Section 2119 (7 U.S.C. 6518) of the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501 et seq. ) requires the establishment of the NOSB. The purpose of the NOSB is to make recommendations about whether a substance should be allowed or prohibited in organic production or handling, to assist in the development of standards for substances to be used in organic production, and to advise the Secretary on other aspects of the implementation of the OFPA. The NOSB met for the first time in Washington, DC, in March 1992, and currently has six subcommittees working on various aspects of the organic program. The committees are: Compliance, Accreditation, and Certification; Crops; Handling; Livestock; Materials; and Policy Development.

In August of 1994, the NOSB provided its initial recommendations for the NOP to the Secretary of Agriculture. Since that time, the NOSB has submitted 269 addenda to its recommendations and reviewed more than 365 substances for inclusion on the National List of Allowed and Prohibited Substances. The Department of Agriculture (USDA) published its final National Organic Program regulation in the Federal Register on December 21, 2000, (65 FR 80548). The rule became effective April 21, 2001.

In addition, the OFPA authorizes the National List of Allowed and Prohibited Substances and provides that no allowed or prohibited substance would remain on the National List for a period exceeding five years unless the exemption or prohibition is reviewed and recommended for renewal by the NOSB and adopted by the Secretary of Agriculture. This expiration is commonly referred to as sunset of the National List. The National List appears at 7 CFR part 205, subpart G.

The principal purpose of NOSB meetings is to provide an opportunity for the organic community to weigh in on proposed NOSB recommendations and discussion items. These meetings also allow the NOSB to receive updates from the USDA/NOP on issues pertaining to organic agriculture.

At the spring 2011 meeting in Seattle, Washington the NOSB voted on the final 28 materials listings that were scheduled to sunset in 2012 (see Table 1). Of the 28 materials, 21 were relisted, 5 were relisted with amended annotations, and 2 were removed from the National List.

The NOSB voted against relisting sulfur dioxide for use in organic crop production and potassium iodide for use as an ingredient in or on processed products labeled as “organic” or “made with organic.” In addition, the NOSB voted to remove the annotation for sodium nitrate on § 205.602 and establish a complete prohibition by the 2012 Sunset date.

Several petitioned materials were also reviewed at the meeting. The NOSB recommended against listing Nickel as a micronutrient; Calcium acid pyrophosphate as a leavening agent; and Sodium acid pyrophosphate as a sequestrant on cooked and uncooked produce. The NOSB recommended to add attapulgite—used to clarify plant and animal oils—to the National List as a non-synthetic material and recommended extending the expiration date for Tetracycline (for fire blight control in apples and pears) until October 21, 2014.

In additional to their review of materials, the NOSB also passed recommendations that would: Amend the definition of “chemical change,” and update three sections of their Policy and Procedures Manual: Sections III and IV, to harmonize the Vice Chair and Policy Development Committee job descriptions; and Section V, procedures for completing committee recommendations allowing the presenting committee to convene and vote to withdraw its recommendation prior to the Board's vote on the status of the recommendation.

The Crops Committee will present recommendations on material listings for copper sulfate, ozone, peracetic acid, and calcium chloride, which are scheduled to sunset in 2013 (see Table 2). The Crops Committee will also present recommendations to the board on four petitioned materials: Ammonium nonanoate, ferric phosphate (to remove), indole-3-butyric acid, and propane (odorized). The Crops Committee will also provide an update on fire blight in tree fruit and a discussion document on EPA List 3 inerts.

The Livestock Committee will present recommendations on animal welfare; stocking rates, animal handling, transit, and slaughter; and species-specific scorecards. They will also address animal husbandry.

The Handling Committee will present recommendations on three material listings scheduled to sunset in 2013 (see Table 3). The Handling Committee will also present recommendations to the board on eight petitioned materials: Annatto extract, arachidonic acid (ARA) single-cell oil, beta-carotene, choline, docosahexaenoic acid (DHA) algal oil, potassium hydroxide, sulfur dioxide, and silicon dioxide. Other Handling Committee recommendations include a recommendation amending the chlorine materials annotation. They will also provide an update on nutrient vitamins and minerals.

The Materials Committee will present an aquaculture materials review update and a research priorities framework discussion document.

The Compliance, Accreditation, and Certification Committee will present recommendations on the evaluation of material review organizations, unannounced inspections, and inspector qualifications.

The Policy Development Committee will present recommendations on four sections of the NOSB Policy and Procedures Manual: administrative team, committee transparency, conflict of interest, and NOSB member and leadership transition. The Policy Development Committee will also present a discussion document on public comment procedures.

The Meeting is Open to the Public. The NOSB has scheduled time for public input for Tuesday, November 29, 2011, from 10:15 a.m. to 5:30 p.m. and Thursday, December 1, 2011 from 8 a.m. to 5 p.m. The NOSB will accommodate as many individuals and organizations as possible during these sessions. Individuals and organizations wishing to make oral presentations at the meeting should request one short time slot by visiting http://www.ams.usda.gov/nosbsavannahslots or by calling (202) 720-3252. All persons making oral presentations are requested to also provide their comments in writing. Written submissions may contain information other than that presented at the oral presentation. Anyone may submit written comments at the meeting. Persons submitting written comments at the meeting are asked to provide sixteen copies.

Interested persons may visit http://www.ams.usda.gov to view NOSB recommendations, meeting agenda, and submit and/or view public comments.

Under the regulations in “Subpart—Regulated Articles From Hawaii and the Territories” (7 CFR 318.13-1 through 318.13-26, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the interstate movement of fruits and vegetables into the United States from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands to prevent plant pests and noxious weeds from being introduced into and spread within the continental United States. (The continental United States is defined in 318.13-2 of the regulations as the 48 contiguous States, Alaska, and the District of Columbia.)

Section 318.13-4 contains a performance-based process for approving the interstate movement of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph (b) of that section. Under that process, APHIS publishes a notice in the Federal Register announcing the availability of the pest risk analysis that evaluates the risks associated with the interstate movement of a particular fruit or vegetable. Following the close of the 60-day comment period, APHIS may begin allowing the interstate movement of the fruit or vegetable subject to the identified designated measures if: (1) No comments were received on the pest risk analysis; (2) the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or (3) changes to the pest risk analysis were made in response to public comments, but the changes did not affect the overall conclusions of the analysis and the Administrator's determination of risk.

In accordance with that process, we published a notice  1 in the Federal Register on June 16, 2011 (76 FR 35186-35187, Docket No. APHIS-2011-0037), in which we announced the availability, for review and comment, of a pest risk analysis that evaluates the risks associated with the interstate movement of rambutan fruit ( Nephilium lappaceum L. ) from Puerto Rico into the continental United States. We solicited comments on the notice for 60 days ending on August 15, 2011. We received no comments by that date.

Therefore, in accordance with the regulations in 318.13-4, we are announcing our decision to begin allowing the interstate movement of rambutan from Puerto Rico into the continental United States subject to the following phytosanitary measures:

• Inspection and certification by an inspector in Puerto Rico that the rambutan are free of all quarantine pests likely to follow the pathway of interstate movement of the rambutan;

• Movement of the rambutan as commercial consignments only; and

• Distribution of the rambutan only within a defined area (a prohibition on movement to Hawaii, the Virgin Islands, or Guam) and marking of the boxes or containers in which the rambutan is distributed to indicate those distribution restrictions.

These conditions will be listed in the Puerto Rico Manual, found on the Internet at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/puerto_rico.pdf. In addition to those specific measures, rambutan from Puerto Rico will be subject to the general requirements listed in 318.13-3 that are applicable to the interstate movement of all fruits and vegetables from Puerto Rico.

On August 18, 2011, CCC announced the initial FY 2012 overall sugar marketing allotment quantity (OAQ) of 9,456,250 short tons, raw value (STRV). The OAQ is equal to 85 percent of the sugar for human consumption estimate for the crop year of 11,125,000 STRV as forecast in the July 2011 World Agricultural Supply and Demand Estimates (WASDE) report. The Agricultural Adjustment Act of 1938, as amended, requires that the OAQ be set at not less than 85 percent of the estimated quantity of sugar for domestic human consumption for the crop year, and that a fixed portion of the OAQ be assigned to the beet sector and the cane sector. CCC distributed the FY 2012 beet sugar allotment of 5,139,472 STRV (54.35 percent of the OAQ) among the sugar beet processors and the cane sugar allotment of 4,316,778 STRV (45.65 percent of the OAQ) among the sugarcane processors.

CCC determined that it was not necessary to establish farm level proportionate shares in Louisiana, the only State eligible for proportionate shares, in FY 2012. The cane sugar sector was not expected to fill its allotment and therefore, there was no need to limit sugarcane acreage in that State through proportionate shares. Additionally, CCC determined that the Feedstock Flexibility Program (FFP) will not be implemented in FY 2012 based on the forecast of limited sugar supplies and prices significantly above the support level. The probability of forfeitures of sugar loan collateral under CCC price support loans in FY 2012, which triggers FFP, was determined to be very low.

The initial FY 2012 sugar marketing State allotments and processor allocations are listed in the following table:

Title: School Foodservice Indirect Cost Study.

OMB Number: 0584-NEW.

Expiration Date of Approval: Not yet determined.

Type of Information Collection Request: New information collection.

Abstract: The Healthy Hunger Free Kids Act of 2010 (Pub. L. 111-296) requires USDA to conduct this study to assess the extent to which school food authorities (SFAs) participating in the National School Lunch and Breakfast Programs pay indirect costs. The objective of the School Foodservice Indirect Cost Study is to collect and analyze up-to-date data on school districts' policies and procedures for reporting and recovering indirect costs attributable to their foodservice operations.

The ultimate goal of this study is to provide USDA and Congress the necessary information to assess the extent to which school districts indentify, treat, and charge indirect costs attributable to their foodservice operations. Some focus will be placed on whether school districts treat indirect costs attributable to their food service operations the same way that they treat indirect costs attributable to other grant programs. The School Lunch and Breakfast Cost Studies conducted in the early 1990s and again in the mid 2000s provide some evidence that as school district budgets have become increasingly tight, school districts have been increasingly likely to assess and recover indirect costs attributable to their food service operations. While this is permissible under USDA regulations, the regulations also stipulate that school districts must treat foodservice indirect costs in the same manner as their other grant programs. Previous research suggests that this is often not the case. This study will help FNS understand the extent to which current regulations are being followed and if there is a need for additional regulations and/or legislation to ensure that school districts treat indirect costs in the same manner across all of their grant programs. Specifically, this study will address the following questions:

□ What is the role of the State departments of education in establishing or approving school districts' indirect cost rates?

□ Are the indirect costs charged or recovered by school districts from foodservice consistent with Federal and State allocation requirements?

□ What are the types and amounts of indirect costs charged and recovered by school districts from the foodservice account?

□ What are the types and amounts of indirect costs that school districts could, but do not, charge and recover from the foodservice account?

□ What is the impact of school districts charging and recovering indirect costs from the foodservice account on the ability of SFAs to operate on a break-even basis?

The activities to be undertaken subject to this notice include:

□ Conducting a multi-modal ( e.g. paper, Web, and telephone) survey of approximately 1,897 SFA Directors who will complete the survey out of 2,373 recruited.

□ Conducting a multi-modal ( e.g. paper, Web, and telephone) survey of approximately 1,897 School District Business Managers who will complete the survey out of 2,373 recruited.

□ Conducting a telephone survey of all 56 State Agency Child Nutrition Directors.

□ Conducting a telephone survey of all 56 State Agency Financial Officers.

Affected Public: State and Local Governments.

Type of Respondents: 2,373 SFA Directors, 2,373 School District Business Managers, 56 State Child Nutrition Directors, and 56 State Agency Financial Officers.

Estimated Total Number of Respondents: 4,858.

Frequency of Response: Once annually.

Estimated Annual Responses: 4,858.

Estimate of Time per Respondent and Annual Burden: Public reporting burden for this collection of information is estimated to average thirty (30) minutes per completed Self Administered Survey for the SFA Directors and sixty (60) minutes for the completed School District Business Managers. Reporting burden is estimated at thirty (30) minutes per completed telephone interview for the State Agency Child Nutrition Directors and sixty (60) minutes for the completed State Agency Financial Officer (this includes 30 minutes for data gathering and 30 minutes to respond to the interview). The initial sample in the School Foodservice Indirect Cost Study includes 2,373 SFA Directors, 2,373 School District Business Managers, 56 State Child Nutrition Program Directors, and 56 State Agency Financial Officers. We expect responses from 1,897 SFA Directors, 1,897 School District Business Managers, 56 State Child Nutrition Program Directors, and 56 State Agency Financial Officers. The annual reporting burden is estimated at 3,010 hours (see table below).

The following business will be conducted: The purpose of the meeting is to review progress on approved Title II Projects. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by October 14, 2011 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to 5050 State Hwy 21 East, Hemphill, TX 75948 or by e-mail to etaylor@fs.fed.us or via facsimile to 409-625-1953.

On September 4, 2008, the Department published the antidumping duty order on OTR tires from the PRC. 1 On September 1, 2010, the Department published a notice of opportunity to request an administrative review of the order for the period of review (“POR”) September 1, 2009, through August 31, 2010. 2 Interested parties made requests for review between September 17, 2010, and September 30, 2010, on certain exporters. On October 28, 2010, the Department initiated the administrative review of the antidumping duty order on OTR tires from the PRC for the 2009—2010 POR. 3 On January 18, 2011, the Department exercised its authority to limit the number of respondents selected for individual examination pursuant to section 777A(c)(2) of the Act. The Department selected the three largest exporters by volume as our mandatory respondents for this review: Qingdao Free Trade Zone Full World International Trading Co., Ltd. (“Full World”), Hebei Starbright Tire Co., Ltd. (“Starbright”), and TUTRIC. On January 19, 2011, the Department issued its antidumping duty questionnaire to the three mandatory respondents. On March 18, 2011, the Department published in the Federal Register a partial rescission of review for eight exporters, including Full World and Starbright. 4 Two companies remain under review: TUTRIC and Weihai.

On June 1, 2011, the Department published in the Federal Register a notice extending the time limit for the preliminary results of review by the full 120 days allowed under section 751(a)(3)(A) of the Act, to September 30, 2011. 5 Between February 17, 2011, and September 2, 2011, TUTRIC responded to the Department's original and supplemental questionnaires. Between August 31, 2011, and September 12, 2011, Titan Tire Corporation (“Petitioner”) and Bridgestone Americas, Inc. and Bridgestone Americas Tire Operations, LLC (collectively, “Bridgestone”), a domestic interested party, submitted pre-preliminary comments.

The POR is September 1, 2009, through August 31, 2010.

The products covered by the order are new pneumatic tires designed for off-the-road and off-highway use, subject to exceptions identified below. Certain OTR tires are generally designed, manufactured and offered for sale for use on off-road or off-highway surfaces, including but not limited to, agricultural fields, forests, construction sites, factory and warehouse interiors, airport tarmacs, ports and harbors, mines, quarries, gravel yards, and steel mills. The vehicles and equipment for which certain OTR tires are designed for use include, but are not limited to: (1) Agricultural and forestry vehicles and equipment, including agricultural tractors, 6 combine harvesters, 7 agricultural high clearance sprayers, 8 industrial tractors, 9 log-skidders, 10 agricultural implements, highway-towed implements, agricultural logging, and agricultural, industrial, skid-steers/mini-loaders; 11 (2) construction vehicles and equipment, including earthmover articulated dump products, rigid frame haul trucks, 12 front end loaders, 13 dozers, 14 lift trucks, straddle carriers, 15 graders, 16 mobile cranes, 17 compactors; and (3) industrial vehicles and equipment, including smooth floor, industrial, mining, counterbalanced lift trucks, industrial and mining vehicles other than smooth floor, skid-steers/mini-loaders, and smooth floor off-the-road counterbalanced lift trucks. The foregoing list of vehicles and equipment generally have in common that they are used for hauling, towing, lifting, and/or loading a wide variety of equipment and materials in agricultural, construction and industrial settings. Such vehicles and equipment, and the descriptions contained in the footnotes are illustrative of the types of vehicles and equipment that use certain OTR tires, but are not necessarily all-inclusive. While the physical characteristics of certain OTR tires will vary depending on the specific applications and conditions for which the tires are designed ( e.g., tread pattern and depth), all of the tires within the scope have in common that they are designed for off-road and off-highway use. Except as discussed below, OTR tires included in the scope of the order range in size (rim diameter) generally but not exclusively from 8 inches to 54 inches. The tires may be either tube-type 18 or tubeless, radial or non-radial, and intended for sale either to original equipment manufacturers or the replacement market. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope is dispositive.

Specifically excluded from the scope are new pneumatic tires designed, manufactured and offered for sale primarily for on-highway or on-road use, including passenger cars, race cars, station wagons, sport utility vehicles, minivans, mobile homes, motorcycles, bicycles, on-road or on-highway trailers, light trucks, and trucks and buses. Such tires generally have in common that the symbol “DOT” must appear on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Such excluded tires may also have the following designations that are used by the Tire and Rim Association:

• P—Identifies a tire intended primarily for service on passenger cars;

• LT—Identifies a tire intended primarily for service on light trucks; and,

• ST—Identifies a special tire for trailers in highway service.

• TR—Identifies a tire for service on trucks, buses, and other vehicles with rims having specified rim diameter of nominal plus 0.156” or plus 0.250”;

• MH—Identifies tires for Mobile Homes;

• HC—Identifies a heavy duty tire designated for use on “HC” 15” tapered rims used on trucks, buses, and other vehicles. This suffix is intended to differentiate among tires for light trucks, and other vehicles or other services, which use a similar designation.

• Example: 8R17.5 LT, 8R17.5 HC;

• LT—Identifies light truck tires for service on trucks, buses, trailers, and multipurpose passenger vehicles used in nominal highway service; and

• MC—Identifies tires and rims for motorcycles.

The following types of tires are also excluded from the scope: pneumatic tires that are not new, including recycled or retreaded tires and used tires; non-pneumatic tires, including solid rubber tires; tires of a kind designed for use on aircraft, all-terrain vehicles, and vehicles for turf, lawn and garden, golf and trailer applications. Also excluded from the scope are radial and bias tires of a kind designed for use in mining and construction vehicles and equipment that have a rim diameter equal to or exceeding 39 inches. Such tires may be distinguished from other tires of similar size by the number of plies that the construction and mining tires contain (minimum of 16) and the weight of such tires (minimum 1500 pounds).

On January 10, 2011, Weihai submitted a letter stating that it had no shipments of OTR tires during the POR. 19 The Department reviewed the CBP data it had obtained for respondent selection purposes, and found that Weihai was not listed as having entered subject merchandise during the POR. 20 On February 7, 2011, the Department sent an inquiry to CBP regarding whether Weihai had any shipments of subject merchandise that entered during the POR and requesting that CBP inform the Department within ten days if Weihei had shipments of subject merchandise that entered during the POR. 21 We did not receive a response from CBP within the allotted ten days. Therefore, in accordance with 19 CFR 351.213(d)(3), we intend to rescind the review with respect to Weihai because there is no evidence on the record to indicate that Weihai had sales of subject merchandise to the United States during the POR.

No party contested the Department's treatment of the PRC as a non-market economy (“NME”) country, and the Department has treated the PRC as an NME country in all past antidumping duty investigations and administrative reviews. 22 No interested party in this case has argued that we should do otherwise. Pursuant to section 771(18)(C)(i) of the Act, designation as an NME country remains in effect until it is revoked by the Department. As such, we continue to treat the PRC as an NME in this segment of the proceeding.

Section 773(c)(1) of the Act directs the Department to base NV on the NME producer's factors of production (“FOPs”), valued in a surrogate market economy (“ME”) country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall use, to the extent possible, the prices or costs of the FOPs in one or more ME countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Factor Valuations” section below. 23

The Department determined that India, the Philippines, Indonesia, Thailand, Ukraine, and Peru are countries comparable to the PRC in terms of economic development. 24 Once we have identified the countries that are economically comparable to the PRC, we select an appropriate surrogate country by determining whether an economically comparable country is a significant producer of comparable merchandise and whether the data for valuing FOPs are both available and reliable.

The Department has determined that India is the appropriate surrogate country for use in this review. The Department based its decision on the following facts: (1) India is at a level of economic development comparable to that of the PRC; (2) India is a significant producer of comparable merchandise; and (3) India provides the best opportunity to use quality, publicly available data to value the FOPs. Bridgestone provided comments on March 15, 2011, arguing that India is the appropriate surrogate country for use in this review. Additionally, the data submitted by Titan, Bridgestone and TUTRIC for our consideration as potential surrogate values are sourced from India. For these reasons, and because no party has argued for a different country, we have selected India as the surrogate country and, accordingly, have calculated NV using Indian prices to value the respondent's FOPs, when available and appropriate. See Surrogate Value Memorandum. We have obtained and relied upon publicly available information wherever possible.

In the Initiation Notice, the Department explained the process by which exporters and producers not being individually reviewed may obtain separate-rate status in NME reviews. The process requires exporters and producers to submit a separate-rate status application or separate-rate status certification (“SRC”). 25 However, the standard for eligibility for a separate rate (which is whether a firm can demonstrate an absence of both de jure and de facto government control over its export activities) has not changed. On December 27, 2011, TUTRIC filed a timely response to the Department's SRC. 26

In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assessed a single antidumping duty rate. 27 It is the Department's policy to assign all exporters of merchandise subject to review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. 28 Exporters can demonstrate this independence through the absence of both de jure and de facto government control over export activities. The Department analyzes each entity exporting the subject merchandise under a test arising from the Notice of Final Determination of Sales at Less Than Fair Value: Sparklers From the People's Republic of China, 56 FR 20588, at Comment 1 (May 6, 1991) (“ Sparklers” ), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585, 22587 (May 2, 1994) (“ Silicon Carbide” ). However, if the Department determines that a company is wholly foreign-owned or located in an ME, then a further separate rate analysis is not necessary to determine whether it is independent from government control. 29

TUTRIC submitted information indicating that it is partly owned by a PRC company. Therefore, the Department must analyze whether TUTRIC can demonstrate the absence of both de jure and de facto governmental control over export activities.

The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) other formal measures by the government decentralizing control of companies. 30

The evidence provided by TUTRIC supports a preliminary finding of de jure absence of governmental control based on the following: (1) An absence of restrictive stipulations associated with the individual exporters' business and export licenses; (2) there are applicable legislative enactments decentralizing control of the companies; and (3) there are formal measures by the government decentralizing control of companies. 31

Typically, the Department considers four factors in evaluating whether each respondent is subject to de facto governmental control of its export functions: (1) Whether the export prices are set by or are subject to the approval of a governmental agency; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. 32 The Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates. For TUTRIC, we determine that the evidence on the record supports a preliminary finding of de facto absence of government control based on record statements and supporting documentation showing the following: (1) TUTRIC sets its own export prices independent of the government authority; (2) TUTRIC retains the proceeds from its sales and makes independent decisions regarding disposition of profits or financing of losses; (3) TUTRIC has the authority to negotiate and sign contracts and other agreements; and (4) TUTRIC has autonomy from the government regarding the selection of management. 33

The evidence placed on the record of this review by TUTRIC demonstrates an absence of de jure and de facto government control with respect to its exports of the merchandise under review, in accordance with the criteria identified in Sparklers and Silicon Carbide. Therefore, we are preliminarily granting TUTRIC separate-rate status.

Section 401(i) of the Department's regulations states that:

After examining the questionnaire responses and the sales documentation placed on the record by TUTRIC, we preliminarily determine that invoice date is the most appropriate date of sale for TUTRIC. Nothing on the record rebuts the presumption that invoice date should be the date of sale.

To determine whether TUTRIC's sales of OTR tires to the United States were made at less than fair value, we compared export price (“EP”) to NV, as described in the “U.S. Price” and “Normal Value” sections of this notice, below, pursuant to section 771(35) of the Act.

The Department considers the U.S. prices of sales by TUTRIC to be EPs in accordance with section 772(a) of the Act because they were the prices at which the subject merchandise was first sold before the date of importation by the producer/exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States. We calculated EPs based on prices to unaffiliated purchaser(s) in the United States. In accordance with section 772(c)(2)(A) of the Act, where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight and brokerage and handling.

We valued foreign brokerage and handling using a price list of export procedures necessary to export a standardized cargo of goods from India where foreign brokerage and handling were provided by PRC service providers or paid for in renminbi. The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by truck in India as reported in “Doing Business 2010: India” published by the World Bank. 35 Where foreign inland truck freight was provided by PRC service providers or paid for in renminbi, we also based those charges on surrogate rates from India. See “Factor Valuations” section below for further discussion of these surrogate values.

We compared NV to individual EP transactions in accordance with section 777A(d)(2) of the Act, as appropriate. Section 773(c)(1) of the Act provides that the Department shall determine NV using an FOP methodology if: (1) The merchandise is exported from an NME country; and (2) the information does not permit the calculation of NV using home market prices, third country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOPs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. 36 Under section 773(c)(3) of the Act, FOPs include but are not limited to: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. The Department used FOPs reported by TUTRIC for materials, energy and labor.

In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by TUTRIC for the POR. In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate surrogate value (“SV”) to value FOPs, but when a producer sources an input from a market economy and pays for it in market economy currency, the Department normally will value the factor using the actual price paid for the input if the quantities were meaningful and where the prices have not been distorted by dumping or subsidies. 37 To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available SVs (except as discussed below). In selecting the best available information for valuing FOPs in accordance with section 773(c)(1) of the Act, the Department's practice is to select, to the extent practicable, SVs which are non-export average values, contemporaneous with the POR, represent a broad-market average, are product-specific, and tax-exclusive. 38 We therefore consider SVs based on the quality, specificity, and contemporaneity of the data. 39 As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to import SVs a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in Sigma Corp. v. United States, 117 F.3d 1401, 1407-08 (Fed. Cir. 1997).

On March 1, 2011, the Department invited all interested parties to submit publicly available information to value FOPs for consideration in the Department's preliminary results of review. 40 Petitioner, Bridgestone and TUTRIC each submitted publicly available information to value FOPs for the preliminary results between February 17, 2011, and September 8, 2011. A detailed description of all surrogate values used for TUTRIC can be found in the Surrogate Value Memorandum.

For the preliminary results, in accordance with the Department's practice, except where noted below, we used data from the Indian import statistics in the Global Trade Atlas (“GTA”), published by Global Trade Information Services, Inc. (“GTIS”) and other publicly available Indian sources to calculate SVs for TUTRIC's FOPs ( i.e., direct materials, energy, and scrap materials) and certain movement expenses. The GTA reports import statistics, such as from India, in the original reporting currency and thus this data corresponds to the original currency value reported by each country. The record shows that data in the Indian import statistics, as well as those from the other Indian sources, are contemporaneous with the POR, product-specific, and tax-exclusive. 41 In those instances where we could not obtain publicly available information contemporaneous to the POR with which to value factors, we adjusted the SVs using, where appropriate, the Indian Wholesale Price Index (“WPI”) as published in the International Monetary Fund's International Financial Statistics. 42

As explained in the legislative history of the Omnibus Trade and Competitiveness Act of 1988, the Department continues to apply its long-standing practice of disregarding SVs if it has a reason to believe or suspect the source data may reflect subsidized prices. 43 In this regard, the Department has previously found that it is appropriate to disregard such prices from India, Indonesia, South Korea and Thailand because we have determined that these countries maintain broadly available, non-industry specific export subsidies. 44 Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from India, Indonesia, South Korea and Thailand may have benefitted from these subsidies. Accordingly, we disregarded GTA import data from Indonesia, South Korea and Thailand. Additionally, we disregarded prices from NME countries. 45 Finally, imports that were labeled as originating from an “unspecified” country were excluded from the average value, because the Department could not be certain that they were not from either an NME country or a country with generally available export subsidies. 46

TUTRIC claimed that certain of its reported raw material inputs were sourced from an ME country and paid for in ME currencies. When a respondent sources inputs from an ME supplier in meaningful quantities, we use the actual price paid by respondent for those inputs, except when prices may have been distorted by dumping or subsidies. 47 Where we found ME purchases to be of significant quantities ( i.e., 33 percent or more), in accordance with our statement of policy as outlined in Antidumping Methodologies: Market Economy Inputs, 48 we used the actual purchase prices of these inputs to value the full input.

Accordingly, we valued certain of TUTRIC's inputs using the ME currency prices paid where the total volume of the input purchased from all ME sources during the POR exceeds or is equal to 33 percent of the total volume of the input purchased from all sources during the period. Where the quantity of the reported input purchased from ME suppliers was below 33 percent of the total volume of the input purchased from all sources during the POR, and were otherwise valid, we weight-averaged the ME input's purchase price with the appropriate surrogate value for the input according to their respective shares of the reported total volume of purchases. 49 Where appropriate, we added freight to the ME prices of inputs. For a detailed description of the actual values used for the ME inputs reported, see “Analysis Memorandum for the Preliminary Results: Tianjin United Tire & Rubber International Co., Ltd. (“TUTRIC”)”, dated concurrently with this notice (“Prelim Analysis Memorandum”).

With respect to the valuation of technically specified natural rubber (“TSNR”), Bridgestone suggested the Department use prices reported by the Indian Rubber Board (“IRB”), stating that the IRB reports prices for the specific type of TSNR used by TUTRIC and meets all of the Department's SV criteria in that the prices are period-wide, specific to the input, net of taxes and import duties, contemporaneous, and publicly available. Bridgestone further noted that the HTS categories for TSNR import data are basket categories that do not distinguish between grades, and therefore are not as specific to TUTRIC's input as the IRB's data. 50 TUTRIC submitted sections from the IRB's Web site showing that the IRB issued subsidies and other benefits to domestic rubber growers covering the period of 2000 through 2007. 51 Bridgestone countered by asserting that the subsidies do not cover the POR, and that subsidies would affect domestic and imported rubber prices equally, as imports seek to compete in the domestic market. 52

For the preliminary results, we have determined to use Indian import data to value TUTRIC's TSNR, as we did in the previous two segments of the proceeding. 53 Although the IRB provides data more specific to the type of TSNR TUTRIC uses in production, we are unable to identify the source of the prices listed on the IRB's Web site. 54 Moreover, during the investigation, we rejected the IRB's data because we found the data to be “quoted/indicative prices published on a particular day and do not necessarily reflect an actual sale of natural rubber.”  55 Because the Indian import data are known to be based on actual sales that are contemporaneous with the POR, tax-exclusive, and cover the input at issue, we find that they represent the best available information with which to value TSNR in this administrative review.

With respect to the valuation of Tyre cord B fabric (“NYCHFR”) and harness cloth (“HCLOTH”), TUTRIC submitted descriptions of NYCHFR as “Nylon Tire Cord Fabric of High Tenacity Yarn;” and of HCLOTH as “Nylon Tire Cord Fabric of High Tenacity Yarn made of nylon 6.” TUTRIC reported both FOPs in kilograms. Bridgestone proposed using Indian import data corresponding to HTS category 56049000  56 to value both of these FOPs, which was also used in both previous segments of the proceeding and is reported in Rs/kg. 57 TUTRIC proposed HTS categories 59021090  58 and 59021010, 59 which are reported in square meters, but TUTRIC did not provide a conversion formula from kilograms to square meters.

For the preliminary results, we have determined to use Indian import data corresponding to HTS category 56049000, which is not as specific to the input in question, but in the correct unit of measure. However, we intend to request that TUTRIC report a conversion factor for its NYCHFR and HCLOTH (from kg to square meters) subsequent to the issuance of these preliminary results in the event we determine a different HTS category (or categories) to be more representative of the input.

We valued truck freight expenses using a per-unit average rate calculated from data on the infobanc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this Web site contains inland freight truck rates between many large Indian cities. We valued coal using data obtained for grade E coal reported in the 2007 edition of the Indian Minerals Yearbook published by the Indian Bureau of Mines. We valued water using the revised Maharashtra Industrial Development Corporation water rates available at http://www.midcindia.com/water-supply. We calculated the SV for steam based upon the 2009-2010 financial statement of Hindalco Industries Limited. See Surrogate Value Memorandum.

We valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled “Electricity Tariff & Duty and Average Rates of Electricity Supply in India,” dated March 2008. These electricity rates represent actual country-wide, publicly-available information on tax-exclusive electricity rates charged to small, medium, and large industries in India. Because the rates listed in this source became effective on a variety of different dates, we are not adjusting the average value for inflation. In other words, the Department did not inflate this value to the POR because the utility rates represent current rates, as indicated by the effective date listed for each of the rates provided. 60

Section 733(c) of the Act, provides that the Department will value the FOPs in NME cases using the best available information regarding the value of such factors in a ME country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOPs, the Department utilizes, to the extent possible, the prices or costs of FOPs in one or more ME countries that are: (1) At a comparable level of economic development and (2) significant producers of comparable merchandise. 61

Previously, the Department used regression-based wages that captured the worldwide relationship between per capita GNI and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the respondent's cost of labor in NME cases. However, on May 14, 2010, the Court of Appeals for the Federal Circuit (“CAFC”), in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (“ Dorbest ”), invalidated 19 CFR 351.408(c)(3). As a consequence of the CAFC's ruling in Dorbest, the Department no longer relies on the regression-based wage rate methodology described in its regulations.

On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings. 62 In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry-specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry-specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from the International Labor Organization (ILO) Yearbook of Labor Statistics (“Yearbook”).

In these preliminary results, the Department calculated the labor input using the wage method described in Labor Methodologies. To value TUTRIC's labor input, the Department relied on data reported by India to the ILO in Chapter 6A of the Yearbook. The Department further finds the two-digit description under ISIC-Revision 3 (“25—Manufacture of Rubber and Plastics Products”) to be the best available information on the record because it is specific to the industry being examined, and is therefore derived from industries that produce comparable merchandise. Accordingly, relying on Chapter 6A of the Yearbook, the Department calculated the labor input using labor data reported by India to the ILO under Sub-Classification 25 of the ISIC-Revision 3 standard, in accordance with Section 773(c)(4) of the Act. For these preliminary results, the calculated industry-specific wage rate is 49.49 Rs per hour. Because this wage rate does not separate the labor rates into different skill levels or types of labor, the Department has applied the same wage rate to all skill levels and types of labor reported by TUTRIC. 63 A more detailed description of the wage rate calculation methodology is provided in the Surrogate Value Memorandum.

As stated above, the Department used India's ILO data reported under Chapter 6A of Yearbook, which reflects all costs related to labor, including wages, benefits, housing, training, etc. Because the financial statements used to calculate the surrogate financial ratios include itemized detail of indirect labor costs, the Department made adjustments to the surrogate financial ratios as contemplated by Labor Methodologies. 64

Pursuant to 19 CFR 351.408(c)(4), the Department valued factory overhead, selling, general and administrative expenses and profit using non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country. The Department's practice is to disregard financial statements containing evidence that the company received subsidies that the Department has previously found to be countervailable, and where there are other reliable data on the record for purposes of calculating the surrogate financial ratios. 65 For these preliminary results, we used the average of the ratios derived from the financial statements of two Indian producers of OTR tires: Falcon Tyres Ltd. (for the year ending on September 30, 2010) and TVS Srichakra Ltd. (for the year ending on March 31, 2010). We did not use financial statements from two other Indian producers, MRF Limited and JK Tyre and Industries Ltd., because they each contained evidence of receipt of a subsidy which the Department has found to be countervailable. 66 Specifically, these two Indian producers received benefits under the Export Promotion Capital Goods Scheme and the Sales Tax Deferred from Government of Karnataka program, respectively, both programs that the Department has previously determined to be countervailable. 67

TUTRIC reported that scrap compound, scrap bead, scrap cloth and scrap tire were recovered as by-products of the production of subject merchandise and successfully demonstrated that the scrap materials have commercial value. Therefore, we have granted a by-product offset for the quantities of the reported by-product, valued using Indian import data. 68

On August 29, 2011, the Binational Panel issued a Decision of the Panel affirming the International Trade Commission's remand determination concerning Certain Welded Large Diameter Line Pipe from Mexico (Secretariat File No. USA-MEX-2007-1904-03). The Secretariat was instructed to issue a Notice of Completion of Panel Review on the 31st day following the issuance of the Notice of Final Panel Action, if no request for an Extraordinary Challenge Committee was filed. No such request was filed. Therefore, on the basis of the Panel Order and Rule 80 of the Article 1904 Panel Rules, the Panel Review was completed and the panelists were discharged from their duties effective September 29, 2011.

On July 27, 2009, the Department published a CVD order on Kitchen Racks from the PRC. See Certain Kitchen Appliance Shelving and Racks From the People's Republic of China: Countervailing Duty Order, 74 FR 46973 (September 14, 2009) (“ CVD Order ”). On September 1, 2010, we published a notice of “Opportunity to Request Administrative Review” for this CVD order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 75 FR 53635, 53636 (September 1, 2010). On September 30, 2010, Nashville Wire Products Inc. and SSW Holding Company, Inc. (collectively “Petitioners”) requested a review of ten companies. On October 28, 2010, we initiated a review of five of the companies: Wireking; NKS; Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia) (“Leader Metal”); Hangzhou Dunli Import and Export Co., Ltd./Hangzhou Dunli Industry Co., Ltd. (“Dunli”); and Jiangsu Weixi Group Co. (“Jiangsu Weixi”). See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 75 FR 66349, 66351 (October 28, 2010), as corrected by Initiation of Antidumping and Countervailing Duty Administrative Reviews; Correction, 75 FR 69054 (November 10, 2010) (“Initiation Correction”). 1 On November 29, 2010, after receiving further information from Petitioners, we initiated reviews of two additional companies requested by Petitioners: Asia Pacific CIS (Wuxi) Co., Ltd. (“Asia Pacific CIS”) and Hengtong Hardware Manufacturing (Huizhou) Co., Ltd. (“Hengtong”). See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 75 FR 73036, 73038 (November 29, 2010).

In order to select mandatory respondents for this review, we issued questionnaires on December 3, 2010, to the seven companies covered by the review, requesting information about the quantity and value (“Q&V”) of subject merchandise exports made to the United States during the POR (“Q&V questionnaires”). As in the underlying investigation, we did not rely on CBP data for respondent selection because the Harmonized Tariff Schedule of the United States (“HTSUS”) categories that include subject merchandise are broad and contain products other than the subject merchandise. See Memorandum to Susan H. Kuhbach from Joseph Shuler, regarding “Selection of Respondents for the Countervailing Duty Administrative Review of Certain Kitchen Appliance Shelving and Racks from the People's Republic of China” (January 25, 2011) (“Respondent Selection Memorandum”). We received responses from five companies. We confirmed the delivery of the Q&V questionnaires to the two producers/exporters that did not respond, Asia Pacific CIS and Jiangsu Weixi. See Memorandum to the File from Joseph Shuler, regarding “Delivery Confirmation of Quantity and Value Questionnaires” (January 10, 2011) (“Delivery Confirmation Memo”).

On January 25, 2011, we selected Wireking and NKS as mandatory respondents. See Respondent Selection Memorandum.

On January 28, 2011, we issued CVD questionnaires to the Government of the PRC (“GOC”), Wireking, and NKS. On February 14, 2011, we issued a correction to the CVD questionnaire to Wireking and NKS. We received responses to our questionnaires from NKS on March 14, 2011 (“NQR”) and from the GOC and Wireking on March 22, 2011 (“GQR” and “WQR,” respectively).

On June 15, 2011, we issued supplemental CVD questionnaires to the GOC, Wireking, and NKS. We received a partial response from NKS on June, 29, 2011 (“NSQR1a”) and a response to the remaining portion of the supplemental CVD questionnaire on July 15, 2011. On July 13, 2011 we received a response from Wireking (“WSQR1”), and on July 14, 2011, we received a response from the GOC (“GSQR1”).

On April 8, 2011, Petitioners requested that the Department expand its CVD administrative review to include one additional (new) subsidy program. We initiated on this program on June 28, 2011. See Memorandum to Susan Kuhbach from Jennifer Meek and Patricia Tran, regarding “Countervailing Duty Administrative Review of Certain Kitchen Appliance Shelving and Racks from the People's Republic of China: Initiation of New Subsidy Allegation” (June 28, 2011). On July 1, 2011, we issued a questionnaire regarding the new subsidy allegation (“NSA”) to the GOC, Wireking, and NKS. On July 15, 2011, we received responses from the GOC and Wireking regarding the NSA questionnaire, and on July 18, 2011, we received a response to the NSA questionnaire from NKS (“NNSAQR”).

On August 12, 2011, we issued second supplemental questionnaires to the GOC, Wireking, and NKS. On August 19, 2011, we received a response from the GOC and NKS (“GSQR2” and “NSQR2,” respectively). We received Wireking's response on August 26, 2011 (“WSQR2”). On August 26, 2011, we issued a third supplemental questionnaire to the GOC. We received a response from the GOC on September 2, 2011. On September 19, 2011, we issued a third supplemental questionnaire to NKS. We received a response from NKS on September 23, 2011.

On May 13, 2011, we extended the deadline for the preliminary results until September 30, 2011. See Certain Kitchen Shelving and Racks From the People's Republic of China: Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Review, 76 FR 27990 (May 13, 2011).

The scope of the order consists of shelving and racks for refrigerators, freezers, combined refrigerator-freezers, other refrigerating or freezing equipment, cooking stoves, ranges, and ovens. Certain kitchen appliance shelving and racks are defined as shelving, baskets, racks (with or without extension slides, which are carbon or stainless steel hardware devices that are connected to shelving, baskets, or racks to enable sliding), side racks (which are welded wire support structures for oven racks that attach to the interior walls of an oven cavity that does not include support ribs as a design feature), and sub-frames (which are welded wire support structures that interface with formed support ribs inside an oven cavity to support oven rack assemblies utilizing extension slides) with the following dimensions:

• Shelving and racks with dimensions ranging from 3 inches by 5 inches by 0.10 inch to 28 inches by 34 inches by 6 inches; or

• Baskets with dimensions ranging from 2 inches by 4 inches by 3 inches to 28 inches by 34 inches by 16 inches; or

• Side racks from 6 inches by 8 inches by 0.10 inch to 16 inches by 30 inches by 4 inches; or

• Sub-frames from 6 inches by 10 inches by 0.10 inch to 28 inches by 34 inches by 6 inches.

The subject merchandise is comprised of carbon or stainless steel wire ranging in thickness from 0.050 inch to 0.500 inch and may include sheet metal of either carbon or stainless steel ranging in thickness from 0.020 inch to 0.20 inch. The subject merchandise may be coated or uncoated and may be formed and/or welded. Excluded from the scope of the order is shelving in which the support surface is glass.

The merchandise subject to the order is currently classifiable in the HTSUS statistical reporting numbers 8418.99.80.50, 7321.90.50.00, 7321.90.60.40, 7321.90.60.90, 8418.99.80.60, 8419.90.95.20, 8516.90.80.00, and 8516.90.80.10. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

We are conducting our analysis in this review on an annual basis, i.e., for the entire calendar year 2009. However, the duties calculated will be applied as follows: for refrigeration shelving duties will be applied to entries from January 7, 2009 through May 6, 2009, and September 9, 2009, through December 31, 2009; for oven racks duties will apply to entries from September 9, 2009, through December 31, 2009. 2

Sections 776(a)(1) and (2) of the Tariff Act of 1930, as amended (“the Act”), provide that the Department shall apply “facts otherwise available” if necessary information is not on the record or if an interested party or any other person: (A) Withholds information that has been requested; (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding; or (D) provides information that cannot be verified as provided by section 782(i) of the Act.

Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information.

As explained in the “Background” section above, two companies in this review, Asia Pacific CIS and Jiangsu Weixi, did not provide a response to the Department's Q&V questionnaire issued during the respondent selection process. We confirmed the delivery of the Q&V questionnaires to these companies. See Delivery Confirmation Memo. Accordingly, we determine that these non-cooperating companies withheld requested information and significantly impeded this proceeding. Specifically, by not responding to requests for information concerning the Q&V of their sales, the companies impeded the Department's ability to select the most appropriate respondents in this review. Thus, we are basing the CVD rate for these non-cooperating companies on facts otherwise available, pursuant to sections 776(a)(2)(A) and (C) of the Act.

We further preliminarily determine that an adverse inference is warranted, pursuant to section 776(b) of the Act. By failing to submit responses to the Department's Q&V questionnaire, these companies did not cooperate to the best of their ability in this review. Accordingly, we preliminarily find that an adverse inference is warranted to ensure that the non-cooperating companies will not obtain a more favorable result than had they fully complied with our request for information.

In deciding which facts to use as adverse facts available (“AFA”), section 776(b) of the Act and 19 CFR 351.308(c)(1) and (2) authorize the Department to rely on information derived from: (1) The petition; (2) a final determination in the investigation; (3) any previous review or determination; or (4) any other information placed on the record. The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the rate is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8932 (February 23, 1998). The Department's practice also ensures “that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. I, at 870 (1994), reprinted at 1994 U.S.C.C.A.N. 4040, 4199.

In applying AFA for these non-cooperative companies, we are guided by the Department's approach in recent CVD investigations and reviews. See, e.g., Aluminum Extrusions From the People's Republic of China: Final Affirmative Countervailing Duty Determination, 76 FR 18521 (April 4, 2011) (“Aluminum Extrusions from the PRC”), and accompanying Issues and Decision Memorandum (“Aluminum Extrusions from the PRC Decision Memorandum”) at “Application of Adverse Inferences: Non-Cooperative Companies” section; 3 Circular Welded Austenitic Stainless Pressure Pipe from the People's Republic of China: Final Affirmative Countervailing Duty Determination, 74 FR 4936 (January 28, 2009), and accompanying Issues and Decision Memorandum at “Application of Facts Available and Use of Adverse Inferences” section; and Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results and Partial Rescission of Countervailing Duty Administrative Review, 74 FR 20923 (May 6, 2009), and accompanying Issues and Decision Memorandum at “SGOC Industrial Policy 2004-2009” section. Under this practice, the Department computes the total AFA rate for non-cooperating companies generally using program-specific rates calculated for the cooperating respondents in the instant review or prior reviews of instant case, or calculated in prior CVD cases involving the country under review (in the instant case, the PRC).

In these preliminary results, for the income tax rate reduction or exemption programs, we are applying an adverse inference that the non-cooperating companies paid no income taxes during 2009. For programs other than those involving income tax rate reduction or exemption programs, we have first sought to apply, where available, the highest, above de minimis subsidy rate calculated for an identical program from any segment of this proceeding. Absent such a rate, we have applied, where available, the highest, above de minimis subsidy rate calculated for a similar program from any segment of this proceeding. Absent an above de minimis subsidy rate calculated for the same or similar program in this proceeding, we have applied the highest non- de minimis rate calculated for the same or similar program (based on treatment of the benefit) in another PRC CVD proceeding. Absent an above de minimis subsidy rate calculated for the same or similar program in any PRC CVD proceeding, we applied the highest calculated subsidy rate for any program otherwise listed from any prior PRC CVD cases, so long as the non-cooperating companies conceivably could have used the program for which the rate was calculated. See Aluminum Extrusions from the PRC Decision Memorandum at “Application of Adverse Inferences: Non-Cooperative Companies” section; see also Lightweight Thermal Paper From the People's Republic of China: Final Affirmative Countervailing Duty Determination, 73 FR 57323 (October 2, 2008), and accompanying Issues and Decision Memorandum at “Selection of the Adverse Facts Available Rate” section. On this basis, we preliminarily determine the AFA subsidy rate for Asia Pacific CIS and Jiangsu Weixi to be 239.33 percent ad valorem.

Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See SAA at 870. The Department considers information to be corroborated if it has probative value. Id. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. The SAA emphasizes, however, that the Department need not prove that the selected facts available are the best alternative information. Id. at 869.

With regard to the reliability aspect of corroboration, we note that the rates were calculated in this review or in recent final CVD determinations. Further, the calculated rates were based upon information about the same or similar programs. Moreover, no information has been presented that calls into question the reliability of these calculated rates that we are applying as AFA. Finally, unlike other types of information, such as publicly available data on the national inflation rate of a given country or national average interest rates, there typically are no independent sources for data on company-specific benefits resulting from countervailable subsidy programs.

With respect to the relevance aspect of corroborating the rates selected, the Department will consider information reasonably at its disposal in considering the relevance of information used to calculate a countervailable subsidy benefit. Where circumstances indicate that the information is not appropriate as AFA, the Department will not use it. See Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996).

In the absence of record evidence concerning these programs due to the non-cooperative Q&V companies' decision not to participate in the review, we have reviewed the information concerning PRC subsidy programs in this and other cases. For those programs for which the Department has found a program-type match, we find that, because these are the same or similar programs, they are relevant to the programs of this case. For the programs for which there is no program-type match, we have selected the highest calculated subsidy rate for any PRC program from which the non-cooperative Q&V companies could receive a benefit to use as AFA. The relevance of these rates is that they are actual calculated CVD rates for a PRC program from which the non-cooperative Q&V companies could actually receive a benefit. Further, these rates were calculated for periods close to the POR in the instant case. Moreover, the failure of these companies to respond to requests for information has “resulted in an egregious lack of evidence on the record to suggest an alternative rate.” Shanghai Taoen Int'l Trading Co., Ltd. v. United States, 360 F. Supp. 2d 1339, 1348 (Ct. Int'l Trade 2005). Due to the lack of participation by the non-cooperative Q&V companies and the resulting lack of record information concerning their use of programs under review, the Department has corroborated the rates it selected to the extent practicable.

For a detailed discussion of the AFA rates selected for each program under review, see Memorandum to the File from Jennifer Meek and Alexander Montoro, regarding “Application of Adverse Facts Available Rates for Preliminary Results” (September 30, 2011).

The Department sought information from the GOC about the producers of the wire rod purchased by Wireking and NKS. In particular, for any of the wire rod producers that are not majority-owned by the GOC, the GOC was asked, inter alia, to trace back the ownership to the ultimate individual or state owners. See the Department's January 28, 2011 questionnaire at Section II/Appendix 3. The GOC provided information indicating that several wire rod producers were owned in whole or in part by other companies, but failed to provide the ownership of those other companies. For one wire rod producer, the GOC failed to provide any ownership information.

We preliminarily determine that the GOC has withheld necessary information that was requested of it and, thus, that the Department may rely on “facts available” in making our preliminary determination. See sections 776(a)(1) and (a)(2)(A) of the Act. Moreover, we preliminarily determine that the GOC has failed to cooperate by not acting to the best of its ability to comply with our request for information. Consequently, an adverse inference is warranted in the application of facts available. See section 776(b) of the Act. We are applying the adverse inference that the producers of wire rod used by Wireking and NKS are government authorities that provided a financial contribution as described under section 771(5)(D)(iv) of the Act.

The average useful life period in this proceeding, as described in 19 CFR 351.524(d)(2), is 12 years according to the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System, as revised. See U.S. Internal Revenue Service Publication 946 (2008), How to Depreciate Property, at Table B-2: Table of Class Lives and Recovery Periods. No party in this proceeding has disputed this allocation period.

The Department's regulations at 19 CFR 351.525(b)(6)(i) state that the Department will normally attribute a subsidy to the products produced by the corporation that received the subsidy. However, 19 CFR 351.525(b)(6)(ii)-(v) directs that the Department will attribute subsidies received by certain other companies to the combined sales of the recipient and other companies if: (1) Cross-ownership exists between the companies; and (2) the cross-owned companies produce the subject merchandise, are a holding or parent company of the subject company, produce an input that is primarily dedicated to the production of the downstream product, or transfer a subsidy to a cross-owned company.

According to 19 CFR 351.525(b)(6)(vi), cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. This section of the Department's regulations states that this standard will normally be met where there is a majority voting ownership interest between two corporations or through common ownership of two (or more) corporations. The Preamble to the Department's regulations further clarifies the Department's cross-ownership standard. According to the Preamble , relationships captured by the cross-ownership definition include those where

Thus, the Department's regulations make clear that the agency must look at the facts presented in each case in determining whether cross-ownership exists.

The U.S. Court of International Trade (“CIT”) has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits. See Fabrique de Fer de Charleroi, SA v. United States, 166 F. Supp. 2d 593, 600-604 (CIT 2001).

Wireking stated that it is a wholly foreign-owned company, with its parent companies located outside of the PRC. Wireking also responded that it has no affiliates that are cross-owned within the meaning of 19 CFR 351.525(b)(6). See WQR at 4-5. Therefore, we are limiting our analysis to Wireking.

NKS also stated that it is wholly owned by entities located outside of the PRC. NKS identified several affiliated companies and reported that none of them are located in the PRC. See NQR at 3-5. Therefore, we are limiting our analysis to NKS.

Based upon our analysis and the responses to our questionnaires, we determine the following:

Under Article 8 of the FIE Tax Law, a foreign-invested enterprise (“FIE”) that is “productive” and is scheduled to operate for more than ten years may be exempted from income tax in the first two years of profitability and pay income taxes at half the standard rate for the subsequent three years. See GQR at 23. The GOC claims that the “Two Free, Three Half” program was terminated effective January 1, 2008, by the Enterprise Income Tax Law but companies already enjoying the preference were permitted to continue. See GQR at 23-24 and Exhibits 1, 3 and 4.

The Department has previously found this program countervailable. See CFS Decision Memorandum at 11-12; see also Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China: Final Affirmative Countervailing Duty Determination, Final Affirmative Critical Circumstances Determination, 75 FR 57444 (September 21, 2010), and accompanying Issues and Decision Memorandum at 25.

NKS reported that it used this program during 2009. See NQR at 12.

We preliminarily determine that the exemption or reduction of the income tax paid by productive FIEs under this program confers a countervailable subsidy. The exemption/reduction is a financial contribution in the form of revenue forgone by the GOC, and it provides a benefit to the recipient in the amount of the tax savings. See section 771(5)(D)(ii) of the Act and 19 CFR 351.509(a)(1). We also preliminarily determine that the exemption/reduction afforded by this program is limited as a matter of law to certain enterprises, i.e., “productive” FIEs and, hence, is specific under section 771(5A)(D)(i) of the Act.

To calculate the benefit, we treated the income tax savings received by NKS as a recurring benefit, consistent with 19 CFR 351.524(c)(1). To compute the amount of the tax savings, we compared the income tax that NKS would have paid in the absence of the program with the income tax that NKS actually paid during 2009.

We divided the benefits received in 2009 by NKS's 2009 total sales, in accordance with 19 CFR 351.525(b)(6)(i). On this basis, we preliminarily determine that NKS received a countervailable subsidy of 1.00 percent ad valorem under this program.

To promote economic development and attract foreign investment, “productive” FIEs located in coastal economic zones, special economic zones or economic and technical development zones in the PRC were subject to preferential tax rates of 15 percent or 24 percent, depending on the zone. See GQR at 5. This program was created on June 15, 1988, pursuant to the Provisional Rules on Exemption and Reduction of Corporate Income Tax and Business Tax of FIEs in Coastal Economic Development Zone issued by the Ministry of Finance, and continued under Article 7 of the FIE Tax Law on July 1, 1991. See GQR at Exhibit 3.

As a result of the transition provisions of the new Enterprise Income Tax Law, which came into force on January 1, 2008, enterprises that were eligible for the reduced rates of 15 percent or 24 percent are to be gradually transitioned to the uniform rate of 25 percent over a five-year period. See GQR at 6 and Exhibit 2.

In the underlying investigation, we determined that this program conferred a countervailable benefit. See Kitchen Racks Decision Memorandum at 11-12. No interested party provided new evidence that would lead us to reconsider our earlier finding. See, e.g., Live Swine from Canada; Final Results of Countervailing Duty Administrative Reviews, 61 FR 52408, 52420 (October 7, 1996) (“{I}t is the Department's policy not to re-examine the issue of that program's countervailability in subsequent reviews unless new information or evidence of changed circumstances is submitted which warrants reconsideration.”). Therefore, we continue to find that these tax benefits confer a countervailable subsidy.

NKS reported paying a reduced income tax rate during the POR under the program. See NQR at 10-11.

To calculate the benefit, we treated the income tax savings received by NKS as a recurring benefit, consistent with 19 CFR 351.524(c)(1). To compute the amount of the tax savings, we compared the income tax NKS would have paid in the absence of the program ( i.e., at the 25 percent rate) with the income tax that NKS actually paid during the 2009 ( i.e., at the reduced rate).

We divided the benefits received by NKS in 2009 by its 2009 total sales, in accordance with 19 CFR 351.525(b)(6)(i). On this basis, we preliminarily determine that NKS received a countervailable subsidy of 0.77 percent ad valorem under this program.

Pursuant to the Circular on Temporarily Not Collecting City Maintenance and Construction Tax and Education Fee Surcharge for FIEs and Foreign Enterprises (GUOSHUIFA {1994} No. 38), the local tax authorities exempt all FIEs and foreign enterprises from the city maintenance and construction tax and the education fee surcharge. See GQR at 10 at Exhibit 6 and KASR Decision Memorandum at 7.

In the underlying investigation, we determined that this program conferred a countervailable benefit, where this program was referred to as “Exemption from City Construction Tax and Education Tax for FIEs in Guangdong Province.” See Kitchen Racks Decision Memorandum at 13. No interested party provided new evidence that would lead us to reconsider our earlier finding. Therefore, we continue to find that these tax exemptions confer a countervailable subsidy.

Both NKS and Wireking stated they have never paid the City Maintenance and Construction Taxes or Education Fee Surcharges. See WQR at 10 and NKS at 11. These taxes are calculated as a percentage of the value added tax (“VAT”) and business and consumption taxes paid by enterprises. Wireking reported the amount it would have paid during the POR had it been subject to the City Maintenance and Construction Taxes or Education Fee Surcharges. See WSQR1 at 5. NKS states it did not pay any VAT, business or consumption tax and therefore, would not have paid this tax even if had not been exempted under this program. See NKSQR3 at 1.

To calculate the benefit, we treated Wireking's tax savings as a recurring benefit, consistent with 19 CFR 351.524(c)(1), and divided the company's savings received during 2009 by the company's total 2009 sales. To compute the amount of the city maintenance and construction tax savings, we compared what Wireking would have paid in the absence of the program (seven percent of the total of VAT, business tax, and consumption tax paid during 2009) with what it paid (zero). To calculate the amount of the savings from the educational fee surcharge exemption, we compared what Wireking would have paid in the absence of the program (three percent of total of VAT, business tax, and consumption tax paid during 2009) with what it paid (zero). Id. On this basis, we preliminarily determine the countervailable subsidy to be 0.54 percent ad valorem for Wireking.

According to the GOC, this program was established in June 2003 and was terminated in December 2008. The purpose of this program was to increase the popularity and competitiveness of the product brands and, to be eligible for awards, an enterprise must have been designated as a “Famous Trademark of China,” “Chinese Famous Product,” “Famous Trademark of Guangdong province,” or “Guangdong Famous Product.” See GSQR1 at 12-13 and Exhibit 4. The GOC stated that the government authority responsible for administering this program was the Shunde Economic and Trade Bureau (currently known as Shunde Economic Promotion Bureau). Id.; see also GSQR2 at Exhibit 1.

Wireking was approved for a grant under this program in 2008 and received these funds in 2009. See GSQR2 at Exhibit 1 and WQR at 13.

We preliminarily determine that Wireking received a countervailable subsidy during the POR under this program. We find the grant to be a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. See 19 CFR 351.504(a). Based on information provided on the record, we further preliminarily determine that grants under this program are de facto specific based on the limited number of users. See section 771(5A)(D)(iii)(I) of the Act. See also GSQR2 at Exhibit 1.

To calculate the countervailable subsidy, we used our standard methodology for non-recurring grants. See 19 CFR 351.524(b). As Wireking was approved for the funds in 2008 and received payment in 2009, we first applied the “0.5 percent test,” pursuant to 19 CFR 351.524(b)(2) using Wireking's 2008 total sales. The grant amount was less than 0.5 percent of Wireking's 2008 total sales. Thus, in accordance with 19 CFR 351.524(b)(2), we expensed the entire amount of the grant and attributed the benefit to Wireking's total sales in the year of receipt ( i.e., 2009). On this basis, we preliminarily find a countervailable subsidy of 0.10 percent ad valorem for Wireking.

The GOC confirmed that the International Market Exploration Fund program under which Wireking received assistance in 2009 is the same program as the “International Market Development Fund Grants for Small and Medium Sized Enterprises” program (also known as “SME Fund”, “Medium & Small Size Enterprise International Market Expansion Assistance” program or “International Exhibition Show Assistance” program) previously investigated by the Department and found countervailable; inter alia, in Aluminum Extrusions from the PRC. See the Department's August 12, 2011, GOC second supplemental questionnaire at Attachment 1 and GSQR2 at 2.

Wireking reported receiving funds under this program in 2009. See WQR at 13.

We preliminarily determine that Wireking received a countervailable subsidy during the POR under this program. We find the grant to be a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. See 19 CFR 351.504(a). Further, we find the grant to be specific under section 771(5A)(B) of the Act because receipt of the grant is contingent upon export performance.

To calculate the countervailable subsidy, we used our standard methodology for non-recurring grants. See 19 CFR 351.524(b). Treating the year of receipt as the year of approval, we applied the “0.5 percent test,” pursuant to 19 CFR 351.524(b)(2). The 2009 grant amount was less than 0.5 percent of Wireking's 2009 export sales. Thus, in accordance with 19 CFR 351.524(b)(2), we expensed the entire amount of the grant to 2009 and attributed the benefit to Wireking's 2009 export sales. On this basis, we preliminarily find a countervailable subsidy of 0.02 percent ad valorem for Wireking.

Wireking reported that it received a grant but was unable to identify the program under which it was given. See WSQR1 at 4. Wireking claims the only information it has regarding this grant is what is listed on the receipt from a local finance bureau. See WSQR2 at 2-3. Wireking also states it has been unable to gather more information from the local finance bureau that distributed the funds. Based on the information it has, Wireking believes the grant was related to exports. We will continue to gather information regarding this program for the final results.

Based on the translated information provided by Wireking regarding the receipt of this grant, we preliminarily find that the grant under this program conferred a countervailable subsidy. We find the grant to be a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. See 19 CFR 351.504(a). Further, we find the grant to be specific under section 771(5A)(B) of the Act because receipt of the grant is contingent upon export performance.

To calculate the countervailable subsidy, we used our standard methodology for non-recurring grants. See 19 CFR 351.524(b). As the approval date is unknown, we are treating the year of receipt, 2009, as the year of approval as facts available under section 776(a)(1) of the Act. We applied the “0.5 percent test,” pursuant to 19 CFR 351.524(b)(2). The grant amount was less than 0.5 percent of Wireking's 2009 export sales. Thus, in accordance with 19 CFR 351.524(b)(2), we expensed the entire amount of the grant to 2009 and attributed the benefit to Wireking's 2009 export sales. On this basis, we preliminarily determine the countervailable subsidy attributable to Wireking to be 0.06 percent ad valorem under this program.

According to the GOC, the Zhuhai Export Trade Grant program was established pursuant to ZWJM (2009) No. 28 and came into effect in November 2008. The purpose of the program is to maintain the stable development of international trade. See GSQR1 at 39-44 and Exhibit 9. The GOC stated that the government authorities responsible for approving and administering the program are the Zhuhai Foreign Economic and Trade Corporation Bureau and the Zhuhai Finance Department. See GSQR1 at 39 and Exhibit SGQ-9. To be eligible for assistance under this program, a company must be registered in the Department of Industry and Commerce of Zhuhai City, must not have committed a significant unlawful act or behaved illegally in the last two years, must have exported at least USD 1 million in 2008 and 2009, and must have increased its exports in 2009 over 2008. See GSQR1 at 43.

NKS reported that it received a grant under this program during 2009. See NSQR1a at 3.

We preliminarily determine that NKS received a countervailable subsidy during the POR under this program. We find the grant to be a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. See 19 CFR 351.504(a). Further, we find the grant to be specific under section 771(5A)(B) of the Act, because receipt of the grant is contingent upon export performance.

To calculate the countervailable subsidy, we used our standard methodology for non-recurring grants. See 19 CFR 351.524(b). As NKS was approved for the funds in 2009, we applied the “0.5 percent test,” pursuant to 19 CFR 351.524(b)(2) using NKS's 2009 total export sales. The 2009 grant amount was less than 0.5 percent of NKS's 2009 total export sales. Thus, in accordance with 19 CFR 351.524(b)(2), we expensed the entire amount of the grant to 2009. In accordance with 19 CFR 351.525(b)(2), we attributed the benefit to NKS's 2009 total export sales. On this basis, we preliminarily find a countervailable subsidy of 0.02 percent ad valorem for NKS.

According the GOC, the Guangdong Supporting Fund program was established in 2009 with the purpose of helping enterprises affected by the economic crisis and maintaining employment. The GOC stated that the government authorities responsible for administering the program are the Guangdong Labor and Social Security Department, the Guangdong Financial Department and the local tax bureau. See GSQR1 at Exhibit 11. The Zhuhai Human Resource and Social Security Bureau is responsible for disbursing payments from the fund. See GSQR1 at 45. To be eligible, a company should be among the industries affected heavily by the financial crisis or the company must be in difficult position. See GSQR1 at 47. The GOC provided Yuelaoshefa (2009) No. 6, which defines “enterprises in difficulty” as enterprises in the “Clothing, textile, toys, printing, packing, electronics, house appliance, hardware and plastics, and furniture business which have been significantly influenced by the international financial crisis * * * and have passed the identification of enterprises in difficulty.” See GSQR1 at Exhibit 11.

NKS reported that it received a benefit during 2009. See NSQR1a at 3. According to the GOC, NKS received funding from the “enterprise in a difficult position fund.” See GSQR2 at 3.

We preliminarily determine that NKS received a countervailable subsidy during the POR under this program. We find the grant to be a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. See 19 CFR 351.504(a). We further determine preliminarily that grants under this program are limited to specific industries ( i.e., enterprises in difficulty such as clothing, textile, toys, printing, packing, electronics, house appliance, hardware and plastics, and furniture business). Hence, the grants are de jure specific under section 771(5A)(D)(i) of the Act.

To calculate the countervailable subsidy, we used our standard methodology for non-recurring grants. See 19 CFR 351.524(b). We applied the “0.5 percent test,” pursuant to 19 CFR 351.524(b)(2) using NKS's 2009 total sales. The 2009 grant amount was less than 0.5 percent of NKS's 2009 total sales. Thus, in accordance with 19 CFR 351.524(b)(2), we expensed the entire amount of the grant to 2009 and attributed the benefit to NKS's 2009 total sales. On this basis, we preliminarily find a countervailable subsidy of 0.06 percent ad valorem for NKS.

In the underlying investigation, we determined that this program conferred a countervailable subsidy. See Kitchen Racks Decision Memorandum at 14-16. No interested party provided new evidence that would lead us to reconsider our earlier findings that the GOC's predominant role in the PRC's wire rod market renders domestic prices unusable as benchmarks or that the subsidy conferred is specific. See Kitchen Racks Decision Memorandum at 15-16. Therefore, our analysis focuses on whether the producers of the wire rod used by Wireking and NKS during the POR were authorities within the meaning of section 771(5)(B) of the Act and the extent of the benefit provided.

As discussed in the “Use of Facts Otherwise Available and Adverse Inferences” section, above, we preliminarily determine that the wire rod producers for whom the GOC did not provide complete ownership information are authorities. For one wire rod producer, the ownership information submitted by the GOC indicates majority state ownership. In tires from the PRC, the Department determined that majority government ownership of an input producer is sufficient to qualify it as an “authority.” See Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Negative Determination of Critical Circumstances, 73 FR 40480 (July 15, 2008) and accompanying Issues and Decision Memorandum at 10. Thus, we preliminarily determine this supplier is an authority. For the final wire rod producer, which is owned by individuals, the GOC has submitted incomplete information. Consistent with section 782(d) of the Act, we intend to seek further information. See “Programs for Which More Information is Required” section of this notice, below. For these preliminary results, however, as we are still gathering information on this wire rod producer, we are not including purchases of wire rod produced by this company in the calculation. Based on our findings that certain wire rod producers are authorities, we preliminarily determine that the GOC is providing a good and, hence, a financial contribution under section 771(5)(D)(iii) of the Act.

To determine whether this financial contribution results in a subsidy to the Kitchen Racks producers, we followed 19 CFR 351.511(a)(2) for identifying an appropriate market-based benchmark for measuring the adequacy of the remuneration for the wire rod. As in the underlying investigation, we have relied upon tier two benchmarks, i.e., world market prices available to purchasers in the PRC, to determine the existence and extent of the benefit to Wireking and NKS. See Kitchen Racks Decision Memorandum at 8. Petitioners submitted U.S. domestic prices for wire rod, but we have not included these in our benchmark because they do not represent world market prices available to purchasers in the PRC. Instead, we have used the Steel Business Briefing export prices for wire from Turkey, Black Sea, and Latin America which were submitted by Wireking. See Wireking's Comments on Benchmarking, June 15, 2011, and Memorandum to the File, regarding “Wire Rod Benchmark Prices” (September 30, 2011). This is consistent with the Department's use of data from industry publications such as the Steel Business Briefing in other recent CVD proceedings involving the PRC. See, e.g., Wire Decking From the People's Republic of China: Final Affirmative Countervailing Duty Determination, 75 FR 32902 (June 10, 2010), and accompanying Issues and Decision Memorandum at “Provision of HRS Steel for LTAR” section.

Under 19 CFR 351.511(a)(2)(iv), when measuring the adequacy of remuneration under tier one or tier two, the Department will adjust the benchmark price to reflect the price that a firm actually paid or would pay if it imported the product, including delivery charges and import duties. Regarding delivery charges, we have included the freight charges that would be incurred to deliver wire rod to the respondents' plants. We have also added import duties, as reported by the GOC, and VAT applicable to imports of wire rod into the PRC. We have compared these prices to the respondents' actual purchase prices, including any taxes and delivery charges incurred to deliver the product to their plants.

Comparing the adjusted benchmark prices to the prices paid by the respondents for the wire rod they purchased, we preliminarily determine that the GOC provided wire rod for LTAR, and that a benefit exists in the amount of the difference between the benchmark and what the respondents paid. See 19 CFR 351.511(a). We divided the difference between the amounts actually paid by Wireking and NKS for wire rod and what they would have paid under the benchmark in 2009, by the two companies' respective total sales in 2009. On this basis, we preliminarily determine the countervailable subsidy to be .82 percent and 0.46 percent ad valorem for Wireking and NKS, respectively.

In the underlying investigation, we determined that this program conferred a countervailable benefit. See Kitchen Racks Decision Memorandum at 5-6 and 13. No interested party provided new evidence that would lead us to reconsider our earlier finding that there is a financial contribution that is specific. Therefore, our analysis is focused on whether a benefit was conferred during the POR.

Both Wireking and NKS purchased electricity and provided monthly usage and payment data. See NQR at 12, NSQR1a at 8, NSQR2 at 3; WQR at 11, WSQR1 at 6, WSQR2 at 6.

To determine the existence and amount of any benefit from this program, we selected the highest electricity rates that were in effect during the POR, consistent with our approach in the investigation. The GOC provided electricity rate schedules for 2009, including the new rates based on the price adjustment that occurred in November 2009. See GQR at 23 and Exhibit GQ8-9. Based on these rate schedules, we have constructed benchmark peak, normal, and valley rates for the “large industrial” user category, including the highest provincial rate for the base rate.

Consistent with our approach in drill pipe from the PRC we first calculated the variable electricity costs of NKS and Wireking by multiplying the monthly kilowatt hours (“KWH”) consumed at each price category (peak, normal, and valley) by the corresponding electricity rates they paid. See Drill Pipe From the People's Republic of China; Final Affirmative Countervailing Duty Determination, Final Affirmative Critical Circumstances Determination, 76 FR 1971 (January 11, 2011), and accompanying Issues and Decision Memorandum at “Provision of Electricity for LTAR” section. Next, we calculated the benchmark variable electricity cost by multiplying the monthly KWH consumed at each price category (peak, normal, and valley) by the highest electricity rate charged for each price category. To calculate the benefit for each month, we subtracted the variable electricity charge paid by each respondent during the POR from the monthly benchmark variable electricity cost.

To measure whether the respondents received a benefit with regard to their transmitter capacity charge (a.k.a., base charge), we first multiplied the monthly transmitter capacity charged to the companies by the corresponding consumption quantity, where appropriate. Next, we calculated the benchmark transmitter capacity cost by multiplying companies' consumption quantities by the highest transmitter capacity rate reflected in the electricity rate benchmark chart. To calculate the benefit, we subtracted the transmitter costs paid by the companies during the POR from the benchmark transmitter costs.

We then calculated the total benefit received during the POR under this program by summing the benefits stemming from the respondents' variable electricity payments and transmitter capacity payments.

We divided the benefit by the respondents' total sales in POR. On this basis, we preliminarily determine net countervailable subsidy rates of 0.62 percent ad valorem for Wireking and 0.58 percent ad valorem for NKS.

According to the GOC, this program was established in January 2001 and is intended to encourage investors in the Shunde district, and to promote the development of the economy and technology. The GOC has reported that any enterprise or public institution, government organ, public organization, or individual, that resides in this district and applies for a domestic patent for an invention, utility model patent, or invention authorization, can receive this reward. See GSQR1 at 26.

Shunde Science and Technology Bureau (currently the Shunde Economic Promotion Bureau) administers the program. See id. at 25 and Exhibit 7.

Wireking applied for and received a grant under this program in 2009. See WQR at 11.

Based on our analysis, any potential benefit to Wireking under this program is less than 0.005 percent ad valorem. To determine this, we divided the amount received by Wireking in 2009 by Wireking's total sales in 2009. Where the countervailable subsidy rate for a program is less than 0.005 percent, the Department's practice is to not include that program in the total CVD rate. See, e.g., CFS Decision Memorandum at “Analysis of Programs, Programs Determined Not To Have Been Used or Not To Have Provided Benefits During the POR for GE” section. Thus, without prejudice to the question of whether this program confers a countervailable subsidy, and consistent with our practice, we determine that any potential benefit under this program is not measurable. See CFS Decision Memorandum at 15.

We examined the following programs and preliminarily determine that the producers and/or exporters of the subject merchandise under review did not apply for or receive benefits under these programs during the POR:

1. Income Tax Refund for Reinvestment of Profits in Export-Oriented Enterprises.

2. Income Tax Reduction for Export-Oriented FIEs.

3. Local Income Tax Exemption or Reduction Program for “Productive” FIEs.

4. Preferential Tax Subsidies for Research and Development by FIEs.

5. Income Tax Credits on Purchases of Domestically-Produced Equipment by FIEs.

6. Income Tax Credits for Purchases of Domestically-Produced Equipment by Domestically-Owned Companies.

7. Reduction in or Exemption from Fixed Assets Investment Orientation Regulatory Tax.

8. VAT Rebates for FIEs Purchasing Domestically-Produced Equipment.

9. Import Tariff and VAT Exemptions for FIEs and Certain Domestic Enterprises Using Imported Equipment in Encouraged Industries.

10. Import Tariff Exemptions for the “Encouragement of Investment by Taiwanese Compatriots”.

11. Provision of Nickel for LTAR by the GOC.

12. Government Provision of Water at LTAR to Companies Located in Development Zones in Guangdong Province.

13. Exemption from Land Development Fees for Enterprises Located in Industrial Cluster Zones.

14. Reduction in Farmland Development Fees for Enterprises Located in Industrial Zones.

15. Special Subsidy from the Technology Development Fund to Encourage Technology Development.

16. Exemption from District and Township Level Highway Construction Fees for Enterprises Located in Industrial Cluster Zones.

17. Exemptions from or Reductions in Educational Supplementary Fees and Embankment Defense Fees for Enterprises Located in Industrial Cluster Zones.

18. Exemption from Real Estate Tax and Dike Maintaining Fee for FIEs in Guangdong Province.

19. Import Tariff Refunds and Exemptions for FIEs in Guangdong Province.

20. Preferential Loans and Interest Rate Subsidies in Guangdong Province.

21. Direct Grants in Guangdong Province.

22. Funds for “Outward Expansion” of Industries in Guangdong Province.

23. Land-related Subsidies to Companies Located in Specific Regions of Guangdong Province.

24. Import Tariff and VAT Refunds and Exemptions for FIEs in Zhejiang.

25. Grants to Promote Exports from Zhejiang Province.

26. Land-related Subsidies to Companies Located in Specific Regions of Zhejiang.

27. Special Subsidy from the Technology Development Fund to Encourage Technology Innovation.

28. Subsidies to Encourage Enterprises in Industrial Cluster Zones to Hire Post-Doctoral Workers.

29. Land Purchase Grant Subsidy to Enterprises Located in Industrial Cluster Zones and Encouraged Enterprises.

30. Exemption from Accommodating Facilities Fees for High-Tech and Large-Scale FIEs.

31. Income Tax Deduction for Technology Development Expenses of FIEs.

32. Preferential Land-Use Charges for Newly-Established, Industrial Projects in Zhongshan's Industrial Zones.

33. Reduction of Land Price at the Township Level for Newly-Established, Industrial Projects in Zhongshan's Industrial Zones.

34. Reduction in Urban Infrastructure Fee for Industrial Enterprises in Industrial Zones.

35. Income Tax Rebate for “Superior Industrial Enterprises” in Zhongshan.

36. Accelerated Depreciation for New Technological Transformation Projects “Superior Industrial Enterprises” in Zhongshan.

37. Exemption from the Tax on Investments in Fixed Assets for “Superior Industrial Enterprises” in Zhongshan.

The GOC has provided certain information requested by the Department regarding this newly alleged subsidy. In particular, the GOC has identified the producers of steel strip used by Wireking and NKS as state-owned and has provided more general information regarding the hot-rolled steel industry in the PRC. However, information on the record shows that NKS used cold-rolled strip and that Wireking may have used cold-rolled strip. See NNSAQR at Exhibit 2, WSQR3 at Exhibit 3, and Petitioners' submission regarding benchmarks for the NSA (July 26, 2011). Wireking did not distinguish its purchases of hot- and cold-rolled strip. See WSQR3 at Exhibit 3. To date, the GOC has not provided information about the cold-rolled steel industry in the PRC or about the specificity of any possible subsidy arising from the provision of cold-rolled strip for LTAR. Consistent with section 782(d) of the Act, we intend to seek further information on these issues. Also, we intend to ask Wireking to distinguish its purchases of hot- and cold-rolled strip.

As discussed above in the “I.I. Provision of Wire Rod for LTAR” section, the information submitted by the GOC regarding one wire rod producer is incomplete. Therefore, we intend to seek further information. In particular, we intend to ask the GOC to provide complete translations of the information submitted in its most recent supplemental response, to confirm and establish the completeness of that information, to establish the reliability of the information already provided to gather information on whether the owners are officials of a village committee or other village-level government entity and to seek information regarding the individual owners status as Communist Party of China (“CCP”) officials directly from the CCP or, alternatively, why the GOC cannot obtain or request this information from the CCP.

According the GOC, the Zhuhai Farmer Training Subsidy program was established in 2007 to promote the hiring and training of migrant rural workers. The GOC identified the municipal or district labor and social security department as the administrators of the program. See GSQR1 at 32 and Exhibit SGQ-8. To receive benefits an enterprise must employ more than fifty migrant rural workers from other provinces, have no arrears in the payment of wages, must sign employment contracts with migrant rural workers for more than one year, and have the necessary training place and equipment. See GSQR1 at 32-37.

The GOC's response requires clarification with regard to the information provided on whether this program is administered specific. Consistent with section 782(d) of the Act, we intend to seek further information on this issue.

In accordance with 19 CFR 351.221(b)(4)(i), we calculated individual subsidy rates for the mandatory respondents, Wireking and NKS.

For the non-selected respondents which responded to our requests for Q&V information ( i.e., Leader Metal, Dunli, and Hengtong), we have followed the Department's practice, which is to base the margin on an average of the margins calculated for those companies selected for individual review, excluding de minimis rates or rates based entirely on AFA. See, e.g., Certain Pasta From Italy: Preliminary Results of the 13th (2008) Countervailing Duty Administrative Review, 75 FR 18806, 18811 (April 13, 2010), unchanged in Certain Pasta from Italy: Final Results of the 13th (2008) Countervailing Duty Administrative Review, 75 FR 37386 (June 29, 2010). Therefore, we have preliminarily assigned to Leader Metal, Hangzhou Dunli, and Hengtong the simple average of the rates calculated for Wireking and NKS. We have used a simple average rather than a weighted average because weight averaging the rates of the mandatory respondents risks disclosure of proprietary information.

For the non-selected respondents which did not respond to our requests for Q&V information ( i.e., Jiangsu Weixi and Asia Pacific CIS), we are applying an AFA rate, as described above.

We preliminarily find the net subsidy rate for the producers/exporters under review to be as follows:

If these preliminary results are adopted in our final results of this review, the Department intends to issue appropriate assessment instructions (as described below) directly to CBP 15 days after publication of the final results of this review.

For certain oven racks from the PRC entered, or withdrawn from warehouse for consumption from September 9, 2009, through December 31, 2009, the Department will instruct CBP to assess countervailing duties at the rates applicable to each company shown above and to liquidate such entries. Entries of certain oven racks occurring before September 9, 2009, were already liquidated at the time of the CVD order due to the ITC's finding of threat of material injury on certain oven racks. See CVD Order, 74 FR at 46974-75.

For certain refrigeration shelving from the PRC entered, or withdrawn from warehouse, for consumption from January 7, 2009, through May 6, 2009, and September 9, 2009, through December 31, 2009, the Department will instruct CBP to assess countervailing duties at the rates applicable to each company shown above and to liquidate such entries. Entries of certain refrigeration shelving occurring during the period May 7, 2009, through September 8, 2009, were not suspended for CVD purposes due to the termination of provisional measures. See CVD Order, 74 FR at 46974-75.

The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested. These cash deposit requirements, when imposed, shall remain in effect until further notice.

Interested parties may submit written arguments in case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, limited to issues raised in case briefs, may be filed not later than five days after the date of filing the case briefs. Parties who submit briefs in this proceeding should provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).

In accordance with 19 CFR 351.310(c), interested parties may request a hearing within 30 days after the date of publication of this notice. Unless otherwise specified, the hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs.

Pursuant to section 751(a)(3)(A) of the Act, the Department will publish a notice of the final results of this administrative review within 120 days from the publication of these preliminary results.

We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

NIST hosted three prior Cloud Computing Forum & Workshop events in May 2010, November 2010, and April 2011. The purpose of these workshops was to respond to the request of the Federal Chief Information Officer to NIST to lead federal efforts on standards for data portability, cloud interoperability, and security. The workshops' goals were to initiate engagement with industry to accelerate the development of cloud standards for interoperability, portability, and security; discuss the Federal Government's experience with cloud computing, report on the status of the NIST Cloud Computing efforts, launch and report progress on the NIST led initiative to collaboratively develop a USG Cloud Computing Technology Roadmap among multiple federal and industrial stakeholders, and to advance a dialogue between these groups.

NIST invites members of the public, especially cloud computing community stakeholders to participate in this event as exhibitors. On November 2 and 3, 2011, space will be available for NIST would like to invite 30 academic, industry, and standards developing organizations to exhibit their respective cloud computing work at a demonstration booth or table which is co-located with the event. Interested organizations should contact Romayne Hines by e-mail at romayne.hines@nist.gov or by phone at (301) 975-4500. Exhibitors will be accepted in the order in which their responses are received. The first 30 organizations which respond will be accepted. Responses must be submitted by an authorized representative of the organization. Logistics information will be provided to accepted exhibitors. NIST will provide the exhibit location space and one work table free of charge. Exhibitors are responsible for the cost of the exhibit, including staffing and materials. NIST reserves the right to exercise its judgment in the placement of exhibits. General building security is supplied; however, exhibitors are responsible for transporting and securing exhibit equipment and materials.

All visitors to the NIST site are required to pre-register to be admitted and have appropriate government-issued photo ID to gain entry to NIST. Anyone wishing to attend this meeting must register at http://www.nist.gov/itl/cloud/cloudworkshopiv.cfm by close of business Wednesday, October 26, 2011.

Numerous management measures have recently been proposed or implemented that affect recreational charter boat fishing for Pacific halibut off Alaska. On January 5, 2010, the National Marine Fisheries Service (NMFS) issued a final rule establishing a limited entry permit system for charter vessels in the guided halibut sport fishery in International Pacific Halibut Commission Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska) (75FR554). This permit system is intended to address concerns about the growth of fishing capacity in this fishery sector, which accounts for a substantial portion of the overall recreational halibut catch in Alaska. On March 16, 2011, a size limit on Pacific halibut caught while charter boat fishing for the 2011 fishing season was established (76FR14300). In addition, on July 22, 2011, a Halibut Catch Sharing Plan (76FR44156) was proposed that would alter the way Pacific halibut is allocated between the guided sport ( i.e., the charter sector) and the commercial halibut fishery.

To assess the effect of regulatory restrictions (currently in place or potential) on charter operator and owner behavior and welfare, it is necessary to obtain a better general understanding of the Alaska recreational charter boat industry. Some information useful for this purpose is already collected from existing sources, such as charter vessel logbooks administered by Alaska Department of Fish and Game (ADF&G). However, information on vessel and crew characteristics, services offered to clients, spatial and temporal aspects of their operations and fishing behavior, and costs and earnings information are generally not available from these existing data sources and thus must be collected directly from the industry through voluntary survey efforts.

In order to address this information gap, NMFS' Alaska Fisheries Science Center proposes to conduct a survey of charter vessel owners to collect annual cost and earnings data that will supplement logbook data collected by ADF&G. The proposed data collection will provide basic economic information about the charter sector, including revenues produced from different products and services provided to clients, fixed and variable operating costs and locations of purchases. These data will support improved analysis and of the effects of fisheries regulations on the charter fishing industry, information that is increasingly needed by the Council and NMFS to deal with ongoing halibut resource issues and other fishery management issues involving the charter industry.

The method of data collection will be a survey of charter vessel owners implemented through a mailed questionnaire.

OMB Control Number: None.

Form Number: None.

Type of Review: Regular submission (request for a new information collection).

Affected Public: Individuals or households; business or other for-profit organizations.

Estimated Number of Respondents: 1,200.

Estimated Time per Response: 60 minutes.

Estimated Total Annual Burden Hours: 1,200.

Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

Section 4 of the ESA (16 U.S.C. 1533) contains provisions allowing interested persons to petition the Secretary of Commerce (Secretary) to add a species to, or remove a species from, the List of Endangered and Threatened Wildlife and to designate critical habitat. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries.

On May 9, 2011, we received a petition from Dr. Richard Gierak requesting that we delist coho salmon under the ESA. We also received two similar petitions from the Siskiyou County Water Users Association on June 9 and June 28, 2011, requesting that we delist coho salmon. The June 28 petition cites Dr. Gierak as a preparer. Both the June 9th and June 28th petitions include text that is the same as some of the text in the May 9th petition. Because we received three petitions that requested the same action within a short period of time, we are considering all three petitions jointly in making our 90-day finding.

Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires that we make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating the petitioned action may be warranted. ESA implementing regulations define “substantial information” as the “amount of information that would lead a reasonable person to believe the measure proposed in the petition may be warranted” (50 CFR 424.14(b)(1)). In determining whether a petition presents substantial scientific or commercial information to list or delist a species, we take into account information submitted with, and referenced in, the petition and all other information readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the Federal Register (16 U.S.C. 1533(b)(3)(A)). In evaluating a petition and making a 90-day finding, our regulations require that we consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). If we find that a petition presents substantial information indicating that the requested action may be warranted, section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires the Secretary to conduct a status review of the species.

The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” (16 U.S.C. 1532(6)). A “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1532(20)). Under section 4(a)(1) of the ESA (16 U.S.C. 1533(a)(1)), a species may be determined to be threatened or endangered as a result of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) over-utilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. Regulations implementing the ESA instruct us to consider these same factors when determining whether to delist a species, a subspecies, or a distinct population segment (including Evolutionarily Significant Units (ESUs)) (50 CFR 424.11(d)). Listing determinations are made solely on the basis of the best scientific and commercial data available, after conducting a review of the status of the species, and taking into account efforts made by any state or foreign nation to protect such species. In addition to considering the factors listed above, the ESA implementing regulations state that a species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons: the species is extinct; the species is recovered; or subsequent investigations show the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).

The contents of the three petitions are largely similar and our analysis is based on a consideration of the four regulatory criteria for the minimum requirements for determining whether a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted (50 CFR 424.14(b)). Our analysis of the petitions with regard to these criteria is as follows:

(1) The petitions do not clearly indicate the administrative measure recommended, and contain inconsistencies and errors in the administrative measure being recommended (see 50 CFR 424.14(b)(2)(i)). In all three petitions, the title and a section entitled “Statement identifying the taxon” refer to the entire species of coho salmon; the petitions focus much discussion on coho salmon in the Klamath River, yet also variously discuss information about coho salmon in other parts of California and throughout the Western United States. It is unclear whether the petitioners recognize that coho salmon in the Klamath River basin are part of the larger Southern Oregon/Northern California Coast (SONCC) coho salmon ESU, which is listed as threatened (70 FR 37160; June 28, 2005), and that there are three other ESUs of coho salmon on the west coast that are listed as threatened or endangered under the ESA. The SONCC coho salmon ESU includes all naturally spawned populations of coho salmon in coastal streams between Cape Blanco, Oregon, and Punta Gorda, California, and coho salmon in three artificial propagation programs: the Cole Rivers Hatchery (ODFW stock #52), Trinity River Hatchery, and Iron Gate Hatchery coho hatchery programs (70 FR 37160; June 28, 2005). It is thus also unclear whether the petitioners are requesting that we delist the portion of the SONCC coho salmon ESU that is in the Klamath River basin, delist the entire SONCC coho salmon ESU, or delist coho salmon from one or more additional ESUs throughout some wider area. In addition, the petitions request removing the listing of coho salmon under the California Endangered Species Act, which we have no authority to do, and removing the proposed Federal ESA listing of coho salmon, even though the listing of the SONCC coho salmon ESU is final and not proposed (nor is there any other proposed listing of coho salmon by NMFS at the current time).

(2) The petitions do not contain detailed narrative justifications for the recommended measure of delisting, except as specifically discussed below regarding the claim that coho salmon are not native to the Klamath River basin or to various other parts of California. This is true regardless of what ESU or ESUs the petitioners might have intended to request we delist. The petitions generally argue the extinction of coho is unavoidable due to a variety of threats, the decline of “coho can be directly attributed to Nature's whim,” the Marine Mammal Protection Act is one of the major human activities destroying the coho population through allowing increased predation, and NMFS did not properly consider hatchery origin coho salmon in listing the SONCC coho salmon ESU. However, the information is not presented or synthesized in a manner to indicate the petitioned action may be warranted because of any of the criteria described in 50 CFR 424.11(c) and (d) (see 50 CFR 424.14(b)(2)(ii)). In fact, the petitioners describe a number of current threats to coho salmon that negatively affect the status of the species. The petitioners' argument that extinction is unavoidable is not a consideration in delisting decisions under the ESA or our implementing regulations. The petitioners' arguments that we did not properly consider hatchery origin coho salmon in listing the SONCC coho salmon ESU are incorrect as we addressed these issues in a final rule issued on June 28, 2005 (70 FR 37160). In that final rule, we concluded that the SONCC coho salmon ESU includes the three above mentioned artificial propagation programs because the available information indicated they were no more than slightly divergent from natural populations in their respective watersheds. In making these determinations, we applied our “Policy on the Consideration of Hatchery-Origin Fish in Endangered Species Act Listing Determinations for Pacific Salmon and Steelhead” (70 FR 37204; June 28, 2005).

One particular claim of the petitions deserves additional consideration here. The petitions all make the claim that coho salmon are not native to the Klamath River basin or to various other parts of California. For the Klamath River Basin, they cite the Karuk Tribal Council meeting from 2001 and California Fish and Game documents from 1913 and 2002. For other parts of California, specifically south of San Francisco, they cite a variety of references. They have a narrative justification for this claim that discusses the status of coho salmon in the relevant areas and include the references described above. Although the petitioners do not specifically cite the portion of our regulations dealing with an error at the original time of listing, which would be a factor for consideration of delisting (see 50 CFR 424.11(d)), we nevertheless consider the information they present on this claim. Here we evaluate whether the information provided by the petitioners presents substantial scientific or commercial information that this claim may be warranted. The petitioners cite a Web site as the source of the quotes provided from the Karuk Tribal Council meeting. The Web site does not contain the minutes of said meeting for us to evaluate and the quotes themselves do not provide scientific or anecdotal information on presence of coho salmon in the Klamath River Basin. The quotes that the petitioners provided from the 2002 California Department of Fish and Game report, taken from the 1913 California Fish and Game Commission report, are taken out of context. The 2002 report actually concludes the opposite of the petitioners: that coho salmon are native to the upper Klamath River system, and historically occurred there prior to hatchery stocking. The petitioners' arguments regarding coho salmon not being native to other parts of California, specifically south of San Francisco, were addressed in our 12-month finding and associated status review regarding the endangered Central California Coast ESU of coho salmon (76 FR 6383; February 4, 2011). Based on this analysis, these petitions fail to provide substantial scientific or commercial information that even this limited claim may be warranted under the ESA.

(3) The presentation of information does not provide information regarding the status of listed coho salmon over all or a significant portion of their range, except as specifically discussed above regarding the claim that coho salmon are not native to the Klamath River basin or to various other parts of California (see 50 CFR 424.14(b)(2)(iii)). Again this is true no matter what ESU or ESUs the petitioners intended to request we delist.

(4) Although the petitioners cite some published reports and provide links to some supporting documentation, some of the citations to referenced materials are incomplete (see 50 CFR 424.14(b)(2)(iv)).

After reviewing all three petitions, as well as information readily available in our files, we have determined that the petitions do not present substantial scientific or commercial information indicating the petitioned action may be warranted.

The original noticed published in the Federal Register on September 19, 2011 (76 FR 57958).

Under the Magnuson-Stevens Reauthorized Act, the SSC is the body responsible for reviewing the Council's scientific materials. An earlier FRN indicated that the SSC will discuss fishery management plan (FMP) amendments under development, assessments of black sea bass and tilefish, review advancements in ABC control rule development, review planning information for assessments of Spanish mackerel and cobia to be developed in 2013, and discuss the findings of the National SSC workshop. In addition to these topics, the SSC will also be asked to review additional information on the status of South Atlantic wreckfish, and consider modifying Overfishing Levels (OFL) and Acceptable Biological Catch (ABC) recommendations if warranted.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES ) at least 3 business days prior to the meeting.

As required by section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. 2, notice is hereby given of a meeting of MAFAC. The MAFAC was established by the Secretary of Commerce (Secretary), and, since 1971, advises the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. The complete charter and summaries of prior meetings are located online at http://www.nmfs.noaa.gov/ocs/mafac/ .

This agenda is subject to change.

The meeting is convened to hear presentations and discuss policies and guidance on the following topics: NMFS habitat blueprint, blue carbon initiatives, climate adaptation, NOAA Caribbean strategy, recreational fisheries regional action plans, and implementation of the Commerce and NOAA national aquaculture policies. Updates will be presented on National Ocean Policy implementation, coastal and marine spatial planning, and use of the Multipurpose Marine Cadastre; NOAA budgets; and outlooks for 2012 regulatory and science activities. The meeting will include discussion of various MAFAC administrative and organizational matters and meetings of the standing subcommittees.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mark Holliday, MAFAC Executive Director; 301-427-8004 by October 14, 2011.

The primary purpose of the meeting is to review regulations (a) making it permissible to stack both a limited entry trawl and fixed gear permit on a single vessel at the same time, (b) modifying the season opening date for whiting, (c) allowing vessels to carry multiple gears at the same time, and (d) modification of several identified trawl gear regulations that impair increased efficiency and selectivity. As a secondary priority, the TRREC may focus on other regulations made obsolete by implementation of the new trawl rationalization program in 2011.

Although non-emergency issues not contained in the meeting agenda may come before the TRREC for discussion, those issues may not be the subject of formal action during this meeting. TRREC 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 Fishery Conservation and Management Act, provided the public has been notified of the TRREC intent to take final action to address the emergency.

This meeting is accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the meeting date.

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

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

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

The National Defense Authorization Act (NDAA) (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” provisions and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA):

NMFS originally received an application on February 13, 2003, from Eglin AFB for the taking, by harassment, of marine mammals incidental to programmatic mission activities within the Eglin Gulf Test and Training Range (EGTTR). The EGTTR is described as the airspace over the GOM that is controlled by Eglin AFB. A notice of receipt of Eglin AFB's application and Notice of Proposed IHA and request for 30-day public comment published on January 23, 2006 (71 FR 3474). A 1-year IHA was subsequently issued to Eglin AFB for this activity on May 3, 2006 (71 FR 27695, May 12, 2006).

On January 29, 2007, NMFS received a request from Eglin AFB for a renewal of its 2006-2007 IHA, which expired on May 2, 2007. This application addendum requested revisions to three components of the IHA requirements: protected species surveys; ramp-up procedures; and sea state restrictions. A Notice of Proposed IHA and request for 30-day public comment published on May 30, 2007 (72 FR 29974). A 1-year IHA was subsequently issued to Eglin AFB for this activity on December 11, 2008 (73 FR 78318, December 22, 2008).

On February 17, 2009, NMFS received a request from Eglin AFB for a renewal of its 2008-2009 IHA, which expired on December 10, 2009. No modifications to the activity location, the mission activities, or the mitigation and monitoring measures required under the 2008-2009 IHA were requested by Eglin AFB at that time. A notice of proposed IHA with a 30-day public comment period published on October 19, 2009 (74 FR 53474). A 1-year IHA was subsequently issued to Eglin AFB for this activity on January 27, 2010 (75 FR 5045, February 1, 2010), which expired on January 26, 2011.

On May 16, 2011, NMFS received a request from Eglin AFB for a renewal of its IHA, which expired on January 26, 2011. The IHA application NMFS received on May 16, 2011, is the one considered by NMFS for the current request. Eglin AFB has not had coverage for these activities since the expiration of the IHA on January 16, 2011; however, Eglin AFB has not conducted these activities during the period without MMPA coverage and has waited to resume these training missions until a new MMPA authorization could be issued by NMFS.

A-S gunnery operations may potentially impact marine mammals at or near the water surface. Marine mammals could potentially be harassed, injured, or killed by exploding and non-exploding projectiles, and falling debris (USAF, 2002). However, based on analyses provided in the USAF's 2002 Final Programmatic EA (PEA), Eglin's Supplemental Information Request (2003), and NMFS' 2008 EA, as well as for reasons discussed in the Notice of Proposed IHA (76 FR 43267, July 20, 2011) and later in this document, NMFS concurs with Eglin AFB that gunnery exercises are not likely to result in any injury or mortality to marine mammals. Potential impacts resulting from A-S test operations include direct physical impacts (DPI) resulting from ordnance. Six marine mammal species or stocks are authorized for taking by Level B harassment incidental to Eglin AFB's A-S activities and include: dwarf sperm whale ( Kogia simus ); pygmy sperm whale ( K. breviceps ); Atlantic bottlenose dolphin ( Tursiops truncatus ); Atlantic spotted dolphin ( Stenella frontalis ); pantropical spotted dolphin ( S. attenuata ); and spinner dolphin ( S. longirostris ).

A-S gunnery missions, a “military readiness activity” as defined under 16 U.S.C. 703 note, involve surface impacts of projectiles and small underwater detonations with the potential to affect cetaceans that may occur within the EGTTR. These missions typically involve the use of 25-mm (0.98-in), 40-mm (1.57-in), and 105-mm (4.13-in) gunnery rounds containing, 0.0662 lb (30 g), 0.865 lb (392 g), and 4.7 lbs (2.1 kg) of explosive, respectively. Live rounds must be used to produce a visible surface splash that must be used to “score” the round (the impact of inert rounds on the sea surface would not be detected). The USAF has developed a 105-mm training round (TR) that contains less than 10 percent of the amount of explosive material (0.35 lb; 0.16 kg) as compared to the “Full-Up” (FU) 105-mm (4.13 in) round. The TR was developed as one method to mitigate effects on marine life during nighttime A-S gunnery exercises when visibility at the water surface is poor. However, the TR cannot be used in the daytime since the amount of explosive material is insufficient to be detected from the aircraft.

Water ranges within the EGTTR that are typically used for the gunnery operations are located in the GOM offshore from the Florida Panhandle (areas W-151A, W-151B, W-151C, and W-151D as shown in Figure 1-2 in Eglin's 2011 application). Data indicate that W-151A (Figure 1-3 in Eglin's application) is the most frequently used water range due to its proximity to Hurlburt Field, but activities may occur anywhere within the EGTTR.

Eglin AFB proposes to conduct these mission activities year round during both daytime and nighttime hours. Therefore, NMFS has made the IHA effective for an entire year from September 26, 2011, through September 25, 2012. However, it should be noted that the level of activity has been far lower over the past few years than that predicted to be conducted by the USAF and by NMFS in this document for two reasons. First, many of the training crew members have been engaged in other activities in other parts of the world recently. Second, land ranges are the preferred method of live-fire training. Under the previous IHA, the USAF crews did not use the water ranges due to the excellent availability of land ranges. However, if at some point in the future land ranges may become more difficult to acquire, water ranges are needed to ensure that aircrews can be fully trained. A detailed overview of the activity was provided in the Notice of Proposed IHA (76 FR 43267, July 20, 2011). No changes have been made to the proposed activities.

A notice of receipt of Eglin AFB's application and NMFS' proposal to issue an IHA to the USAF, Eglin AFB, published in the Federal Register on July 20, 2011 (76 FR 43267). During the 30-day public comment period, NMFS only received comments from the Marine Mammal Commission (MMC). Following are the comments from the MMC and NMFS' responses.

Comment 1: The MMC recommends that NMFS withhold issuing the IHA until the Air Force has provided a clear, step-by-step description of how it estimated the zones of exposure and associated number of takes for the sound exposure level thresholds, accounting for the multiple types and quantities of rounds to be used for representative missions.

Response: NMFS does not agree with the MMC that the IHA should not be issued until additional information regarding the zones of exposure and number of takes can be provided. The methodology and analytical approach for determining the exposure zones and estimating the number of marine mammal takes was fully explained in the 2011 IHA application, 2011 IHA Notice of Proposed IHA (76 FR 43267, July 20, 2011), as well as in the previous IHAs and supporting documents issued for this activity. Readers should refer to those documents for additional information, but a summary follows.

Three sources of information are necessary for estimating the potential impacts of in-water noise from explosive detonations on marine mammals: (1) The zone of influence, defined as the distance from the explosion to which a particular energy (dB) or pressure (psi) threshold extends; (2) the density of animals potentially occurring within the zone of influence; and (3) the number of distinct firing events. Table 6-1 in the 2011 IHA application provides the criteria and thresholds used for assessing potential noise impacts to marine mammals and Table 6-2 provides the estimated range from the detonation point to which the various thresholds extend. Threshold ranges were calculated for two seasons (summer and winter) and depth strata (80 m and 160 m) in order to reasonably bound the environmental conditions under which A-S gunnery activities may occur. As a conservative measure, the greatest range within each season and depth strata were used to estimate marine mammal takes. In addition, where dual criteria exist ( e.g., pressure and energy thresholds for explosives), the criterion that resulted in the most conservative estimate ( i.e., largest amount of take) was used. Appendix A of the 2011 IHA application provides a more detailed explanation on how the ranges were calculated for the criteria and thresholds used in this analysis.

As discussed in section 3 of the 2011 IHA application and in the 2011 IHA Notice of Proposed IHA (76 FR 43267, July 20, 2011), marine mammal densities were derived from the Navy OPAREA Density Estimates (NODE) for the GOMEX OPAREA report, and were determined by either model-derived estimates or literature-derived estimates. In order to address potential negative bias in the underlying survey results, Eglin AFB adjusted density estimates using marine mammal submergence factors. The density estimates for marine mammals occurring in the EGTTR are provided in Table 3.

The final source of information required to conduct the analysis is the number of distinct firing events from A-S gunnery missions. The method of deriving the number of firing events may differ for energy and pressure metrics applied to explosive detonations. For energy metrics, the number of firing events is synonymous with the quantity of rounds expended because energy is proportional to the total charge weight. When utilizing energy threshold metrics, the energy released from multiple shots is evaluated as an additive exposure and, therefore, firing events must consider all shots fired. Conversely, it is not necessarily appropriate to consider pressure as additive when multiple explosions occur simultaneously or over a very short time frame, and an alternative method for estimating the number of events for use in take calculations is applied. Typically, pressure-based thresholds are based on the maximum level received by an animal in pounds per square inch (psi).

The method for estimating the number of firing events for 40 mm and 25 mm rounds, with respect to the pressure metric, is based on firing protocols. For example, these rounds are generally fired in bursts, with each burst lasting from 2 to 10 seconds. When the average cetacean density and swim speed of approximately 3 knots (1.5 m/sec) are taken into consideration, there is not enough time for new animals to enter the zone of influence within the time frame of a single burst. Therefore, marine mammals are only exposed to the peak pressure of a single round per burst within a particular zone of influence. For 40 mm rounds, a typical mission includes 64 rounds and approximately 20 rounds per burst. Based on the size of the target area and small “miss” distance, all rounds in a burst are expected to enter the water within 5 meters of the target. Therefore, pressure-related take calculations are based on the total number of rounds fired per year divided by 20. Similarly, for 25 mm rounds, missions typically entail 560 rounds fired in bursts of 100 rounds, and take calculations are based on the number of rounds divided by 100.

The firing protocol for 105 mm rounds does not include bursts because these rounds are fired in single shots with up to 30-second intervals between rounds, which results in approximately two rounds per minute. Therefore, an adjustment for burst quantity is not applicable and pressure-related exposure calculations are performed using all rounds expended.

Using this approach, Eglin AFB estimated the number of marine mammal takes using the adjusted density estimates for each species, the zone of influence of each type of round deployed, and the total number of events per year. The results are presented in Table 3.

Comment 2: The MMC recommends that NMFS require performance testing of mitigation measures to assess their actual effectiveness at detecting marine mammals and minimizing takes. The Navy is being asked to conduct similar evaluation programs, and doing so seems essential if our collective approach to such matters is to be considered science-based.

Response: Since the MMC did not make any specific recommendations regarding the performance testing of mitigation measures to assess their actual effectiveness at detecting marine mammals, NMFS is uncertain as to what exactly it is the MMC is recommending be done in this instance. Regarding the evaluation programs being conducted by the Navy, NMFS assumes that the MMC is referring to the effectiveness of visual observations by vessel-based marine mammal observers based on years of experience. The Navy's evaluation monitoring is in no way comparable to the activities being conducted here by Eglin AFB.

An addendum to the IHA application submitted by Eglin AFB in January 2007 explained in detail the advantages and improved effectiveness of using the Infrared Detection Sets (IDS) system over typical night-vision devices and other visual observation systems. The IDS system is capable of detecting differences in temperature from thermal energy (heat) radiated from living bodies or from reflected and scattered thermal energy. Visible light is not necessary for object detection. This system is equally effective during day or night use. For a full explanation on the IDS system and its effectiveness, please refer to the 2008 IHA Notice of Issuance (73 FR 78318, December 22, 2008), Eglin AFB's 2007 application addendum, or NMFS' 2008 EA (see ADDRESSES ). These documents also describe the effectiveness of this system at 6,000 ft (1,829 m) altitude, which was a requested change by the USAF due to safety concerns for personnel if protected species surveys were flown at lower altitudes.

Aircraft crew members are required to scan the testing area prior to the commencement of all A-S gunnery mission activities, for which optical and electronic sensors are required to be employed for target detection. If any marine mammals are detected within the AC-130's orbit circle, either during initial clearance or after commencement of live firing, the mission will be immediately halted and relocated as necessary or suspended until the marine mammal has left the area. If relocated to another target area, the clearance procedures must be repeated. Based on the analysis of effectiveness of the observation systems, NMFS has determined that flying the pre-mission surveys at an altitude of 6,000 ft (1,829 m) is a sufficient altitude to detect the presence of marine mammals. Since gunnery mission activities will not occur prior to the completion of these surveys, it is safe to assume that any sighted marine mammals reported dead would have died from a cause other than Eglin AFB's A-S activities.

Regarding the effectiveness of differentiating between a live and a dead marine mammal during post-mission protected species surveys, unless there is significant physical damage, the operators/systems are not capable of determining between a non-moving live animal and a dead animal with no apparent physical damage. Typically, marine mammals do not exhibit the same levels of energy/heat transfer back into the environment that is associated with land animals due to their insulating fat layers. However, the USAF has stated that they would be able to see a wounded or recently killed marine mammal on or near the surface that is bleeding externally or with significant open wounds, as this would provide a heat signature that can be detected quite well by the IDS system.

Additionally, the size of the wound, time elapsed since the injury was incurred, and orientation of the animal/wound are all factors determining whether or not one could see the gunnery-type wounds (such as bullet holes or fragmentation wounds). However, the weapons used during A-S exercises detonate on or very near the surface. According to the USAF, even if the weapon failed to detonate, gun-type projectiles lose lethal velocity within a few feet of the surface. Lastly, if a marine mammal enters the exercise area during a live-fire event, exercises would cease immediately, and the activity would either remain suspended until the area was determined to be clear of marine mammals or moved to a new area, where pre-mission surveys would be conducted before recommencing live-fire events.

Comment 3: The MMC states that until data are available that demonstrate the effectiveness of electronic detection techniques in higher sea states, authorizing incidental taking during operations conducted in such conditions is premature. Therefore, the MMC recommends that NMFS work with the USAF to design and conduct the necessary performance verification testing for electronic detection devices under the pertinent sea state conditions.

Response: For the 2008 IHA, NMFS increased the sea state restriction from 3 to 4. The reasoning for increasing the sea state limitation was fully explained in the 2008 IHA Notice of Issuance (73 FR 78318, December 22, 2008) and NMFS' 2008 EA. Readers should refer to those documents for the explanation.

USAF subject matter experts have determined based on in-the-field experience, the airborne systems adequately function in a sea state of 4. Research conducted by Baldacci et al. (2005) indicated a sea state of 2 or 3 was pushing their system capabilities. However, Baldacci et al. (2005) were looking horizontally along the surface of the water, whereas the USAF is looking nearly straight down, thus improving system capabilities in higher sea states. Specific system capabilities/limitations are classified and cannot be publicly provided.

Sensor Operators are continuously scanning the area for traffic, boats, marine mammals, etc. when transiting to and from the water exercise ranges. The USAF will instruct the Sensor Operators to begin gathering additional data, such as sea state and level of difficulty in detecting objects at the different sea states, during those transits for comparison purposes, as long as doing so does not interfere with mission training activities. Beyond this new data collection effort, NMFS is uncertain what the MMC intended, as they did not provide any specific details on the types of data that should be collected or collection methods.

There are 29 species of marine mammals documented as occurring in Federal waters of the GOM. Of these 29 species of marine mammals, approximately 21 may be found within the proposed action area, the EGTTR. These species are the Bryde's whale, sperm whale, dwarf sperm whale, pygmy sperm whale, Atlantic bottlenose dolphin, Atlantic spotted dolphin, pantropical spotted dolphin, Blainville's beaked whale ( Mesoplodon densirostris ), Cuvier's beaked whale, Gervais' beaked whale ( M. europaeus ), Clymene dolphin, spinner dolphin, striped dolphin, killer whale ( Orcinus orca ), false killer whale, pygmy killer whale, Risso's dolphin, Fraser's dolphin (Lagenodelphis hosei ), melon-headed whale ( Peponocephala electra ), rough-toothed dolphin, and short-finned pilot whale. Of these species, only the sperm whale is listed as endangered under the Endangered Species Act (ESA) and as depleted throughout its range under the MMPA. While some of the other species listed here have depleted status under the MMPA, none of the GOM stocks of those species are considered depleted. More detailed information on these species can be found in Wursig et al. (2000), NMFS' 2008 EA (see ADDRESSES ), and in the NMFS U.S. Atlantic and GOM Stock Assessment Reports (Waring et al., 2009). This latter document is available at: http://www.nefsc.noaa.gov/publications/tm/tm210/. The West Indian manatee ( Trichechus manatus ) is managed by the U.S. Fish and Wildlife Service and is not considered further in this document.

The species most likely to occur in the area of Eglin AFB's proposed activities for which takes have been requested include: Atlantic bottlenose dolphin; Atlantic spotted dolphin; pantropical spotted dolphin; spinner dolphin; and dwarf and pygmy sperm whales. Bryde's whales, sperm whales, Risso's dolphins, Clymene dolphins, striped dolphins, Blainville's beaked whales, Cuvier's beaked whales, Gervais' beaked whales, killer whales, false killer whales, pygmy killer whales, Fraser's dolphins, rough-toothed dolphins, short-finned pilot whales, and melon-headed whales are rare in the project area and are not anticipated to be impacted by the A-S gunnery mission activities. Therefore, these species are not considered further.

For cetacean species other than the bottlenose dolphin, density estimates were derived from the Navy OPAREA Density Estimates (NODE) for the GOMEX OPAREA report (DON, 2007). Bottlenose dolphin density estimates were derived from Protected Species Habitat Modeling in the EGTTR (Garrison, 2008). A complete discussion on the abundance and density data can be found in the Notice of Proposed IHA (76 FR 43267, July 20, 2011) and Eglin AFB's IHA application.

A-S gunnery operations may potentially impact marine mammals at or near the water surface. Marine mammals could potentially be harassed, injured or killed by exploding and non-exploding projectiles, and falling debris (USAF, 2002). However, based on analyses provided in the USAF's Final PEA, Eglin's Supplemental Information Request (2003), and NMFS' 2008 EA, NMFS concurs with Eglin AFB that A-S gunnery exercises are not likely to result in any injury or mortality to marine mammals.

Explosive criteria and thresholds for assessing impacts of explosions on marine mammals were discussed by NMFS in detail in its issuance of an IHA for Eglin's Precision Strike Weapon testing activity (70 FR 48675, August 19, 2005) and are not repeated here. Please refer to that document for this background information. However, one part of the analysis has changed since that time. That information was provided in the Notice of Proposed IHA (76 FR 43267, July 20, 2011) and is not repeated here. Table 1 in this document outlines the acoustic criteria used by NMFS when addressing noise impacts from explosives. These criteria remain consistent with criteria established for other activities in the EGTTR and other acoustic activities authorized under sections 101(a)(5)(A) and (D) of the MMPA.

TTS can disrupt behavioral patterns by inhibiting an animal's ability to communicate with conspecifics and interpret other environmental cues important for predator avoidance and prey capture. However, depending on the degree (elevation of threshold in dB), duration ( i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that takes place during a time when the animal is traveling through the open ocean, where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during a time when communication is critical for successful mother/calf interactions could have more serious impacts if it were in the same frequency band as the necessary vocalizations and of a severity that it impeded communication.

The following physiological mechanisms are thought to play a role in inducing auditory fatigue: Effects to sensory hair cells in the inner ear that reduce their sensitivity; modification of the chemical environment within the sensory cells; residual muscular activity in the middle ear; displacement of certain inner ear membranes; increased blood flow; and post-stimulatory reduction in both efferent and sensory neural output. Ward (1997) suggested that when these effects result in TTS rather than permanent threshold shift (PTS), they are within the normal bounds of physiological variability and tolerance and do not represent a physical injury. Additionally, Southall et al. (2007) indicate that although PTS is a tissue injury, TTS is not, because the reduced hearing sensitivity following exposure to intense sound results primarily from fatigue, not loss, of cochlear hair cells and supporting structures and is reversible. Accordingly, NMFS classifies TTS (when resulting from exposure to underwater detonations) as Level B Harassment, not Level A Harassment (injury).

Potential impacts resulting from A-S test operations include DPI resulting from ordnance. DPI could result from inert bombs, gunnery ammunition, and shrapnel from live missiles falling into the water. However, the possibility of DPI to marine mammals is considered highly unlikely. Therefore, the risk of injury or mortality is low. The Notice of Proposed IHA (76 FR 43267, July 20, 2011) contained a complete discussion of possible impacts from DPI on marine mammals. Impacts to marine mammals from Eglin AFB's activities are anticipated to be limited to Level B harassment in the form of temporary changes in behavior or temporary changes in hearing thresholds ( i.e., TTS).

The primary source of marine mammal habitat impact is noise resulting from gunnery missions. However, the noise does not constitute a long-term physical alteration of the water column or bottom topography, as the occurrences are of limited duration and are intermittent in time. Other sources that may affect marine mammal habitat were considered and potentially include the introduction of fuel, chaff, debris, ordnance, and chemical residues into the water column. A full description of anticipated effects on habitat was provided in the Notice of Proposed IHA (76 FR 43267, July 20, 2011). Based on that information, NMFS has determined that the A-S gunnery mission activities will not have any impact on the food or feeding success of marine mammals in the northern GOM. Additionally, no loss or modification of the habitat used by cetaceans in the GOM is expected. The activity is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.

In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). The NDAA of 2004 amended the MMPA as it relates to military readiness activities and the ITA process such that “least practicable impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity”. The training activities described in Eglin AFB's application are considered military readiness activities.

The mitigation measures included in this IHA are the same as those required in the 2010-2011 IHA (75 FR 5045, February 1, 2010). These measures are virtually identical to the mitigation measures that were required in the 2008-2009 IHA (73 FR 78318, December 22, 2008) and the 2006 IHA (71 FR 27695, May 12, 2006). There were only three differences in the mitigation and monitoring measures between the 2006 and 2008 IHAs. Eglin AFB's 2007 application addendum requested revisions to three components of the IHA requirements: Protected species surveys, ramp-up procedures, and sea state restrictions. A discussion of the differences in the requirements can be found in the 2008 IHA Notice of Issuance (73 FR 78318, December 22, 2008) and NMFS' 2008 EA (see ADDRESSES ). The revisions to those three requirements are also included in this IHA. However, the explanations as to why Eglin AFB requested the changes and NMFS' determinations specific to those three requirements are not repeated in this document. Readers should refer to either the 2008 IHA Notice of Issuance (73 FR 78318, December 22, 2008) or NMFS' 2008 EA (see ADDRESSES ) for the full explanation.

The largest type of ammunition used during typical gunnery missions is the 105-mm (4.13-in) round containing 4.7 lbs (2.1 kg) of high explosive (HE). This is several times more HE than that found in the next largest round (40 mm/1.57 in). As a mitigation technique, the USAF developed a 105-mm TR that contains only 0.35 lb (0.16 kg) of HE. The TR was developed to dramatically reduce the risk of harassment at night and Eglin AFB anticipates a 96 percent reduction in impact by using the 105-mm TR.

Areas to be used in gunnery missions are visually monitored for marine mammal presence from the AC-130 aircraft prior to commencement of the mission. If the presence of one or more marine mammals is detected, the target area will be avoided. In addition, monitoring will continue during the mission. If marine mammals are detected at any time, the mission will halt immediately and relocate as necessary or be suspended until the marine mammal has left the area. Daytime and nighttime visual monitoring will be supplemented with infrared (IR) and low-light television (TV) monitoring. As nighttime visual monitoring is generally considered to be ineffective at any height, the EGTTR missions will incorporate the TR.

The rationale for requiring ramp-up procedures is that this process may allow animals to perceive steadily increasing noise levels and to react, if necessary, before the noise reaches a threshold of significance. The AC-130 gunship's weapons are used in two activity phases. First, the guns are checked for functionality and calibrated. This step requires an abbreviated period of live fire. After the guns are determined to be ready for use, the mission proceeds under various test and training scenarios. This second phase involves a more extended period of live fire and can incorporate use of one or any combination of the munitions available (25-, 40-, and 105-mm rounds). The ramp-up procedure is required for the initial gun calibration, and, after this phase, the guns may be fired in any order. Eglin and NMFS believe this process will allow marine species the opportunity to respond to increasing noise levels. If an animal leaves the area during ramp-up, it is unlikely to return while the live-fire mission is proceeding. This protocol allows a more realistic training experience. In combat situations, gunship crews would not likely fire the complete ammunition load of a given caliber gun before proceeding to another gun. Rather, a combination of guns would likely be used as required by an evolving situation. An additional benefit of this protocol is that mechanical or ammunition problems on an individual gun can be resolved while live fire continues with functioning weapons. This also diminishes the possibility of a lengthy pause in live fire, which, if greater than 10 min, would necessitate Eglin's re-initiation of protected species surveys (described next).

In addition to the development of the TR, the visual mitigation, and the ramp-up procedures already described in this document, additional mitigation measures to protect marine life were included in the 2006, 2008, 2009, and 2010 IHAs and are also required in the 2011 IHA. These requirements are:

(1) If daytime weather and/or sea conditions preclude adequate aerial surveillance for detecting marine mammals and other marine life, A-S gunnery exercises must be delayed until adequate sea conditions exist for aerial surveillance to be undertaken. Daytime test firing will be conducted only when sea surface conditions are sea state 4 or less on the Beaufort scale.

(2) Prior to each firing event, the aircraft crew will conduct a visual survey of the 5-nm (9.3-km) wide prospective target area to attempt to sight any marine mammals that may be present (the crew will do the same for sea turtles and Sargassum rafts). The AC-130 gunship will conduct at least two complete orbits at a minimum safe airspeed around a prospective target area at a maximum altitude of 6,000 ft (1,829 m). Provided marine mammals (and other protected species) are not detected, the AC-130 can then continue orbiting the selected target point as it climbs to the mission testing altitude. During the low altitude orbits and the climb to testing altitude, the aircraft crew will visually scan the sea surface within the aircraft's orbit circle for the presence of marine mammals. Primary emphasis for the surface scan will be upon the flight crew in the cockpit and personnel stationed in the tail observer bubble and starboard viewing window. The AC-130's optical and electronic sensors will also be employed for target clearance. If any marine mammals are detected within the AC-130's orbit circle, either during initial clearance or after commencement of live firing, the aircraft will relocate to another target and repeat the clearance procedures. If multiple firing events occur within the same flight, these clearance procedures will precede each event.

(3) The aircrews of the A-S gunnery missions will initiate location and surveillance of a suitable firing site immediately after exiting U.S. territorial waters (less than or equal to 12 nm (22 km)). This would potentially restrict most gunnery activities to the shallower continental shelf waters of the GOM where marine mammal densities are typically lower, and thus potentially avoid the slope waters where the more sensitive species ( e.g., endangered sperm whales) typically reside.

(4) Observations will be accomplished using all-light TV, IR sensors, and visual means for at least 60 min prior to each exercise.

(5) Aircrews will utilize visual, night vision goggles, and other onboard sensors to search for marine mammals while performing area clearance procedures during nighttime pre-mission activities.

(6) If any marine mammals are sighted during pre-mission surveys or during the mission, activities will be immediately halted until the area is clear of all marine mammals for 60 min or the mission location relocated and resurveyed.

(7) If post-detonation surveys determine that an injury or lethal take of a marine mammal has occurred, the test procedure and the monitoring methods must be reviewed with NMFS and appropriate changes must be made, prior to conducting the next A-S gunnery exercise.

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

• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

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

• The practicability of the measure for applicant implementation, including consideration of personnel safety, practicability of implementation, and impact on the effectiveness of the military-readiness activity.

Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the required 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, while also considering personnel safety, practicability of implementation, and impact on the effectiveness of the military-readiness activity.

In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, 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 ITAs 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.

The Incidental Take Statement in NMFS' Biological Opinion on this action required certain monitoring measures to protect marine life. NMFS also imposed these same requirements, as well as additional ones, under Eglin AFB's 2006, 2008, and 2010 IHAs as they related to marine mammals. NMFS has included these same measures in the 2011 IHA. They are:

(1) The A-S gunnery mission aircrews will participate in the marine mammal species observation training. Designated crew members will be selected to receive training as protected species observers. Observers will receive training in protected species survey and identification techniques.

(2) Aircrews will initiate the post-mission clearance procedures beginning at the operational altitude of approximately 15,000 to 20,000 ft (4,572 to 6,096 m) elevation, and then initiate a spiraling descent down to an observation altitude of approximately 6,000 ft (1,829 m) elevation. Rates of descent will occur over a 3 to 5 min time frame.

(3) Eglin will track their use of the EGTTR for test firing missions and protected species observations, through the use of mission reporting forms.

(4) A-S gunnery missions will coordinate with next-day flight activities to provide supplemental post-mission observations for marine mammals in the operations area of the previous day.

(5) A summary annual report of marine mammal observations and A-S activities will be submitted to the NMFS Southeast Regional Office (SERO) and the Office of Protected Resources either at the time of a request for renewal of an IHA or 90 days after expiration of the current IHA if a new IHA is not requested. This annual report must include the following information: (i) Date and time of each A-S gunnery exercise; (ii) a complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of A-S gunnery exercises on marine mammal populations; (iii) results of the monitoring program, including numbers by species/stock of any marine mammals noted injured or killed as a result of the gunnery exercises and number of marine mammals (by species if possible) that may have been harassed due to presence within the 5-nm activity zone; and (iv) a detailed assessment of the effectiveness of sensor-based monitoring in detecting marine mammals in the area of A-S gunnery operations.

(6) If any dead or injured marine mammals are observed or detected prior to testing, or injured or killed during live fire, a report must be made to NMFS by the following business day.

(7) Any unauthorized takes of marine mammals ( i.e., injury or mortality) must be immediately reported to NMFS and to the respective stranding network representative.

Estimated Take by Incidental Harassment

As it applies to a “military readiness activity”, the definition of harassment is (Section 3(18)(B) of the MMPA):

Only take by Level B harassment is anticipated as a result of and authorized for the A-S gunnery mission activities. The exercises are expected to only affect animals at or very near the surface of the water. Cetaceans in the vicinity of the exercises may incur temporary changes in behavior and/or temporary changes in their hearing thresholds. Based on the mitigation and monitoring measures required to be implemented (described earlier in this document), no injury or mortality of marine mammals is anticipated as a result of or authorized for the A-S gunnery mission activities.

The Notice of Proposed IHA (76 FR 43267, July 20, 2011) included an in-depth discussion of the methodology used by Eglin AFB and NMFS to estimate take by harassment incidental to the A-S gunnery exercises and the numbers of cetaceans that might be affected by the exercises. A summary is provided here.

DPI are only anticipated to affect marine species at or very near the ocean surface. As a result, in order to calculate impacts, Eglin used corrected species densities (see Table 4-23 in the USAF's Final PEA) to reflect the surface interval population, which is approximately 10 percent of densities calculated for distribution in the total water column. The impacts to marine mammals swimming at the surface that could potentially be injured or killed by projectiles and falling debris was determined to be an average of 0.2059 marine mammals per year. However, NMFS believes that the required mitigation measures would significantly reduce even these low levels.

In addition to small arms, Eglin calculated the potential for other non-explosive items (bombs, missiles, and drones) to impact marine mammals. As shown in the 2002 Final PEA and the Notice of Proposed IHA (74 FR 53474, October 19, 2009), the potential for any non-small arms/non-gunnery DPI to marine mammals is extremely remote and can, therefore, be discounted.

Similar to non-small arms/non-gunnery DPI, DPI from gunnery activities may also affect marine mammals in the surface zone. Again, DPI are anticipated to affect only marine mammals at or near the ocean surface. Accordingly, the density estimates have been adjusted to indicate surface animals only being potentially affected. DPI from gunnery activities are extremely remote and can be discounted. Using the largest round (105 mm), it would take approximately 120 years to impact a marine mammal from daytime gunnery activities and approximately 27 years to impact a marine mammal from nighttime gunnery activities.

Estimating the impacts to marine mammals from underwater detonations is difficult due to complexities of the physics of explosive sound under water and the limited understanding with respect to hearing in marine mammals. Detailed assessments were made in the notice for the 2006 and 2008 IHAs on this action (71 FR 27695, May 12, 2006; 73 FR 78318, December 22, 2008), as well as the Notice of Proposed IHA (74 FR 53474, October 19, 2009) and are summarized in this document. These assessments used, and improved upon, the criteria and thresholds for marine mammal impacts that were developed for the shock trials of the USS SEAWOLF and the USS WINSTON S. CHURCHILL (DDG-81) (Navy, 1998; 2001). The criteria and thresholds used in those actions were adopted by NMFS for use in calculating incidental takes from explosives. Criteria for assessing impacts from Eglin AFB's A-S gunnery exercises include: (1) Mortality, as determined by exposure to a certain level of positive impulse pressure (expressed as pounds per square inch per millisecond or psi-msec); (2) injury, both hearing-related and non-hearing related; and (3) harassment, as determined by a temporary loss of some hearing ability and behavioral reactions.

Permanent hearing loss is considered an injury and is termed PTS. NMFS, therefore, categorizes PTS as Level A harassment. Temporary loss of hearing ability is termed TTS, meaning a temporary reduction of hearing sensitivity which abates following noise exposure. TTS is considered non-injurious and is categorized as Level B harassment. NMFS recognizes dual criteria for TTS, as well as for Level A harassment, one based on peak pressure and one based on the greatest 1/3 octave sound exposure level (SEL) or energy flux density level (EFDL), with the more conservative ( i.e., larger) of the two criteria being selected for impacts analysis (note: SEL and EFDL are used interchangeably, but with increasing scientific preference for SEL). The peak pressure metric used in previous shock trials to represent TTS was 12 pounds per square inch (psi) which, for the net explosive weight used, resulted in a zone of possible Level B harassment approximately equal to that obtained by using a 182 decibel (dB) re 1 microPa 2 -s, total EFDL/SEL metric. The 12-psi metric is largely based on anatomical studies and extrapolations from terrestrial mammal data (see Ketten, 1995; Navy, 1999 (Appendix E, CHURCHILL FEIS; and 70 FR 48675 (August 19, 2005)) for background information). However, the results of a more recent investigation involving marine mammals suggest that, for small charges, the 12-psi metric is not an adequate predictor of the onset of TTS but that one should use 23 psi. This explanation was provided in the Notice of Proposed IHA (76 FR 43267, July 20, 2011).

Table 1 (earlier in this document) summarizes the relevant thresholds for levels of noise that may result in Level A harassment (injury) or Level B harassment via TTS or behavioral disturbance to marine mammals. Mortality and injury thresholds are designed to be conservative by considering the impacts that would occur to the most sensitive life stage ( e.g., a dolphin calf). Table 2 provides the estimated ZOI radii for the EGTTR ordnance.

Based on the detailed discussion contained in the Notice of Proposed IHA (76 FR 43267, July 20, 2011), Table 3 in this Federal Register document provides Eglin AFB's estimates of the annual number of marine mammals, by species, potentially taken by Level B harassment, by the gunnery mission noise. It should be noted that these estimates are derived without consideration of the effectiveness of the required mitigation measures (except use of the TR), which are discussed earlier in this document. As indicated in Table 3, Eglin AFB and NMFS estimate that approximately 212 marine mammals may incur Level B (TTS) harassment annually. Because these gunnery exercises result in multiple detonations, they have the potential to also result in a temporary modification in behavior by marine mammals at levels below TTS. Based on Eglin AFB and NMFS' estimates, up to 694 marine mammals may experience a behavioral response to these exercises during the time frame of an IHA (see Table 3). Finally, while one would generally expect the threshold for behavioral modification to be lower than that causing TTS, due to a lack of empirical information and data, a dual criteria for Level B behavioral harassment cannot be developed. However, to ensure that takings are covered by this IHA, NMFS estimates that approximately 906 marine mammals of five stocks may incur Level B (harassment) takes during the 1-year period of an IHA. NMFS has determined that this number will be significantly lower due to the expected effectiveness of the mitigation measures required in the IHA.

NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, and intensity, and duration of Level B harassment; and (4) the context in which the takes occur.

No injuries or mortalities are anticipated to occur as a result of Eglin AFB's A-S gunnery mission activities, and none are authorized. Takes will be limited to Level B harassment in the form of behavioral disturbance and TTS. Although activities would be permitted to occur year-round and can last for approximately 5 to 6 hours at a time, the actual live-fire portion of the exercise usually only lasts for 90 to 120 min; therefore, NMFS expects the duration of impacts to be relatively short. Additionally, it should also be noted that the actual level of activity has been far lower over the past few years than that predicted and estimated in this document. Those reasons were discussed earlier in this document. It is possible that some individuals may be taken more than once if those individuals are located in the exercise area on two different days when exercises are occurring. However, multiple exposures are not anticipated to have effects beyond Level B harassment.

Of the 21 marine mammal species or stocks that may be in the vicinity of the EGTTR gunnery mission activities, only the sperm whale is listed as endangered under the ESA and as depleted under the MMPA. Sperm whale occurrence in the area of the proposed activity is unlikely because almost all reported sightings have occurred in water depths greater than 200 m. Occurrence in the deeper portions of W-151 is possible, although based on reported sighting locations, density is expected to be low. Therefore, Eglin AFB has not requested and NMFS has not issued take authorizations for this species. No mortality or injury is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.

Additionally, the mitigation and monitoring measures required to be implemented (described earlier in this document) are expected to minimize even further the potential for injury or mortality. The protected species surveys require Eglin AFB to search the area for marine mammals, and if any are found in the live fire area, then the exercise must be suspended until the animal(s) has left the area or the activity relocated. Moreover, the aircrews of the A-S gunnery missions will initiate location and surveillance of a suitable firing site immediately after exiting U.S. territorial waters (less than or equal to 12 nm (22 km)). This would potentially restrict most gunnery activities to the shallower continental shelf waters of the GOM where marine mammal densities are typically lower, and thus potentially avoid the slope waters where the more sensitive species ( e.g., endangered sperm whales) typically reside.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that Eglin AFB's A-S gunnery mission exercises will result in the incidental take of marine mammals, by Level B harassment only, and that the total taking from the A-S gunnery mission exercises will have a negligible impact on the affected species or stocks.

There are no relevant subsistence uses of marine mammals implicated by this action.

A Biological Opinion issued by NMFS on October 20, 2004, concluded that the A-S gunnery exercises in the EGTTR are unlikely to jeopardize the continued existence of species listed under the ESA that are within the jurisdiction of NMFS or destroy or adversely modify critical habitat. NMFS has determined that this action, including the modifications to the mitigation and monitoring measures in the 2008 IHA and included in the 2010 IHA, does not have effects beyond that which was analyzed in that previous consultation, it is within the scope of that action, and reinitiation of consultation is not necessary.

The USAF prepared a Final PEA in November 2002 for the EGTTR activity. NMFS made the USAF's 2002 Final PEA available upon request on January 23, 2006 (71 FR 3474). In accordance with NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS reviewed the information contained in the USAF's 2002 Final PEA, and, on May 1, 2006, determined that the document accurately and completely described the proposed action, the alternatives to the proposed action, and the potential impacts on marine mammals, endangered species, and other marine life that could be impacted by the preferred alternative and the other alternatives. Accordingly, NMFS adopted the USAF's 2002 Final PEA under 40 CFR 1506.3 and made its own FONSI on May 16, 2006. The NMFS FONSI also took into consideration updated data and information contained in NMFS' Federal Register document noting issuance of an IHA to Eglin AFB for this activity (71 FR 27695, May 12, 2006), and previous notices (71 FR 3474, January 23, 2006; 70 FR 48675, August 19, 2005).

As the issuance of the 2008 IHA to Eglin AFB amended three of the mitigation measures for reasons of practicality and safety, NMFS reviewed the USAF's 2002 Final PEA and determined that a new EA was warranted to address: (1) The proposed modifications to the mitigation and monitoring measures; (2) the use of 23 psi as a change in the criterion for estimating potential impacts on marine mammals from explosives; and (3) a cumulative effects analysis of potential environmental impacts from all GOM activities (including Eglin mission activities), which was not addressed in the USAF's 2002 Final PEA. Therefore, NMFS prepared a new EA in December 2008 and issued a FONSI for its action on December 9, 2008. Based on those findings, NMFS determined that it was not necessary to complete an environmental impact statement for the issuance of an IHA to Eglin AFB for this activity. NMFS has determined that this activity is within the scope of NMFS' 2008 EA and FONSI.

As a result of these determinations, NMFS has issued an IHA to the USAF, Eglin AFB, for the take of several species of marine mammals incidental to the A-S gunnery mission activities in the GOM provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

The United States Patent and Trademark Office (USPTO) is required by 35 U.S.C. 41(i)(1) to maintain a Public Search Facility to provide patent and trademark collections for searching and retrieval of information. The Public Search Facility is maintained for public use with paper and electronic search files and trained staff to assist searchers. The USPTO also offers training courses to assist the public with using the advanced electronic search systems available at the facility.

In order to manage the patent and trademark collections that are available to the public, the USPTO issues online access cards to customers who wish to use the electronic search systems at the Public Search Facility. Customers may obtain an online access card by completing the application at the Public Search Facility reference desk and providing proper identification. The plastic online access cards include a bar-coded user number and an expiration date. Users may renew their cards by validating and updating the required information and may obtain a replacement for a lost card by providing proper identification.

Under the authority provided in 41 CFR 102-81, the USPTO issues security identification badges to members of the public who wish to use the facilities at the USPTO. Public users may apply for a security badge in person at the USPTO Office of Security by providing the necessary information and presenting a valid form of identification with photograph. The security badges include a color photograph of the user and must be worn at all times while at the USPTO facilities.

In January 2011, the USPTO discontinued the $120 fee for users requesting private instruction for the online search systems available at the Public Search Facility. Therefore, the private instruction fee is being deleted from this collection.

The applications for online access cards and security identification badges are completed on site and handed to a USPTO staff member for issuance. User training registration forms may be mailed, faxed, or hand delivered to the USPTO.

OMB Number: 0651-0041.

Form Number(s): PTO-2030 and PTO-2224.

Type of Review: Revision of a currently approved collection.

Affected Public: Individuals or households; businesses or other for-profits; and not-for-profit institutions.

Estimated Number of Respondents: 10,003 responses per year.

Estimated Time per Response: The USPTO estimates that it will take the public approximately five to ten minutes (0.08 to 0.17 hours) to complete the information in this collection, including gathering the necessary information, preparing the appropriate form, and submitting the completed request.

Estimated Total Annual Respondent Burden Hours: 989 hours.

Estimated Total Annual Respondent Cost Burden: $191,866. The USPTO estimates that approximately 1/3 of the users responding to this collection are attorneys and 2/3 are paraprofessionals. Using 1/3 of the professional rate of $340 per hour for attorneys in private firms and 2/3 of the paraprofessional rate of $122 per hour, the estimated rate for respondents to this collection is approximately $194 per hour. Using this estimated rate of $194 per hour, the USPTO estimates that the respondent cost burden for submitting the information in this collection will be approximately $191,866 per year.

Estimated Total Annual Non-hour Respondent Cost Burden: $1,502. This collection has annual (non-hour) costs in the form of fees and postage costs.

There are no application or renewal fees for online access cards or security identification badges. However, there is a $15 fee for issuing a replacement security identification badge. The USPTO estimates that it will reissue approximately 100 security badges annually that have been lost, stolen, or need to be replaced, for a total of $1,500 per year in fees.

Users may incur postage costs when submitting a user training registration form to the USPTO by mail. The USPTO expects that approximately 4 of the estimated 74 training forms received per year will be submitted by mail. The USPTO estimates that the average first-class postage cost for a mailed training form will be 44 cents, for a total postage cost of approximately $2 per year for this collection.

The total annual (non-hour) respondent cost burden for this collection in the form of fees and postage costs is estimated to be $1,502 per year.

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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, e.g., the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.

This notice is published pursuant to 41 U.S.C 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.

2. If approved, the action will result in authorizing small entities to furnish the products to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C 8501-8506) in connection with the products proposed for addition to the Procurement List.

Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.

The following products are proposed for addition to the Procurement List for production by the nonprofit agencies listed:

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

2. If approved, the action may result in authorizing small entities to furnish the services to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the services proposed for deletion from the Procurement List.

The following services are proposed for deletion from the Procurement List:

The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT .

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

On October 26th, 2011 from 9:00 a.m. to 5:30 p.m. Eastern Standard Time, the Equity and Excellence Commission will hold an open meeting in Washington, DC in room 1W105/108 at the U.S. Department of Education's main building at 400 Maryland Avenue, SW., Washington, DC 20202.

The purpose of the Commission is to collect information, analyze issues, and obtain broad public input regarding how the Federal government can increase educational opportunity by improving school funding equity. The Commission will also make recommendations for restructuring school finance systems to achieve equity in the distribution of educational resources and further student performance, especially for the students at the lower end of the achievement gap. The Commission will examine the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and recommend appropriate ways in which Federal policies could address such disparities.

The agenda for the Commission's October 26 meeting will include discussion of particular language for certain portions of the report and reaching consensus on particular recommendations. Due to time constraints, there will not be a public comment period, but, individuals wishing to provide comments may contact the Equity Commission via e-mail at equitycommission@ed.gov. For comments related to the upcoming meeting, please submit comments no later than October 19, 2011.

Individuals interested in attending the meeting must register in advance because seating may be limited. Please contact Jim Eichner at (202) 453-5945 or by e-mail at equitycommission@ed.gov. Individuals who will need accommodations for a disability in order to attend the meeting ( e.g., interpreting services, assistive listening devices, or materials in alternative format) should notify Jim Eichner at (202) 245-5945 no later than October 19, 2011. We will attempt to meet requests for accommodations after this date but cannot guarantee their availability. The meeting site is accessible to individuals with disabilities.

Records are kept of all Commission proceedings and are available for public inspection at the Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202 from the hours of 9 a.m. to 5 p.m. Eastern Standard Time.

This information collection request contains: (1) OMB No.: 1910-5149; (2) Information Collection Request Title: OE Recovery Act Financial Assistance Grants; (3) Type of Request: Three-year extension of a prior request; (4) Purpose: To collect information on the status of grantee activities, expenditures, and results, to ensure that program funds are being used appropriately, effectively and expeditiously (especially important for Recovery Act funds); (5) Annual Estimated Number of Respondents: 138; (6) Annual Estimated Number of Total Responses: 1,656; (7) Annual Estimated Number of Burden Hours: 26,496; (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $483,000 for the first year, $138,000 each subsequent year.

EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OA-2008-0701 which is available for online viewing at http://www.regulations.gov, or in person viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the OEI Docket is 202-566-1752.

Use http://www.regulations.gov to obtain a copy of the draft collection of information, submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID number identified in this document.

Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:

(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(iii) Enhance the quality, utility, and clarity of the information to be collected; and

(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible and provide specific examples.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Offer alternative ways to improve the collection activity.

6. Make sure to submit your comments by the deadline identified under DATES.

7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

Affected entities: Entities potentially affected by this action are members of the general public, although the target population for the focus group discussions will vary by project.

Title: Focus Groups as used by EPA for Economics Projects (Renewal).

ICR numbers: EPA ICR No. 2205.07, OMB Control No. 2090-0028.

ICR status: This ICR is currently scheduled to expire on March 31, 2012. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register when approved, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9.

Abstract: The Environmental Protection Agency (EPA) is seeking renewal of a generic information collection request (ICR) for the conduct of focus groups and protocol interviews (hereafter jointly referred to as focus groups) related to economics projects. Over the next three years, the Agency anticipates embarking on a number of survey development efforts associated with a variety of economics projects including those related to valuation of ecosystems, children's health risks, mortality risk reductions, improvements to coastal waters including the Chesapeake Bay, to name a few. Focus groups are an important part of any survey development process, allowing researchers to directly gauge what specific issues are important to the public and providing a means for explicitly testing draft survey materials. Through these focus groups, the Agency will be able to gain a more in-depth understanding of the public's attitudes, beliefs, motivations and feelings regarding specific issues and will provide valuable information regarding the quality of draft survey instruments.

The information collected in the focus groups will be used to develop and improve economics-related surveys. To the extent that these surveys are ultimately successfully administered, they will serve to expand the Agencies understanding of benefits and costs of a variety of actions and could provide the means to quantitatively assess the effects of others. Participation in the focus groups will be voluntary and the identity of the participants will be kept confidential.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 2.4 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:

Estimated total number of potential respondents: 1,011.

Frequency of response: Once.

Estimated total average number of responses for each respondent: 1.

Estimated total annual burden hours: 2,358.

Estimated total annual costs: $22,385. This includes estimated respondent burden costs only as there are no capital costs or operating and maintenance costs associated with this collection of information.

Burden estimates included here are based on the supporting statement submitted for the most recent renewal of the approved ICR. Burden estimates will be revised to reflect new information and will be made available for public comment at the time the ICR is submitted to OMB for approval.

EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another Federal Register notice pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the technical person listed under FOR FURTHER INFORMATION CONTACT .

In accordance with regulations at 40 CFR part 53, the EPA evaluates various methods for monitoring the concentrations of those ambient air pollutants for which EPA has established National Ambient Air Quality Standards (NAAQSs) as set forth in 40 CFR part 50. Monitoring methods that are determined to meet specific requirements for adequacy are designated by the EPA as either reference methods or equivalent methods (as applicable), thereby permitting their use under 40 CFR part 58 by States and other agencies for determining compliance with the NAAQSs. A list of all reference or equivalent methods that have been previously designated by EPA may be found at http://www.epa.gov/ttn/amtic/criteria.html.

The EPA hereby announces the designation of one new equivalent method for measuring pollutant concentrations of O 3 in the ambient air. This designation is made under the provisions of 40 CFR part 53, as amended on June 22, 2010 (75 FR 35597).

The new O 3 equivalent method is an automated monitoring method (analyzer) utilizing a measurement principle based on chemiluminescence reaction of O 3 with nitric oxide (NO). (Note that this is the first O 3 equivalent method designated by EPA that utilizes this particular measurement principle, which is distinguished from the measurement principle of chemiluminescence reaction of O 3 with ethylene specified for EPA reference methods for O 3 .) The newly designated equivalent method is identified as follows:

The application for an equivalent method determination for this candidate method was received by the EPA on November 7, 2010. The analyzer models are commercially available from the applicant, Teledyne Advanced Pollution Instrumentation, Inc., 9480 Carroll Park Drive, San Diego, CA 92121-2251.

A representative test analyzer has been tested in accordance with the applicable test procedures specified in 40 CFR part 53 (as amended on June 22, 2010). After reviewing the results of those tests and other information submitted by the applicant, EPA has determined, in accordance with part 53, that this method should be designated as an equivalent method. The information submitted by the applicant will be kept on file, either at EPA's National Exposure Research Laboratory, Research Triangle Park, North Carolina 27711 or in an approved archive storage facility, and will be available for inspection (with advance notice) to the extent consistent with 40 CFR part 2 (EPA's regulations implementing the Freedom of Information Act).

As a designated equivalent method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, the method must be used in strict accordance with the operation or instruction manual associated with the method and subject to any specifications and limitations (e.g., configuration or operational settings) specified in the designated method description (see the identification of the method above).

Use of the method also should be in general accordance with the guidance and recommendations of applicable sections of the “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume I,” EPA/600/R-94/038a and “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume II, Ambient Air Quality Monitoring Program,” EPA-454/B-08-003, December, 2008 (both available at http://www.epa.gov/ttn/amtic/qalist.html ). Vendor modifications of a designated equivalent method used for purposes of Part 58 are permitted only with prior approval of the EPA, as provided in Part 53. Provisions concerning modification of such methods by users are specified under Section 2.8 (Modifications of Methods by Users) of Appendix C to 40 CFR part 58.

In general, a method designation applies to any sampler, analyzer, or method that is identical to the sampler, analyzer, or method described in the application for designation. In some cases, similar samplers or analyzers manufactured prior to the designation may be upgraded or converted ( e.g., by minor modification or by substitution of the approved operation or instruction manual) so as to be identical to the designated method and thus achieve designated status. The manufacturer should be consulted to determine the feasibility of such upgrading or conversion.

Part 53 requires that sellers of designated reference or equivalent method analyzers or samplers comply with certain conditions. These conditions are specified in 40 CFR 53.9.

Aside from occasional breakdowns or malfunctions, consistent or repeated noncompliance with any of these conditions should be reported to: Director, Human Exposure and Atmospheric Sciences Division (MD-E205-01), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711.

Designation of this new equivalent method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR Part 58. Questions concerning the commercial availability or technical aspects of the method should be directed to the applicant .

In accordance with ARRA Section 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy American requirements, to the City for purchase of six non-domestic manufactured Carrier split ductless (AC) units. The City requires the AC systems to provide a constant temperature for the electrical control room as part of the City's project to upgrade of the wastewater treatment plant. The City planned to purchase and install the identified six ductless split AC units and one ducted unit from Carrier. The units are needed to keep the motor starters, control equipment, power transformers, circuit breakers, and other electronic controlling equipment at the wastewater treatment plant from overheating. The City's consultant conducted due diligence and research with five product suppliers of AC systems in the Eastern Washington area. The City's consultant concluded that there are no domestically produced ductless AC systems that could meet the product specifications.

EPA has also evaluated the City's request to determine if its submission is considered late or if it could be considered timely, as per OMB regulations at 2 CFR 176.120. EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contact as “late” if submitted after the contract date. However, EPA could also determine that a request be evaluated as timely, though made after the date that the contract was signed, if the need for a waiver was not reasonably foreseeable. If the need for a waiver is reasonably foreseeable, then EPA could still apply discretion in these late cases as per the OMB regulation, which says “the award official may deny the request.” For those waiver requests that do not have a reasonably unforeseeable basis for lateness, but for which the waiver basis is valid and there is no apparent gain by the ARRA recipient or loss on behalf of the government, then EPA will still consider granting a waiver.

In this case, there are no U.S. manufacturers that meet the City's requirement for ductless split AC units. The waiver request was submitted after contract signing; however, it was reasonably unforeseeable. ARRA Buy American documentation for the AC units was not supplied with the initial submittal in January 2010. Pending re-submittal of the documentation, the City discovered that the units had a plate stamped “Made in Mexico” in September 2010. The City checked with the Department of Ecology and EPA to determine if the units were eligible under the Section 1605(d) trade agreement exception; EPA confirmed the units were not eligible for that exception. The City spent several months coordinating back and forth with the manufacturer and the contractor to explain that they were not covered by any international trade agreements and that an alternate means of compliance was necessary. The drafting of the project-specific availability waiver began in March 2011. The City delayed submitting the waiver request to investigate a potential domestic manufacturer (Enviromaster International) lead, which ultimately did not work out. Since the City was investigating various means of Buy American compliance through gathering adequate documentation, coordinating with the manufacturer and contractor, and researching potential domestic manufacturers, the circumstance of applying for a waiver after the start of construction was not foreseen. EPA has evaluated this information and will consider the City's waiver request as a timely request since it was reasonably unforeseeable.

The April 28, 2009 EPA HQ Memorandum, Implementation of Buy American provisions of Public Law 111-5, the “American Recovery and Reinvestment Act of 2009”, defines “satisfactory quality” as the quality of iron, steel or the relevant manufactured good as specified in the project plans and design. The City provided information to the EPA representing there are no current domestic manufacturers of the six ductless split air conditioning units. EPA's contractor reviewed the information provided by the City and determined that City's claim that no domestically manufactured air conditioner units exist that meets the project specifications for the six split ductless AC units is supported by the available information.

Furthermore, the purpose of the ARRA provisions was to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already shovel ready by requiring entities, like the City, to revise their design and potentially choose a more costly and less effective project. The implementation of ARRA Buy American requirements on such projects eligible for CWSRF assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with the most fundamental economic purposes of ARRA, to create or retain jobs.

The Grants and Strategic Planning Unit has reviewed this waiver request and has determined that the supporting documentation provided by the City is sufficient to establish a proper basis. The basis for this project waiver is the authorization provided in Section 1605(b)(2), due to the lack of production of this product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet the City's design specifications.

The March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the authority to issue exceptions to Section 1605 of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual assistance recipients. Having established both a proper basis to specify the particular good required for this project, and, that this manufactured good was not available from a manufacturer in the United States, the City is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of six Carrier split ductless AC units, manufactured in Mexico and South Korea, for a wastewater treatment plant project specified in the City's waiver request of June 22, 2011. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under subsection (b).

In accordance with ARRA Section 1605(c) and 1605(b)(2), EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy American requirements to the City for the acquisition of selected carbon steel pipe fittings and appurtenances (elbows, tees and flanges). The City has been unable to find American made carbon steel pipe fittings and appurtenances to meet its specific water requirements.

Section 1605 of ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States unless a waiver is provided to the recipient by EPA. A waiver may be provided if EPA determines that: (1) Applying these requirements would be inconsistent with public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.

The City has provided information to the EPA demonstrating that there are no carbon steel pipe fittings and appurtenances manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the required technical specification. The City indicated that of the ten US companies contacted, seven could not meet the requirement to provide the fittings and flanges manufactured from carbon steel sourced from steel mills in the United States. The remaining three companies contacted did not respond to requests for information regarding the sources of metals used in the fabrication of their products.

The project specifications include requirements for the following pipe fittings and flanges:

Based on additional research conducted by EPA Region 6 there do not appear to be any American-made carbon steel pipe fittings and appurtenances that would meet the City's technical specifications. EPA's national contractor prepared a technical assessment report based on the waiver request submittal, which confirmed the waiver applicant's claim that there are no American-made carbon steel pipe fittings and appurtenances available for use in the proposed waste water treatment system.

EPA has also evaluated the City's request to determine if its submission is considered late or if it could be considered timely, as per the OMB regulation at 2 CFR 176.120. EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contract as “late” if submitted after the contract date. However, EPA could also determine that a request be evaluated as timely, though made after the date that the contract was signed, if the need for a waiver was not reasonably foreseeable. If the need for a waiver is reasonably foreseeable, then EPA could still apply discretion in these late cases as per the OMB Guidance, which says “the award official may deny the request.” For those waiver requests that do not have a reasonably unforeseeable basis for lateness, but for which the waiver basis is valid and there is no apparent gain by the ARRA recipient or loss on behalf of the government, then EPA will still consider granting a waiver.

In this case, the waiver request was submitted after the contract date because the City initiated an evaluation of substantial transformation for the pipe fittings and appurtenances; however, after having a thorough discussion at the Regional level, the City has made a decision that the issuance of the project specific waiver for the carbon steel pipe fittings and appurtenances is the best way to ensure that the City is in compliance with the Buy American provisions of ARRA. There is no indication that the City failed to request a waiver in order to avoid the requirements of the ARRA, particularly since there are no domestically manufactured products available that meet the project specifications. EPA will consider the City's waiver request, a foreseeable late request, as though it had been timely made since there is no gain by the City and no loss by the government due to the late request.

The April 28, 2009, EPA HQ Memorandum, Implementation of Buy American provisions of Public Law 111-5, the “American Recovery and Reinvestment Act of 2009,”defines reasonably available quantity as “the quantity of iron, steel, or relevant manufactured good is available or will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design.” The City has incorporated specific technical design requirements for installation of carbon steel pipe fittings and appurtenances at its wastewater treatment plant.

The purpose of the ARRA is to stimulate economic recovery in part by funding current infrastructure construction, not to delay projects that are “shovel ready” by requiring utilities, such as the City, to revise their standards and specifications, institute a new bidding process, and potentially choose a more costly, less efficient project. The imposition of ARRA Buy American requirements on such projects otherwise eligible for State Revolving Fund assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with a fundamental economic purpose of the ARRA, which is to create or retain jobs.

The Region 6 Water Quality Protection Division has reviewed this waiver request, and has determined that the supporting documentation provided by the City is sufficient to meet the criteria listed under ARRA, Section 1605(b), Office of Management and Budget (OMB) regulations at 2 CFR 176.60—176.170, and in the April 28, 2009, memorandum, “Implementation of Buy American provisions of Public Law 111-5, the American Recovery and Reinvestment Act of 2009. The basis for this project waiver is the authorization provided in ARRA, Section 1605(b) (2). Due to the lack of production of this product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet the City's technical specifications, a waiver from the Buy American requirement is justified.

EPA headquarters' March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the authority to issue exceptions to Section 1605 of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients. Having established both a proper basis to specify the particular goods required for this project, and that these manufactured goods are not available from a producer in the United States, the City is hereby granted a waiver from the Buy American requirements of ARRA, Section 1605(a) of Public Law 111-5 for the purchase of the selected carbon steel pipe fittings and appurtenances, using ARRA funds, as specified in the City's request. This supplementary information constitutes the detailed written justification required by ARRA, Section 1605(c), for waivers “based on a finding under subsection (b).”