. All “MVPDs” must file annually an EEO report in their public file detailing various facts concerning their outreach efforts during the preceding year and the results of those efforts. “MVPDs” will be required to file their EEO public file report for the preceding year as part of the in-depth “MVPD” investigation conducted once every five years.

Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for March 13, 2018), on the World Wide Web, at https://www.ftc.gov/news-events/commission-actions.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 12, 2018. Write “In the Matter of Nectar Brand LLC, a limited liability company, also doing business as Nectar Sleep; DreamCloud, LLC; and DreamCloud Brand LLC” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at https://www.ftc.gov/policy/public-comments.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/nectarbrandconsent by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that website.

If you prefer to file your comment on paper, write “In the Matter of Nectar Brand LLC, a limited liability company, also doing business as Nectar Sleep; DreamCloud, LLC; and DreamCloud Brand LLC” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

Because your comment will be placed on the publicly accessible FTC website at https://www.ftc.gov, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential”—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the public FTC website—as legally required by FTC Rule 4.9(b)—we cannot redact or remove your comment from the FTC website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the FTC website at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before April 12, 2018. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Nectar Brand LLC, also d/b/a Nectar Sleep; Dreamcloud, LLC; and Dreamcloud Brand LLC (“respondent”).

The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.

This matter involves respondent's marketing, sale, and distribution of mattresses with claims that the products are assembled in the United States.

According to the FTC's complaint, respondent represented that its products are “assembled in the USA.” In fact, the respondent's mattresses are wholly imported. Therefore, this representation was false or misleading. Based on the foregoing, the complaint alleges that respondent engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act.

The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts and practices in the future. Consistent with the FTC's Enforcement Policy Statement on U.S. Origin Claims, Part I prohibits respondent from making U.S.-origin claims for their products unless either: (1) The final assembly or processing of the product occurs in the United States, all significant processing that goes into the product occurs in the United States, and all or virtually all ingredients or components of the product are made and sourced in the United States; (2) a clear and conspicuous qualification appears immediately adjacent to the representation that accurately conveys the extent to which the product contains foreign parts, ingredients or components, and/or processing; or (3) for a claim that a product is assembled in the United States, the product is last substantially transformed in the United States, the product's principal assembly takes place in the United States, and United States assembly operations are substantial.

Part II prohibits respondent from making any country-of-origin claim about a product or service unless the claim is true, not misleading, and respondent has a reasonable basis substantiating the representation.

Parts III through V are reporting and compliance provisions. Part III requires the filing of compliance reports within one year after the order becomes final and within 14 days of any change that would affect compliance with the order. Part IV requires respondent to maintain certain records, including records necessary to demonstrate compliance with the order. Part V requires respondent to submit additional compliance reports when requested by the Commission and to permit the Commission or its representatives to interview respondent's personnel.

Finally, Part VI is a “sunset” provision, terminating the order after twenty (20) years, with certain exceptions.

The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to the OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

The OMB is particularly interested in comments that will help:

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 estimate 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; and

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 submissions of responses.

5. Assess information collection costs.

Women's Health Needs Study: The Health of U.S.-Resident Women from Countries with Prevalent Female Genital Mutilation/Cutting (FGM/C)—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).

Female Genital Mutilation/Cutting (FGM/C) is a practice common in many countries in parts of Asia, Africa and the Middle East that can have severe, deleterious health consequences for women and girls. Recent studies suggest that more than 500,000 women and girls in the United States may have been cut or be at risk for FGM/C based on whether women or their mothers are from countries with high prevalence of FGM/C. However, this estimate was derived using indirect techniques that do not account for the differing characteristics of women in the country of origin versus those who have migrated to the United States, or any other factors that are likely to affect the prevalence of FGM/C. Additional major knowledge gaps regarding FGM/C in the United States include: The prevalence of FGM/C in selected communities in the United States with high concentrations of residents from countries where FGM/C is prevalent; women's attitudes about continuance of the practice; and the health characteristics and needs of women living in the United States who have experienced FGM/C or are at risk for FGM/C.

This study aims to capture information on women's history of FGM/C, their experiences with health care services, and their attitudes about continuation of the FGM/C practice. Findings from this study will be used to identify public health needs of women and communities in the United States that are affected by FGM/C, to formulate public health strategies to meet identified needs, and to inform prevention efforts.

The proposed information collection will include piloting and conducting a full-scale survey of the health experiences and needs of women who live in selected communities in the United States with high concentrations of residents from countries where FGM/C is widely practiced. The pilot study will be conducted during the first year of this project and will be used to assess the feasibility of sampling and recruiting methods for a hard-to-reach population on a sensitive topic. Based on findings from the pilot, a change request, including necessary translations, will be submitted to conduct the full study during the second and third year of this project. The full study is planned to be implemented in up to five community sites in the United States. The estimated annualized burden over the three years of this project is 311 hours.

There are no costs to respondents other than their time to participate.

Notice of this meeting is in compliance with the Federal Advisory Committee Act (Title 5, U.S.C. Appendix). The Great Lakes Pilotage Advisory Committee is established under the authority of 46 U.S.C. 9307, and makes recommendations to the Secretary of Homeland Security and the Coast Guard on matters relating to Great Lakes pilotage, including review of proposed Great Lakes pilotage regulations and policies.

(1) Introduction.

(2) Roll call of Committee members and determination of a quorum.

(3) Regulations Reform Subcommittee Report.

(4) Discussion of Regulatory Reform Task #01-17—Input to Support Regulatory Reform of U.S. Coast Guard Regulations—Executive Orders 13771 and 13783.

(5) Public Comment period.

(6) Formulate recommendation regarding Task #01-17.

A copy of all meeting documentation will be available at http://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Marine-Transportation-Systems-CG-5PW/Office-of-Waterways-and-Ocean-Policy/Office-of-Waterways-and-Ocean-Policy-Great-Lakes-Pilotage-Div/ by April 4, 2018. Alternatively, you may contact Mr. Todd Haviland as noted in the FOR FURTHER INFORMATION CONTACT section above.

There will be a public comment period during the meeting. Speakers are requested to limit their comments to 3 minutes and keep their remarks to the topic of the Regulation Reform. Please note that the public comment period may end before the period allotted, following the last call for comments. Contact the individual listed in the FOR FURTHER INFORMATION CONTACT section above to register as a speaker.

The National Boating Safety Advisory Council is a Federal advisory committee which operates under the provisions of Federal Advisory Committee Act, (Title 5 U.S.C., Appendix). It was established under the authority of 46 United States Code 13110 and advises the U.S. Coast Guard on boating safety regulations and other major boating safety matters. The Council usually meets at least twice each year at a location selected by the U.S. Coast Guard. It may also meet for extraordinary purposes. Subcommittees or working groups may also meet to consider specific issues.

Each member serves for a term of three years. Members may be considered to serve a maximum of two consecutive full terms. All members serve at their own expense and receive no salary, or other compensation from the Federal Government. The exception to this policy is when attending National Boating Safety Advisory Council meetings; members may be reimbursed for travel expenses and provided per diem in accordance with Federal Travel Regulations.

We will consider applications for the following seven positions that will be vacant on January 1, 2019:

• Two representatives of State officials responsible for State boating safety programs;

• Two representatives of recreational boat and associated equipment manufacturers; and

• Three representatives of national recreational boating organizations or the general public.

If you are selected as a member from the general public, you will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18, United States Code. Applicants for appointment as a Special Government Employee are required to complete a Confidential Financial Disclosure Report (OGE Form 450). The U.S. Coast Guard may not release the reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a). Only the Designated U.S. Coast Guard Ethics Official or his or her designee may release a Confidential Financial Disclosure Report. Applicants can obtain this form by going to the website of the Office of Government Ethics (www.oge.gov) or by contacting the individual listed above in FOR FURTHER INFORMATION CONTACT. Applications for a member drawn from the general public must be accompanied by a completed OGE Form 450.

Registered lobbyists are not eligible to serve on federal advisory committees in an individual capacity. See “Revised Guidance on Appointment of Lobbyists to Federal Advisory Committees, Boards and Commissions” (79 FR 47482, August 13, 2014). The position we list for a member from the general public would be someone appointed in their capacity and would be designated as a Special Government Employee as defined in section 202(a) of Title 18, U.S.C. Registered lobbyists are lobbyist as defined in 2 U.S.C. 1602 who are required by 2 U.S.C 1603 to register with the Secretary of the Senate and the Clerk of the House Representative.

Applicants are considered for membership on the basis of their particular expertise, knowledge, and experience in recreational boating safety. In addition to recreational boating safety experience, the U.S. Coast Guard is particularly interested in applicants who also have experience developing and implementing national media outreach campaigns designed to influence the decision-making of targeted audiences. The vacancies announced in this notice apply to membership positions that become vacant on January 1, 2019. Appointments for the 2017 and 2018 vacancies remain pending. Individuals who have applied for National Boating Safety Advisory Council membership in any prior years are asked to re-submit a complete application if the individual wishes to apply for any of the vacancies announced in this notice.

To be eligible, applicants should have experience in one of the categories listed in the SUPPLEMENTARY INFORMATION section.

The Department of Homeland Security does not discriminate in selection of Council members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.

If you are interested in applying to become a member of the Council, send your cover letter and resume to Mr. Jeff Ludwig, Alternate Designated Federal Officer of the National Boating Safety Advisory Council via one of the transmittal methods in the ADDRESSES section by the deadline in the DATES section of this notice. All email submittals will receive email receipt confirmation.

The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them unable to comply with the light, shape, or sound signal provisions of the 72 COLREGS. Under statutory law 1 and Coast Guard regulation,2 the vessel's owner, builder, operator, or agent of those vessels may apply for a certificate of alternative compliance (COAC).3 For vessels of special construction, the cognizant Coast Guard District Office determines whether the vessel for which the COAC is sought complies as closely as possible with the 72 COLREGS, and decides whether to issue the COAC which must specify the required alternative installation. If the Coast Guard issues a COAC, under the governing statute 4 and regulations,5 the Coast Guard must publish notice of this action. Once issued, a COAC remains valid until information supplied in the COAC application or the COAC terms become inapplicable to the vessel.

The First District Prevention Department, U.S. Coast Guard, certifies that the NOAA Research Vessel FERDINAND R. HASSLER, ON 9478559 is a vessel of special construction or purpose, and that, with respect to the position of the vessels side light, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS, without interfering with the normal operation, construction, or design of the vessel. The First District Prevention Department further finds and certifies that the vessel's sidelights, located in a position 15′3″ forward of frame 14 and 5′3″ below the top of the bridge/02 Deck mounted to the bridge wing, are in the closet possible compliance with the applicable provisions of the 72 COLREGS.6

This notice is issued under authority of 33 U.S.C. 1605(c) and 33 CFR 81.18.

Background

Section 604 of the Manufactured Housing Improvement Act of 2000 (Pub. L. 106-569) amended the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5401-5426) (Act) to require the establishment of the MHCC, a federal advisory committee, to: (1) Provide periodic recommendations to the Secretary to adopt, revise, and interpret the manufactured housing construction and safety standards; and (2) to provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement manufactured housing regulations, including regulations specifying the permissible scope and conduct of monitoring. The Act authorizes the Secretary to appoint a total of twenty-two members to the MHCC. Twenty-one members have voting rights; the twenty-second member represents the Secretary and is a non-voting position. Service on the MHCC is voluntary. Travel and per diem for meetings is provided in accordance with federal travel policy pursuant to 5 U.S.C. 5703.

HUD seeks highly qualified and motivated individuals who meet the requirements set forth in the Act to serve as voting members of the MHCC for up to two terms of three years. The MHCC expects to meet at least one to two times annually. Meetings may take place by conference call or in person. Members of the MHCC undertake additional work commitments on subcommittees and task forces regarding issues under deliberation.

Members of the Consensus Committee are appointed to serve in one of three member categories. Nominees will be appointed to fill voting member vacancies in the following categories:

1. Producers—Seven producers or retailers of manufactured housing.

2. Users—Seven persons representing consumer interests, such as consumer organizations, recognized consumer leaders, and owners who are residents of manufactured homes.

3. General Interest and Public Officials—Seven general interest and public official members.

The Act provides that the Secretary shall ensure that all interests directly and materially affected by the work of the MHCC have the opportunity for fair and equitable participation without dominance by any single interest; and may reject the appointment of any one or more individuals in order to ensure that there is not dominance by any single interest. For purposes of this determination, dominance is defined as a position or exercise of dominant authority, leadership, or influence by reason of superior leverage, strength, or representation.

Additional requirements governing appointment and member service include:

(1) Nominees appointed to the User category, and three of the individuals appointed to the General Interest and Public Official category shall not have a significant financial interest in any segment of the manufactured housing industry; or a significant relationship to any person engaged in the manufactured housing industry.

(2) Each member serving in the User category shall be subject to a ban disallowing compensation from the manufactured housing industry during the period of, and during the one year following, his or her membership on the MHCC.

(3) Nominees selected for appointment to the MHCC shall be required to provide disclosures and certifications regarding conflict-of-interest and eligibility for membership prior to finalizing an appointment.

All selected nominees will be required to submit certifications of eligibility under the foregoing criteria as a prerequisite to final appointment.

The MHCC's role is solely advisory to the Secretary on the subject matter described above.

The MHCC is subject to the requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix), 41 CFR parts 101-6 and 102-3 (the FACA Final Rule), and to the Presidential Memorandum, dated June 18, 2010, directing all heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees and other boards and commissions. The June 18, 2010, Presidential Memorandum authorized the Director of the Office of Management and Budget (OMB) to issue guidance to implement this policy. On August 13, 2014 (79 FR 47482), OMB issued guidance regarding the prohibition against appointing or re-appointing federally registered lobbyists to clarify that the ban applies to persons serving on advisory committees, boards, and commissions in their individual capacity and does not apply if they are specifically appointed to represent the interests of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, environmental groups, etc.), or state or local governments.

Consensus Committee members serve at the discretion of the Secretary or for a three-year term and for up to two terms.

Individuals seeking nomination to the MHCC should submit detailed information documenting their qualifications as addressed in the Act and this Notice. Individuals may nominate themselves. HUD recommends that the application form be accompanied by a resume.

The Department will only make appointments from nominations submitted in response to this Notice. Individuals that may have applied replied in response to prior requests for nominations and who are still interested in being appointed must re-apply pursuant to this notice. To be considered for appointment to a position of an MHCC member whose term expired in December of 2017, the nomination should be submitted by April 19, 2018.

Appointments will be made at the discretion of the Secretary.

Arizona Electric Power Cooperative (AEPCO) (AEPCO; applicant) applied to the U.S. Fish and Wildlife Service (FWS) for a survival enhancement permit (permit; TE 00948C-0) under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; Act), section 10(a)(1)(A). The requested permit, which would be in effect for up to 25 years, if granted, would authorize Sonoran desert tortoise (Gopherus morafkai) incidental take.

The candidate conservation agreement with assurances (CCAA) and associated permit would include portions of the following Arizona counties where the AEPCO transmission system occurs: Cochise, La Paz, Mohave, Pima, Pinal, and Yavapai. The CCAA and associated permit would cover AEPCO's Sonoran desert tortoise conservation activities in association with their ongoing operation, repair, and maintenance activities on transmission structures, transmission lines, substations, and unpaved access roads, both within and outside AEPCO rights-of-way and easements (covered activities; AEPCO CCAA Figures 1-2). These activities include transmission line access road use, maintenance, repair, and reconstruction; manual, mechanical, and herbicide treatment to control vegetation hazards; and maintaining transmission line structures, conductors, and associated equipment. The survival enhancement permit would provide AEPCO assurances that the conservation to which they have committed is all we will require of them if the species is listed, and will provide incidental take coverage for their conservation activities and ongoing operations and maintenance activities, as described above.

The FWS also announces the availability of a draft determination that the proposed permit action qualifies as a categorical exclusion pursuant to NEPA. Therefore, we propose that this project's survival enhancement permit is “low effect” and qualifies for categorical exclusion under the NEPA, as 43 CFR 46.205 and 43 CFR 46.210 provide. We are making the permit application package, including the draft NEPA screening form, and draft AEPCO CCAA, available for public review and comment.

Survival enhancement of permits issued for CCAAs encourage non-Federal landowners, including non-Federal operators holding easements on private lands, to implement conservation measures for species that are, or are likely to become, candidates for Federal listing as endangered or threatened under the Act, by assuring landowners/operators they will not be subjected to increased property use restrictions if the covered species becomes listed in the future. Application requirements and survival enhancement of permit issuance criteria for CCAAs are in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d). The joint policy on CCAAs was published in the Federal Register with the Department of Commerce's National Oceanic and Atmospheric Administration, National Marine Fisheries Service on December 27, 2016 (80 FR 95164; December 27, 2016).

The proposed action is the FWS issuing AEPCO a permit for covered activities in the permit area for up to 25 years, pursuant to the Act, section 10(a)(1)(A). The Permit would cover Sonoran desert tortoise “take” associated with covered activities occurring within the permit area.

The proposed AEPCO CCAA commits AEPCO to implement conservation measures to reduce threats and contribute to furthering Sonoran desert tortoise conservation on lands AEPCO uses while implementing covered activities within the tortoise's Arizona range.

To meet section 10(a)(1)(A) permit requirements, the applicant developed and proposes to implement the AEPCO CCAA, which describes the conservation measures AEPCO has agreed to undertake to reduce tortoise threats, ensure that incidental take will not appreciably reduce the likelihood the species can survive and recover in the wild, and benefit Sonoran desert tortoises and their habitats.

Expected benefits include, but may not be limited to: Developing and delivering personnel and contractors a training and awareness program, along with annual refreshers to avoid and minimize Sonoran desert tortoise take; limiting the amount of new disturbance within tortoise habitat; providing early notification of new buffelgrass infestations to afford opportunity for buffelgrass management to improve Sonoran desert tortoise habitat, and; limiting taking habitat, eggs, and female Sonoran desert tortoises. Additionally, through the CCAA's reporting requirements, the FWS will receive additional tortoise distribution data to add to the overall Sonoran desert tortoise knowledge base, and use it to further species conservation. Since the Sonoran desert tortoise is not federally listed, there is no regulatory requirement for AEPCO to implement a conservation program. Therefore, absent the CCAA, it is unlikely these benefits to the tortoise would be realized.

We will evaluate the permit application, associated documents, and comments we receive to determine whether the permit application meets the requirements of the Act, NEPA, and implementing regulations. If we determine that all requirements are met, we will approve the proposed CCAA and, should the species become listed as threatened or endangered under the Act in the future, the AEPCO permit under the Act, section 10(a)(1)(A), will become effective and provide Sonoran desert tortoise incidental take coverage through the remainder of the CCAA's 25-year duration. We will not make our final decision until after the comment period ends, and we will fully consider all comments we receive during the public comment period.

All comments we receive become part of the public record associated with this action. Requests for copies of comments will be handled in accordance with the Freedom of Information Act, NEPA, and Service and Department of the Interior policies and procedures. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

We provide this notice under the Act, section 10(c) and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA (42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR 1506.6).

Under the Endangered Species Act, as amended (16 U.S.C. 1531 et seq.; ESA), we, the U.S. Fish and Wildlife Service, invite the public to comment on an ITP application to take the federally listed American burying-beetle (Nicrophorus americanus) during oil and gas well field infrastructure geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning, as well as oil and gas gathering, transmission, and distribution pipeline infrastructure construction, maintenance, operation, repair, decommissioning, and reclamation in Oklahoma.

If approved, the permit would be issued to the applicant under the American Burying Beetle Amended Oil and Gas Industry Conservation Plan (ICP) Endangered Species Act Section 10(a)(1)(B) Permit Issuance in Oklahoma. The original ICP was approved on May 21, 2014, and the “no significant impact” finding notice was published in the Federal Register on July 25, 2014 (79 FR 43504). The draft amended ICP was made available for comment on March 8, 2016 (81 FR 12113), and approved on April 13, 2016. The ICP and the associated environmental assessment/finding of no significant impact are available on our website at http://www.fws.gov/southwest/es/oklahoma/ABBICP. However, we are no longer taking comments on these finalized, approved documents.

We invite local, State, Tribal, and Federal agencies, and the public to comment on the following application under the ICP, for incidentally taking the federally-listed American burying-beetle. Please refer to the appropriate permit number (TE66214C) when requesting application documents and when submitting comments. Documents and other information the applicant has submitted are available for review, subject to Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552) requirements.

Applicant requests a permit for oil and gas upstream and midstream production, including oil and gas well field infrastructure geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning, as well as oil and gas gathering, transmission, and distribution pipeline infrastructure construction, maintenance, operation, repair, decommissioning, and reclamation in Oklahoma.

Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

We provide this notice under the ESA, section 10(c) (16 U.S.C. 1531 et seq.) and its implementing regulations (50 CFR 17.22) and the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and its implementing regulations (40 CFR 1506.6).

Notice is hereby given that, pursuant to 54 U.S.C. 100506, the boundary of Congaree National Park is modified to include 100.77 acres of adjacent land acres identified as Tract 101-81. The boundary revision is depicted on Map No. 178/132,867 dated August 2017.

Specifically, 54 U.S.C. 100506 provides that, after notifying the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Secretary of the Interior is authorized to make this boundary revision upon publication of notice in the Federal Register. The Committees have been notified of this boundary revision. This boundary revision and subsequent acquisition of Tract 101-81 will enable the National Park Service to manage and protect significant resources located in the Congaree National Park.

Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:

1. Type of Information Collection: New collection.

2. The Title of the Form/Collection: Tribal Access Program Application.

3. The agency form number, if any, and the applicable component of the Department sponsoring the collection: There is no agency form number for this collection. The applicable component within the Department of Justice is Office of the Chief Information Officer.

4. Affected public who will be asked or required to respond, as well as a brief abstract: Tribal Governments. The U.S. Department of Justice (DOJ) launched the Tribal Access Program for National Crime Information (TAP) provide tribes access to national crime information systems for both civil and criminal purposes. DOJ has developed an application for use by federally recognized tribes interested in participating in TAP.

5. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: An estimated 50 respondents at 60 minutes each.

6. An estimate of the total public burden (in hours) associated with the collection: An estimated 50 burden hours.

If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.

This ICR seeks to extend PRA authority for the Forging Machines information collection. Under regulations 29 CFR 1910.218, it is mandatory for covered employers to conduct and to document periodic inspections of forging machines, guards, and point-of-operation protection devices and to mark manually controlled valves and switches. These requirements reduce workers' risks of death or serious injury by ensuring that forging machines used by them are in safe operating condition and that the workers are able to identify manually operated valves and switches. Occupational Safety and Health Act of 1970 sections 2, 6, and 8 authorize this information collection. See 29 U.S.C. 651, 655, and 657.

This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. The DOL obtains OMB approval for this information collection under Control Number 1218-0228.

OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2018. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the Federal Register on October 16, 2017 (82 FR 48119).

Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the ADDRESSES section within thirty (30) days of publication of this notice in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1218-0228. The OMB is particularly interested in comments that:

• 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;

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

• Enhance the quality, utility, and clarity of the information to be collected; and

• 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.

Agency: DOL-OSHA.

Title of Collection: Forging Machines.

OMB Control Number: 1218-0228.

Affected Public: Private Sector—not for profit institutions.

Total Estimated Number of Respondents: 27,700.

Total Estimated Number of Responses: 1,440,400.

Total Estimated Annual Time Burden: 192,053 hours.

Total Estimated Annual Other Costs Burden: $0.

Southern Nuclear Operating Company (the licensee) is a holder of two COLs, Nos. NPF-91 and NPF-92, issued to Southern Nuclear Operating Company, Inc.; Georgia Power Company; Oglethorpe Power Corporation; MEAG Power SPVM, LLC; MEAG Power SPVJ, LLC; MEAG Power SPVP, LLC; and the City of Dalton, Georgia, for construction and operation of VEGP, Units 3 and 4, located in Burke County, Georgia. The NRC has granted the licensee's request to withdraw its application dated July 29, 2016, as supplemented by letter dated January 5, 2017.

The proposed amendments would have added an additional license amendment process called an IAR to License Condition 2.D.(1) of the VEGP, Units 3 and 4, COLs. Based on the application and supplemental information the licensee provided, the licensee intended to use the proposed IAR process to obtain expedited approval of requested changes during construction in certain emergent conditions when the licensee finds that a construction activity is not in conformance with the licensing basis, but there is little or no safety significance, and the construction activity cannot be adjusted. The proposed IAR process would have been used to allow construction to proceed until the nonconforming condition is resolved when there is insufficient time to conduct a detailed, technical safety analysis to support a license amendment request, or the preliminary amendment request process was already approved by the Commission.

The NRC staff issued an initial Federal Register notice of opportunity to request a hearing on this license amendment request and a proposed no significant hazards consideration determination on October 11, 2016 (81 FR 70184).

On December 22, 2017, the President signed Executive Order (E.O.) 13819 (82 FR 61431), which implemented the January 2018 pay adjustments. The Executive order provides an overall average pay increase of 1.9 percent for the statutory pay systems. This is consistent with the President's alternative pay plan issued under 5 U.S.C. 5303(b) and 5304a on August 31, 2017.

The publication of this notice satisfies the requirement in Section 5(b) of E.O. 13819 that the Office of Personnel Management (OPM) publish appropriate notice of the 2018 locality payments in the Federal Register.

Schedule 1 of E.O. 13819 provides the rates for the 2018 General Schedule (GS) and reflects a 1.4 percent increase from 2017. Executive Order 13819 also includes the percentage amounts of the 2018 locality payments. (See Section 5 and Schedule 9 of Executive Order 13819.)

General Schedule employees receive locality payments under 5 U.S.C. 5304. Locality payments apply in the United States (as defined in 5 U.S.C. 5921(4)) and its territories and possessions. In 2018, locality payments ranging from 15.37 percent to 39.28 percent apply to GS employees in the 47 locality pay areas. The 2018 locality pay area definitions can be found at: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2018/locality-pay-area-definitions/.

The 2018 locality pay percentages became effective on the first day of the first pay period beginning on or after January 1, 2018 (January 7, 2018). An employee's locality rate of pay is computed by increasing his or her scheduled annual rate of pay (as defined in 5 CFR 531.602) by the applicable locality pay percentage. (See 5 CFR 531.604 and 531.609.)

Executive Order 13819 establishes the new Executive Schedule (EX), which incorporates a 1.4 percent increase required under 5 U.S.C. 5318 (rounded to the nearest $100). By law, Executive Schedule officials are not authorized to receive locality payments.

Executive Order 13819 establishes the 2018 range of rates of basic pay for members of the Senior Executive Service (SES) under 5 U.S.C. 5382. The minimum rate of basic pay for the SES is $126,148 in 2018. The maximum rate of the SES rate range is $189,600 (level II of the Executive Schedule) for SES members who are covered by a certified SES performance appraisal system and $174,500 (level III of the Executive Schedule) for SES members who are not covered by a certified SES performance appraisal system.

The minimum rate of basic pay for the senior-level (SL) and scientific and professional (ST) rate range was increased by 1.4 percent ($126,148 in 2017), which is the amount of the across-the-board GS increase. The applicable maximum rate of the SL/ST rate range is $189,600 (level II of the Executive Schedule) for SL or ST employees who are covered by a certified SL/ST performance appraisal system and $174,500 (level III of the Executive Schedule) for SL or ST employees who are not covered by a certified SL/ST performance appraisal system. Agencies with certified performance appraisal systems for SES members and employees in SL and ST positions must also apply a higher aggregate limitation on pay—up to the Vice President's salary ($243,500 in 2018.)

Note that Section 20101 of subdivision 3 of division B of the Bipartisan Budget Act of 2018 (Pub. L. 115-123, February 9, 2018) amended the Continuing Appropriations Act, 2018, division D of Public Law 115-56. Under section 101(a) of that Act, the authority and conditions provided in FY 2017 appropriations laws continue to apply during the period specified in the Act, as amended. This language means that the freeze on the payable pay rates for the Vice President and certain senior political appointees at 2013 levels—as provided in section 738 of division E of the Consolidated Appropriations Act, 2017, Public Law 115-31, May 5, 2017—continues through March 23, 2018, or the date of enactment of new appropriations legislation. Future Congressional action will determine whether the pay freeze continues beyond March 23, 2018. Until such time, the OPM guidance on the 2017 pay freeze for certain senior political officials is generally applicable in applying the pay freeze in 2018. (See OPM guidance memoranda CPM 2017-05 at https://www.chcoc.gov/content/continued-pay-freeze-certain-senior-political-officials, CPM 2018-02 at https://www.chcoc.gov/content/continued-pay-freeze-certain-senior-political-officials-1, CPM 2018-03 at https://www.chcoc.gov/content/pay-and-leave-employees-affected-lapse-appropriations-and-continued-pay-freeze-certain, and CPM 2018-05 at https://www.chcoc.gov/content/pay-employees-affected-lapse-appropriations-and-continued-pay-freeze-certain-senior.)

Executive Order 13819 provides that the rates of basic pay for administrative law judges (ALJs) under 5 U.S.C. 5372 are increased by 1.4 percent, rounded to the nearest $100 in 2018. The rate of basic pay for AL-1 is $164,200 (equivalent to the rate for level IV of the Executive Schedule). The rate of basic pay for AL-2 is $160,100. The rates of basic pay for AL-3/A through 3/F range from $109,600 to $151,700.

The rates of basic pay for members of Contract Appeals Boards are calculated as a percentage of the rate for level IV of the Executive Schedule. (See 5 U.S.C. 5372a.) Therefore, these rates of basic pay are increased by 1.4 percent in 2018.

On November 22, 2017, OPM issued a memorandum on behalf of the President's Pay Agent (the Secretary of Labor and the Directors of the Office of Management and Budget and OPM) that continues GS locality payments for ALJs and certain other non-GS employee categories in 2018. By law, EX officials, SES members, employees in SL/ST positions, and employees in certain other equivalent pay systems are not authorized to receive locality payments. (Note: An exception applies to certain grandfathered SES, SL, and ST employees stationed in a nonforeign area on January 2, 2010. See CPM 2009-27 at https://www.chcoc.gov/content/nonforeign-area-retirement-equity-assurance-act.) The memo is available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/continuation-of-locality-payments-for-non-general-schedule-employees-november-22-2017.pdf.

On December 22, 2017, OPM issued a memorandum (CPM 2017-18) on the January 2018 pay adjustments. (See https://www.chcoc.gov/content/january-2018-pay-adjustments.) The memorandum transmitted Executive Order 13819 and provided the 2018 salary tables, locality pay areas and percentages, and information on general pay administration matters and other related information. The “2018 Salary Tables” posted on OPM's website at http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/ are the official rates of pay for affected employees and are hereby incorporated as part of this notice.

As required by the Paperwork Reduction Act of 1995 OPM is soliciting comments for this collection. The information collection (OMB No. 3206-0121) was previously published in the Federal Register on November 3, 2017, at 82 FR 51306, allowing for a 60-day public comment period. No comments were received for this collection. The purpose of this notice is to allow an additional 30 days for public comments. The Office of Management and Budget is particularly interested in comments that:

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 estimate 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; and

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 submissions of responses.

OPM Form 1496A is used by eligible former Federal employees to apply for a deferred Civil Service annuity.

Agency: Retirement Operations, Retirement Services, Office of Personnel Management.

Title: Application for Deferred Retirement (for persons separated on or after October 1, 1956).

OMB Number: 3206-0121.

Frequency: On occasion.

Affected Public: Individual or Households.

Number of Respondents: 2,800.

Estimated Time per Respondent: 1 hour.

Total Burden Hours: 2,800.

The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling (202) 551-8090.

1. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).1 Fund shares will be purchased and redeemed at their NAV in Creation Units (other than pursuant to a distribution reinvestment program, as described in the application). All orders to purchase Creation Units and all redemption requests will be placed by or through an “Authorized Participant,” which will have signed a participant agreement with the Distributor. Shares will be listed and traded individually on a national securities exchange, where share prices will be based on the current bid/offer market. Certain Funds may operate as Feeder Funds in a master-feeder structure. Any order granting the requested relief would be subject to the terms and conditions stated in the application.

2. Each Fund will hold investment positions selected to correspond closely to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the Underlying Index.2

3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis, or issued in less than Creation Unit size to investors participating in a distribution reinvestment program. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.

4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units (other than pursuant to a dividend reinvestment program).

5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.

6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.

7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.

8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions, and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.3 The purchase of Creation Units by a Fund of Funds directly from a Fund will be accomplished in accordance with the policies of the Fund of Funds and will be based on the NAVs of the Funds.

9. Applicants also request relief to permit a Feeder Fund to acquire shares of another registered investment company managed by the Adviser having substantially the same investment objectives as the Feeder Fund (“Master Fund”) beyond the limitations in section 12(d)(1)(A) and permit the Master Fund, and any principal underwriter for the Master Fund, to sell shares of the Master Fund to the Feeder Fund beyond the limitations in section 12(d)(1)(B).

10. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.