Federal Register Vol. 83, No.85,

Title of Collection: NIFA Proposal Review Process.

OMB Control Number: 0524-0041.

Expiration Date of Current Approval: November 30, 2018.

Type of Request: Revision of a currently approved information collection for three years.

Abstract: The National Institute of Food and Agriculture (NIFA) is responsible for performing a review of proposals submitted to NIFA competitive award programs in accordance with section 103(a) of the Agricultural Research, Extension, and Education Reform Act of 1998, 7 U.S.C. 7613(a). Reviews are undertaken to ensure that projects supported by NIFA are of high quality, and are consistent with the goals and requirements of the funding program. Proposals submitted to NIFA undergo a programmatic evaluation to determine worthiness of Federal support. The evaluations consist of a peer panel review and may also entail an assessment by Federal employees and electronically submitted (ad-hoc) reviews in the Peer Review System.

Need and Use of the Information: As part of our panel process NIFA is required to “maintain a balanced composition of reviewers with regard to minority and female representation and an equitable age distribution”, 7 CFR 3430.33. In addition, the information collected from the form is necessary to show compliance with nondiscrimination laws such as 7 CFR 15. Currently, we do not have a vehicle to collect this information for panelists, as the approved Research & Related Personal Data form, OMB number 4040-0001, is specific to applicants. Thus, we are seeking a revision of the currently approved Research & Related Personal Data form, OMB Number 4040-0001, tailoring it for panelists.

Once collected, the information would be stored in a secure data base and referenced when recruiting panelists to ensure panels meet diversity requirements as stated in 7 CFR 3430.33. The information would also be aggregated for use in an annual report on the demographics of NIFA's applicants and panelists to ensure compliance and referenced as needed in cases of a discrimination complaint. The data would remain strictly confidential and would only be available to NIFA staff.

Estimate of Burden: NIFA estimates that between one minute to ten minutes may be required to fill out the form. It is estimated that approximately five minutes are required to fill out the form on average. NIFA estimates it has 2,000 panelists each year. The total annual burden on panelists is 167 hours.

Comments are invited on: (a) 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; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to 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.

All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.

The CSAC advises the Census Bureau's Director on the full range of Census Bureau programs and activities. The CSAC provides scientific and technical expertise from the following disciplines: Demography, economics, geography, psychology, statistics, survey methodology, social and behavioral sciences, information technology and computing, marketing, and other fields of expertise, as appropriate, to address Census Bureau program needs and objectives.

The CSAC will function solely as an advisory body and in compliance with provisions of the Federal Advisory Committee Act. Pursuant to subsection 9(c) of the Federal Advisory Committee Act, 5 U.S.C., App., as amended, copies of this charter were furnished to the Library of Congress and to the following committees of Congress:

• Senate Committee on Appropriations;

• Senate Committee on Commerce, Science and Transportation;

• Senate Committee on Finance;

• Senate Committee on Homeland Security and Governmental Affairs;

• House Committee on Appropriations; and,

• House Committee on Oversight and Government Reform.

List of Petitions Received by EDA for Certification of Eligibility To Apply for Trade Adjustment Assistance [04/04/2018 through 04/15/2018] Firm name Firm address Date

Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.

Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

Background

On January 2, 2018, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the AD order on potassium permanganate from China for the period January 1, 2017, through December 31, 2017.1 On January 26, 2018, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), Carus Corporation (the petitioner), requested a review of the AD order with respect to the following two companies: (1) Chongqing Changyuan Group Limited; and (2) Pacific Accelerator Ltd.2 On March 16, 2018, in accordance with section 751(a) of the Act and 19 CFR 351.221(c)(1)(i), Commerce initiated an administrative review of the AD order on potassium permanganate from China with respect to these companies.3 On March 28, 2018, the petitioner timely withdrew its request for an administrative review of both companies, Chongqing Changyuan Group Limited and Pacific Accelerator Ltd, named in the petitioner's Review Request.4 No other party requested a review.

Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication date of the notice of initiation of the requested review. The petitioner withdrew its request for review within the 90-day deadline. Because Commerce received no other requests for review of the above-referenced companies, and no other requests were made for a review of the AD order on potassium permanganate from China with respect to other companies, we are rescinding the administrative review covering the period January 1, 2017, through December 31, 2018, in full, in accordance with 19 CFR 351.213(d)(1).

Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of potassium permanganate from China during the POR at rates equal to the cash deposit rate for estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the Federal Register.

This notice serves as the only reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).

Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates.

All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.

If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the Federal Register. All submissions must be filed electronically at http://access.trade.gov in accordance with 19 CFR 351.303.1 Such submissions are subject to verification in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act). Further, in accordance with 19 CFR 351.303(f)(1)(i), a copy must be served on every party on Commerce's service list.

In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven days after the placement of the CBP data on the record of this review. Parties wishing to submit rebuttal comments should submit those comments five days after the deadline for the initial comments.

In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:

In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (e.g., treated as a single entity for purposes of calculating antidumping duty rates) require a substantial amount of detailed information and analysis, which often require follow-up questions and analysis. Accordingly, Commerce will not conduct collapsing analyses at the respondent selection phase of this review and will not collapse companies at the respondent selection phase unless there has been a determination to collapse certain companies in a previous segment of this antidumping proceeding (e.g., investigation, administrative review, new shipper review or changed circumstances review). For any company subject to this review, if Commerce determined, or continued to treat, that company as collapsed with others, Commerce will assume that such companies continue to operate in the same manner and will collapse them for respondent selection purposes. Otherwise, Commerce will not collapse companies for purposes of respondent selection. Parties are requested to (a) identify which companies subject to review previously were collapsed, and (b) provide a citation to the proceeding in which they were collapsed. Further, if companies are requested to complete the Quantity and Value (Q&V) Questionnaire for purposes of respondent selection, in general each company must report volume and value data separately for itself. Parties should not include data for any other party, even if they believe they should be treated as a single entity with that other party. If a company was collapsed with another company or companies in the most recently completed segment of this proceeding where Commerce considered collapsing that entity, complete Q&V data for that collapsed entity must be submitted.

The respondent selection procedures outlined in the February 23, 2018 notice initiating the sixth administrative review of the antidumping duty order on multilayered wood flooring (MLWF) from the People's Republic of China (China) covering the period 12/01/2016-11/30/2017,2 are revised as follows. With respect to the sixth administrative review of MLWF from China, the February 23, 2018 notice indicated that, in the event Commerce limits the number of respondents for individual examination, Commerce intended to select respondents based on CBP data for U.S. imports of MLWF from China during the period of review. Subsequently, Commerce placed the CBP data on the record of the sixth administrative review of MLWF from China, and solicited and received comments. However, as noted below, the China-wide entity, which is under review,3 was inadvertently excluded from the February 23, 2018 notice. Therefore, upon further consideration, to ensure parties are not disadvantaged by this inadvertent omission at this stage of the review, and in the event Commerce limits the number of respondents for individual examination, Commerce finds it appropriate to select respondents based on volume data contained in responses to quantity and value questionnaires. Further, Commerce intends to limit the number of Q&V questionnaires issued in the review based on the CBP data for U.S. imports already on the record. Parties will be given an additional period of time to comment on the CBP data used by Commerce to limit the number of Q&V questionnaires issued. Commerce invites comments regarding the CBP data and our intended respondent selection procedures within five days of the publication of this notice in the Federal Register. Commerce intends to issue the Q&V questionnaire to the top ten companies listed in the CBP data by volume, and additionally intends to issue a Q&V questionnaire to the China-wide entity, care of the Embassy of China in the United States. Parties subject to the review to which Commerce does not issue a Q&V questionnaire may file a response to the Q&V questionnaire if they desire to be included in the pool of companies from which Commerce will select mandatory respondents. The Q&V questionnaire will also be available on Commerce's website at http://trade.gov/enforcement/news.asp on the date of publication of this notice in the Federal Register. All responses to the Q&V questionnaire must be submitted by the applicable deadline noted therein.

Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when Commerce will exercise its discretion to extend this 90-day deadline, interested parties are advised that Commerce does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.

In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.

To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both de jure and de facto government control over export activities.

All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the certification, please follow the “Instructions for Filing the Certification” in the Separate Rate Certification. Separate Rate Certifications are due to Commerce no later than 30 calendar days after publication of this Federal Register notice. The deadline and requirement for submitting a Certification applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers who purchase and export subject merchandise to the United States.

Entities that currently do not have a separate rate from a completed segment of the proceeding 4 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. In addition, companies that received a separate rate in a completed segment of the proceeding that have subsequently made changes, including, but not limited to, changes to corporate structure, acquisitions of new companies or facilities, or changes to their official company name,5 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. The Separate Rate Status Application will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the Separate Rate Status Application, refer to the instructions contained in the application. Separate Rate Status Applications are due to Commerce no later than 30 calendar days of publication of this Federal Register notice. The deadline and requirement for submitting a Separate Rate Status Application applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers that purchase and export subject merchandise to the United States.

For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.

In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than March 31, 2019.

During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.

For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.

Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (e.g., the filing of separate letters of appearance as discussed at 19 CFR 351.103(d)).

Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in this segment.

Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.7 Parties are hereby reminded that revised certification requirements are in effect for company/government officials as well as their representatives. All segments of any antidumping duty or countervailing duty proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 8 Commerce intends to reject factual submissions in any proceeding segments if the submitting party does not comply with applicable revised certification requirements.

Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary. See 19 CFR 351.302. In general, an extension request will be considered untimely if it is filed after the time limit established under Part 351 expires. For submissions which are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Examples include, but are not limited to: (1) Case and rebuttal briefs, filed pursuant to 19 CFR 351.309; (2) factual information to value factors under 19 CFR 351.408(c), or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2), filed pursuant to 19 CFR 351.301(c)(3) and rebuttal, clarification and correction filed pursuant to 19 CFR 351.301(c)(3)(iv); (3) comments concerning the selection of a surrogate country and surrogate values and rebuttal; (4) comments concerning U.S. Customs and Border Protection data; and (5) quantity and value questionnaires. Under certain circumstances, Commerce may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, Commerce will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. This modification also requires that an extension request must be made in a separate, stand-alone submission, and clarifies the circumstances under which Commerce will grant untimely-filed requests for the extension of time limits. These modifications are effective for all segments initiated on or after October 21, 2013. Please review the final rule, available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these segments.

These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).

On February 15, 2013, Commerce published the antidumping duty orders on wind towers from China and Vietnam.1 On January 2, 2018, Commerce published the initiation of the first sunset review of the Orders, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 On January 17, 2018, Commerce received timely notices of intent to participate in these reviews from the Wind Tower Trade Coalition (WTTC), a domestic interested party, within the deadline specified in 19 CFR 351.218(d)(1)(i).3 WTTC claimed interested party status under section 771(9)(C) and (F) of the Act as a coalition of manufacturers in the United States of a domestic like product. On February 5, 2018, Commerce received complete and adequate substantive responses from WTTC within 30-day deadline specified in 19 CFR 351.218(d)(3)(i).4 Commerce received no substantive responses from respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), Commerce conducted expedited (120-day) sunset reviews of the AD Orders. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the final results is now May 7, 2018.5

The merchandise covered by these orders is certain wind towers, whether or not tapered, and sections thereof. Certain wind towers are designed to support the nacelle and rotor blades in a wind turbine with a minimum rated electrical power generation capacity in excess of 100 kilowatts and with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (i.e., where the top of the tower and nacelle are joined) when fully assembled.

A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (e.g., flooring/decking, ladders, lifts, electrical buss boxes, electrical cabling, conduit, cable harness for nacelle generator, interior lighting, tool and storage lockers) attached to the wind tower section. Several wind tower sections are normally required to form a completed wind tower.

Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise.

Specifically excluded from the scope are nacelles and roto blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof.

Merchandise covered by the orders is currently classified in the Harmonized Tariff System of the United States (HTSUS) under subheadings 7308.20.0020 6 or 8502.31.0000.7 Prior to 2011, merchandise covered by this review was classified in the HTSUS under subheading 7308.20.0000 and may continue to be to some degree. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the subject merchandise is dispositive.

A complete discussion of all issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation of the Orders and the magnitude of the margins likely to prevail if the Orders were revoked, is provided in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice.8 A list of the topics discussed in the Issues and Decision Memorandum is attached to this notice as Appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the Orders would be likely to lead to continuation or recurrence of dumping, and that the magnitude of the dumping margins likely to prevail would be weighted-average margins up to 60.02 percent for China and up to 58.54 percent for Vietnam.

This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, 19 CFR 351.218, and 19 CFR 351.221(c)(5)(ii).

Chapter 19 of Article 1904 of NAFTA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews, which were adopted by the three governments for panels requested pursuant to Article 1904(2) of NAFTA which requires Requests for Panel Review to be published in accordance with Rule 35. For the complete Rules, please see https://www.nafta-sec-alena.org/Home/Texts-of-the-Agreement/Rules-of-Procedure/Article-1904.

The Rules provide that:

(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is May 18, 2018);

(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is June 4, 2018); and

(c) The panel review shall be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.

Background

Commerce published the CVD order on washing machines from Korea on February 15, 2013.1 On January 2, 2018, Commerce initiated this review, the first five-year (sunset) review of the Order, in accordance with section 751(c)(2) of the Tariff Act of 1930, as amended (the Act).2 Whirlpool Corporation, a domestic producer of washing machines and the petitioner in the underlying CVD investigation, subsequently filed a timely notice of intent to participate.3

Commerce received an adequate and timely substantive response from the petitioner on February 5, 2018.4 Neither the Government of Korea (GOK) nor any other respondent interested party to this proceeding submitted a substantive response. Therefore, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(B)(2) and (C)(2), Commerce conducted an expedited sunset review of the Order. As a result of the tolling of deadlines for the closure of the Federal Government from January 20 through January 22, 2018, the deadline for this expedited sunset review was extended to May 7, 2018.5

The product covered by the Order is washing machines from Korea. For a complete description of the scope of the Order, see the Appendix to this notice.

All issues raised in this review are addressed in the accompanying Issues and Decision Memorandum.6 These issues include the likelihood of continuation or recurrence of countervailable subsidies, the net countervailable subsidy rate likely to prevail upon revocation of the Order, and the nature of the subsidies. The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and to all parties in the Central Records Unit in Room B8024 of the main Commerce building. In addition, a complete electronic version of the Issues and Decision Memorandum can be accessed at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the Order would be likely to lead to continuation or recurrence of net countervailable subsidies at the rates listed below:

This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.

Commerce is issuing and publishing these final results in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.

On April 17, 2018, the Department of Commerce (Commerce) published the final results of the 2015-2016 antidumping duty administrative review of carbon and certain alloy steel wire rod from Mexico.1 In that notice, Commerce inadvertently listed an incorrect weighted-average dumping margin of 12.57 percent for Deacero S.A.P.I. de C.V. (Deacero), a producer and exporter of wire rod.2 The correct weighted-average dumping margin for Deacero is 12.56 percent.

This correction to the Final Results is issued and published in accordance with sections 751(a)(1) and 777(i)(l) of the Tariff Act of 1930, as amended.

Availability

An electronic copy of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at https://www.fisheries.noaa.gov/node/23111. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

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.

NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:

(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and

(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

The 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.

Accordingly, NMFS prepared an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA and, on April 25, 2018, issued an associated Finding of No Significant Impact. NMFS' EA and FONSI are available at https://www.fisheries.noaa.gov/node/23111.

The proposed CIPL project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet. Work includes moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. The installation of the subsea pipelines, specifically presence of and noise generated from work vessels, has the potential to take marine mammals by harassment. NMFS has authorized Harvest to take small numbers of eight species of marine mammals incidental to the project.

The CIPL project will take place for approximately 108 days if able to work without interruption (e.g., weather delays). Work will be staged with repositioning of obstacles (e.g., boulders) lasting approximately 15 days, pipe pulling lasting approximately 11 days (weather permitting) and the remainder of the project, including equipment mobilization, pipeline securing, pipeline connection to the Tyonek platform, and demobilization constituting the remainder of the 108 day project.

Cook Inlet is a complex Gulf of Alaska estuary (as described in BOEM 2016) that covers roughly 7,700 square miles (mi2; 20,000 square kilometers (km2)), with approximately 840 miles (mi) (1,350 linear kilometer (km)) of coastline (Rugh et al., 2000). Cook Inlet is generally divided into upper and lower regions by the East and West Forelands (see Figure 1-1 in Harvest's application). Northern Cook Inlet bifurcates into Knik Arm to the north and Turnagain Arm to the east. Overall, Cook Inlet is shallow, with an area-weighted mean depth of 148 feet (ft) (44.7 meters (m)). The physical oceanography of Cook Inlet is characterized by complex circulation with variability at tidal, seasonal, annual, and inter-annual timescales (Musgrave and Statscewich, 2006). This region has the fourth largest tidal range in the world and as a result, extensive tidal mudflats that are exposed at low tides occur throughout Cook Inlet, especially in the upper reaches. These tides are also the driving force of surface circulation. Strong tidal currents drive the circulation in the greater Cook Inlet area with average velocities ranging from 1.5 to 3 m per second (3 to 6 knots).

The project area is located a few km north of the village of Tyonek between Ladd Landing and the Tyonek Platform (see Figure 1-2 of Harvest's application). On April 11, 2011, NMFS designated beluga whale (Delphinapterus leucas) critical habitat in the action area. Critical habitat includes known fall and winter Cook Inlet beluga whale foraging and transiting areas (see Figure 4-1 in Harvest's application).

A complete description of the specified activity may be found in our notice of the proposed IHA (83 FR 8437; February 27, 2018) and a summary is provided below. No changes to the proposed project have occurred since publication of that notice.

The project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet: A 10-inch (in) nominal diameter gas pipeline (Tyonek W 10) between the Tyonek Platform and the Beluga Pipeline (BPL) Junction, and the 8-in nominal diameter oil pipeline (Tyonek W 8) between the existing Tyonek Platform and Ladd Landing. Pipelines installation activities would be conducted in phases and include moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. The barge would be relocated approximately two to three times per day. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. Table 1 contains construction scenarios during the phased project and associated use duration.

A notice of proposed IHA was published in the Federal Register on February 27, 2018 (83 FR 8437) for public comment. During the 30-day public comment period, NMFS received comment letters from the Marine Mammal Commission (Commission) and a group of students from the University of Arizona (Students). The public comment letters received on the notice of proposed IHA are available on the internet at: https://www.fisheries.noaa.gov/node/23111. Following is a summary of the public comments and NMFS' responses.

Comment 1: The Commission acknowledged that the activities will likely have lesser impacts than other sound-producing activities but indicated that NMFS should explain why the activities, in combination with ongoing and other planned activities in Cook Inlet, would affect only a small number of Cook Inlet beluga whales and have no more than a negligible impact on the population.

NMFS Response: In accordance with the MMPA and our implementing regulations at 50 CFR 216.104(c), and as described in this notice, we use the best available scientific evidence to determine whether the taking of marine mammals by the specified activity within the specified geographic region will have a negligible impact on the affected species or stock. The MMPA requires these findings be made with respect to the specified activity contained within an applicant's request for authorization. However, our negligible impact finding considers the potential impact of the specified activity in consideration of the status of the stock and existing threats. That is, the impacts from other past and ongoing anthropogenic activities are incorporated into the negligible impact analysis via their impacts on the environmental baseline (e.g., density/distribution and status of the species, population size and growth rate, and ambient noise). Here, as acknowledged by the Commission, the potential impact of the specified activity is low. Moreover, the IHA contains a number of mitigation and monitoring measures designed to minimize, reducing both frequency of take and intensity of take (which is already low). Further, as described here, we have compared the number of take to the stock abundance and determined that we are authorizing take of a small number of marine mammals per stock.

NMFS has made the necessary findings to issue the IHA to Harvest for take of marine mammals incidental to their pipeline installation activities. Nonetheless, NMFS agrees that caution is appropriate in the management of impacts on this small resident beluga population with declining abundance and constricted range. Accordingly, NMFS is requiring that Harvest submit weekly and monthly reports on their daily marine mammal monitoring efforts. Consistent with our implementing regulations, if NMFS determines that the level of taking is having or may have a more than negligible impact on a species or stock, NMFS may suspend or modify an LOA, as appropriate, following notice and comment.

Comment 2: The Commission recommends that NMFS include take authorization for California sea lions, increase the number of authorized takes of harbor porpoises from 10 to at least 72, and require Harvest to notify NMFS immediately if the numbers of takes approach the authorized limits for any species.

NMFS Response: NMFS has reviewed a suite of industry monitoring reports, NMFS marine mammal survey data, and NMFS anecdotal sighting database in consideration of the Commission's comments with respect to all species proposed for authorization and determined that an adjustment of take numbers for almost all species was warranted to ensure the numbers of authorized takes for the project was sufficient given the nature of the project (i.e., some activities cannot be stopped once begun). We refer the reader to the “Estimated Take” section below for details on how the new take numbers were calculated. Specific to the Commission's comment on harbor porpoise, NMFS authorized the take of 100 individuals in the IHA based on 2012 industry survey reports (which NMFS notes indicate an unusually large number of sightings compared to multiple and more recent survey years). NMFS has also added takes and associated analysis of California sea lions and gray whales included the recommended notification measure should Harvest approach take limits for any marine mammal species.

Comment 3: The Commission recommended, after reviewing proposed changes to the monitoring plan (see Monitoring and Reporting section), that NMFS require Harvest to deploy an additional protected species observer (PSO) on an alternate vessel located on the opposite side of the Level B harassment zone from the proposed land- or platform-based observer.

NMFS Response: The Commission's comment reflect a concern for marine mammal detectability during the time activities are occurring in the middle of the project corridor between land and the Tyonek Platform. NMFS agrees detection at these distances is problematic; however, we disagree that placing another vessel on the water (which introduces additional underwater noise) is the appropriate response to addressing this issue. Instead, NMFS is requiring Harvest to place an observer at Ladd Landing and the Tyonek platform (concurrently) when pipelines installation activities occur 2 to 6.5 km from shore. Further, the PSO(s) would be in constant contact with vessel captains and crew and NMFS has included an additional monitoring measure requiring vessel-based crew to report any marine mammal sighting to the PSO.

Comment 4: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

NMFS Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time (the latter accomplished by using the word “second”). In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Lastly, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

Comment 5: The Students were concerned marine mammals access may be blocked by the project provided pipe segments, which are 2.5 mi long, and requested more information on mitigation measures designed to ensure animals have access to important foraging areas in the northern inlet.

NMFS Response: The project would not create physical barriers to accessing locations north and south of the project area. The pipelines would be pulled along the sea floor and the presence of the limited number of vessels involved in the project would not block access. Acoustically, we anticipate the highest noise levels to occur at the vessel and barge locations, not within an entire 2.5 mi stretch in any particular moment in time. As described in our Federal Register notice, we believe animals will detour around the project site but more specifically, around the work vessels generating the most amount of noise. Furthermore, the noise levels are not particularly high, and belugas are accustomed to industrial noises such as at the Port of Anchorage. There is ample evidence that construction noise at the Port of Anchorage, including impact pile driving, does not deter belugas from accessing critical foraging area higher in Knik Arm. Through the IHA, Harvest is also required to implement a number of mitigation measures designed to minimize both the frequency and degree of impact. These include lowering source levels of vessels at all times when full engine engagement is not required (e.g., idle, tie up to barge and shut-down) and to delay the onset of activities if animals are observed within or entering the Level B harassment zone. Lastly, Harvest is required to submit weekly monitoring reports to NMFS for the duration of the project. Should monitoring by Harvest indicate marine mammals are experiencing anything more than the expected impacts, NMFS would employ an adaptive management approach to ensure impacts are not beyond those anticipated.

Comment 6: The Students expressed concern that information in the EA is not adequate to estimate amount of take and, specifically, harbor porpoise sightings have increased in recent years and should be considered.

NMFS Response: NMFS refers the reader to our response to the Commission's comment regarding amount of take (Comment 2) and the “Estimated Take” section.

Comment 7: The Students indicated coordination with other agencies, local organizations, Inuit communities, US Fish and Wildlife Service, or other interest groups during development of the draft Environmental Assessment NMFS prepared for the project could result in a more effective project plan that could lessen the level B harassment on the marine mammals and allow for improved completion of the project.

NMFS Response: NMFS provided both the proposed IHA and draft EA for public comment. The agencies, communities, and interest groups referenced had opportunity to comment during this time and, as indicated in the Federal Register notice for the proposed IHA, NMFS considered all comments prior to issuing the IHA and finalizing the EA. Moreover, the MMPA requires NMFS to prescribe mitigation measures that effect the least practicable impact on marine mammal species and stocks, which we believe has been achieved.

In the Federal Register notice announcing our proposed IHA (83 FR 8437; February 27, 2018), we summarized available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of six of the potentially affected species. We have determined two additional species, the gray whale and California sea lion, have the potential, albeit unlikely, to enter into the project area. Due to the nature of the activities and the inability to stop some of the operational activities once they commence (e.g., pipe pulling or pushing the barge), we are including, in an abundance of caution, these species in the final IHA. Table 2 provides a summary of the status of these species.

In summary, eight marine mammal species, including five cetaceans and three pinnipeds, may be found within Cook Inlet during the project (Table 2). These are the Cook Inlet beluga whale, humpback whale, gray whale, killer whale, harbor porpoise, harbor seal, Steller sea lion and California sea lion. We refer the reader to the Federal Register notice for information regarding species previously considered. We provide a summary of the relevant information for the additional species (gray whale and California sea lion) below. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; 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 (https://www.fisheries.noaa.gov/about/office-protected-resources).

Each spring, the Eastern North Pacific stock of gray whale migrates 8,000 km (5,000 mi) northward from breeding lagoons in Baja California to feeding grounds in the Bering and Chukchi seas, reversing their travel again in the fall (Rice and Wolman, 1971). Their migration route is for the most part coastal until they reach the feeding grounds. A small portion of whales do not annually complete the full circuit, as small numbers can be found in the summer feeding along the Oregon, Washington, British Columbia, and Alaskan coasts (Rice et al., 1984, Moore et al., 2007).

Most gray whales migrate past the mouth of Cook Inlet to and from northern feeding grounds. However, small numbers of summering gray whales have been observed within Cook Inlet, mostly in the lower inlet (e.g., Owl Ridge, 2014). Gray whales have not been observed in the upper inlet; however, seismic surveys encompassing the middle and upper inlet (including the project area) have observed gray whales. On June 1, 2012, there were three gray whale sightings during marine mammal monitoring for a seismic survey; the survey area included the pipeline project area (SAE, 2012). It is not known if this was the same animal observed multiple times or multiple individuals. A lone gray whale was also observed near the middle inlet in 2014 and in May 2015, what was believed to be a gray whale based on blow shape was observed during marine mammal monitoring conducted for seismic surveys (SAE 2014, 2015).

Threats to this species include ship strike, entanglement in fishing gear, and increased human use of more northern latitudes as ice melts (Caretta et al., 2015).

California sea lions (Zalophus californianus) are distributed along the North Pacific waters from central Mexico to southeast Alaska, with breeding areas restricted primarily to island areas off southern California (the Channel Islands), Baja California, and in the Gulf of California (Wright et al., 2010). The population is comprised of five genetically distinct populations: The United States population that breeds on offshore islands in California; the western Baja California population that breeds offshore along the west coast of Baja California, Mexico; and three populations (southern, central and northern) that breed in the Gulf of California, Mexico. Males migrate long distances from the colonies during the winter whereas females and juveniles remain close the breeding areas. The approximate growth rate for this species is 5.4 percent annually (Caretta et al., 2004).

California sea lions are very rare in Cook Inlet and typically are not observed farther north than southeast Alaska. However, NMFS' anecdotal sighting database contains four California sea lion sightings in Seward and Kachemak Bay (pers. comm., Kate Savage, NMFS, March 27, 2018). In addition, an industry survey report contains a sighting of two California sea lions in lower Cook Inlet; however, it is unclear if these animals were indeed California sea lions or a mis-identified Steller sea lions (SAE, 2012). Regardless, in an abundance of caution, we have included take for California sea lions in the final IHA.

Threats to this species include incidental catch and entanglement in fishing gear, such as gillnets; biotoxins, as a result of harmful algal blooms; and gunshot wounds and other human-caused injuries, as California sea lions are sometimes viewed as a nuisance by commercial fishermen (NOAA 2016).

In the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section of the notice of proposed IHA (83 FR 8437, February 27, 2018), NMFS included a qualitative discussion of the different ways that Harvest's pipelines installation activities may potentially affect marine mammals. The information contained in the notice has not changed. Please refer to that notice for the full discussion. Below we provide a summary.

The CIPL project has the potential to harass marine mammals from exposure to noise from working vessels (e.g., tugs pushing barges) and construction activities such as removing obstacles from the pipeline path, pulling pipelines, anchoring the barge, divers working underwater with noise-generating equipment, trenching, etc. In this case, NMFS considers potential harassment from the collective use of vessels working in a concentrated area for an extended period of time and noise created when moving obstacles, pulling pipelines, trenching in the intertidal transition zone, and moving the barge two to three times per day using two tugs. Essentially, the project area will become be a concentrated work area in an otherwise non-industrial, serene setting. In addition, the presence of the staging area on land and associated work close to shore may harass hauled-out seals and sea lions.

We anticipate effects of the project to be limited to masking and behavioral disturbance (e.g., avoidance, cessation of vocalizations, increased swim speeds, etc.). We do not anticipate auditory threshold shift, permanent (PTS) or temporary (TTS), to occur due to low source levels and the fact marine mammals species are unlikely to be exposed for periods of time needed to incur the potential for PTS or TTS from the sources involved with pipeline installation. We also do not anticipate marine mammals transiting to an intended destination to abandon the effort; we expect the length of any detour around working vessels to be minimal.

This section provides the number of incidental takes authorized through the IHA, which informed both NMFS' consideration of “small numbers” 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 individual marine mammals resulting from exposure to multiple working vessels and construction activities in a concentrated area. For reasons described in the Federal Register notice for the proposed IHA, Level A harassment is not anticipated or authorized. No mortality is anticipated or authorized for this activity. Below we describe how the take was quantified.

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 authorized take estimate.

Using the best available science, NMFS uses 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 decibels (dB) re 1 micro pascal (μPa) (root means square (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) or intermittent (e.g., scientific sonar) sources.

Harvest's activity includes the use of multiple continuous sources and activities (e.g., vessels, pipe pulling) and therefore the 120 dB re 1 μPa (rms) threshold is applicable. As described above, in this case we believe it is not any one of these single sources alone that is likely to harass marine mammals, but a combination of sources and the physical presence of the equipment. We use this cumulative assessment approach below to identify ensonified areas and take estimates.

Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2016b) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Harvest's activity includes the use of non-impulsive (e.g., tugs pushing a barge, pipe pulling) sources.

These thresholds are provided in the Table 3. 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.

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

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 will typically be overestimates of some degree, which will result in some degree of overestimate of Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available. NMFS will continue to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. Although vessels are mobile, we are considering them stationary for purposes of this project due to the confined area of work. For stationary sources, 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 below.

The sources and activities involved with the CIPL project are relatively low compared to other activities for which NMFS typically authorizes take (e.g., seismic surveys, impact pile driving). However, these sources will be operating for extended periods and NMFS' PTS thresholds now incorporate a time component. That time component is based on both the duration of the activity and the likely amount of time an animal would be exposed. To determine if there is potential for PTS from the CIPL project, we considered operations may occur throughout the day and night, and despite tugs being on stand-by for much of the time, a full day (24 hours) was the most conservative approach for estimating potential for PTS. Therefore, we used a source level of 170 dB measured at 1 m (estimated tug noise), a practical spreading loss model (15logR), and the weighting factor adjustment (WFA) for vibratory pile driving as a proxy for vessels (2.5 kHz). The distances to PTS thresholds considering a 24 hour exposure duration is provided in Table 4. Based on these results, we do not anticipate the nature of the work has the potential to cause PTS in any marine mammal hearing group; therefore, we do not anticipate auditory injury (Level A harassment) will occur.

Each construction phase involves multiple pieces of equipment that provide physical and acoustic sources of disturbance. For this project, we anticipate the ensonified area to shift as the project progresses along the pipeline corridor. That is, at the onset of the project, work will be concentrated in the intertidal zone close to shore and, as work continues, moving offshore towards the Tyonek platform. We also anticipate that the sound field generated by the combination of several sources will expand and contract as various construction related activities are occurring. For example, pushing the barge may require tugs to use increased thruster power, which would likely result in greater distances to the 120 dB re 1 μPa threshold in comparison to general movement around the area. Therefore, calculating an ensonified area for the entire pipeline corridor would be a gross overestimate and we offer an alternative here.

Because we consider the potential for take from the combination of multiple sources (and not any given single source), we estimate the ensonified area to be a rectangle centered along the pipeline corridor which encompasses all in-water equipment and a buffer around the outside of the cluster of activities constituting the distance calculated to the 120 dB threshold from one tug (i.e., 2,200 m). NMFS determined a tug source level (170 dB re: 1 μPa) for the duration of the project would be a reasonable step in identifying an ensonified zone since tugs would be consistently operating in some manner, and other sources of noise (e.g., trenching, obstacle removal, underwater tools) are all expected to produce less noise. Anchor handling during barge relocation is also a source of noise during the project; however, we believe using the tug is most appropriate. NMFS is aware of anchor handling noise measurements made in the Arctic during a Shell Oil exploratory drilling program that produced a noise level of 143 dB re 1 μPa at 860 m (LGL et al., 2014). However, that measurement was during deployment of 1 of 12 anchors in an anchor array system associated with a large drill rig and it would be overly conservative to adopt here.

Although vessels and equipment (e.g., tugs, support vessels, barge) spacing would vary during the course of operations, a single layout must be assumed for modeling purposes. We assume the barge used for pipe pulling and supporting trenching and stabilization is placed in the middle of a group of vessels and directly in line with the pipeline corridor. The sonar and dive boats would also be concentrated along the pipeline corridor path. We conservatively assume tugs would be spaced approximately 0.5 km from the barge/pipeline corridor during stand-by mode and could be on opposite sides of the corridor. Also, vessels and equipment would shift from nearshore to offshore as the project progresses. For simplicity, we divided the pipeline corridor (8.9 km) in half for our ensonified area model because each pipe pulled would be approximately 4.45 km each. We then considered the estimated distance to the 120 dB threshold from the tug (2.2 km). We then doubled that distance and adjusted for a 0.5 km distance from the pipeline corridor to account for noise propagating on either side of a tug. We used those distances to calculate the area of the rectangle centered around the pipeline corridor (Area = length × width or A = 4.45 km × ((2.2 km + 0.5km) × 2) for a Level B ensonified area of 24.03 km2. As the work continues, this area would gradually shift from nearshore to farther offshore, terminating at the Tyonek platform.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

There are eight marine mammal species that have the potential to occur within the action area from April through October. The NMFS National Marine Mammal Laboratory (NMML) maintains a database of Cook Inlet marine mammal observations collected by NOAA and U.S. Coast Guard personnel, fisheries observers, fisheries personnel, ferry operators, tourists, or other private boat operators. NMFS also collects anecdotal accounts of marine mammal sightings and strandings in Alaska from fishing vessels, charter boat operators, aircraft pilots, NMFS enforcement officers, Federal and state scientists, environmental monitoring programs, and the general public. These data were used to inform take estimates.

Empirical estimates of beluga density in Cook Inlet are difficult to produce. One of the most robust is the Goetz et al. (2012) model based on beluga sighting data from NMFS aerial surveys from 1994 to 2008. The model incorporated several habitat quality covariates (e.g., water depth, substrate, proximity to salmon streams, proximity to anthropogenic activity, etc.) and related the probability of a beluga sighting (presence/absence) and the group size to these covariates. The probability of beluga whale presence within the project area from April through September is 0.001 belugas per km2. Moving into October and the winter, density is likely to increase; however, Harvest anticipates all work will be completed no later than September.

Harvest provided density estimates for all other species with likely occurrence in the action area in their IHA application; however, data used to generate those densities do not incorporate survey efforts beyond 2011. Therefore, we developed new density estimates based on data collected during NMFS aerial surveys conducted from 2001 to 2016 (Rugh et al. 2005; Shelden et al. 2013, 2015, 2017). The numbers of animals observed over the 14 survey years were summed for each species. The percent area of survey effort for each year (range 25 to 40 percent) was used to calculate the area surveyed which was summed for all years (Rugh et al. 2005; Shelden et al. 2013, 2015, 2017). Density estimates were then derived by dividing the total number of each species sighted during the survey by the total area of survey coverage (Table 5).

The method for calculating take was described in the Federal Register notice for the proposed IHA and is summarized here with a description of modifications. Take was first calculated using a density-based method (Take = density × ensonified area × project days). As an example, for beluga whales, the estimated take is calculated as 24.03 km2 × 0.001 × 108 days for a total of 2.59 belugas. However, for this and other species, we also consider additional sighting data (e.g., industry surveys, anecdotal sightings), anticipated residency time, and group size. From that analysis, we derived an authorized take level. In general, the amount of authorized take is an increase from the proposed numbers. In consideration of the nature of project activities (inability to shut down for some activities), we determined an increase in take numbers was warranted. Table 6 provides the results from our final take analysis.

Cook Inlet beluga whales are expected to be transiting through the action area in group sizes ranging from 3 to 14 animals with an average of 8 animals/group. These group sizes are based on NMFS aerial surveys and anecdotal reports near Tyonek from April through October (pers comm. K Sheldon, January 25, 2018). Harvest requested take for up to 29 beluga whales in anticipation that one group of 8 animals may pass through the action area once per month for the duration of the project (i.e., 8 animals/group × 1 group/month × 3.6 months). However, during the public comment period, we considered, in more detail, the number of animals that could pass through the action area during operations that could result in take. Specifically, a 2012 June monitoring report (SAE 2012) reported an unusually high number of sightings are marine mammals, including many at river mouths south of the project area. If we consider the potential for those groups to move north to the Beluga River/Susitna, Knik and Turnigan Arm areas, there is a possibility animals could enter Harvest's ensonified zone. If operations (e.g., pile pulling, barge moving) has already begun, these activities are not able to cease due to operational and safety concerns. Therefore, in the IHA, we have authorized up to 40 beluga whales to be taken by Level B harassment.

We also considered group size for other cetaceans. Killer whales have the potential to travel through the project area in groups exceeding the take calculated based on density. Because sighting data indicates killer whales are not common in the Upper Inlet, we anticipated one group to pass through the project area in the proposed IHA but have increased this to two groups for a total authorized take of 10 killer whales. For harbor porpoise, we considered the density-based take calculation to be great enough to encompass their small group size (n=8); however, harbor porpoise sightings in the mid- to upper inlet have increased in recent years. Despite them typically occurring in the lower inlet, we have increased the authorized amount of take to 100 individuals, which is approximately 50 percent of the individuals observed during the 2012 industry survey (n = 190). We did not authorize the same amount of individuals observed considering the industry survey area was much larger than the harassment zone for the CIPL project and extended lower in the inlet where harbor porpoise are more common.

Harbor seals and Steller sea lions are expected to occur as solitary animals or in small groups and may linger in the action area moreso than transiting cetaceans. Harbor seal takes estimates based on density reflect a likely occurrence, so we did not adjust authorized take levels. However, Steller sea lion density calculations produce an estimated take of one animal during the entire project. While Steller sea lions are rare in the action area, this species may not be solitary and may also remain in the action area for multiple days. In 2009, a Steller sea lion was observed three times during Port of Anchorage construction (ICRC 2009). During seismic survey marine mammal monitoring, Steller sea lions were observed in groups of one to two animals during two of three years of monitoring (Lomac-MacNair 2013, 2015). Therefore, we increased the amount of take to six Steller sea lions to account for up to two animals to be observed over the course of three days (i.e., two animals exposed three times).

Harvest did not request, and we did not propose, take for any other species in our proposed IHA notice. However, we have included take for gray whales and California sea lions in the final IHA. It is unlikely these species would come within the project area; however, in the Description of Marine Mammals in the Area of Specified Activities section, we describe sightings of these species during industry surveys and anecdotal sightings. Because some activities may not be able to cease once they begin, we have authorized take for these species (Table 6).

The availability of the affected marine mammal stocks or species for subsistence uses may be impacted by this activity. The subsistence uses that may be affected and the potential impacts of the activity on those uses are described below. Measures included in this IHA to reduce the impacts of the activity on subsistence uses are described in the Mitigation section. The information from this section and the Mitigation section is analyzed to determine whether the necessary findings may be made in the Unmitigable Adverse Impact Analysis and Determination section.

The villages of Tyonek, Ninilchik, Anchor Point, and Kenai use the upper Cook Inlet area for subsistence activities. These villages regularly harvest harbor seals (Wolfe et al., 2009). Based on subsistence harvest data, Kenai hunters harvested an about 13 harbor seals on average per year, between 1992 and 2008, while Tyonek hunters only harvested about 1 seal per year (Wolfe et al., 2009). Traditionally Tyonek hunters harvest seals at the Susitna River mouth (located approximately 20 mi from the project area) incidental to salmon netting, or during boat-based moose hunting trips (Fall et al., 1984). Alaska Natives are permitted to harvest Steller sea lions; however, this species is rare in mid- and upper Cook Inlet, as is reflected in the subsistence harvest data. For example, between 1992 and 2008, Kenai hunters reported only two sea lions harvested and none were reported by Tyonek hunters (Wolfe et al., 2008). Sea lions are more common in lower Cook Inlet and are regularly harvested by villages well south of the project area, such as Seldovia, Port Graham, and Nanwalek.

Cook Inlet beluga subsistence harvest has been placed under a series of moratoriums beginning 1999. Only five beluga whales have been harvested since 1999. Future subsistence harvests are not planned until after the 5-year population average has grown to at least 350 whales. Based on the most recent population estimates, no beluga harvest will be authorized in 2018.

Harvest's proposed pipeline construction activities would not impact the availability of marine mammals for subsistence harvest in Cook Inlet due to the proximity of harvest locations to the project (for harbor seals) and the general lack of Steller sea lion harvest. Beluga subsistence harvest is currently under moratorium. Further, animals that are harassed from the project are expected to elicit behavioral changes that are short-term, mild, and localized.

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. 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, as well as subsistence uses. 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.

NMFS anticipates the project will create an acoustic footprint above baseline of approximately 24 km2 around the concentration of vessels and operational activities. There is a discountable potential for marine mammals to incur PTS from the project as source levels are relatively low, non-impulsive, and animals would have to remain at very close distances for multiple hours, to accumulate acoustic energy at levels which could damage hearing. Therefore, we do not believe there is potential for Level A harassment and there is no designated shut-down/exclusion zone established for this project. However, Harvest will implement a number of mitigation measures designed to reduce the potential for and severity of Level B harassment and minimize the acoustic footprint of the project.

Harvest will establish a 2,200 m safety zone from working vessels and along the pipeline corridor and employ NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for the duration of the project. Prior to commencing activities for the day or if there is a 30-minute lapse in operational activities, the PSO will monitor the safety zone for marine mammals for 30 minutes. If no marine mammals are observed, operations may commence. If a marine mammal(s) is observed within the safety zone during the clearing, the PSO will continue to watch until either: (1) The animal(s) is outside of and on a path away from the safety zone; or (2) 15 minutes have elapsed. Once the PSO has determined one of those conditions are met, operations may commence.

Should a marine mammal be observed during pipe-pulling, the PSO will monitor and carefully record any reactions observed until the pipe is secure. No new operational activities would be started until the animal leaves the area. PSOs will also collect behavioral information on marine mammals beyond the safety zone.

Other measures to minimize the acoustic footprint of the project include: The dive boat, sonar boat, work boat, and crew boat will be tied to the barge or anchored with engines off when practicable; all vessel engines will be placed in idle when not working if they cannot be tied up to the barge or anchored with engines off; and all sonar equipment will operate at or above 200 kHz.

Finally, Harvest would abide by NMFS marine mammal viewing guidelines while operating vessels or land-based personnel (for hauled-out pinnipeds); including not actively approaching marine mammals within 100 yards (in-water or on land) and slowing vessels to the minimum speed necessary. NMFS Alaska Marine Mammal Viewing Guidelines may be found at https://alaskafisheries.noaa.gov/pr/mm-viewing-guide.

The mitigation measures are designed to minimize Level B harassment by avoiding starting work while marine mammals are in the project area, lowering noise levels released into the environment through vessel operation protocol (e.g., tying vessels to barges, operating sonar equipment outside of marine mammal hearing ranges) and following NMFS marine mammal viewing guidelines. There are no known marine mammal feeding areas, rookeries, or mating grounds in the project area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat. The proposed project area is within beluga whale critical habitat; however, use of the habitat is higher in fall and winter when the project would not occur nor would habitat be permanently impacted other than the presence of the pipelines on the seafloor. Thus mitigation to address beluga whale critical habitat is not warranted. Finally, the mitigation measures are practicable for the applicant to implement. NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for 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 to 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.

Harvest will abide by all monitoring and reporting measures contained within their Marine Mammal Monitoring and Mitigation Plan, dated March 15, 2018, with the additional condition described below regarding number and location of observers. This plan was revised from the original that was available for public comment. During the public comment period, Harvest found that there was limited space on the vessels and safety issues prevented a PSO from being placed on the barge. In the revised plan, Harvest moved the PSO from vessel-based to land- or Tyonek Platform- based. Harvest proposed that during the beginning of the project when activities are occurring close to shore, a PSO will be positioned on a 100-foot high bluff at Ladd Landing, which provides a marine mammal sighting distance of approximately 3 mi. As work progresses toward the Tyonek Platform, the PSO shall be stationed on the Tyonek platform which also provides for an approximately 100-foot high observation point. The elevation of both these observation points provides advantages than working aboard a single vessel. However, NMFS determined that a single land-based observer was not sufficient and is therefore requiring monitoring based on where along the pipeline corridor activities are occurring. That is, a PSO shall be stationed at Ladd Landing when activities are occurring 0-2 km from shore. A PSO shall be stationed at the Tyonek Platform when activities are occurring greater than 6.5 km from shore. When project activities are occurring from 2 to 6.5 km from shore, a PSO shall be stationed at both Ladd Landing and the Tyonek Platform. All other monitoring measures included in the proposed IHA and in Harvest's monitoring plan remain in effect. NMFS has also included a provision in the IHA that PSOs will report on detectability and estimated range of observer coverage during all marine mammal monitoring shifts. Please see the IHA, posted at https://www.fisheries.noaa.gov/node/23111, for the complete set of reporting requirements.

In recognition of the status of Cook Inlet beluga whales, Harvest is required to submit weekly reports to NMFS documenting marine mammal observations, behavior, and ability to detect marine mammals within the monitoring zone. If Harvest fails to abide by the mitigation, monitoring and/or reporting conditions contained within the IHA or NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, NMFS may modify the mitigation or monitoring measures if doing so creates a reasonable likelihood of more mitigation and monitoring leading to reduced impacts. Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include: results from Harvest's marine mammal monitoring report, information from beluga whale researchers, and information from subsistence users or local community residents.

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). To avoid repetition, our analysis applies to all the species listed in Table 6, given that NMFS expects the anticipated effects of the pipeline installation activities to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, NMFS has identified species-specific factors to inform the analysis.

Marine mammal habitat may be impacted by elevated sound levels, but these impacts would be temporary. In addition to being temporary and short in overall duration, the acoustic footprint of the pipeline installation activities is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted, as no areas of biological significance for marine mammal feeding are known to exist in the survey area. For beluga whales, there are no major river outfalls which provide prey within the action area.

The proposed project would create an acoustic footprint around the project area for an extended period time (3.6 months) from April through September. Noise levels within the footprint would reach or exceed 120 dB rms. We anticipate the 120 dB footprint to be limited to 20km2 around the cluster of vessels and equipment used to install the pipelines. The habitat within the footprint is not heavily used by marine mammals during the project time frame (e.g., Critical Habitat Area 2 is designated for beluga fall and winter use) and marine mammals are not known to engage in critical behaviors associated with this portion of Cook Inlet (e.g., no known breeding grounds, foraging habitat, etc.). Most animals will likely be transiting through the area; therefore, exposure would be brief. Animals may swim around the project area but we do not expect them to abandon any intended path. We also expect the number of animals exposed to be small relative to population sizes. Finally, Harvest will minimize potential exposure of marine mammals to elevated noise levels by not commencing operational activities if marine mammals are observed within the ensonified area.

In summary and as described above, the following factors primarily support our 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;

• The project does not involve noise sources capable of inducing PTS and no injury is anticipated or authorized;

• Exposure would likely be brief given transiting behavior of marine mammals in the action area, resulting in, at most, temporary avoidance and modification to vocalization behavior, and diverting around the project area;

• The project area does not contain concentrated foraging, mating, or breeding habitat;

• Marine mammal densities are low in the project area and the number of marine mammals potentially taken is small compared to the population size; and

• Harvest would monitor for marine mammals daily and minimize exposure to operational activities as required in the IHA.

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 monitoring and mitigation measures, NMFS 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, qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

Table 7 provides the quantitative analysis informing our small numbers determination. For most species, the amount of take proposed is less than 3.5 percent of all stocks except beluga whales. For beluga whales, the amount of take proposed represents 12.8 percent of the population.

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

In order to issue an IHA, NMFS must find that the specified activity will not have an “unmitigable adverse impact” on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

The village of Tyonek engages in subsistence harvests; however, these efforts are concentrated in areas such as the Susitna Delta where marine mammals are known to occur in greater abundance. Harbor seals are the only species taken by Alaska Natives that may also be harassed by the proposed project. However, any harassment to harbor seals is anticipated to be short-term, mild, and not result in any abandonment or behaviors that would make the animals unavailable to Alaska Natives.

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 mitigation and monitoring measures, NMFS has determined there will not be an unmitigable adverse impact on subsistence uses from Harvest'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 Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species.

On April 25, 2018, NMFS Alaska Region issued a Biological Opinion to NMFS Office of Protected Resources which concluded Harvest's CIPL project is not likely to jeopardize the continued existence of Cook Inlet beluga whales, the WDPS Steller sea lions, or Mexico and Western North Pacific humpback whales DPSs or destroy or adversely modify critical habitat.

NMFS has issued an IHA to Harvest for the harassment of small numbers of eight marine mammal species incidental to pipeline installation activities in Cook Inlet, provided the previously mentioned mitigation, monitoring and reporting requirements are incorporated.

Background

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 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 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 determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.

On December 5, 2017, NMFS received a request from the USFWS for an IHA to take marine mammals incidental to seabird and shorebird monitoring and research activities within the Complex. NMFS determined the application adequate and complete on December 18, 2017. The USFWS's request was for take of gray seals and harbor seals by Level B harassment only. Neither the USFWS nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

NMFS previously issued an IHA to the USFWS for similar work (82 FR 12342, March 2, 2017). The USFWS complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHA and information regarding their monitoring may be found in the Estimated Take section.

The USFWS plans to conduct biological tasks for refuge purposes at Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land Island NWR in Massachusetts. These three refuges are managed through the Complex as part of the NWR System of the USFWS. Complex staff census and monitor the presence and productivity of breeding and migrating shorebirds using the beaches of Monomoy, Nantucket, and Nomans Land Island NWRs from April 1-November 30, annually. Monitoring activities occur daily (on Monomoy and Nantucket) from April-August and are necessary to document the productivity (number of chicks fledged per pair) and population of protected shorebird and seabird species. Monomoy NWR also participates in several less frequent, but equally important, high priority conservation tasks to monitor for threatened and endangered species, including censusing northeastern beach tiger beetles (Cicindela dorsalis) and participating in a red knot (Calidris canutus) migration study during southward migration. Additionally, both Monomoy and Nantucket NWRs serve as vital staging grounds for migrating roseate terns (Sterna dougallii), where USFWS staff resight and stage counts.

A detailed description of the planned monitoring and research project is provided in the Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

A notice of NMFS's proposal to issue an IHA to the USFWS was published in the Federal Register on March 6, 2018 (83 FR 9483). That notice described, in detail, the USFWS's activities, the marine mammal species that may be affected, and the anticipated effects on marine mammals. During the 30-day public comment period, the Marine Mammal Commission (Commission) provided comments as described below and concurred with NMFS's finding that recommended the issuance of an IHA, subject to the inclusion of the mitigation, monitoring, and reporting measures.

Comment: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish a description of the renewal process on our website before any renewal is issued utilizing the new process.

A detailed description of the species likely to be affected by the research and monitoring project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions as well as to NMFS' website (https://www.fisheries.noaa.gov/topic/population-assessments/marine-mammals) for generalized species accounts.

NMFS does not expect acoustic stimuli to result from human presence, and will therefore not have the potential to harass marine mammals, incidental to the conduct of the activities. One activity (cannon nets) may have an acoustic component, but we believe take from this activity can be avoided.

This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (µPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 µPa for underwater, and the units for SPLs are dB re: 1 µPa. The commonly used reference pressure is 20 µPa for in air, and the units for SPLs are dB re: 20 µPa.

SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the root mean square unless otherwise noted. SPL does not take into account the duration of a sound.

Activities that may have an acoustic component (e.g., cannon nets) are not expected to reach the thresholds for Level B harassment. Cannon nets could be an airborne source of noise, and have a measured SL of 128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); however, the SPL is expected to be less than the thresholds for airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other pinnipeds) at 80 meters from the source. The USFWS proposes to stay at least 100 meters from all pinnipeds if cannon nets are to be used for research purposes.

The effects of airborne noise and visual disturbance from monitoring and research activities for the USFWS's project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018) included a discussion of the effects of anthropogenic noise and visual disturbance on marine mammals, therefore that information is not repeated here; please refer to that Federal Register notice for that information.

This section provides an estimate of the number of incidental takes authorized 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 are by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to USFWS research and monitoring surveys. NMFS expects that the presence of the USFWS personnel could disturb animals hauled out on beaches near research activities and that the animals may alter their behavior or attempt to move away from the USFWS personnel. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

Behavior of seals is recorded on a three point scale (1 = alert reaction, not considered harassment; 2 = moving at least two body lengths, or change in direction >90 degrees; and 3 = flushing) (Table 2). Only levels 2 and 3 are considered take.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Take estimates are based on historical marine mammal observations at each site from previous USFWS survey activities.

Gray Seal—Little information is known about gray seal age and sex distribution at the Complex. Gray seals may use Complex sites for pupping but research and monitoring activities are not performed during the breeding season, so no newborn pups will be disturbed. Group composition of individuals present at activity sites are likely to be of mixed age and sex classes.

The greatest disturbance to gray seals is expected to occur during the beach nesting bird breeding season from April to August. During April and May, when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying widths, between 30 m and 300 m. In narrower areas, all of the seals may be disturbed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact on the hauled out seals. USFWS staff conduct research and monitoring work outside of the season of highest gray seal numbers.

Harbor Seal—Peak pupping for harbor seals is in June and occurs elsewhere, mainly on the coasts of Maine and maritime Canada. Prior to a 2001 study, it was thought that the majority of migrating harbor seals moving into New England waters were sub-adults and juveniles. The study revealed that adult seals also migrate to waters around Cape Cod (NOAA 2015b). However, data on harbor seal sex and age distribution is still insufficient to report. Harbor seals are only noted in gray seal haulouts if they are spotted by USFWS staff or researchers. USFWS staff estimate that gray seal haulouts are comprised of five percent or less harbor seals based on field observations, as harbor seals are not always seen mixed in with every gray seal haulout. Harbor seal numbers taper during the summer time when the highest level of seal disturbance occurs.

Here we describe how the information provided above is brought together to produce a quantitative take estimate. As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths or make longer retreats over the beach, or if already moving, make a change of direction of greater than 90 degrees or flush into the water in response to the presence of surveyors, are behaviorally harassed, and thus subject to Level B taking. Take estimation is based on the number of seals observed in past research years that have been flushed during research activities.

This estimate is based on the number of seals observed in past research years that have been flushed during research activities. USFWS used their knowledge of the number of seals that use the haulouts near their research activities, and how many of these may be taken (Levels 2 and 3 on the disturbance scale). The majority of takes will occur on Monomoy NWR, which is one of the main haulouts for gray seals in the country. While the average number of gray seals present (in regards to Monomoy NWR) is less than observed counts (B. Josephson, NOAA, pers. comm.), not every hauled-out seal on the beach is impacted from each activity and not all seals are impacted from every activity event. This is especially true for Monomoy NWR because the seal haulout stretches across over four miles of beach. For example, the gray seal counts on Monomoy NWR are very high, but the beaches are very large, and most of the work takes place on the upper berm close to the dune (farther away from seals). During April and May when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying width, between 30 m and 300 m. In narrower areas, all of the seals may be flushed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact at all on the hauled out seals. Also, the amount of disturbance to seals may vary based on staff activities (e.g., if project activities require staff to walk quickly through an area versus spending more time in one area close to seals). Take numbers were estimated from the number of seals using the refuge and the times that the activity might overlap with seal use areas. For example, most of the staging counts are not done in areas where seals haul out so the number of disturbances is very low during this task. Group size also played into the estimates. USFWS staff would impact a smaller number of seals during times of the year when group sizes are smaller (e.g., outside of April and May). USFWS staff who have conducted these activities for multiple years provided the best information available to us about the number of takes these activities may cause. In this IHA, we have included monitoring requirements that should inform our take numbers in future years.

The take numbers for gray seals is thought to be conservative, and likely an overestimate. USFWS staff believe these estimates are realistic and do not expect to exceed the take numbers.

It is unclear exactly how many harbor seals occur at the Complex, therefore it is difficult to determine how many takes occur since harbor seals are mainly present during the off season when research and monitoring is limited. Harbor seals are not present at all gray seal haulouts but at haulouts where both species are present, USFWS staff estimate that gray seal haulouts during the summer are comprised of 5 percent or less harbor seals. Due to the lack of available data on presence, harbor seal takes are not broken down by activity or site. Rather, the number of harbor seal Level B takes requested was calculated by taking 5 percent of the total gray seal take estimate. USFWS is requesting 1,964 Level B takes of harbor seals incidental to research and monitoring activities.

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.

Time and Frequency—The USFWS plans to conduct research activities throughout the course of the year between April 1 and November 30, 2018, outside of the seasons of highest seal abundance and pupping at the Complex.

Vessel Approach and Timing Techniques—The USFWS shall ensure that its vessel approaches to beaches with pinniped haulouts would be conducted so as to not disturb marine mammals as most practicable. To the extent possible, the vessel shall approach the beaches in a slow and controlled approach, as far away as possibly from haulouts to prevent or minimize flushing. Staff shall also avoid or proceed cautiously when operating boats in the direct path of swimming seals that may be present in the area.

Avoidance of Acoustic Impacts from Cannon Nets—Cannon nets have a measured SL of 128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); however, the SPL is expected to be less than the thresholds for airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other pinnipeds) at 80 yards from the source. The USFWS shall stay at least 100 meters from all pinnipeds if cannon nets are to be used for research purposes.

Avoidance of Visual and Acoustic Contact with People—The USFWS shall instruct its members and research staff to avoid making unnecessary noise and not expose themselves visually to pinnipeds whenever practicable. USFWS staff shall stay at least 50 yards from hauled out pinnipeds, unless it is absolutely necessary to approach seals closer, or potentially flush a seal, in order to continue conducting endangered species conservation work. When disturbance is unavoidable, staff shall work quickly and efficiently to minimize the length of disturbance. Researchers and staff will do so by proceeding in a slow and controlled manner, which allows for the seals to slowly flush into the water. Staff shall also maintain a quiet working atmosphere, avoiding loud noises, and using hushed voices in the presence of hauled out pinnipeds. Pathways of approach to the desired study or nesting site shall be chosen to minimize seal disturbance if an activity event may result in the disturbance of seals. USFWS staff shall scan the surrounding waters near the haulouts, and if predators (i.e., sharks) are seen, seals shall not be flushed by USFWS staff.

Researchers, USFWS staff, and volunteers shall be properly informed about the MMPA take prohibitions, and shall educate the public on the importance of not disturbing marine mammals, when applicable. Staff at Nantucket NWR shall remain present on the beaches utilized by pinnipeds to prevent anthropogenic disturbance during times of high public use (late spring to early fall). Staff at Monomoy NWR shall also be present on beaches utilized by seals during the same time of year, and will inform the public to keep a distance from haulouts if an issue is noticed. Similar to the USFWS, the NPS also takes precautionary mitigation to help prevent seal take by the public. In August and on the weekends in September, staff and volunteers are present on the National Seashore beaches to share with the public the importance of preventing disturbance to seals by keeping people at a proper viewing distance of at least 50 yards.

The presence/proximity of seal haulouts and the loud sound created by the firing of cannon nets are taken into consideration when selecting trapping sites for the Red Knot Stopover Study. Trapping sites are decided based on the presence of red knots, the number of juveniles located within roosts, and the observation of birds with attached geolocators and flags. Sites are not trapped on if there is a strong possibility of disturbing seals (i.e., closer than 100 meters). The Red Knot Stopover Study occurs during the time of year (July to September) when the least number of seals are present at the activity sites.

The mitigation measures are designed to minimize the potential for behavioral harassment of pinnipeds hauled out near the survey sites. The research and monitoring surveys occur outside of the period of highest seal abundance at the Complex. While the survey timing overlaps with harbor seal pupping season, pupping is not known to occur at the Complex. Gray seal pupping has been documented at the Complex but generally occurs between December and February, when USFWS staff will not be conducting surveys. We believe the previously stated mitigation measures are practicable for the applicant to implement.

Based on our evaluation of the applicant's planned measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for 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 action area. Effective reporting is critical both to 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.

The USFWS shall conduct marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and satisfy the monitoring requirements of the IHA. These include:

Monitoring seals as project activities are being conducted. Monitoring requirements in relation to the USFWS's activities include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the research activities, including location, date, and time of the event. In addition, the USFWS shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out. Behavior of seals shall be recorded on a three point scale: (1) Alert reaction, not considered harassment; (2) moving at least two body lengths, or change in direction greater than 90 degrees; (3) flushing (Table 2). USFWS staff shall also record and report all observations of sick, injured, or entangled marine mammals to the Greater Atlantic Regional Stranding Coordinator. Tagged or marked marine mammals shall also be recorded and reported to the appropriate research organization or Federal agency, as well as any rare or unusual species of marine mammal. Photographs shall be taken when possible. This information shall be incorporated into a report for NMFS at the end of the season. The USFWS shall also coordinate with any university, state, or Federal researchers to attain additional data or observations that may be useful for monitoring marine mammal usage at the activity sites.

If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of other marine mammal occurs, and such action may be a result of the USFWS's activities, the USFWS shall suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.

The USFWS shall submit a draft report to NMFS Office of Protected Resources no later than 90 days after the conclusion of research and monitoring activities in the 2018 season. The report shall include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The USFWS shall submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the USFWS receives no comments from NMFS on the draft report, NMFS will consider the draft report to be the final report.

The report shall describe the operations conducted and sightings of marine mammals near the project. The report shall provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report shall provide:

1. A summary and table of the dates, times, and weather during all research activities;

2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities;

3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the USFWS's activities; and

4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede), USFWS personnel shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator. The report must include the following information:

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

• Description and location of the incident (including water depth, if applicable);

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

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

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

• Fate of the animal(s); and

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

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

In the event that the USFWS discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the USFWS shall immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with the USFWS to determine whether modifications in the activities are appropriate.

In the event that the USFWS discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the USFWS shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator within 24 hours of the discovery. The USFWS personnel shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. The USFWS can continue their survey activities while NMFS reviews the circumstances of the incident.

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).

Although the USFWS's survey activities may disturb a small number of marine mammals hauled out on beaches in the Complex, NMFS expects those impacts to occur to a localized group of animals. Marine mammals would likely become alert or, at most, flush into the water in reaction to the presence of the USFWS personnel during the activities. Much of the disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time. Thus, the action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research activities.

The USFWS's activities would occur during the least sensitive time (e.g., April through November, outside of the pupping season) for hauled out pinnipeds in the Complex. Thus, pups or breeding adults would not be present during the activity days.

Moreover, the USFWS's mitigation measures regarding vessel approaches and procedures that attempt to minimize the potential to harass the seals would minimize the potential for flushing and large-scale movements. Thus, the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low.

In summary and as described above, the following factors primarily support our 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 injury (Level A harassment) or serious injury is anticipated or authorized;

• No mortality is anticipated or authorized;

• Impacts will occur to a localized group of animals;

• Disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time;

• Activities will occur during the least sensitive time (e.g., April through November, outside of pupping season) for pinnipeds hauled out in the Complex, therefore no pups or breeding adults would be present during the activity days; and

• The USFWS's mitigation measures regarding visual and acoustic disturbance to hauled out pinnipeds would minimize the potential for flushing and large-scale movements, therefore the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low;

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 monitoring and mitigation measures, NMFS finds that the total marine mammal take from the 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.

These incidental harassment take numbers represent less than three percent of the affected stocks of harbor seals.

Under the 2017 draft SARs, the take number of gray seals exceeds the stock abundance estimate in U.S. waters. However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities. The number of individual seals taken is also assumed to be less than the take estimate since these species show high philopatry (Waring et al., 2016; Wood et al., 2011). We expect the take numbers to represent the number of exposures, but assume that the same seals may be behaviorally harassed over multiple days, and the likely number of individual seals that may be harassed would be less. In addition, this project occurs in a small portion of the overall range of the Northwest Atlantic population of gray seals. While there is evidence of haulout site philopatry, resights of tagged and branded animals and satellite tracks of tagged animals show movement of individuals between the United States and Canada (Puryear et al., 2016). The percentage of time that individuals are resident in U.S. waters is unknown (NMFS 2017). Genetic evidence provides a high degree of certainty that the Western North Atlantic stock of gray seals is a single stock (Boskovic et al., 1996; Wood et al., 2011). Thus, although the U.S. stock estimate is only 27,131, the overall stock abundance is 451,131. The gray seal take estimate for this project represents less than nine percent of the overall Western North Atlantic stock abundance in U.S. and Canadian waters (Table 4).

Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS 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 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.

No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

As a result of these determinations, NMFS has issued an IHA to the USFWS for the harassment of small numbers of gray and harbor seals incidental to seabird and shorebird research activities at the Eastern Massachusetts National Wildlife Refuge Complex, Massachusetts, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

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.

On October 17, 2017, NMFS received a request from the City of Astoria (City), Oregon, for an IHA to take marine mammals incidental to replacement of bridges in downtown Astoria along the Columbia River. The application was considered adequate and complete on January 17, 2018. The City's request was for take of California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus), and harbor seals (Phoca vitulina richardii) by Level B harassment only. Neither the City nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

The City of Astoria is planning to replace three bridges connecting city streets to waterfront piers in the Columbia River. The bridges are currently supported by deteriorated timber piles, which will be removed and replaced with steel piles. Bridge replacement is scheduled to begin with above-water work to remove the superstructures of the bridges in October 2018. In-water pile removal and installation will occur over 80 days between November 1, 2018 and February 28, 2019. Vibratory removal of 255 timber piles is expected to take 26 days while impact driving of 74 permanent steel piles and installation and subsequent removal of 10 temporary steel piles is expected to take 42 days. The remaining 12 days of in-water work will be used to remove concrete footings and a concrete retaining wall along the riverbank. Additional above-water construction to replace the bridge superstructures will occur in March and April 2019.

A detailed description of the planned bridge replacement project is provided in the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018). Since that time, no changes have been made to the planned construction activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

A notice of NMFS' proposal to issue an IHA was published in the Federal Register on February 22, 2018 (83 FR 7680). During the 30-day public comment period, the Marine Mammal Commission (Commission) submitted a letter on March 21, 2018. The Commission provided comments as described below and concurred with NMFS's finding that recommended the issuance of an IHA to the City, subject to the inclusion of the mitigation, monitoring, and reporting measures.

Comment 1: The Commission commented that NMFS' method of estimating takes from this project was inappropriate. Rather than multiplying the average count of pinnipeds from the South Jetty by months of activity, NMFS should have multiplied by days of activity. As a result, the take numbers proposed in the Federal Register notice (83 FR 7680; February 22, 2018) were underestimated. The Commission recommended revising the take estimates to better reflect the likelihood of pinniped occurrence in the project area.

Response 1: NMFS concurs with the Commission recommendation and has modified the authorized take limits to account for newly available site-specific data. These changes are described further in the “Marine Mammal Occurrence” and “Take Calculation and Estimation” sections in this notice. As a result of this modification, NMFS authorized the take of 33,736 California sea lions, 5,360 Steller sea lions, and 4,560 harbor seals.

Comment 2: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

Response 2: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

A detailed description of the species likely to be affected by the City's actions, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, are provided in the City's application and the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018). We are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please refer to additional species information available in the NMFS stock assessment reports for the Pacific and Alaska at http://www.nmfs.noaa.gov/pr/sars/region.htm.

The effects of underwater noise from vibratory and impact pile driving and airborne noise from superstructure construction for the bridge replacement project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018) included a discussion of the effects of the project and anthropogenic noise on marine mammals, therefore that information is not repeated here; please refer to the Federal Register notice (83 FR 7680; February 22, 2018) for that information. We provide a summary here.

The main impact associated with the bridge replacement project would be exposure to temporarily elevated sound levels and the associated direct effects on marine mammals (e.g., temporary hearing impairment, behavioral disturbance, and stress). The new bridges will be installed within the footprint of the existing bridges, therefore no new permanent impacts to habitats used by marine mammals would result from the project. Some short-term impacts to prey availability (e.g., fish) and minor impacts to the immediate substrate may occur as a result of increased turbidity from pile installation and removal but the effects are expected to be minimal. No critical habitat for any marine mammal species occurs in the project area.

This section provides an estimate of the number of incidental takes authorized by this IHA, which informs 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 are by Level B harassment only, for individual marine mammals resulting from exposure to pile driving and construction activities. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown—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). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed.

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 decibels (dB) re 1 micro pascal (μPa) root mean square (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) or intermittent (e.g., scientific sonar) sources. For in-air sounds, NMFS predicts that pinnipeds exposed above received levels of 100 dB re 20 μPa (rms) will be behaviorally harassed.

The City's activities include the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) 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) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The City's activities include the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources.

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 2 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: https://www.fisheries.noaa.gov/resource/document/underwater-acoustic-thresholds-onset-permanent-and-temporary-threshold-shifts.

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

In-Air Disturbance during General Construction Activities—Level B behavioral disturbance may occur incidental to the use of construction equipment during general construction that is proposed in the dry, above water, or inland within close proximity to the river banks. These construction activities are associated with the removal and construction of the rail superstructures, and the removal of the existing concrete foundations and the 9th Street retaining wall. Possible equipment includes an excavator, crane, dump truck, and chain saw. It is estimated that the sound levels during these activities will range from 78 to 93 dB (rms) at 20 meters (m) from the sound source, with the loudest airborne noise produced by the use of a concrete saw (Hanan & Associates, 2014). These noise levels are based on acoustic data collected during the City of San Diego Lifeguard Station Demolition and Construction Monitoring project. Using the Spherical Spreading Loss Model (20logR), a maximum sound source level of 93 dB (rms) at 20 m, sound levels in-air would attenuate below the 90dB (rms) Level B harassment threshold for harbor seals at 28 m, and below the 100 dB (rms) threshold for all other pinnipeds at 9 m. Harbor seals are only present in the main river channel and are not expected to occur within 28 m of the activity and are therefore not expected to be harassed by in-air sound. Additionally, the city will implement a 10 m shutdown zone for all general construction work to prevent injury from physical interaction with equipment. The City would therefore shut down equipment before hauled out sea lions could be acoustically harassed by the sound produced. No Level B harassment is expected to occur due to increased sounds from railway and roadway construction. However, sea lions may be disturbed by the presence of construction equipment and increased human presence during above-water construction.

Although some piles may potentially be driven or removed in the dry due to tidal conditions, the City assumed all pile driving and removal will occur in water. The Level B harassment zone for in-water pile driving and removal is greater than the airborne Level B harassment zone so no airborne harassment is requested from pile driving or removal. All harassment due to pile driving and removal is assumed to be in-water.

In-Water Disturbance during Vibratory Pile Removal—Level B behavioral disturbance may occur incidental to the use of a vibratory hammer due to propagation of underwater noise during the removal of the existing timber substructures. An estimated 255 timber piles will need to be removed to facilitate construction of the three new crossings. It is anticipated that the contractor will need to utilize a vibratory hammer during extraction. Removal via vibratory hammer will result in the greatest amount of underwater noise during construction and will be the farthest reaching extent of aquatic impacts during pile removal activities. We note that some pile removal will occur in the dry (depending on tidal stage); however, we conservatively assumed all work would occur in-water since it is not feasible to determine how many piles would be removed in the dry. When piles are removed at lower tidal stages, we do not anticipate sound to propagate as far or, in the case of no water, at all.

Washington State Department of Transportation (WSDOT) monitored underwater noise during the removal of three 12-in timber dolphin piles at Port Townsend (Laughlin 2011a). Most of the timber piles to be removed in this project are 12-in but some may be up to 14-in. Average noise levels during vibratory removal of the wood piles were measured at 150 dB (rms) at 16 m from the source. The Practical Spreading Loss Model (15logR) was used to calculate the in-water Level B harassment zone during vibratory pile removal. Using a measurement of 150dB at 16 m, a 1,600 m Level B harassment zone (120 dB rms threshold) is expected for vibratory pile removal activities. Based on the contours of the shoreline and 1,600 m Level B harassment zone, a total of 4.5 square kilometers (km2) is expected to be ensonified due to vibratory pile removal (see Figure 10 in application) (Table 7).

In-Water Disturbance during Impact Pile Driving—Level B behavioral disturbance may occur incidental to the use of an impact hammer due to the propagation of underwater noise during the installation of permanent and temporary steel piles. The City will install a total of 74 24-in and 10 16-in steel piles. The City used the sound source levels from 24-in piles only to estimate the Level B harassment zone due to pile driving as the sound source levels from 24-in piles are greater than those of 16-in piles. The City will use the Level B harassment zone created by installation of 24-in piles during the installation of 16-in piles to be conservative.

Based on the most recent WSDOT data, the unmitigated sound pressure level associated with impact pile driving 24-in steel piles is 194 dB RMS at 10 m (WSDOT 2016). The contractor will be required to use a bubble curtain device during impact pile driving in compliance with the Federal Aid Highway Program (FAHP) Programmatic Biological Opinion, which will be utilized for ESA coverage for listed salmonids. Use of a bubble curtain device was assumed to decrease initial sound levels by 10 dB (Reyff, 2007), resulting in an initial sound pressure level (SPL) of 184 dB RMS at 10 m from the source. Using the values from WSDOT in the Practical Spreading Loss Model (15logR), the distance to the 160 dB behavioral disturbance threshold is calculated to be 398 m from the pile when a noise attenuation device is used (Table 3) as opposed to 1,848 m when a device is not used. The use of a noise attenuation device would shrink the distance at which noise exceeds the thresholds by approximately 80 percent, resulting in a significantly smaller area of potential impact. With a 398 m Level B harassment zone, a total of 0.40 km2 is expected to be ensonified by impact pile driving (Figure 11 in application).

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 impact and vibratory pile driving), 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 permanent threshold shift (PTS). Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.

The resulting small PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. Given the extended durations and due to the relatively small distances to PTS onset from each activity, and the mitigation measures (See “Mitigation”) proposed by the City, Level A take is neither expected nor authorized.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

In the Federal Register notice of proposed IHA (83 FR 7680; February 22, 2018), takes of marine mammals were estimated using counts from 2000-2014 by WDFW at the South Jetty at the mouth of the Columbia River. At the time of publication, these counts were believed to be the best available data on pinniped occurrence in the lower Columbia River. After publication of the Federal Register notice (83 FR 7680; February 22, 2018), NMFS learned of Oregon Department of Fish and Wildlife (ODFW) aerial surveys of pinnipeds at the East Mooring Basin (approximately one mile upstream from the project site) and Desdemona Sands (approximately one mile downstream from the project site). Estimated takes of California sea lions were recalculated using data generated by those surveys (ODFW; Bryan Wright, pers. comm., March 2018).

Aerial surveys of the East Mooring Basin in Astoria from 2011 to 2017 were used to calculate take of California sea lions. Maximum daily counts of California sea lions at the East Mooring Basin ranged from 3 in July 2016 to 3,834 in March 2016. In addition to ODFW aerial surveys, the City conducted opportunistic surveys of pinnipeds at the bridge sites in December 2017. A maximum of four California sea lions were observed in the water surrounding the bridges and piers. Additional California sea lions were heard vocalizing from the riverbanks under the bridges but the number of sea lions could not be determined. A conservative estimate of 16 California sea lions per day may be hauled out on the riverbanks and subject to harassment from above-water construction work.

Counts of Steller sea lions at the East Mooring Basin typically numbered in the single digits (B. Wright, pers. comm., March 2018). However, there are typically dozens of Steller sea lions at the Bonneville Dam and a few individuals at Willamette Falls. While the sea lions observed at Bonneville and Willamette are often the same individuals seen daily, these animals must transit past Astoria at some point in their travels from the Pacific to the upper Columbia River (B. Wright, pers. comm., March 2018).

Numbers of harbor seals hauled out at Desdemona Sands have been reported to reach into the thousands (Profita 2015) but specific counts were unavailable. Without counts of harbor seals closer to the project site, the maximum average count of harbor seals at the South Jetty (57 seals; WDFW 2014) is used to calculate take.

Here we describe how the information provided above is brought together to produce a quantitative take estimate.

In the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018), take of each species was calculated using average counts of pinnipeds at the South Jetty (WDFW 2014). Average monthly counts were multiplied by months of activity to determine the total take estimation. During the public comment period, we received information that although the WDFW counts were presented as average number of pinnipeds per month, the numbers were actually daily counts and therefore should have been multiplied by days of activity. The take limits in the final authorization were calculated by multiplying maximum counts of pinnipeds by days of activity.

Although three species of pinniped occur in the vicinity of the project, they do not occur in equal numbers. Harbor seals and Steller sea lions do not haul-out near the project area and would only be harassed if they are transiting through the in-water Level B harassment zone (1,600 m for vibratory pile removal, 398 m for impact pile driving) at the time of pile driving. Because harbor seals and Steller sea lions do not have the potential to be harassed when hauled-out (in-air), they would only be harassed during the in-water work period (November through February).

California sea lions are the most commonly observed marine mammal in the area, and are known to haul out on the riverbanks and structures near the bridges. California sea lions may be harassed by underwater sound resulting from vibratory pile removal and impact pile driving (at the distances listed above) as well as airborne sound resulting from roadway and railway demolition and construction. As such, California sea lions may be subject to both in-water and in-air sources of harassment (October through April).

Using the highest sound source (concrete saw, 93 dBrms re: 20 µPa at 20 m), the isopleth to Level B harassment from airborne noise (100 dB re: 20 µPa) is 9 m. The City is proposing a 10 m shutdown zone during all railway and roadway above-water construction to prevent injury from physical interaction with equipment (see “Mitigation”). The City would therefore shut down equipment before sea lions would be acoustically harassed by the sound produced and no Level B acoustic harassment would occur. However, the City anticipates that California sea lions hauled out on the banks of the river in the vicinity of the construction work may be visually disturbed by the presence of construction equipment and may flush, resulting in Level B take. Therefore, we have authorized take of California sea lions during the above-water work period (October 2018 and March-April 2019).

While harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February), California sea lions may be harassed over the entire duration of the project (October through April). To determine the estimated exposure and take of harbor seals, the maximum average daily count of harbor seals at the South Jetty (57 seals) was multiplied by planned days of in-water work (80 days). Similarly, the maximum number of Steller sea lions observed at the Bonneville Dam (63; USACE 2017) and Willamette Falls (4; ODFW 2017) were multiplied by 80 days of in-water work to account for the maximum number of Steller sea lions likely to be in the Columbia River transiting past Astoria each day (Table 8).

Take of California sea lions was calculated by multiplying the average maximum daily count per month by the days of activity in each month (Table 9).

Background

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 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).

On October 18, 2017, NMFS received a request from the Society for an IHA to take marine mammals incidental to restoration, maintenance, and tour operations at St. George Reef Lighthouse (Station) located on Northwest Seal Rock (NWSR) offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application adequate and complete on January 17, 2018. The Society's request was for take of California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus), northern fur seals (Callorhinus ursinus) and Pacific harbor seals (Phoca vitulina richardii) by Level B harassment only. Neither the Society nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

NMFS has previously issued seven IHA's to the Society for similar work between 2010 and 2017 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, February 23, 2016; and 82 FR 11005, February 17, 2017). The Society complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section.

The Station, listed in the National Park Service's National Register of Historic Places, is located on NWSR offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse, to conduct tours, and to conduct annual and emergency maintenance on the Station's optical light system.

The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The Society's activity will occur on a monthly basis over one weekend, November through April. The following specific aspects of the activities will likely result in the take of marine mammals: Acoustic and visual stimuli from (1) helicopter landings/takeoffs; (2) noise generated during restoration activities (e.g., painting, plastering, welding, and glazing); (3) maintenance activities (e.g., bulb replacement and automation of the light system); and (4) human presence.

A detailed description of the planned activities is provided in the Federal Register notice (83 FR 8841, March 1, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

A notice of NMFS's proposal to issue an IHA was published in the Federal Register on March 1, 2018 (83 FR 8841). During the 30-day public comment period, the Marine Mammal Commission (Commission) submitted a letter on March 7, 2018. The Commission provided comments as described below and concurred with NMFS's findings that the recommended issuance of an IHA to the Society, subject to the inclusion of the mitigation, monitoring, and reporting measures.

Comment: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal of an IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

A detailed description of the species likely to be affected by the planned activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 8841, March 1, 2018). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions as well as to NMFS's website (www.nmfs.noaa.gov/pr/species/mammals/) for generalized species accounts.

The effect of stressors associated with the specified activities (e.g., helicopter operations) has the potential to result in behavioral harassment of marine mammals in the vicinity of the action areas. The Federal Register notice for the proposed IHA (83 FR 8841, March 1, 2018) included a discussion of the effects of such disturbance on marine mammals, therefore that information is not repeated here.

NMFS described potential impacts to marine mammal habitat in detail in our Federal Register notice of proposed authorization (83 FR 8841, March 1, 2018). In summary, the project activities will not modify existing marine mammal habitat. Because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations.

This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS's consideration of “small numbers” 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 will be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to aircraft operations and lighthouse maintenance activities. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 2).

Below we describe how the take is estimated.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of NWSR during restoration activities (SGRLPS 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions were 2 and 155 animals, respectively (SGRLPS 2012). During the 2012 season, the Society did not observe any Steller sea lions present on NWSR during restoration activities. The Society did not conduct any operations for the 2013-2014, 2014-2015, and 2015-2016 seasons. The Society reported no Steller sea lions observed in the 2016-2017 and 2017-2018 work seasons (T. McNamara, pers. comm., 2018).

Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions were 2 and 160 animals, respectively (SGRLPS 2012). There were no California sea lions present during the March, 2012 work session (SGRLPS 2012). The Society reported 16 California sea lions observed in March 2017 and no California sea lions present in April 2017. The Society also reported that 16 California sea lions were observed in November 2017 (Terry McNamara, pers. comm., 2018).

For the 2010, 2011, and 2012 work seasons, the Society did not observe any northern fur seals present on NWSR during restoration activities (SGRLPS 2010; 2011; 2012). No northern fur seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).

For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on NWSR during restoration activities (SGRLPS 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on NWSR (SGRLPS 2012). No harbor seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).

Here we describe how the information provided above is brought together to produce a quantitative take estimate.

Based on the Society's previous monitoring reports, NMFS estimates that approximately 2,880 California sea lions (calculated by multiplying the maximum single-day count of California sea lions present on NWSR (160) by 18 days of the restoration, maintenance, and touring activities), 2,790 Steller sea lions (calculated by multiplying the maximum single-day count of Steller sea lions that could be present (155) by 18 days of the restoration, maintenance, and touring activities), 36 Pacific harbor seals (calculated by multiplying the maximum single-day count of harbor seals present on NWSR (2) by 18 days), and 18 Northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 18 days) could be potentially affected by Level B behavioral harassment over the course of the IHA (Table 3). NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 75 hours of aircraft operations over the course of the 18 days of activity.

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.

Time and Frequency—The Society shall conduct restoration and touring activities at a maximum of once per month over the course of the year, with the exception of between May 1, 2018 through October 31, 2018 (barring potential emergency light repairs during this time). Each restoration session shall last no more than three days. Maintenance of the light beacon shall occur only in conjunction with restoration activities (except if an emergency light repair is needed from May 1, 2018 through October 31, 2018).

Helicopter Approach and Timing Techniques—The Society shall ensure that its helicopter approach patterns to the Station and timing techniques shall be conducted at times when marine mammals are less likely to be disturbed. To the extent possible, the helicopter will approach NWSR when the tide is too high for the marine mammals to haul out on NWSR. Additionally, since the most severe impacts (stampede) precede rapid and direct helicopter approaches, the Society's initial approach to the station must be offshore from the island at a relatively high altitude (e.g., 800-1,000 ft, or 244-305 m). Before the final approach, the helicopter shall circle lower and approach from area with the lowest pinniped density. If for any safety reasons (e.g., wind condition) the Society cannot conduct these types of helicopter approach and timing techniques, they must postpone the restoration and maintenance activities for that day.

Avoidance of Visual and Acoustic Contact with People on Island—The Society shall instruct its members and restoration crews to avoid making unnecessary noise and not expose themselves visually to pinnipeds around the base of the station. Although CCR reported no impacts from these activities in the 2001 study, it is relatively simple for the Society to avoid this potential impact. The door to the lower platform shall remain closed and barricaded to all tourists and other personnel since the lower platform is used at times by pinnipeds.

NMFS has determined that the above mentioned mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for 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 action area. Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring.

Monitoring and reporting requirements prescribed by NMFS will 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.

As part of its IHA application, the Society shall sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. These requirements include:

• A NMFS approved, experienced biologist will be present on the first flight of each day of the activity. This observer must be able to identify all species of pinnipeds expected to use the island, and qualified to determine age and sex classes when viewing conditions allow. The observer shall record data including species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the activities, including location, date, and time of the event. In addition, the Society shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out; and

• Aerial photographic surveys to provide an accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society shall complete aerial photo coverage from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society shall take photographs of all marine mammals hauled out on the island from an altitude greater than 300 m (984 ft) by a skilled photographer, on the first flight of each day of activities. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs will be made available to us or other marine mammal experts for inspection and further analysis.

As detailed above, the monitoring requirements in relation to the Society's activities include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the restoration activities, including location, date, and time of the event. In addition, the Society shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out.

By completing the requirements mentioned above, the Society will add to the knowledge of pinnipeds in the action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, enabling appropriate personnel to conduct future follow-up research; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.

If at any time injury, serious injury, or mortality of the species for which take is authorized occurs, or if take of any other kind of marine mammal occurs, and such action is believed to be a result of the Society's activities, the Society shall suspend restoration and tour activities and contact NMFS immediately. NMFS will then determine how best to proceed to ensure another injury or death does not occur and to guarantee the applicant remains in compliance with the MMPA.

Monitoring requirements in relation to the Society's restoration activities shall include observations made by the Society. Information recorded shall include species counts (with age/sex classes when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the helicopter operations, including relative location, date, and time of the event. For consistency, any reactions by pinnipeds to researchers shall be recorded according to the three-point scale shown in Table 2. Note that only observations of disturbance Levels 2 and 3 should be recorded as takes.

A draft final report must be submitted to NMFS Office of Protected Resources within 90 days of conclusion of restoration activities in April. The report must include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The Society must submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.

The report must describe the operations conducted and sightings of marine mammals near the project. The report must provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report must provide:

1. A summary and table of the dates, times, and weather during all activities.

2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.

3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.

4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede), society personnel shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant West Coast Regional Stranding Coordinator. The report must include the following information:

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

• Description and location of the incident (including water depth, if applicable);

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

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

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

• Fate of the animal(s); and

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

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

In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Society shall immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, (562) 980-3230. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Society to determine whether modifications in the activities are appropriate.

In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Society shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant West Coast Regional Stranding Coordinator within 24 hours of the discovery. Society personnel shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. The Society shall continue their survey activities while NMFS reviews the circumstances of the incident.

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).

Although the Society's survey activities may disturb a small number of marine mammals hauled out on NWSR, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (e.g., six hours in one day). Marine mammals will likely become alert or, at most, flush into the water in reaction to the presence of the Society's personnel during the activities. Disturbance will be limited to a short duration, allowing marine mammals to reoccupy NWSR within a short amount of time. Thus, the authorized action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the restoration activities and helicopter operations. Results from previous monitoring reports also show that the pinnipeds returned to NWSR and did not permanently abandon haulout sites after the Society conducted their activities.

With the exception of emergency repairs, which are unlikely to occur, the Society's activities occur during the least sensitive time (e.g., November through April, outside of the pupping season) for hauled out pinnipeds on NWSR. Thus, pups or breeding adults will likely not be present during the activity days.

Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious, injury, or mortality is low.

Any noise attributed to the Society's helicopter operations on NWSR will be short-term (approximately six minutes per trip). We expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter lands and takes off from the station, sound levels are below the thresholds for airborne pinniped disturbance at the landing pad which is 15 m (48 ft) above the rocks. Additionally, the pinnipeds will likely flush before the helicopter approached NWSR, further increasing the distance between the pinnipeds and the received sound levels on NWSR.

If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of a helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on NWSR will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water will likely be gradual due to the required controlled helicopter approaches (see Mitigation for more details), the small size of the aircraft, the use of noise-attenuating blade tip caps on the rotors, and behavioral habituation on the part of animals as helicopter trips continue throughout the day. During the sessions of helicopter activity, if present on NWSR, some animals may be temporarily displaced from the island and either raft in the water or relocate to other haulouts.

Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrivals/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or Northern fur seals.

In summary and as described above, the following factors primarily support our 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:

• The impacts to animals present will be of limited duration (i.e., at maximum three days a month);

• The impacts will be of limited intensity (i.e., temporary flushing at most); and

• No injury or mortality is anticipated or authorized.

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 monitoring and mitigation measures, NMFS finds that the total marine mammal take from the 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.

As mentioned previously, NMFS estimates that the Society's activities could potentially affect, by Level B harassment only, four species of marine mammals under our jurisdiction. For each species, these estimates are small numbers (less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than seven percent of the stock of Steller sea lions) relative to the population size (Table 3). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.

NTIA serves as the President's principal adviser on telecommunications policies pertaining to the Nation's economic and technological advancement and establishes policies concerning use of the radio spectrum by federal agencies. NTIA is hosting a symposium that will focus on developing, implementing and maintaining spectrum management policies that enable the United States to strengthen its global leadership role in the introduction of wireless telecommunications technology, services, and innovation, while also supporting the expansion of existing technologies and the Nation's homeland security, national defense, and other critical government missions.

The keynote address will be delivered by David J. Redl, Assistant Secretary of Commerce for Communications and Information and NTIA Administrator. Additional speakers from Congress and the Executive Office of the President have been invited. Policy panel sessions are expected to include participants from the Federal Communications Commission, other federal agencies, and private sector and other non-government organizations. Prior to the event, NTIA will post a detailed agenda on its website at: https://www.ntia.doc.gov/other-publication/2018/2018-ntia-spectrum-policy-symposium.

The symposium is open to the public and members of the press. Pre-registration is requested due to limited seating capacity. Registration will be accepted on a first come, first served basis. NTIA asks registrants to provide their first and last names, email addresses, and their organization (optional) for both registration purposes and to receive updates on the symposium. Registration information, the agenda, and meeting updates, if any, and other relevant documents will be available on NTIA's website at https://www.ntia.doc.gov/other-publication/2018/2018-ntia-spectrum-policy-symposium.

The meeting will be physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, should notify Mr. Alden at the contact information listed above at least ten (10) business days before the event.

Title; Associated Form; and OMB Number: Application for Department of the Army Permit; ENG 4345 and Nationwide Permit (NWP) Pre-Construction Notification form, ENG Form 6082; OMB Control Number 0710-0003.

Needs and Uses: Information collected is used to evaluate, as required by law, proposed construction or filing in waters of the United States that result in impacts to the aquatic environment and nearby properties, and to determine which type of permit would be required if one was needed. Respondents are private landowners, businesses, non-profit organizations, and government agencies. Respondents also include sponsors of proposed and approved mitigation banks and in-lieu fee programs.

Affected Public: Individuals or households; business or other for-profit; not-for-profit institutions; farms; Federal government; state, local, or tribal government.

Annual Burden Hours: 880,000.

Number of Respondents: 80,000.

Responses per Respondent: 1.

Average Burden per Response: 11 hours.

Frequency: On occasion.

The Corps of Engineers is required by three federal laws, passed by Congress, to regulate construction-related activities in waters of the United States. This is accomplished through the review of applications for permits to do this work. There are five types of permits that may be used. The ENG 4345 form used for standard permit applications has been in use since the 1970s and the request to extend the expiration date is being provided in this notice. In addition, the Corps is now proposing a form specific to their nationwide permit program. Nationwide Permits (NWPs) are one type of permit authorization that involves a streamlined review process to ensure that no more than minimal individual or cumulative adverse environmental effect result from construction of the proposed activity. NWPs authorize discharges of dredged or fill material into waters of the United States pursuant to Section 404 of the Clean Water Act and structures or work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899.

This form is optional, but allows the Corps to collect the information needed to evaluate the applicants' proposal to determine eligibility for authorization. The Corps will provide outreach materials to guide the public in which of the forms should be used and how using the form and providing the information requested can reduce the time it takes to review whether an application is complete.

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

Title of Collection: National Household Education Survey 2019 (NHES:2019).

OMB Control Number: 1850-0768.

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

Respondents/Affected Public: Individuals or Households.

Total Estimated Number of Annual Responses: 123,177.

Total Estimated Number of Annual Burden Hours: 12,964.

Abstract: The National Household Education Survey (NHES) is a data collection program of the National Center for Education Statistics (NCES) designed to provide descriptive data on the education activities of the U.S. population, with an emphasis on topics that are appropriate for household surveys rather than institutional surveys. Such topics have covered a wide range of issues, including early childhood care and education, children's readiness for school, parents' perceptions of school safety and discipline, before- and after-school activities of school-age children, participation in adult and career education, parents' involvement in their children's education, school choice, homeschooling, and civic involvement. This request is to conduct the NHES:2019 full scale data collection, from December 2018 through September 2019, in conjunction with an In-Person Study of Nonresponding Households, designed to provide insight about nonresponse that can help plan future survey administrations. NHES 2019 will use mail and web data collection modes and will field two surveys: The Early Childhood Program Participation survey (ECPP) and the Parent and Family Involvement in Education survey (PFI).

Table of Contents Part I Introduction and Background Part II Summary of Proposed Revised Rules of Procedure Part III Proposed Revised Rules of Procedure Part I—Introduction and Background

The Northwest Power Act provides that Bonneville must establish and periodically review and revise its rates so that they recover, in accordance with sound business principles, the costs associated with the acquisition, conservation, and transmission of electric power, including amortization of the Federal investment in the Federal Columbia River Power System over a reasonable number of years, and Bonneville's other costs and expenses. 16 U.S.C. 839e(a)(1). Section 7(i) of the Northwest Power Act, 16 U.S.C. 839e(i), requires that Bonneville's rates be established according to certain procedures, including notice of the proposed rates; one or more hearings conducted as expeditiously as practicable by a hearing officer; opportunity for both oral presentation and written submission of views, data, questions, and arguments related to the proposed rates; and a decision by the Administrator based on the record.

In addition, section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A), provides in part that the Administrator may conduct a section 7(i) hearing to determine the terms and conditions for transmission service on the Federal Columbia River Transmission System under certain circumstances. Such a hearing must adhere to the procedural requirements of paragraphs (1) through (3) of section 7(i) of the Northwest Power Act, except that the hearing officer makes a recommended decision to the Administrator before the Administrator's final decision.

Bonneville last revised its procedures to govern hearings under section 7(i) of the Northwest Power Act in 1986. See “Procedures Governing Bonneville Power Administration Rate Hearings,” 51 Federal Register 7611 (1986). Since the establishment of those procedures, there have been significant advancements in the technology available to conduct the hearings. The proposed revised rules of procedure incorporate changes to reflect the manner in which Bonneville has applied these advancements. In addition, through conducting numerous hearings over the past few decades, Bonneville has gained insight regarding the strengths and weaknesses of the current procedures. The proposed revisions incorporate changes to make the hearings more efficient and procedures that were regularly adopted by order of the hearing officer in previous hearings. Finally, the proposed revisions explicitly provide that the rules apply to any proceeding under section 212(i)(2)(A) of the Federal Power Act (“section 212 proceedings”).

In order to encourage public involvement and assist Bonneville in the development of the proposed revised procedures, Bonneville met with customers and other interested parties on February 13, 2018, in Portland, Oregon, to discuss how the current rules might be revised. Bonneville also solicited written comments over a two-week period ending February 28, 2018. After reviewing the comments, Bonneville incorporated a number of revisions to its proposed rules.

Although rules of agency procedure are exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), Bonneville is nevertheless publishing notice of the proposed revisions to its procedural rules in the Federal Register to promote transparency and public participation. Bonneville will accept written comments on the proposed revisions until the deadline stated above. After considering the written comments, Bonneville will publish the final rules in Federal Register later this year.

The statements below provide general summaries of some of the proposed revisions in each section of the rules.

• The proposed revisions specify that the rules apply to wholesale power and transmission rate case proceedings and section 212 proceedings.

• A provision has been added to clarify that the rules do not establish substantive standards for the Administrator's final decisions.

• Various definitions were added or revised in this section.

• A provision has been added to clarify that parties should contact the hearing clerk with procedural questions rather than Bonneville counsel or rates staff.

• A provision has been added to recognize that the hearing officer can establish special rules of practice that are consistent with the proposed rules.

• A provision has been added to require the Federal Register notice initiating the proceeding to include the proposed new or revised terms and conditions of transmission service for section 212 proceedings.

• A provision has been added to require the Federal Register notice to include procedures for requesting access to the secure website for purposes of filing petitions to intervene.

• A provision has been added to require the Federal Register notice to state that the scope of a proceeding may include new issues that arise as a result of circumstances or events occurring outside of the proceeding.

• Proposed revisions more clearly prohibit ex parte communications with the hearing officer.

• A provision has been added to clarify that communications between the hearing officer and the hearing clerk (or other staff providing administrative support to the hearing officer) are not ex parte.

• The procedures for addressing ex parte communications have been revised to provide that written ex parte communications and written summaries of oral ex parte communications will be posted on Bonneville's website rather than being made available in Bonneville's Public Involvement Office.

• The procedures for intervention were modified to provide prospective intervenors access to the secure website before filing a petition to intervene. Once access has been granted, a petition to intervene can be filed through the secure website.

• A provision has been added to encourage parties with similar interests to establish joint parties and describes how to form joint parties.

• A provision has been added to describe the manner in which members of the general public, who are not parties, can submit comments.

• A provision has been added to recognize that the hearing officer will hold a prehearing conference to adopt a procedural schedule and any special rules of practice that are consistent with the proposed rules.

• Provisions have been added to require that litigants file all documents through the secure website and that such filings will constitute service on all parties.

• Provisions were added to specify the types of pleadings, establish format and content requirements, and clarify rights and procedures for filing responsive pleadings.

• Procedures have been added to govern interlocutory appeal of an order of the hearing officer to the Administrator.

• The scope of permissible data requests has been revised. Data requests must seek information that is relevant to an issue in the proceeding and proportional to the needs of the case according to a variety of factors listed in the rule.

• Provisions have been added to require litigants to be reasonable in the number and breadth of data requests.

• Provisions have been added to govern the treatment of information that is privileged, commercially sensitive, or pertains to critical electric infrastructure.

• Provisions have been added to govern the process for filing and responding to motions to compel. In deciding a motion to compel, the hearing officer will consider a variety of factors, including the potential impact of the decision on completing the proceeding according to the procedural schedule.

• The proposed revisions establish format and content requirements for prefiled testimony and exhibits and specify that litigants will have the opportunity to rebut the direct testimony of other litigants.

• The proposed revisions clarify that materials incorporated into prefiled testimony by reference or by providing a link to a website will not be considered part of the record even if the prefiled testimony is accepted into the record. Any materials that a litigant wants included in the record should be submitted as an exhibit and subsequently moved in to evidence.

• The proposed revisions specify that prefiled testimony and exhibits are not part of the record until they have been admitted into evidence by the hearing officer and provide procedures for moving those materials into the record.

• The proposed revisions specify the procedures for filing cross-examination statements and provide that witnesses generally will be cross-examined as a panel.

• The proposed revisions clarify that witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform.

• Friendly cross-examination is prohibited, except that counsel for a litigant with a position that is not adverse to the witnesses may seek leave from the hearing officer to ask limited follow-up questions of a witness after any redirect testimony. Any follow-up questions are limited to the scope of the cross-examination.

• The proposed revisions broadly define cross-examination exhibits and require litigants to file all cross-examination exhibits for a witness two business days before the witness is scheduled to appear.

• Litigants must provide physical copies of cross-examination exhibits at the beginning of cross-examination.

• A provision has been added to provide that the hearing officer may admit into evidence stipulations on any issue of fact.

• A provision has been added to recognize that the hearing officer or the Administrator may take official notice of certain matters, and provides guidelines for litigants requesting official notice.

• The proposed revisions include a standard outline and format for briefs in order to help Bonneville identify parties' specific issues and recommendations and prepare the records of decision in a more orderly manner.

• The briefing provisions specify that Bonneville may file briefs in section 212 proceedings and that the Administrator may allow additional briefing opportunities in such proceedings.

• Provisions have been added to permit oral argument and establish procedures for providing notice of intent to present oral argument.

• A provision has been added to provide guidelines for telephone conferences.

• A provision has been added to address the hearing officer's recommended decision in section 212 proceedings.

• A provision has been added to note that the Administrator will issue a Final Record of Decision in all ratemaking and section 212 proceedings.

• Expedited proceedings are defined as extending 90-120 days from the date the Federal Register Notice is published.

(a) General rule of applicability. These rules apply to all proceedings conducted under the procedural requirements contained in Section 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i), for the purpose of:

(1) Revising or establishing rates under Section 7 of the Northwest Power Act;

(2) revising or establishing terms and conditions of general applicability for transmission service on the Federal Columbia River Transmission System pursuant to Section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A); or

(3) addressing other matters the Administrator determines are appropriate for such rules.

(b) Exceptions to general rule of applicability. These rules do not apply to:

(1) Proceedings regarding implementation of rates or formulae previously adopted by the Administrator and approved, on either an interim or final basis, by the Federal Energy Regulatory Commission;

(2) Proceedings required by statute or by contract, in which the Administrator does not propose either (a) a new rate, formula rate, discount, credit, surcharge or other rate change, or (b) any new terms and conditions of transmission service or revisions thereto; or

(3) Contract negotiations unless otherwise provided by paragraph (a) of this section.

(c) Effective date. These rules will become effective 30 days after publication of the final rules in the Federal Register.

(d) Scope of rules. These rules are intended to establish procedures and processes for all proceedings described in paragraph (a) of this section. These rules do not establish substantive standards for the Administrator's final decisions on issues in such proceedings.

(e) Waiver. To the extent permitted by law, the Administrator may waive any section of these rules or prescribe any alternative procedures the Administrator determines to be appropriate.

(f) Computation of time. Except as otherwise required by law, any period of time specified in these rules or by order of the Hearing Officer is computed to exclude the day of the event from which the time period begins to run and any day that is not a Business Day. The last day of any time period is included in the time period, unless it is not a Business Day. If the last day of any time period is not a Business Day, the period does not end until the close of business on the next Business Day.

Capitalized terms not otherwise defined in these rules have the meaning specified below.

(a) “Administrator” means the BPA Administrator or the acting Administrator.

(b) “Bonneville” or “BPA” means the Bonneville Power Administration.

(c) “Business Day” means any day that is not a Saturday, Sunday, day on which Bonneville closes and does not reopen prior to its official close of business, or legal public holiday as designated in 5 U.S.C. 6103.

(d) “Commercially Sensitive Information” means information in the possession of a Litigant (including its officers, employees, agents, or experts) that is not otherwise publicly available and has economic value or could cause economic harm if disclosed, including but not limited to information that is copyrighted, licensed, proprietary, subject to a confidentiality obligation, or contains trade secrets or similar information that could provide a risk of competitive disadvantage or other business injury.

(e) “Counsel” means any member in good standing of the bar of the highest court of any state, commonwealth, possession, territory, or the District of Columbia. Counsel appearing in a proceeding must conform to the standards of ethical conduct required of practitioners in the Federal courts of the United States.

(f) “Critical Energy/Electric Infrastructure Information” or “CEII” means information related to (1) a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters; or (2) specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that (i) relates details about the production, generation, transportation, transmission, or distribution of energy; (ii) could be useful to a person in planning an attack on critical infrastructure; (iii) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and (iv) does not simply give the general location of the critical infrastructure.

(g) “Cross-examination Exhibit” means any document or other material to be presented to a witness for any purpose on cross-examination.

(h) “Data Request(s)” means a written request for information in any form, including documents, or an admission submitted in accordance with Section 1010.12(b).

(i) “Draft Record of Decision” means the document that sets forth the Administrator's proposed decision on each issue in the pending proceeding.

(j) “Ex Parte Communication” means an oral or written communication (1) relevant to the merits of any issue in the pending proceeding; (2) that is not on the Record; and (3) with respect to which reasonable prior notice to Parties has not been given.

(k) “Evidence” means any material admitted into the Record by the Hearing Officer.

(l) “Federal Register Notice” means the notice identified under Section 1010.4.

(m) “Final Record of Decision” means the document that sets forth the Administrator's final decision on each issue in the pending proceeding.

(n) “Hearing Clerk” means the individual(s) assisting the Hearing Officer as designated in the Federal Register Notice.

(o) “Hearing Officer” means the official designated by the Administrator to conduct a proceeding under these rules.

(p) “Hearing Officer's Recommended Decision” means the document that sets forth the Hearing Officer's recommendation to the Administrator on each issue in a proceeding pursuant to Section 1010.1(a)(2).

(q) “Litigant(s)” means Bonneville and all Parties to the pending proceeding.

(r) “Participant” means any Person who is not a Party and who submits oral or written comments pursuant to Section 1010.8.

(s) “Party” means any Person whose intervention is effective under Section 1010.6. A Party may be represented by its Counsel or other qualified representative, provided that such representative conforms to the ethical standards prescribed in Section 1010.2(e).

(t) “Person” means an individual; partnership; corporation; limited liability company; association; an organized group of persons; municipality, including a city, county, or any other political subdivision of a state; state, including any agency, department, or instrumentality of a state; a province, including any agency, department, or instrumentality of a province; the United States or other nation, or any officer, or agent of any of the foregoing acting in the course of his or her employment or agency.

(u) “Prefiled Testimony and Exhibits” means any testimony, exhibits, studies, documentation, or other materials in a Litigant's direct or rebuttal case submitted in accordance with the procedural schedule. Prefiled Testimony and Exhibits do not include pleadings, briefs, or Cross-examination Exhibits.

(v) “Rate” means the monetary charge, discount, credit, surcharge, pricing formula, or pricing algorithm for any electric power or transmission service provided by Bonneville, including charges for capacity and energy. The term excludes, but such exclusions are not limited to, transmission line losses, leasing fees or charges from Bonneville for operation and maintenance of customer-owned facilities. A rate may be set forth in a contract; however, other portions of a contract do not thereby become part of the rate for purposes of these rules.

(w) “Record” means (1) Evidence; (2) transcripts, notices, briefs, pleadings, and orders from the proceeding; (3) comments submitted by Participants; (4) the Hearing Officer's Recommended Decision, if applicable; (5) the Draft Record of Decision, if any; and (6) such other materials and information as may have been submitted to, or developed by, the Administrator.

(x) “Secure website” means the website established and maintained by Bonneville for proceedings under these rules.

(a) The Hearing Officer is responsible for conducting the proceeding, managing the development of the Record, and resolving procedural matters. In addition, in a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer is responsible for making a Recommended Decision to the Administrator as set forth in Section 1010.20.

(b) The Hearing Officer shall not expand the scope of the proceeding beyond the scope established in the Federal Register Notice. If the Hearing Officer is uncertain whether a potential action would improperly allow information outside the scope to be entered into Evidence, the Hearing Officer shall certify the question directly to the Administrator for a determination.

(c) The Hearing Officer may, in his or her discretion, issue special rules of practice to implement these rules, provided that such special rules are consistent with these rules.

(d) Except as provided in Section 1010.12(c), the Hearing Officer may issue protective orders or make other arrangements for the review of information requested in a Data Request.

(e) The Hearing Officer may reject or exclude all or part of any document or materials not submitted in accordance with these rules or order a Litigant to conform such document or materials to the requirements of these rules.

(f) Litigants shall direct communications regarding procedural issues to the Hearing Clerk. The Hearing Clerk's contact information will be provided in the Federal Register Notice.

(a) Any proceeding conducted under these rules will be initiated on the day a notice of Bonneville's initial proposal is published in the Federal Register.

(b) The Federal Register Notice will:

(1) State, as applicable, the proposed rates and/or the proposed new or revised terms and conditions of transmission service, a statement of the justification and reasons supporting such proposals, and any additional information required by law;

(2) State the procedures for requesting access to the Secure website for purposes of filing petitions to intervene and the deadline for filing such petitions;

(3) State the deadline and the procedures for Participants to submit comments;

(4) If applicable, state that the proceeding is an expedited proceeding under Section 1010.22 and explain the reasons for the expedited proceeding;

(5) State the date on which the Hearing Officer will conduct the prehearing conference;

(6) In a proceeding pursuant to Section 1010.1(a)(2), state the date on which the Hearing Officer will issue the Hearing Officer's Recommended Decision, which date shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;

(7) State the date(s) on which the Administrator expects to issue the Draft Record of Decision, if any, and the Final Record of Decision, which date(s) shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;

(8) Define the scope of the proceeding and specify:

(i) Issues that are not within the scope of the proceeding;

(ii) That only Bonneville may prescribe or revise the scope of the proceeding;

(iii) That Bonneville may revise the scope of the proceeding to include new issues that arise as a result of circumstances or events occurring outside the proceeding that are substantially related to the rates or terms and conditions under consideration in the proceeding; and

(iv) That, if Bonneville revises the scope of the proceeding to include new issues, Bonneville will provide public notice, a reasonable opportunity to intervene, testimony or other information regarding such issues, and an opportunity for Parties to respond to Bonneville's testimony or other information.

(9) Provide other information that is pertinent to the proceeding.

(a) General Rule. No Party or Participant in any proceeding under these rules shall make Ex Parte Communications to the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk. In addition, no Bonneville staff member shall make Ex Parte Communications to the Hearing Officer or the Hearing Clerk. The Administrator, other Bonneville executives, Bonneville staff members, and the Hearing Officer shall not initiate or entertain Ex Parte Communications; however, communications among the Administrator, other Bonneville executives, and Bonneville staff members are not Ex Parte Communications.

(b) Exceptions. The following communications will not be considered Ex Parte Communications subject to paragraph (a) of this section:

(1) Relating to matters of procedure only;

(2) If otherwise authorized by law or other portions of these rules;

(3) From or to the Federal Energy Regulatory Commission;

(4) Which all Litigants agree may be made on an ex parte basis;

(5) Relating to communications in the ordinary course of business, information required to be exchanged pursuant to contracts, or information that Bonneville provides in response to a Freedom of Information Act request;

(6) Relating to a request for supplemental information necessary for an understanding of factual materials contained in documents filed in a proceeding under these rules and which is made after coordination with Counsel for Bonneville;

(7) Relating to a topic that is only secondarily the object of a proceeding, for which Bonneville is statutorily responsible under provisions other than Northwest Power Act Section 7, or which is eventually decided other than through a Section 7(i) proceeding; or

(8) Between the Hearing Officer and Hearing Clerk or other staff supporting the Hearing Officer.

(c) Application. The prohibitions contained in this Section 1010.5 apply from the day on which Bonneville publishes the Federal Register Notice and continue until the day the Administrator issues the Final Record of Decision in the proceeding.

(d) Notice of meetings. Bonneville will give reasonable notice to all Parties of any meeting that it intends to hold with any customer group or member of the public when it reasonably appears that matters relevant to any issue in the pending proceeding will be discussed.

(e) Written communications. Any written Ex Parte Communication received by the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk will be promptly delivered to Counsel for Bonneville. The document will be posted for public review in a section of Bonneville's website for ex parte materials. The Ex Parte Communication will not become part of the Record.

(f) Oral communications. If the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk receives an oral offer of any Ex Parte Communication, they shall decline to listen to such communication and explain that such communication is prohibited by this Section 1010.5. If unsuccessful in preventing such communication, the recipient thereof shall advise the communicator that he or she will not consider the communication. The recipient shall promptly prepare a statement setting forth the substance of the communication and the circumstances thereof and deliver the statement to Counsel for Bonneville. The statement will be posted for public review on the ex parte website identified in paragraph (e) of this section.

(g) Notice and opportunity for rebuttal. Bonneville will notify Parties when any Ex Parte Communication has been posted on the ex parte website identified in paragraph (e) of this section. A motion seeking the opportunity to rebut any facts or contentions in an Ex Parte Communication must be filed within five Business Days of Bonneville's notification that the communication has been posted on the ex parte website. The Hearing Officer will grant such a motion if he or she finds that providing the opportunity to rebut the Ex Parte Communication is necessary to prevent substantial prejudice to a Litigant.

(a) Filing. A Person seeking to become a Party in a proceeding under these rules must request access to the Secure website pursuant to the procedures set forth in the Federal Register Notice initiating the proceeding. After being granted access, such Person shall file a petition to intervene through the Secure website.

(b) Contents. A petition to intervene must state the name, address, and email address of the Person and the Person's interests in the outcome of the proceeding. Petitioners may designate no more than eight individuals on whom service will be made. If the petitioner requires additional individuals to be added to the service list, it may request such relief from the Hearing Officer. Entities that directly purchase power or transmission services under Bonneville's rate schedules, or trade organizations representing those entities, will be granted intervention, based on a petition filed in conformity with this Section 1010.6. Other petitioners must explain their interests in sufficient detail to permit the Hearing Officer to determine whether they have a relevant interest in the proceeding.

(c) Time.

(1) Petitions must be filed by the deadline specified in the Federal Register Notice, unless Bonneville provides a subsequent opportunity to intervene pursuant to Section 1010.4(b)(8)(iv).

(2) Late interventions are strongly disfavored. Granting an untimely petition to intervene must not be a basis for delaying or deferring any procedural schedule. A late intervenor must accept the Record developed prior to its intervention. In acting on an untimely petition, the Hearing Officer shall consider whether:

(i) The petitioner has a good reason for filing out of time;

(ii) Any disruption of the proceeding might result from granting a late intervention;

(iii) The petitioner's interest is adequately represented by existing Parties; and

(iv) Any prejudice to, or extra burdens on, existing Parties might result from permitting the intervention.

(d) Opposition. Any opposition to a timely petition to intervene must be filed within two Business Days after the deadline for filing petitions to intervene. Any opposition to a late-filed petition to intervene must be filed within two Business Days after service of the petition.

(a) Parties with common interests or positions in a pending proceeding are encouraged to form a Joint Party for purposes of filing pleadings, Prefiled Testimony and Exhibits, and briefs and for conducting cross-examination. Such grouping will be without derogation to the right of any Party to represent a separate point of view where its position differs from that of the Joint Party in which it is participating.

(b) To form a Joint Party, one member of the proposed Joint Party must email a list of proposed Joint Party members to the Hearing Clerk and to Counsel for each proposed member and represent that all of the named members are in concurrence with the formation of the Joint Party. The Hearing Clerk will form the Joint Party, assign a Joint Party code, and email notice to all Litigants, stating the Joint Party code and listing the Joint Party members.

(a) Any Participant may submit written comments for the Record or present oral comments in legislative-style hearings, if any, for the purpose of receiving such comments. The Federal Register Notice will set forth the procedures and deadline for Participant comments. In the event new issues arise after such deadline due to unforeseen circumstances, the Hearing Officer may extend the deadline for Participant comments. Participant comments will be made available on Bonneville's website.

(b) The Hearing Officer may allow reasonable questioning of a Participant by Counsel for any Litigant if the Participant presents oral comments at a legislative-style hearing.

(c) Participants do not have the rights of Parties. The procedures in Sections 1010.6, 1010.7, and 1010.9 through 1010.19 are not available to Participants.

(d) Parties may not submit Participant comments. Employees of organizations that have intervened may submit Participant comments as private individuals (that is, not speaking for their organizations) but may not use the comment procedures to further promote specific issues raised by their intervenor organizations.

A prehearing conference will be held on the date specified in the Federal Register Notice. During the conference, the Hearing Officer shall establish (1) a procedural schedule, and (2) any special rules of practice in accordance with Section 1010.3(c).

(a) Unless otherwise specified, a Litigant shall make any filing provided for by these rules with the Hearing Officer through the Secure website. Such filing will constitute service on all Litigants. If the Secure website is unavailable for filing, a Litigant shall serve the document to be filed on the Hearing Officer, Hearing Clerk, and all Litigants through email and thereafter file the document on the Secure website as soon as practicable when the Secure website becomes available.

(b) In addition to Parties whose petitions to intervene are granted by the Hearing Officer, the Administrator may designate additional Persons upon whom service will be made.

(c) Except as provided in paragraph (b) of this section, service will not be made upon Participants.

(d) Submission of Data Requests and responses to such requests is governed by Section 1010.12(b), except that paragraph (e) of this section governs the timing of such requests and responses.

(e) All filings provided for by these rules must be made, and Data Requests and responses must be submitted, on Business Days no later than 4:30 p.m., Pacific Time, in accordance with the procedural schedule adopted by the Hearing Officer. Filings made outside of these times are deemed to have been filed on the next Business Day and, if such day is after an applicable deadline, may be rejected by the Hearing Officer.

(a) Types of pleadings. Pleadings include petitions to intervene, motions, answers, and replies to answers. Pleadings do not include Prefiled Testimony and Exhibits, Cross-examination Exhibits, Data Requests and responses, or briefs.

(b) Content. Pleadings must include the docket number and title of the proceeding, the name of the Litigant filing the pleading, the specific relief sought, any relevant facts and law, and an electronic signature (typed as “/s/Name”) of the Litigant's representative. Pleadings must follow the document numbering system established by the Hearing Officer and display the document number in the footer of the pleading.

(c) Format. Pleadings must be filed as text-recognized PDFs converted directly from a word processing software and conform to the following format: (1) Page size must be 81/2 by 11 inches; in portrait orientation; (2) margins must be at least 1 inch on all sides; (3) text must be double-spaced, with the exception of headings, block quotes, and footnotes; and (4) font size must be comparable to 12 points Times New Roman (10 points Times New Roman for footnotes) or larger. Parties are encouraged to conform legal citations to the most current edition of The Bluebook: A Uniform System of Citation, published by The Harvard Law Review Association.

(d) Answers to pleadings. Unless otherwise determined by the Hearing Officer, answers to pleadings must be filed within four Business Days of service of the pleading.

(e) Replies to answers. Unless otherwise determined by the Hearing Officer, replies to answers are not allowed.

(f) Interlocutory appeal. Interlocutory appeal to the Administrator of an order issued by the Hearing Officer is discouraged. Such an appeal will only be permitted upon a motion filed within five Business Days of the order being appealed and an order by the Hearing Officer certifying the ruling to the Administrator. The Hearing Officer shall certify the ruling to the Administrator upon finding that:

(1) The order terminates a Party's participation in the proceeding and the Party's inability to participate thereafter could cause it substantial and irreparable harm;

(2) Review is necessary to prevent substantial prejudice to a Litigant; or

(3) Review could save the Administrator, Bonneville, and the Parties substantial effort or expense, or some other factor is present that outweighs the costs in time and delay of exercising review.

The Administrator may accept or reject the Hearing Officer's certification of a ruling at his or her discretion. An answer to a motion for interlocutory appeal must be filed in accordance with paragraph (d) of this section.

(a) Clarification sessions.

(1) The Hearing Officer may schedule one or more informal clarification sessions for the purpose of allowing Litigants to question witnesses about the contents of their Prefiled Testimony and Exhibits and the derivation of their recommendations and conclusions. The Hearing Officer will not attend the clarification sessions. Clarification sessions will not be used to conduct cross-examination, and discussions in clarification sessions will not be transcribed or become part of the Record. Litigants may participate in clarification sessions by phone or other technology made available by Bonneville.

(2) If a Litigant does not make any witness available for a clarification session, the witness's Prefiled Testimony and Exhibits may be subject to a motion to strike.

(b) Data Requests and responses. All Data Requests and responses to Data Requests must be submitted according to the rules in this Section 1010.12(b) and Section 1010.10(e). For purposes of this Section 1010.12(b), “Requesting Litigant” means the Litigant that submitted the Data Request at issue, and “Responding Litigant” means the Litigant that received the Data Request.

(1) Scope in general. Except as otherwise provided in this Section 1010.12(b), a Data Request may seek information or an admission relevant to any issue in the proceeding; provided, however, such requests must be proportional to the needs of the proceeding considering the importance of the issues at stake, the amount in controversy, the Litigants' relative access to relevant information, the Litigants' resources, the extent of the Responding Litigant's testimony on the subject and participation in the proceeding, the importance of the information sought to develop Evidence on the issue, and whether the burden or expense of responding to the request outweighs the likely benefit if the response were admitted into Evidence.

(i) Each Litigant shall be reasonable in the number and breadth of its Data Requests in consideration of the factors listed in paragraph (b)(1) of this section. A Litigant that believes it has received one or more unreasonable Data Request(s) from another Litigant may object to the request(s) on that basis. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.

(ii) A Litigant shall not be required to perform any new study or analysis, but a Litigant may, in its sole discretion and without waiving any objection to any Data Request, agree to perform such study or analysis.

(iii) A Litigant shall not be required to produce publicly available information.

(iv) A Litigant shall not be required to produce information that is unduly burdensome to provide or produce the same information multiple times in response to cumulative or duplicative Data Requests.

(v) A Litigant shall not be required to produce any information that is protected from disclosure by the attorney-client privilege or attorney work product doctrine.

(vi) Bonneville shall not be required to produce documents that, in the opinion of Counsel for Bonneville, may be exempt from production under the Freedom of Information Act, 5 U.S.C. 552, or the Trade Secrets Act, 18 U.S.C. 1905.

(2) Submitting Data Requests. All Data Requests must be submitted through the Secure website.

(i) A Data Request must identify the Prefiled Testimony and Exhibits (page and line numbers) or other material addressed in the request.

(ii) A Litigant shall not submit a Data Request seeking the response to another Data Request.

(iii) During the period established in the procedural schedule for submitting Data Requests immediately following the filing of Bonneville's Initial Proposal, Parties may submit Data Requests only to Bonneville.

(iv) A multi-part Data Request must include a reasonably limited number of subparts, and all subparts must address only one section or other discrete portion of a Litigant's Prefiled Testimony and Exhibits. Each subpart of a multi-part Data Request will be considered a separate Data Request for purposes of this Section 1010.12(b).

(3) Responding to Data Requests. All Responses to Data Requests, except responses containing Commercially Sensitive Information or CEII, must be submitted through the Secure website.

(i) Except as otherwise provided by the Hearing Officer, a Litigant must provide a response to each Data Request no later than five Business Days after the day that the Data Request is submitted through the Secure website. The Hearing Officer may specify exceptions to this rule and establish alternative deadlines, for example, for periods spanning holidays.

(ii) An objection to a data request will be considered a response for purposes of this Section 1010.12(b). In any response that includes one or more objections, the Litigant must state the grounds for the objection(s) and why any information or admission is being withheld.

(iii) As soon as a Responding Litigant estimates that it will not be able to respond to one or more Data Requests by the due dates because of the volume of or other burden caused by the request(s), the Responding Litigant shall contact the Requesting Litigant and confer about a possible delay in the due date. If the Litigants have not resolved the matter by the due date, the Responding Litigant shall file an objection on the due date and supplement the objection with a response in good faith as soon as possible thereafter. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.

(c) Information that is attorney-client privileged or attorney work product. If a Responding Litigant withholds information from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine, it must object and so state in its response. Upon written request by Counsel for the Requesting Litigant, the Responding Litigant must submit a supplemental response to the Data Request that includes a declaration made by Counsel for such Litigant in accordance with 28 U.S.C. 1746 stating that the information withheld is protected from disclosure by attorney-client privilege or the attorney work product doctrine, and identifying, without revealing information that itself is privileged or protected, the information withheld. The Hearing Officer may not order in camera review or release of information that a Litigant has withheld from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine.

(d) Commercially Sensitive Information and CEII.

(1) When a Responding Litigant has determined that responding to a Data Request will require it to produce Commercially Sensitive Information or CEII that is otherwise discoverable, the Litigant shall notify and confer with the Requesting Litigant to attempt to agree to the terms of a proposed protective order, including a non-disclosure certificate, to govern exchange and use of the Commercially Sensitive Information or CEII. If the conferring Litigants agree to the terms of a proposed protective order, they must file the proposed order with the Hearing Officer along with a motion seeking adoption of the order. If the conferring Litigants are unable to agree to the terms of a protective order within three Business Days of starting to confer, each Litigant shall file a proposed protective order, and the Hearing Officer shall enter an order adopting a protective order to govern the exchange and use of Commercially Sensitive Information or CEII. Such protective order may be, but is not required to be, based upon the proposed protective orders filed by the Litigants and must be consistent with the requirements in paragraph (d)(2) of this section. Once the Hearing Officer has adopted a protective order, and the Requesting Litigant has filed its signed non-disclosure certificate(s), the Responding Litigant must provide the Commercially Sensitive Information or CEII to the Requesting Litigant within three Business Days.

(2) Any protective order proposed by a Litigant or adopted by the Hearing Officer must be consistent with the following requirements but is not limited to these requirements:

(i) Prior to receiving any Commercially Sensitive Information or CEII, a Litigant that wants access to such information must file on the Secure website signed non-disclosure certificate(s) for any individual that the Litigant intends to have access to such information.

(ii) Any documents or other materials that include Commercially Sensitive Information or CEII, including any copies or notes of such documents, must be plainly marked on each page with the following text: “Commercially Sensitive Information [or CEII]—Subject to Protective Order No. _____.” Any electronic files must include the same text in the file name. The requirements of this paragraph do not preclude any additional marking required by law.

(iii) Responses to Data Requests that contain Commercially Sensitive Information or CEII must not be submitted via the Secure website. The protective order must prescribe a secure manner for providing such a response to any Litigant that files a signed non-disclosure certificate(s).

(iv) Any Prefiled Testimony and Exhibits, Cross-examination Exhibits, briefs, or other documents that include Commercially Sensitive Information or CEII must not be filed via the Secure website. The protective order must prescribe a secure manner for making such a filing directly with the Hearing Officer such as via encrypted email or on physical media (CD, USB stick, etc.) and for simultaneously serving the document on all Litigants that have filed signed non-disclosure certificates. Any Litigant that makes a filing with Commercially Sensitive Information or CEII must simultaneously file a redacted or public version of the document via the Secure website.

(v) The protective order must authorize Bonneville to file or otherwise submit any Commercially Sensitive Information or CEII from a proceeding under these rules with the Federal Energy Regulatory Commission or any other administrative or judicial body in accordance with any applicable requirements of that body.

(vi) The protective order must authorize Bonneville to retain any Commercially Sensitive Information or CEII from a proceeding under these rules until the decision in the proceeding is no longer subject to judicial review.

(vii) The protective order must include provisions that govern the return or destruction of Commercially Sensitive Information and CEII.

(viii) A protective order may include a “Highly Confidential” designation for Commercially Sensitive Information or CEII that is of such a sensitive nature that the producing Litigant is able to justify a heightened level of protection. The Hearing Officer shall determine the appropriate level or means of protection for such information, including the possible withholding of such information altogether.

(3) Notwithstanding the requirement in paragraph (d)(2)(iv) of this section that a protective order must provide a secure manner of filing documents that include Commercially Sensitive Information or CEII, Litigants are discouraged from making filings with such information because of the administrative burden that would result from the inclusion of such information in the Record. A Litigant should not file a document with such information unless it believes in good faith that its ability to present its argument would be significantly hindered by the absence of the information from the Record. Instead, Litigants are encouraged to summarize, describe, or aggregate Commercially Sensitive Information or CEII in filings in a manner that does not result in the inclusion of the information itself or otherwise effectively disclose the information.

(4) The rules governing CEII in this Section 1010.12(b) do not preclude the application of any federal regulations regarding CEII that apply to Bonneville and are adopted after the effective date of these rules.

(e) Disputes regarding responses to Data Requests. Litigants are strongly encouraged to informally resolve disputes regarding Data Requests and responses.

(1) Duty to Confer. Before filing a motion to compel a response to a Data Request, the Requesting Litigant must confer with the Responding Litigant to attempt to informally resolve any dispute. Each Litigant must confer in good faith to attempt to informally resolve the dispute.

(2) Motion to Compel. If a dispute is not resolved informally, the Requesting Litigant may file a motion to compel no more than four Business Days after the earlier of the date a response to the Data Request is provided or the due date for the response. A motion to compel must demonstrate that the Data Request(s) at issue are within the scope described in paragraph (b)(1) of this section, and the Requesting Litigant must certify in the motion that it attempted to informally resolve the dispute in accordance with paragraph (e)(1) of this section.

(3) Answer to motion to compel. Any answer to a motion to compel must be filed in accordance with Section 1010.11(d).

(4) Resolution of dispute by the Hearing Officer. The Hearing Officer may hold a telephone conference to discuss and attempt to resolve a dispute regarding a response to a Data Request. In ruling on any motion to compel, the Hearing Officer shall consider, among other things, the factors listed in paragraph (b)(1) of this section, whether the Responding Litigant filed testimony related to the Data Request(s) before it received the Data Request(s), and the potential impact of the decision on completing the proceeding according to the procedural schedule.

(f) Sanctions. The Hearing Officer may remedy any refusal to comply with an order compelling a response to a Data Request or a violation of a protective order by:

(1) Striking the Prefiled Testimony and Exhibits to which the Data Request relates;

(2) Limiting Data Requests or cross-examination by the Litigant refusing to comply with the order; or

(3) Recommending to the Administrator that an appropriate adverse inference be drawn against the Litigant refusing to comply with the order.

(g) Moving responses to Data Requests into Evidence. A response to a Data Request must be admitted into Evidence to be considered part of the Record. A Litigant that intends to introduce a response to a Data Request into Evidence must either: (1) Attach the full text of each such response as an exhibit in the Litigant's Prefiled Testimony and Exhibits; or (2) submit a motion to that effect, by the deadline(s) established by the Hearing Officer.

(a) General rule.

(1) All Prefiled Testimony and Exhibits must identify the witness(es) sponsoring the testimony and exhibits. Each Litigant that submits Prefiled Testimony and Exhibits must separately file a qualification statement for each witness sponsoring the testimony and exhibits. The qualification statement must describe the witness's education and professional experience as it relates to the subject matter of the Prefiled Testimony and Exhibits.

(2) Except as otherwise allowed by the Hearing Officer, all prefiled testimony must be in written form and conform to the format of pleadings in Section 1010.11(c). Each section of prefiled testimony must include a heading setting forth its subject matter. Prefiled testimony must include line numbers in the left-hand margin of each page.

(3) If prefiled testimony is based on the witness's understanding of the law, the witness shall so state in the testimony and, in order to provide context for the testimony, describe the witness's understanding of the law as it applies to the witness's position. In all other cases, legal arguments and opinions must not be included in Prefiled Testimony and Exhibits.

(4) A witness qualified as an expert may testify in the form of an opinion. Any conclusions by the witness should, if applicable, be supported by data and explanation.

(5) Litigants shall be provided an adequate opportunity to offer refutation or rebuttal of any material submitted by any other Party or by Bonneville. Any rebuttal to Bonneville's direct case must be included in a Party's direct testimony, along with any affirmative case that Party wishes to present. Any subsequent rebuttal testimony must be limited to rebuttal of the Parties' direct cases. New affirmative material may be submitted in rebuttal testimony only if in reply to another Party's direct case. No other new affirmative material may be introduced in rebuttal testimony. Rebuttal testimony must refer to the specific material being addressed (pages, lines, topic).

(6) For documents or materials of excessive length that a Litigant wants to include in its Prefiled Testimony and Exhibits, the Litigant should create and include an excerpt of the document or materials that excludes irrelevant or redundant material.

(b) Items by reference. Any materials that are incorporated by reference or referred to via electronic link in Prefiled Testimony and Exhibits will not be considered part of the testimony and exhibits for purposes of introducing the materials into Evidence. Only materials included as an exhibit to Prefiled Testimony and Exhibits will be considered part of the testimony and exhibits for purposes of introducing the materials into Evidence.

(c) Moving Prefiled Testimony and Exhibits into Evidence. Prefiled Testimony and Exhibits must be admitted into Evidence to be considered part of the Record. If a Litigant's witness(es) sponsoring Prefiled Testimony and Exhibits are cross-examined, the Litigant shall move the witnesses' Prefiled Testimony and Exhibits into Evidence at the conclusion of the cross-examination. If there is no cross-examination of a Litigant's witness(es), a Litigant that intends to introduce the witness(es)'s Prefiled Testimony and Exhibits into Evidence shall, by any deadline established by the Hearing Officer, file a declaration of the witness(es) made in accordance with 28 U.S.C. 1746 that lists the Prefiled Testimony and Exhibits and certifies that the material is the same material previously filed in the proceeding and is true and correct to the best of their knowledge and belief. Upon filing of the declaration, the witnesses' Prefiled Testimony and Exhibits will be admitted into Evidence.

(d) Motions to strike. Motions to strike Prefiled Testimony and Exhibits must be filed by the deadlines established in the procedural schedule. An answer to a motion to strike must be filed in accordance with Section 1010.11(d). If the Hearing Officer grants a motion to strike, the Litigant sponsoring the stricken material shall file conformed copies with strikethrough deletions of such material within five Business Days of the Hearing Officer's order. Conformed copies must be filed with the same document number as the original exhibit, but with the designation “-CC” at the end (e.g., BP-20-E-BPA-16-CC). Material struck by the Hearing Officer shall not be admitted into Evidence but will be considered part of the Record for purposes of reference regarding whether the motion should have been granted.

(a) Except as otherwise provided by the Hearing Officer, witnesses generally shall be cross-examined as a panel for Prefiled Testimony and Exhibits that they co-sponsor, provided that each panel member (1) has submitted a qualification statement, and (2) is under oath.

(b) At the time specified in the procedural schedule, a Litigant intending to cross-examine a witness shall file a cross-examination statement. The statement shall:

(1) Identify the witnesses the Litigant intends to cross-examine and the Prefiled Testimony and Exhibits sponsored by the witnesses that will be the subject of the cross-examination;

(2) Briefly describe the subject matter and portions of the Prefiled Testimony and Exhibits for cross-examination;

(3) Specify the amount of time requested for cross-examination of each witness; and

(4) Provide any other information required in an order issued by the Hearing Officer.

(c) A Litigant waives cross-examination for any witnesses not listed in its cross-examination statement, except that any Litigant may ask follow-up questions of witnesses appearing at the request of another Litigant.

(d) After the Litigants file cross-examination statements, the Hearing Officer shall issue a schedule setting forth the order of witnesses to be cross-examined.

(e) Cross-examination is limited to issues relevant to the Prefiled Testimony and Exhibits that (1) are identified in the Litigant's cross-examination statement, or (2) arise in the course of the cross-examination.

(f) Witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform. Witnesses appearing as a panel shall determine in good faith which witness will respond to a cross-examination question.

(g) A Litigant may only cross-examine witnesses whose position is adverse to the Litigant seeking to cross-examine. Notwithstanding the preceding sentence, a Litigant whose position is not adverse to the witnesses subject to cross-examination may, immediately following any redirect testimony by those witnesses, seek leave from the Hearing Officer to ask limited follow-up questions of the witnesses. Any such follow-up questions allowed by the Hearing Officer must be limited to the scope of the cross-examination of the witnesses.

(h) Only a Litigant's Counsel may conduct cross-examination. Only Counsel for the witnesses being cross-examined may object to questions asked during cross-examination, except that Counsel for any Litigant may object to friendly cross-examination.

(i) To avoid duplicative cross-examination, the Hearing Officer may impose reasonable limitations if the Litigants conducting cross-examination have substantially similar positions.

(j) The Hearing Officer may impose reasonable time limitations on the cross-examination of any witness.

(k) Cross-examination Exhibits.

(1) A Litigant must file each Cross-examination Exhibit to be presented to a witness for any purpose two Business Days before the witness is scheduled to appear. For example, for a witness appearing on a Monday, the due date for documents is the preceding Thursday at 4:30 p.m.

(2) A Litigant must provide physical copies of each Cross-examination Exhibit to the Hearing Officer, the Hearing Clerk, each panel witness, witness's Counsel, and the court reporter at the beginning of cross-examination on the day the witness is scheduled to appear.

(3) A Cross-examination Exhibit must be limited to material the Litigant intends to introduce into Evidence.

(4) If a document is introduced into Evidence during cross-examination, and only part of the document is admitted into Evidence, the document must be conformed by the Litigant to include only that part of the document admitted into Evidence. The conformed document must be filed through the Secure website.

(l) All other matters relating to conduct of cross-examination are left to the Hearing Officer's discretion.

The Hearing Officer may admit into Evidence stipulations on any issue of fact.

The Administrator or the Hearing Officer may take official notice of any matter that may be judicially noticed by federal courts or any matter about which Bonneville is an expert. A Litigant requesting official notice shall provide a precise citation for the material for which official notice is requested and file the material on the Secure Website at the time the request is granted or as soon as practicable thereafter. The Hearing Officer may afford any Litigant making a timely request an opportunity to show the contrary of an officially noticed fact.

(a) General rule. Briefs must be filed at times specified in the procedural schedule. All evidentiary arguments in briefs must be based on cited material admitted into Evidence. Material not admitted into Evidence must not be attached to or relied upon in any brief, except to address disputes regarding the admissibility of specific material into Evidence. Incorporation by reference is not permitted. The Hearing Officer may impose page limitations on any brief. All briefs must comply with the format requirements in Section 1010.11(c) and the template provided in Attachment A, as may be amended.

(b) Initial brief. At the conclusion of the evidentiary portion of a proceeding, each Party may file an initial brief. The purpose of an initial brief is to identify separately each legal, factual, and policy issue to be resolved by the Administrator and present all arguments in support of a Party's position on each of these issues. The initial brief should also rebut contentions made by adverse witnesses in their Prefiled Testimony and Exhibits. The initial brief must contain a final revised exhibit list reflecting the status of all of the Party's Prefiled Testimony and Exhibits, Cross-examination Exhibits, and any other exhibits, including those admitted, withdrawn, conformed, and rejected.

(c) Brief on exceptions. After issuance of Bonneville's Draft Record of Decision, each Party may file a brief on exceptions. The purposes of the brief on exceptions are to (1) raise any alleged legal, policy, or evidentiary errors in the Draft Record of Decision; or (2) provide additional support for draft decisions contained in the Draft Record of Decision. All arguments raised by a Party in its initial brief will be deemed to have been raised in the Party's brief on exceptions, regardless of whether such arguments are included in the brief on exceptions.

(d) Additional briefing rule for proceedings pursuant to Section 1010.1(a)(2). In a proceeding pursuant to Section 1010.1(a)(2), Bonneville is considered a Party for purposes of filing briefs in accordance with this Section 1010.17, except that Section 1010.17(f) does not apply to Bonneville. In addition, in such a proceeding, the Hearing Officer or the Administrator may provide Litigants with additional briefing opportunities not otherwise set forth in these rules. Such additional briefing opportunities may include briefs on exceptions in addition to those set forth in Section 1010.17(c), above.

(e) Optional brief and memorandum of law. The Hearing Officer may allow the filing of a brief and memorandum of law not expressly provided for by this section.

(f) Waiver of issues or arguments. A Party whose briefs do not raise and fully develop the Party's position on any issue shall be deemed to take no position on such issue. Arguments or alleged errors not raised in initial briefs in accordance with Section 1010.17(b), briefs on exceptions in accordance with Section 1010.17(c), or briefs permitted by Section 1010.17(d) are deemed to be waived.

(a) An opportunity for each Litigant to present oral argument will be provided in proceedings conducted under these rules.

(b) At the time specified in the procedural schedule, each Litigant that intends to present oral argument shall file a notice of intent to present oral argument. The notice must identify the speaker(s), a brief description of the subject matter to be addressed, and the amount of time requested.

(c) After Litigants file notices of intent to present oral argument, the Hearing Officer shall issue an order setting forth the schedule of oral argument.

Telephone conferences may be permitted in appropriate circumstances, provided that: (1) There is a proposed agenda for the conference concerning the points to be considered and the relief, if any, to be requested during the conference; and (2) Litigants are provided notice and given an opportunity to be represented on the line. If the Hearing Officer schedules a telephone conference, the Hearing Officer may require that a court reporter be present on the line.

In a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer shall, unless he or she becomes unavailable, issue the Hearing Officer's Recommended Decision stating the Hearing Officer's findings and conclusions, and the reasons or basis thereof, on all material issues of fact, law, or discretion.

(a) The Administrator will make a decision adopting final proposed rates for submission to the Federal Energy Regulatory Commission for confirmation and approval based on the Record.

(b) In a proceeding pursuant to Section 1010.1(a)(2), the Administrator will make a determination in a Final Record of Decision on any terms and conditions of transmission service, or revisions thereto, at issue in the proceeding.

(c) Any Final Record of Decision will be uploaded to the Secure Website and made available to Participants through Bonneville's external website.

(a) General rule. The Administrator will determine, in his or her discretion, whether to conduct an expedited proceeding. The Final Record of Decision in a proceeding conducted under this section will be issued on an expedited basis in 90-120 days from the date of the Federal Register Notice. The Hearing Officer may establish procedures or special rules as set forth in Section 1010.3(c) necessary for the expedited schedule.

(b) Extensions. The Hearing Officer may extend the schedule in response to a written motion by a Litigant showing good cause for the extension.

Title: FERC-582, Electric Fees, Annual Charges, Waivers, and Exemptions.

OMB Control No.: 1902-0132.

Type of Request: Three-year extension of the FERC-582 information collection requirements with no changes to the current reporting requirements.

Abstract: The information required by FERC-582 is contained in Title 18 Code of Federal Regulations (CFR) Parts 381 1 and 382.2

The Commission uses the FERC-582 to implement the statutory provisions of the Independent Offices Appropriation Act of 1952 (IOAA) 3 which authorizes the Commission to establish fees for its services. In addition, the Omnibus Budget Reconciliation Act of 1986 (OBRA) 4 authorizes the Commission to assess and collect fees and annual charges in any fiscal year in amounts equal to all the costs incurred by the Commission in that fiscal year.

To comply with the FERC-582, respondents submit to the Commission the sum of the megawatt-hours (MWh) of all unbundled transmission (including MWh delivered in wheeling transactions and MWh delivered in exchange transactions) and the megawatt-hours of all bundled wholesale power sales (to the extent the bundled wholesale power sales were not separately reported as unbundled transmission). The data collected in the FERC-582 are drawn directly from the FERC Form 1 5 transmission data. The Commission sums the costs of its electric regulatory program and subtracts all electric regulatory program filing fee collections to determine the total collectible electric regulatory program costs. Then, the Commission uses the data submitted under FERC-582 to determine the total megawatt-hours of transmission of electric energy in interstate commerce. Respondents (public utilities and power marketers) subject to these annual charges must submit FERC-582 data to the Commission by April 30 of each year.6 The Commission issues bills for annual charges to respondents. Then, respondents must pay the charges within 45 days of the Commission's issuance of the bill.

Respondents file requests for waivers and exemptions of fees and charges 7 based on need. The Commission's staff uses the filer's financial information to evaluate the request for a waiver or exemption of the obligation to pay a fee or an annual charge.

Estimate of Annual Burden 8 : The Commission estimates the burden and cost 9 for this information collection as follows.

Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used;