The purpose of the SNAP-Ed Toolkit Intervention Submission Form and Scoring Tool are to provide a uniform and transparent method for submission, review, and scoring of nutrition education, physical activity promotion, and obesity prevention interventions into the SNAP-Ed Strategies and Interventions: An Obesity Prevention Toolkit for States (Toolkit). The Toolkit was developed to assist State agencies in locating evidence-based interventions for their implementation of SNAP-Ed programming. The Food and Nutrition Act of 2008, as amended (The Act) requires that States use evidence-based interventions. These forms allow FNS to increase the selection of interventions available in the Toolkit, increase innovation in service delivery using interventions which reflect up-to-date research, and respond to intervention developer requests to be included in the Toolkit. FNS plans to update form FNS-885 by rephrasing, modifying, or combining certain criteria where doing so will improve user experience, as well as by including updated scoring criteria that reflect the current body of interventions in the SNAP-Ed Toolkit. FNS plans to update form FNS-886 by combining, removing, and resequencing questions based on user feedback to improve user experience and reduce burden. FNS also plans to encourage high quality submissions by inserting more explicit prompts to include supplementary documentation, adding more check-box lists for submitters to use to identify the strategies they employed, increasing character limits on short-answer questions, and inserting a question on evaluation tools used by the submitter. In sum, the changes in this proposed revision are intended to streamline the forms and improve the end user experience.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Title: SNAP-Ed Toolkit Submission Form and Scoring Tool.

Form Number: FNS-885, FNS-886.

OMB Number: 0584-0639.

Expiration Date: 6/30/2021.

Type of Request: Revision of a currently approved collection.

Abstract: SNAP-Ed State and Implementing agencies are able to identify and choose evidence-based interventions using the Toolkit. The Toolkit was developed collaboratively by FNS National and Regional Office SNAP-Ed staff, the National Collaborative on Childhood Obesity Reduction (NCCOR), and the Association of SNAP Nutrition Education Administrators (ASNNA). Currently, more than 150 interventions are available in the Toolkit ( https://snapedtoolkit.org/ ). This data collection for additional interventions to be reviewed for inclusion in the Toolkit is necessary for the following reasons:

• Increase the selection available to agencies to allow them to find interventions that fit their specific needs.

• Increase innovation in service delivery by encouraging adoption of interventions which reflect the most up-to-date research of nutrition education, physical activity, and obesity prevention behavior change.

• Allow FNS to respond to requests by intervention developers to be included in the Toolkit with a clear and transparent review process and criteria for inclusion.

The Food and Nutrition Act of 2008, as amended (The Act) § 28(c)(3)(A) states that State agencies “may use funds provided under this section for any evidence-based allowable use of funds” including “(i) individual and group-based nutrition education, health promotion, and intervention strategies”. 7 CFR 272.2(2)(d) also states “SNAP-Ed activities must include evidence-based activities using one or more of these approaches: Individual or group-based nutrition education, health promotion, and intervention strategies; comprehensive, multi-level interventions at multiple complementary organizational and institutional levels; community and public health approaches to improve nutrition”. The Intervention Submission Form and Scoring Tool allows for interventions to be assessed to determine if they are both evidence-based and use one of the approaches described.

The Intervention Submission Form is be used by intervention developers (submitters) to provide information about the intervention they are submitting for inclusion in the Toolkit. Information requested includes intervention materials, how they have been and will be used, and the evidence base which illustrates their effectiveness. Information is collected through a combination of multiple-choice boxes and text response areas.

Submitters are members of State or Implementing agencies, researchers from academic institutions and Federal agencies, such as the Economic Research Service (ERS), and non-profit or private sector nutrition education and physical activity intervention developers.

Submitters are able to download, complete and submit the form at any time, although there is an annual deadline for submission for the associated year's review. Download and submission will be through the SNAP-Ed Connection website ( https://snaped.fns.usda.gov/ ). Completion is voluntary.

Submission Forms and attachments are collected by FNS National Office SNAP-Ed staff and distributed to intervention reviewers (reviewers), who use the Scoring Tool to help them determine if the intervention should be included in the Toolkit. The Scoring Tool rates the intervention according to the quality of materials, usefulness for SNAP-Ed, and effectiveness as demonstrated by the evidence base provided. Reviewers are directly emailed the Intervention Scoring Tool. Numerical scores are entered by reviewers as well as qualitative responses which clarify why an intervention was or was not included in the Toolkit. Information is collected through a combination of numerical and text entry fields.

Reviewers are FNS National and Regional Office SNAP-Ed staff, nutrition program staff from other Federal agencies, such as Centers for Disease Control and Prevention (CDC), researchers from academic institutions, and SNAP-Ed State and Implementing agency staff.

The review period occurs annually, with reviewers completing the Scoring Tool and discussing inclusion in the Toolkit. Participation as a reviewer is voluntary, with completion of the Scoring Tool a mandatory component of review participation.

As this collection is nearing its expiration date, FNS it using the Revision process to implement a number of improvements aimed primarily at improving the user experience. For the FNS-885, these changes are anticipated to include:

• In Section I, the addition of one scoring factor prompt and the modification of another to encourage reviewers to reflect on aspects of equity.

• In Section II, the removal of two scoring factor prompts to reduce burden and the modification or insertion of eight existing or new prompts for clarity and to give reviewers the opportunity to reflect more fully on the effectiveness of the submitted intervention.

• In Section III, the removal of one question to reduce burden, and minor edits throughout to streamline and improve readability.

• In Section IV, the removal of one question to reduce burden, the modification of one prompt to explicitly reference intervention cost, and minor edits for readability.

• In Section V, the removal of a scoring factor not requested in FNS-886 (Submission Form), the inclusion of cost as a factor in keeping with Section IV, and the removal of a reviewer comments section to reduce burden.

• In the Bonus Questions, an updated list of underrepresented settings, reflecting the current body of SNAP-Ed Toolkit resources, for which interventions can be awarded bonus points, and the insertion of a new question to allow reviewers to reflect on the quality of materials submitted throughout the review process.

For the FNS-886, the following updates are projected:

• In Section I, the replacement of a fill-in-the blank space with “Yes or No”, and an additional sentence encouraging submitters to reference the materials they attach in the appendices.

• In Section II, new questions containing prompts for the submitter to list the approaches used in their intervention, and definitions to accompany a question requiring submitters to identify their intervention from a series of approaches listed in checkboxes.

• In Section III, a renumbering of questions due to the insertion of new questions in Section II.

• In Section IV, a new question asking submitters to identify tools they used to evaluate their intervention, a simplified question on which outcomes the intervention achieved, and an increased character limit on a question on evidence findings included in the submission. This section also includes minor updates for readability, and renumbering to reflect the newly inserted questions.

• In Section V, renumbering to reflect newly inserted questions.

• In Section VI, a clarification of what training is required to implement the intervention, as well as renumbering to reflect newly inserted questions.

• In Section VII, new instructions clarifying that submitters should describe how evaluation and modification addressed intervention sustainability concerns, and renumbering to reflect newly inserted questions.

• In Section VIII, additional instructions to help developers name and reference their attachments throughout the submission form.

• In Section IX, additional instructions to help developers name and reference their attachments throughout the submission form.

These updates were made based on FNS' own findings and feedback from users since the forms' introduction in 2018. FNS has refined and streamlined where real-world use has indicated this is possible, and included additional instructions, questions, or opportunities for response where users, trainers, and FNS partners indicated areas for improvement. FNS has also made small wording changes to fix typos and improve readability. Overall, the changes to the form are focused on quality-of-life improvements and burden reductions for the end user. In small-scale pilot testing, users completed the revised FNS-885 approximately one hour sooner and the revised FNS-886 approximately took one hour longer. As indicated in the table below, these proposed revisions reduce Annual Burden on the public from 668 hours to 523 hours.

Affected Public: SNAP-Ed State and Implementing agencies, such as extension universities, non-profit organizations, and local program operators. Intervention developers may be members of these organizations, academic institutions not associated with SNAP-Ed, non-profit organizations, and private organizations who voluntarily complete the Intervention Submission Form. Members of FNS SNAP-Ed staff, NCCOR and ASNNA members can voluntarily review interventions using the Intervention Scoring Tool.

Estimated Number of Respondents: We estimate 127 respondents.

Estimated Number of Responses per Respondent: 1 (Intervention Submission form), 2 (Intervention Scoring Tool).

Estimated Total Annual Responses: 160.

Estimated Time per Response: 120 Minutes (Intervention Submission Form), 360 Minutes (Intervention Scoring Tool).

Estimated Total Annual Burden on Respondents: 31,380 minutes (523 hours). See the table below for estimated total annual burden for each type of respondent.

This meeting is available to the public through the WebEx link above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the call-in number found through registering at the web link provided above for the meeting.

Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the respective meeting. Written comments may be emailed to Barbara Delaviez at ero@usccr.gov. All written comments received will be available to the public.

Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at the www.facadatabase.gov. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Regional Programs Unit at the above phone number or email address.

On March 31, 2021, the U.S. Department of Commerce (Commerce) received a countervailing duty (CVD) petition concerning imports of organic soybean meal from India, filed in proper form on behalf of the Organic Soybean Processors of America and eight domestic processors of organic soybean meal. 1 On April 6, 2021, these companies filed an amendment to Volume I of the Petition and “a change of petitioner” status on behalf of the Organic Soybean Processors of America, stating that the petitioners now consisted of the Organic Soybean Processors of America and seven domestic processors (collectively, the petitioners). 2 The Petition was accompanied by the antidumping duty (AD) petition concerning organic soybean meal from India. 3

On April 5 and 15, 2021, Commerce requested supplemental information pertaining to certain aspects of the Petition. 4 The petitioners filed responses to these requests on April 7, 9, and 16, 2021. 5

In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that the Government of India (GOI) is providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to producers of organic soybean meal in India, and that imports of such products are materially injuring, or threatening material injury to, the domestic industry producing organic soybean meal in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs on which we are initiating a CVD investigation, the Petition was accompanied by information reasonably available to the petitioners supporting their allegations.

Commerce finds that the petitioners filed the Petition on behalf of the domestic industry, because the petitioners are interested parties, as defined in sections 771(9)(C) and (E)-(G) of the Act. 6 Commerce also finds that the petitioners demonstrated sufficient industry support for the initiation of the requested CVD investigation. 7

Because the Petition was filed on March 31, 2021, the period of investigation (POI) for this CVD investigation is January 1, 2020, through December 31, 2020, pursuant to 19 CFR 351.204(b)(2).

The product covered by this investigation is organic soybean meal from India. For a full description of the scope of this investigation, see the appendix to this notice.

On April 5 and 9, 2021, Commerce requested further information and clarification from the petitioners regarding the proposed scope to ensure that the scope language in the Petition is an accurate reflection of the products for which the domestic industry is seeking relief. 8 On April 7, 2021, the petitioners revised the scope. 9 The description of merchandise covered by this investigation, as described in the appendix to this notice, reflects these clarifications.

As discussed in the Preamble to Commerce's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage ( i.e., scope). 10 Commerce will consider all comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary determination. If scope comments include factual information, 11 all such factual information should be limited to public information. To facilitate preparation of its questionnaires, Commerce requests that all interested parties submit scope comments by 5:00 p.m. Eastern Time (ET) on May 10, 2021, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on May 20, 2021, which is 10 calendar days from the initial comment deadline.

Commerce requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party must contact Commerce and request permission to submit the additional information. All such comments must be filed on the records of the concurrent AD and CVD investigations.

All submissions to Commerce must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies. 12 An electronically filed document must be received successfully in its entirety by the time and date it is due. Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information until further notice. 13

Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce notified the GOI of the receipt of the Petition and provided an opportunity for consultations with respect to the Petition. 14 Representatives from the GOI notified Commerce that they were unable to schedule consultations prior to the deadline for initiation. Commerce has offered the GOI the opportunity to meet after initiation. 15

Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product, 16 they do so for different purposes and pursuant to a separate and distinct authority. In addition, Commerce's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law. 17

Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” ( i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition).

With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of the investigation. 18 Based on our analysis of the information submitted on the record, we have determined that organic soybean meal, as defined in the scope, constitutes a single domestic like product, and we have analyzed industry support in terms of that domestic like product. 19

In determining whether the petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the appendix to this notice. To establish industry support, the petitioners provided their own production of the domestic like product in 2020. 20 To estimate total production of the domestic like product for the entire U.S. industry, the petitioners relied on production data from a report prepared by Agromeris, LLC (Agromeris), a consulting firm that focuses on the food and agricultural industry. 21 We relied on data provided by the petitioners for purposes of measuring industry support. 22

Our review of the data provided in the Petition, the General Issues Amendment, and other information readily available to Commerce indicates that the petitioners have established industry support for the Petition. First, the Petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, Commerce is not required to take further action in order to evaluate industry support ( e.g., polling). 23 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petition account for at least 25 percent of the total production of the domestic like product. 24 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition. 25 Accordingly, Commerce determines that the Petition was filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act. 26

Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India materially injure, or threaten material injury to, a U.S. industry.

The petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act. 27

The petitioners contend that the industry's injured condition is illustrated by a significant and increasing volume of subject imports; reduced market share; underselling and price depression and suppression; lost sales and revenues; reduced levels of capacity utilization; declining sales and profitability; and mill curtailments and closures. 28 We assessed the allegations and supporting evidence regarding material injury, threat of material injury, causation, as well as negligibility, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation. 29

Based upon the examination of the Petition and supplemental responses, we find that it meets the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of Organic soybean meal from India benefit from countervailable subsidies conferred by the GOI. Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on all 50 alleged programs. For a full discussion of the basis for our decision to initiate on each program, see the Initiation Checklist. A public version of the initiation checklist for this investigation is available on ACCESS. In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.

In the Petition, the petitioners named 19 companies in India as producers/exporters of organic soymeal. 30 In the event Commerce determines that the number of exporters or producers in any individual case is large such that Commerce cannot individually examine each company based upon its resources, where appropriate, Commerce typically selects mandatory respondents in that case based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States (HTSUS) numbers listed in the “Scope of the Investigations,” in the appendix. There are two HTSUS subheadings in the scope of this investigation, 1208.10.0010 and 2304.00.0000; subheading 2304.00.0000 covers imports of both organic and non-organic soybean meal. 31 Therefore, we cannot rely on CBP entry data in selecting respondents. We intend to issue quantity and value (Q&V) questionnaires to each potential respondent for which the petitioners have provided a complete address.

Producers/exporters of organic soybean meal from India that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain the Q&V questionnaire from E&C's website at https://www.trade.gov/ec-adcvd-case-announcements. Responses to the Q&V questionnaire must be submitted by the relevant Indian producers/exporters no later than 5:00 p.m. ET on May 5, 2021. All Q&V responses must be filed electronically via ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the deadline noted above. Commerce intends to finalize its decisions regarding respondent selection within 20 days of publication of this notice.

In accordance with section 702(b)(4)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the GOI via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).

Commerce will notify the ITC of its initiation, as required by section 702(d) of the Act.

The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that subject imports are materially injuring or threatening material injury to a U.S. industry. 32 A negative ITC determination will result in the investigation being terminated. 33 Otherwise, this CVD investigation will proceed according to the statutory and regulatory time limits.

On March 8, 2021, Commerce published its affirmative final determinations in the less-than-fair-value (LTFV) investigations of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey. 1 On April 20, 2021, the ITC notified Commerce of its final determinations, pursuant to section 735(d) of the Tariff Act of 1930, as amended (the Act), that an industry in the United States is materially injured within the meaning of section 735(b)(1)(A)(i) of the Act by reason of LTFV imports of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey, and its negative critical circumstances finding with respect to dumped imports of aluminum sheet from Indonesia. 2

The products covered by these orders are aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey. For a complete description of the scope of these orders, see the appendix to this notice.

On April 20, 2021, in accordance with section 735(d) of the Act, the ITC notified Commerce of its final determinations in these investigations, in which it found that an industry in the United States is materially injured by reason of imports of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey. 3 Therefore, in accordance with section 735(c)(2) of the Act, Commerce is issuing these antidumping duty orders. Because the ITC determined that imports of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey are materially injuring a U.S. industry, unliquidated entries of such merchandise from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey, entered or withdrawn from warehouse for consumption, are subject to the assessment of antidumping duties.

Therefore, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey. With the exception of entries occurring after the expiration of the provisional measures period and before publication of the ITC's final affirmative injury determinations, as further described below, antidumping duties will be assessed on unliquidated entries of aluminum sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan, and Turkey entered, or withdrawn from warehouse, for consumption, on or after October 15, 2020, the date of publication of the Preliminary Determinations. 4

Commerce published the Preliminary Results of this administrative review on December 10, 2020. For a history of events that occurred since the Preliminary Results, see the Issues and Decision Memorandum. 1 On March 23, 2021, Commerce extended the deadline for the final results of this administrative review. The revised deadline for the final results of this administrative review is now April 30, 2021. 2 Commerce conducted this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).

The merchandise covered by the order is steel flanges. For a complete description of the scope of the order, see the Issues and Decision Memorandum.

All issues raised in interested parties' briefs are addressed in the Issues and Decision Memorandum accompanying this notice. A list of the issues raised by interested parties, and to which Commerce responded in the Issues and Decision Memorandum, is provided in Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/ .

Based on comments received and record evidence, Commerce made certain changes to the Preliminary Results. These changes are explained in the Issues and Decision Memorandum.

For the companies not selected for individual review, because the rates calculated for Norma (India) Ltd. (Norma) and R.N. Gupta & Co. Ltd (RNG) are above de minimis and not based entirely on facts available, we applied a subsidy rate based on a weighted-average of the subsidy rates calculated for Norma and RNG using publicly ranged sales data submitted by the respondents. 3 This is consistent with the methodology that we would use in an investigation to establish the all-others rate, pursuant to section 705(c)(5)(A) of the Act.

Background

In accordance with section 705(d) of the Tariff Act of 1930, as amended (the Act), on March 8, 2021, Commerce published its affirmative final determinations that countervailable subsidies are being provided to producers and exporters of aluminum sheet from Bahrain, India, and Turkey. 1 On April 20, 2021, the ITC notified Commerce of its affirmative final determinations that an industry in the United States is materially injured within the meaning of section 705(b)(1)(A)(i) of the Act, by reason of subsidized imports of subject merchandise from Bahrain, India, and Turkey, and its negative critical circumstances finding with respect to imports of aluminum sheet from Turkey. 2

The products covered by these orders are aluminum sheet from Bahrain, India, and Turkey. For a complete description of the scope of these orders, see the appendix to this notice.

On April 20, 2021, in accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified Commerce of its final determinations in these investigations, in which it found that an industry in the United States is materially injured by reason of subsidized imports of aluminum sheet from Bahrain, India, and Turkey. 3 Therefore, in accordance with section 705(c)(2) of the Act, Commerce is issuing these countervailing duty orders. Because the ITC determined that imports of aluminum sheet from Bahrain, India, and Turkey are materially injuring a U.S. industry, unliquidated entries of such merchandise from Bahrain, India, and Turkey, entered or withdrawn from warehouse for consumption, are subject to the assessment of countervailing duties.

Therefore, in accordance with section 706(a) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, countervailing duties for all relevant entries of aluminum sheet from Bahrain, India, and Turkey. With the exception of entries occurring after the expiration of the provisional measures period and before the publication of the ITC's final affirmative injury determinations, as further described below, countervailing duties will be assessed on unliquidated entries of aluminum sheet from Bahrain, India, and Turkey entered, or withdrawn from warehouse, for consumption on or after August 14, 2020, the date of publication of the Preliminary Determinations. 4

In the investigation of aluminum sheet from Turkey, because Commerce's preliminary determination was negative with respect to Teknik Aluminyum Sanayi A.S. (Teknik), we did not instruct CBP to suspend liquidation of Teknik's entries of aluminum sheet from Turkey from the date of the Preliminary Determinations. Commerce's final determination concerning aluminum sheet from Turkey, however, was affirmative with respect to Teknik and, therefore, we directed CBP to suspend liquidation for Teknik's entries from the date of publication of the Turkey Final Determination. 5 Accordingly, with respect to Teknik, countervailing duties will continue to be assessed on unliquidated entries of aluminum sheet entered, or withdrawn from warehouse, for consumption on or after March 8, 2021, the date of publication of the Turkey Final Determination.

In accordance with section 706 of the Act, Commerce will instruct CBP to reinstitute (or continue) the suspension of liquidation of aluminum sheet from Bahrain, India, and Turkey, effective on the date of publication of the ITC's final affirmative injury determination in the Federal Register , and to assess, upon further instruction by Commerce, pursuant to section 706(a)(1) of the Act, countervailing duties for each entry of the subject merchandise in an amount based on the net countervailable subsidy rates below. On or after the date of publication of the ITC's final injury determination in the Federal Register , CBP must require, at the same time as importers would deposit estimated normal customs duties on this merchandise, a cash deposit equal to the rates listed in the table below. These instructions suspending liquidation will remain in effect until further notice. The all-others rate applies to all producers or exporters not specifically listed, as appropriate.

With regard to the ITC's negative critical circumstances determination on imports of aluminum sheet from Turkey, we will instruct CBP to lift suspension and to refund any cash deposits made to secure the payment of estimated countervailing duties with respect to entries of aluminum sheet from Turkey, entered or withdrawn from warehouse, for consumption on or after May 16, 2020 ( i.e., 90 days prior to the date of publication of the Turkey Preliminary Determination ), but before August 14, 2020 ( i.e., the date of the publication of the Turkey Preliminary Determination ).

Section 703(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months. In the underlying investigations, Commerce published the Preliminary Determinations on August 14, 2020. Therefore, the four-month period beginning on the date of the publication of the Preliminary Determinations ended on December 11, 2020.

In accordance with section 703(d) of the Act, we instructed CBP to terminate the suspension of liquidation and to liquidate, without regard to countervailing duties, unliquidated entries of aluminum sheet from Bahrain, India, and Turkey entered, or withdrawn from warehouse, for consumption after December 11, 2020, the final day on which the provisional measures were in effect, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register . 9 Suspension of liquidation will resume on the date of publication of the ITC's final determination in the Federal Register .

This notice constitutes the countervailing duty orders with respect to aluminum sheet from Bahrain, India, and Turkey pursuant to section 706(a) of the Act. Interested parties can find a list of countervailing duty orders currently in effect at http://enforcement.trade.gov/stats/iastats1.html.

These orders are issued and published in accordance with section 706(a) of the Act and 19 CFR 351.211(b).

On March 31, 2021, the Department of Commerce (Commerce) received an antidumping duty (AD) petition concerning imports of organic soybean meal from India, filed in proper form on behalf of the Organic Soybean Processors of America and eight domestic processors of organic soybean meal. 1 On April 6, 2021, the petitioners filed an amendment to Volume I of the Petition and “a change of petitioner” status on behalf of the Organic Soybean Processors of America, stating that the petitioners now consisted of the Organic Soybean Processors of America and seven domestic processors (collectively, the petitioners). 2 The Petition was accompanied by a countervailing duty (CVD) petition concerning imports of organic soybean meal from India. 3

On April 5, 2021, Commerce requested supplemental information pertaining to certain aspects of the Petition. 4 The petitioners filed responses to these requests on April 7, 2021. 5

Agenda

The Skate Advisory Panel will receive an update on progress and make recommendations for a range of possession limit alternatives for the Skate 2022-23 Specifications. They will also receive an update on progress and make recommendations for measures for intermediate possession limits, the federal skate permit, at-sea monitoring, Vessel Monitoring Systems, and other aspects of Amendment 5 to the Northeast Skate Complex Fishery Management Plan. The panel will make recommendations for 2021-25 Council Research Priorities and Data Needs. Other business may be discussed, as necessary.

Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

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

Agenda

The Skate Committee will receive an update on progress and make recommendations for a range of possession limit alternatives in the Skate 2022-23 Specifications. The Committee will also receive an update on progress and make recommendations for measures for intermediate possession limits, the federal skate permit, at-sea monitoring, Vessel Monitoring Systems, and other aspects of Amendment 5 to the Northeast Skate Complex Fishery Management Plan. They will also make recommendations for 2021-25 Council Research Priorities and Data Needs. Other business may be discussed, as necessary.

Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

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

The 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 in shorthand 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.

On March 13, 2020, NMFS received an application from the ACOE requesting an IHA to take small numbers of three species of pinnipeds incidental to resetting and replacing stone and dredging associated with the San Luis Breakwater Repair Project. ACOE subsequently notified us that funding, workload and other issues led them to delay the project 1 year. A revised application was sent on February 18, 2021 and the application process was reinitiated. The application was deemed adequate and complete on March 1, 2021. ACOE's request is for take of a small number of three species of marine mammals by Level B harassment. Neither the ACOE nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

The project consists of the repair of a deteriorating breakwater at Port San Luis, California. Repair work includes minor excavation of shoaled sediment (~ 15,000 cubic yards (11,470 cubic meters)) adjacent to the leeward side of the breakwater to create adequate depths for barges and support boats to access the breakwater for the repair. Approximately 29,000 tons (26,310 metric tons) of existing stone would need to be reset and 60,000 tons (54,430 metric tons) of new stone would be placed to restore the most heavily damaged portion of the breakwater. The project is expected to take no more than 174 work days over 7 months. The sounds and visual disturbance from the work can result in take of marine mammals through behavioral harassment and/or auditory injury. A detailed description of the planned project is provided in the Federal Register notice for the proposed IHA (86 FR 14579; March 17, 2021). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

A notice of NMFS's proposal to issue an IHA to the ACOE was published in the Federal Register on March 17, 2021 (86 FR 14579). That notice described, in detail, the ACOE's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received public comment from one commenter. The U.S. Geological Survey noted they have “no comment at this time”.

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs; https://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 ( https://www.fisheries.noaa.gov/find-species ).

Table 1 lists all species or stocks for which take is expected and authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Pacific SARs and draft SARs ( e.g., Carretta et al. 2019, 2020).

A detailed description of the species likely to be affected by the project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (86 FR 14579; March 17, 2021); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts.

The effects of underwater noise from the ACOE's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of proposed IHA (86 FR 14579; March 17, 2021) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the ACOE's construction on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (86 FR 14579; March 17, 2021).

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

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

Authorized takes would primarily be by Level B harassment, as use of the acoustic source ( i.e., rock setting) and visual disturbance has the potential to result in disruption of behavioral patterns for individual marine mammals. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized. The mitigation and monitoring measures are expected to minimize the severity of the taking to the extent practicable.

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

Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available ( e.g., previous monitoring results or average group size). Due to the lack of marine mammal density for some species, NMFS relied on local occurrence data and group size to estimate take. For activities like this with visual disturbance impacts we must also estimate the area or space within which harassment is likely to occur. Below, we describe the factors considered here in more detail and present the take estimate.

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

Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source ( e.g., frequency, predictability, duty cycle), the environment ( e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 decibel (dB) re 1 microPascal (μPa) (root mean square (rms)) for continuous ( e.g., vibratory pile-driving) and above 160 dB re 1 μPa (rms) for non-explosive impulsive ( e.g., impact pile driving) or intermittent ( e.g., scientific sonar) sources. The ACOE's proposed activity includes the use of continuous (general construction equipment and machinery) and impulsive (rock setting) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.

For in-air sounds, NMFS predicts that harbor seals exposed above received levels of 90 dB re 20 μPa (rms) will be behaviorally harassed, and other pinnipeds will be harassed when exposed above 100 dB re 20 μPa (rms).

Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The ACOE's activity includes the use of impulsive (rock setting) and non-impulsive (general construction) sources.

These thresholds are provided in Table 2. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.

The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project ( i.e., rock setting and sediment removal).

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:

The recommended TL coefficient for most nearshore environments is the, practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the ACOE's proposed activity.

In order to calculate distances to the Level A harassment and Level B harassment sound thresholds for this project, NMFS used acoustic monitoring data collected by the ACOE. In February 2019 a team of researchers from the ACOE Los Angeles District and Engineer Research and Development Center traveled to a breakwater repair project at the Port of Long Beach, CA to collect representative sound data in anticipation of the Port San Luis breakwater project. Maintenance activities on the Long Beach, CA breakwater provided near identical conditions to the proposed work activities at Port San Luis, but the Long Beach site has no marine mammals nearby. At Long Beach they collected in-air and in-water sound recordings from both the rock setting and other construction equipment sounds. They also recorded ambient sound data at San Luis Obispo, CA near the breakwater to be used as a baseline measurement for proposed repair work. The analysis of the sound files provided by the ACOE to determine source levels relevant to marine mammal exposures contained some methods that we did not entirely concur with, but our acoustics expert (Dr. Shane Guan) was able to determine from them that in-water noise would not exceed marine mammal thresholds beyond 10 meters (m) (33 feet) from the source. He was also able to determine that in-air noise would not exceed the pinniped in-air thresholds at a distance greater than 100 m (328 feet) from the source.

During the above-mentioned acoustic surveys of the similar breakwater repair work at the Port of Long Beach pinnipeds maintained a minimum approximate 150 foot (46 m) distance from construction equipment and personnel (Natalie Martinez-Takeshita, ACOE, personal communication 2020). Observations on a past breakwater repair project in Redondo Harbor, California showed that pinnipeds that flushed from distances up to 100 m (Natalie Martinez-Takeshita, ACOE, personal communication 2021). As noted above the construction barge could be up to 260 feet (80 m) long with activity occurring simultaneously at either end as well as the full reach of the crane. Based on the above information, we conservatively estimate a 200 m (660 ft) radius potential effect zone for Level B harassment of pinnipeds by visual disturbance. This equals or exceeds any effect radius from in-air noise. Given the breakwater is 2,400 feet (730 m) long, this means large portions of the breakwater should be undisturbed and available for animals to re- haulout on any given construction day.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Take by Level B harassment is authorized and summarized in Table 5.

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

Merkel and Associates (2019) conducted three marine mammal surveys of the breakwater in 2018 as part of the preparation for this project. The surveys were in June, July and September. The focus was on other taxa besides marine mammals. Their most detailed marine mammal survey was in June when pinnipeds were identified to species level. They identified California sea lions and Steller sea lions hauled out on the breakwater, with 94 percent of the animals being California sea lions. Greater densities of pinnipeds were observed hauled out at the south eastern end of the breakwater, and the greatest densities were consistently observed at the most seaward end of the breakwater.

In further anticipation of this project, the ACOE conducted additional approximately monthly marine mammal surveys, weather permitting, in the project area in 2019 to estimate breakwater abundance levels to use to estimate take. The 2019 surveys did not distinguish between California sea lions and Steller seals and assumed the Merkel and Associates (2019) determination that 94 percent of the animals were California sea lions and 6 percent were Steller sea lions applied during 2019 as well. While harbor seals were not observed hauled out on the breakwater, the ACOE did observe them hauled out at the low lying rocky benches of Smith Island (approximately 400 m (1,300 feet) from the nearest repair area). They were also observed in the water adjacent to the breakwater on at least one occasion. No other marine mammal species were observed in the project area.

The ACOE surveys from 2019 found that pinnipeds were present on the breakwater from April through December (Table 3), likely due to lower wave energy at those times. The highest number were present from June through September. We averaged the three highest surveys (bolded in the table) during the likely work period to determine that an average of 321.33 animals were present daily during the spring to fall construction season. Using the results of Merkel and Associates (2019) June 2018 survey we estimated those 321.33 animals were comprised of 302.05 California sea lions and 19.29 Steller sea lions per day. We used these numbers to estimate take for these two species for the project by multiplying these daily take estimates by the total number of work days (174). For California sea lions this is 302.05 × 174 = 52,557 takes, and for Steller sea lions this is 19.28 × 174 = 3,355 takes.

While harbor seals were not observed hauled out on the breakwater, they were observed hauled out at the low lying rocky benches of Smith Island and in the water near the breakwater during the ACOE 2019 surveys. Estimated daily abundance for harbor seals was also calculated using the three highest abundance surveys from 2019 survey data from the likely construction season (late March through September, bolded in Table 4). The average abundance in the project area was 10.33 seals per day. We used this average and calculated total take for the project by multiplying by the total number of work days (174). For harbor seals this is 10.33 × 174 = 1,797 takes.

The above-calculated take estimates are likely to be conservative as some animals may habituate to the project and regularly haul out on the parts of the breakwater where there is no construction activity, where construction activity has finished, or they may move to other nearby haulout locations. Moreover, because the main area of effect on any given day is no more than 300 m of breakwater length, the breakwater is much longer than this, most pinnipeds are concentrated at the far 200 m of the breakwater, and the project will begin at the landward end of the breakwater, far fewer animals will likely be taken in the early stages of the project.

In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

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

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

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

The following mitigation measures are in the IHA:

• Monitoring must take place from 30 minutes prior to initiation of construction activity ( i.e., pre-start clearance monitoring) through 30 minutes post-completion of construction activity.

• The ACOE must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.

• Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead Protected Species Observer (PSO) to determine the shutdown zones clear of marine mammals. Construction may commence when the determination is made.

• If construction is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.

• The Holder must use soft start techniques. Soft start requires contractors and equipment to slowly approach the work site creating a visual disturbance allowing animals in close proximity to construction activities a chance to leave the area prior to stone resetting or new stone placement. Contractors shall avoid walking or driving equipment through the seal haul-out. A soft start must be implemented at the start of each day's construction activity and at any time following cessation of activity for a period of 30 minutes or longer.

• Vessels would approach the breakwater perpendicular to the area they need to be as much as is feasible to minimize interactions with pinnipeds on or near the breakwater.

• The Holder must ensure that construction supervisors and crews, the monitoring team, and relevant ACOE staff are trained prior to the start of construction activity subject to this IHA, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.

• Construction activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within a 200 m Level B harassment zone.

• Construction work will start at the landward end of the breakwater as much as feasible.

Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means 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.

In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

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

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

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

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

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

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

• Mitigation and monitoring effectiveness.

Marine mammal monitoring must be conducted in accordance with the Monitoring section of the application and Section 5 of the IHA. These observers must record all observations of marine mammals, regardless of distance from the construction activity. Marine mammal monitoring during construction activity must be conducted by NMFS-approved PSOs in a manner consistent with the following:

• Independent PSOs ( i.e., not construction personnel) who have no other assigned tasks during monitoring periods must be used;

• At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;

• Other PSOs may substitute education (degree in biological science or related field) or training for experience; and

• The ACOE must submit PSO Curriculum Vitae for approval by NMFS prior to the onset of pile driving.

PSOs must have the following additional qualifications:

• 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 prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); 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.

One PSO will be employed. PSO location will provide an unobstructed view of all water within the shutdown zone, and as much of the Level B harassment zones as possible. PSO location is as follows:

(1) At the crane barge site or best vantage point practicable to monitor the shutdown zones; and

Monitoring will be conducted 30 minutes before, during, and 30 minutes after construction activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from construction activity.

A draft marine mammal monitoring report will be submitted to NMFS within 90 calendar days after the completion of pile driving and removal activities, or 60 calendar days prior to the requested issuance of any subsequent IHAs for construction activity at the same location, whichever comes first. A final report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. All draft and final marine mammal and acoustic monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and Dwayne.Meadows@noaa.gov. Specifically, the report must include:

• Dates and times (begin and end) of all marine mammal monitoring.

• Construction activities occurring during each daily observation period, including how many and what type of rocks were set or reset and total duration of rock setting.

• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance.

• PSO locations during marine mammal monitoring.

• Upon observation of a marine mammal, the following information:

○ PSO who sighted the animal and PSO location and activity at time of sighting;

○ Time of sighting;

○ Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;

○ Distance and bearing of each marine mammal observed to the rock setting for each sighting (if rock setting was occurring at time of sighting);

○ Estimated number of animals (min/max/best);

○ Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);

○ Animal's closest point of approach and estimated time spent within the harassment zone;

○ Number of disturbances, by species and age, according to a three-point scale of disturbance (see Table 6). Observations of disturbance Levels 2 and 3 must be recorded as takes. Description of any additional marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling;

• Detailed information about implementation of any mitigation ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal, if any.

The ACOE must submit all PSO datasheets and/or raw sighting data. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.

In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the ACOE must report the incident to the Office of Protected Resources (OPR), NMFS and to the regional stranding coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the ACOE must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the IHA. The IHA-holder must not resume their activities until notified by NMFS. 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” through harassment, NMFS considers other factors, such as the likely nature of any responses ( e.g., intensity, duration), the context of any responses ( e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline ( e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

To avoid repetition, this introductory discussion of our analyses applies to all of the species listed in Table 5, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Construction activities have the potential to disturb or displace marine mammals. Specifically, the project activities may result in take, in the form of Level B harassment from in-air sounds and visual disturbance generated from rock setting and sediment removal. Potential takes could occur if individuals are present in the ensonified or disturbance zone(s) when these activities are underway.

The takes from Level B harassment would be due to potential behavioral disturbance or TTS. No mortality or PTS is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Mitigation section).

For all species and stocks, take would occur within a very limited, confined area (Port San Luis harbor) of any given stock's range. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Behavioral responses of marine mammals to construction at the project site, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock and other construction projects near pinnipeds) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day, any harassment would be temporary. There are no other areas or times of known biological importance for any of the affected species.

In addition, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks' ability to recover. 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.

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

• No mortality is anticipated or authorized.

• No Level A harassment is anticipated or authorized.

• No biologically important areas have been identified within the project area.

• For all species, the harbor is a very small and peripheral part of their range.

• The ACOE would implement mitigation measures such as vessel avoidance and slow down, proceeding from the low density to high density areas to increase habituation, soft-starts, and shut downs; and

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

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

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

The amount of take NMFS authorizes of all species or stocks is below one third of the estimated stock abundance. These are all likely conservative estimates because they assume all takes are of different individual animals which is likely not the case as most stocks do not move in or out of the area frequently. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.

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

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

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

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.

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

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

NMFS has issued an IHA to the ACOE for the potential harassment of small numbers of three marine mammal species incidental to the Port San Luis Breakwater Repair project in Avila Beach, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

The SEDAR Steering Committee provides guidance and oversight of the SEDAR stock assessment program and manages assessment scheduling. The items of discussion for this meeting are as follows:

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

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

Note: The times and sequence specified in this agenda are subject to change.

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 in shorthand 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 review our proposed action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which NMFS have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

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

On November 2, 2020, NMFS received a request from Garden State for an IHA to take marine mammals incidental to marine site characterization surveys offshore of Delaware and New Jersey in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0482) and along potential export cable routes (ECRs) to a landfall location in Delaware and New Jersey. Following NMFS' review of the draft application, a revised version was submitted on March 30, 2021. The application was deemed adequate and complete on April 5, 2021. Garden State's request is for take of a small number of 16 species of marine mammals by Level B harassment only. Neither Garden State nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

As part of its overall marine site characterization survey operations, Garden State proposes to conduct high-resolution geophysical (HRG) surveys in the Lease Area and along potential ECRs to landfall locations in Delaware and New Jersey.

The purpose of the marine site characterization surveys are to obtain a baseline assessment of seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of offshore wind facility development. Surveys are also conducted to support engineering design and to map unexploded ordnances. Underwater sound resulting from Garden State's proposed site characterization survey activities, specifically HRG surveys, has the potential to result in incidental take of marine mammals in the form of Level B harassment.

The estimated duration of HRG survey activity is expected to be up to 350 survey days over the course of a single year (“survey day” defined as a 24-hour (hr) activity period), with 200 vessel survey days expected in the Lease Area and 150 vessel survey days expected in the ECR area. This schedule is based on 24-hour operations and includes potential down time due to inclement weather. Although some shallow-water locations may be surveyed by smaller vessels during daylight hours only, the estimated number of survey days assumes uniform 24-hr operations.

Garden State proposes to start survey activity as soon as possible in spring 2021. The IHA would be effective for one year from the date of issuance.

The proposed survey activities will occur within the Project Area which includes the Lease Area and potential ECRs to landfall locations, as shown in Figure 1. The Lease Area is approximately 284 square kilometers (km 2 ) and is within the Delaware Wind Energy Area (WEA) of the Bureau of Ocean Energy Management (BOEM) Mid-Atlantic planning area. Water depths in the Lease Area range from 15 meters (m) to 30 m. Water depths in the ECR area extend from the shoreline to approximately 30 m.

Garden State proposed to conduct HRG survey operations, including multibeam depth sounding, seafloor imaging, and shallow and medium penetration sub-bottom profiling. The HRG surveys may be conducted using any or all of the following equipment types: Side scan sonar, multibeam echosounder, magnetometers and gradiometers, parametric sub-bottom profiler (SBP), CHIRP SBP, boomers, or sparkers. As many as three vessels may be engaged in HRG surveying activities during Garden State's overall site characterization efforts with up to two working concurrently in the Lease Area and one vessel working in the ECR area. Garden State assumes that HRG survey operations would be conducted 24 hours per day, with an assumed daily survey distance of 70 km. Vessels would generally conduct survey effort at a transit speed of approximately 4 knots (kn), which equates to 110 km per 24-hr period. However, based on past survey experience ( i.e., knowledge of typical daily downtime due to weather, system malfunctions, etc.) Garden State assumes 70 km as the average daily distance. On this basis, a total of 350 survey days (200 survey days in the Lease Area and 150 survey days in the ECR area) are expected. In certain shallow-water areas, vessels may conduct survey effort during daylight hours only, with a corresponding assumption that the daily survey distance would be halved (35 km). However, for purposes of analysis all survey days are assumed to cover the maximum 70 km. A maximum of two vessels would operate concurrently in the Lease Area, with an additional third vessel surveying the ECRs.

Acoustic sources planned for use during HRG survey activities proposed by Garden State include the following:

• Shallow penetration, non-impulsive, non-parametric SBPs ( i.e., CHIRP SBPs) are used to map the near-surface stratigraphy (top 0 to 10 m) of sediment below seabed. A CHIRP system emits signals covering a frequency sweep from approximately 2 to 20 kHz over time. The frequency range can be adjusted to meet project variables. These sources are typically mounted on a pole rather than towed, reducing the likelihood that an animal would be exposed to the signal.

• Medium penetration, impulsive sources ( i.e., boomers and sparkers) are used to map deeper subsurface stratigraphy. A boomer is a broadband source operating in the 3.5 Hz to 10 kHz frequency range. Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz. These sources are typically towed behind the vessel.

Operation of the following survey equipment types is not reasonably expected to result in take of marine mammals and will not be discussed further beyond the brief summaries provided below.

• Non-impulsive, parametric SBPs are used for providing high data density in sub-bottom profiles that are typically required for cable routes, very shallow water, and archaeological surveys. These sources generate short, very narrow-beam (1° to 3.5°) signals at high frequencies (generally around 85-100 kHz). The narrow beamwidth significantly reduces the potential that a marine mammal could be exposed to the signal, while the high frequency of operation means that the signal is rapidly attenuated in seawater. These sources are typically deployed on a pole rather than towed behind the vessel.

• Acoustic corers are seabed-mounted sources with three distinct sound sources: A high-frequency parametric sonar, a high-frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth is narrow (3.5° to 8°) and the source is operated roughly 3.5 m above the seabed with the transducer pointed directly downward.

• Ultra-short baseline (USBL) positioning systems are used to provide high accuracy ranges by measuring the time between the acoustic pulses transmitted by the vessel transceiver and a transponder (or beacon) necessary to produce the acoustic profile. It is a two-component system with a pole-mounted transceiver and one or several transponders mounted on other survey equipment. USBLs are expected to produce extremely small acoustic propagation distances in their typical operating configuration.

• Multibeam echosounders (MBESs) are used to determine water depths and general bottom topography. The proposed MBESs all have operating frequencies >180 kHz and are therefore outside the general hearing range of marine mammals.

• Side scan sonars (SSS) are used for seabed sediment classification purposes and to identify natural and man-made acoustic targets on the seafloor. The proposed SSSs all have operating frequencies >180 kHz and are therefore outside the general hearing range of marine mammals.

Table 1 identifies representative survey equipment with the expected potential to result in exposure of marine mammals and potentially result in take. The make and model of the listed geophysical equipment may vary depending on availability and the final equipment choices will vary depending upon the final survey design, vessel availability, and survey contractor selection.

Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://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' website ( https://www.fisheries.noaa.gov/find-species ).

Table 2 lists all species or stocks for which take is expected and proposed to be authorized for this action, 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, NMFS follows the Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2019 SARs (Hayes et al., 2020) and draft 2020 SARS available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

As indicated above, all 16 species (with 17 managed stocks) in Table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. In addition to what is included in Sections 3 and 4 of the application, the SARs, and NMFS' website, further detail informing the baseline for select species ( i.e., information regarding current Unusual Mortality Events (UME) and important habitat areas) is provided below.

Elevated North Atlantic right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast. This event has been declared an UME, with human interactions, including entanglement in fixed fishing gear and vessel strikes, implicated in at least 15 of the mortalities thus far. As of April 16, 2021, a total of 34 confirmed dead stranded whales (21 in Canada; 13 in the United States) have been documented. The cumulative total number of animals in the North Atlantic right whale UME has been updated to 49 individuals to include both the confirmed mortalities (dead stranded or floaters) (n=34) and seriously injured free-swimming whales (n=15) to better reflect the confirmed number of whales likely removed from the population during the UME and more accurately reflect the population impacts. More information is available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.

The proposed survey area is part of a migratory corridor Biologically Important Area (BIA) for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of New Jersey, the migratory BIA extends from the coast to beyond the shelf break. This important migratory area is approximately 269,488 km 2 in size (compared with the approximately 6,930 km 2 of total estimated Level B harassment ensonified area associated with the 350 planned survey days) and is comprised of the waters of the continental shelf offshore the East Coast of the United States, extending from Florida through Massachusetts. NMFS' regulations at 50 CFR part 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs were developed to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds. A portion of one SMA, which occurs off the mouth of Delaware Bay, overlaps spatially with a section of the proposed survey area. The SMA which occurs off the mouth of Delaware Bay is active from November 1 through April 30 of each year.

Following a NMFS evaluation of the status of the species, on September 8, 2016, NMFS identified 14 distinct population segments (DPS) of humpback whales, and listed four DPSs as endangered and one DPS as threatened (81 FR 62260; September 8, 2016). The remaining nine DPSs were not listed. The West Indies DPS, which is not listed under the ESA, is the only DPS of humpback whale that is expected to occur in the survey area. Bettridge et al. (2015) estimated the size of this population at 12,312 (95 percent CI 8,688-15,954) whales in 2004-05, which is consistent with previous population estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; Smith et al., 1999) and the increasing trend for the West Indies DPS (Bettridge et al., 2015). Whales occurring in the survey area are considered to be from the West Indies DPS, but are not necessarily from the Gulf of Maine feeding population managed as a stock by NMFS. Barco et al. (2002) estimated that, based on photo-identification, only 39 percent of individual humpback whales observed along the mid- and south Atlantic U.S. coast are from the Gulf of Maine stock.

Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. Partial or full necropsy examinations have been conducted on approximately half of the 147 known cases (as of March 8, 2021). Of the whales examined, about 50 percent had evidence of human interaction, either ship strike or entanglement. While a portion of the whales have shown evidence of pre-mortem vessel strike, this finding is not consistent across all whales examined and more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. More information is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Since January 2017, elevated minke whale mortalities have occurred along the Atlantic coast from Maine through South Carolina, with a total of 105 strandings (as of April 16, 2021). This event has been declared a UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings in several of the whales have shown evidence of human interactions or infectious disease, but these findings are not consistent across all of the whales examined, so more research is needed. More information is available at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.

Since July 2018, elevated numbers of harbor seal and gray seal mortalities have occurred across Maine, New Hampshire and Massachusetts. This event has been declared a UME. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers, therefore the UME investigation now encompasses all seal strandings from Maine to Virginia. Ice seals (harp and hooded seals) have also started stranding with clinical signs, again not in elevated numbers, and those two seal species have also been added to the UME investigation. A total of 3,152 reported strandings (of all species) had occurred from July 1, 2018, through March 13, 2020. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME. Information on this UME is available online at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (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. Marine mammal hearing groups and their associated hearing ranges are provided in Table 3.

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

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, five are classified as low-frequency cetaceans ( i.e., all mysticete species), eight are classified as mid-frequency cetaceans ( i.e., all delphinid species and the sperm whale), and one is classified as a high-frequency cetacean ( i.e., harbor porpoise).

This section includes a summary and discussion of the ways that Garden State's specified activity may impact marine mammals and their habitat. Detailed descriptions of the potential effects of similar specified activities have been provided in other recent Federal Register notices, including for survey activities using the same methodology, over a similar amount of time, and occurring within the same specified geographical region ( e.g., 82 FR 20563, May 3, 2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24, 2020; 85 FR 48179, August 10, 2020). No significant new information is available, and we refer the reader to these documents rather than repeating the details here. The Estimated Take section includes a quantitative analysis of the number of individuals that are expected to be taken by Garden State's activity. The Negligible Impact Analysis and Determination section considers the potential effects of the specified activity, 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 how those impacts on individuals are likely to impact marine mammal species or stocks.

This subsection 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 the summary of the potential effects of the specified activity on marine mammals. 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. 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 μPa 2 -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 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. 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. Sparkers and boomers produce pulsed signals with energy in the frequency ranges specified in Table 1. The amplitude of the acoustic wave emitted from sparker sources is equal in all directions ( i.e., omnidirectional), while other sources planned for use during the proposed surveys have some degree of directionality to the beam, as specified in Table 1. Other sources planned for use during the proposed survey activity ( e.g., CHIRP SBPs) should be considered non-pulsed, intermittent sources.

Underwater sound from active acoustic sources can include one or more of the following impacts: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking. The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure. Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007).

Animals in the vicinity of Garden State's proposed HRG survey activity are unlikely to incur even TTS due to the characteristics of the sound sources, which include relatively low source levels (176 to 205 dB re 1 µPa-m) and generally very short pulses and potential duration of exposure. These characteristics mean that instantaneous exposure is unlikely to cause TTS, as it is unlikely that exposure would occur close enough to the vessel for received levels to exceed peak pressure TTS criteria, and that the cumulative duration of exposure would be insufficient to exceed cumulative SEL criteria. Even for high-frequency cetacean species ( e.g., harbor porpoises), which have the greatest sensitivity to potential TTS, individuals would have to make a very close approach and also remain very close to vessels operating these sources in order to receive multiple exposures at relatively high levels, as would be necessary to cause TTS. Intermittent exposures—as would occur due to the brief, transient signals produced by these sources—require a higher cumulative SEL to induce TTS than would continuous exposures of the same duration ( i.e., intermittent exposure results in lower levels of TTS). Moreover, most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Kremser et al. (2005) noted that the probability of a cetacean swimming through the area of exposure when a sub-bottom profiler emits a pulse is small—because if the animal was in the area, it would have to pass the transducer at close range in order to be subjected to sound levels that could cause TTS and would likely exhibit avoidance behavior to the area near the transducer rather than swim through at such a close range. Further, the restricted beam shape of many of HRG survey devices planned for use (Table 1) makes it unlikely that an animal would be exposed more than briefly during the passage of the vessel.

Behavioral disturbance may include a variety of effects, including subtle changes in behavior ( e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors ( e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors. Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal.

In addition, sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest ( e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, navigation). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural ( e.g., snapping shrimp, wind, waves, precipitation) or anthropogenic ( e.g., shipping, sonar, seismic exploration) in origin. Marine mammal communications would not likely be masked appreciably by the acoustic signals given the directionality of the signals for most HRG survey equipment types planned for use (Table 1) and the brief period when an individual mammal is likely to be exposed.

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

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

An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus 2001; Laist et al., 2001; Jensen and Silber 2003; Vanderlaan and Taggart 2007). In assessing records with known vessel speeds, Laist et al. (2001) found a direct relationship between the occurrence of a whale strike and the speed of the vessel involved in the collision. The authors concluded that most deaths occurred when a vessel was traveling in excess of 24.1 km/h (14.9 mph; 13 kn). Given the slow vessel speeds (typically 4-5 knots) and predictable course necessary for data acquisition, ship strike is unlikely to occur during Garden State's proposed survey activities. Marine mammals would be able to easily avoid the survey vessel due to the slow vessel speed. Further, Garden State would implement measures ( e.g., protected species monitoring, vessel speed restrictions and separation distances; see Proposed Mitigation) set forth in the BOEM lease to reduce the risk of a vessel strike to marine mammal species in the survey area.

The HRG survey equipment will not contact the seafloor and does not represent a source of pollution. NMFS is not aware of any available literature on impacts to marine mammal prey from sound produced by HRG survey equipment. However, as the HRG survey equipment introduces noise to the marine environment, there is the potential for it to result in avoidance of the area around the HRG survey activities on the part of marine mammal prey. Any avoidance of the area on the part of marine mammal prey would be expected to be short term and temporary.

Because of the temporary nature of the disturbance, and the availability of similar habitat and resources ( e.g., prey species) in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. NMFS has preliminarily determined that impacts on marine mammal habitat from the proposed activities will be temporary, insignificant, and discountable.

The potential effects of Garden State's specified survey activity are expected to be limited to Level B behavioral harassment. No permanent or temporary auditory effects, or significant impacts to marine mammal habitat, including prey, are expected.

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

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

Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise from certain HRG acoustic sources. Based on the characteristics of the signals produced by the acoustic sources planned for use, Level A harassment (serious injury, and mortality) is neither anticipated, even absent mitigation, nor proposed to be authorized. Consideration of the anticipated effectiveness of the mitigation measures ( i.e., exclusion zones and shutdown measures), discussed in detail below in the Proposed Mitigation section, further strengthens the conclusion that Level A harassment is not a reasonably anticipated outcome of the survey activity. As described previously, no serious injury or mortality is anticipated or proposed to be authorized for this activity.

Generally speaking, NMFS estimates take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. NMFS notes that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available ( e.g., previous monitoring results or average group size). Below, NMFS describes the factors considered here in more detail and present the proposed take estimate.

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 be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

Level B Harassment —Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source ( e.g., frequency, predictability, duty cycle), the environment ( e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed ( i.e., Level B harassment) when exposed to underwater anthropogenic noise above received levels of 160 dB re 1 μPa (rms) for the impulsive sources ( i.e., boomers, sparkers) and non-impulsive, intermittent sources ( e.g., CHIRP SBPs) evaluated here for Garden State's proposed activity.

Level A Harassment —NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). For more information, see NMFS' 2018 Technical Guidance, which may be accessed at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Garden State's proposed activity includes the use of impulsive ( i.e., sparkers and boomers) and non-impulsive ( e.g., CHIRP SBP) sources. However, as discussed above, NMFS has concluded that Level A harassment is not a reasonably likely outcome for marine mammals exposed to noise through use of the sources proposed for use here, and the potential for Level A harassment is not evaluated further in this document. Please see Garden State's application for details of a quantitative exposure analysis exercise, i.e., calculated Level A harassment isopleths and estimated Level A harassment exposures. Maximum estimated Level A harassment isopleths were less than 3 m for all sources and hearing groups with the exception of an estimated 37 m zone and 17 m zone calculated for high-frequency cetaceans during use of the GeoPulse 5430 CHIRP SBP and the TB CHIRP III, respectively (see Table 1 for source characteristics). Garden State did not request authorization of take by Level A harassment, and no take by Level A harassment is proposed for authorization by NMFS.

NMFS has developed a user-friendly methodology for estimating the extent of the Level B harassment isopleths associated with relevant HRG survey equipment (NMFS, 2020). This methodology incorporates frequency and directionality to refine estimated ensonified zones. For acoustic sources that operate with different beamwidths, the maximum beamwidth was used, and the lowest frequency of the source was used when calculating the frequency-dependent absorption coefficient (Table 1).

NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate isopleth distances to harassment thresholds. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Table 1 shows the HRG equipment types that may be used during the proposed surveys and the sound levels associated with those HRG equipment types.

Results of modeling using the methodology described above indicated that, of the HRG survey equipment planned for use by Garden State that has the potential to result in Level B harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers would produce the largest Level B harassment isopleth (141 m; please see Table 4 of Garden State's application). Estimated Level B harassment isopleths associated with the boomer and CHIRP SBP systems planned for use are estimated as 25 and 36 m, respectively. Although Garden State does not expect to use sparker sources on all planned survey days, it proposes to assume for purposes of analysis that the sparker would be used on all survey days. This is a conservative approach, as the actual sources used on individual survey days may produce smaller harassment distances.

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

Habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) represent the best available information regarding marine mammal densities in the proposed survey area. The density data presented by Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-transect survey data from NMFS and other organizations and incorporates data from 8 physiographic and 16 dynamic oceanographic and biological covariates, and controls for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. These density models were originally developed for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In subsequent years, certain models have been updated based on additional data as well as certain methodological improvements. More information is available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. Marine mammal density estimates in the survey area (animals/km 2 ) were obtained using the most recent model results for all taxa (Roberts et al., 2016, 2017, 2018, 2020). The updated models incorporate additional sighting data, including sightings from the NOAA Atlantic Marine Assessment Program for Protected Species (AMAPPS) surveys.

For the exposure analysis, density data from Roberts et al. (2016, 2017, 2018, 2020) were mapped using a geographic information system (GIS). Density grid cells that included any portion of the proposed survey area were selected for all survey months (see Figure 3 in Garden State's application).

Densities from each of the selected density blocks were averaged for each month available to provide monthly density estimates for each species (when available based on the temporal resolution of the model products), along with the average annual density. Please see Tables 7 and 8 of Garden State's application for density values used in the exposure estimation process for the Lease Area and the potential ECRs, respectively. Note that no density estimates are available for the portion of the ECR area in Delaware Bay, so the marine mammal densities from the density models of Roberts et al. (2016, 2017, 2018, 2020) were assumed to apply to this area. Additional data regarding average group sizes from survey effort in the region was considered to ensure adequate take estimates are evaluated.

Here NMFS describes how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to Level B harassment thresholds are calculated, as described above. The maximum distance ( i.e., 141 m distance associated with sparkers) to the Level B harassment criterion and the estimated trackline distance traveled per day by a given survey vessel ( i.e., 70 km) are then used to calculate the daily ensonified area, or zone of influence (ZOI) around the survey vessel.

The ZOI is a representation of the maximum extent of the ensonified area around a sound source over a 24-hr period. The ZOI for each piece of equipment operating below 200 kHz was calculated per the following formula:

ZOIs associated with all sources with the expected potential to cause take of marine mammals are provided in Table 6 of Garden State's application. The largest daily ZOI (19.8 km 2 ), associated with the various sparkers proposed for use, was applied to all planned survey days.

Potential Level B harassment exposures are estimated by multiplying the average annual density of each species within either the Lease Area or potential ECR area by the daily ZOI. That product is then multiplied by the number of operating days expected for the survey in each area assessed, and the product is rounded to the nearest whole number. These results are shown in Table 4.

The take numbers shown in Table 4 are those requested by Garden State, with the exception of the two pilot whale species. Garden State requested 3 takes each of short-finned and long-finned pilot whales, by Level B harassment. However, the requested number of takes is below the mean group size for each of these species; therefore, NMFS proposes increasing to 10 (from 3, proposed by Garden State) the number of takes by Level B harassment for each of these species, based on published mean group sizes (Kenney and Vigness-Raposa, 2010). For all other species, NMFS concurs with the take numbers requested by Garden State and proposes to authorize them.

In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

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

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

(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations.

NMFS proposes the following mitigation measures be implemented during Garden State's proposed marine site characterization surveys.

Marine mammal exclusion zones (EZ) would be established around the HRG survey equipment and monitored by protected species observers (PSOs):

• 500 m EZ for North Atlantic right whales during use of all acoustic sources; and

• 100 m EZ for all marine mammals, with certain exceptions specified below, during operation of impulsive acoustic sources (boomer and/or sparker).

If a marine mammal is detected approaching or entering the EZs during the HRG survey, the vessel operator would adhere to the shutdown procedures described below to minimize noise impacts on the animals. These stated requirements will be included in the site-specific training to be provided to the survey team.

Garden State would implement a 30-minute pre-clearance period of the EZs prior to the initiation of ramp-up of HRG equipment. During this period, the EZ will be monitored by the PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is within its respective EZ. If a marine mammal is observed within an EZ during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective EZ or until an additional time period has elapsed with no further sighting ( i.e., 15 minutes for small odontocetes and seals, and 30 minutes for all other species).

When technically feasible, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or restart of survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment operation at full power.

A ramp-up would begin with the powering up of the smallest acoustic HRG equipment at its lowest practical power output appropriate for the survey. When technically feasible, the power would then be gradually turned up and other acoustic sources would be added.

Ramp-up activities will be delayed if a marine mammal(s) enters its respective exclusion zone. Ramp-up will continue if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting ( i.e., 15 minutes for small odontocetes and seals and 30 minutes for all other species).

Activation of survey equipment through ramp-up procedures may not occur when visual observation of the pre-clearance zone is not expected to be effective ( i.e., during inclement conditions such as heavy rain or fog).

An immediate shutdown of the impulsive HRG survey equipment would be required if a marine mammal is sighted entering or within its respective exclusion zone. The vessel operator must comply immediately with any call for shutdown by the Lead PSO. Any disagreement between the Lead PSO and vessel operator should be discussed only after shutdown has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed (i.e., 30 minutes for all other species).

If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the Level B harassment zone (36 m, non-impulsive; 141 m impulsive), shutdown would occur.

If the acoustic source is shut down for reasons other than mitigation ( e.g., mechanical difficulty) for less than 30 minutes, it may be activated again without ramp-up if PSOs have maintained constant observation and no detections of any marine mammal have occurred within the respective EZs. If the acoustic source is shut down for a period longer than 30 minutes and PSOs have maintained constant observation, then pre-clearance and ramp-up procedures will be initiated as described in the previous section.

The shutdown requirement would be waived for small delphinids of the following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops and seals. Specifically, if a delphinid from the specified genera or a pinniped is visually detected approaching the vessel ( i.e., to bow ride) or towed equipment, shutdown is not required. Furthermore, if there is uncertainty regarding identification of a marine mammal species ( i.e., whether the observed marine mammal(s) belongs to one of the delphinid genera for which shutdown is waived), PSOs must use best professional judgement in making the decision to call for a shutdown. Additionally, shutdown is required if a delphinid or pinniped detected in the exclusion zone and belongs to a genus other than those specified.

Garden State will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds and slow down or stop their vessels to avoid striking these species. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammals sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures would include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

• Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone based on the appropriate separation distance around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be third-party observers ( i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to (1) distinguish protected species from other phenomena and (2) broadly to identify a marine mammal as a right whale, other whale (defined in this context as sperm whales or baleen whales other than right whales), or other marine mammal.

• All vessels, regardless of size, must observe a 10-knot speed restriction in specific areas designated by NMFS for the protection of North Atlantic right whales from vessel strikes including seasonal management areas (SMAs) and dynamic management areas (DMAs) when in effect.

• All vessels greater than or equal to 19.8 m in overall length operating from November 1 through April 30 will operate at speeds of 10 knots or less while transiting to and from Project Area.

• All vessels must reduce their speed to 10 knots or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.

• All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action.

• All vessels must maintain a minimum separation distance of 100 m from sperm whales and all other baleen whales.

• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible ( e.g., for animals that approach the vessel).

• When marine mammals are sighted while a vessel is underway, the vessel shall take action as necessary to avoid violating the relevant separation distance ( e.g., attempt to remain parallel to the animal's course, avoid excessive speed or abrupt changes in direction until the animal has left the area). If marine mammals are sighted within the relevant separation distance, the vessel must reduce speed and shift the engine to neutral, not engaging the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained.

• These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.

Members of the monitoring team will consult NMFS North Atlantic right whale reporting system and Whale Alert, as able, for the presence of North Atlantic right whales throughout survey operations, and for the establishment of a DMA. If NMFS should establish a DMA in the Project Area during the survey, the vessels will abide by speed restrictions in the DMA.

Project-specific training will be conducted for all vessel crew prior to the start of a survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring, and reporting requirements. Prior to implementation with vessel crews, the training program will be provided to NMFS for review and approval. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew member understands and will comply with the necessary requirements throughout the survey activities.

Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

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

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

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

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

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

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

• Mitigation and monitoring effectiveness.

Visual monitoring will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Garden State would employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task and/or have demonstrated experience in the role of an independent PSO during an HRG survey. At least one PSO aboard each acoustic source vessel must have a minimum of 90 days at-sea experience working as a PSO during a geophysical survey, with no more than 18 months elapsed since the conclusion of the at-sea experience. On a case-by-case basis, non-independent observers may be approved by NMFS for limited, specific duties in support of approved, independent PSOs on smaller vessels with limited crew capacity operating in nearshore waters.

The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including exclusion zones, during all HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established EZs during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.

During all HRG survey operations ( e.g., any day on which use of an HRG source is planned to occur), a minimum of one PSO must be on duty during daylight operations on each survey vessel, conducting visual observations at all times on all active survey vessels during daylight hours ( i.e., from 30 minutes prior to sunrise through 30 minutes following sunset). Two PSOs will be on watch during nighttime operations. The PSO(s) would ensure 360° visual coverage around the vessel from the most appropriate observation posts and would conduct visual observations using binoculars and/or night vision goggles and the naked eye while free from distractions and in a consistent, systematic, and diligent manner. PSOs may be on watch for a maximum of 4 consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours of observation per 24-hour period. In cases where multiple vessels are surveying concurrently, any observations of marine mammals would be communicated to PSOs on all nearby survey vessels.

PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detect marine mammals, particularly in proximity to EZs. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggles with thermal clip-ons and infrared technology would be used. Position data would be recorded using hand-held or vessel GPS units for each sighting.

During good conditions ( e.g., daylight hours; Beaufort sea state (BSS) 3 or less), to the maximum extent practicable, PSOs would also conduct observations when the acoustic source is not operating for comparison of sighting rates and behavior with and without use of the active acoustic sources. Any observations of marine mammals by crew members aboard any vessel associated with the survey would be relayed to the PSO team. Data on all PSO observations would be recorded based on standard PSO collection requirements. This would include dates, times, and locations of survey operations; dates and times of observations, location and weather; details of marine mammal sightings ( e.g., species, numbers, behavior); and details of any observed marine mammal behavior that occurs ( e.g., noted behavioral disturbances).

Within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys (including what type of mitigation and the species and number of animals that prompted the mitigation action, when known), and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. All draft and final marine mammal and acoustic monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Esch@noaa.gov. The report must contain at minimum, the following:

• PSO names and affiliations;

• Dates of departures and returns to port with port name;

• Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;

• Vessel location (latitude/longitude) when survey effort begins and ends, vessel location at beginning and end of visual PSO duty shifts;

• Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;

• Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon;

• Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change ( e.g., vessel traffic, equipment malfunctions); and

• Survey activity information, such as type of survey equipment in operation, acoustic source power output while in operation, and any other notes of significance ( i.e., pre-clearance survey, ramp-up, shutdown, end of operations, etc.).

If a marine mammal is sighted, the following information should be recorded:

• Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);

• PSO who sighted the animal;

• Time of sighting;

• Vessel location at time of sighting;

• Water depth;

• Direction of vessel's travel (compass direction);

• Direction of animal's travel relative to the vessel;

• Pace of the animal;

• Estimated distance to the animal and its heading relative to vessel at initial sighting;

• Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified); also note the composition of the group if there is a mix of species;

• Estimated number of animals (high/low/best);

• Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);

• Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);

• Detailed behavior observations ( e.g., number of blows, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior);

• Animal's closest point of approach and/or closest distance from the center point of the acoustic source;

• Platform activity at time of sighting ( e.g., deploying, recovering, testing, data acquisition, other); and

• Description of any actions implemented in response to the sighting ( e.g., delays, shutdown, ramp-up, speed or course alteration, etc.) and time and location of the action.

If a North Atlantic right whale is observed at any time by PSOs or personnel on any project vessels, during surveys or during vessel transit, Garden State must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-6622. North Atlantic right whale sightings in any location may also be reported to the U.S. Coast Guard via channel 16.

In the event that Garden State personnel discover an injured or dead marine mammal, Garden State would report the incident to the NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would 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.

In the unanticipated event of a ship strike of a marine mammal by any vessel involved in the activities covered by the IHA, Garden State would report the incident to the NMFS OPR and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information:

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

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

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

• Vessel's course/heading and what operations were being conducted (if applicable);

• Status of all sound sources in use;

• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;

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

• Estimated size and length of animal that was struck;

• Description of the behavior of the marine mammal immediately preceding and following the strike;

• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;

• Estimated fate of the animal ( e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and

• To the extent practicable, photographs or video footage of the animal(s).

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

To avoid repetition, our analysis applies to all the species listed in Table 4, given that NMFS expects the anticipated effects of the proposed survey to be similar in nature. Where there are meaningful differences between species or stocks—as is the case of the North Atlantic right whale—they are included as separate subsections below. NMFS does not anticipate that serious injury or mortality would occur as a result from HRG surveys, even in the absence of mitigation, and no serious injury or mortality is proposed to be authorized. As discussed in the Potential Effects section, non-auditory physical effects and vessel strike are not expected to occur. NMFS expects that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), reactions that are considered to be of low severity and with no lasting biological consequences ( e.g., Southall et al., 2007). Even repeated Level B harassment of some small subset of an 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. As described above, Level A harassment is not expected to occur given the nature of the operations and the estimated small size of the Level A harassment zones.

In addition to being temporary, the maximum expected harassment zone around a survey vessel is 141 m. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and their use of the habitat. Feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the survey area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the proposed survey area and there are no feeding areas known to be biologically important to marine mammals within the proposed survey area. There is no designated critical habitat for any ESA-listed marine mammals in the proposed survey area.

The status of the North Atlantic right whale population is of heightened concern and, therefore, merits additional analysis. As noted previously, elevated North Atlantic right whale mortalities began in June 2017 and there is an active UME. Overall, preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. The proposed survey area overlaps a migratory corridor Biologically Important Area (BIA) for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of Delaware, this migratory BIA extends from the coast to beyond the shelf break. Due to the fact that that the proposed survey activities are temporary and the spatial extent of sound produced by the survey would be very small relative to the spatial extent of the available migratory habitat in the BIA, right whale migration is not expected to be impacted by the proposed survey. Given the relatively small size of the ensonified area, it is unlikely that prey availability would be adversely affected by HRG survey operations. Required vessel strike avoidance measures will also decrease risk of ship strike during migration; no ship strike is expected to occur during Garden State's proposed activities. Additionally, only very limited take by Level B harassment of North Atlantic right whales has been requested and is being proposed by NMFS as HRG survey operations are required to maintain a 500 m EZ and shutdown if a North Atlantic right whale is sighted at or within the EZ. The 500 m shutdown zone for right whales is conservative, considering the Level B harassment isopleth for the most impactful acoustic source ( i.e., GeoMarine Geo-Source 400 tip sparker) is estimated to be 141 m, and thereby minimizes the potential for behavioral harassment of this species. As noted previously, Level A harassment is not expected due to the small PTS zones associated with HRG equipment types proposed for use. NMFS does not anticipate North Atlantic right whales takes that would result from Garden State's proposed activities would impact annual rates of recruitment or survival. Thus, any takes that occur would not result in population level impacts.

As noted previously, there are several active UMEs occurring in the vicinity of Garden State's proposed survey area. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS) remains stable at approximately 12,000 individuals.

Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales.

Elevated numbers of harbor seal and gray seal mortalities were first observed in July 2018 and have occurred across Maine, New Hampshire, and Massachusetts. Based on tests conducted so far, the main pathogen found in the seals is phocine distemper virus, although additional testing to identify other factors that may be involved in this UME are underway. The UME does not yet provide cause for concern regarding population-level impacts to any of these stocks. For harbor seals, the population abundance is over 75,000 and annual M/SI (350) is well below PBR (2,006) (Hayes et al., 2020). The population abundance for gray seals in the United States is over 27,000, with an estimated abundance, including seals in Canada, of approximately 451,431. In addition, the abundance of gray seals is likely increasing in the U.S. Atlantic exclusive economic zone (EEZ) as well as in Canada (Hayes et al., 2020).

The required mitigation measures are expected to reduce the number and/or severity of proposed takes for all species listed in Table 4, including those with active UME's to the level of least practicable adverse impact. In particular they would provide animals the opportunity to move away from the sound source throughout the survey area before HRG survey equipment reaches full energy, thus preventing them from being exposed to sound levels that have the potential to cause injury (Level A harassment) or more severe Level B harassment. No Level A harassment is anticipated, even in the absence of mitigation measures, or proposed for authorization.

NMFS expects that takes would be in the form of short-term Level B behavioral harassment by way of brief startling reactions and/or temporary vacating of the area, or decreased foraging (if such activity was occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals would only be exposed briefly to a small ensonified area that might result in take. Additionally, required mitigation measures would further reduce exposure to sound that could result in more severe behavioral harassment.

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

• No mortality or serious injury is anticipated or proposed for authorization;

• No Level A harassment (PTS) is anticipated, even in the absence of mitigation measures, or proposed for authorization;

• Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal;

• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the planned survey to avoid exposure to sounds from the activity;

• Take is anticipated to be primarily Level B behavioral harassment consisting of brief startling reactions and/or temporary avoidance of the survey area;

• While the survey area is within areas noted as a migratory BIA for North Atlantic right whales, the activities would occur in such a comparatively small area such that any avoidance of the survey area due to activities would not affect migration. In addition, mitigation measures to shutdown at 500 m to minimize potential for Level B behavioral harassment would limit any take of the species; and

• The proposed mitigation measures, including visual monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.

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

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

NMFS proposes to authorize incidental take of 16 marine mammal species (with 17 managed stocks). The total amount of takes proposed for authorization relative to the best available population abundance is less than 8 percent for one stock (bottlenose dolphin northern coastal migratory stock) and less than 4 percent of all other species and stocks, which NMFS preliminarily finds are small numbers of marine mammals relative to the estimated overall population abundances for those stocks (please see Table 4).

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

There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has 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.

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

The NMFS OPR is proposing to authorize the incidental take of four species of marine mammals which are listed under the ESA: The North Atlantic right, fin, sei, and sperm whales. The OPR has requested initiation of Section 7 consultation with NMFS GARFO for the issuance of this IHA. NMFS will conclude the ESA section 7 consultation prior to reaching a determination regarding the proposed issuance of the authorization.

As a result of these preliminary determinations, NMFS proposes to issue an IHA to Garden State for conducting marine site characterization surveys off the coasts of Delaware and New Jersey for one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

We request comment on our analyses, the proposed authorization, and any other aspect of this notice of proposed IHA for the proposed marine site characterization surveys. We also request at this time comment on the potential renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for this IHA or a subsequent renewal IHA.

On a case-by-case basis, NMFS may issue a one-time, 1-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical, or nearly identical, activities as described in the Description of Proposed Activity section of this notice is planned or (2) the activities as described in the Description of Proposed Activity section of this notice would not be completed by the time the IHA expires and a renewal would allow for completion of the activities beyond that described in the Dates and Duration section of this notice, provided all of the following conditions are met:

• A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).

• The request for renewal must include the following:

(1) An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor ( e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take).

(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

The Bureau recognizes April as fair lending and fair housing month—a time to specifically highlight the importance of equity in our financial markets. As such, I am pleased to present the Fair Lending Annual Report to Congress, describing the Consumer Financial Protection Bureau's fair lending work in 2020.

I want to express how incredibly proud I am of the Bureau, the Office of Fair Lending and Equal Opportunity (Office of Fair Lending) and the work they have been able to accomplish in the past year—a challenging year for all of us on so many different levels.

As I have made clear before, as Acting Director, my top priorities for this agency are to take bold and swift action to address issues of pervasive racial injustice and the long-term economic impacts of the COVID-19 pandemic on consumers. Although the true severity of the economic impacts of COVID-19 are just starting to be understood, it is clear that the pandemic is exacerbating racial inequality in all markets, including rising housing insecurity among the most vulnerable consumers. This, combined with the lingering impacts of over 400 years of chattel slavery and Jim Crow laws that sought to limit racial equality through institutionalized discrimination, deepens our nation's longstanding racial inequities. To fully understand and address these issues, it is crucial that the Bureau apply a racial equity lens and to find practical ways to make freedom from racial prejudice and pursuit of racial equity a priority in the full breadth of the Bureau's work. The Office of Fair Lending will play an integral part in achieving this mission.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) established the Bureau's Office of Fair Lending to provide “oversight and enforcement of Federal laws intended to ensure the fair, equitable, and nondiscriminatory access to credit for both individuals and communities.”

During my tenure, the Bureau will continue to use all the tools Congress gave it, including enforcement, supervision, rulemaking, guidance, research, and education to ensure fair, equitable and nondiscriminatory access to credit. The Bureau will identify and act on opportunities to focus on consumers in underserved communities, while vigorously pursuing racial and economic justice. This includes, but is in no way limited to, robust enforcement of fair lending laws under the Bureau's jurisdiction.

As we are in the midst of a national emergency the likes of which have not been seen in a lifetime, the time for bold action is now. The hard work has already begun. I am eager for all that the Bureau, and the Office of Fair Lending, will accomplish on behalf of all consumers.

The events of 2020 challenged our nation in many ways. The COVID-19 pandemic has caused great physical, emotional, and economic suffering. Millions of Americans face economic uncertainty and financial insecurity, are underemployed or unemployed, are at the brink of eviction or foreclosure, and are desperate for help.

Of those struggling, people and communities of color have been disproportionately affected. Women- and minority-owned small businesses are more likely to face more severe economic consequences than their white counterparts. Black and Hispanic homeowners are also less likely to access mortgage relief and forbearance, a troubling trend that the Bureau will continue to address.

Further, I would be remiss to not say the names of Black men, women, and children like George Floyd, Breonna Taylor, Tamir Rice and Ahmaud Arbury, sadly among the many who were assaulted and murdered last year. These incidents highlight racial and economic inequities and their impacts on the country. As such, the Bureau's fair lending work is more important now than perhaps ever.

I am proud of what we have been able to accomplish in the past year. After hearing questions from financial institutions and consumer and civil rights groups about ways to support financial inclusion, the Bureau issued guidance on special purpose credit programs, which are innovative ways to expand access to credit to traditionally underserved communities, including minority and other underserved consumers. The Bureau also continued to examine and investigate institutions for compliance with the Home Mortgage Disclosure (HMDA) and Equal Credit Opportunity (ECOA) Acts. Last year, the Bureau filed a lawsuit against Townstone Financial, Inc., a nonbank retail-mortgage creditor that alleged, among other things, that Townstone illegally discouraged prospective African-American applicants and prospective applicants living in African-American neighborhoods in the Chicago MSA from applying to Townstone for mortgage loans. We also embraced responsible innovation, hosting our first ever Tech Sprint, where participants creatively leveraged technology to develop innovative proposals on ways that lenders could better educate consumers by providing more useful explanations of adverse actions on their credit applications, and what those consumers can do to strengthen their next application for credit. Additionally, in 2020, Bureau staff participated in more than 90 outreach events with our external stakeholders, allowing the Bureau to hear perspectives on emerging issues and topics to better inform policy decisions.

Last year (2020) tested us, but 2021 will prove to be consequential for consumers as the Bureau vigorously works to ensure an equitable recovery from the economic fallout of the COVID-19 pandemic. As the Bureau enters its tenth year of existence in 2021, I am reminded of the crisis in which this agency was conceived, the Great Recession. I am also reminded of the difference the Bureau has made in the lives of consumers over that decade. Most of all, the Bureau is still here, and much work remains to be done. Looking toward the future of the Bureau, and the Office of Fair Lending, we remain committed to fulfilling our statutory mandate to ensure fair, equitable, and nondiscriminatory access to credit for all consumers.

The year 2020 marked the 10th anniversary of the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), from which the Consumer Financial Protection Bureau (CFPB or Bureau) was born. At that time, the nation found itself at a crossroads, reeling from the Great Recession—what was thought to have been a “once in a lifetime” economic crisis that devastated communities and families across the country. At its inception, the Bureau's statutory lodestar was to make consumer financial markets work better for consumers, families, small businesses, and communities, for responsible lenders and financial institutions, and for the American economy as a whole. The agency was built on the understanding that when the rules are fair and are applied as such, we have a chance to build stronger families and a stronger nation. A key component to this has been the Bureau's fair lending work to ensure the fair, equitable, and nondiscriminatory access to credit for both individuals and their communities.

This year, the nation once again finds itself at a crossroads, facing the fallout of the devastating COVID-19 pandemic which, at the time of this publication, has resulted in the deaths of more than 550,000 of American lives, as well as the destruction of millions of livelihoods. The events of 2020 caused the Bureau to quickly pivot from planned activities to respond to the consumer protection issues of the day. Enactment of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the creation of the Small Business Administration's (SBA) Paycheck Protection Program (PPP) required new guidance and interpretation, detailed in section 4.2.3 of this report. Additionally, in 2020, prioritized supervisory assessments were executed to identify risks to consumers, further explained in section 2 of this report. The Bureau also launched a hub of web-based COVID-19 content for consumers and other stakeholders, with resources available in multiple languages. 1

In the midst of the COVID-19 pandemic, racial injustice issues also came to the forefront of America's public dialogue. These issues were exposed by the inequitable burden communities and people of color bore from higher infection and mortality rates and greater resulting economic impacts, as well as high-profile deaths of Black and Brown Americans at the hands of law enforcement. Confronting the devastating impacts of the COVID-19 pandemic and resulting economic crisis, the Bureau's fair lending work necessarily carried on.

The Bureau solicited feedback from the public in a Request for Information (RFI) about how to enhance compliance with the Equal Credit Opportunity Act (ECOA), a key civil rights law, and received over 140 comments, further described in section 6.2.2 of this report. The Bureau also filed an enforcement action against an institution accused of redlining and another for violating the Home Mortgage Disclosure Act (HMDA) (see section 2.3.1 of this report) and provided guidance on special purpose credit programs to enable creditors to expand credit to traditionally underserved consumers and communities (see section 4.2.1 of this report).

The Bureau recognizes that the economic fallout from the pandemic is only beginning, and the pandemic's effects and impacts are not yet fully known. What is certain, though, is that the Bureau's fair lending work is and will continue to be a critical component of the Bureau and the Federal government's response to the pandemic and the elimination of racial injustice. In 2021, the Bureau's Fair Lending Office will be front and center in the agency's efforts to advance racial and economic equity.

Because Congress charged the Bureau with the responsibility of overseeing many lenders and products, the Bureau has long-used a risk-based approach to prioritizing supervisory examinations and enforcement activity. This approach helps ensure that the Bureau focuses on areas that present substantial risk of credit discrimination for consumers. 2

As part of the prioritization process, the Bureau identifies emerging developments and trends by monitoring key consumer financial markets. If this field and market intelligence identifies fair lending risks in a particular market, that information is used to determine the type and extent of attention required to address those risks.

The prioritization process incorporates a number of additional factors, including tips and leads from industry whistleblowers, advocacy groups, and government agencies; supervisory and enforcement history; consumer complaints; and results from analysis of HMDA and other data. As a result of its annual risk-based prioritization process for 2020, the Bureau focused its fair lending supervision efforts on mortgage origination, small business lending, and student loan origination.

As in previous years, the Bureau's 2020 mortgage origination work continued to focus on redlining (and whether lenders intentionally discouraged prospective applicants living or seeking credit in minority neighborhoods from applying for credit); assessing whether there is discrimination in underwriting and pricing processes such as steering; and HMDA data integrity and validation reviews (both as standalone exams and in preparation for ECOA exams that will follow).

The Bureau's small business lending work focused on assessing whether (1) there is discrimination in the application, underwriting, and pricing processes, (2) creditors are redlining, and (3) there are weaknesses in fair lending related compliance management systems (CMS).

The Bureau's student loan origination work focused on whether there is discrimination in policies and practices governing underwriting and pricing.

In May 2020, in response to the COVID-19 pandemic, the Bureau rescheduled about half of its planned examination work and instead conducted Prioritized Assessments. Prioritized Assessments were designed to cover a greater number of institutions than the typical examination schedule allows, gain a greater understanding of industry responses to pandemic-related challenges, and help ensure that entities were attentive to practices that may result in consumer harm. The Bureau's Supervision program evaluated fair lending risks through Prioritized Assessments in the small business lending and mortgage servicing, automobile loan servicing, and credit card markets.

The Bureau's Fair Lending Supervision program assesses compliance with Federal fair lending consumer financial laws and regulations at banks and nonbanks over which the Bureau has supervisory authority. As a result of the Bureau's efforts to fulfill its fair lending mission during 2020, the Bureau initiated 13 fair lending examinations/targeted reviews. The Bureau also initiated a significant number of Prioritized Assessments that included important fair lending components.

In 2020, the Bureau issued several fair lending-related Matters Requiring Attention, directing entities to take corrective actions that will be monitored by the Bureau through follow-up supervisory events. The Bureau also issued Supervisory Recommendations in 2020 relating to weak or nonexistent fair lending policies and procedures, risk assessments, and fair lending training. 3

The Bureau has the statutory authority to bring actions to enforce the requirements of ECOA and HMDA. The Bureau has the authority to engage in research, conduct investigations, file administrative complaints, hold hearings, and adjudicate claims through the Bureau's administrative enforcement process regarding ECOA and HMDA. The Bureau also has independent litigation authority and can file cases in federal court alleging violations of fair lending laws under the Bureau's jurisdiction. Like other Federal regulators, the Bureau is required to refer matters to the Department of Justice (DOJ) when it has reason to believe that a creditor has engaged in a pattern or practice of lending discrimination. 4

In 2020, the Bureau announced two public fair lending enforcement actions: Townstone Financial Inc., and Washington Federal Bank, N.A.

On July 15, 2020, the Bureau filed a lawsuit in federal district court in the Northern District of Illinois against Townstone Financial, Inc. (Townstone), a nonbank retail-mortgage creditor based in Chicago. On November 25, 2020, the Bureau amended the complaint. 5 The Bureau alleges that Townstone violated ECOA and Regulation B. As alleged in the complaint, from 2014 through 2017, Townstone drew almost no applications for mortgages on properties in African American neighborhoods located in the Chicago-Naperville-Elgin Metropolitan Statistical Area (Chicago MSA) and few applications from African Americans throughout the Chicago MSA. The Bureau alleges that Townstone engaged in acts or practices, including making statements during its weekly radio shows and podcasts through which it marketed its services, that illegally discouraged African American prospective applicants from applying for mortgage loans and engaged in illegal redlining by engaging in acts or practices that discouraged prospective applicants living or seeking credit in African American neighborhoods in the Chicago MSA from applying for mortgage loans. The Bureau's complaint seeks an injunction against Townstone, as well as damages, redress to consumers, and the imposition of a civil money penalty. Litigation is ongoing.

On October 27, 2020, the Bureau settled with Washington Federal Bank, N.A. (Washington Federal), a federally-insured national bank, to address the Bureau's finding that it reported inaccurate HMDA data about its mortgage transactions for 2016 and 2017. 6 Inaccurate HMDA data can make it difficult for the public and regulators to discover and stop discrimination in home mortgage lending or for public officials and lenders to tell whether a community's credit needs are being met. The settlement requires Washington Federal to pay a $200,000 civil money penalty and develop and implement an effective compliance-management system to prevent future violations.

Washington Federal reported HMDA data for over 7,000 mortgage applications in both 2016 and 2017. The Bureau found that these data included significant errors, with some samples having error rates as high as 40%. The Bureau found that the errors in Washington Federal's 2016 HMDA data were caused by a lack of appropriate staffing, insufficient staff training, and ineffective quality control. The errors in its 2017 HMDA data were directly related to weaknesses in Washington Federal's compliance-management system. The Bureau found weaknesses in the areas of board and management oversight, monitoring, and policies and procedures. The significant errors in reported mortgage-application data violated HMDA and Regulation C. These violations also constituted violations of the Consumer Financial Protection Act.

The Bureau must refer to DOJ a matter when it has reason to believe that a creditor has engaged in a pattern or practice of lending discrimination in violation of ECOA. 7 The Bureau may refer other potential ECOA violations to DOJ. 8 In 2020, the Bureau referred four matters to DOJ about discrimination pursuant to section 706(g) of ECOA. Two referrals involved redlining in mortgage origination based on race and national origin. One referral involved discrimination based on receipt of public assistance income in mortgage origination and one referral involved pricing discrimination in mortgage origination based on race and sex.

When an enforcement action is resolved through a public enforcement order, the Bureau (together with DOJ, when relevant) takes steps to ensure that the respondent or defendant complies with the requirements of the order. Depending on the specific requirements of individual public enforcement orders, the Bureau may take steps to ensure that borrowers who are eligible for compensation receive remuneration and that the defendant has complied with the injunctive provisions of the order, including implementing a comprehensive fair lending compliance management system.

In January 2020, DOJ and the Bureau, together with BancorpSouth Bank (BancorpSouth), submitted a joint motion for early termination of the Consent Order in the BancorpSouth case, which was granted by the court. 9

More information about our enforcement activity, past and present, is available at www.consumerfinance.gov/enforcement/actions/.

In 2020, the Bureau had a number of ongoing and newly opened fair lending investigations of institutions. The Bureau investigated potential discrimination in several markets, including student lending, payday lending, credit cards, and mortgage lending, including the unlawful practice of redlining. These matters are ongoing.

The Bureau is statutorily required to file a report to Congress annually describing the administration of its functions under ECOA, summarizing public enforcement actions taken by other agencies with administrative enforcement responsibilities under ECOA, and providing an assessment of the extent to which compliance with ECOA has been achieved. 10 In addition, the Bureau's annual HMDA reporting requirement calls for the Bureau, in consultation with the Department of Housing and Urban Development (HUD), to report annually on the utility of HMDA's requirement that covered lenders itemize certain mortgage loan data. 11

This document notifies the public of revisions in per diem rates prescribed by the Per Diem, Travel and Transportation Allowance Committee for travel to non-foreign areas outside the continental United States. The FY 2021 lodging rate review for Puerto Rico resulted in lodging rate changes in certain locations. Bulletin Number 317 is published in the Federal Register to ensure that Government travelers outside the Department of Defense are notified of revisions to the current reimbursement rates.

If you believe the lodging, meal or incidental allowance rate for a locality listed in the following table is insufficient, you may request a rate review for that location. For more information about how to request a review, please see the Defense Travel Management Office's Per Diem Rate Review Frequently Asked Questions (FAQ) page at https://www.defensetravel.dod.mil/site/faqraterev.cfm.