On January 10, 2012, the Department published the preliminary results of administrative review of the antidumping duty order on hand trucks and certain parts thereof from the PRC. On February 3, 2012, Gleason Industrial Products, Inc., and Precision Products, Inc. (petitioners) submitted additional surrogate value (SV) information. On February 28, 2012, New-Tec submitted factual information to rebut, clarify, or correct the factual information submitted by the petitioners on February 17, 2012.

In the preliminary results, the Department invited interested parties to submit case briefs within 30 days of publication of the preliminary results and rebuttal briefs within five days after the due date for filing case briefs. See Preliminary Results at 1469. We received a case brief from petitioners and a joint case brief from two interested parties, Welcom Products, Inc. (Welcom) and Yangjiang Shunhe Industrial Co., Ltd. (Shunhe) on February 22, 2012, and rebuttal briefs from New-Tec and Cosco Home and Office Products, a U.S. importer, on March 1, 2012.

On February 8, 2012, petitioners requested the Department hold a public hearing to discuss the preliminary results. The Department held a public hearing on March 28, 2012.

All issues raised in the case and rebuttal briefs by parties to this review are addressed in the memorandum entitled, “Issues and Decision Memorandum for the Final Results in the Administrative Review of Hand Trucks and Certain Parts Thereof from the People's Republic of China,” which is dated concurrently with and adopted by this notice (Decision Memorandum). A list of the issues which parties raised, and to which we respond in the Decision Memorandum is attached to this notice as an Appendix. The Decision Memorandum is a public document, and is on file in the Central Records Unit (CRU), Main Commerce Building, Room 7046, and is accessible on the Department's web site at http://www.trade.gov/ia. The paper copy and electronic version of the memorandum are identical in content.

The period of review (POR) is December 31, 2009, through November 30, 2010.

The merchandise subject to this antidumping duty order consists of hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof. A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.

That the vertical frame can be converted from a vertical setting to a horizontal setting, then operated in that horizontal setting as a platform, is not a basis for exclusion of the hand truck from the scope of this petition. That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the petition. That other wheels may be connected to the vertical frame, handling area, projecting edges, or other parts of the hand truck, in addition to the two or more wheels located at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition. Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition.

Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley. They are typically imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the United States (HTSUS), although they may also be imported under heading 8716.80.50.90. Specific parts of a hand truck, namely the vertical frame, the handling area and the projecting edges or toe plate, or any combination thereof, are typically imported under heading 8716.90.50.60 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope is dispositive.

Excluded from the scope are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular materials measuring less than 5/8 inch in diameter; hand trucks that use motorized operations either to move the hand truck from one location to the next or to assist in the lifting of items placed on the hand truck; vertical carriers designed specifically to transport golf bags; and wheels and tires used in the manufacture of hand trucks.

Based on a review of the record and comments received from parties regarding our Preliminary Results, we have made revisions to certain SVs and the margin calculation for New-Tec in these final results. We made the following changes:

• We used the 2009-10 financial statements of Office Thai Online Co., Ltd., and Jenbunjerd Co. Ltd. for calculating financial ratios; and

• We revised the surrogate values for hot rolled steel coil, cold-rolled steel, polypropylene resin, slide bar, and primary aluminum ingots. See Decision Memorandum.

In our Preliminary Results, we determined that New-Tec met the criteria for separate rate status. We have not received any information since issuance of the preliminary results that provides a basis for reconsidering this preliminary determination. Therefore, the Department continues to find that New-Tec meets the criteria for a separate rate.

The Department has determined that the following margin exists for the period December 1, 2009, through November 30, 2010:

Consistent with these final results, and pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.212(b)(1), the Department will direct CBP to assess antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions to CBP 15 days after the date of publication of the final results of this review. Pursuant to 19 CFR 351.212(b)(1), we calculated importer-specific per unit duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis.

The following cash deposit requirements, when imposed, will be effective upon publication of the final results of this review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of this review (except that if the rate for a particular company is de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period of review; (3) if the exporter is a firm not covered in this review, a prior review, or the original less-than-fair-value investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will be the PRC-wide rate of 383.60 percent. These cash deposit requirements, when imposed, shall remain in effect until further notice.

This notice serves as a final 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 POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/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 this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

On July 28, 2011, the Department initiated the administrative review of the antidumping duty order on chlorinated isos from the PRC covering the period June 1, 2010, through May 31, 2011. 1 Between September 26 and October 3, 2011, Jiheng, Kangtai, Nanning, and Zhucheng each submitted either a separate rate application or certification, as appropriate. Due to the large number of requests received, the Department limited the number of mandatory respondents selected for this review to the two largest exporters/producers, based on export volume as reported to CBP, for which a review was requested—Jiheng and Kangtai. 2

On October 6, 2011, the Department issued its AD questionnaire to the two mandatory respondents, Jiheng and Kangtai, to which both respondents responded in a timely manner. On November 3, 2011, Clearon Corporation and Occidental Chemical Corporation (Petitioners) requested that the Department conduct a verification of Jiheng and Kangtai. On December 16, 2011, Petitioners submitted deficiency comments regarding Kangtai's section A questionnaire response, and on January 9, 2012, submitted deficiency comments regarding Kangtai's section C and D questionnaire responses and Jiheng's section A, C and D questionnaire responses.

On February 1, 2012, the Department published a notice in the Federal Register extending the time limit for the preliminary results of review from March 1, 2012, until June 29, 2012. 3 The Department issued supplemental questionnaires to Jiheng and Kangtai on February 24, 2012, and February 28, 2012, respectively, and both respondents submitted responses in a timely manner. On May 3, 2012, and May 11, 2012, the Department issued an additional supplemental questionnaire to Jiheng and Kangtai, respectively, to which both companies responded in a timely manner.

The products covered by the order are chlorinated isocyanurates, which are derivatives of cyanuric acid, described as chlorinated s-triazine triones. There are three primary chemical compositions of chlorinated isos: (1) Trichloroisocyanuric acid (Cl 3 (NCO) 3 ), (2) sodium dichloroisocyanurate (dihydrate) (NaCl 2 (NCO) 3 (2H 2 O), and (3) sodium dichloroisocyanurate (anhydrous) (NaCl 2 (NCO) 3 ). Chlorinated isos are available in powder, granular, and tableted forms. The order covers all chlorinated isos. Chlorinated isos are currently classifiable under subheadings 2933.69.6015, 2933.69.6021, 2933.69.6050, 3808.40.50, 3808.50.40 and 3808.94.50.00 of the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid. The tariff classifications 2933.69.6021 and 2933.69.6050 represent basket categories that include chlorinated isos and other compounds including an unfused triazine ring. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

In accordance with section 777A(c)(2) of the Tariff Act of 1930, as amended (the Act), the Department selected the two largest exporters (by quantity) of chlorinated isos from the PRC ( i.e., Jiheng and Kangtai) based on the CBP data for entries of subject merchandise during the POR as the mandatory respondents in this review. 4

The Department is preliminarily determining that Hebei Jiheng and Baikang are affiliated parties, and Juancheng Kangtai and Ouya are affiliated parties within the meaning of section 771(33) of the Act. The evidence placed on the record of this review by Jiheng demonstrates that Hebei Jiheng owns five percent or more of the voting shares in Baikang, and that these parties are therefore affiliated under section 771(33)(E) of the Act. 5 The Department has previously determined that Juancheng Kangtai and Ouya are affiliated because their owners are members of a family (siblings) and are affiliated under section 771(33)(A) of the Act. 6 Based on our examination of the evidence presented in Kangtai's questionnaire responses in this instant review, we have determined that the underlying facts of this case have not changed since the Department last reviewed Kangtai.

The Department preliminarily determines that Hebei Jiheng and Baikang should be treated as a single entity ( i.e., Jiheng) for purposes of calculating an AD margin pursuant to 19 CFR 351.401(f). 7 Hebei Jiheng and Baikang produce identical merchandise and have similar production facilities used to produce the subject merchandise. 8 Additionally, the level of affiliation between Hebei Jiheng and Baikang ( i.e., Baikang is wholly-owned by Hebei Jiheng) demonstrates that there is a significant potential for manipulation of price or production. 9 During the POR, all of the subject merchandise under review produced by Baikang was sold to Hebei Jiheng for re-sale in the home market, U.S. market and third country markets.

The Department previously determined that Juancheng Kangtai and Ouya should be treated as a single entity. 10 After examining the evidence placed on the record of this review by Kangtai, the Department determines that this instant review has the same fact pattern as the record of Kangtai's previous review. Specifically, the Department continues to find that both companies produce subject merchandise and therefore have similar production facilities that would not require substantial retooling in order to restructure manufacturing priorities. 11 Additionally, as noted above, all owners of Juancheng Kangtai and Ouya continue to be affiliated, and, as owners and holders of managerial positions of both companies, have complete control and are in a position to exercise restraint or direction over Juancheng Kangtai and Ouya. 12 Therefore, the Department preliminarily determines that Juancheng Kangtai and Ouya should be treated as a single entity ( i.e., Kangtai) for purposes of calculating an AD margin pursuant to 19 CFR 351.401(f).

In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (NME) country. 13 Moreover, the Department's most recent examination of the PRC's NME status determined that such status should continue. 14 In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. The Department has not revoked the PRC's status as an NME country, and thus we have treated the PRC as an NME in these preliminary results and calculated NV in accordance with section 773(c) of the Act, which applies to NME countries.

When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it, in most instances, to base NV on the NME producer's factors of production (FOPs). The Act further instructs that valuation of the FOPs shall be based on the best available information in the surrogate market economy (ME) country or countries considered to be appropriate by the Department. 15 When valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. 16 The sources of the surrogate factor values are discussed under the “Normal Value” section, below, and in the Preliminary Surrogate Value Memorandum, 17 which is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Services System (IA ACCESS). Access to IA ACCESS is available in the Central Records Unit, main Commerce Building, Room 7046.

In examining which country to select as its primary surrogate for this proceeding, the Department determined that Colombia, Indonesia, the Philippines, South Africa, Thailand and Ukraine are countries comparable to the PRC in terms of economic development. 18 Once we have identified the countries that are economically comparable to the PRC, we select an appropriate surrogate country by determining whether an economically comparable country is a significant producer of comparable merchandise and whether the data for valuing FOPs are both available and reliable.

Petitioners, in their December 19, 2011 comments on surrogate country selection, recommended that the Department select South Africa as the primary surrogate country, as South Africa is economically comparable to the PRC, is a significant producer of calcium hypochlorite, a comparable product identified in previous segments, and is likely to have reliable surrogate value data for most or all of the key FOPs. Petitioners also noted that Thailand may be a significant producer of other hypochlorites. Arch Chemicals, Inc., an interested party in this review, in its December 19, 2011 comments on surrogate country selection, states the Department should expand its definition of comparable merchandise to include sodium hypochlorite as there are financial statements for a sodium hypochlorite producer in the Philippines, and there are likely to be financial statements from sodium hypochlorite producers in Thailand as well. Also on December 19, 2011, Kangtai suggested using either the Philippines or Thailand as a surrogate country, since chloro alkali industries appear to be active in either country. Additionally, Petitioners, Jiheng and Kangtai each put data on the record of this proceeding to value FOPs from South Africa, the Philippines and Thailand on January 9, 2012, and provided rebuttal surrogate country comments on January 17, 2012.

As explained in the Surrogate Country Memorandum, the Department considers Colombia, Indonesia, the Philippines, South Africa, Thailand and Ukraine equally comparable to the PRC in terms of economic development. Therefore, we consider all six countries as having satisfied this prong of the surrogate country selection criteria. Accordingly, unless we find that all of the countries determined to be equally economically comparable are not significant producers of comparable merchandise, do not provide a reliable source of publicly available surrogate data or are unsuitable for other reasons, we rely on data from one of these countries.

Section 773(c)(4)(B) of the Act requires the Department to value FOPs in a surrogate country that is a significant producer of comparable merchandise. Neither the statute nor the Department's regulations provide further guidance on what may be considered comparable merchandise. Given the absence of any definition in the statute or regulations, the Department looks to other sources such as Policy Bulletin 04.1 for guidance on defining comparable merchandise. 19 Policy Bulletin 04.1 states that “the terms `comparable level of economic development,' `comparable merchandise,' and `significant producer' are not defined in the statute.”  20 Policy Bulletin 04.1 further states that “in all cases, if identical merchandise is produced, the country qualifies as a producer of comparable merchandise.”  21 Conversely, if identical merchandise is not produced, then a country producing comparable merchandise is sufficient in selecting a surrogate country. 22 Further, when selecting a surrogate country, the statute requires the Department to consider the comparability of the merchandise, not the comparability of the industry. 23 “In cases where the identical merchandise is not produced, the Department must determine if other merchandise that is comparable is produced.”  24

Further, the statute grants the Department discretion to examine various data sources for determining the best available information. 25 The legislative history also states that “the term “significant producer” includes any country that is a significant net exporter and, if appropriate, Commerce may use a significant, net exporting country in valuing factors,”  26 and it does not preclude reliance on additional or alternative metrics. The record developed to date for these preliminary results of review does not contain information with respect to production volumes of identical or comparable merchandise in the potential surrogate countries. Therefore, in evaluating which countries on the list may be significant producers of identical or comparable merchandise, the Department examined data for the POR from the Global Trade Atlas (GTA) for HTSUS 2933.69, the primary HTSUS number included in the scope of the order. An evaluation of the GTA data indicates that none of the countries listed in the Surrogate Country Memorandum were likely producers of identical merchandise. 27 Next, the Department examined whether the surrogate countries on the list were significant producers of comparable merchandise as provided by section 773(c)(4)(B) of the Act. In the investigation of chlorinated isos, the Department found that calcium hypochlorite was comparable to the subject merchandise because it has “similar physical characteristics, end uses, and production processes.”  28 Because, as mentioned above, the record contains no production data for calcium hypochlorite in any of the possible surrogate countries, the Department turned to the GTA export data under HTS 2828.10, for calcium hypochlorite. South Africa was, by far, the largest exporter of calcium hypochlorite among the countries listed in the Surrogate Country Memorandum. The remaining countries on the list have less than 200,000 kilograms and most have less than 100,000 kilograms while South Africa has 3.8 million kilograms. Therefore, the Department is selecting South Africa as the primary surrogate country. The Department will continue to evaluate any additional evidence timely placed on the record that other countries on the surrogate country list produce identical or comparable merchandise, and whether there are other types of merchandise produced in the surrogate countries on the list that could be considered comparable to chlorinated isos.

When evaluating surrogate value data, the Department considers several factors including whether the surrogate value is publicly available, contemporaneous with the POR, from an approved surrogate country, tax and duty-exclusive, and specific to the input, and represents a broad market average. There is no hierarchy among these criteria; it is the Department's practice to carefully consider the available evidence in light of the particular facts of each industry when undertaking its analysis. 29 The record of this review does contain data for South Africa and Thailand, as well as some data for the Philippines. As noted above, because South Africa is a significant producer of comparable merchandise, and because there is data on the record from South Africa to value FOPs, we have preliminarily determined for purposes of these preliminary results that South Africa is the most appropriate surrogate country to use in this review, and, accordingly, have calculated NV using South African prices to value the respondents' FOPs, when available and appropriate ( see discussion below regarding why certain data from South Africa would likely provide inaccurate surrogate values for some FOPs). 30 We have obtained and relied upon publicly available information wherever possible.

The Surrogate Country Memorandum further explains that the list of countries it provides is a “non-exhaustive” list of potential surrogate countries. Furthermore, it states that

Indian data was used in the following circumstances. First, there are no acceptable financial statements from any of the potential surrogate countries on the record of this review for identical or comparable merchandise. Petitioner submitted a contemporaneous financial statement from an Indian company that the Department has previously used to calculate financial ratios. Therefore, based on the record of this review and the guidance provided in the Surrogate Country Memorandum, 33 the Department is using financial statements from an Indian company to calculate the financial ratios. There are also several chemical inputs that are valued using specific concentration levels that cannot be obtained from GTA data for South Africa. 34 Petitioners did place on the record data by concentration level for one input, sulfuric acid, from a South African chemical producer on the record, but because no information has been placed on the record of this review to value the remaining inputs using specific concentration levels, the Department is selecting data from the Indian publication, Chemical Weekly, used in the previous review of this order. 35 The Department has previously determined that several inputs are not frequently traded internationally and face special concerns both in transporting and in packaging, such that GTA data cannot be used. 36 The Department is therefore using data from Indian financial statements placed on the record of the previous review to value these specific inputs, as no data was placed on the record from any country listed in the Surrogate Country Memorandum. Finally, South Africa does not have labor rates from Chapter 6A: Labor Cost in Manufacturing, of the International Labor Organization (ILO) Yearbook of Labor Statistics (Yearbook), which the Department has determined to be the best source of data when valuing the labor input. India does have labor rates from Chapter 6A, so we are using Indian data to value labor as well. As explained below under “Factor Valuations,” the Department has inflated non-contemporaneous data to the POR.

In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may submit publicly available information to value FOPs until 20 days after the date of publication of these preliminary results. 37

In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assessed a single AD rate. It is the Department's policy to assign all exporters of merchandise subject to 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.

In the Initiation Notice, the Department notified parties of the process by which exporters and producers may obtain separate rate status. This process requires exporters and producers wishing to qualify for separate rate status in this administrative review to complete, as appropriate, either a separate rate application or certification. 38 In particular, companies for which a review was requested, and which were assigned a separate rate in the most recent segment of the same proceeding in which they participated, need to certify that they continue to meet the criteria for obtaining a separate rate. 39 For companies that have not previously been assigned a separate rate, the companies must submit a separate rate application demonstrating eligibility for a separate rate.

Kangtai and Nanning were assigned a separate rate in the most recent segment of this proceeding in which they participated, 40 and they timely certified in this administrative review that they continue to meet the criteria for obtaining a separate rate. In addition, Jiheng and Zhucheng timely filed separate rate applications. 41

In order to establish independence from the NME entity, exporters must demonstrate the absence of both de jure and de facto government control over export activities. The Department analyzes each entity exporting the subject merchandise under a test arising from the Final Determination of Sales at Less Than Fair Value: Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 1991) ( Sparklers ), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide From the People's Republic of China, 59 FR 22585 (May 2, 1994) ( Silicon Carbide ). However, if the Department determines that a company is wholly foreign-owned or located in an ME country, then a separate rate analysis is not necessary to determine whether it is independent from government control.

Jiheng, Kangtai, Nanning and Zhucheng stated that they are either joint ventures between Chinese and foreign companies or are wholly Chinese-owned companies. Thus, the Department has analyzed whether each of these companies has demonstrated the absence of de jure and de facto governmental control over their respective export activities.

The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) other formal measures by the government decentralizing control of companies. 42

The evidence Jiheng, Kangtai, Nanning and Zhucheng provided in their separate rate certifications and separate rate applications supports a preliminary finding of absence of de jure government control based on the following factors: (1) An absence of restrictive stipulations associated with the individual exporter's business and export licenses; (2) applicable legislative enactments decentralizing control of the companies; and (3) formal measures by the government decentralizing control of PRC companies.

Typically, the Department considers four factors in evaluating whether each respondent is subject to de facto government control of its export functions: (1) Whether the export prices are set by or are subject to the approval of a government agency; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. 43 The Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of government control which would preclude the Department from assigning separate rates.

The evidence Kangtai and Nanning provided in their separate rate certifications, and the evidence Jiheng and Zhucheng provided in their separate rate applications, supports a preliminary finding of absence of de facto government control based on the following factors: (1) An absence of restrictive government control on export prices; (2) a showing of authority to negotiate and sign contracts and other agreements; (3) a showing that Jiheng, Kangtai, Nanning and Zhucheng maintain autonomy from the government in making decisions regarding the selection of management; and (4) a showing that Jiheng, Kangtai, Nanning and Zhucheng retain the proceeds of their respective export sales and make independent decisions regarding disposition of profits or financing of losses.

Ultimately, the evidence placed on the record of this administrative review by Jiheng, Kangtai, Nanning and Zhucheng demonstrates an absence of de jure and de facto government control, in accordance with the criteria identified in Sparklers and Silicon Carbide . Therefore, the Department has preliminarily granted Jiheng, Kangtai, Nanning and Zhucheng a separate rate.

As discussed above, the Department received timely and complete separate rate applications or certifications from Jiheng, Kangtai, Nanning and Zhucheng, all of which were exporters of chlorinated isos from the PRC during the POR. Nanning and Zhucheng were not selected to be individually examined respondents in this review. Through the evidence in their respective separate rate applications or certifications, these companies have demonstrated their eligibility for a separate rate. The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. For the exporters subject to a review that were determined to be eligible for separate rate status, but were not selected as mandatory respondents, the Department generally weight-averages the rates calculated for the mandatory respondents, excluding any rates that are zero, de minimis, or based entirely on facts available. 44 For one of the mandatory respondents, Kangtai, we have calculated a rate of zero for these preliminary results of review. Therefore, the Department is assigning to the separate rate companies the only rate calculated in this review that is not zero, de minimis, or based entirely on facts available. Accordingly, we are assigning to the separate rate companies the rate calculated for Jiheng. 45

We preliminarily determine that the invoice date is the most appropriate date to use as the date of sale for both respondents in accordance with 19 CFR 351.401(i). In this regard, no interested parties provided evidence indicating that the material terms of sale were established on another date. Instead, according to the respondents' questionnaire responses, the material terms of the sale are fixed at invoice date. Thus, the Department finds that the invoice date is the date of sale. Evidence on the record also demonstrates that, with respect to Jiheng's sales to the United States, for some sales the shipment date occurs prior to the invoice date. 46 In such cases, we limit the date of sale to no later than shipment date. 47

To determine whether sales of chlorinated isos to the United States by Jiheng and Kangtai were made at less than NV, we compared export price (EP) to NV, as described in the “Export Price” and “Normal Value” sections of this notice, pursuant to section 771(35) of the Act. 48

Jiheng and Kangtai sold the subject merchandise directly to unaffiliated purchasers in the United States prior to importation into the United States. Therefore, we have used EP in accordance with section 772(a) of the Act because the use of the constructed export price methodology is not otherwise indicated. We calculated EP based on the price, including the appropriate shipping terms, to the first unaffiliated purchasers reported by Jiheng and Kangtai. To this price, we added amounts for components that were supplied free of charge (Jiheng and Kangtai) or for which the respondent was separately reimbursed by the customer (Jiheng), where applicable, pursuant to section 772(c)(1)(A) of the Act and consistent with our treatment of Jiheng's sales in prior reviews. 49 For free raw materials and packing materials, we added the surrogate values for these materials, multiplied by the reported FOPs for these items, to the U.S. price paid by Jiheng's or Kangtai's customer. 50 The reimbursed raw materials were always listed separately on sales invoices, and were not included in the U.S. prices reported by Jiheng. 51 Since these reimbursed items were raw materials, we added the amount paid by the U.S. customer for these materials to the U.S. price.

Section 773(c)(1) of the Act provides that, in an NME proceeding, the Department shall determine NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.

The Department bases NV on FOPs in NMEs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies. Therefore, we calculated NV based on FOPs in accordance with sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c). The FOPs include: (1) Hours of labor required; (2) quantities of raw materials consumed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. We used the FOPs reported by the respondent for materials, energy, labor, by-products, and packing. These reported FOPs included FOPs for various materials provided free of charge or reimbursed by the customer as discussed in the “Export Price” section, above.

In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to value the FOPs, but when a producer sources an input from an ME country and pays for this input in an ME currency, the Department may value the factor using the actual price paid for this input. 52 Jiheng and Kangtai both reported that they did not purchase any inputs from ME suppliers for the production of the subject merchandise. 53

With regard to the South African import-based surrogate values, we have disregarded prices that we have reason to believe or suspect may be subsidized, such as those imports from India, Indonesia, South Korea, and Thailand. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized. 54 We are also guided by the statute's legislative history that explains that it is not necessary to conduct a formal investigation to ensure that such prices are not subsidized. 55 Rather, the Department bases its decision on information that is available to it at the time it is making its determination. Therefore, we have not used prices from these countries in calculating the South African import-based surrogate values. Additionally, we disregarded prices from NME countries. 56 Finally, imports that were labeled as originating from an “unspecified” country were excluded from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies.

In accordance with section 773(c) of the Act, we calculated NV based on the FOPs reported by Jiheng and Kangtai for the POR. To calculate NV, we multiplied the reported per-unit factor quantities by publicly available South African surrogate values (except as noted below). In selecting the surrogate values, we selected, where possible, publicly available data, which represent an average non-export value and are contemporaneous with the POR, product-specific, and tax-exclusive. As appropriate, we adjusted input prices by including freight costs to render them delivered prices. Specifically, we added to the import surrogate values a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory. This adjustment is in accordance with the decision of the U.S. Court of Appeals for the Federal Circuit in Sigma Corp. v. United States, 117 F.3d 1401, 1408 (Fed. Cir. 1997). 57

Except as noted below, we valued raw material inputs using the weighted-average unit import values as reported by the South African Revenue Service in GTA. 58 Where we could not obtain publicly available information contemporaneous with the POR with which to value FOPs, we adjusted the surrogate values using, where appropriate, the South African Consumer Price Index as published in the International Financial Statistics of the International Monetary Fund, 59 or the Indian Wholesale Price Indexes as published by the Office of the Economic Advisor to the Government of India. 60 We further adjusted these prices to account for freight expenses incurred between the input supplier and respondent.

To value calcium chloride, barium chloride, zinc sulfate, we used Chemical Weekly data because South African import data by concentration level was unavailable in the GTA. We adjusted these values for taxes and to account for freight expenses incurred between the supplier and the respondent. We inflated the data to make it contemporaneous with the POR. 61

To value sulfuric acid, the Department used a price list placed on the record by Petitioners for a South African chemical company called Norceline Chemicals Suppliers. The prices for sulfuric acid are for one specific concentration level, packaged two different ways. The Department took an average of the price, and, because the data is contemporaneous with the POR, we did not inflate the value.

As noted above, Jiheng and Kangtai reported that a U.S. customer provided certain raw materials and packing materials free of charge. Raw materials and packing materials that are provided free of charge to a respondent by its customer and materials for which a respondent is separately reimbursed by its customer are part of the cost of manufacturing, and must be included when calculating NV. Thus, for Jiheng's and Kangtai's products that included raw materials and packing materials provided free of charge, consistent with the Department's practice and section 773(c)(1)(B) of the Act, we used the built-up cost ( i.e., the surrogate value for these raw materials and packing materials multiplied by the reported FOPs for these items) in the NV calculation. 62 We also added the built-up costs for the raw materials for which Jiheng was reimbursed by a U.S. customer to NV. Where applicable, we also adjusted these values to account for freight expenses incurred between the nearest port of entry and Jiheng's plants. 63

Because water was used by the respondents in the production of chlorinated isos, the Department considers water to be a direct material input rather than part of overhead. We valued water using data from the city of Johannesburg's “Amendment of Tariff Charges for Water for Water Services,” Annexure “A”, with tariffs effective July 1, 2010. We did not inflate this rate since it is contemporaneous with the POR. 64

For packing materials, we used the per-kilogram values obtained from the GTA and made adjustments to account for freight expense incurred between the PRC supplier and the respondents' plants. 65

Jiheng reported chlorine, hydrogen gas, ammonia gas, and sulfuric acid as by-products in the production of subject merchandise. We find in this administrative review that Jiheng has appropriately explained how by-products are produced during the manufacture of chlorinated isos and has appropriately supported its claim that a by-product offset to NV should be granted. We valued ammonia gas and sulfuric acid using GTA and Norceline Chemicals Suppliers price list data, respectively. The Department determined in the previous review that chlorine and hydrogen are rarely traded via ocean transport on an international basis, and used Indian financial statements to provide more representative values for chlorine and hydrogen gas. 66 In the instant review, the Department is using data from financial statements placed on the record of the last review to value chlorine and hydrogen. Since this data is not contemporaneous with the POR, we inflated it using the wholesale price index from India. 67

Kangtai reported ammonium sulfate as a by-product in the production of subject merchandise. However, the Department has found that ammonium sulfate is not a by-product of the chlorinated isos production process. 68 The production process does yield ammonia gas and sulfuric acid as by-products, which can be further produced to make ammonium sulfate. The Department adjusted Kangtai's reported ammonium sulfate by-product to calculate an ammonia gas and sulfuric acid by-product. 69 We valued the by-products using GTA and Norceline Chemicals Suppliers price list data.

For electricity, we used data from a South African electric public utility, Eskom. We used an average of the tariff rates for a “Megaflex” consumer, which is for time of use electricity for an urban consumer, able to shift load, with a maximum demand of greater than one megavolt ampere, which appears to be the tariff category that most closely matches the category our respondents would be classified in. These electricity rates represent publicly-available information on tax-exclusive electricity rates charged to industries in South Africa. 70

On June 21, 2011, the Department revised its methodology for valuing the labor input in NME AD proceedings. 71 In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry-specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry-specific labor rates is Chapter 6A of the Yearbook.

The Department valued labor in this review using the methodology described in Labor Methodologies. Specifically, to value the respondents' labor, because South Africa does not report labor rates in Chapter 6A of the Yearbook, the Department relied on data reported by India to the ILO in Chapter 6A of the Yearbook. The Department further finds the two-digit description under ISIC-Revision 3 (Manufacture of Chemicals and Chemical Products) to be the best available information on the record because it is specific to the industry being examined, and is therefore derived from industries that produce comparable merchandise. This is the same classification used in the prior review of this case. Accordingly, relying on Chapter 6A of the Yearbook, the Department calculated the labor input using labor data reported by India to the ILO under Sub-Classification 24 of the ISIC-Revision 3 standard, in accordance with section 773(c)(4) of the Act. Because these rates were in effect before the POR, we are adjusting the average value for inflation. 72

As stated above, the Department used India ILO data reported under Chapter 6A of the Yearbook, which reflects all costs related to labor, including wages, benefits, housing, training, etc. Since the financial statements used to calculate the surrogate financial ratios include itemized detail of indirect labor costs, the Department made adjustments to the surrogate financial ratios. 73

We valued truck freight using an average of truck freight costs as reported in a July 2008 working paper titled “Transport Prices and Costs in Africa: A Review of the Main International Corridors,” published by the International Bank for Reconstruction and Development/World Bank and a short-haul freight contract for transportation services in South Africa from October 2011. Since both sources were dated outside the POR, we inflated or deflated them to reach a rate contemporaneous with the POR. 74

As discussed above, there are no financial statements from South Africa on the record of this review, and the Department could not find any financial statements from South African companies producing identical or comparable merchandise. 75 To calculate surrogate values for factory overhead, selling, general, and administrative expenses (SG&A), and profit for these preliminary results, we used financial information from Kanoria Chemicals & Industries Limited (an Indian producer of comparable merchandise—stable bleaching powder) for the fiscal year ending March 31, 2011. 76 From this information, we were able to determine average factory overhead as a percentage of the total raw materials, labor, and energy (ML&E), average SG&A as a percentage of ML&E plus overhead ( i.e., cost of manufacture), and an average profit rate as a percentage of the cost of manufacture plus SG&A. 77

Where the factor valuations were reported in a currency other than U.S. dollars, in accordance with section 773A(a) of the Act, we made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.

We preliminarily determine that the following dumping margins exist:

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. If a respondent's weighted-average dumping margin is above de minimis in the final results of this review, we will calculate an importer specific (or customer-specific, if the importer is unknown) assessment rate on the basis of the ratio of the total amount of antidumping duties calculated for the importer's examined sales and the total entered value for those sales in accordance with 19 CFR 351.212(b)(1). 78

Where an importer-specific (or customer-specific) ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. 79 For the companies receiving a separate rate that were not selected for individual review, we will assign an assessment rate based on the average of the weighted-average dumping margins we calculated for the mandatory respondents whose rate were not de minimis, as discussed above. We intend to instruct CBP to liquidate entries containing subject merchandise exported by the PRC-wide entity at the PRC-wide rate.

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporter's listed above, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be eligible for a separate rate, the cash deposit rate will be the PRC-wide rate of 285.63 percent;  80 and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

We will disclose the calculations used in our analysis to parties to this proceeding within five days of the publication date of this notice, in accordance with 19 CFR 351.224(b). Interested parties are invited to comment on the preliminary results. The schedule for filing case briefs will be provided to parties at a later date. Rebuttal briefs, limited to issues raised in case briefs, may be filed no later than five days after the time limit for filing the case briefs, as specified by 19 CFR 351.309(d). The Department requests that parties submitting case or rebuttal briefs provide an executive summary and a table of authorities as well as an electronic copy.

Any interested party may request a hearing within 30 days of publication of this notice, as provided by 19 CFR 351.310(c). Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the case briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

The Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act, unless otherwise extended.

This notice also serves as a preliminary 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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Postponement of Preliminary Determination

On March 27, 2012, the Department of Commerce (“the Department”) initiated an antidumping duty investigation on drawn stainless steel sinks from the People's Republic of China. 1 The notice of initiation stated that, unless postponed, the Department would issue its preliminary determination no later than 140 days after the date of issuance of the initiation, in accordance with section 733(b)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). The preliminary determination is currently due no later than August 8, 2012.

On June 29, 2012, Petitioner, Elkay Manufacturing Company, made a timely request, pursuant to 19 CFR 351.205(b)(2) and (e), for a 50-day postponement of the preliminary determination, in order to allow additional time for the Department to review respondents' sections C and D questionnaire submissions. 2 Because there are no compelling reasons to deny the request, in accordance with section 733(c)(1)(A) of the Act, the Department is postponing the deadline for the preliminary determination by 50 days.

An extension of 50 days from the current deadline of August 8, 2012, would result in a new deadline of September 27, 2012. The deadline for the final determination will continue to be 75 days after the date of the preliminary determination, unless extended.

This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

I. Background

The Southeast Alaska purse seine salmon fishery is a commercial fishery in Alaska State waters and adjacent Federal waters. It encompasses the commercial taking of salmon with purse seine gear, and participation is limited to fishermen designated by the Alaska Commercial Fisheries Entry Commission (CFEC).

NMFS published proposed program regulations on May 23, 2011 (76 FR 29707), and final program regulations on October 6, 2011 (76 FR 61985), to implement the reduction program. Subsequently, the Southeast Revitalization Association submitted a capacity reduction plan to NMFS. NMFS approved the plan on February 24, 2012. NMFS published the list of eligible voters on March 1, 2012 (77 FR 12568) and the notice of referendum period on March 29, 2012 (77 FR 19004). Interested persons should review these for further program details.

NMFS conducted a referendum to determine the industry's willingness to repay a fishing capacity reduction loan to purchase the permits identified in the reduction plan. NMFS mailed ballots to 379 permanent permit holders in the fishery designated as S01A by CFEC who were eligible to vote in the referendum. The voting period opened on March 30, 2012, and closed on April 30, 2012. NMFS received 269 timely and valid votes. Two hundred and fifteen of the permit holders voted in favor of the program and the reduction loan repayment fees. This exceeded the majority of permit holders (190) required for industry fee system approval.

On May 7, 2012, NMFS published another Federal Register document (77 FR 26744) advising the public that NMFS would tender the program's reduction payments to the 64 selected bidders who would permanently stop fishing with the permits they had relinquished in return for reduction payments. Subsequently, NMFS disbursed $13,133,030 in reduction payments to the 64 selected bidders.

This document's purpose is to establish the reduction loan repayment fee's effective date in accordance with subpart M to 50 CFR 600.1107.

Southeast Alaska purse seine salmon program fee payment and collection will begin on July 22, 2012. Starting on this date, all harvesters of Southeast Alaska purse seine salmon (designated as S01A by CFEC) must pay the fee in accordance with the applicable regulations. All fish buyers of Southeast Alaska purse seine salmon must collect the fee in accordance with the applicable regulations.

The initial fee applicable to the Southeast Alaska purse seine salmon program's reduction fishery is 3.00% of landed value and any subsequent bonus payments. Fish sellers and fish buyers must pay and collect the fee in the manner set out in 50 CFR 600.1107 and the framework rule. Consequently, all harvesters and fish buyers should read subpart L to 50 CFR 600.1013 to understand how fish harvesters must pay and fish buyers must collect the fee.

Section 101(a)(5)(D) of the MMPA of 1972, as amended (16 U.S.C. 1361 et seq. ), directs the Secretary of Commerce to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if: (1) We make certain findings; (2) the taking is limited to harassment; and (3) we provide a notice of a proposed authorization to the public for review.

We shall grant authorization for the incidental taking of small numbers of marine mammals if we find that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the mitigation, monitoring and reporting of such takings. We have 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.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the Act establishes a 45-day time limit for our review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, we must either issue or deny the authorization and must publish a notice in the Federal Register within 30 days of our determination to issue or deny the authorization.

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].

The U.S. National Science Foundation (Foundation) has prepared an “Environmental Assessment and Finding of No Significant Impact Determination Pursuant to the National Environmental Policy Act, 42 U.S.C. 4321 et seq. and Executive Order 12114 Marine Seismic Surveys in the northeastern Pacific Ocean, 2012.” The Environmental Assessment incorporates an “Environmental Assessment of a Marine Geophysical Surveys by the R/V Marcus G. Langseth in the Northeastern Pacific Ocean, June-July 2012,” prepared by LGL Limited Environmental Research Associates, on behalf of the Foundation. We also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the survey and Incidental Harassment Authorization on marine species listed as threatened or endangered. The Biological Opinion will be available online at: http://www.nmfs.noaa.gov/pr/consultations/opinions.htm. The public can view documents cited in this notice by appointment, during regular business hours, at the aforementioned address.

We received an application on January 27, 2012, from the Observatory for the taking by harassment, of small numbers of marine mammals, incidental to conducting three separate marine seismic surveys in the northeast Pacific Ocean. We determined the application complete and adequate on March 27, 2012. On May 2, 2012, we published a notice in the Federal Register (77 FR 25966) disclosing the effects on marine mammals, making preliminary determinations, and proposing to issue the Incidental Harassment Authorization. The notice initiated a 30 day public comment period.

The Observatory, with research funding from the Foundation, plans to conduct three research studies on the Juan de Fuca Plate, the Cascadia thrust zone, and the Cascadia subduction margin in waters off the Oregon and Washington coasts. The Observatory will conduct the first survey from June 14 through July 8, 2012, the second survey from July 4 through July 6, 2012, and the third survey from July 12 through July 23, 2012, for a total of 30 days of active seismic operations. Some minor deviation from these dates is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Therefore, the authorizations are effective from June 13, 2012 to July 25, 2012; July 1 to August 1, 2012; and July 12 to August 10, 2012, respectively.

The Observatory will use one source vessel, the R/V Marcus G. Langseth ( Langseth ), a seismic airgun array, a single hydrophone streamer, and ocean bottom seismometers to conduct the seismic surveys.

The surveys will provide data necessary to:

• Characterize the evolution and state of hydration of the Juan de Fuca plate at the Cascadia subduction zone;

• Provide information on the buried structures in the region; and

• Assess the location, physical state, fluid budget, and methane systems of the Juan de Fuca plate boundary and overlying crust.

The results of the three studies will provide background information for generating improved earthquake hazards analyses and a better understanding of the processes that control megathrust earthquakes, which are produced by a sudden slip along the boundary between a subducting and an overriding plate.

In addition to the operations of the seismic airgun array and hydrophone streamer, and the ocean bottom seismometers (seismometers), the Observatory intends to operate a multibeam echosounder and a sub-bottom profiler continuously throughout the surveys.

Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun arrays, may have the potential to cause a short-term behavioral disturbance for marine mammals in the survey area. This is the principal means of marine mammal taking associated with these activities, and the Observatory has requested an authorization to take 26 species of marine mammals by Level B harassment. We do not expect that the use of the multibeam echosounder, the sub-bottom profiler, or the ocean bottom seismometers (seismometers) will result in the take of marine mammals and will discuss our reasoning later in this notice. Also, we do not expect take to result from a collision with the Langseth because it is a single vessel moving at relatively slow speeds (4.6 knots (kts); 8.5 kilometers per hour (km/h); 5.3 miles per hour (mph)) during seismic acquisition within the survey, for a relatively short period of time. It is likely that any marine mammal would be able to avoid the vessel.

The notice for the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012) contained a full description of the Observatory's planned activities. That notice describes the dates, locations, and operational details of the three surveys. The activities to be conducted have not changed between the proposed Incidental Harassment Authorization notice and this final notice announcing the issuance of the Incidental Harassment Authorization; therefore, only a short summary is provided here. For a more detailed description of the authorized action, including vessel and acoustic source specifications, the reader should refer to the notice of the proposed Incidental Harassment Authorization notice (77 FR 25966, May 2, 2012), the Incidental Harassment Authorization application, Environmental Assessment, and associated documents referenced above this section.

The first seismic survey would begin on June 14, 2012, and end on July 8, 2012. The Langseth will depart from Astoria, Oregon on June 14, 2012, and transit to the survey area in the northeast Pacific Ocean in international waters and the Exclusive Economic Zones of the United States and Canada. The study area will encompass an area bounded by approximately 43 to 48 degrees (°) North by approximately 124 to 130° East (see Figure 1 in the Observatory's Application #1). Water depths in the survey area range from approximately 50 to 3,000 meters (m) (164 feet [ft] to 1.7 nautical miles [nmi]). At the conclusion of the first survey, the Langseth would begin a second three-day seismic survey on July 5, 2012, in the same area.

During this survey, the Langseth would deploy a 36-airgun array as an energy source, an 8-kilometer (km)-long (4.3 nmi-long) hydrophone streamer, and 46 seismometers.

The Observatory plans to discharge the airgun array along three long transect lines and three semi-circular arcs using the seismometers as the receivers and then repeat along the long transect lines in multichannel seismic mode using the 8-km streamer as the receiver (see Figure 1 in the Observatory's Application #1). Also, the Observatory will use one support vessel, the R/V Oceanus ( Oceanus ) to deploy 46 seismometers on the northern onshore-offshore line, retrieve the 46 seismometers from the northern line, and then deploy 39 seismometers on the southern onshore-offshore lines and retrieve them at the conclusion of the survey.

The first study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) will require approximately 17 days to complete approximately 3,051 km (1,647.4 nmi) of transect lines. The total survey effort including contingency will consist of approximately 2,878 km (1,554 nmi) of transect lines in depths greater than 1,000 m (3,280.8 ft), 102 km (55.1 nmi) in depths 100 to 1,000 m (328 to 3,280 ft), and 71 km (38.3 nmi) in water depths less than 100 m (328 ft). The northern and southern onshore-offshore lines are 70 to 310 km (37.8 to 167.4 mi) and 15 to 450 km (8.1 to 243 mi) from shore, respectively.

Data acquisition will include approximately 408 hours of airgun operations (i.e., 17 days over 24 hours).

The second survey would begin on July 4, 2012, and end on July 6, 2012. The survey would take place in the U.S. Exclusive Economic Zone in waters off of the Oregon and Washington coasts. The study area will encompass an area bounded by approximately 43.5 to 47° North by approximately 124 to 125° East (see Figure 1 in the Observatory's Application #2). Water depths in the survey area range from approximately 50 to 1,000 m (164 ft to 3,280.8 ft). At the conclusion of this survey, the Langseth would return to Astoria, Oregon on July 8, 2012.

The Langseth would deploy a 36-airgun array as an energy source, 12 seismometers, and 48 seismometers (33 in Oregon and 15 in Washington) onshore (on land). The Observatory plans to use the Oceanus to deploy and retrieve the seismometers.

The Observatory plans to discharge the airgun array along a grid of lines off Oregon and along an onshore-offshore line off Washington (see Figure 1 in the Observatory's Application #2).

The study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) will require approximately 3 days to complete approximately 793 km (492.7 mi) of transect lines. The total survey effort including contingency will consist of approximately 5 km (2.7 nmi) of transect lines in depths greater than 1,000 m, 501 km (270.5 mi) in depths 100 to 1,000 m (328 to 3,280 ft), and 287 km (155 nmi) in water depths less than 100 m (328 ft). The northern and southern legs of the onshore-offshore lines are 15 to 70 km (8.1 to 37.8 nmi) and 15 to 50 km (8.1 to 27 nmi) from shore, respectively. Data acquisition will include approximately 72 hours of airgun operations (i.e., 3 days over 24 hours).

The last seismic survey would begin on July 12, 2012, and end on July 23, 2012. The Langseth would depart from Astoria, Oregon on July 12, 2012, and transit to waters off of the Washington coast. The study area encompasses an area bounded by approximately 46.5 to 47.5° North by approximately 124.5 to 126° East (see Figure 1 in the Observatory's Application #3). Water depths in the survey area range from approximately 95 to 2,650 m (311.7 ft to 8,694.2 ft). At the conclusion of this survey, the Langseth would return to Astoria, Oregon.

The Langseth would deploy a 36-airgun array as an energy source and an 8-km-long (4.3 nmi-long) hydrophone streamer. The Observatory plans to discharge the airgun array along nine parallel lines that are spaced eight km apart. If time permits, the Langseth would survey an additional two lines perpendicular to the parallel lines (see Figure 1 in the Observatory's Application #3).

The study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) will require approximately 10 days to complete approximately 1,147 km (619.3 nmi) of transect lines. The total survey effort including contingency will consist of approximately 785 km (423.9 nmi) of transect lines in depths greater than1,000 m, 350 km (189 nmi) of transect lines in depths 100 to 1,000 m, and 12 km (6.5 mi) of transect lines in water depths less than 100 m. The survey area is 32 to 150 km (17.3 to 81 nmi) from shore. Data acquisition will include approximately 240 hours of airgun operations (i.e., 10 days over 24 hours).

Some minor deviation from these dates is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Therefore, the issued authorizations are effective from June 13 through July 25, 2012; July 1 through August 1, 2012; and July 12 through August 10, 2012.

A notice of preliminary determinations and proposed Incidental Harassment Authorization for the Observatory's three proposed seismic surveys was published in the Federal Register on May 2, 2012 (77 FR 25966). During the 30-day public comment period NMFS received comments from the Marine Mammal Commission (Commission). The Commission's comments are available online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. On June 8 and 11, 2012, we received information and a letter, respectively, from the Orca Network regarding the seismic survey's potential impacts on endangered Southern Resident killer whales after the close of the public comment period. The Orca Network's letter is available online at: http://www.orcanetwork.org/news/seismicsurvey2012.html and http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The Observatory has made changes and enhancements to the seismic survey plan since they were originally proposed, and additional monitoring and mitigation measures have been required in the Incidental Harassment Authorization. Following is a summary of the Commission's comments and our responses:

Comment 1: The Commission recommends that we require the Observatory to re-estimate the proposed exclusion and buffer zones and associated takes of marine mammals using site-specific information—if the exclusion and buffer zones and numbers of takes are not re-estimated require the Observatory to provide a detailed justification explaining the rationale for (1) basing the exclusion and buffer zones for the proposed survey in the northeast Pacific Ocean on empirical data collected in the Gulf of Mexico or on modeling that relies on measurements from the Gulf of Mexico and (2) using simple ratios to adjust for tow depth and applying median values to estimate propagation in intermediate water depths rather than using empirical measurements.

Response: With respect to the Commission's first point, based upon the best available information and our analysis of the likely effects of the specified activity on marine mammals and their habitat, we are satisfied that the data supplied by the Observatory are sufficient for us to conduct our analysis and support the determinations under the MMPA, ESA of 1973 (16 U.S.C. 1531 et seq. ), and the National Environmental Policy Act (NEPA). The identified zones are appropriate for the survey and additional field measurements are not necessary at this time. Thus, for this survey, NMFS will not require the Observatory to re-estimate the proposed exclusion zones and buffer zones and associated number of marine mammal takes using operational and site-specific environmental parameters.

With respect to the Commission's second point, the Observatory has modeled the exclusion and buffer zones in the action area based on the Observatory's 2003 (Tolstoy et al., 2004) and 2007 to 2008 (Tolstoy et al., 2009) peer-reviewed, calibration studies in the northern Gulf of Mexico. Received levels have been modeled by the Observatory for a number of airgun configurations in relation to distance and direction from the airguns (see Figure 3 of the Incidental Harassment Authorization applications). The Foundation's Environmental Assessment (see Appendix A) includes detailed information on the study, and their modeling process of the calibration experiment in shallow, intermediate, and deep water. The conclusions in Appendix A show that the Observatory's model represents the actual produced sound levels, particularly within the first few kilometers, where the predicted zone (i.e., exclusion zone) lie. At greater distances, local oceanographic variations begin to take effect, and the model tends to over predict.

Because the modeling matches the observed measurement data, the authors concluded that those using the models to predict zones can continue to do so, including predicting exclusion zones and buffer zones around the vessel for various tow depths. At present, the Observatory's model does not account for site-specific environmental conditions, and the calibration study analysis of the model predicted that using site-specific information may actually estimate less conservative exclusion zones at greater distances.

While it is difficult to estimate exposures of marine mammals to acoustic stimuli, we are confident that the Observatory's approach to quantifying the exclusion and buffer zones uses the best available scientific information (as required by our regulations) and estimation methodologies. After considering this comment and evaluating the respective approaches for establishing exclusion and buffer zones, we have determined that the Observatory's approach and corresponding monitoring and mitigation measures will effect the least practicable impact on the affected marine mammal species or stocks.

Comment 2: The Commission recommends that we require the Observatory to re-estimate the number of takes during the first survey (i.e., Juan de Fuca plate survey) by accounting for two passes over the three long transect lines, which should effectively double the estimated number of takes from a single survey pass of those lines.

Response: NMFS and the Observatory base the estimated number of takes on the number of individual animals that are exposed to sound levels greater than or equal to 160 dB (rms), and some animals may be exposed multiple times in a 24 hour period. In the context of a diel cycle, if multiple exposures occur to an individual within a 24 hour period, NMFS and the Observatory considered this as one take, for purposes of estimating the number takes by Level B harassment. The Observatory's calculated number of takes assumes that the animals are stationary, so two passes over the three long transect lines is affecting the same number of individuals twice. Because the animals are considered stationary, these calculated take numbers are likely overestimates, as animals are constantly moving in the real marine environment. The Observatory's use of these peer-reviewed, model-based, density estimates are the best available information to estimate density for the survey area and to estimate the number of authorized takes for the seismic surveys in the northeastern Pacific Ocean.

Comment 3: The Commission recommends that we prohibit an 8 minute pause following the sighting of a marine mammal in the exclusion zone and extend that pause to cover the maximum dive times of the species likely to be encountered prior to resuming airgun operations after both power-down and shut-down procedures.

Response: The Incidental Harassment Authorization specifies the conditions under which the Langseth will resume full-power operations of the airguns after a power-down or shut-down. During periods of active seismic operations, there are occasions when the airguns need to be temporarily shut-down (e.g., due to equipment failure, maintenance, or shut-down) or when a power-down is necessary (e.g., when a marine mammal is seen entering or about to enter the exclusion zone) for less than 8 minutes.

Should the airguns be inactive or powered-down for more than 8 minutes, then the Observatory would follow the ramp-up procedures identified in the “Mitigation” section (discussed later in this document) where airguns will be re-started beginning with the smallest airgun in the array and increase in steps not to exceed 6 dB per 5 minutes over a total duration of approximately 30 minutes. We and the Foundation believe that the 8 minute period in question is an appropriate minimum amount of time to pass after which a ramp-up process should be followed. In these instances, should it be possible for the Observatory to reactivate the airguns without exceeding the eight minute period (e.g., equipment is fixed or a marine mammal is visually observed to have left the exclusion zone for the full source level), then the Observatory would reactivate the airguns to the full operating source level identified for the survey (in this case 6,600 in 3 ) without need for initiating ramp-up procedures. In the event a marine mammal enters the exclusion zone and the Observatory initiates a power-down, and the Protected Species Observers do not visually observe the marine mammal leaving the exclusion zone, then the Observatory must wait 15 minutes (for species with shorter dive durations—small odontocetes and pinnipeds) or 30 minutes (for species with longer dive durations—mysticetes and large ondontocetes) after the last sighting before initiating a 30-minute ramp-up. However, ramp-up will not occur as long as a marine mammal is detected within the exclusion zone, which provides more time for animals to leave the exclusion zone, and accounts for the position, swim speed, and heading of marine mammals within the exclusion zone.

We recognize that several species of deep-diving cetaceans are capable of remaining underwater for more than 30 minutes (e.g., sperm whales and several species of beaked whales); however, for the following reasons we believe that 30 minutes is an adequate length for the monitoring period prior to the ramp-up of airguns:

(1) Because the Langseth is required to monitor before ramp-up of the airgun array, the time of monitoring prior to the start-up of any but the smallest array is effectively longer than 30 minutes (ramp-up will begin with the smallest airgun in the array and airguns will be added in sequence such that the source level of the array will increase in steps not exceeding approximately 6 dB per five minute period over a total duration of about 30 minutes);

(2) In many cases Protected Species Observers are observing during times when the Observatory is not operating the seismic airguns and would observe the area prior to the 30-minute observation period;

(3) The majority of the species that may be exposed do not stay underwater more than 30 minutes; and

(4) All else being equal and if deep-diving individuals happened to be in the area in the short time immediately prior to the pre-ramp-up monitoring, if an animal's maximum underwater dive time is 45 minutes, then there is only a one in three chance that the last random surfacing would occur prior to the beginning of the required 30 minute monitoring period and that the animal would not be seen during that 30-minute period.

Finally, seismic vessels are moving continuously (because of the long, towed array and streamer) and we believe that unless the animal submerges and follows at the speed of the vessel (highly unlikely, especially when considering that a significant part of their movement is vertical [deep-diving]), the vessel will be far beyond the length of the exclusion zone within 30 minutes, and therefore it will be safe to start the airguns again.

Under the MMPA, incidental take authorizations must include means of effecting the least practicable impact on marine mammal species and their habitat. Monitoring and mitigation measures are designed to comply with this requirement. The effectiveness of monitoring is science-based, and monitoring and mitigation measures must be “practicable.” We believe that the framework for visual monitoring will: (1) Be effective at spotting almost all species for which take is requested; and (2) that imposing additional requirements, such as those suggested by the Commission, would not meaningfully increase the effectiveness of observing marine mammals approaching or entering exclusion zones and thus further minimize the potential for take.

Comment 4: The Commission recommends that we provide additional justification for our preliminary determination that the proposed monitoring program will be sufficient to detect, with a high level of confidence, all marine mammals within or entering the identified exclusion and buffer zones—such justification should (1) Identify those species that it believes can be detected with a high degree of confidence using visual monitoring only under the expected environmental conditions, (2) describe detection probability as a function of distance from the vessel, (3) describe changes in detection probability under various sea state and weather conditions and light levels, and (4) explain how close to the vessel marine mammals must be for observers to achieve high nighttime detection rates.

Response: We believe that the planned monitoring program will be sufficient to detect (using visual monitoring and passive acoustic monitoring), with reasonable certainty, marine mammals within or entering the identified exclusion zones. This monitoring, along with the required mitigation measures, will result in the least practicable impact on the affected species or stocks and will result in a negligible impact on the affected species or stocks of marine mammals. Also, NMFS expects some animals to avoid areas around the airgun array ensonified at the level of the exclusion zone.

We acknowledge that the detection probability for certain species of marine mammals varies depending on the animal's size and behavior, as well as sea state, weather conditions, and light levels. The detectability of marine mammals likely decreases in low light (i.e., darkness), higher Beaufort sea states and wind conditions, and poor weather (e.g., fog and/or rain). However, at present, we view the combination of visual monitoring and passive acoustic monitoring as the most effective monitoring and mitigation techniques available for detecting marine mammals within or entering the exclusion zone. The final monitoring and mitigation measures are the most effective and feasible measures, and we are not aware of any additional measures which could meaningfully increase the likelihood of detecting marine mammals in and around the exclusion zone. Further, public comment has not revealed any additional monitoring and mitigation measures that could be feasibly implemented to increase the effectiveness of detection.

The Foundation and Observatory are receptive to incorporating proven technologies and techniques to enhance the current monitoring and mitigation program. Until proven technological advances are made nighttime mitigation measures during operations include combinations of the use of Protected Species Visual Observers for ramp-ups, passive acoustic monitoring, night vision devices provided to Protected Species Visual Observers, and continuous shooting of a mitigation airgun. Should the airgun array be powered-down the operation of a single airgun would continue to serve as a sound deterrent to marine mammals. In the event of a complete shut-down of the airgun array at night for mitigation or repairs, the Observatory suspends the data collection until 30 minutes after nautical twilight-dawn (when Protected Species Visual Observers are able to clear the exclusion zone). The Observatory will not activate the airguns until the entire exclusion zone is visible and free of marine mammals for at least 30 minutes.

In cooperation with us, the Observatory will be conducting efficacy experiments of night vision devices during a future Langseth cruise. In addition, in response to a recommendation from us, the Observatory is evaluating the use of forward-looking thermal imaging cameras to supplement nighttime monitoring and mitigation practices. During other low-power seismic and seafloor mapping surveys throughout the world, the Observatory successfully used these devices while conducting nighttime seismic operations.

Comment 5: The Commission recommends that we consult with the funding agency (i.e., the Foundation) and individual applicants (i.e., the Observatory and U.S. Geological Survey) to develop, validate, and implement a monitoring program that provides a scientifically sound, reasonably accurate assessment of the types of marine mammal taking and the number of marine mammals taken.

Response: Several studies have reported on the abundance and distribution of marine mammals inhabiting the Pacific Ocean, and the Observatory has incorporated these data into their analyses used to predict marine mammal take in their Incidental Harassment Authorization applications. We believe that the Observatory's approach for estimating abundance in the survey areas (prior to the survey) is the best available approach.

There will be periods of transit time during the cruise, and Protected Species Observers will be on watch prior to and after the seismic portions of the surveys, in addition to during the surveys. The collection of this visual observational data by Protected Species Observers may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers, but it is unlikely that the information gathered from these cruises alone would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed.

We acknowledge the Commission's recommendations and are open to further coordination with the Commission, Foundation (the vessel owner), and the Observatory (the ship operator on behalf of the Foundation), to develop, validate, and implement a monitoring program that will provide or contribute towards a more scientifically sound and reasonably accurate assessment of the types of marine mammal taking and the number of marine mammals taken. However, the cruise's primary focus is marine seismic research, and the surveys may be operationally limited due to considerations such as location, time, fuel, services, and other resources.

Comment 6: The Commission recommends that we require the Observatory to (1) Report the number of marine mammals that were detected acoustically and for which a power-down or shut-down of the airguns was initiated, (2) specify if such animals also were detected visually, (3) compare the results from the two monitoring methods (visual versus acoustic) to help identify their respective strengths and weaknesses, and (4) use that information to improve mitigation and monitoring methods.

Response: The Incidental Harassment Authorization requires that Protected Species Acoustic Observers on the Langseth do and record the following when a marine mammal is detected by passive acoustic monitoring:

(i) Notify the on-duty Protected Species Visual Observer(s) immediately of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required:

(ii) Enter the information regarding the vocalization into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, data, time when first and last heard and whenever any additional information was recorded, position, and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information.

We acknowledge the Commission's request for a comparison between the Observatory's visual and acoustic monitoring programs, and we will work with the Foundation (the vessel owner) and the Observatory (the ship operator on behalf of the Foundation) to analyze the results of the two monitoring methods to help identify their respective strengths and weaknesses. The results of our analyses may provide information to improve mitigation and monitoring for future seismic surveys.

The Observatory reports on the number of acoustic detections made by the passive acoustic monitoring system within the post-cruise monitoring reports as required by the Incidental Harassment Authorization. The report also includes a description of any acoustic detections that were concurrent with visual sightings, which allows for a comparison of acoustic and visual detection methods for each cruise. The post-cruise monitoring reports also include the following information: total operations effort in daylight (hours), total operation effort at night (hours), total number of hours of visual observations conducted, total number of sightings, and total number of hours of acoustic detections conducted.

LGL Ltd., Environmental Research Associates (LGL), a contractor for the Observatory, has processed sighting and density data, and their publications can be viewed online at: http://www.lgl.com/index.php?option=con_content&view=article&id=69&Itemid=162&lang=en. Post-cruise monitoring reports are currently available on our MMPA Incidental Take Program Web site (see ADDRESSES ) and on the Foundation's Web site ( http://www.nsf.gov/geo/oce/envcomp/index.jsp ) should there be interest in further analysis of this data by the public.

Comment 7: The Commission recommends that we work with the Foundation to analyze those data collected during ramp-up procedures to help determine the effectiveness of those procedures as a mitigation measure for seismic surveys.

Response: We acknowledge the Commission's request for an analysis of ramp-ups and will work with the Foundation and the Observatory to help identify the effectiveness of the mitigation measure for seismic surveys. The Incidental Harassment Authorization requires that Protected Species Observers on the Langseth make observations for 30 minutes prior to ramp-up, during all ramp-ups, and during all daytime seismic operations and record the following information when a marine mammal is sighted:

(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from the seismic vessel, sighting cue, apparent reaction of the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc., and including responses to ramp-up), and behavioral pace; and

(ii) Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or shut-down), Beaufort wind force and sea state, visibility, and sun glare.

One of the primary purposes of monitoring is to result in “increased knowledge of the species” and the effectiveness of required monitoring and mitigation measures. The effectiveness of ramp-up as a mitigation measure and marine mammal reaction to ramp-up would be useful information in this regard. We require the Foundation and the Observatory to gather all data that could potentially provide information regarding the effectiveness of ramp-up as a mitigation measure in its monitoring report. However, considering the low numbers of marine mammal sightings and low number of ramp-ups, it is unlikely that the information will result in any statistically robust conclusions for this particular seismic survey. Over the long term, these requirements may provide information regarding the effectiveness of ramp-up as a mitigation measure, provided Protected Species Observers detect animals during ramp-up.

Thirty-one marine mammal species under our jurisdiction may occur in the survey areas, including 19 odontocetes (toothed cetaceans), seven mysticetes (baleen whales), and five species of pinniped during June through July, 2012. Six of these species and two stocks are listed as endangered under the ESA, including the blue ( Balaenoptera musculus ), fin ( Balaenoptera physalus ), humpback ( Megaptera novaeangliae ), north Pacific right ( Eubalaena japonica ), sei ( Balaenoptera borealis ), and sperm ( Physeter macrocephalus ) whales; the southern resident stock of killer ( Orcinus orca ) whales; and the eastern U.S. stock of the Steller sea lion ( Eumetopias jubatus ).

The U.S. Fish and Wildlife Service manages the northern sea otter ( Enhydra lutis ) (listed under the ESA). Because this species is not under our jurisdiction, we do not consider this species further in this notice.

Based on available data, the Observatory does not expect to encounter five of the 31 species in the survey areas because of their rare and/or extralimital occurrence in the survey areas. They include the: the North Pacific right, false killer ( Pseudorca crassidens ), and short-finned pilot ( Globicephala macrorhynchus ) whales; the California sea lion ( Zalophus californianus ); and the bottlenose dolphin ( Tursiops truncatus ). Accordingly, we did not consider these species in greater detail, and the authorization only addresses take for 26 species: six mysticetes, 16 odontocetes, and four pinnipeds.

Of these 26 species, the most common marine mammals in the survey area will be the: harbor porpoise ( Phocoena phocoena ), Dall's porpoise ( Phocoenoides dalli ), northern fur seal ( Callorhinus ursinus ), and northern elephant seal ( Mirounga angustirostris ).

Table 1 presents information on the abundance, distribution, and conservation status of the marine mammals that may occur in the proposed survey area June through July, 2012.

Refer to sections III and IV of the Observatory's applications for detailed information regarding the abundance and distribution, population status, and life history and behavior of these species and their occurrence in the project area. The applications also present how the Observatory calculated the estimated densities for the marine mammals in the survey area. We have reviewed these data and determined them to be the best available scientific information for the purposes of the Incidental Harassment Authorizations.

Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the survey area. The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent impairment, or non-auditory physical or physiological effects (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). Permanent hearing impairment, in the unlikely event that it occurred, would constitute injury, but temporary threshold shift is not an injury (Southall et al., 2007). Although we cannot exclude the possibility entirely, it is unlikely that the project would result in any cases of temporary or permanent hearing impairment, or any significant non-auditory physical or physiological effects. Based on the available data and studies described in this document, we expect some behavioral disturbance, but we expect the disturbance to be localized.

The notice of the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012) included a discussion of the effects of sound from airguns on mysticetes, ondontocetes, and pinnipeds including tolerance, masking, behavioral disturbance, hearing impairment, and other non-auditory physical effects. We refer the reader to that document, as well as the Observatory's applications, and Environmental Assessment for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic surveys.

We included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine fish, fisheries, and invertebrates in the notice of the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012). While we anticipate that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat its temporary and reversible which we considered in further detail in the notice of the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012) as behavioral modification. The main impact associated with the activity will be temporarily elevated noise levels and the associated direct effects on marine mammals.

Recent work by Andre et al. (2011) purports to present the first morphological and ultrastructural evidence of massive acoustic trauma (i.e., permanent and substantial alterations of statocyst sensory hair cells) in four cephalopod species subjected to low-frequency sound. The cephalopods, primarily cuttlefish, were exposed to continuous 40 to 400 Hz sinusoidal wave sweeps (100% duty cycle and 1 s sweep period) for two hours while captive in relatively small tanks (one 2,000 liter (L 2 m 3 ] and one 200 L [0.2 m 3 ] tank). The received SPL was reported as 175 ± 5 dB re 1 μPa, with peak levels at 175 dB re 1 μPa. As in the McCauley et al. (2003) paper on sensory hair cell damage in pink snapper as a result of exposure to seismic sound (described in the notice of the proposed Incidental Harassment Authorization), the cephalopods were subjected to higher sound levels than they would be under natural conditions, and they were unable to swim away from the sound source.

In order to issue an ITA under section 101(a)(5)(D) of the MMPA, we must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.

The Observatory has based the mitigation measures which they will implement during the seismic survey, on the following:

(1) Protocols used during previous seismic research cruises as approved by us;

(2) Previous Incidental Harassment Authorization applications and authorizations that we have approved and authorized; and

(3) Recommended best practices in Richardson et al. (1995), Pierson et al. (1998), and Weir and Dolman (2007).

To reduce the potential for disturbance from acoustic stimuli associated with the activities, the Observatory and/or its designees is required to implement the following mitigation measures for marine mammals:

(1) Exclusion zones;

(2) Power-down procedures;

(3) Shut-down procedures;

(4) Ramp-up procedures; and

(5) Additional measures for species of concern.

Exclusion Zones —The Observatory uses safety radii to designate exclusion zones and to estimate take for marine mammals. Table 2 (presented earlier in this document) shows the distances at which one would expect to receive three sound levels (160-, 180-, and 190-dB) from the 36-airgun array and a single airgun. The 180-dB and 190-dB level shut-down criteria are applicable to cetaceans and pinnipeds, respectively, as specified by NMFS (2000). The Observatory used these levels to establish the exclusion zones.

If the Protected Species Visual Observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the Langseth crew will immediately power-down the airgun array, or perform a shut-down if necessary (see Shut-down Procedures).

Table 2 summarizes the predicted distances at which sound levels (160, 180, and 190 dB [rms]) are expected to be received from the airgun array operating in shallow, intermediate, and deep water depths.

Power-down Procedures - A power-down involves decreasing the number of airguns in use such that the radius of the 180-dB (or 190-dB) zone is smaller to the extent that marine mammals are no longer within or about to enter the exclusion zone. A power-down of the airgun array can also occur when the vessel is moving from one seismic line to another. During a power-down for mitigation, the Observatory will operate one airgun (40 in 3 ). The continued operation of one airgun is intended to alert marine mammals to the presence of the seismic vessel in the area. In contrast, a shut-down occurs when the Langseth suspends all airgun activity.

If the Protected Species Observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew will power-down the airguns to reduce the size of the 180-dB exclusion zone before the animal enters that zone.

Likewise, if a mammal is already within the zone when first detected, the crew will power-down the airguns immediately. During a power-down of the airgun array, the crew will operate a single 40-in 3 airgun which has a smaller exclusion zone. If the Protected Species Observer detects a marine mammal within or near the smaller exclusion zone around the airgun (Table 2), the crew will shut-down the single airgun (see next section).

Shut-down Procedures —The Langseth crew will shut-down the operating airgun(s) if a marine mammal is seen within or approaching the exclusion zone for the single airgun. The crew will implement a shut-down:

(1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power-down; or

(2) If an animal is initially seen within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating.

Considering the conservation status for endangered North Pacific right whales and Southern Resident killer whales, the Langseth crew will shut-down the airgun(s) immediately in the unlikely event that these species are visually sighted and/or acoustically detected, regardless of the distance from the vessel. Ramp-up will only begin if the animals have not been visually sighted or acoustically detected for 30 minutes.

Following a power-down, the Langseth crew will not resume full airgun activity until the marine mammal has cleared the 180-dB exclusion zone (see Table 2). The Protected Species Observers will consider the animal to have cleared the exclusion zone if:

• The observer has visually observed the animal leave the exclusion zone; or

• An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or

• The vessel has transited outside the original 180-dB exclusion zone after an 8-minute wait period. This period is based on the 180-dB exclusion zone for the 36-airgun array (940 m) towed at a depth of 9 m (29.5 ft) in relation to the average speed of the Langseth while operating the airguns (8.5 km/h; 5.3 mph).

The Langseth crew will resume operating the airguns at full power after 15 minutes of sighting any species with short dive durations (i.e., small odontocetes or pinnipeds). Likewise, the crew will resume airgun operations at full power after 30 minutes of sighting any species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales).

Because the vessel has transited 1.13 km (0.61 nmi) away from the vicinity of the original sighting during the 8-minute period, implementing ramp-up procedures for the full array after an extended power-down (i.e., transiting for an additional 35 minutes from the location of initial sighting) would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the exclusion zone for the full source level and would not further minimize the potential for take. The Langseth's Protected Species Observers are continually monitoring the exclusion zone for the full source level while the mitigation airgun is firing. On average, Protected Species Observers can observe to the horizon (10 km or 5.4 nmi) from the height of the Langseth' s observation deck and should be able to state with a reasonable degree of confidence whether a marine mammal would be encountered within this distance before resuming airgun operations at full power.

Following a shut-down, the Langseth crew will initiate a ramp-up with the smallest airgun in the array (40-in 3 ). The crew will turn on additional airguns in a sequence such that the source level of the array will increase in steps not exceeding 6 dB per five-minute period over a total duration of approximately 30 minutes. During ramp-up, the Protected Species Observers will monitor the exclusion zone, and if he/she sights a marine mammal, the Langseth crew will implement a power-down or shut-down as though the full airgun array were operational.

During periods of active seismic operations, there are occasions when the Langseth crew will need to temporarily shut down the airguns due to equipment failure or for maintenance. In this case, if the airguns are inactive longer than eight minutes, the crew will follow ramp-up procedures for a shut-down described earlier and the Protected Species Observers will monitor the full exclusion zone and will implement a power-down or shut-down if necessary.

If the full exclusion zone is not visible to the Protected Species Observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Langseth crew will not commence ramp-up unless at least one airgun (40-in 3 or similar) has been operating during the interruption of seismic survey operations. Given these provisions, it is likely that the vessel's crew will not ramp-up the airgun array from a complete shut-down at night or in thick fog, because the outer part of the zone for that array will not be visible during those conditions.

If one airgun has operated during a power-down period, ramp-up to full power will be permissible at night or in poor visibility, on the assumption that marine mammals will be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew will not initiate a ramp-up of the airguns if a marine mammal is sighted within or near the applicable exclusion zones during the day or close to the vessel at night.

The Observatory will communicate with NMFS Northwest Fisheries Science Center ( Brad.Hanson@noaa.gov , 206-300-0282), NMFS Northwest Regional Office ( Lynne.Barre@noaa.gov , 206-718-3807 or Brent.Norberg@noaa.gov , 206-526-6550), The Whale Museum ( hotline@whalemuseum.org , 1-800-562-8832), Orca Network ( info@orcanetwork.org , 1-866-672-2638), and/or other sources for near real-time reporting of the whereabouts of Southern Resident killer whales.

For the Cascadia Thrust Zone Northern Area Survey and the Cascadia Subduction Zone Survey:

• The Observatory will conduct a pre-survey beginning on July 11 (2 days before seismic operations commence) using the support vessel M/V Northern Light ( Northern Light ) or equivalent with three Protected Species Observers onboard for purposes of monitoring for the presence of marine mammals (particularly focusing attention to Southern Resident killer whales). The pre-survey will begin upon leaving port and during transit to the Northern Trehu line. The support vessel will then begin a zig-zag transect of the 160 dB buffer zone around the Trehu North line to either side of the Trehu North line from inshore to offshore remaining on the shelf looking for marine mammals. When the Langseth is ready to begin the seismic survey, the support vessel Northern Light will monitor north of the Langseth approximately 5 km away in the same zig-zag fashion as the pre-survey to monitor the 160 dB exclusion zone around the Langseth when the ship begins the survey on the continental shelf.

• To the maximum extent practicable, utilize a portable hydrophone from the support vessel Northern Light to listen for and determine the presence of vocalizing marine mammals and assist with visual detections.

• Conduct seismic operations according to relevant sightings of marine mammals from the Langseth and the support vessel Northern Light. For example, if high densities of marine mammals, including Southern Resident killer whales, are sighted in the northern region of the seismic survey area then seismic operations will begin in the southern region of the study area.

We have carefully evaluated the applicant's mitigation measures and have considered a range of other measures in the context of ensuring that we have prescribed the means of effecting the least practicable impact on the affected marine mammal species or stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

(1) The manner in which, and the degree to which, we expect that the successful implementation of the measure would minimize adverse impacts to marine mammals;

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

(3) The practicability of the measure for applicant implementation.

Based on our evaluation of the Observatory's measures, as well as other measures considered by us or recommended by the public, we have determined that the mitigation measures provide the means of effecting the least practicable impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an Incidental Take Authorization for an activity, section 101(a)(5)(D) of the MMPA states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The Marine Mammal Protection Act's implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals expected to be present in the action area.

The Observatory will sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the Incidental Harassment Authorizations. We describe the Observatory's Monitoring Plan below this section. The Observatory has planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, the Observatory would discuss coordination of its monitoring program with any other related work by other groups working in the same area, if practical.

The Observatory will position Protected Species Visual Observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Protected Species Visual Observers will also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shut-down (i.e., greater than approximately eight minutes for this cruise). When feasible, the Protected Species Visual Observers will conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on the observations, the Langseth will power-down or shut-down the airguns when marine mammals are observed within or about to enter a designated exclusion zone which is a region in which a possibility exists of adverse effects on animal hearing or other physical effects.

During seismic operations, at least four Protected Species Observers (Protected Species Visual Observer and/or Protected Species Acoustic Observer) will be aboard the Langseth. The Observatory will appoint the Protected Species Observers with our concurrence. They will conduct observations during ongoing daytime operations and nighttime ramp-ups of the airgun array. During the majority of seismic operations, two Protected Species Observers will be on duty from the observation tower to monitor marine mammals near the seismic vessel. Using two Protected Species Observers will increase the effectiveness of detecting animals near the source vessel. However, during mealtimes and bathroom breaks, it is sometimes difficult to have two Protected Species Observers on effort, but at least one observer will be on watch during bathroom breaks and mealtimes. Protected Species Observers will be on duty in shifts of no longer than four hours in duration.

Two Protected Species Observers will also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third Protected Species Acoustic Observer will monitor the passive acoustic monitoring equipment 24 hours a day to detect vocalizing marine mammals present in the action area. In summary, a typical daytime cruise would have scheduled two Protected Species Observers (visual) on duty from the observation tower, and a Protected Species Observer (acoustic) on the passive acoustic monitoring system. Before the start of the seismic survey, the Observatory will instruct the vessel's crew to assist in detecting marine mammals and implementing mitigation requirements.

The Langseth is a suitable platform for marine mammal observations. When stationed on the observation platform, the eye level will be approximately 21.5 m (70.5 ft) above sea level, and the Protected Species Visual Observer will have a good view around the entire vessel. During daytime, the observers will scan the area around the vessel systematically with reticle binoculars (e.g., 7 x 50 Fujinon), Big-eye binoculars (25 x 150), and with the naked eye. Laser range-finding binoculars (Leica LRF 1200 laser rangefinder or equivalent) will be available to assist with distance estimation. Those are useful in training observers to estimate distances visually, but are generally not useful in measuring distances to animals directly; that is done primarily with the reticles in the binoculars.

When the Protected Species Observers see marine mammals within or about to enter the designated exclusion zone, the Langseth will immediately power-down or shut-down the airguns if necessary. The Protected Species Visual Observer(s) will continue to maintain watch to determine when the animal(s) are outside the exclusion zone by visual confirmation. Airgun operations will not resume until the Protected Species Observer has confirmed that the animal has left the zone, or if not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).

Passive acoustic monitoring will complement the visual monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Acoustical monitoring can be used in conjunction with visual observations to improve detection, identification, and localization of cetaceans. The acoustic monitoring will serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The Protected Species Acoustic Observer will monitor the system in real time so that he/she can advise the visual observers if they acoustically detect cetaceans. When the Protected Species Acoustic Observer determines the bearing (primary and mirror-image) to calling cetacean(s), he/she will alert the Protected Species Visual Observer to help him/her sight the calling animal(s).

The passive acoustic monitoring system consists of hardware (i.e., hydrophones) and software. The “wet end” of the system consists of a towed hydrophone array that is connected to the vessel by a tow cable. The tow cable is 250 m (820.2 ft) long, and the hydrophones are fitted in the last 10 m (32.8 ft) of cable. A depth gauge is attached to the free end of the cable, and the cable is typically towed at depths less than 20 m (65.6 ft). The Langseth crew will deploy the array from a winch located on the back deck. A deck cable will connect the tow cable to the electronics unit in the main computer lab where the acoustic station, signal conditioning, and processing system will be located. The acoustic signals received by the hydrophones are amplified, digitized, and then processed by the Pamguard software. The system can detect marine mammal vocalizations at frequencies up to 250 kHz.

As described earlier in this document, one Protected Species Acoustic Observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system will be aboard the Langseth in addition to the four Protected Species Visual Observers. The Protected Species Acoustic Observer will monitor the towed hydrophones 24 hours per day during airgun operations and during most periods when the Langseth is underway while the airguns are not operating. However, passive acoustic monitoring may not be possible if damage occurs to both the primary and back-up hydrophone arrays during operations. The primary passive acoustic monitoring streamer on the Langseth is a digital hydrophone streamer. Should the digital streamer fail, back-up systems should include an analog spare streamer and a hull-mounted hydrophone.

One Protected Species Acoustic Observer will monitor the acoustic detection system by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. The Protected Species Acoustic Observer monitoring the acoustical data will be on shift for one to six hours at a time. The other Protected Species Observers will rotate as a Protected Species Acoustic Observer, although the expert acoustician will be on passive acoustic monitoring duty more frequently.

When the Protected Species Acoustic Observer detects a vocalization while visual observations are in progress, the Protected Species Acoustic Observer on duty will contact the Protected Species Visual Observer immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), so that the vessel's crew can initiate a power-down or shut-down, if required. The Protected Species Acoustic Observer will enter the information regarding the call into a database. Data entry will include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. The acoustic detection can also be recorded for further analysis.

Observers will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They will use the data to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power-down or shut-down of the airguns when a marine mammal is within or near the exclusion zone. Observations will also be made during daytime periods when the Langseth is underway without seismic operations (i.e., transits to, from, and through the study area) to collect baseline biological data.

When a Protected Species Observer makes a sighting, they will record the following information:

1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.

2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.

The Protected Species Observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.

Protected Species Observers will record all observations and power-downs or shut-downs in a standardized format and will enter data into an electronic database. The Protected Species Observers will verify the accuracy of the data entry by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.

Results from the vessel-based observations will provide the following information:

1. The basis for real-time mitigation (airgun power-down or shut-down).

2. Information needed to estimate the number of marine mammals potentially taken by harassment, which the Observatory must report to the Office of Protected Resources.

3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where the Observatory will conduct the seismic study.

4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity.

5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations.

The Observatory will submit a report to us and to the Foundation within 90 days after the end of the cruise. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways. After the report is considered final, it will be publicly available on our and the Foundation's Web sites.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the Incidental Harassment Authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Observatory shall immediately cease the specified activities and immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to Jolie.Harrison@noaa.gov, Jeannine.Cody@noaa.gov , and Howard.Goldstein@noaa.govmailto : and to the Northwest Regional Stranding Coordinator at 206-526-6550 ( Brent.Norberg@noaa.gov ). The report must include the following information:

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

• Name and type of vessel involved;

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

• Description of the incident;

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

• Water depth;

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

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

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

• Fate of the animal(s); and

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

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

In the event that the Observatory discovers an injured or dead marine mammal, and the lead Protected Species Visual 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 Observatory will immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, at 301-427-8401 and/or by email to Jolie.Harrison@noaa.gov , Jeannine.Cody@noaa.gov , and Howard.Goldstein@noaa.gov and to the Northwest Regional Stranding Coordinator at 206-526-6550 ( Brent.Norberg@noaa.gov ). The report must include the same information identified in the paragraph above this section. Activities may continue while we review the circumstances of the incident. We will work with the Observatory to determine whether modifications in the activities are appropriate.

In the event that the Observatory discovers an injured or dead marine mammal, and the lead Protected Species 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 Observatory will report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, at 301-427-8401 and/or by email to Jolie.Harrison@noaa.gov , Jeannine.Cody@noaa.gov and Howard.Goldstein@noaa.gov and the Northwest Regional Stranding Coordinator at 206-526-6550 ( Brent.Norberg@noaa.gov ), within 24 hours of the discovery. The Observatory will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us.

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].

We anticipate and authorize take by Level B harassment only for the marine seismic surveys in the northeastern Pacific Ocean. Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun array may have the potential to cause marine mammals in the survey area to be exposed to sounds at or greater than 160 dB or cause temporary, short-term changes in behavior. There is no evidence that the Observatory's planned activities could result in injury, serious injury or mortality within the specified geographic area for which we have issued the requested authorization. Take by injury, serious injury, or mortality is thus neither anticipated nor authorized. We have determined that the required mitigation and monitoring measures will minimize any potential risk for injury, serious injury, or mortality.

The following sections describe the Observatory's methods to estimate take by incidental harassment and present their estimates of the numbers of marine mammals that could be affected during the seismic program. The Observatory's estimates assume that marine mammals exposed to airgun sounds greater than or equal to 160 dB might change their behavior sufficiently for us to consider them as taken by harassment. They have based their estimates on the number of marine mammals that could be disturbed appreciably by operations with the 36-airgun array during approximately 4,991 km (2,694.2 nmi) of transect lines in the northeastern Pacific Ocean.

We assume that during simultaneous operations of the airgun array and the other sources, any marine mammals close enough to be affected by the multibeam echosounder and sub-bottom profiler would already be affected by the airguns. However, whether or not the airguns are operating simultaneously with the other sources, we expect that the marine mammals would exhibit no more than short-term and inconsequential responses to the multibeam echosounder and profiler given their characteristics (e.g., narrow downward-directed beam) and other considerations described previously. Based on the best available information, we do not consider that these reactions constitute a “take” (NMFS, 2001). Therefore, the Observatory did not provide any additional allowance for animals that could be affected by sound sources other than the airguns.

Ensonified Area Calculations —Because the Observatory assumes that the Langseth may need to repeat some tracklines, accommodate the turning of the vessel, address equipment malfunctions, or conduct equipment testing to complete the survey; they have increased the number of line-kilometers for the seismic operations by 25 percent (i.e., contingency lines).

The Observatory calculated the expected ensonified area by entering the planned survey lines (including the 25 percent contingency lines) into a Map-Info Geographic Information System (system). The Observatory used the system to draw a 160-dB radius (see Table 2) around the operating airgun array (i.e., the ensonified area) around each seismic line. This first calculation is the area excluding overlap.

Depending on the spacing of the transect lines within the ensonified area, the Observatory may also calculate areas of transit overlap. For example, if the ratio of transit overlap is 1.5 times the area excluding overlap, then a marine mammal that stayed within the area during the entire survey could be exposed to acoustic stimuli approximately two times. However, it is unlikely that a particular animal would stay in the area during the entire survey. For the Juan de Fuca survey, the transit lines are closely spaced together and the ratio of transect overlap is 1.7 greater than the area excluding overlapping transect lines. For the Cascadia Thrust Zone survey the ratio is 2.8, and for the Cascadia Subduction Margin survey the ratio is 2.0 times the area excluding overlap. Table 3 presents the area calculations for each survey. Refer to the Incidental Harassment Authorization application and Environmental Assessment for additional information.

Density Information —The Observatory calculated the density data for 26 species reported off the Oregon and Washington coasts in the northeastern Pacific Ocean using the following data sources:

• Pooled results of the 1991 to 2008 NMFS Southwest Fishery Science Center ship surveys as synthesized by Barlow and Forney (2007) and Barlow (2010) for all species except the gray whale and harbor porpoise.

• Abundance estimates for gray whales that remain between Oregon and British Columbia in summer and the within area out to 43 km (23.2 mi) from shore in the U.S. Navy's Keyport Range Complex Extension Environmental Impact Statement/Overseas Environmental Impact Statement (DoN, 2010); and

• The population estimate for the Northern Oregon/Washington Coast stock of harbor porpoises from the Pacific Marine Mammal Stock Assessments 2010 Report (Carretta et al., 2010).

For the pooled results of the 1991 to 2008 NMFS Southwest Fishery Science Center ship surveys, the Observatory has corrected the densities for trackline detectability probability bias and availability bias. Trackline detectability probability bias is associated with diminishing sightability with increasing lateral distance from the track line [ f (0)]. Availability bias refers to the fact that there is less than a 100 percent probability of sighting an animal that is present along the survey track line, and it is measured by g (0).

Exposure Calculations —The Observatory calculated the number of different individuals that could be exposed to airgun sounds with received levels greater than or equal to 160 dB re: 1 µPa by multiplying the expected density of the marine mammals by the ensonified area excluding areas of overlap. This area includes the 25 percent contingency lines.

Any marine mammal sightings within or near the designated exclusion zone will result in the shut-down of seismic operations as a mitigation measure. Thus, the following estimates of the numbers of marine mammals potentially exposed to 160 dB re: 1 μPa sounds are precautionary, and probably overestimate the actual numbers of marine mammals that might be involved. These estimates assume that there will be no weather, equipment, or mitigation delays, which is highly unlikely.

Because this approach does not allow for turnover in the marine mammal populations in the study area during the course of the survey, the actual number of individuals exposed could be underestimated. However, the approach assumes that no cetaceans will move away from or toward the trackline as the Langseth approaches in response to increasing sound levels prior to the time the levels reach 160 dB re: 1 μPa, which will result in overestimates for those species known to avoid seismic vessels.

The total estimate of the number of individual cetaceans that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re: 1 μPa during this survey is 10,208 (see Table 4). The total includes 78 baleen whales, 56 of which are endangered: four blue whales (0.17 percent of the regional population), 30 fin whales (0.18 percent of the regional population), 19 humpback whales (0.09 percent of the regional population), and four sei whales (0.03 percent of the population). In addition, 24 sperm whales (0.10 percent of the regional population) and 303 Steller sea lions (0.46 percent of the population) (both listed as endangered under the Endangered Species Act) could be exposed during the survey.

Of the cetaceans potentially exposed, 57 percent are delphinids and 42 percent are pinnipeds. The most common species in the area potentially exposed to sound levels greater than or equal to 160 dB re: 1 μPa during the proposed survey would be harbor porpoises (2,153 or 4.12 percent), Dall's porpoises (1,935 or 4.61 percent), northern fur seals (1,931 or 0.30 percent), and northern elephant seals (1,058 or 0.85 percent). While potential exposures were modeled for killer whales, no incidental takes were authorized for killer whales due to the difficulty for Protected Species Observers to visually and acoustically distinguish endangered Southern Resident killer whales from other types and stocks of killer whales (e.g.., transient, resident, and offshore). We believe the additional required monitoring and mitigation measures and modifications in the survey design will reduce the take to zero.

The total estimate of the number of individual cetaceans that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re: 1 μPa during this survey is 15,100 (see Table 5). The total includes 79 baleen whales, 35 of which are endangered: three blue whales (0.10 percent of the regional population), 18 fin whales (0.11 percent of the regional population), 12 humpback whales (0.06 percent of the regional population), and two sei whales (0.02 percent of the population). In addition, 15 sperm whales (0.06 percent of the regional population) and 188 Steller sea lions (0.29 percent of the population) (both listed as endangered under the Endangered Species Act) could be exposed during the survey.

Of the cetaceans potentially exposed, 63 percent are delphinids and 36 percent are pinnipeds. The most common species in the area potentially exposed to sound levels greater than or equal to 160 dB re: 1 μPa during the proposed survey would be, Dall's porpoises (1,199 or 2.86 percent), harbor porpoises (7,314 or 14 percent of the regional population or 9.2 percent of the overall population), and harbor seals (3,380 or 13.67 percent of the regional population or 4.6% of the overall population) and northern fur seals (1,197 or 0.18 percent) (Allen and Angliss, 2011). The percentages for harbor porpoises and harbor seals are the upper boundaries of the regional populations that could be affected by the proposed survey. However, these take estimates are small relative to the overall population sizes for each species in the northeast Pacific. Thus, these take estimates are likely an overestimate of the actual number of animals that may be taken by Level B harassment, and we expect that the actual number of individual animals that may be taken by Level B harassment to be less than the request. While potential exposures were modeled for killer whales, no incidental takes were authorized for killer whales due to the difficulty for Protected Species Observers to visually and acoustically distinguish endangered Southern Resident killer whales from other types and stocks of killer whales (e.g.., transient, resident, and offshore). We believe the additional required monitoring and mitigation measures and modifications in the survey design will reduce the take to zero.

The total estimate of the number of individual cetaceans that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re: 1 μPa during this survey is 8,132 (see Table 6). The total includes 54 baleen whales, 35 of which are endangered: three blue whales (0.10 percent of the regional population), 18 fin whales (0.11 percent of the regional population), 11 humpback whales (0.06 percent of the regional population), and two sei whales (0.02 percent of the population). In addition, 15 sperm whales (0.06 percent of the regional population) and 187 Steller sea lions (0.29 percent of the population) (both listed as endangered under the Endangered Species Act) could be exposed during the survey.

Of the cetaceans potentially exposed, 59 percent are delphinids and 40 percent are pinnipeds. The most common species in the area potentially exposed to sound levels greater than or equal to 160 dB re: 1 μPa during the proposed survey would be harbor porpoises (2,580 or 4.94 percent), Dall's porpoises (1,193 or 2.84 percent), northern fur seals (1,190 or 0.18 percent), and harbor seals (1,192 or 4.82 percent). While potential exposures were modeled for killer whales, no incidental takes were authorized for killer whales due to the difficulty for Protected Species Observers to visually and acoustically distinguish endangered Southern Resident killer whales from other types and stocks of killer whales (e.g., transient, resident, and offshore). We believe the additional required monitoring and mitigation measures and modifications in the survey design will reduce the take to zero.

The Observatory and the Foundation will coordinate the planned marine mammal monitoring program associated with each seismic survey in the northeastern Pacific Ocean with other parties that may have interest in the area and/or may be conducting marine mammal studies in the same region during the seismic surveys.

We have 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.” In making a negligible impact determination, we consider:

(1) The number of anticipated injuries, serious injuries, or mortalities;

(2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited);

(3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);

(4) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);

(5) Impacts on habitat affecting rates of recruitment/survival; and

(6) The effectiveness of monitoring and mitigation measures (i.e., the manner and degree in which the measure is likely to reduce adverse impacts to marine mammals, the likely effectiveness of the measures, and the practicability of implementation).

For reasons stated previously in this document, and in the notice of the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012), the specified activities associated with the marine seismic surveys are not likely to cause permanent threshold shift, or other non-auditory injury, serious injury, or death because:

(1) The likelihood that, given sufficient notice through relatively slow ship speed, we expect marine mammals to move away from a noise source that is annoying prior to its becoming potentially injurious;

(2) The potential for temporary or permanent hearing impairment is relatively low and that we would likely avoid this impact through the incorporation of the required monitoring and mitigation measures (described previously in this document);

(3) The fact that cetaceans would have to be closer than 940 m (3,084 ft) in deep water, 1,540 m (5,052 ft) in intermediate depths, and 2,140 m (7,020 ft) in shallow depths, when the 36-airgun array is in use at 9 m (29.5 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(4) The fact that cetaceans would have to be closer than 1,100 m (3,609 ft) in deep water, 1,810 m (5,938 ft) in intermediate depths, and 2,520 m (8,268 ft) in shallow depths, when the 36-airgun array is in use at 12 m (39.4 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(5) The fact that cetaceans would have to be closer than 1,200 m (3,937 ft) in deep water, 1,975 m (6,480 ft) in intermediate depths, and 2,750 m (9,022 ft) in shallow depths, when the 36-airgun array is in use at 15 m (49.2 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(6) The fact that cetaceans would have to be closer than 40 m (131 ft) in deep water, 60 m (197 ft) in intermediate depths, and 296 m (971 ft) in shallow depths, when the single airgun is in use at six to 15 m (20 to 49.2 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(7) The fact that pinnipeds would have to be closer than 400 m (1,312 ft) in deep water, 550 m (1,804 ft) in intermediate depths, and 680 m (2,231 ft) in shallow depths, when the 36-airgun array is in use at 9 m (29.5 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(8) The fact that pinnipeds would have to be closer than 460 m (1,509 ft) in deep water, 615 m (2,018 ft) in intermediate depths, and 770 m (2,526 ft) in shallow depths, when the single airgun is in use at 12 m (39.4 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(9) The fact that pinnipeds would have to be closer than 520 m (1,706 ft) in deep water, 690 m (2,264 ft) in intermediate depths, and 865 m (2,838 ft) in shallow depths, when the single airgun is in use at 15 m (49.2 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift;

(10) The fact that pinnipeds would have to be closer than 12 m (39.4 ft) in deep water, 18 m (59 ft) in intermediate depths, and 150 m (492 ft) in shallow depths, when the single airgun is in use at six to 15 m (20 to 49.2 ft) tow depth from the vessel to be exposed to levels of sound believed to have a minimal chance of causing permanent threshold shift; and

(11) The likelihood that marine mammal detection ability by trained Protected Species Visual Observers is high at close proximity to the vessel.

We do not anticipate that any injuries, serious injuries, or mortalities would occur as a result of the Observatory's planned marine seismic surveys, and we are not authorizing injury, serious injury or mortality for these surveys. We anticipate only short-term behavioral disturbance to occur during the conduct of the survey activities. Tables 5, 6, and 7 of this document outline the number of Level B harassment takes that we anticipate as a result of these activities. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see “Potential Effects on Marine Mammals” section in this notice), we do not expect the activity to impact rates of recruitment or survival for any affected species or stock. Further, the seismic surveys would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat.

Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). While we anticipate that the seismic operations would occur on consecutive days, the estimated duration of the Juan de Fuca Plate survey would last no more than 17 days, the Cascadia Thrust Zone survey would last approximately 3 days, and the Cascadia Subduction Margin survey would occur over 10 days.

Because the Langseth will move continuously along planned tracklines, each of the three seismic surveys would increase sound levels in the marine environment surrounding the vessel for 21 days during the first and second study and for 10 days during the last study. There will be an estimated 4-day period of non-seismic activity between the second and third survey.

Of the 31 marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, six of these species and two stocks are listed as endangered under the ESA: the blue, fin, humpback, North Pacific right, sei, and sperm whales; the Southern Resident stock of killer whales; and the eastern U.S. stock of the Steller sea lion. These species are also categorized as depleted under the MMPA. With the exception of North Pacific right whales and Southern Resident killer whales, the Observatory has requested take for these listed species. To protect these animals (and other marine mammals in the study area), the Observatory must cease or reduce airgun operations if animals enter designated zones. No injury, serious injury, or mortality is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.

Based on available data, we do not expect the Observatory to encounter five of the 31 species under our jurisdiction in the proposed survey areas. They include the following: the North Pacific right, false killer, and short-finned pilot whales; the California sea lion; and the bottlenose dolphin because of the species' rare and/or extralimital occurrence in the survey areas. As mentioned previously, we estimate that 26 species of marine mammals under our jurisdiction could be potentially affected by Level B harassment over the course of the Incidental Take Authorization. For each species, these numbers are small, relative to the regional or overall population size and we have provided the regional population estimates for the marine mammal species that may be taken by Level B harassment in Tables 4, 5, and 6 in this document.

Our practice has been to apply the 160 dB re: 1 µPa (rms) received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall et al. (2007) provides a severity scale for ranking observed behavioral responses of both free-ranging marine mammals and laboratory subjects to various types of anthropogenic sound (see Table 4 in Southall et al. [2007]).

We have determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting three marine seismic surveys off Oregon and Washington in the northeastern Pacific Ocean, June through July 2012, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals. See Tables 4, 5, and 6 for the requested authorized take numbers of cetaceans and pinnipeds.

While these species may make behavioral modifications, including temporarily vacating the area during the operation of the airgun(s) to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas and the short duration of the research activities, have led us to determine that this action will have a negligible impact on the species in the specified geographic region.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that the Observatory's planned research activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the required measures mitigate impacts to affected species or stocks of marine mammals to the lowest level practicable.

Section 101(a)(5)(D) of the Marine Mammal Protection Act also requires us to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals in the study area (northeastern Pacific Ocean) that implicate section 101(a)(5)(D) of the MMPA.

Of the species of marine mammals that may occur in the survey area, several are listed as endangered under the ESA, including the blue, fin, humpback, North Pacific right, sei, sperm, and Southern Resident killer whales. The Observatory did not request take of endangered North Pacific right whales because of the low likelihood of encountering these species during the cruise. No incidental takes of Southern Resident killer whales has been authorized.

Under section 7 of the ESA, the Foundation initiated formal consultation with the Service's Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on these seismic surveys. We (i.e., NMFS, Office of Protected Resources, Permits and Conservation Division), also initiated and engaged in formal consultation under section 7 of the ESA with the Endangered Species Act Interagency Cooperation Division to obtain a Biological Opinion evaluating the effects of issuing the Incidental Harassment Authorization under section 101(a)(5)(D) of the MMPA for this activity. These two consultations were consolidated and addressed in a single Biological Opinion addressing the direct and indirect effects of these interdependent actions. On June 8 and 11, 2012, new information was received and consultation was reinitiated on the three proposed seismic surveys and the associated issuance of the Incidental Harassment Authorizations. The designs of the seismic surveys were modified and enhanced monitoring and mitigation measures were added to address concerns regarding endangered Southern Resident killer whales. In June and July 2012, we issued three Biological Opinions and concluded that the action and issuance of the Incidental Harassment Authorizations are not likely to jeopardize the continued existence of endangered or threatened cetaceans, pinnipeds, and sea turtles and included an Incidental Take Statement incorporating the requirements of the Incidental Harassment Authorizations as Terms and Conditions. Compliance with those Relevant Terms and Conditions of the Incidental Take Statement is likewise a mandatory requirement of the Incidental Harassment Authorizations. The Biological Opinion also concluded that designated critical habitat would not be destroyed or adversely modified by the surveys.

With its complete application, the Foundation and the Observatory provided an “Environmental Assessment and Finding of No Significant Impact Determination Pursuant to the National Environmental Policy Act, (NEPA: 42 U.S.C. 4321 et seq. ) and Executive Order 12114 for a Marine Seismic Survey in the northeastern Pacific Ocean, 2012,” which incorporates an “Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the Northeastern Pacific Ocean, June-July 2012,” prepared by LGL Limited, Environmental Research Associates.

The Environmental Assessment analyzes the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals including those listed as threatened or endangered under the ESA. We have conducted an independent review and evaluation of the document for sufficiency and compliance with the Council of Environmental Quality and NOAA Administrative Order 216-6 § 5.09(d), Environmental Review Procedures for Implementing the National Environmental Policy Act, and have determined that issuance of the Incidental Harassment Authorizations is not likely to result in significant impacts on the human environment. Also, we have provided relevant environmental information to the public through the notice of the proposed Incidental Harassment Authorization (77 FR 25966, May 2, 2012) and have considered public comments received in response prior to adopting the Foundation's Environmental Assessment. We have concluded that the issuance of the Incidental Harassment Authorizations would not significantly affect the quality of the human environment and have issued a separate Finding of No Significant Impact. Because we have made this finding, it is not necessary to prepare an Environmental Impact Statement for the issuance of the Incidental Harassment Authorizations to the Observatory for this activity.

We have issued three Incidental Harassment Authorizations to the Observatory for the take of marine mammals incidental to conducting three marine seismic surveys in the northeast Pacific Ocean, June to July 2012, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

In the 77 FR 40023, beginning on page 40023 in the Federal Register of Friday, July 6, 2012, make the following correction: On page 40023, in the third column, revise the call-in number 888-455-7057 and conference call access code number 1876264 to read as follows: call-in number 800-988-9402 and conference call access number 1876264. Kate Raftery will be the lead on the call.

The Department deletes one system of records from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The deletion is not within the purview of subsection (r) of the Privacy Act, which requires submission of a report on a new or altered system of records.

This system of records is no longer needed because this system has been decommissioned. Further, no records have been retained; therefore the following system of records is deleted:

(18-05-14) Human Capital Learning and Performance Improvement System, 69 FR 19171-19176 (April 12, 2004).

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

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

Delegation of Authority: The Secretary of Education has delegated authority to Winona H. Varnon, Principal Deputy Assistant Secretary for Management to perform the functions and duties of the Assistant Secretary for Management.

For the reasons discussed in the preamble, the Principal Deputy Assistant Secretary of the Office of Management deletes the following system of records:

The NNPP is responsible for all aspects of U.S. Navy nuclear power and propulsion pursuant to 50 U.S.C. 2406 and 2511. These responsibilities include design, maintenance, and safe operation of nuclear propulsion systems throughout their operational life cycles. Crucial components of this mission are to provide prospective Naval nuclear propulsion plant operators and officers with training and certification in the actual hands-on operation of a nuclear propulsion plant, and to test new Naval nuclear propulsion plant technologies. Two land-based training platforms are located at the Knolls Atomic Power Laboratory Kesselring Site near West Milton, Saratoga County, New York.

Purpose and Need: The operation, maintenance, refueling, overhaul, and decommissioning of the prototype naval nuclear reactors results in low-level radioactive contamination of some support equipment and the generation of low-level radioactive waste. A shortfall has been identified between the radiological work and storage space currently available at the Kesselring Site and the space that is necessary to support continued operation and maintenance on the prototypes. Radioactive materials must be handled in facilities that are specifically designed to contain radioactivity and prevent the spread of radioactive contamination to workers, the public, and the environment. Additional modernized radiological work and storage space is needed to support maintenance on the operational nuclear prototypes at the Kesselring Site. No spent nuclear fuel will be handled or stored in the new Radiological Work and Storage Building or any of the alternatives being considered.

Alternatives Considered: The NNPP identified three alternatives to address the above need.

• Alternative 1—Construct a new Radiological Work and Storage Building (Proposed Action)

• Alternative 2—Construct a Temporary Radiological Work Structure

• Alternative 3—Continue to use existing facilities (No Action Alternative)

Description of the Proposed Action: The Proposed Action demolishes Building 80C and constructs a modernized Radiological Work and Storage Building that would have a footprint of approximately 670-1,270 square meters (7,200-13,600 square feet). Demolition of Building 80C and disposition of equipment inside of Building 80C would be completed in accordance with stringent NNPP requirements. The new facility would be used for the preparation of equipment for maintenance operations, packaging of radiological waste for shipment, and temporary storage of radiologically controlled material. The facility would be built within an already developed portion of the Kesselring Site. The Radiological Work and Storage Building would be designed and constructed to meet stringent NNPP requirements to contain radioactivity and prevent the spread of radioactive contamination to workers, the public, and the environment. NNPP standards include applicable Environmental Protection Agency (EPA) standards (ANSI-1999 and 40 CFR part 61). The proposed location of the Radiological Work and Storage Building allows for staging equipment for maintenance in parallel with moving equipment during prototype maintenance evolutions. The facility design would be a site-specific adaptation of radiological work facilities constructed at naval shipyards that perform similar work on nuclear-powered ships. The facility would be equipped with internal bridge cranes to support movement of equipment and material within the facility.

Environmental Impacts of Proposed Action: The DOE evaluated the potential environmental impacts of the construction and operation of the proposed new Radiological Work and Storage Building, a Temporary Radiological Work Structure, and a No Action Alternative. The DOE considered geology, topography and soils, ecological resources, water resources, noise, air quality, greenhouse gas emissions, land use, cultural resources, socioeconomics and environmental justice, traffic and transportation, aesthetic and scenic resources, utilities and energy, non-hazardous waste, radiological impacts, and cumulative effects. The DOE determined that either there would be no impacts or the potential impacts would be insignificant, short-term or both.

The geology and topography at the Kesselring Site would not be affected by the construction and demolition activities. Short-term soil impacts would occur but would be minimized through the use of erosion and sedimentation control techniques such as installing silt fencing and sediment traps to stabilize soil.

Ecological resources would not be affected since the construction and demolition activities are on previously developed portions of the Kesselring Site. The developed area of the Kesselring Site is not a typical habitat for endangered species and the wetlands that exist outside of the developed area would not be affected by any of the alternatives. None of the alternatives would change the existing conditions.

Demolition and construction activities associated with the new modernized storage facility would be in the developed area of the Kesselring Site. Activities would be done in accordance with applicable federal, state, and local requirements, including development and implementation of an erosion and sediment control plan for storm water management. Radiological work areas in the new modernized facility would be built with impermeable floors, thus no impact would be expected during operations.

Noise during construction, demolition, and operation of the new modernized storage facility would not be discernible beyond the site boundaries which are nearly one mile from the developed area of the site.

The emissions from the Kesselring Site resulting from steam boilers would not increase from the addition of a new modernized facility. There would be short-term, temporary impacts to air quality during construction but would not impact the designation of the area with respect to National Ambient Air Quality Standards. The new modernized storage facility would be equipped with high efficiency air particulate filters, and emissions would be expected to be well within EPA requirements (40 CFR part 61). Building 80C would be evaluated as a diffuse source of airborne radioactivity and surveyed using stringent NNPP standards prior to demolition, with applicable monitoring performed during demolition to ensure compliance with EPA regulations in 40 CFR part 61. The impacts on air quality would not be significant and would be temporary during construction and demolition.

Under any of the alternatives, there would be minor emissions of carbon dioxide due to construction traffic and equipment; however, these actions would not be significant.

The new modernized facility would be located within the developed portion of the Kesselring Site and would not impact the land use; the land use would be unchanged.

The alternatives have no impact on historic properties or other cultural resources.

Implementation of the Proposed Action would result in a temporary increase in jobs during construction; however, the increase would be small compared to surrounding area employment. There would be no increase or decrease in long term employment as a result of operations in the new modernized storage facility. Since no significant impacts are expected, there would be no expected disproportionately high and adverse impacts to minority and low income populations as a result of implementing any of the alternatives.

Vehicular traffic to the Kesselring site would increase by about 30 vehicles compared to more than 2,000 vehicles a day currently. During demolition, radioactive waste shipments would increase about 10 percent. The effect of the Proposed Action on traffic and transportation would be minimal and temporary during the construction and demolition activities.

The developed area of the Kesselring Site is not visible from off-site locations; none of the alternatives would have an impact on the aesthetic and scenic resources.

Existing site utility systems have sufficient capacity to support the utility requirements for the new modernized storage facility. The operation of the new modernized storage facility would have little impact on the amount of energy used by the Kesselring Site as this facility would replace a less energy efficient facility that would be demolished.

Construction and operation of a new Radiological Work and Storage Building is expected to produce about 40 tons of non-hazardous waste in addition to the approximately 1,500 tons produced in a typical year by the Kesselring Site. Solid waste would continue to be contained, stored, transported, and disposed of in accordance with state and federal regulations. No significant impacts to the environment would be expected.

Stringent NNPP radiological control practices are utilized at the Kesselring Site to contain radioactivity and to ensure the protection of workers, the public, and the environment. The new modernized Radiological Work and Storage Building would be designed and operated to stringent NNPP standards that would also ensure compliance with applicable EPA requirements.

Building 80C would be surveyed before demolition in accordance with stringent NNPP standards, which provide equivalent or better levels of detection and assessment as the Multi-Agency Radiation Survey and Site Investigation Manual (MARSSIM) and Multi-Agency Radiation Survey and Assessment of Materials and Equipment (MARSAME). Building 80C would be evaluated as a diffuse source of airborne radioactivity during demolition to ensure compliance with EPA regulations in 40 CFR part 61 and consistent with the Memorandum of Understanding between U.S. EPA and U.S. DOE concerning the Clean Air Act Emissions Standards for Radionuclides.

Radioactive low-level solid waste from demolition of Building 80C and operation of the new Radioactive Work and Storage Building would be shipped by authorized common carriers to disposal sites outside of New York State in accordance with applicable Department of Transportation, DOE, and Nuclear Regulatory Commission requirements that have been previously analyzed and shown to have no significant impacts. These waste shipments would be a small part of the shipments of radioactive materials made annually in the United States.

The Kesselring Site conducts extensive monitoring of adjacent streams, perimeter radiation levels, and airborne discharges from radiological facilities. No significant impacts to the environment and no adverse impact on the health and safety of the public would be expected from the demolition of Building 80C, and the construction and operation of a modernized Radiological Work and Storage Building. This is consistent with the conclusions from on-going environmental monitoring.

Since construction of the modernized Radiological Work and Storage Building and all projects currently being considered at the Kesselring Site would occur in the previously developed industrial area, no significant cumulative impacts would be expected.

Because the Proposed Action meets the needs of the NNPP and has no significant impact on the quality of the human environment, the NNPP concludes that the Proposed Action to construct a modernized Radiological Work and Storage Building is the preferred action to address the need for streamlining radioactive material handling and storage operations, permitting demolition of aging facilities, and accommodating efficient maintenance of existing nuclear reactors at the Kesselring Site.

The NNPP published a Notice of Intent (NOI) to prepare this EA in the Federal Register on August 31, 2011 to solicit comments on the scope of the EA. A notification was also published in three newspapers in New York (The Saratogian, The Times Union, and The Daily Gazette). In addition, notifications were sent to federal, state, and local public officials. The NNPP published a Notice of Availability (NOA) for the Draft EA in the Federal Register on March 8, 2012. The NOA was also published in three newspapers in New York. A summary of the comments received is included in the Final EA. Clarifications to the Draft EA have been incorporated into the Final EA which addressed all comments received.

Finding of No Significant Impact: On the basis of the EA prepared in support of the construction and operation of the modernized Radiological Work and Storage Building, the Department of Energy Naval Nuclear Propulsion Program has determined that the Proposed Action will not significantly affect the quality of the human environment. Therefore, the Department of Energy is not required to prepare an EIS and is issuing this Finding of No Significant Impact.

EPA's IRIS is a human health assessment program that evaluates quantitative and qualitative risk information on effects that may result from exposure to specific chemical substances found in the environment. Through the IRIS Program, EPA provides the highest quality science-based human health assessments to support the Agency's regulatory activities. The IRIS database contains information for more than 540 chemical substances that can be used to support the first two steps (hazard identification and dose-response evaluation) of the risk assessment process. When supported by available data, IRIS provides oral reference doses (RfDs) and inhalation reference concentrations (RfCs) for chronic noncancer health effects as well as assessments of potential carcinogenic effects resulting from chronic exposure. Combined with specific exposure information, government and private entities use IRIS to help characterize public health risks of chemical substances in a site-specific situation and thereby support risk management decisions designed to protect public health.

This data call-in is a step in the IRIS process. As literature searches are completed, the results will be posted on the IRIS Web site ( http://www.epa.gov/iris ). The public is invited to review the literature search results and submit additional information to EPA.

EPA is soliciting public involvement in assessments on the IRIS agenda. While EPA conducts a thorough literature search for each chemical substance, there may be unpublished studies or other primary technical sources that are not available through the open literature. EPA would appreciate receiving scientific information from the public during the information gathering stage for the assessment listed in this notice or any other assessments on the IRIS agenda. Interested persons may provide scientific analyses, studies, and other pertinent scientific information. While EPA is primarily soliciting information on new assessments, the public may submit information on any chemical substance at any time.

EPA is announcing the availability of an additional literature search on the IRIS Web site ( www.epa.gov/iris ). The public is invited to review the literature search results and submit additional information to EPA. A literature search is now available for benzo(a)pyrene (CASRN 50-32-8) at www.epa.gov/iris under “IRIS Agenda and Literature Searches.” Additional literature searches will be posted as they are completed. Availability will be announced in the Federal Register . Instructions on how to submit information are provided below under General Information.

Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2012-0523 by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.

• Email: Docket_ORD@epa.gov.

• Fax: 202-566-9744.

• Mail: Office of Environmental Information (OEI) Docket, (Mail Code: 28221T), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460. The phone number is 202-566-1752.

• Hand Delivery: The OEI Docket is located in the EPA Headquarters Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center's Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202-566-1744. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. If you provide information by mail or hand delivery, please submit one unbound original with pages numbered consecutively, and three copies of the comments. For attachments, provide an index, number pages consecutively with the main text, and submit an unbound original and three copies.

Instructions: Direct your comments to Docket ID No. EPA-HQ-ORD-2012-0523. It is EPA's policy to include all comments it receives in the public docket without change and to make the comments available online at http://www.regulations.gov, including any personal information provided, unless a comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the OEI Docket in the EPA Headquarters Docket Center.

OMB Control Number: 3060-0010.

Title: Ownership Report for Commercial Broadcast Stations, FCC Form 323.

Form Number: FCC Form 323.

Type of Review: Extension of a currently approved collection.

Respondents: Business or other for profit entities; not-for-profit institutions; State, Local or Tribal Governments.

Number of Respondents/Responses: 9,250 respondents; 9,250 responses.

Estimated Time per Response: 2.5 hours to 4.5 hours.

Frequency of Response: Recordkeeping requirement; on occasion reporting requirement; biennially reporting requirement.

Total Annual Burden: 38,125 hours.

Total Annual Costs: $26,940,000.

Nature of Response: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in Sections 154(i), 303, 310 and 533 of the Communications Act of 1934, as amended.

Nature and Extent of Confidentiality: Form 323 collects two types of information from respondents: personal information in the form of names, addresses, job titles and demographic information; and FCC Registration Numbers (FRNs).

The FCC is in the process of publishing a system of records notice (SORN), FCC/MB-1, “Ownership Report for Commercial Broadcast Stations,” to cover the collection, purposes(s), storage, safeguards, and disposal of the PII that individual respondents may submit on FCC Form 323. FCC Form 323 will include a privacy statement to inform applicants (respondents) of the Commission's need to obtain the information and the protections that the FCC has in place to protect the PII. This privacy statement will be finalized and included with the form instructions after the Commission has published the SORN for the collection.

FRNs are assigned to applicants who complete FCC Form 160 (OMB Control No. 3060-0917). Form 160 requires applicants for FRNs to provide their Taxpayer Information Number (TIN) and/or Social Security Number (SSN). The FCC's electronic CORES Registration System then provides each registrant with a FCC Registration Number (FRN), which identifies the registrant in his/her subsequent dealings with the FCC. This is done to protect the individual's privacy. The Commission maintains a SORN, FCC/OMD-9, “Commission Registration System (CORES)” to cover the collection, purpose(s), storage, safeguards, and disposal of the PII that individual respondents may submit on FCC Form 160. FCC Form 160 includes a privacy statement to inform applicants (respondents) of the Commission's need to obtain the information and the protections that the FCC has in place to protect the PII.

Privacy Act Impact Assessment: The FCC is in the process of publishing a system of records notice (SORN), FCC/MB-1, “Ownership Report for Commercial Broadcast Stations,” to cover the collection, purposes(s), storage, safeguards, and disposal of the PII that individual respondents may submit on FCC Form 323. The FCC will publish the SORN in the Federal Register . Going forward, if the FCC makes substantive changes to Form 323 after its SORN is published, the Commission will conduct a full Privacy Impact Assessment of FCC/MB-1 SORN, publish a Notice in the Federal Register , and post both documents on the FCC Web page, as required by the Office of Management and Budget (OMB) Memorandum, M-03-22 (September 22, 2003).

Needs and Uses: Licensees of commercial AM, FM, and full power television broadcast stations, as well as licensees of Class A and Low Power Television stations must file FCC Form 323 every two years. Ownership Reports shall provide information accurate as of October 1 of the year in which the Report is filed. Thereafter, the Form shall be filed biennially beginning November 1, 2011, and every two years thereafter.

Also, Licensees and Permittees of commercial AM, FM, or full power television stations must file Form 323 following the consummation of a transfer of control or an assignment of a commercial AM, FM, or full power television station license or construction permit; a Permittee of a new commercial AM, FM or full power television broadcast station must file Form 323 within 30 days after the grant of the construction permit; and a Permittee of a new commercial AM, FM, or full power television broadcast station must file Form 323 to update the initial report or to certify the continuing accuracy and completeness of the previously filed report on the date that the Permittee applies for a license to cover the construction permit.

In the case of organizational structures that include holding companies or other forms of indirect ownership, a separate FCC Form 323 must be filed for each entity in the organizational structure that has an attributable interest in the Licensee if the filing is a nonbiennial filing or a reportable interest in the Licensee if the filing is a biennial filing.

Proposal To Renew the Following Currently Approved Collection of Information

Title: Recordkeeping and Confirmation Requirements for Securities Transactions.

OMB Number: 3064-0028.

Frequency of Response: On occasion.

Affected Public: Business or other financial institutions.

Estimated Number of Respondents: 4534.

Average Time per Response: 27.91 hours.

Total Annual Burden: 126,544 hours.

General Description of Collection: The information collection requirements are contained in 12 CFR part 344. The regulation's purpose is to ensure that purchasers of securities in transactions effected by insured state nonmember banks are provided with adequate records concerning the transactions. The regulation is also designed to ensure that insured state nonmember banks maintain adequate records and controls with respect to the securities transactions they effect.

Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.