On October 24, 2019, the Board published in the Federal Register a proposal to establish risk-based capital requirements for depository institution holding companies that are significantly engaged in insurance activities.1 The Board is proposing a risk-based capital framework, termed the Building Block Approach, that adjusts and aggregates existing legal entity capital requirements to determine an enterprise-wide capital requirement, together with a risk-based capital requirement excluding insurance activities, in compliance with section 171 of the Dodd-Frank Act. The Board is additionally proposing to apply a buffer to limit an insurance depository institution holding company's capital distributions and discretionary bonus payments if it does not hold sufficient capital relative to enterprise-wide risk, including risk from insurance activities. The proposal would also revise reporting requirements for depository institution holding companies significantly engaged in insurance activities. The notice of proposed rulemaking stated that the comment period would close on December 23, 2019. The Board subsequently received requests to extend the comment period. An extension of the comment period will provide additional opportunity for the public to consider the proposal and prepare comments, including to address the questions posed by the Board in the proposal. Therefore, the Board is extending the end of the comment period for the proposal from December 23, 2019, to January 22, 2020.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the National Airspace System as necessary to preserve the safe and efficient flow of air traffic.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2019-0842; Airspace Docket No. 18-AGL-15) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2019-0842; Airspace Docket No. 18-AGL-15.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA originally planned to decommission the Newcomerstown, OH, (CTW), VOR during Phase 2 of the VOR Minimum Operational Network (MON) program as one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082. However, based on a failed flight check which rendered seventy-five percent of the VOR service unusable and resulted in the VOR having been out of service since January 31, 2017, the FAA is now planning to decommissioning the Newcomerstown, OH, VOR in July, 2020. The ATS routes effected by the Newcomerstown VOR decommissioning are VOR Federal airways V-59, V-92, V-115, and V-117.

With the planned decommissioning of the Newcomerstown VOR, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of V-59, V-92, V-115, or V-117 within the affected area. As such, the proposed actions would result in airway segments being removed from V-59, V-92, and V-115, and the last airway point (WISKE fix) in V-117 being redefined.

To overcome the proposed removal of the V-59, V-92, and V-115 airway segments, IFR traffic could file point to point using the existing fixes that will remain in place or receive air traffic control (ATC) radar vectors to continue operating though the area. Additionally, the FAA is retaining the Newcomerstown DME facility in place with the same “CTW” identifier to support FAA NextGen flight procedures. To retain V-117 as charted, the FAA is planning to redefine the last airway point (WISKE fix) using intersecting radials from the Bellaire, OH, VOR/DME and the Briggs, OH, VOR/DME NAVAIDs. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the air traffic services previously listed.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to amend VOR Federal airways V-59, V-92, V-115, and V-117 due to the planned decommissioning of the VOR portion of the Newcomerstown, OH, VOR/DME. The proposed VOR Federal airway actions are described below.

V-59: V-59 currently extends between the Pulaski, VA, VOR/Tactical Air Navigation (VORTAC) NAVAID and Newcomerstown, OH, VOR/DME. The FAA proposes to remove the airway segment between the Parkersburg, WV, VOR/DME and the Newcomerstown, OH, VOR/DME. The unaffected portions of the existing airway would remain as charted.

V-92: V-92 currently extends between the Chicago Heights, IL, VORTAC and Goshen, IN, VORTAC; and between the Newcomerstown, OH; VOR/DME and Bellaire, OH, VOR/DME. The FAA proposes to remove the airway segment between the Newcomerstown, OH, VOR/DME and the Bellaire, OH, VOR/DME. The unaffected portions of the existing airway would remain as charted.

V-115: V-115 currently extends between the Crestview, FL, VORTAC and Franklin, PA, VOR/DME. The FAA proposes to remove the airway segment between the Parkersburg, WV, VORTAC, and the Franklin, PA, VOR/DME. The unaffected portions of the existing airway would remain as charted.

V-117: V-117 currently extends between the Parkersburg, WV; VORTAC and the intersection of the Bellaire, OH, VOR/DME 044° radial and the Newcomerstown, OH, VOR/DME 099° radial (WISKE fix). The FAA proposes to redefine the WISKE fix as the intersection of the existing Bellaire, OH, VOR/DME 044° radial and the new Briggs, OH, 136°(T)/140°(M) radial. The existing airway would remain as charted.

All radials in the route descriptions below that do not reflect True (T)/Magnetic (M) degree radial information are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The ATS routes listed in this document would be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace at Alpine Airport, Alpine, WY to support instrument flight rules (IFR) operations at the airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2019-0811 and Airspace Docket No. 17-ANM-36) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0811; Airspace Docket No. 17-ANM-36.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov//air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet or more above the surface at the Alpine Airport, Alpine, WY. The establishment of the new Class E airspace will support the airport's transition from VFR to IFR operations. Specifically, it will, to the extent possible, contain IFR departures until reaching 1,200 feet above the surface and IFR arrivals when descending below 1,500 feet above the surface.

The airspace will extend upward from 700 feet above the surface within a 4.0-mile radius to the airport, and within 1 mile each side of the 179° bearing from the airport, extending from the 4.0-mile radius to 5.8 south of the airport, and within 1.8 miles each side of the 321° bearing from the airport, extending from the 4.0-mile radius to 10.5 miles northwest of the airport.

Finally, an additional Class E airspace area will extend upward from 1,200 feet above the surface within a 13-mile radius of the airport.

Class E5 airspace designations are published in paragraph 6005, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Given this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2019-0846; Airspace Docket No. 19-AWP-78) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2019-0846; Airspace Docket No. 19-AWP-78.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

V-165 was previously listed in a notice of proposed rulemaking action (Docket No. FAA-2018-0713; Airspace Docket No. 18-AWP-10, published November 5, 2018 (83 FR 55308) for amendment. However, the proposed change to V-165 was withdrawn from that rulemaking effort due to the proposed amendment not achieving flight check satisfaction due to NAVAID out-of-tolerance signal strength (84 FR 35292; July 23, 2019). The remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airway. As such, proposed modification to V-165 would result in a gap in the ATS route structure. To overcome the gap in V-165, instrument flight rules (IFR) traffic could use VOR Federal airway V-459 at EXTRA INT (INT Tule, CA 339°(T) 323°(M) and Avenal, CA, 042°(T) 026°(M) radials) to Friant VORTAC. Northbound from Friant VORTAC aircraft could utilize V-230 to the northeast to Mina VORTAC to join V-564 northwest bound to Mustang VORTAC and then resume V-165. Alternatively, aircraft could remain on V-459 northwest bound to Linden VOR/DME to join V-28 or V-113 northeast bound to Mustang VORTAC and then resume V-165. Additionally, IFR traffic could file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Visual flight rules pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent VOR Federal airways or ATC services listed previously.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify Domestic VOR Federal Airway, V-165. Full route description is in “The Proposed Amendment” section of this notice.

The proposed ATS route change is outlined below.

V-165: V-165 currently extends between the Mission Bay CA, VORTAC to the Whatcom WA, VORTAC. V-165 would be amended on the segment between the Tule, CA, VOR/DME and the Mustang, NV, VORTAC. The proposed amendment would stop at EXTRA intersection (INT Tule, CA 339°(T) 323°(M) and Avenal, CA, 042°(T) 026°(M) radials) and then resume at MARRI intersection (INT Squaw Valley, CA 133°(T) 117°(M) and Mustang, NV, 183°(T) 167°(M) radials). The unaffected portion of the existing route will remain as charted.

Domestic VOR Federal Airways are published in paragraph 6010 of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Domestic VOR Federal Airway listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

These proposed amendments are promulgated under the authority of the TVA Act, as amended, 16 U.S.C. 831-831ee, Title V of the Independent Offices Appropriations Act of 1955, 31 U.S.C. 9701, and OMB Circular No. A-25. Under Section 26a of the TVA Act, no obstructions affecting navigation, flood control, or public lands or reservations shall be constructed, operated, or maintained across, along, or in the Tennessee River System without TVA's approval. TVA has long considered nonnavigable structures such as floating cabins to be obstructions that require its approval. In addition, Section 9b of the TVA Act provides that TVA may require floating cabins to be maintained by the owner to reasonable health, safety, and environmental standards. Section 9b also authorizes TVA to levy fees on floating cabin owners as necessary and reasonable to ensure compliance.

TVA is a multi-purpose federal agency that has been charged by Congress with promoting the wise use and conservation of the resources of the Tennessee Valley region, including the Tennessee River System. In carrying out this mission, TVA operates a system of dams and reservoirs on the Tennessee River and its tributaries for the purposes of navigation, flood control, and power production. Consistent with those purposes, TVA uses the system to improve water quality and water supply and to provide a wide range of public benefits including recreation.

To promote the unified development and regulation of the Tennessee River System, Congress directed TVA to approve obstructions across, along, or in the river system under Section 26a of the TVA Act. “Obstruction” is a broad term that includes, by way of example, boat docks, piers, boathouses, buoys, floats, boat launching ramps, fills, water intakes, devices for discharging effluents, bridges, aerial cables, culverts, pipelines, fish attractors, shoreline stabilization projects, channel excavations, and floating cabins. TVA also owns, as agent for the United States, much of the shoreland and inundated land along and under its reservoir system.

The proposed amendments would establish health, safety, and environmental standards for floating cabins, including standards for electrical safety, flotation, mooring, and wastewater discharge. The proposed amendments also address TVA's management and administration of the floating cabins program. The proposed amendments would allow floating cabin owners until January 1, 2021, to register with TVA. They also establish permitting requirements for floating cabins and other requirements for repairs, modifications, or alterations to floating cabins and their attached structures.

In addition, TVA also proposes to make other changes to its Section 26a regulations. Certain requirements for flotation and discharges into navigable waters that were prompted by floating cabins will apply to all Section 26a applications and permits. The proposed amendments include other minor changes to TVA's Section 26a regulations for clarity and consistency.

Since 1971, TVA has used its Section 26a authority to prohibit the mooring on the Tennessee River System of new floating cabins (formerly nonnavigable houseboats) that are designed and used primarily for habitation and not for water transportation. In particular, TVA amended its regulations in 1971 to prohibit the mooring or anchoring of new nonnavigable houseboats except for those in existence before November 21, 1971. Criteria were established then to identify when a houseboat was considered “navigable” and the conditions under which existing nonnavigable houseboats would be allowed to remain. These criteria were characteristics that TVA determined were indicative of real watercraft, i.e., boats or vessels that are designed and used primarily to traverse water. Since 1971, TVA has made minor changes to its regulations affecting nonnavigable houseboats, most notably in 1978 when TVA prohibited mooring of nonnavigable houseboats on the Tennessee River System except for those in existence on or before February 15, 1978. Effective October 1, 2018, TVA updated its regulations to change the terminology to floating cabins and prohibit new floating cabins that did not exist on the Tennessee River System on or before December 16, 2016.

Despite over 40 years of regulation related to floating cabins, the number of floating cabins on the Tennessee River System continued to increase. In determining what action to take with respect to floating cabins, TVA prepared an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act. This EIS assessed the environmental and socioeconomic impacts of different policies to address the proliferation of floating cabins on the Tennessee River System. TVA released a draft of this EIS for public comment in June 2015 and held four public meetings and a webinar to provide information about its analyses and to facilitate public involvement. Public reaction to this situation widely varied.

Many members of the general public urged TVA to require the removal of all floating cabins because TVA's reservoirs are public resources and owners of floating cabins are occupying public areas. Owners of floating cabins generally supported additional reasonable regulation of their structures, but argued against policies requiring their removal because of the investments they have made in the structures. Other commenters had concerns about discharges of black (sewage) and grey (showers, sinks, etc.) water from floating cabins and shock and electrocution risks associated with the electrical connections to floating cabins. Commenting agencies consistently supported better regulation of floating cabins. The final EIS and associated documents can be found at https://www.tva.com/floatingcabins.

After considering the comments it received during the EIS process and its analyses of impacts, TVA identified as its preferred policy one that establishes standards to ensure safer mooring, electrical connections, and protection of water quality. Under the preferred policy, the mooring of new floating cabins would be prohibited on the Tennessee River System. The preferred policy would have required all existing floating cabins, including nonnavigable houseboats, to be removed from the Tennessee River System by January 1, 2036, and be subject to a regulatory program in the interim. On May 5, 2016, the TVA Board of Directors adopted the preferred policy, except the Board extended the removal date to May 5, 2046.

On December 16, 2016, Congress enacted the Water Infrastructure Improvements for the Nation Act of 2016 (WIIN Act). Title IV Section 5003 related to floating cabins and amended the TVA Act to include Section 9b. This new section of the TVA Act provides that TVA may approve and allow the use of floating cabins on waters under the jurisdiction of TVA as of December 16, 2016, if the floating cabin is maintained to reasonable health, safety, and environmental standards as required by the TVA Board of Directors and if the owner pays a compliance fee if assessed by TVA. The WIIN Act stipulates that TVA may not require the removal of a floating cabin that was located on the Tennessee River System as of December 16, 2016: (1) For a period of 15 years if it was granted a permit by TVA before enactment, and (2) for a period of 5 years for a floating cabin that was not granted a permit by TVA before enactment. It further stipulates that TVA may establish regulations to prevent the construction of new floating cabins. These regulations were planned in two phases.

TVA published “Phase I” rule amendments for floating cabins that became effective on October 1, 2018. These amendments clarified the types of structures that TVA will regulate as a floating cabin and prohibited new floating cabins from mooring on the Tennessee River System after December 16, 2016. TVA estimates that approximately 2,250 floating cabins were moored on the Tennessee River System on December 16, 2016. These initial rule amendments also incorporated a requirement for owners to register their floating cabins and identified locations where floating cabins may moor.

The proposed “Phase II” rule amendments include health, safety, environmental, and permitting standards that will apply to all floating cabins. A diverse stakeholder group composed of 18 members advised TVA on the development and drafting of these standards. The group represented varied interests and perspectives. Members included representatives from floating cabin owners, lake user interests, fishing interests, marina owners, local power distributors, state and federal regulatory agencies, the insurance industry, and the general public. The full group met five times from August 2017 to June 2019 at various locations, including locations near Norris and Fontana Reservoirs where floating cabins are prevalent. Teleconferences were also held among three subgroups to develop and discuss recommendations in specific subject matter areas. An industry professional in marine electricity presented to the group and helped answer questions regarding electricity at marinas and in water. TVA tested and displayed ground fault protection devices for the group to observe and discuss.

Each of the three subgroups made recommendations for a subset of standards. Recommendations were presented to the full stakeholder group for wastewater, electrical, flotation, mooring, fees, permitting standards, and compliance. TVA reviewed and evaluated the recommendations and responded to each recommendation. TVA refined the recommendations and developed them into these proposed rule amendments for publication for public review and comment. A draft of the rule amendments was reviewed with the stakeholder group in June 2019.

TVA's proposed standards and permitting requirements for floating cabins will apply to all existing floating cabins, including those formerly referred to as nonnavigable houseboats originally permitted on or before February 15, 1978. All floating cabins and attached structures will require a new permit.

To obtain a permit, owners of floating cabins will have until January 1, 2024, to comply with the standards in TVA's regulations and submit a complete permit application that certifies compliance and includes the payment of a Section 26a permit application fee. TVA will not require floating cabin owners to pay the permit application fee if they possess a permit issued before December 16, 2016, in their name and the structure is compliant with the terms of the permit, constructed in accordance with the permit (same dimensions, attached structures such as docks, and utility connections), and moored at the permitted location. A change in ownership application fee, currently $250, will be charged each time an existing floating cabin owner requests a transfer of the permit to a new owner. Permits will only be transferrable if the structure is fully in compliance with the existing permit.

The proposed permit application submission date of January 1, 2024, will give owners approximately four years from the publication of the standards to bring structures into compliance. TVA encourages floating cabin owners to bring floating cabins into compliance and then apply for a permit without delay. Upon submission of the application, owners of floating cabins may remain in place until TVA acts on the application. If TVA approves the application, TVA will issue a Section 26a permit to the owner. If TVA denies the application, the owner must either correct all deficiencies or remove the structure in accordance with Section 9b of the TVA Act and 18 CFR 1304.406.

Under the proposed amendments, TVA would require owners to remove their floating cabins if TVA determines a floating cabin is not in compliance with its permit, does not apply for a permit by January 1, 2024, or does not pay the compliance fee if levied by TVA. The requirement to remove a floating cabin would be in accordance with Section 9b of the TVA Act and 18 CFR 1304.406. All structures not removed by the applicable deadline may be removed by TVA at the owner's expense.

Unencased flotation (i.e. Styrofoam) breaks apart over time, can harm wildlife, and becomes litter in reservoirs or along shorelines. Currently, all docks, floating cabins, and other water-use structures and facilities permitted by TVA are subject to 18 CFR 1304.400, which establishes flotation requirements to protect the environment from harmful flotation materials such as Styrofoam and the contents of metal drums, which were common flotation devices in the past. TVA's current regulations prohibit unencased flotation unless it was previously allowed by TVA, was installed prior to September 8, 2003, and is still serviceable in TVA's judgment. Although TVA interprets this provision to prohibit the installation of unencased flotation to repair or replace existing flotation, the proposed amendments would make this prohibition explicit and would require the removal and replacement of all unencased flotation no later than December 31, 2031. If TVA determines that the existing unencased flotation is no longer serviceable prior to December 31, 2031, owners would have 24 months from notification from TVA to remove and replace it. These changes would apply to all Section 26a permits, including floating cabins.

Some floating cabins are moored by running cables across the water to attach to a tree or other anchor on the shoreline. This potentially obstructs navigation and recreation, poses a potential hazard to public safety, and can detract from the scenic integrity of the areas where floating cabins are located. Current regulations require floating cabins to be moored in such a manner as to: (1) Avoid obstruction of or interference with navigation, flood control, public lands, or reservations; (2) avoid adverse effects on public lands or reservations; (3) prevent the preemption of public waters when moored in permanent locations outside of the approved harbor limits of commercial marinas; (4) protect land and land rights owned by the U.S. alongside and subjacent to TVA reservoirs from trespass and other unlawful and unreasonable uses; and (5) maintain, protect, and enhance the quality of the human environment.

These regulations will continue to apply to floating cabins. Two additional requirements will be added. Floating cabin owners must ensure visibility of all mooring cables, and comply with 18 CFR 1304.205(c) which prohibits attachment to trees on TVA property. The method of mooring should be modified, if necessary, to eliminate navigation and safety hazards. If modification of the mooring method is not practical or feasible, TVA's permit will require the hazard to be marked to aid in visibility and to help avoid property damage and personal injury. Permit applicants must indicate how the structure is moored, and TVA will determine if that method is allowable. Any determinations on proper mooring and hazard marking will be made during the permit review process. TVA may require owners to install markers on aerial wires or buoys on underwater cables at specific distances to help increase visibility and warn the public. TVA's current regulations specify four locations where floating cabins must be located. These include areas where the floating cabin was moored as of December 16, 2016, and the owner has sufficient land ownership or landrights as specified in the regulations; locations where the owner had written permission from TVA prior to December 16, 2016; or within the harbor limits of a commercial marina. To prevent sprawl and to better contain the impacts of floating cabins, TVA would prohibit relocation of permitted floating cabins to a different reservoir. TVA would consider applications to relocate existing floating cabins to any commercial marina on their respective reservoir that is willing to accept them. Any relocation except within the harbor limits of the same marina would require advance approval from TVA in the form of a reissued permit and concurrence from the receiving marina operator.

Floating cabins can also pose a threat to public safety due to unsafe electrical systems. TVA is aware that floating cabins are currently obtaining electricity from the shore via underwater cables, through onboard portable generators, and by other methods. TVA is not aware of any local, state, or federal entity that currently monitors the construction of floating cabins and enforces building codes. However, after the WIIN Act, these agencies may consider floating cabins to be more like housing rather than boats, and agencies may determine to regulate and inspect those within their jurisdiction. If an agency chooses to regulate, floating cabins would be required to comply with all applicable federal, state, and local laws and regulations regarding electrical wiring and equipment. If a floating cabin is documented to be in violation of any federal, state, or local electrical standard or regulation by the respective regulatory agency, TVA will revoke the permit and require removal of the floating cabin from the Tennessee River System if the violation is not corrected as specified by the regulatory agency in accordance with the agency's requirements.

In addition and at a minimum, TVA would require all floating cabin owners to install ground fault protection and to use properly listed underwater cables. At two-year intervals, TVA will require floating cabin owners to provide certification that the floating cabin meets these requirements.

Floating cabins use various methods to manage their black and grey water. Some have holding tanks for black water (sewage) and use pump-out facilities to dispose of wastewater through land-based systems. TVA has received complaints of some floating cabins discharging black and/or grey water directly to the reservoir. Grey water originates from sinks, showers, dishwashers, and washing machines and is often discharged directly to the reservoir. Black and grey water discharges can contribute to water quality deterioration. Discharges are regulated by state environmental agencies.

TVA would require floating cabin owners to comply with discharge requirements set by local, state, or federal agencies and would rely on those agencies to identify when such requirements are violated. This properly recognizes those agencies' expertise and regulatory roles. If TVA is notified by a federal, state, or local agency that an owner of a floating cabin is not compliant with applicable discharge requirements and has failed to correct that deficiency, TVA would revoke the floating cabin's permit and require the structure to be removed from the Tennessee River System. The potential loss of the Section 26a permit for floating cabins if discharge violations occur should help induce more compliant behavior and complement state agency efforts.

TVA will require a Section 26a permit for all floating cabins, and all TVA permits must comply with the Clean Water Act (CWA). Section 401 of the CWA prohibits federal agencies from issuing a permit to conduct an activity, including the construction or operation of facilities, which may result in any discharge into navigable waters of the United States unless the applicable state agency has certified that the proposed activity will be conducted in a manner that will not violate applicable water quality standards or the certification has been waived. Each certifying agency responsible for implementing the CWA will determine if certifications are required for existing, rebuilt, altered, or combined floating cabins. Some may determine to review and make one determination that applies to all floating cabins within its jurisdiction or some may review each request for floating cabin permits individually. The respective certifying agencies will make this determination.

When Section 401 of the CWA is triggered, TVA will not grant a Section 26a permit for a floating cabin or other obstruction unless a water quality certification has been provided or waived by the respective certifying agency. The proposed rule allows up to one year for the certifying agency to take action. If a certifying agency has not acted within that period of time, TVA will deem the certification requirement to be waived and may then proceed with processing the Section 26a application. This would apply to all Section 26a permit applications.

Floating cabins that fall into disrepair can threaten public safety, create a boating hazard, and create litter in reservoirs and along shorelines. Therefore, normal repair and maintenance of floating cabins is encouraged and may be undertaken without TVA's permission. By way of example, maintenance activities include painting, changing the internal walls of the enclosed space, replacing shingles or siding, electrical wiring, plumbing, or adding new encased flotation that complies with the regulations. Maintenance activities do not include any activity that would increase the size or dimensions of the floating cabin, including its enclosed or open spaces. Owners should not increase the size (length, width, or height) of the floating cabin or the enclosed or open spaces without TVA's permission and prior written approval.

Any alteration to the approved plans for a floating cabin would be deemed a structural modification and, if approvable, would require a new permit from TVA. With three exceptions, alterations will be prohibited. First, an alteration may be allowed if it is approved in writing in advance by TVA and is necessary to comply with health, safety, and environmental standards. Second, TVA may approve enclosure of open space on the monolithic frame of an existing floating cabin if the enclosure will not result in expansion to the dimensions (length, width, and height) of the monolithic frame. At least 24 contiguous square feet of open space with a minimum width of four feet must be retained on the monolithic frame for boarding. Finally, TVA may allow changes in the roof pitch but no part of the floating cabin may exceed a total height of 14 feet above the lowest floor level of the floating cabin.

Floating cabins may be rebuilt to the exact same dimensions (length, width, and height), including both enclosed and open spaces, as previously approved by TVA. Owners will be required to notify TVA in writing and submit plans 60 days in advance of proposed rebuilding and must receive prior written approval from TVA before beginning construction. TVA may require a new permit for the proposed rebuilding if it includes any changes to the previously approved plans. Owners must submit to TVA four photographs of the rebuilt floating cabin, one from each side, within 30 days of completion.

To potentially reduce the number and footprint of floating cabins on the Tennessee River System, TVA is proposing a program that allows removal of two or more existing floating cabins in exchange for one replacement floating cabin. With a permit obtained in advance, TVA may allow owners to remove and replace multiple existing floating cabins with a combined floating cabin that meets certain size requirements. Owners must provide evidence that all existing floating cabins to be removed existed on the Tennessee River System as of December 16, 2016, and must remove the existing floating cabins before construction on the combined floating cabin may begin. The permits for the removed floating cabins will be rendered invalid upon their removal. All combined floating cabins must locate within the harbor limits of a commercial marina and have the marina owner's permission. The combined floating cabin must be located on the same reservoir as any of the existing floating cabins to be exchanged. The maximum size allowable for the new structure would be the lesser of 1000 square feet or the combined size of the monolithic frames of the removed floating cabins. Any amount of the combined size exceeding 1000 square feet would be forfeited and could not be transferred to another party or another project. At least 24 contiguous square feet with a minimum width of four feet must remain open to allow for boarding of the combined floating cabin. The maximum roof height is 14 feet above the lowest floor level. Attached structures such as decks may not be incorporated into the monolithic frame of the combined floating cabin. Requests for combined floating cabins will be deemed major construction and subject to the applicable Section 26a permit application fee.

Floating cabins will be limited to 250 square feet of attached structures such as decks or swim platforms. Attached structures must remain open and uncovered. All attached structures must be permitted to the floating cabin owner. Attached structures that were a part of the floating cabin as of December 16, 2016, may remain with written approval from TVA. However, any application for certain structural modifications or a combined floating cabin will require the attached structures be reduced to 250 square feet.

In addition to the changes affecting floating cabins and those for flotation and discharges applicable to all Section 26a permits, TVA is proposing other minor amendments to the Section 26a regulations. These include changes to the TVA locations where applications are addressed, clarification regarding the size of residential water-use facilities in pre-existing developments, and other minor edits for clarity and consistency in the regulations.

This proposal contains no federal mandates for state, local, or tribal government or for the private sector. TVA has determined it will not have a significant annual effect of $100 million or more or result in expenditures of $100 million in any one year by state, local, or tribal governments or by the private sector. The proposal will not have a substantial direct effect on the States or Indian tribes, on the relationship between the Federal Government and the States or Indian tribes, or on the distribution of power and responsibilities between the Federal Government and States or Indian tribes. Nor will the proposal have concerns for environmental health or safety risks that may disproportionately affect children, have significant effect on the supply, distribution, or use of energy, or disproportionally impact low-income or minority populations. Unified development and regulation of the Tennessee River System through an approval process for obstructions across, along, or in the river system and management of United States-owned land entrusted to TVA are federal functions for which TVA is responsible under the TVA Act, as amended. In general, this proposal updates TVA's regulations relating to the standards that floating cabins will be required to meet in order to remain on the Tennessee River System. This proposal would establish a charge for individuals or entities that request certain services from TVA relating to use of its property, reservoirs, and permitting for a floating cabin. Absent a request for these services for a Section 26a permit, no entity or individual would be forced to pay a charge. None of the charges would be applied retroactively. The proposal also amends TVA's regulations to clarify a date certain by which all unencased flotation must be removed from TVA's reservoirs. The proposal also amends TVA's regulations to establish a time period after which TVA will deem a state's water quality certification decision to be waived and proceed with processing of Section 26a permit applications. TVA will continue to appropriately review specific requests in accordance with applicable laws, regulations, and Executive Orders. Accordingly, the proposal has no implications for any of the referenced authorities, including the Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs dated January 30, 2017, which affects only “significant regulatory actions” as defined by Executive Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 605, TVA is required to prepare a regulatory flexibility analysis unless the head of the agency certifies that the proposal will not have a significant economic impact on a substantial number of small entities. TVA's Chief Executive Officer has certified that this proposal will not have a significant economic impact on a substantial number of small entities. The statute defines “small entity” as a “small business,” “small organization” (further defined as a “not-for-profit enterprise”), or a “small governmental jurisdiction.” Most floating cabins are owned by individuals and not businesses, not-for-profit enterprises, or small governmental jurisdictions, and therefore relatively few “small entities” will be affected by TVA's proposal. Even if the proposed amendments tangentially impact marinas that accommodate floating cabins, a relatively small number of marinas will be impacted. Accordingly, this rule will not have a significant impact on a substantial number of small entities; no regulatory flexibility analysis is required; and TVA's Chief Executive Officer has made the requisite certification.

For the reasons set out in the preamble, the Tennessee Valley Authority proposes to amend 18 CFR part 1304 as follows:

The additions and revisions read as follows:

The additions and revisions read as follows:

The additions and revisions read as follows:

[Catalog of Federal Domestic Assistance (CFDA) Number: 84.373F.]

Invitation to Comment: We invite you to submit comments regarding the proposed priority and requirements. To ensure that your comments have maximum effect in developing the notice of final priority and requirements we urge you to clearly identify the specific topic that each comment addresses.

We are particularly interested in comments about whether the proposed priority or any of the proposed requirements would be challenging for new applicants to meet and, if so, how the proposed priority or requirements could be revised to address potential challenges.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13771 and their overall requirement of reducing regulatory burden that might result from this proposed priority and these proposed requirements. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about the proposed priority and requirements by accessing Regulations.gov. You may also inspect the comments in person in room 5133, 550 12th Street SW, Potomac Center Plaza, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed priority and requirements. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Purpose of Program: The purpose of the Technical Assistance on State Data Collection program is to improve the capacity of States to meet IDEA data collection and reporting requirements. Funding for the program is authorized under section 611(c)(1) of IDEA, which gives the Secretary the authority to reserve not more than one-half of 1 percent of the amounts appropriated under Part B for each fiscal year to provide TA activities authorized under section 616(i), where needed, to improve the capacity of States to meet the data collection requirements under Parts B and C of IDEA. The maximum amount the Secretary may reserve under this set-aside for any fiscal year is $25,000,000, cumulatively adjusted by the rate of inflation. Section 616(i) of IDEA requires the Secretary to review the data collection and analysis capacity of States to ensure that data and information determined necessary for the implementation of section 616 of IDEA are collected, analyzed, and accurately reported to the Secretary. It also requires the Secretary to provide TA (from funds reserved under section 611(c)(1)), where needed, to improve the capacity of States to meet the data collection requirements under Parts B and C of IDEA, which include the data collection and reporting requirements in sections 616 and 618 of IDEA. Additionally, the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019 gives the Secretary the authority to use funds reserved under section 611(c) to “administer and carry out other services and activities to improve data collection, coordination, quality, and use under parts B and C of the IDEA.” Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019; Div. B, Title III of Public Law 115-245; 132 Stat. 3100 (2018).

To help ensure this program meets State needs, we invited the public to provide input on the Technical Assistance on State Data Collection program from April 24, 2018, through May 24, 2018, on the ED.gov OSERS Blog.1 In response to this invitation, we received 63 relevant responses, all of which we considered in our development of this document. Sixty-two supported our continuing to fund TA centers; only one supported one of the other options we presented, specifically, to invite State educational agencies (SEAs) and State lead agencies (LAs) to directly apply for funds reserved under section 611(c) to purchase TA to improve their capacity to meet their IDEA Part B and Part C data collection requirements. A few commenters noted some concerns regarding overlap between TA centers and a need for cross-State collaboration TA opportunities.

We address these concerns in the proposed priority by (1) including a requirement for the Fiscal Data Center to offer cross-State collaboration TA opportunities; and (2) clarifying that the scope of the Fiscal Data Center will be distinct from the scope of two separate centers that will provide TA on other non-fiscal data: The National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Part B Data, CFDA number 84.373Y, and the National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate Early Childhood IDEA Data, CFDA number 84.373Z, for which the notices of final priority and requirements (NFP) were published in the Federal Register on August 12, 2019 (84 FR 39736 and 84 FR 39727).

Program Authority: 20 U.S.C. 1411(c), 1416(i), 1418(c), and 1442; the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019; Div. B, Title III of Public Law 115-245, Consolidated Appropriations Act, 2019; 132 Stat. 3100 (2018).

Applicable Program Regulations: 34 CFR 300.702.

Proposed Priority: The Assistant Secretary proposes the following priority for this program. We may apply this proposed priority in any year in which this program is in effect.

Background: The purpose of this proposed priority is to establish a Fiscal Data Center to provide States with TA to assist them in meeting their fiscal data collection and reporting obligations under IDEA. Under Part B of IDEA, State educational agencies (SEAs) are required to submit fiscal data to the Department in (1) the IDEA Part B local educational agency (LEA) Maintenance of Effort (MOE) Reduction and Coordinated Early Intervening Services (CEIS) (LEA MOE/CEIS) Data Collection; and (2) Section V of the IDEA Part B Annual Application. Under IDEA Part C, State lead agencies (LAs) are also required to report fiscal data to the Department in (1) Section III of the IDEA Part C Annual Application (use of funds); and (2) Section IV of the IDEA Part C Annual Application (indirect costs).

In reviewing the data submitted by States, the Department finds that States continue to need support to build their capacity to submit valid and reliable IDEA Part B and Part C fiscal data. It is important for these data to be accurate so that States can use them to more effectively manage all available funding resources for services for children with disabilities and ensure that IDEA funds are used as a payor of last resort. In addition, under IDEA Part B, States may suffer significant monetary consequences as a result of inaccurate data reporting or noncompliance identified through these data collections.

In FY 2014 the Department funded the Technical Assistance on State Data Collection—IDEA Fiscal Data Center, which provided TA to improve the capacity of States to meet the following IDEA Part B fiscal data collection requirements under section 618 of IDEA: (1) Maintenance of State Financial Support (MFS) for special education and related services; and (2) LEA MOE/CEIS.

Since that time, the Department added new data elements to the LEA MOE/CEIS data collection based on the final LEA MOE regulations that were published in the Federal Register on April 28, 2015 (80 FR 23644), and States will need to ensure that the data they submit under those new elements are valid and reliable. In addition, the Department continues to identify errors in States' Part B LEA MOE/CEIS data submissions through its annual review process. Finally, based on the Office of Special Education Programs' (OSEP) monitoring visits and subsequent fiscal findings in several States, OSEP has determined that States continue to need support in understanding the requirements relating to the data elements reported under the LEA MOE/CEIS data collection.

For example, OSEP has identified noncompliance in the methodologies used by some States to calculate the amounts of their LEAs' IDEA Part B subgrants. This type of noncompliance has broader implications for LEAs and States that receive increased or decreased funding for special education and related services. As an illustration of the potential impact of fiscal noncompliance, an error in calculating the amount of an LEA's IDEA Part B allocation affects the amounts the LEA may expend to meet other fiscal requirements, such as LEA MOE reduction under 34 CFR 300.205, voluntary CEIS under 34 CFR 300.226(a), comprehensive CEIS under 34 CFR 300.646(d), and proportionate share for parentally placed private school children with disabilities under 34 CFR 300.133. Based on the complexities and high stakes involved in reporting valid and reliable IDEA Part B fiscal data, the Department determined that States continue to need TA to improve their data collection capacity, their ability to analyze and use that data, and their ability to ensure data are accurate and can be reported to the Department and the public.2

Accurately collecting and reporting valid and reliable IDEA Part B fiscal data is critically important for States and LEAs. Failure of a State to report accurate data on MFS may result in a reduction of IDEA Part B section 611 funds. Failure of an LEA to meet LEA MOE may result in repayment by the SEA of non-Federal funds to the Department. In addition, accurate fiscal information is needed for States to make informed decisions on the use of their IDEA Part B funds. Finally, valid and reliable fiscal data allow OSEP to better protect the Federal interest in the approximately $13.2 billion of IDEA Part B grants made available to States by the Department in Federal fiscal year (FFY) 2019 by ensuring that States and LEAs meet their obligation to collect and report accurate data on IDEA's MFS and LEA MOE requirements.

TA on collecting, reporting, analyzing, and using other IDEA Part B and Part C data reported under sections 616 and 618 of IDEA would be provided by the National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Part B Data, CFDA number 84.373Y, and the National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate Early Childhood IDEA Data, CFDA number 84.373Z, for which notices of final priority and requirements (NFP) were published in the Federal Register on August 12, 2019 (84 FR 39736 and 84 FR 39727).

In its review of State submissions of IDEA Part C fiscal data, the Department found that States need support to submit accurate, valid, and reliable data in two areas: (1) Use of IDEA Part C funds; and (2) indirect costs.3 In its reviews, OSEP found inconsistencies within the fiscal data reported by a State LA and between the fiscal data reported and the related fiscal certification and assurances that the State must provide in its IDEA Part C Annual Application.

In its IDEA Part C Annual Application, each LA must provide several fiscal-related assurances and a fiscal-related certification. Specifically, each LA must—(1) ensure its statewide system has a single line of responsibility, including: (a) The identification and coordination of all available resources for early intervention services within the State, including those from Federal, State, local, and private sources, consistent with subpart F of 34 CFR part 303; and (b) the assignment of financial responsibility in accordance with subpart F of 34 CFR part 303 and specifically ensure IDEA Part C funds are used as payor of last resort (including any method under IDEA section 640); (2) coordinate all available funding sources for IDEA Part C services (including its system of payments); (3) use IDEA Part C funds to supplement, not supplant, the level of State and local funds expended for infants and toddlers with disabilities; and (4) charge administrative direct and indirect costs to the Part C grant consistent with applicable Federal fiscal requirements.4

In addition, each LA must certify that the arrangements to establish financial responsibility for the provision of Part C services among appropriate public agencies under 34 CFR 303.511 and the lead agency's contracts with early intervention service (EIS) providers regarding financial responsibility for the provision of Part C services meet the requirements in 34 CFR 303.500 through 303.521 and are current as of the date of submission of the certification.5 Fiscal data related to this certification may need to also be reported in Section III of the IDEA Part C Annual State Application under funding for other State agencies to the extent Federal IDEA Part C funds are used in conjunction with State funding or other support provided by State agencies other than the State lead agency.

In several instances, States' reporting of IDEA Part C fiscal data in their applications indicates that there is confusion related to the implementation of underlying Part C fiscal requirements. Many States need support in understanding the administrative costs that may be charged to IDEA Part C grants as direct and indirect costs. Additionally, in their annual application numerous States are unable to identify or disaggregate the costs for direct services, as well as costs attributable to other State agencies, due to confusion regarding the fiscal certification, and fiscal assurances regarding the payor of last resort, system of payments, methods, and related fiscal coordination requirements.

OSEP's review of the fiscal data in Section III of the IDEA Part C application (use of funds) indicates that States need TA in this area. This review has identified inconsistencies in data across categories of expenses (including direct and indirect costs) and between the fiscal data reported by the State and the related fiscal assurances and certification regarding funding needed or provided by other State agencies (and any methods, such as interagency agreements or other appropriate written mechanisms) and the State's related application requirements, including its system of payments policies. States' fiscal data reflect confusion with the fiscal requirements not only under the IDEA Part C statute and regulations, but also the fiscal requirements under the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, codified in 2 CFR part 200 (OMB Uniform Guidance).

Specifically, OSEP has identified issues with, and States have raised questions about, how to report IDEA Part C fiscal data regarding the amount of IDEA Part C funds to be used for: (1) Administrative costs, such as positions partially or wholly funded by IDEA Part C funds, and the amount of fringe benefits (reported in Section III.A.); (2) maintenance and implementation activities for the LA and the State Interagency Coordinating Council (ICC) (including any costs that require prior approval by OSEP, such as equipment, rent, and participant support costs for trainings and conferences) (reported in Section III.B.); (3) direct services (disaggregated by the type of service and expended consistently with IDEA's payor-of-last-resort and system of payments requirements) (reported in Section III.C.); and (4) activities by other State agencies (reported in Section III.D.). The fiscal data in each of these categories reflects a need for TA on the requirements in the OMB Uniform Guidance as they apply to IDEA Part C LAs and EIS providers.

OSEP has also found that States need TA with Section III use of funds grant amendment requests after the grant is issued to comply with fiscal requirements and in order to expend unused IDEA Part C funds prior to those funds lapsing. These fiscal requirements are also codified in the OMB Uniform Guidance.

In Section IV.B. of the IDEA Part C application, the LA must report on whether the State plans to charge indirect costs to the IDEA Part C grant through the use of a restricted indirect cost rate agreement or a cost allocation plan that is approved by the LA's Federal cognizant agency and provide appropriate documentation.

Sections III.F.6 and IV.B also require States to indicate that, if indirect costs are being charged to the IDEA Part C grant, the State must indicate the total amount of the overall Federal IDEA Part C grant funds that will be charged for restricted indirect costs and provide appropriate approval documentation. If the State charges indirect costs to its IDEA Part C grant, then, under 34 CFR 303.225(c), an LA may charge them through either: (1) A restricted indirect cost rate agreement that meets the requirements in 34 CFR 76.560 through 76.569; or (2) a cost allocation plan that meets the non-supplanting requirements in 34 CFR 303.225(b) and 34 CFR part 76.6 OSEP has worked with LAs when it identifies large amounts of IDEA Part C funding being reserved for administrative or indirect costs and believes that LAs need TA both on reporting indirect cost data to the Department in the application and on applying indirect costs and related Federal requirements to the IDEA Part C grant. This is particularly relevant to LAs that have a cognizant Federal agency other than the Department and to ensure that States and LAs meet requirements in Education Department General Administrative Regulations and the OMB Uniform Guidance, which require indirect costs for IDEA Part C grants to be calculated on a restricted basis due to IDEA Part C's nonsupplanting requirement.7 The Fiscal Data Center would support States in appropriately applying their previously negotiated or provisionally approved indirect cost rate agreements or a cost allocation plan as described above. The Fiscal Data Center would not support LAs in negotiating an indirect cost rate agreement with their cognizant agencies.

States need TA in reporting valid and reliable IDEA Part C fiscal data, understanding the underlying requirements in Section III and Section IV of the IDEA Part C Annual State Application, and optimally using and analyzing the data submitted to the Department.

In addition, we propose for this priority to include an indirect cost cap that is the lesser of the grantee's actual indirect costs as determined by the grantee's negotiated indirect cost rate agreement with its cognizant Federal agency and 40 percent of the grantee's modified total direct cost (MTDC) base. We believe this cap is appropriate as it maximizes the availability of funds for the primary TA purposes of this priority. The Department has done an analysis of the indirect cost rates for all current TA centers funded under the Technical Assistance and Dissemination and Technical Assistance on State Data Collection programs as well as other grantees that are large, midsize, and small businesses and small nonprofit organizations and has found that, in general, total indirect costs charged on these grants by these entities were at or below 35 percent of total direct costs (TDC). We recognize that, dependent on the structure of the investment and activities, the MTDC base could be much smaller than the TDC, which would imply a higher indirect cost rate than those calculated here. The Department arrived at a 40 percent rate to address some of that variation. This would account for a 12 percent variance between TDC and MTDC. However, we note that, in the absence of a cap, certain entities would likely charge indirect cost rates in excess of 40 percent of MTDC. Based on our analysis, it appears that those entities would likely be larger for-profit and nonprofit organizations, but these organizations appear to be outliers when compared to the majority of other large businesses as well as the entirety of OSEP's grantees. Setting an indirect cost rate cap of 40 percent would be in line with the majority of applicants' existing negotiated rates with the cognizant Federal agency.

This proposed priority aligns with two priorities from the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the Federal Register on March 2, 2018 (83 FR 9096): Priority 2: Promoting Innovation and Efficiency, Streamlining Education With an Increased Focus on Student Outcomes, and Providing Increased Value to Students and Taxpayers; and Priority 5: Meeting the Unique Needs of Students and Children with Disabilities and/or Those With Unique Gifts and Talents.

The Fiscal Data Center must be operated in a manner consistently with nondiscrimination requirements contained in the U.S. Constitution and the Federal civil rights laws.

Proposed Priority: The purpose of this proposed priority is to fund a cooperative agreement to establish and operate the National Technical Assistance Center to Improve State Capacity to Collect, Report, Analyze, and Use Accurate IDEA Part B and Part C Fiscal Data (Fiscal Data Center).

The Fiscal Data Center will provide TA to improve the capacity of States to meet the IDEA Part B and C fiscal data collection requirements under IDEA section 618 and increase States' knowledge of the underlying IDEA fiscal requirements and calculations necessary to submit valid and reliable data for the following collections: (1) MFS in Section V of the IDEA Part B Annual State Application; (2) LEA MOE/CEIS; (3) Description of Use of Federal IDEA Part C Funds for the LA and the ICC in Section III of the IDEA Part C Annual State Application; and (4) Restricted Indirect Cost Rate/Cost Allocation Plan Information in Sections III and IV of the IDEA Part C Annual State Application. States will also receive TA from the Fiscal Data Center on the underlying fiscal requirements of IDEA related to these collections and how they impact the States' ability to meet IDEA fiscal data collection requirements.

Note: The Fiscal Data Center may neither provide TA to States on negotiating indirect cost rate agreements with their cognizant Federal agencies nor act as an agent or representative of States in such negotiations.

The Fiscal Data Center must be designed to achieve, at a minimum, the following outcomes:

(a) Increased capacity of States to collect, report, analyze, and use high-quality IDEA Part B and Part C fiscal data;

(b) Increased State knowledge of underlying statutory and regulatory fiscal requirements and the calculations necessary to submit valid and reliable fiscal data under IDEA Part B and Part C;

(c) Improved fiscal infrastructure (e.g., sample interagency agreements, standard operating procedures and templates) by coordinating and promoting communication and effective fiscal data collection and reporting strategies among relevant State offices, including SEAs, other State agencies, LEAs, schools, LAs, and early intervention service (EIS) programs or providers;

(d) Increased capacity of States to submit accurate and timely fiscal data to enhance current State validation procedures to prevent errors in State-reported IDEA data;

(e) Increased capacity of States to train personnel to meet the IDEA fiscal data collection and reporting requirements under section 618 of IDEA through development of effective tools and resources (e.g., templates, tools, calculators, and documentation of State data processes); and providing opportunities for in-person and virtual cross-State collaboration about IDEA fiscal data collection and reporting requirements (required under section 618 of IDEA);

(f) Improved capacity of SEAs, LEAs, LAs, and EIS programs or providers to collect and use IDEA fiscal data to identify issues and address those issues through monitoring, TA, and stakeholder involvement; and

(g) Improved IDEA fiscal data validation using results from data reviews conducted by the Department to work with States and generate tools that can be used by States to accurately communicate fiscal data to local consumers (e.g., parents, LEAs, EIS programs or providers, the general public) and lead to improvements in the validity and reliability of fiscal data required by IDEA.

Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Proposed Requirements: The Assistant Secretary proposes the following requirements for this program. We may apply one or more of these proposed requirements in any year in which this program is in effect.

Applicants must—

(a) Describe, in the narrative section of the application under “Significance,” how the proposed project will—

(1) Use knowledge of how SEAs, LAs, LEAs, and EIS programs and providers are meeting IDEA Part B and Part C fiscal data collection and reporting requirements and the underlying statutory and regulatory fiscal requirements, as well as knowledge of State and local data collection systems, as appropriate;

(2) Examine applicable national, State, and local data to determine the current capacity needs of SEAs, LAs, LEAs, and EIS programs and providers to meet IDEA Part B and Part C fiscal data collection and reporting requirements;

(3) Train SEAs and LAs on how to use IDEA section 618 fiscal data as a means of both improving data quality and identifying programmatic strengths and areas for improvement; and

(4) Disseminate information regarding how SEAs and LAs are currently meeting IDEA fiscal data collection and reporting requirements and are using IDEA section 618 data as a means of both improving data quality and identifying programmatic strengths and areas for improvement.

(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—

(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—

(i) Identify the needs of the intended recipients for TA and information; and

(ii) Ensure that services and products meet the needs of the intended recipients of the grant;

(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—

(i) Measurable intended project outcomes; and

(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;

(3) Use a conceptual framework to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework. Include a copy of the conceptual framework in Appendix A;

Note: The following websites provide more information on logic models and conceptual frameworks: www.osepideasthatwork.org/logicModel and www.osepideasthatwork.org/resources-grantees/program-areas/ta-ta/tad-project-logic-model-and-conceptual-framework.

(4) Be based on current research and make use of evidence-based practices (EBPs).8 To meet this requirement, the applicant must describe—

(i) The current research on fiscal data management and data system integration, and related EBPs; and

(ii) How the proposed project will incorporate current research and EBPs in the development and delivery of its products and services;

(5) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—

(i) How it proposes to identify or develop the knowledge base on fiscal data management and data system integration and the underlying fiscal requirements of IDEA;

(ii) Its proposed approach to universal, general TA,9 which must identify the intended recipients, including the type and number of recipients, that will receive the products and services under this approach;

(iii) Its proposed approach to targeted, specialized TA,10 which must identify—

On November 29, 2019, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate a rulemaking proceeding to consider changes to analytical principles relating to periodic reports.1 The Petition identifies the proposed analytical changes filed in this docket as Proposal Ten.

Background. Postmasters are compensated through the Workload Service Credit (WSC) system where pay grade is determined by credits earned. Petition, Proposal Ten at 1. These credits are earned in various ways, such as the amount of revenue flowing through a post office and for performing non-revenue activities like serving post office boxes and performing administrative functions. Id. Currently, the costs of Postmaster compensation are attributed to products based on the regression analysis presented in Docket No. R84-1, which measures the variability between WSCs and Postmaster costs. Id. The Postal Service indicates that, given the time that has passed since Docket No. R84-1, investigation into the Postmaster compensation costs was necessary. Id. at 1-2.

Proposal. The current methodology relies upon a regression using only ten data points because, at the time the model was developed in Docket No. R84-1, the Postal Service lacked data on WSCs for individual post offices. Id. at 3. However, the Postal Service now routinely collects data on Postmaster workload for operational purposes. Id. Proposal Ten seeks to update and improve the variabilities for calculating attributable Postmaster costs based on a new study of Postmaster costs “that relies upon operational Postmaster data and reflects the current structure of Postmaster activities and compensation.” 2 The methodology proposed by the Postal Service for the computation of Postmaster compensation volume-variability combines the shift in the number of Postmasters from one EAS grade to the next with changes in the resulting salary. Petition, Proposal Ten at 3-5. Thus, the value for Postmaster compensation volume-variability comes from two sources: (1) The percentage change in the number of Postmasters moving from one grade to the next; and (2) the percentage increase in the minimum salary across the two EAS grades. Id. at 5; see also id. at Table 1.

Impact. Currently, a single variability is applied to accrued Postmaster compensation costs. Id. at 6. Under the Postal Service's proposed methodology, different variabilities are estimated for each EAS grade. Id. The accrued cost for each grade is multiplied by its estimated variability, resulting in volume-variable costs for each grade. Id. Those grade-level volume-variable costs are summed to get the total volume-variable costs for Postmaster compensation. Id. The total volume-variable cost is then divided by total accrued cost to obtain the overall volume-variability. Id.

The Postal Service states that the proposed approach results in lower volume-variability for Postmaster compensation costs for three reasons. Id. First, the volume-variability of Docket No. R84-1 was “overstated due to a computational error” and correcting the error reduces the volume-variability to 13 percent. Id.

Second, the Postal Services notes that Post Office Structure Plan (POStPlan) eliminated lower EAS grades, where movement to the next grade-level and salary increases occurred more rapidly, resulting in higher volume-variability.3 This is significant because, as mail volume increases, WSCs are earned resulting in EAS grade changes and salary increases that, in turn, increase Postmaster compensation costs. In the higher EAS grades, moving to the next grade-level requires much larger increases in WSCs. Thus, more typical increases in WSCs for these higher EAS grades are less likely to cause Postmasters to move up to a higher minimum salary and increase Postmaster compensation costs. Id. at 6. Accordingly, a given percentage increase in volume is, under the current structure, less likely to induce an increase in Postmaster compensation cost, which in turn has the effect of creating a lower volume-variability. Id. at 6-7.

Third, the Postal Services notes that the current approach measures how quickly salaries would rise from an overall increase in WSCs. Id. at 7. This is suboptimal because “each EAS grade has a wide band of WSCs associated with it, and most post offices have a level of WSCs such that typical increases in their WSCs will keep the Postmaster in the same [EAS] grade.” Id. The Postal Service states that the proposed approach would account for the amount of WSCs Postmasters actually earn and how quickly the existing complement of Postmasters would move up a grade if WSCs were increased, neither of which are currently measured. Id.

The Postal Service acknowledges that reduced volume-variability causes a reduction in total volume-variable costs for Postmaster compensation and proportional reductions “per piece by product.” Id. However, the Postal Service notes that “Postmaster costs per piece are typically quite small” thus “the overall impacts on volume[-]variable costs per piece are generally quite small.” Id.

The Commission establishes Docket No. RM2020-2 for consideration of matters raised by the Petition. More information on the Petition may be accessed via the Commission's website at http://www.prc.gov. Interested persons may submit comments on the Petition and Proposal Ten no later than February 28, 2020. Pursuant to 39 U.S.C. 505, Lawrence Fenster is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

It is ordered:

1. The Commission establishes Docket No. RM2020-2 for consideration of the matters raised by the Petition of the United States Postal Service for the Initiation of a Proceeding to Consider Proposed Changes in Analytical Principles (Proposal Ten), filed November 29, 2019.

2. Comments by interested persons in this proceeding are due no later than February 28, 2020.

3. Pursuant to 39 U.S.C. 505, the Commission appoints Lawrence Fenster to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.

4. The Secretary shall arrange for publication of this order in the Federal Register.

A copy of the Navy's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take by Level B harassment of marine mammals incidental to the Navy's construction activities related to development of a new ammunition pier at Seal Beach, California, including impact and vibratory pile driving. Please see “Background” below for definitions of harassment.

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Proposed Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.

Following is a summary of the major provisions of this proposed rule regarding Navy construction activities. These measures include:

• Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities.

• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals.

• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

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

Authorization for incidental takings shall be granted if NMFS finds 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 taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.

The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

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

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

Information in the Navy's application and this notice collectively provide the environmental information related to proposed issuance of these regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the request for incidental take authorization.

On September 10, 2019, we received an adequate and complete request from the Navy requesting authorization for take of marine mammals incidental to construction activities related to development of a new ammunition pier at Seal Beach, California. On September 17, 2019 (84 FR 48914), we published a notice of receipt of the Navy's application in the Federal Register, requesting comments and information related to the request for 30 days. Our consideration of the Navy's request was informed by review by the Marine Mammal Commission, and the Navy submitted a revised, final version of the application on November 26, 2019. No formal comments were received during the public review period.

The Navy proposes to conduct construction necessary for development of a new ammunition pier at Naval Weapons Station (NWS) Seal Beach, California. Construction activities include construction of a new pile-supported pier, construction of a new breakwater and causeway, dredging of the turning basin and creation of a new navigation channel for public access, installation of new moorings and pile-supported mooring dolphins, and demolition of existing facilities. Among other activities, construction would include use of impact and vibratory pile driving, including installation and removal of steel, concrete, and timber piles. Hereafter (unless otherwise specified or detailed) we use the term “pile driving” to refer to both pile installation and pile removal. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals.

The Navy requests authorization to take individuals of five species by Level B harassment. The proposed regulations would be valid for five years (2020-2025).

NWS Seal Beach is the U.S. Pacific Fleet's primary weapons station on the West Coast of the United States. As such, NWS Seal Beach has three primary missions: Storage of Navy and Marine Corps ammunition, missile systems maintenance, and loading and unloading of Navy warships and larger Coast Guard vessels. The existing wharf at NWS Seal Beach is past its design life—over 65 years old—and was constructed prior to the introduction of modern seismic codes. Seismic design deficiencies are of significant concern due to the proximity to active faults and high liquefaction potential of underlying soils. The current condition and configuration of the existing pier and turning basin limits the size and number of ships that can be loaded and unloaded with ammunition at the same time and presents safety and security concerns due to the proximity of naval munitions operations to civilian small boat traffic and the Pacific Coast Highway. Therefore, the proposed construction activities are necessary to sustain and enhance mission capability by eliminating deficiencies associated with the condition, configuration, and capacity of the existing pier and turning basin.

In-water pile driving work is expected to require approximately three years, but could occur at any time during the five-year period of validity of these proposed regulations. The Navy estimates installing approximately 900 primarily concrete piles in total in order to construct the new pier. Construction will include use of impact and vibratory pile driving. Aspects of construction activities other than pile driving are not anticipated to have the potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in marine mammal disturbance.

The proposed regulations would be valid for a period of five years (2020-2025). The specified activities may occur at any time during the five-year period of validity of the proposed regulations. Pile driving activity would be completed over an approximately three-year period that is not necessarily consecutive during the five-year period of validity of these proposed regulations.

Pile driving would typically occur only from Monday through Friday during typical working hours (i.e., during daylight hours). Estimated days of pile driving are based on a conservative production rate of approximately three piles per day for installation of 922 piles, i.e., 308 days. An additional 28 days is assumed for removal of piles. Therefore, the estimated number of total pile driving days is approximately 336 over the five-year period. These totals include both extraction and installation of piles, and represent a conservative estimate of pile driving days. In a real construction situation, pile driving production rates would be maximized when possible and actual daily production rates may be higher, resulting in fewer actual pile driving days.

Construction activities at NWS Seal Beach will be located within Orange County, California, adjacent to the Port of Long Beach. The City of Seal Beach is situated between the Cities of Long Beach to the west and Huntington Beach to the east (see Figure 1-1 in the Navy's application). The specific site of the proposed construction activities is within Anaheim Bay, a small harbor that is completely enclosed by two jetties and land, aside from a narrow entrance channel (see Figure 1-2 of the Navy's application). Depth within Anaheim Bay, which is maintained through dredging, is approximately 10 meters, and the substrate is composed of soft sand and mud alluvial sediments. The jetty-enclosed entrance channel extends 1.3 km from the existing pier location to the approximately 200-m opening between the jetties.

The Anaheim Bay entrance is located approximately 5 miles (8 km) from the Ports of Los Angeles/Long Beach, which together form one of the busiest container ports in the world. Numerous associated ship anchorages are arrayed in the vicinity. In 2016 there were 4,277 ship port visits with over 8,400 ship transits of these nearshore waters (U.S. Army Corps of Engineers, 2017). Associated with these port visits and transits, pilot vessels and tug boats are also active in the vicinity of the port. Immediately adjacent to the Anaheim Bay entrance are entrances to the Huntington Beach and Alamitos/Long Beach marinas, which together have more than 2,000 boat slips. Finally, an offshore petroleum extraction platform is located approximately 1.4 km offshore from the Anaheim Bay entrance. Therefore, it may reasonably be assumed that the Anaheim Bay entrance is situated in an environment of substantial anthropogenic noise.

Also of note regarding the environment of Anaheim Bay, the first phase of this proposed project, which would be completed prior to beginning in-water pile driving work, includes construction of a breakwater perpendicular to the Anaheim Bay entrance channel. Therefore, acoustic footprints associated with subsequent in-water construction activities occurring shoreward of the breakwater would be physically limited to Anaheim Bay (see Figures 1-3 and 6-4 of the Navy's application).

As described above, the Navy has requested incidental take regulations for construction activities associated with development of a new ammunition pier at NWS Seal Beach, California. The entire project would include potential upgrades to the existing wharf to remain operational while the new pier is being built, the construction of a breakwater to reduce wave heights at the pier, a causeway, pile-supported mooring dolphins, a navigation channel for public boat access into and out of Huntington Harbor, dredging for the pier and Navy ship turning basin, and operational support buildings on and near the pier. Aspects of construction activities other than pile driving are not anticipated to have the potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in marine mammal disturbance.

The project would be completed in two different phases. As noted above, the first phase would include construction of a breakwater perpendicular to the entrance channel. Subsequent elements of the first phase would consist of potential upgrades to the existing wharf to allow for continued operation while the new pier is under construction, dredging of the turning basin and navigation channel for public access, removal of existing navigation aids, fill of mitigation areas, partial fill of the causeway, creation of a breakwater and jetties for the navigation channel for public access, relocation of barge mooring buoys, installation of a new floating security barrier, placement of new Navy navigation buoys, and implementation of an indicator pile program to determine feasibility of concrete piles. Partial construction of the new ammunition pier with concrete pile supports may begin during the first phase. The second phase of the project would consist of fill to expand the east mole for the truck turnaround, completion of causeway fill, installation of remaining pier structural and support piles, construction of the new pier and fender system, construction of waterfront facilities, installation of utilities, and demolition of the wharf primary fendering system. (For full details of the project, please see the Navy's application, including the schematic diagram provided as Figure 1-2.)

In-water pile driving activities with the potential to cause take of marine mammals include removal of existing navigation piles, installation of mooring anchors, and installation of piles required for the new ammunition pier. Only pile extraction and installation using vibratory and impact pile drivers is expected to have the potential to result in incidental take of marine mammals. Therefore, only vibratory and impact pile driving are carried forward for further analysis.

Vibratory hammers, which can be used to either install or extract a pile, contain a system of counter-rotating eccentric weights powered by hydraulic motors, and are designed in such a way that horizontal vibrations cancel out, while vertical vibrations are transmitted into the pile. The pile driving machine is lifted and positioned over the pile by means of an excavator or crane, and is fastened to the pile by a clamp and/or bolts. The vibrations produced cause liquefaction of the substrate surrounding the pile, enabling the pile to be extracted or driven into the ground using the weight of the pile plus the hammer. Impact hammers use a rising and falling piston to repeatedly strike a pile and drive it into the ground. Impact or vibratory pile driving could occur on any day, but would not occur simultaneously.

Please see Table 1-1 of the Navy's application for a summary of piles to be installed and/or removed. The navigation piles that currently guide public vessel traffic, consisting of two timber pile clusters (dolphins) of approximately 8 to 10 piles each plus three additional single steel pipe piles, would be removed. All piles are approximately 24-in (61-cm) diameter. Timber piles are likely to be removed by cutting at the mudline, while the three steel piles would be extracted using the vibratory driver. However, it is possible that some timber piles may need to be removed using vibratory extraction. Therefore, we assume for purposes of analysis that all piles will be removed using vibratory extraction.

The planned indicator pile program would involve impact driving 17 24-in octagonal concrete piles in order to verify the driving conditions and establish the final driving lengths prior to fabrication of the final production piles that would be used to construct the new pier.

The new pier itself would be pile-supported with a total of approximately 900 piles (concrete and concrete-filled fiberglass) of various sizes connected to a cast‐in‐place concrete deck and beams. The majority of these production piles are expected to be jetted to within 1.5-3 m of tip elevation and then completed via impact driving. Piles are expected to largely be 24-in octagonal or square.

There will be a total of five new moorings installed, with two of those moorings outside of the new breakwater. Use of a vibratory hammer is required to install “plate anchors” that provide permanent secure holdings for planned mooring buoys. Plate anchors consist of a steel plate that is driven to project depth (9-12 m) beneath the seafloor. The anchor is driven by use of a 12-in (30-cm) steel beam called a “follower.” The follower is slotted on the bottom, fits into the plate anchor, and together the assembly consisting of the plate anchor and follower are driven into the substrate. Once the assembly has been driven to the required depth using a combination of impact and vibratory driving, the follower is removed using vibratory extraction, leaving the plate anchor at the required depth. First, the plate anchor is driven with a vibratory hammer to within several feet of final depth (maximum driving time approximately 45 minutes). An impact hammer is then used to drive the plate anchor to final elevation (potentially requiring up to an additional 45 minutes). Finally, the follower is extracted using a vibratory hammer (up to a maximum of 30 minutes).

We assume that potential impacts of the specified activity on marine mammals will be limited to the area within the largely enclosed Anaheim Bay. As detailed later in “Estimated Take,” impact driving of concrete piles is expected to produce relatively small ensonified areas that would not extend beyond the entrance to Anaheim Bay under any circumstances. However, limited vibratory driving is anticipated. As noted above, the first component of project activity will be construction of a breakwater parallel to the Anaheim Bay entrance. Noise produced through subsequent pile driving activities conducted shoreward of the breakwater will therefore be shielded from potentially extending beyond the entrance to Anaheim Bay. All pile driving activity would be conducted shoreward of the new breakwater, aside from installation of the two aforementioned mooring anchors. Regarding this component of project activity, associated vibratory driving would nominally have a Level B harassment zone that would extend in a narrow strip through the jetty opening that forms the entrance to Anaheim Bay. However, we have determined that any potential sound that does escape the Anaheim Bay entrance should not reasonably be anticipated to result in harassment of marine mammals.

Primarily, and as detailed above, the environment surrounding the entrance to Anaheim Bay is extremely busy in terms of commercial shipping and other anthropogenic activities. The continuous noise produced through use of the vibratory hammer would not likely be sufficiently distinguishable from other ongoing noise sources that are part of the environmental baseline as to expect marine mammals to exhibit responses of a degree sufficient to rise to the level of a take. Additional contributing factors include the distance from the source to the Anaheim Bay entrance, the limited footprint of ensonification that could potentially exit that entrance, and the limited duration of activity (i.e., less than two hours per day for two days).

We have reviewed the Navy's species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy's application, instead of reprinting the information here. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.fisheries.noaa.gov/find-species).

Table 1 lists all species with expected potential for occurrence in the specified geographical region where the Navy proposes to conduct the specified activities and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS's SARs).

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. All managed stocks in the specified geographical regions are assessed in NMFS's U.S. Pacific SARs. All values presented in Table 1 are the most recent available at the time of writing and are available in the 2018 SARs.

Five species (with six managed stocks) are considered to have the potential to be affected by Navy activities. A significantly more diverse marine mammal fauna occurs in deeper offshore waters of the specified geographical region. However, these additional species have not been observed in the vicinity of the action area and, for reasons described previously, are not anticipated to potentially be affected by the specified activity. For additional detail, please see section 3 of the Navy's application. We note that one additional species—the Pacific white-sided dolphin (Lagenorhynchus obliquidens)—has been observed in the vicinity of the entrance to Anaheim Bay. However, authorization of take for this species was not requested by the Navy due to their seasonal and generally rare occurrence in the area. In addition, the sea otter (Enhydra lutris) is found in California coastal waters. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document.

Marine mammals do not regularly use Anaheim Bay for any purpose, and there is no known habitat of any importance (including pinniped haul-outs) located within Anaheim Bay. The Navy has conducted a semi-regular monitoring effort within Anaheim Bay over the past several years. This monitoring effort is the primary source of information regarding marine mammal occurrence therein. Monthly shore-based observations were conducted for marine mammals in Anaheim Bay for 12 months beginning in August 2016. Monitoring was conducted by two observers continuously scanning the bay with both the naked eye and handheld binoculars from two fixed positions. The observation positions allowed for clear visibility of the entirety of Anaheim Bay. The observers covered daylight hours from 7:30 to 4:30 over a one- or two-day period with the goal to survey a full 8 hours of observations each month. A total of approximately 72 observation hours were ultimately conducted. This effort and the resulting observations are detailed in a Navy report (Bredvik et al., 2017). Subsequently, consultants were retained to provide environmental monitoring services during a dredging project, including conducting an observational effort for marine mammals. This effort included daily monitoring during dredging effort from March through June of 2019 (Merkel and Associates, Inc., 2019). The observational data cited below include some records of animals occurring in waters outside the Anaheim Bay entrance.

The California sea lion is the most commonly observed marine mammal species within Anaheim Bay and the nearby Seal Beach National Wildlife Refuge. This species was sighted at least once in Anaheim Bay during almost every survey in the 2016-2017 effort, with all sightings of the species in water. Subsequent monitoring associated with dredging also routinely encountered California sea lions within Anaheim Bay. During Navy monitoring, California sea lions were observed on 25 occasions, with all but one sighting of a lone individual. The exception was a single observation of three sea lions. During dredging monitoring, California sea lions were observed on 67 occasions, typically one or two individuals per occasion but with a maximum observed group of six. Individual sea lions may occasionally haul out on the rock jetties or other areas, but have not been observed hauling out frequently and there are no known haul-outs or areas of congregation.

Harbor seals are more rarely observed in Anaheim Bay. During a 2016-2017 survey effort, individual harbor seals were observed on four occasions, and monitoring associated with dredging encountered individual harbor seals on three occasions. Harbor seals have rarely been observed hauled out, but there are no regular haul-out sites in Anaheim Bay.

Bottlenose dolphins are generally considered to be the second-most commonly observed species in Anaheim Bay, having been sighted several times within Anaheim Bay as well as at the Seal Beach National Wildlife Refuge. During Navy monitoring, pairs of bottlenose dolphins were sighted on four occasions. Bottlenose dolphins were observed during dredging monitoring on 17 occasions, with groups ranging from two to ten animals.

There are two stocks of common dolphin present in California waters, with the two generally indistinguishable. Therefore, observations of common dolphins are not attributed to stock, and we propose to authorize take of common dolphins generically. This take is analyzed as though it may entirely be attributed to both stocks as a worst-case scenario. Common dolphins were frequently observed during monitoring effort but more commonly observed in waters of outer Anaheim Bay or adjacent to the Anaheim Bay entrance. Navy monitoring reported a single occurrence of a pair of common dolphins. However, common dolphins were observed on 31 occasions during dredging monitoring, with groups ranging from two to nine animals.

Gray whales migrate along the Pacific coast twice a year between October and July and would only potentially be present in the region while migrating. Gray whales are not generally expected to occur in Anaheim Bay. However, individual gray whales were observed on four occasions during dredging monitoring, with one of these sightings reported inside Anaheim Bay. As a precaution, the Navy has requested authorization of take for this species.

A UME is defined under the MMPA as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.” Currently ongoing investigations along the west coast involving species at issue in these proposed regulations include gray whales and California sea lions.

Since January 1, 2019, elevated gray whale strandings have occurred along the west coast of North America from Mexico through Alaska. As of September 30, 2019, 212 gray whale strandings have been confirmed, with 121 of these in the United States and 34 in California. Several dead whales have been emaciated with moderate to heavy whale lice (cyamid) loads. Necropsies have been conducted on a subset of whales with additional findings of vessel strike in three whales and entanglement in one whale. In Mexico, 50-55 percent of the free-ranging whales observed in the lagoons this winter were reported as “skinny” compared to the annual average of 10-12 percent “skinny” whales normally seen. Necropsy findings of emaciation are not consistent across all of the whales examined, so more research is needed. Please see www.fisheries.noaa.gov/national/marine-life-distress/2019-gray-whale-unusual-mortality-event-along-west-coast for more information.

Beginning in January 2013 and continuing through 2016, elevated strandings of California sea lion pups were observed in southern California, with live sea lion strandings nearly three times higher than the historical average in 2015. Findings to date indicate that a change in the availability of sea lion prey, especially sardines, a high value food source for nursing mothers, is a likely contributor to the large number of strandings. Sardine spawning grounds shifted further offshore in 2012 and 2013, and while other prey were available (market squid and rockfish), these may not have provided adequate nutrition in the milk of sea lion mothers supporting pups, or for newly-weaned pups foraging on their own. This UME remains under investigation. Please see www.fisheries.noaa.gov/national/marine-life-distress/2013-2017-california-sea-lion-unusual-mortality-event-california for more information.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). NMFS (2018) describes generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

• Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz);

• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz;

• Pinnipeds in water; Phocidae (true seals): Functional hearing is estimated to occur between approximately 50 Hz to 86 kHz; and

• Pinnipeds in water; Otariidae (eared seals): Functional hearing is estimated to occur between 60 Hz and 39 kHz for Otariidae.

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (three cetacean and two pinniped (one otariid and one phocid) species) have the potential to co-occur with Navy construction activities. Please refer to Table 1. Of the three cetacean species that may be present, one is classified as a low-frequency cetacean (gray whale) and two are classified as mid-frequency cetaceans (dolphins).

Sections 6 and 9 of the Navy's application include a comprehensive summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat, including specific discussion of potential effects to marine mammals from noise produced through pile driving. We have reviewed the Navy's discussion of potential effects for accuracy and completeness in its application and refer to that information rather than repeating it here. Alternatively, NMFS has included a lengthy discussion of the potential effects of noise on marine mammals, including specifically from pile driving, in numerous other Federal Register notices. Please see, e.g., 83 FR 9366 (March 5, 2018); 84 FR 54867 (October 11, 2019); 82 FR 36360 (August 4, 2017), or view documents available online at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by the specified activity. The “Negligible Impact Analysis and Determination” section includes an analysis of how these activities will impact marine mammals and considers the content of this section, the “Estimated Take” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations.

This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see, e.g., Au and Hastings (2008); Richardson et al. (1995); Urick (1983).

Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)), and is a logarithmic unit that accounts for large variations in amplitude. Therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).

Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

Sound exposure level (SEL; represented as dB re 1 μPa2-s) represents the total energy in a stated frequency band over a stated time interval or event and considers both intensity and duration of exposure. The per-pulse SEL is calculated over the time window containing the entire pulse (i.e., 100 percent of the acoustic energy). SEL is a cumulative metric; it can be accumulated over a single pulse, or calculated over periods containing multiple pulses. Cumulative SEL represents the total energy accumulated by a receiver over a defined time window or during an event. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source and is represented in the same units as the rms sound pressure.

When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for sound produced by the pile driving activity considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995). The sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., wind and waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic (e.g., vessels, dredging, construction) sound. A number of sources contribute to ambient sound, including wind and waves, which are a main source of naturally occurring ambient sound for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Precipitation can become an important component of total sound at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times. Marine mammals can contribute significantly to ambient sound levels, as can some fish and snapping shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz. Sources of ambient sound related to human activity include transportation (surface vessels), dredging and construction, oil and gas drilling and production, geophysical surveys, sonar, and explosions. Vessel noise typically dominates the total ambient sound for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly.

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

Underwater ambient sound in the vicinity of Anaheim Bay is comprised of sounds produced by a number of natural and anthropogenic sources and varies both geographically and temporally. Human-generated sound is a significant contributor to the ambient acoustic environment at the installations considered here. The underwater acoustic environment will vary depending on the amount of anthropogenic activity, weather conditions, and tidal currents but, given the high anthropogenic use of the area, anthropogenic noise is likely to dominate the ambient soundscape. Details of source types are described in the following text.

Sounds are often considered to fall into one of two general types: pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts. The distinction between these two sound types is not always obvious, as certain signals share properties of both pulsed and non-pulsed sounds. A signal near a source could be categorized as a pulse, but due to propagation effects as it moves farther from the source, the signal duration becomes longer (e.g., Greene and Richardson, 1988).

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

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

The impulsive sound generated by impact hammers is characterized by rapid rise times and high peak levels. Vibratory hammers produce non-impulsive, continuous noise at levels significantly lower than those produced by impact hammers. Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time.

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

Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

Take of marine mammals incidental to Navy construction activities could occur as a result of Level B harassment only. Below we describe how the potential take is estimated.

NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to exhibit behavioral disruptions (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

Level B Harassment—Although available data are consistent with the basic concept that louder sounds evoke more significant behavioral responses than softer sounds, defining sound levels that disrupt behavioral patterns is difficult because responses depend on the context in which the animal receives the sound, including an animal's behavioral mode when it hears sounds (e.g., feeding, resting, or migrating), prior experience, and biological factors (e.g., age and sex). Some species are known to be more highly sensitive to certain anthropogenic sounds than other species. Other contextual factors, such as signal characteristics, distance from the source, and signal to noise ratio, may also help determine response to a given received level of sound. Therefore, levels at which responses occur are not necessarily consistent and can be difficult to predict (Southall et al., 2007; Ellison et al., 2012; Bain and Williams, 2006).

However, based on the practical need to use a relatively simple threshold based on available information that is both predictable and measurable for most activities, NMFS has historically used a generalized acoustic threshold based on received level to estimate the onset of Level B harassment. These thresholds are 160 dB rms (intermittent sources) and 120 dB rms (continuous sources).

Level A Harassment—NMFS's “Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing” (NMFS, 2018) identifies dual criteria to assess the potential for auditory injury (Level A harassment) to occur for different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise. The technical guidance identifies the received levels, or thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity for all underwater anthropogenic sound sources, and reflects the best available science on the potential for noise to affect auditory sensitivity by:

• Dividing sound sources into two groups (i.e., impulsive and non-impulsive) based on their potential to affect hearing sensitivity;

• Choosing metrics that best address the impacts of noise on hearing sensitivity, i.e., peak sound pressure level (peak SPL) (reflects the physical properties of impulsive sound sources to affect hearing sensitivity) and cumulative sound exposure level (cSEL) (accounts for not only level of exposure but also duration of exposure); and

• Dividing marine mammals into hearing groups and developing auditory weighting functions based on the science supporting that not all marine mammals hear and use sound in the same manner.

The premise of the dual criteria approach is that, while there is no definitive answer to the question of which acoustic metric is most appropriate for assessing the potential for injury, both the received level and duration of received signals are important to an understanding of the potential for auditory injury. Therefore, peak SPL is used to define a pressure criterion above which auditory injury is predicted to occur, regardless of exposure duration (i.e., any single exposure at or above this level is considered to cause auditory injury), and cSEL is used to account for the total energy received over the duration of sound exposure (i.e., both received level and duration of exposure) (Southall et al., 2007, 2019; NMFS, 2018). As a general principle, whichever criterion is exceeded first (i.e., results in the largest isopleth) would be used as the effective injury criterion (i.e., the more precautionary of the criteria). Note that cSEL acoustic threshold levels incorporate marine mammal auditory weighting functions, while peak pressure thresholds do not (i.e., flat or unweighted). Weighting functions for each hearing group (e.g., low-, mid-, and high-frequency cetaceans) are described in NMFS (2018).

NMFS (2018) recommends 24 hours as a maximum accumulation period relative to cSEL thresholds. These thresholds were developed by compiling and synthesizing the best available science, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS (2018), which is available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

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

This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log(range)). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log(range)). As is common practice in coastal waters, here we assume practical spreading loss (4.5 dB reduction in sound level for each doubling of distance). Practical spreading is a compromise that is often used under conditions where water depth increases as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions.

In this analysis, site-specific propagation modeling was performed on behalf of the Navy by Dr. Peter Dahl (see “Modeling of Sound Propagation from Pile Driving Marine Construction at Seal Beach,” available online at www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval). This more complex modeling approach accounts for factors such as depth, substrate, and frequency-dependency. This modeling was performed for propagation associated with impact and vibratory driving of 24-in concrete piles and 12-in steel beams, and for vibratory driving of 30-in steel piles (as proxy for removal of 24-in steel piles). Propagation loss associated with vibratory removal of 24-in timber piles was represented through practical spreading.

The above-referenced Dahl propagation analysis is provided for a more realistic understanding of actual ensonification effects at multiple specific locations within Anaheim Bay due to impact driving of concrete piles, impact and vibratory driving of steel beams, and vibratory driving of steel pipe piles. These actual zones are depicted in Figures 6-4 through 6-7 of the Navy's application. Notably, this analysis indicates that, for vibratory installation of piles seaward of the intended breakwater, maximum Level B harassment isopleth distances would be less than 1.5 km (before taking into account the aforementioned noise environment outside of Anaheim Bay. However, these Level B harassment areas do not factor into the take estimation process, as a density-based method is not used. We also note that the Dahl analysis indicates that all Level A harassment isopleth distances are likely less than 10 meters. However, we take a more precautionary approach to estimation of these distances through use of the NMFS User Spreadsheet, as described in greater detail in the following. Isopleth distances given in Table 5 are estimated using the spreadsheet (Level A harassment) or are simply calculated assuming practical spreading (Level B harassment).

Sound Source Levels—The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. Numerous studies have examined sound pressure levels (SPLs) recorded from underwater pile driving projects in California. Proxy values given in Table 3 are those used in the Dahl propagation analysis discussed above. The values for 24-in concrete piles are summary values provided in Table 2-2 of Caltrans (2015). Proxy values for impact driving of 12-in steel beams are from measurements of the same piles taken at Elkhorn Slough, near Moss Landing, CA, and are found in Figure I.4-8 of Caltrans (2015). The values for vibratory driving of 30-in steel piles and 12-in steel beams are from measurements conducted by the U.S. Navy during construction of a pier in San Diego Bay. The Dahl analysis did not address vibratory driving of timber piles, the Caltrans compendium does not provide values for vibratory removal of timber piles, and few data are available for this activity. We use acoustic monitoring data from construction activity in Elliott Bay, Washington as a proxy (Greenbusch Group, 2018). This project included vibratory removal of 14-in timber piles, and reported source measurements at different distances for 63 individual piles. The median value as normalized to 10 m distance is given in Table 3. NMFS views this as the best available data for vibratory removal of timber piles.

Level A Harassment—In order to assess the potential for injury on the basis of the cumulative SEL metric, one must estimate the total strikes (impact driving) or the total driving duration (vibratory driving) over which energy is assumed to accumulate. Table 4 presents an estimate of average strikes per day; average strikes per day and average daily duration values are used in the exposure analyses. Values given in Table 4 are engineering assumptions provided by the Navy.

Delineation of potential injury zones on the basis of the peak pressure metric was performed using the SPL(peak) values provided in Table 3 above. As described previously, source levels for peak pressure are unweighted within the generalized hearing range, while SEL source levels are weighted according to the appropriate auditory weighting function. Delineation of potential injury zones on the basis of the cumulative SEL metric for impact and vibratory driving were performed using single-frequency weighting factor adjustments (WFA) of 2.0 and 2.5 kHz, respectively, as recommended by the NMFS User Spreadsheet, described in NMFS's Technical Guidance (NMFS, 2018). In order to assist in simple application of the auditory weighting functions, NMFS recommends WFAs for use with specific types of activities that produce broadband or narrowband noise. WFAs consider marine mammal auditory weighting functions by focusing on a single frequency. This will typically result in higher predicted exposures for broadband sounds, because only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the Technical Guidance's weighting functions. Note that, for use in delineating assumed Level A harassment zones through use of the User Spreadsheet, practical spreading was assumed.

In consideration of the assumptions relating to sound source levels, propagation, and pile driving rates, notional radial distances to relevant thresholds were calculated (Table 5). However, these distances are sometimes constrained by topography. Actual notional ensonified zones, calculated using site-specific propagation modeling (Dahl, 2018) are shown in Figures 6-4 to 6-7 of the Navy's application. For production piles, these zones are modeled on the basis of a centrally-located, notional pile. Note that these figures assume the presence of the breakwater that will be constructed prior to pile driving activity.

Available information regarding marine mammal occurrence at NWS Seal Beach was summarized previously in “Description of Marine Mammals in the Area of the Specified Activity.” Given the small area of Anaheim Bay, infrequent occurrence of marine mammals, and limited observational data available, we do not use these data to support calculation of density values, but rather use the maximum observed group size in conjunction with the expected days of pile driving to develop take estimates. The Navy assumes a total of 336 days of pile driving activity over the five-year period of effectiveness of this proposed rule. However, the total days are assumed to occur over a three-year period during the five years. Therefore, the Navy assumes 112 pile driving days per year for three years.

To quantitatively assess exposure of marine mammals to noise from pile driving activities, the Navy used two methods. For pinniped species, which are assumed to have the potential to occur on any day of pile driving, the maximum group size is multiplied by the total annual pile driving days to generate the annual take estimate. For cetacean species, whose occurrence is assumed to be more sporadic in nature, the assumed group size is multiplied by an assumed proportion of total annual pile driving days. The assumed proportion reasonably reflects the observational data available for Anaheim Bay. This calculation is performed as: 112 annual pile driving days/30 days per month times × assumed monthly days present. Given the small calculated Level A harassment zone sizes, we assume that no Level A harassment is likely to occur, for any species. The Navy's proposed mitigation measures further reduce the low likelihood that any incidents of Level A harassment would occur, and none are proposed for authorization.

California Sea Lion—California sea lions are regularly observed, typically as individuals or in pairs. However, a maximum group of six sea lions was observed in Anaheim Bay. Therefore, the Navy estimates take as six sea lions per day for 112 days annually, yielding an estimate of 672 incidents of take annually and 2,016 incidents over the duration of the rule.

Harbor Seal—Individual harbor seals are infrequently observed in Anaheim Bay. However, as a relatively common coastal pinniped, the Navy assumes that one harbor seal could be present on each day of pile driving. Therefore, the Navy estimates take as one seal per day for 112 days annually, yielding an estimate of 112 incidents of take annually and 336 incidents over the duration of the rule.

Bottlenose Dolphin—The Navy assumes that groups of up to ten bottlenose dolphins may occur in Anaheim Bay on six occasions per month, yielding an annual estimate of 220 incidents of take, and 660 over the duration of the rule. These dolphins are assumed to be from the California coastal stock of bottlenose dolphin.

Common Dolphin—The Navy assumes that groups of up to nine common dolphins may occur in Anaheim Bay on ten occasions per month, yielding an annual estimate of 336 incidents of take, and 1,008 over the duration of the rule. These dolphins could be from either the California/Oregon/Washington stock of common dolphin or from a subspecies stock, the eastern North Pacific long-beaked common dolphin.

Gray Whale—Individual gray whales have rarely been observed in the vicinity of the entrance to Anaheim Bay. The Navy assumes that a single gray whale may occur in Anaheim Bay on two occasions per month, yielding an annual estimate of seven incidents of take, and 21 over the duration of the rule.

The total proposed take authorization for all species is summarized in Table 6 below. No authorization of take by Level A harassment is proposed for authorization.

Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for “least practicable adverse impact.” However, NMFS's implementing regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

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

(1) The manner in which, and the degree to which, implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses. This analysis will consider such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation.

(2) The practicability of the measure for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, personnel safety, and practicality of implementation.

The mitigation strategies described below largely follow those required and successfully implemented under previous incidental take authorizations issued in association with similar construction activities. Estimated zones of influence (ZOI; see “Estimated Take”) were used to develop mitigation measures for pile driving activities. Background discussion related to underwater sound concepts and terminology is provided in the section on “Description of Sound Sources,” earlier in this preamble. The ZOIs were used to inform mitigation zones that would be established to prevent Level A harassment and to monitor Level B harassment.

In addition to the specific measures described later in this section, the Navy would conduct briefings for construction supervisors and crews, the marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.

As described previously, the Navy would conduct construction activities only during daylight hours. This is a voluntary description by the Navy of expected construction scheduling that we do not treat as an absolute requirement. Therefore, this commitment is not considered in making our preliminary determinations and is not included in the proposed regulatory text found at the end of this preamble.

The following measures would apply to the Navy's mitigation through shutdown and disturbance zones:

Shutdown Zone—The purpose of a shutdown zone is to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing some undesirable outcome, such as auditory injury or behavioral disturbance of sensitive species (serious injury or death are unlikely outcomes even in the absence of mitigation measures). For all pile driving activities, the Navy would establish a minimum shutdown zone with a radial distance of 10 m. This minimum zone is intended to prevent the already unlikely possibility of physical interaction with construction equipment and to establish a precautionary minimum zone with regard to acoustic effects.

In most cases, the minimum shutdown zone of 10 m is expected to contain the area in which auditory injury could occur. In all circumstances where the predicted Level A harassment zone exceeds the minimum zone, the Navy proposes to implement a shutdown zone equal to the predicted Level A harassment zone (see Table 5). In all cases, predicted injury zones are calculated on the basis of cumulative sound exposure, as peak pressure source levels produce smaller predicted zones.

Injury zone predictions generated using the optional user spreadsheet are precautionary due to a number of simplifying assumptions. For example, the spreadsheet tool assumes that marine mammals remain stationary during the activity and does not account for potential recovery between intermittent sounds. In addition, the tool incorporates the acoustic guidance's weighting functions through use of a single-frequency weighting factor adjustment intended to represent the signal's 95 percent frequency contour percentile (i.e., upper frequency below which 95 percent of total cumulative energy is contained; Charif et al., 2010). This will typically result in higher predicted exposures for broadband sounds, because only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the guidance's weighting functions.

Disturbance Zone—Disturbance zones are the areas in which sound pressure levels equal or exceed 160 and 120 dB rms (for impact and vibratory pile driving, respectively). Regarding vibratory driving occurring outside the breakwater, we assume that the disturbance zone is truncated at the entrance to Anaheim Bay. Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone, and thus prepare for potential shutdowns of activity. The primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment. Disturbance zone monitoring is discussed in greater detail later (see “Proposed Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 5.

In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location and the location of the pile being driven are known, and the location of the animal may be estimated as a distance from the observer and then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational data, and a precise accounting of observed incidents of harassment created.

Monitoring Protocols—Monitoring would be conducted before, during, and after pile driving activities. In addition, observers will record all incidents of marine mammal occurrence, regardless of distance from activity, and monitors will document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment will be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted. Monitoring will take place from 30 minutes prior to initiation through 30 minutes post-completion of pile driving activities. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.

The following additional measures apply to visual monitoring:

(1) Monitoring will be conducted by qualified, trained protected species observers, who will be placed at the best vantage point(s) practicable (i.e., construction barges, on shore, or any other suitable location) to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Observers would have no other construction-related tasks while conducting monitoring. Observers should have the following minimum qualifications:

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

• Ability to conduct field observations and collect data according to assigned protocols;

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

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

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

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

Observer teams employed by the Navy in satisfaction of the mitigation and monitoring requirements described herein must meet the following additional requirements:

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

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

• Other observers may substitute education (degree in biological science or related field) or training for experience.

• Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer.

• We will require submission and approval of observer CVs.

(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 30 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition), and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity would be halted.

(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile and for thirty minutes following the conclusion of pile driving.

The use of a soft start procedure is believed to provide additional protection to marine mammals by warning marine mammals or providing them with a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The Navy will utilize soft start techniques for impact pile driving. We require an initial set of three strikes from the impact hammer at reduced energy, followed by a 30-second waiting period, then two subsequent 3-strike sets. Soft start will be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer; the requirement to implement soft start for impact driving is independent of whether vibratory driving has occurred within the prior 30 minutes.

We have carefully evaluated the Navy's proposed mitigation measures and considered a range of other measures in the context of ensuring that we prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Based on our evaluation of these measures, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.

In order to issue an LOA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. NMFS's MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104(a)(13)), including the 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.

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

• Occurrence of significant interactions with marine mammal species in action area (e.g., animals that came close to the vessel, contacted the gear, or are otherwise rare or displaying unusual behavior).

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

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

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

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

• Mitigation and monitoring effectiveness.

The Navy will collect sighting data and behavioral responses to pile driving activity for marine mammal species observed in the region of activity during the period of activity. The Navy will employ a minimum of two qualified observers at all times to monitor shutdown zones and the surrounding waters of Anaheim Bay. In order to accomplish visual coverage of the entirety of Anaheim Bay, it is possible that additional observers will be used. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy would monitor all shutdown zones at all times, and would monitor disturbance zones as conditions allow. The Navy would conduct monitoring before, during, and after pile driving, with observers located at the best practicable vantage points.

As described in “Proposed Mitigation” and based on our requirements, the Navy would implement the following procedures for pile driving:

• Marine mammal observers would be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible.

• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals.

• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity would be halted.

• The shutdown zone around the pile would be monitored for the presence of marine mammals before, during, and after all pile driving activity.

Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and the Navy.

We require that observers use standardized data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and a description of specific actions that ensued and resulting behavior of the animal, if any. We require that, at a minimum, the following information be collected on the sighting forms:

• Date and time that monitored activity begins or ends;

• Construction activities occurring during each observation period;

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

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

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

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

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

• Description of implementation of mitigation measures (e.g., shutdown or delay);

• Locations of all marine mammal observations; and

• Other human activity in the area.

The Navy will note in behavioral observations, to the extent such observations are possible, if an animal has remained in the area during construction activities. Therefore, it may be possible to identify if the same animal or different individuals are being exposed.

A draft report would be submitted to NMFS within 90 days of the completion of each calendar year. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report. The Navy would also submit a comprehensive summary report covering all activities conducted under the incidental take regulations.

In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR), NMFS and to the regional stranding coordinator as soon as feasible. The report must include the following information:

• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

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

• Condition of the animal(s) (including carcass condition if the animal is dead);

• Observed behaviors of the animal(s), if alive;

• If available, photographs or video footage of the animal(s); and

• General circumstances under which the animal was discovered.

NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality).

Pile driving activities associated with this construction action, as described previously, have the potential to disturb marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only from underwater sounds generated from pile driving. Potential takes could occur if individual marine mammals are present in the ensonified zone when pile driving is happening.

No serious injury or mortality would be expected even in the absence of the proposed mitigation measures. No Level A harassment is anticipated given the nature of the activities, i.e., much of the anticipated activity would involve vibratory driving and/or brief impact installation of primarily non-steel piles, and measures designed to minimize the possibility of injury. The limited potential for injury is expected to be essentially eliminated through implementation of the planned mitigation measures—soft start (for impact driving) and shutdown zones. Impact driving, as compared with vibratory driving, has source characteristics (short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. Given sufficient notice through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious or resulting in more severe behavioral reactions. Environmental conditions are expected to generally be good, with calm sea states, and we expect conditions would allow a high marine mammal detection capability, enabling a high rate of success in implementation of shutdowns to avoid injury.

Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in San Diego Bay, San Francisco Bay, and in the Puget Sound region, which have taken place with no known long-term adverse consequences from behavioral harassment.

The Navy has conducted multi-year activities potentially affecting marine mammals, and typically involving greater levels of activity and/or more impactful activities (e.g., impact driving of steel piles) than is contemplated here, in various locations such as San Diego Bay as well as locations in Washington inland waters. Reporting from these activities has similarly reported no apparently consequential behavioral reactions or long-term effects on marine mammal populations. Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. Effects of the specified activity are expected to be limited to the enclosed waters of Anaheim Bay, which provides relatively low-quality habitat and no known habitat areas of any importance. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats.

In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of serious injury or mortality may reasonably be considered discountable; (2) as a result of the nature of the activity in concert with the planned mitigation requirements, injury is not anticipated; (3) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (4) the absence of any significant habitat within the project area, including known areas or features of special significance for foraging or reproduction; and (5) the presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.

In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that the total marine mammal take from the Navy's construction activities will have a negligible impact on the affected marine mammal species or stocks.

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

Please see Table 6 for information relating to this small numbers analysis. We propose to authorize incidental take of five marine mammal species (with take of one species potentially occurring for two stocks). The total annual amount of taking proposed for authorization is less than one percent for all stocks other than the California coastal bottlenose dolphin, for which the proposed annual take represents greater than one-third of the best available population abundance, if we were to assume that all takes occurred to distinct individuals. However, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is likely that a relatively small subset of California coastal bottlenose dolphins would be incidentally harassed by project activities. California coastal bottlenose dolphins range from San Francisco Bay to San Diego (and south into Mexico) and the specified activity would be stationary within an enclosed water body that is not recognized as an area of any special significance for coastal bottlenose dolphins (and is therefore not an area of dolphin aggregation, as evident in Navy observational records). We therefore believe that the estimated numbers of takes likely represent repeated exposures of a much smaller number of bottlenose dolphins and that, based on the limited region of exposure in comparison with the known distribution of the coastal bottlenose dolphin, these estimated incidents of take represent small numbers of bottlenose dolphins. Therefore, the proposed annual take levels would be of small numbers for all stocks.

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

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

The regulations governing the take of marine mammals incidental to Navy construction activities would contain an adaptive management component.

The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.

No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that section 7 consultation under the ESA is not required.

NMFS requests interested persons to submit comments, information, and suggestions concerning the Navy request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare a final rule and make final determinations on whether to issue the requested authorization. This notice and referenced documents provide all environmental information relating to our proposed action for public review.

Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The U.S. Navy is the sole entity that would be subject to the requirements in these proposed regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency.

For reasons set forth in the preamble, 50 CFR part 218 is proposed to be amended as follows:

NMFS manages the groundfish fisheries in the U.S. exclusive economic zone (EEZ) of the BSAI under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The Council prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

This advance notice of proposed rulemaking would apply to owners and operators of catcher/processor vessels that participate in Federal groundfish fisheries with pot gear in the BSAI. The BSAI is defined at § 679.2 and shown in Figure 1 to 50 CFR part 679.

The Council and NMFS annually establish overfishing limits and annual total allowable catch limits for groundfish species to sustainably manage the groundfish fisheries in the BSAI. To achieve these objectives, NMFS requires vessel operators participating in BSAI Pacific cod fisheries to comply with various regulatory restrictions, such as fishery closures and limits on participation and effort, to maintain catch within specified total allowable catch limits.

The Council and NMFS have long sought to control fishing effort in the North Pacific Ocean to ensure that fisheries are conservatively managed and do not exceed established biological thresholds. One of the measures used by the Council and NMFS is the license limitation program (LLP), which limits access to the federally managed groundfish, crab, and scallop fisheries in the BSAI and the Gulf of Alaska. For groundfish, the LLP requires that persons hold and assign a license to each vessel that is used to fish in federally managed fisheries, with some limited exemptions. The preamble to the final rule implementing the groundfish LLP provides a more detailed explanation of the rationale for specific provisions in the LLP (October 1, 1998; 63 FR 52642).

A vessel participating in groundfish fisheries in Federal waters in the BSAI or GOA is required to have an LLP license with the applicable area, gear, and operation type endorsements, and a sufficient maximum length overall (MLOA) In 2019, there were a total of eight LLP licenses with a BS Pacific cod pot catcher/processor (C/P) endorsement. Of those eight LLP licenses, five LLP licenses also had an AI Pacific cod pot C/P endorsement, three LLP licenses also had a BS Pacific cod HAL C/P endorsement, and three LLP licenses also had an AI Pacific cod HAL C/P endorsement.

In October 2019, the Council reviewed a discussion paper and received public testimony from participants in the BSAI Pacific cod pot C/P sector. These participants indicated that a new vessel entered the fishery in recent years and this new entry may negatively impact the ability of historical fishery participants to maintain groundfish harvests and processing in the BSAI.

After considering this public testimony, the Council stated its intent to evaluate methods for further limiting access to the BSAI Pacific cod pot catcher/processor sector in a future management action. To dampen the effect of speculative entry into this sector during this deliberative period, the Council announced a control date. This date corresponds to the date of publication of this advance notice of proposed rulemaking after the end of the 2019 fishing season and prior to the start of the 2020 fishing season.

The control date may be used as a reference date for a future management action to further limit access to the BSAI Pacific cod pot catcher/processor sector. The Council clarified that the control date would not obligate the Council to use this control date in any future management action. Further, the control date would not obligate the Council to take any action or prevent the Council from selecting another control date. Accordingly, this notice is intended to promote awareness that the Council may develop a future management action to achieve its objectives for the BSAI Pacific cod pot catcher/processor sector fishery; to provide notice to the public that any current or future access to the Pacific cod pot catcher/processor fishery may be affected or restricted; and to discourage speculative participation and behavior in the fisheries while the Council considers whether to initiate a management action to further limit access to this fishery. Any measures the Council considers may require changes to the FMP. Such measures may be adopted in a future amendment to the FMP, which would include opportunity for further public participation and comment.

NMFS encourages public participation in the Council's consideration of a management action to further limit access to BSAI Pacific cod fishery. Please consult the Council's website at http://www.npfmc.org/ for information on public participation in the Council's decision-making process. The Council is scheduled to receive an initial review draft Analysis at its meeting scheduled for March 30, 2020 through April 7, 2020.

This notification and control date do not impose any legal obligations, requirements, or expectations.