The Agriculture Reauthorizations Act of 2015, Public Law 114-54, amended the USGSA (7 U.S.C. 71-87k) to require AMS to adjust fees for the supervision of official grain inspection and weighing in order to maintain an operating reserve of not less than 3 and not more than 6 months (7 U.S.C. 79(j)(4)). The Agricultural Marketing Service (AMS) published a notification of the suspension of supervision fee assessment on May 24, 2018, which became effective on July 1, 2018 (83 FR 24081). The suspension of the supervision fee assessment expires on June 30, 2019.

In order to maintain an operating reserve not less than 3 and not more than 6 months, AMS reviewed the operating reserve at the end of fiscal year 2018. The operating reserve at the end of fiscal year 2018 was $5,084,246, which continues to exceed 6 months by a significant margin. Accordingly, AMS is issuing this notice to announce the suspension of the fee for supervision of official inspection and weighing services of domestic grain and land carriers to Canada and Mexico performed by delegated States and/or designated agencies. According to the regulations under the USGSA, AMS may suspend any provision of the regulations in emergencies or other circumstances, which would not impair the objectives of the USGSA (7 CFR 800.2). AMS has determined that suspending supervision fees will not impair the objectives of the USGSA because the operating reserve for supervision services is sufficient to maintain the service without additional funds.

AMS will continue the suspension of the assessment fee of $0.011 per metric ton on domestic shipments officially inspected and/or weighed, including land carrier shipments to Canada and Mexico, performed by delegated States and/or designated agencies on or after July 1, 2019 (7 CFR 800.71 Schedule B). These fees will remain suspended for 18 months, at which time AMS will reassess the operating reserve for supervision of official agency inspection and weighing.

The realignment of offices within the U.S. Department of Agriculture authorized by the Secretary's Memorandum dated November 14, 2017, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a standalone agency. The grain inspection activities formerly part of GIPSA are now organized under AMS.

Members of the public can listen to the discussion. This meeting is available to the public through the above toll-free call-in number. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 230 S. Dearborn St., Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at callen@usccr.gov. Persons who desire additional information may contact the Regional Programs Office at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Michigan Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Office at the above email or street address.

Members of the public can listen to the discussion. This meeting is available to the public through the above listed toll-free number (audio only) and web access link (visual only). Please use both the call-in number and the web access link in order to follow the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at afortes@usccr.gov. Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at https://www.facadatabase.gov/FACA/FACAPublicViewCommitteeDetails?id=a10t0000001gzkoAAA.

Please click on the “Committee Meetings” tab. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website, https://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 800-949-2175 and conference call ID number: 8426059. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call-in number: 800-949-2175 and conference call ID number: 8426059.

Members of the public are invited to make statements during the Public Comment section of the meeting or to submit written comments. The statements must be received in the regional office approximately 30 days after the scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Corrine Sanders at ero@usccr.gov. Persons who desire additional information may phone the Eastern Regional Office at (202) 376-7533.

Records and documents discussed during the meeting will be available for public viewing as they become available at: https://www.facadatabase.gov/FACA/FACAPublicViewCommitteeDetails?id=a10t0000001gzjZAAQ; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

On December 21, 2018, Commerce placed on the record of this investigation an Issues and Decision Memorandum addressing all comments received in this proceeding and the companion antidumping proceeding addressing the issues raised by parties for the final determination. 1 Commerce committed a ministerial error within the meaning of 19 CFR 351.224(f). Specifically, in preparing the final determination, and despite being contemporaneously drafted, Commerce inadvertently omitted approximately four pages from the Issues and Decision Memorandum, including the final sentence of Commerce's position on issue 13 and the discussion of issues 14 and 15 in their entirety. Commerce is now placing on the record a corrected version of the Issues and Decision Memorandum, including the missing pages, dated February 19, 2019, which is incorporated by, and hereby adopted by, this notice.

The merchandise covered by this investigation is certain plastic decorative ribbon, having a width (measured at the narrowest span of the ribbon) of less than or equal to four (4) inches, but disregarding any features that measure 4 inches or less in width, such as tapering or cutting at the ends or in a bow knot, provided that aggregate length of such features comprises no more than 20% of the length of the ribbon. Subject merchandise includes but is not limited to ribbon wound onto itself; a spool, a core or a tube (with or without flanges); attached to a card or strip; wound into a keg- or egg-shaped configuration; made into bows, bow-like items, or other shapes or configurations; and whether or not packaged or labeled for retail sale. The subject merchandise is typically made of substrates of polypropylene, but may be made in whole or in part of any type of plastic, including without limitation, plastic derived from petroleum products and plastic derived from cellulose products. Unless the context otherwise clearly indicates, the word “ribbon” used in the singular includes the plural and the plural “ribbons” includes the singular.

The subject merchandise includes ribbons comprised of one or more layers of substrates made, in whole or in part, of plastics adhered to each other, regardless of the method used to adhere the layers together, including without limitation, ribbons comprised of layers of substrates adhered to each other through a lamination process. Subject merchandise also includes ribbons comprised of (a) one or more layers of substrates made, in whole or in part, of plastics adhered to (b) one or more layers of substrates made, in whole or in part, of non-plastic materials, including, without limitation, substrates made, in whole or in part, of fabric.

The ribbons subject to this investigation may be of any color or combination of colors (including without limitation, ribbons that are transparent, translucent or opaque) and may or may not bear words or images, including without limitation, those of a holiday motif. The subject merchandise includes ribbons with embellishments and/or treatments, including, without limitation, ribbons that are printed, hot-stamped, coated, laminated, flocked, crimped, die-cut, embossed (or that otherwise have impressed designs, images, words or patterns), and ribbons with holographic, metallic, glitter or iridescent finishes.

Subject merchandise includes “pull-bows” an assemblage of ribbons connected to one another, folded flat, and equipped with a means to form such ribbons into the shape of a bow by pulling on a length of material affixed to such assemblage, and “pre-notched” bows, an assemblage of notched ribbon loops arranged one inside the other with the notches in alignment and affixed to each other where notched, and which the end user forms into a bow by separating and spreading the loops circularly around the notches, which form the center of the bow. Subject merchandise includes ribbons that are packaged with non-subject merchandise, including ensembles that include ribbons and other products, such as gift wrap, gift bags, gift tags and/or other gift packaging products. The ribbons are covered by the scope of this investigation; the “other products” ( i.e., the other, non-subject merchandise included in the ensemble) are not covered by the scope of this investigation.

Excluded from the scope of this investigation are the following: (1) Ribbons formed exclusively by weaving plastic threads together; (2) ribbons that have metal wire in, on, or along the entirety of each of the longitudinal edges of the ribbon; (3) ribbons with an adhesive coating covering the entire span between the longitudinal edges of the ribbon for the entire length of the ribbon; (4) ribbon formed into a bow without a tab or other means for attaching the bow to an object using adhesives, where the bow has: (a) An outer layer that is either flocked, made of fabric, or covered by any other decorative coating such as glitter (whether of plastic or non-plastic materials), and (b) a flexible metal wire at the base which permits attachment to an object by twist-tying; (5) elastic ribbons, meaning ribbons that elongate when stretched and return to their original dimension when the stretching load is removed; (6) ribbons affixed as a decorative detail to non-subject merchandise, such as a gift bag, gift box, gift tin, greeting card or plush toy, or affixed (including by tying) as a decorative detail to packaging containing non subject merchandise; (7) ribbons that are (a) affixed to non-subject merchandise as a working component of such non-subject merchandise, such as where the ribbon comprises a book marker, bag cinch, or part of an identity card holder, or (b) affixed (including by tying) to non-subject merchandise as a working component that holds or packages such non-subject merchandise or attaches packaging or labeling to such non-subject merchandise, such as a “belly band” around a pair of pajamas, a pair of socks or a blanket; (8) imitation raffia made of plastics having a thickness not more than one (1) mil when measured in an unfolded/untwisted state; (9) cords, i.e., multiple strands of materials that have been braided, gimped or twisted together; and (10) ribbons in the form of bows having a diameter of less than seven-eighths ( 7/8 ) of an inch, or having a diameter of more than 16 inches, based on actual measurement. For purposes of this exclusion, the diameter of a bow is equal to the diameter of the smallest circular ring through which the bow will pass without compressing the bow.

The scope of the investigation excludes shredded plastic film or shredded plastic strip, in each case where the shred does not exceed 5 mm in width and does not exceed 18 inches in length.

The scope of the investigation excludes plastic garlands and plastic tinsel garlands, imported in lengths of not less than three (3) feet. The longitudinal base of these garlands may be made of wire or non-wire material, and these garlands may include plastic die-cut pieces. Also excluded are items made of plastic garland and/or plastic tinsel where the items do not have a tab or other means for attaching the item to an object using adhesives. This exclusion does not apply to plastic garland bows, plastic tinsel bows, or other bow-like products made of plastic garland or plastic tinsel.

The scope of the investigation excludes ribbons made exclusively of fabric formed by weaving or knitting threads together, or by matting, condensing or pressing fibers together to create felt fabric, regardless of thread or fiber composition, including without limitation, fabric ribbons of polyester, nylon, acrylic or terylene threads or fibers. This exclusion does not apply to plastic ribbons that are flocked.

The scope of the investigation excludes ribbons having a width of less than three (3) mm when incorporated by weaving into mesh material (whether flat or tubular) or fabric ribbon (meaning ribbon formed by weaving all or any of the following: man-made fibers, natural fibers, metal threads and/or metalized yarns), in each case only where the mesh material or fabric ribbon is imported in the form of a decorative bow or a decorative bow-like item.

Further, excluded from the scope of the antidumping duty investigation are any products covered by the existing antidumping duty order on polyethylene terephthalate film, sheet, and strip (PET Film) from the People's Republic of China (China). See Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, the People's Republic of China and the United Arab Emirates: Antidumping Duty Orders and Amended Final Determination of Sales at Less Than Fair Value for the United Arab Emirates, 73 FR 66595 (November 10, 2008).

Merchandise covered by this investigation is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 3920.20.0015 and 3926.40.0010. Merchandise covered by this investigation also may enter under subheadings 3920.10.0000; 3920.20.0055; 3920.30.0000; 3920.43.5000; 3920.49.0000; 3920.62.0050; 3920.62.0090; 3920.69.0000; 3921.90.1100; 3921.90.1500; 3921.90.1910; 3921.90.1950; 3921.90.4010; 3921.90.4090; 3926.90.9996; 5404.90.0000; 9505.90.4000; 4601.99.9000; 4602.90.0000; 5609.00.3000; 5609.00.4000; and 6307.90.9889. These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of this investigation is dispositive.

Suspension of liquidation and cash deposit rates for all producers and exporters of plastic ribbon from China are unaffected by this amended final determination. Refer to the Final CVD Determination for the suspension instructions in effect at the time of the issuance of this notice. 2

Commerce is not accepting comments in response to this corrected final determination.

In accordance with section 705(d) of the Tariff Act of 1930, as amended (Act), Commerce will notify the International Trade Commission (ITC) of its amended final determination.

This corrected final determination is issued and published pursuant to sections 705(d) and 777(i)(1) of the Act.

In the Federal Register of February 25, 2019, in FR Doc. 2019-03171, on page 5988, in the first column, correct the Dates caption to read:

Background

On March 19, 2008, Commerce published in the Federal Register the antidumping order on SHMP from China. 1 On June 1, 2018, Commerce published the notice of initiation of the second sunset review of the antidumping duty order on SHMP from China, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). 2 On June 8, 2018, Commerce received a notice of intent to participate from ICL Specialty Products, Inc. and Innophos, Inc. (collectively, the petitioners) as domestic interested parties. 3 On July 2, 2018, we received a complete substantive response from the domestic interested parties. 4 We received no substantive responses from respondent interested parties with respect to the order covered by this sunset review, nor was a hearing requested. Pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), Commerce conducted an expedited (120-day) sunset review of this order.

As a result of its review, Commerce determined pursuant to section 751(c)(1) and 752(c) of the Act, that revocation of the antidumping duty order would likely lead to a continuation or recurrence of dumping. 5 Commerce, therefore, notified the ITC of the magnitude of the dumping margins likely to prevail should the antidumping duty order be revoked. On December 12, 2018, the ITC published its determination, pursuant to section 751(c) of the Act, that revocation of the antidumping duty order on SHMP from China would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. 6

The merchandise subject to the order is sodium hexametaphosphate. For a complete description of the scope of this order, see the Issues and Decision Memorandum at 2.

As a result of the determinations by Commerce and the ITC that revocation of the antidumping duty order would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), Commerce hereby orders the continuation of the antidumping duty order on SHMP from China. U.S. Customs and Border Protection will continue to collect antidumping duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

The effective date of the continuation of the antidumping order will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act and 19 CFR 351.218(c)(2), Commerce intends to initiate the next sunset review of the order not later than 30 days prior to the fifth anniversary of the effective date of continuation.

This five-year sunset review and this notice are in accordance with section 751(c) and 751(d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

Commerce's procedures for the conduct of Sunset Reviews are set forth in its Procedures for Conducting Five-Year (Sunset) Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) and 70 FR 62061 (October 28, 2005). Guidance on methodological or analytical issues relevant to Commerce's conduct of Sunset Reviews is set forth in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s):

As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerces's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address: http://enforcement.trade.gov/sunset/. All submissions in these Sunset Reviews must be filed in accordance with Commerce's regulations regarding format, translation, and service of documents. These rules, including electronic filing requirements via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS), can be found at 19 CFR 351.303. 1

Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information. 2 Parties must use the certification formats provided in 19 CFR 351.303(g). 3 Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

On April 10, 2013, Commerce modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301). 4 Parties are advised to review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in these segments. To the extent that other regulations govern the submission of factual information in a segment (such as 19 CFR 351.218), these time limits will continue to be applied. Parties are also advised to review the final rule concerning the extension of time limits for submissions in AD/CVD proceedings, available at http://enforcement.trade.gov/frn/2013/1309frn/2013-22853.txt, prior to submitting factual information in these segments. 5

Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation. Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the Federal Register of this notice of initiation. Commerce's regulations on submission of proprietary information and eligibility to receive access to business proprietary information under APO can be found at 19 CFR 351.304-306.

Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the Federal Register of this notice of initiation by filing a notice of intent to participate. The required contents of the notice of intent to participate are set forth at 19 CFR 351.218(d)(1)(ii). In accordance with Commerce's regulations, if we do not receive a notice of intent to participate from at least one domestic interested party by the 15-day deadline, Commerce will automatically revoke the order without further review. 6

If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that all parties wishing to participate in a Sunset Review must file complete substantive responses not later than 30 days after the date of publication in the Federal Register of this notice of initiation. The required contents of a substantive response, on an order-specific basis, are set forth at 19 CFR 351.218(d)(3). Note that certain information requirements differ for respondent and domestic parties. Also, note that Commerce's information requirements are distinct from the Commission's information requirements. Consult Commerce's regulations for information regarding Commerce's conduct of Sunset Reviews. Consult Commerce's regulations at 19 CFR part 351 for definitions of terms and for other general information concerning antidumping and countervailing duty proceedings at Commerce.

This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).

Background

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

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable [adverse] impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

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

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

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

On November 18, 2018, NMFS received a request from CBS for an IHA to take marine mammals incidental to pile driving and removal activities associated with the O'Connell Bridge Lightering Float Pile Replacement Project in Sitka, Alaska. The application was deemed adequate and complete on December 20, 2018. CBS's request is for take of small numbers of humpback whale ( Megaptera novaeangliae ), killer whale ( Orcinus orca ), harbor porpoise ( Phocoena phocoena ), harbor seal ( Phoca vitulina ), and Steller sea lion ( Eumetopias jubatus ) by Level B harassment only. Neither CBS nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

CBS is repairing the O'Connell Bridge Lightering Float (float) located in Sitka Sound in Southeast Alaska. The applicant proposes to remove existing piles and replace them with piles that are more deeply socketed so that the float can accommodate larger vessels including yachts, fish processors, and research vessels. Existing piles are not socketed deep enough to provide proper stability to safely support these vessels. Additionally, the float was damaged during a storm in June of 2017, and the existing piles are now leaning. This project would replace the existing piles with new piles that are socketed deeper into the ocean floor. Once the piles are replaced, the float will safely accommodate these larger vessels. Vibratory pile removal, vibratory pile driving, impact pile driving, and drilling would introduce sound into nearby waters at levels that could result in behavioral harassment of marine mammals.

Pile removal and installation is expected to occur for a total of approximately 13 hours over 3 days. The local Sitka Tribe requested that no pile driving occur between March 15 and May 31 to protect herring, as has been the case for past permitting in Sitka Sound. Therefore, and assuming weather conditions are favorable, CBS proposes to begin pile driving work on June 1, 2019. As a contingency, CBS requests an IHA for incidental take of marine mammals described within this application for one year, effective from June 1, 2019 through May 31, 2020.

The O'Connell Bridge Lightering Float is located near the prominent O'Connell Bridge within Crescent Bay and adjacent to Sitka Channel (see Figures 1, 2, and 3 of CBS's application). Crescent Bay is bounded by Sitka Channel to the northwest, Middle Channel to the southwest and Eastern Channel to the southeast, and a series of islands to the south. The bay is relatively shallow with a maximum depth of approximately 30 meters. The north side of the bay has riprap protected developed areas, including a boat harbor, and undeveloped shorelines on small islands to the south and on the eastern side of the bay. Lower intertidal and shallow subtidal areas are primarily cobbles and boulders with varying amounts of silt. The sediment thickness varies from 3 to 30 inches (PND 2017) until bedrock is reached. The float is located in an active marine commercial and industrial area.

CBS plans to remove and replace the six piles that support the O'Connell Bridge Lightering Float. The existing float consists of two 100-foot long by 5-foot wide aluminum gangways and a 180-foot long by 10-foot wide concrete modular float system restrained by six 16-inch diameter steel pipe piles that are socketed 4 feet deep into bedrock. The existing piles would be removed and replaced with six new 16-inch diameter steel piles that would be socketed 12 feet deep into bedrock. Pile installation and removal is expected to occur over three days. Construction includes the following activities:

• Temporarily remove the existing concrete lightering float and associated aluminum gangways (Note: these components are removed each winter and reinstalled in the summer.);

• Remove six (6) 16-inch diameter steel pipe piles that support the float;

• Install six (6) 16-inch diameter galvanized steel pipe piles (0.5-inch wall); and

• Reinstall the floating dock and gangways.

The following equipment would be used:

• Vibratory Hammer: ICE 44B/12,450 pounds static weight;

• Diesel Impact Hammer: Delmar D46/Max Energy 107,280 ft.-pounds;

• Drilled shaft drill: Hole 100,000 ft-lb. top drive with down-the-hole (DTH) hammer and bit; and

• Socket drill: Whole 100,000 ft-lb. top drive with DTH hammer and under-reamer bit.

The first step would be to remove the existing piles by direct pull using a crane. If the direct pull method is ineffective, the piles would be extracted with a vibratory hammer. In this case, the vibratory hammer would be clamped onto the pile and operated while using a crane to pull the pile upwards.

Next, the new piles would be installed. First the piles would be vertically stabilized by being vibrated into the existing 4-foot deep sockets. Next the piles would be socketed into the underlying bedrock with a down-hole drill and under-reamer bit (the drill will be used first to drill a hole in the bedrock to a depth of approximately 12 feet and then to socket the pile into the bedrock). After the pile is socketed, the contractor may choose to impact proof the piles. In this case, two to five blows of an impact hammer would be used per pile to confirm that piles are set into bedrock.

Pile removal and installation are expected to occur on three days. On the first day the existing piles would be removed, and the new piles would be vibrated into position. Over the second and third day, the piles would be socketed into bedrock. At the end of the third day, the piles would be impact proofed, if necessary. Table 1 provides a conservative estimate of the amount of time required for pile installation and removal.

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

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS's website ( https://www.fisheries.noaa.gov/find-species ).

Table 2 lists all species with expected potential for occurrence in Crescent Bay and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Alaska SARs ( e.g., Muto et al. 2018). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2017 SARs (Muto et al. 2018) and draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports )

Multiple additional marine mammal species may occasionally enter Sitka sound but would not be expected to occur in shallow nearshore waters of the action area. These include extralimital species, which are species that do not normally occur in a given area but for which there are one or more occurrence records that are considered beyond the normal range of the species. Gray whales are observed in and outside of Sitka Sound during their northward spring migration; however, they occur generally north and west of the project area in outer shelf waters of Sitka Sound during the summer. Similarly, minke whales in Alaska are migratory and would be found further north during the summer. Dall's porpoise are observed in mid- to outer-shelf coastal waters of Sitka Sound ranging to the Gulf of Alaska and are not expected to occur in the project area. Pacific white-sided dolphins occur in the outer-shelf slope in the Gulf of Alaska, which is outside of the project area. Sperm whales, fin whales and Cuvier's beaked whales generally occur in deeper offshore waters. During eight years of local surveys, only three gray whales and seven Pacific white sided dolphins were observed. The sperm whale, Cuvier's beaked whale, minke whale and Dall's porpoise were not observed (Straley et al. 2018). Therefore, no take is requested for these species and they are not considered further in this proposed IHA.

The humpback whale is distributed worldwide in all ocean basins. In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres, and migrate to high latitudes in the summer to feed. The historic summer feeding range of humpback whales in the North Pacific encompassed coastal and inland waters around the Pacific Rim from Point Conception, California, north to the Gulf of Alaska and the Bering Sea, and west along the Aleutian Islands to the Kamchatka Peninsula and into the Sea of Okhotsk and north of the Bering Strait.

Under the MMPA, there are three stocks of humpback whales in the North Pacific: (1) The California/Oregon/Washington and Mexico stock, consisting of winter/spring populations in coastal Central America and coastal Mexico which migrate to the coast of California to southern British Columbia in summer/fall; (2) the central North Pacific stock, consisting of winter/spring populations of the Hawaiian Islands which migrate primarily to northern British Columbia/Southeast Alaska, the Gulf of Alaska, and the Bering Sea/Aleutian Islands; and (3) the western North Pacific stock, consisting of winter/spring populations off Asia which migrate primarily to Russia and the Bering Sea/Aleutian Islands. The central North Pacific stock is the only stock that is found near the project activities.

On September 8, 2016, NMFS published a final rule dividing the globally listed endangered species into 14 Distinct Population Segments (DPS), removing the worldwide species-level listing, and in its place listing four DPSs as endangered and one DPS as threatened (81 FR 62259; effective October 11, 2016). Two DPSs (Hawaii and Mexico) are potentially present within the action area. The Hawaii DPS is not listed and the Mexico DPS is listed as threatened under the ESA. The Hawaii DPS is estimated to contain 11,398 animals where the Mexico DPS is estimated to contain 3,264 animals (Wade et al. 2016).

Humpback whales are known to undertake seasonal migrations from their tropical calving and breeding grounds in winter to their high-latitude feeding grounds in summer. However, they have been observed in Southeast Alaska in all months of the year. Humpback whales are most common in Sitka Sound's Eastern Channel in November, December, and January (Straley et al. 2018). In late fall and winter, herring sometimes overwinter in deep fjords in Silver Bay and Eastern Channel, and humpback whales aggregate in these areas to feed on them. At some point in the late winter, it is likely that whales migrate south across the North Pacific to their mating and calving grounds in Hawaii and Mexico; however, this likely occurs after herring have moved out of the fjords. In the summer when prey is dispersed throughout Sitka Sound, humpback whales also disperse throughout the Sound and away from the project area (Straley 2017).

Killer whales have been observed in all oceans and seas of the world, but the highest densities occur in colder and more productive waters found at high latitudes. Killer whales are found throughout the North Pacific, and occur along the entire Alaska coast, in British Columbia and Washington inland waterways, and along the outer coasts of Washington, Oregon, and California (Muto et al. 2017).

Based on data regarding association patterns, acoustics, movements, and genetic differences, eight killer whale stocks are now recognized: (1) The Alaska Resident stock; (2) the Northern Resident stock; (3) the Southern Resident stock; (4) the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock; (5) the AT1 Transient stock; (6) the West Coast transient stock, occurring from California through southeastern Alaska; and (7) the Offshore stock, and (8) the Hawaiian stock. Only the Alaska resident; Northern resident; Gulf of Alaska, Aleutian Islands, and Bering Sea Transient (Gulf of Alaska transient); and the West coast transient stocks are considered in this application because other stocks occur outside the geographic area under consideration. Any of these four stocks could occur in the action area.

Local observational data by Straley (2017) demonstrated that transient killer whales, primarily from the West Coast transient stock, occur most frequently in the project area. Less often, whales from the Eastern North Pacific Gulf of Alaska, Aleutian Islands, and Bering Sea transient stock occur in the project area. Because of their transient nature, it is difficult to predict when killer whales will be present in the area. Whales from the Alaska resident stock and the Northern resident stock primarily feed on fish and do occur in Southeast Alaska; however, they are rare in the project area (Straley 2017).

The harbor porpoise inhabits temperate, subarctic, and arctic waters. In the eastern North Pacific, harbor porpoises range from Point Barrow, Alaska, to Point Conception, California. Harbor porpoise primarily frequent coastal waters and occur most frequently in waters less than 100 m deep (Hobbs and Waite 2010). They may occasionally be found in deeper offshore waters.

In Alaska, harbor porpoises are currently divided into three stocks, based primarily on geography: (1) The Southeast Alaska stock—occurring from the northern border of British Columbia to Cape Suckling, Alaska, (2) the Gulf of Alaska stock—occurring from Cape Suckling to Unimak Pass, and (3) the Bering Sea stock—occurring throughout the Aleutian Islands and all waters north of Unimak Pass. Only the Southeast Alaska stock is considered in this application because the other stocks are not found in the geographic area under consideration.

Harbor porpoises commonly frequent nearshore waters, but are not common in the project vicinity. Monthly observation from Sitka's Whale Park show harbor porpoises occurring infrequently in or near the action area in March, April, and October between 1994 to 2002 (Straley et al. 2018). Meanwhile, no harbor porpoises have been observed more recently during monitoring (Windward 2017 and Turnagain 2017, Turnagain 2018).

The Steller sea lion is the largest of the eared seals, ranging along the North Pacific Rim from northern Japan to California, with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands. Steller sea lions were listed as threatened range-wide under the ESA on November 26, 1990 (55 FR 49204). Subsequently, NMFS published a final rule designating critical habitat for the species as a 20 nautical mile buffer around all major haulouts and rookeries, as well as associated terrestrial, air and aquatic zones, and three large offshore foraging areas (58 FR 45269; August 27, 1993). In 1997, NMFS reclassified Steller sea lions into two DPSs based on genetic studies and other information (62 FR 24345; May 5, 1997). Steller sea lion populations that primarily occur west of 144° W. (Cape Suckling, Alaska) comprise the western DPS (wDPS), while all others comprise the eastern DPS (eDPS); however, there is regular movement of both DPSs across this boundary (Jemison et al. 2013). Upon this reclassification, the wDPS became listed as endangered while the eDPS remained as threatened (62 FR 24345; May 5, 1997). In November 2013, the eDPS was delisted (78 FR 66140). Based on recent observations of branded animals in Southeast Alaska, NMFS estimates that 98 percent of Steller sea lions occurring within the action area belong to the eDPS, leaving 2 percent to the wDPS (Suzie Teerlink, pers. comm, May 19, 2017).

Steller sea lions are common in the inside waters of southeastern Alaska and are common in the vicinity of the project and both Eastern DPS and Western DPS species are thought to be within Sitka Sound. Steller sea lions were seen during every month of monitoring (September to May) between 1994 and 2002 (Straley et al. 2018).

Because the action area contains a herring processing plant, animals may linger in the area to feed opportunistically. Anecdotal evidence from staff at the fish processing plant indicate that multiple (up to 10) Steller sea lions may reside in the area for multiple days (Straley et al. 2018).

The project action area does not overlap Steller sea lion critical habitat. The Biorka Island haulout is the closest designated critical habitat and is over 25 kilometers southwest of the project area. Steller sea lions also haul out on buoys and navigational markers in Sitka Sound and along the rocky shores of Sugarloaf south of the project site. However, these haulouts are far beyond the expected extent of in-water and in-air noise disturbance thresholds for hauled out pinnipeds.

Harbor seals range from Baja California north along the coasts of Washington, Oregon, California, British Columbia, and Southeast Alaska; west through the Gulf of Alaska, Prince William Sound, and the Aleutian Islands; and north in the Bering Sea to Cape Newenham and the Pribilof Islands. They haul out on rocks, reefs, beaches, and drifting glacial ice, and feed in marine, estuarine, and occasionally fresh waters. Harbor seals are generally non-migratory, with local movements associated with such factors as tides, weather, season, food availability, and reproduction.

Harbor seals in Alaska are partitioned into 12 separate stocks based largely on genetic structure: (1) The Aleutian Islands stock, (2) the Pribilof Islands stock, (3) the Bristol Bay stock, (4) the North Kodiak stock, (5) the South Kodiak stock, (6) the Prince William Sound stock, (7) the Cook Inlet/Shelikof stock, (8) the Glacier Bay/Icy Strait stock, (9) the Lynn Canal/Stephens Passage stock, (10) the Sitka/Chatham stock, (11) the Dixon/Cape Decision stock, and (12) the Clarence Strait stock. Only the Sitka/Chatham stock is considered in this proposed IHA. The range of this stock includes Cape Bingham south to Cape Ommaney and the adjacent coastal and inshore waters, including the project area.

Harbor seals are common in the inside waters of southeastern Alaska, including in the vicinity of the O'Connell Bridge Lightering Float. The species were seen during most months of monitoring (September through May) from observation from the Sitka Whale Park between 1994 and 2002, except in December and May (Straley et al. 2018). Harbor seals were also commonly observed at nearby locations according to recent monitoring reports (Turnagain 2017 and Windward 2017, Turnagain 2018). Similar to Steller sea lions, harbor seals may linger in the action area for multiple days; however, no designated haulouts are within close proximity.

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

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

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

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

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

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

The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (three cetacean and two pinniped (one otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Of the cetacean species that may be present, one is classified as a low-frequency cetacean ( i.e., humpback whale), one is classified as a mid-frequency cetacean ( i.e., killer whale), and one is classified as a high-frequency cetacean ( i.e., harbor porpoise).

This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far. The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical ( e.g., waves, wind, precipitation, earthquakes, ice, atmospheric sound), biological ( e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound ( e.g., vessels, dredging, aircraft, construction).

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

In-water construction activities associated with the project would include impact pile driving, vibratory pile driving and removal, and drilling. The sounds produced by these activities fall into one of two general sound types: Impulsive and non-impulsive. Impulsive sounds ( e.g., explosions, gunshots, sonic booms, impact pile driving) are typically transient, brief (less than 1 second), broadband, and consist of high peak sound pressure with rapid rise time and rapid decay (ANSI 1986; NIOSH 1998; ANSI 2005; NMFS 2018). Non-impulsive sounds ( e.g. aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems) can be broadband, narrowband or tonal, brief or prolonged (continuous or intermittent), and typically do not have the high peak sound pressure with raid rise/decay time that impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing ( e.g., Ward 1997 in Southall et al. 2007).

Two types of pile hammers would be used on this project: Impact and vibratory. Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman et al. 2009). Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (Nedwell and Edwards 2002; Carlson et al. 2005).

Drilling would be conducted using a down-the-hole drill inserted through the hollow steel piles. A down-the-hole drill is a drill bit that drills through the bedrock using an impact mechanism that functions at the bottom of the hole. This breaks up rock to allow removal of debris and insertion of the pile. The head extends so that the drilling takes place below the pile. The sounds produced by the down-the-hole drilling method are considered continuous as the noise from the drilling component is dominant. In addition, this method likely increases sound attenuation because the noise is primarily contained within the steel pile and below ground rather than impact hammer driving methods which occur at the top of the pile and introduce sound into the water column to a greater degree.

The likely or possible impacts of CBS's proposed activity on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel; however, any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors include effects of heavy equipment operation during pile installation and removal and drilling.

The introduction of anthropogenic noise into the aquatic environment from pile driving and removal and down-the-hole drilling is the primary means by which marine mammals may be harassed from CBS's specified activity. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall et al. 2007). In general, exposure to pile driving and drilling noise has the potential to result in auditory threshold shifts and behavioral reactions ( e.g., avoidance, temporary cessation of foraging and vocalizing, changes in dive behavior). Exposure to anthropogenic noise can also lead to non-observable physiological responses such an increase in stress hormones. Additional noise in a marine mammal's habitat can mask acoustic cues used by marine mammals to carry out daily functions such as communication and predator and prey detection. The effects of pile driving and drilling noise on marine mammals are dependent on several factors, including, but not limited to, sound type ( e.g., impulsive vs. non-impulsive), the species, age and sex class ( e.g., adult male vs. mom with calf), duration of exposure, the distance between the pile and the animal, received levels, behavior at time of exposure, and previous history with exposure (Wartzok et al. 2004; Southall et al. 2007). Here we discuss physical auditory effects (threshold shifts) followed by behavioral effects and potential impacts on habitat.

NMFS defines a noise-induced threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). The amount of threshold shift is customarily expressed in dB. A TS can be permanent or temporary. As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern ( e.g., impulsive or non-impulsive), likelihood an individual would be exposed for a long enough duration or to a high enough level to induce a TS, the magnitude of the TS, time to recovery (seconds to minutes or hours to days), the frequency range of the exposure ( i.e., spectral content), the hearing and vocalization frequency range of the exposed species relative to the signal's frequency spectrum ( i.e., how animal uses sound within the frequency band of the signal; e.g., Kastelein et al. 2014), and the overlap between the animal and the source ( e.g., spatial, temporal, and spectral).

Permanent Threshold Shift (PTS) —NMFS defines PTS as a permanent, irreversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). Available data from humans and other terrestrial mammals indicate that a 40 dB threshold shift approximates PTS onset (see Ward et al. 1958, 1959; Ward 1960; Kryter et al. 1966; Miller 1974; Ahroon et al. 1996; Henderson et al. 2008). PTS levels for marine mammals are estimates, as with the exception of a single study unintentionally inducing PTS in a harbor seal (Kastak et al. 2008), there are no empirical data measuring PTS in marine mammals largely due to the fact that, for various ethical reasons, experiments involving anthropogenic noise exposure at levels inducing PTS are not typically pursued or authorized (NMFS 2018).

Temporary Threshold Shift (TTS) —A temporary, reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). Based on data from cetacean TTS measurements (see Southall et al. 2007), a TTS of 6 dB is considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt et al. 2000; Finneran et al. 2000, 2002). As described in Finneran (2015), marine mammal studies have shown the amount of TTS increases with cumulative sound exposure level (SEL cum) in an accelerating fashion: At low exposures with lower SEL cum , the amount of TTS is typically small and the growth curves have shallow slopes. At exposures with higher SEL cum , the growth curves become steeper and approach linear relationships with the noise SEL.

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 (similar to those discussed in auditory masking, below). 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 time when communication is critical for successful mother/calf interactions could have more serious impacts. We note that reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al. 2007), so we can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin ( Tursiops truncatus ), beluga whale ( Delphinapterus leucas ), harbor porpoise, and Yangtze finless porpoise ( Neophocoena asiaeorientalis )) and five species of pinnipeds exposed to a limited number of sound sources ( i.e., mostly tones and octave-band noise) in laboratory settings (Finneran 2015). TTS was not observed in trained spotted ( Phoca largha ) and ringed ( Pusa hispida ) seals exposed to impulsive noise at levels matching previous predictions of TTS onset (Reichmuth et al. 2016). In general, harbor seals and harbor porpoises have a lower TTS onset than other measured pinniped or cetacean species (Finneran 2015). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. No data are available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall et al. (2007), Finneran and Jenkins (2012), Finneran (2015), and Table 5 in NMFS (2018). Installing piles requires a combination of impact pile driving, vibratory pile driving, and down-the-hole drilling. For the project, these activities would not occur at the same time and there would likely be pauses in activities producing the sound during each day. Given these pauses and that many marine mammals are likely moving through the action area and not remaining for extended periods of time, the potential for TS declines.

Behavioral Harassment —Exposure to noise from pile driving and removal and drilling also has the potential to behaviorally disturb marine mammals. Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, l et al one the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant ( e.g., Lusseau and Bejder 2007; Weilgart 2007; NRC 2005).

Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors ( e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors ( e.g., Richardson et al. 1995; Wartzok et al. 2003; Southall et al. 2007; Weilgart 2007; Archer et al. 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al. 2012), and can vary depending on characteristics associated with the sound source ( e.g., whether it is moving or stationary, number of sources, distance from the source). In general, pinnipeds seem more tolerant of, or at least habituate more quickly to, potentially disturbing underwater sound than do cetaceans, and generally seem to be less responsive to exposure to industrial sound than most cetaceans. Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators ( e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance ( e.g., Croll et al. 2001; Nowacek et al. 2004; Madsen et al. 2006; Yazvenko et al. 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal.

In 2016, the Alaska Department of Transportation and Public Facilities (ADOT&PF) documented observations of marine mammals during construction activities ( i.e., pile driving and down-hole drilling) at the Kodiak Ferry Dock (see 80 FR 60636 for Final IHA Federal Register notice). In the marine mammal monitoring report for that project (ABR 2016), 1,281 Steller sea lions were observed within the Level B disturbance zone during pile driving or drilling ( i.e., documented as Level B harassment take). Of these, 19 individuals demonstrated an alert behavior, 7 were fleeing, and 19 swam away from the project site. All other animals (98 percent) were engaged in activities such as milling, foraging, or fighting and did not change their behavior. In addition, two sea lions approached within 20 meters of active vibratory pile driving activities. Three harbor seals were observed within the disturbance zone during pile driving activities; none of them displayed disturbance behaviors. Fifteen killer whales and three harbor porpoise were also observed within the Level B harassment zone during pile driving. The killer whales were travelling or milling while all harbor porpoises were travelling. No signs of disturbance were noted for either of these species. Given the similarities in activities and habitat and the fact the same species are involved, we expect similar behavioral responses of marine mammals to the specified activity. That is, disturbance, if any, is likely to be temporary and localized ( e.g., small area movements). Monitoring reports from other recent pile driving and down-the-hole drilling projects in Alaska have observed similar behaviors (for example, the Biorka Island Dock Replacement Project).

Masking —Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest ( e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, navigation) (Richardson et al. 1995). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural ( e.g., snapping shrimp, wind, waves, precipitation) or anthropogenic ( e.g., pile driving, shipping, sonar, seismic exploration) in origin. The ability of a noise source to mask biologically important sounds depends on the characteristics of both the noise source and the signal of interest ( e.g., signal-to-noise ratio, temporal variability, direction), in relation to each other and to an animal's hearing abilities ( e.g., sensitivity, frequency range, critical ratios, frequency discrimination, directional discrimination, age or TTS hearing loss), and existing ambient noise and propagation conditions. Masking of natural sounds can result when human activities produce high levels of background sound at frequencies important to marine mammals. Conversely, if the background level of underwater sound is high ( e.g. on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked.

Airborne Acoustic Effects —Pinnipeds that occur near the project site could be exposed to airborne sounds associated with pile driving and removal and down-the-hole drilling that have the potential to cause behavioral harassment, depending on their distance from pile driving activities. Cetaceans are not expected to be exposed to airborne sounds that would result in harassment as defined under the MMPA.

Airborne noise would primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' because of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.

CBS construction activities at the O'Connell Bridge lightering float could have localized, temporary impacts on marine mammal habitat and their prey by increasing in-water sound pressure levels and slightly decreasing water quality. Increased noise levels may affect acoustic habitat (see masking discussion above) and adversely affect marine mammal prey in the vicinity of the project area (see discussion below). During impact pile driving, elevated levels of underwater noise would ensonify a portion of Sitka Sound where both fish and mammals occur and could affect foraging success.

Construction activities are of short duration and would likely have temporary impacts on marine mammal habitat through increases in underwater and airborne sound. These sounds would not be detectable at the nearest known Steller sea lion haulouts, and all known harbor seal haulouts are well beyond the maximum distance of predicted in-air acoustical disturbance.

In-water pile driving, pile removal, and drilling activities would also cause short-term effects on water quality due to increased turbidity. Local strong currents are anticipated to disburse suspended sediments produced by project activities at moderate to rapid rates depending on tidal stage. CBS would employ standard construction best management practices, thereby reducing any impacts. Therefore, the impact from increased turbidity levels is expected to be discountable.

The area likely impacted by the project is relatively small compared to the available habitat in Crescent Bay and Sitka Sound and does not include any BIAs or ESA-designated critical habitat. Pile installation/removal and drilling may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. CBS must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al. 1980). Cetaceans are not expected to be close enough to the project pile driving areas to experience effects of turbidity, and any pinnipeds would be transiting the area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals. Furthermore, pile driving and removal at the project site would not obstruct movements or migration of marine mammals.

Avoidance by potential prey ( i.e., fish) of the immediate area due to the temporary loss of this foraging habitat is also possible. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity in Crescent Bay and Sitka Sound.

The duration of the construction activities is relatively short. The construction window is for a maximum of 3 days during daylight hours only. Impacts to habitat and prey are expected to be minimal based on the short duration of activities.

In-water Construction Effects on Potential Prey (Fish)— Construction activities would produce continuous ( i.e., vibratory pile driving and down-the-hole drilling) and intermittent ( i.e. impact driving) sounds. Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects ( e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al. 1992; Skalski et al. 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality.

The most likely impact to fish from pile driving and drilling activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

Construction activities, in the form of increased turbidity, have the potential to adversely affect forage fish and juvenile salmonid outmigratory routes in the project area. Both herring and salmon form a significant prey base for Steller sea lions, herring is a primary prey species of humpback whales, and both herring and salmon are components of the diet of many other marine mammal species that occur in the project area. Increased turbidity is expected to occur in the immediate vicinity (on the order of 10 feet or less) of construction activities. However, suspended sediments and particulates are expected to dissipate quickly within a single tidal cycle. Given the limited area affected and high tidal dilution rates any effects on forage fish and salmon are expected to be minor or negligible. In addition, best management practices would be in effect, which would limit the extent of turbidity to the immediate project area.

In summary, given the short daily duration of sound associated with individual pile driving and drilling events and the relatively small areas being affected, pile driving and drilling activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Thus, we conclude that impacts of the specified activity are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to marine mammal habitat are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.

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

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

Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to impact and vibratory hammers and down-the-hole drilling. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures ( i.e., shutdown—discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized.

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

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

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

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

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

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

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

The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project ( i.e., impact pile driving, vibratory pile driving and removal and down-the-hole drilling). The maximum (underwater) ensonified area is truncated by land masses and largely confined to marine waters within Eastern Channel of Sitka Sound, extending approximately 7.7 kilometers through Crescent Bay, Middle Channel, and into Eastern Channel and encompassing approximately 7.26 square kilometers (see Figure 5 in the application).

The distances to the Level A and Level B harassment thresholds were calculated based on source levels from the Naval Base Kitsap at Bangor EHW-1 Pile Replacement Project, in Bangor, Washington (NAVFAC 2012) and the Kodiak Ferry Terminal Project in Kodiak, Alaska (Denes et. al. 2016) for a given activity and pile type ( e.g., vibratory removal/installation, drilling, and impact pile driving of 24-inch diameter steel piles). The vibratory source level is proxy from 24-inch steel piles driven at the Naval Base Kitsap in Bangor, Washington (NAVFAC 2012) and from acoustic modeling of nearshore marine pile driving at Navy installations in Puget Sound (United States Navy 2015). The socketing source level is proxy from mean measured sources levels from drilling of 24-inch diameter piles to construct the Kodiak Ferry Terminal (Denes et al. 2016). Sound pressure level root-mean-square (SPL rms) values were used to calculate distance to Level A and B harassment isopleths for impact pile driving. The source levels of 168.2 SEL (for Level A harassment) and 181.3 SPL (for Level B harassment) are the mean measured levels from the Kodiak Ferry Terminal project (Denes et al. 2016).

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

A practical spreading value of fifteen is often used under conditions, such as at the lightering dock location, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss is assumed here.

When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving and drilling, NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported in Tables 4 and 5. Isopleths for Level B harassment associated with impact pile driving (160 dB) and vibratory pile driving/removal and drilling (120 dB) were also calculated and are can be found in Table 5.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations and how this information is brought together to produce a quantitative take estimate.

Density information is not available for marine mammals in the project area. Potential exposures for marine mammals were estimated from several sources. Between the months of September through May from 1994 to 2002, weekly surveys were conducted at Sitka's Whale Park, located at the easternmost end of Eastern Channel as shown in Figure 5 in the application. More recent data (from 2002 to present) were collected from small vessels or Allen Marine 100-foot catamarans during school field trips in and around Eastern Channel. Additionally, marine mammal observational data was collected in the Sitka Channel as part of the Gary Paxton Industrial Park (GPIP) Multipurpose Dock Project (Turnagain 2017). Monitors were present during twenty-two days of in water work as part of this project. This included ten days between October 9th and 20th, 2017 for wooden pile removal, where only one monitor was present each day and twelve days between October 22nd and November 9th, where two observers were monitoring during new pile installation. Additionally, data was collected in January and October/November of 2017 in the Sitka Channel when Petro Marine Services removed and replaced a fuel float in the Sitka Channel and recorded marine mammal observations (Windward 2017). Finally, marine mammal observation reports covering the months of June through September, 2018 were also reviewed (Turnagain 2018).

The estimation of takes by Level B harassment uses the following calculation:

Level B harassment estimate = N (number of animals in the ensonified area) * Number of days of noise generating activities.

Humpback whales are the most commonly observed baleen whale in Southeast Alaska, particularly during spring and summer months. Humpback whales frequent the action area and could be encountered during any given day of pile driving/removal activities. In the project vicinity, humpback whales typically occur in groups of 1 to 2 animals, with an estimated maximum group size of 4 animals. Most humpback whales observed in the area were solitary. When more than one whale was observed, available survey data reports a typical group size of 2-4 whales (Straley et al. 2018). During work on GPIP Dock, groups of 5 and 10 individuals were seen a few times, but most of the time, single whales were observed (Turnagain 2017). CBS conservatively estimates that a group of 5 humpback whales may occur within the Level B harassment zone every day of the 3-day construction window during active pile driving (5 animals in a group × 1 group each day × 3 days = 15 animals). Therefore, CBS requests and NMFS proposes to authorize 15 Level B harassment takes of humpback whales. Based on Wade et al. (2016), the probability is that 93.9 percent of the humpback whales taken would be from the Hawaii DPS (not listed under ESA) and 6.1 percent of the humpback whales taken would be from the ESA-listed threatened Mexico DPS.

Killer whales pass through the action area and could be encountered during any given day of pile removal and installation. In the project vicinity, typical killer whale pod sizes vary from between 4-8 individuals, with an estimated maximum group size of 8 animals (Straley et al. 2018). A pod of three killer whales were observed during monitoring for the Petro Marine Dock, and a pod of seven whales were observed on one day near Biorka Island (Windward 2017; Turnagain 2018). CBS estimates that a group of 8 killer whales may occur within the Level B harassment zone every day of during active pile driving (8 animals in a group × 1 group each day × 3 days = 24 animals). Therefore, CBS requests and NMFS proposes to authorize 24 killer whales takes by Level B harassment.

Harbor porpoises are seen infrequently in the action area, but they could be encountered during any given day of pile replacement activities. The mean group size of harbor porpoise in Southeast Alaska was estimated to be between 2 to 3 individuals (Dahlheim et al., 2009). In the project vicinity, harbor porpoises typically occur in groups of 1-5 animals, with an estimated maximum group size of 8 animals (Straley et al. 2018). No harbor porpoises were seen during the Petro Marine Dock construction monitoring in January 2017 or during monitoring for the GPIP dock between October and November of 2017 (Windward 2017 and Turnagain 2017). CBS conservatively estimates that a group of 5 harbor porpoise may occur within the Level B harassment zone once each day during the 3-day construction window during active pile driving (5 animals in a group × 1 group each day × 3 days = 15 animals). Therefore, CBS conservatively requests and NMFS proposes to authorize 15 Level B harassment takes of harbor porpoises.

Harbor seals are common in the action area and are expected to be encountered during pile replacement activities. In the action area harbor seals typically occur in groups of 1-3 animals. Observations near Sitka Channel recorded only individual seals, and observations for GPIP dock observed mostly individuals, however, a few groups with up to 3 seals were observed. Near Biorka Island, recent sightings ranged from 1 individual to a group of 9 (June and September 2018) groups up to 3 (July 2018), and groups up to 8 (August 2018). Harbor seals could occur in the project area every day. CBS conservatively estimates that 2 groups of 3 harbor seals may occur within the Level B harassment zone every day that pile driving occurs (3 animals in a group × 2 groups per day × 3 days = 18 animals). Therefore, CBS requests and NMFS proposes to authorize 18 harbor seal takes by Level B harassment.

Steller sea lions are common in the action area and are expected to be encountered during pile removal and driving. In the project vicinity Steller sea lions typically occur in groups of 1-8 animals near the project area (Turnagain 2017 and Windward 2017), with an estimated maximum group size of 100 animals (Straley et al. 2018). Steller sea lions can occur in the action area every day during construction. CBS conservatively estimates that a group of 8 Steller sea lions may occur within the Level B harassment zone every day that pile driving occurs (8 animals in a group × 1 group × 3 days = 24 animals). Therefore, CBS requests and NMFS proposes to authorize 24 takes of sea lion by Level B harassment.

CBS intends to avoid Level A harassment take by shutting down removal or installation activities at the approach of any marine mammal into their representative Level A harassment (PTS onset) zone.

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

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

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

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

In addition to the measures described later in this section, CBS will employ the following standard mitigation measures:

• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity, and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;

• For in-water heavy machinery work other than pile driving ( e.g., standard barges, etc.), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location; or (2) positioning of the pile on the substrate via a crane ( i.e., stabbing the pile);

• Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted;

• For those marine mammals for which take by Level B harassment has not been requested, in-water pile installation/removal and drilling will shut down immediately if such species are observed within or on a path towards the monitoring zone ( i.e., Level B harassment zone); and

• If take reaches the authorized limit for an authorized species, pile driving activities will be stopped as these species approach the Level B harassment zone to avoid additional take.

The following measures would apply to CBS's mitigation requirements:

Establishment of Shutdown Zone —For all pile driving/removal and drilling activities, CBS would establish a shutdown zone to avoid take by Level A harassment. The purpose of a shutdown zone is generally to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). The shutdown zone would be 10 m in all cases except for high-frequency cetaceans (harbor porpoises) during impact pile driving and vibratory pile driving/removal. In those situations the shutdown zone for high-frequency cetaceans would be 15 m (Table 7). These defined shutdown zones would be used to prevent incidental Level A harassment exposures and reduce the potential for such take for other species. The placement of Protected Species Observers (PSOs) during all pile driving and drilling activities (described in detail in the Monitoring and Reporting Section) will ensure shutdown zones are visible.

Establishment of Monitoring Zones for Level B Harassment —CBS would establish monitoring zones to correlate with Level B harassment disturbance zones or zones of influence which are areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory driving and drilling. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring zones enable observers to be aware of and communicate the presence of marine mammals in the project area outside the shutdown zone and thus prepare for a potential cease of activity should the animal enter the shutdown zone. The proposed monitoring zones are described in Table 8. The monitoring zone for drilling activities extends 7,700 m from the noise source, corresponding to the maximum distance before landfall. It is likely that PSOs would not be able to effectively observe the entire monitoring zone. Therefore, Level B harassment exposures will be recorded and extrapolated based upon the number of observed takes and the percentage of the Level B harassment zone that was not visible.

Use of Pile Caps/Cushions —Pile driving softening material ( i.e. pile caps/cushions) will be used to minimize noise during vibratory and impact pile driving. Much of the noise generated during pile installation comes from contact between the pile being driven and the steel template used to hold the pile in place. The contractor will use high-density polyethylene (HDPE) or ultra-high-molecular-weight polyethylene (UHMW) softening material on all templates to eliminate steel on steel noise generation.

Direct Pull —To minimize construction noise levels as much as possible, the contractor will first attempt to direct pull old piles; if those efforts prove to be ineffective, they will proceed with a vibratory hammer.

Reduced Energy — To reduce noise production, the vibratory hammer will be operated at a reduced energy setting (30 to 50 percent of its rated energy).

Soft Start —The use of soft-start procedures are believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors would be required to provide an initial set of strikes from the hammer at reduced energy, with each strike followed by a 30-second waiting period. This procedure would be conducted a total of three times before impact pile driving begins. Soft start would be implemented at the start of each day's impact pile driving (if more than one day) and at any time following cessation of impact pile driving for a period of thirty minutes or longer. Soft start is not required during vibratory pile driving and removal activities.

Pre-Activity Monitoring —Prior to the start of daily in-water construction activity, or whenever a break in pile driving/removal or drilling of 30 minutes or longer occurs, PSOs will observe the shutdown and monitoring zones for a period of 30 minutes. The shutdown zone will be cleared when a marine mammal has not been observed within the zone for the 30-minute period. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. If the Level B harassment zone has been observed for 30 minutes and non-permitted species are not present within the zone, soft start procedures can commence and work can continue even if visibility becomes impaired within the Level B harassment monitoring zone. When a marine mammal permitted for Level B take is present in the Level B harassment zone, activities may begin and Level B take will be recorded. As stated above, if the entire Level B harassment zone is not visible at the start of construction, piling driving or drilling activities can begin. If work ceases for more than 30 minutes, the pre-activity monitoring of both the Level B harassment and shutdown zone will commence.

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

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

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

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

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

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

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

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

• Mitigation and monitoring effectiveness.

Monitoring shall be conducted by NMFS-approved PSOs. Trained observers shall be placed from the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Observer training must be provided prior to project start, and shall include instruction on species identification (sufficient to distinguish the species in the project area), description and categorization of observed behaviors and interpretation of behaviors that may be construed as being reactions to the specified activity, proper completion of data forms, and other basic components of biological monitoring, including tracking of observed animals or groups of animals such that repeat sound exposures may be attributed to individuals (to the extent possible).

Monitoring would be conducted 30 minutes before, during, and 30 minutes after pile driving/removal and drilling activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving/removal and drilling activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.

PSOs would scan the waters using binoculars, and/or spotting scopes, and would use a handheld GPS or range-finder device to verify the distance to each sighting from the project site. All PSOs would be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. CBS would adhere to the following observer qualifications:

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

(ii) At least one observer must have prior experience working as an observer.

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

(iv) NMFS will require submission and approval of observer CVs.

CBS must ensure that observers have the following additional qualifications:

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

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

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

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

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

Two land-based PSOs would be used to monitor the area during all pile driving and removal activities. One PSO would monitor from the O'Connell Bridge which features a high vantage point with unobstructed views of, and close proximity to, the project site. A second monitor would be stationed east of the construction site, likely off Islander Drive. PSOs will work in shifts lasting no longer than 4 hours with at least a 1-hour break between shifts, and will not perform duties as a PSO for more than 12 hours in a 24-hr period to reduce PSO fatigue.

A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal and drilling activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:

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

• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method ( i.e., impact or vibratory);

• Weather parameters and water conditions during each monitoring period ( e.g., wind speed, percent cover, visibility, sea state);

• The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;

• Age and sex class, if possible, of all marine mammals observed;

• PSO locations during marine mammal monitoring;

• Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);

• Description of any marine mammal behavior patterns during observation, including direction of travel;

• Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate);

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

• Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals.

If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, CBS would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report would include the following information:

• Description of the incident;

• Environmental conditions ( e.g., Beaufort sea state, visibility);

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

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

• Fate of the animal(s); and

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

Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with CBS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. CBS would not be able to resume their activities until notified by NMFS via letter, email, or telephone.

In the event that CBS discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent ( e.g., in less than a moderate state of decomposition as described in the next paragraph), CBS would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with CBS to determine whether modifications in the activities are appropriate.

In the event that CBS discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA ( e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), CBS would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator, within 24 hours of the discovery. CBS would provide photographs, video footage (if available), or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network.

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

Pile driving, pile removal and drilling activities as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take in the form of Level B harassment from underwater sounds generated from vibratory pile removal, vibratory pile driving, impact pile driving, and drilling over 3 days. Potential takes could occur if individuals of these species are present in the ensonified zone when these activities are underway. One day of work would be dedicated to removing 6 old and installing 6 new piles which would emit low levels of noise into the aquatic environment if removed via direct pull or vibratory hammer and installed via vibratory hammer as proposed. Vibratory removal and installation would take approximately one hour. Drilling would occur for only 6 hours per day over 2 days. Impact driving would be used to proof socketed piles and take place for a total of 3 minutes on a single day.

Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) ( e.g., Thorson and Reyff 2006; HDR, Inc. 2012; Lerma 2014; ABR 2016). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving and drilling, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in southeast Alaska, which have taken place with no known long-term adverse consequences from behavioral harassment. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring.

The project also is not expected to have significant adverse effects on affected marine mammals' habitat. Project activities would not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range. However, because of the short duration of the activities and the relatively small area of the habitat that may be affected, and the decreased potential of prey species to be in the project area during the construction work window, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

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

• No mortality is anticipated or authorized;

• No Level A take is authorized;

• Level B harassment may consist of, at worst, temporary modifications in behavior ( e.g. temporary avoidance of habitat or changes in behavior);

• The specified activity is temporary and of short duration;

• The ensonified area is very small relative to the overall habitat ranges of all species and does not include habitat areas of special significance (BIAs or ESA-designated critical habitat); and

• The presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.

In addition, although affected humpback whales and Steller sea lions may be from a DPS that is listed under the ESA, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks' ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

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

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

Table 6 presents the number of animals that could be exposed to received noise levels that may result in Level B take for the proposed work at O'Connell Bridge. Our analysis shows that less than 10 percent of the best available population estimate of each affected stock could be taken. Furthermore, these percentages conservatively assume that all takes of killer whale and Steller sea lion would be accrued to a single stock, when multiple stocks are known to occur in the project area. Therefore, the numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For pinnipeds, especially harbor seals and Steller sea lions, occurring in the vicinity of the project site, there could be some overlap in individuals present day-to-day, and these takes are likely to occur only within some small portion of the overall regional stock.

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

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

The peak hunting season in southeast Alaska occurs during the month of November and again over the March to April time frame (Wolfe et al., 2013). The proposed project is in an area where subsistence hunting for harbor seals or sea lions could occur (Wolfe et al., 2013), but the area near the proposed project location is not preferred for hunting.

During September 2018, CBS contacted the Alaska Harbor Seal Commission, the Alaska Sea Otter and Steller Sea Lion Commission, and the Sitka Tribe of Alaska. These organizations expressed no concerns about the impact of the proposed action on subsistence marine mammals or their harvest by hunters near the project area. The Sitka Tribe did request that no pile driving occur between March 15 and May 31 to protect herring, as has been the case for past permitting in Sitka Sound. In response to this request, CBS will not commence in-water construction operations prior to June 1, 2019 or between March 15, 2020 and May 31, 2020.

Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the proposed mitigation and monitoring measures, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses from CBS's proposed activities.

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

NMFS is proposing to authorize take of the Steller sea lion western DPS and humpback whale Mexico DPS, which are listed under the ESA. The NMFS Office of Protected Resources has requested initiation of section 7 consultation with the Alaska Regional Office for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.

As a result of these preliminary determinations, NMFS proposes to issue an IHA to CBS for the O'Connell Bridge Lightering Float Pile Replacement project in Sitka, Alaska from June 1, 2019 through May 31, 2020, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the IHA itself is available for review in conjunction with this notice at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for the proposed action. We also request comment on the potential for renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.

On a case-by-case basis, NMFS may issue a second one-year IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned or (2) the activities would not be completed by the time the IHA expires and a second IHA would allow for completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:

• A request for renewal is received no later than 60 days prior to expiration of the current IHA;

• The request for renewal must include the following:

(1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor ( e.g., reduction in pile size) that the changes do not affect the previous analyses, take estimates, or mitigation and monitoring requirements; and

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

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

Background

The Atlantic sea scallop fishery is prosecuted along the east coast from Maine to Virginia, although most fishing activity takes place between Massachusetts and New Jersey. Management measures were first adopted in 1982, but there have been several major revisions to the management program over the following decades.

The Council established the General Category component as an open access permit category in 1994 while developing a limited access program for qualifying vessels (now the Limited Access component). Through Amendment 11 to the Scallop Fishery Management Plan (FMP) (73 FR 20090; April 14, 2008), the Council transitioned the General Category component from open access to limited access to limit fishing mortality and control fleet capacity. The Council's vision for the Limited Access General Category (LAGC) component was a fleet made up of relatively small vessels, with possession limits to maintain the historical character of this fleet and provide opportunities to various participants, including vessels from smaller coastal communities. Amendment 11 established three LAGC permit categories which allowed for continued participation in the General Category fishery at varying levels. Vessels that met a qualifying criteria were issued an LAGC individual fishing quota (IFQ) permit and allocated quota based on the `contribution factor' ( i.e., if you fished longer and landed more during the qualification period, you received a higher allocation). General Category permit holders that did not meet the qualifying criteria for an LAGC IFQ permit were eligible to receive either an LAGC Northern Gulf of Maine (NGOM) permit or LAGC Incidental permit. Limited Access vessels that fished under General Category rules and qualified under the same IFQ qualification criteria were issued LAGC IFQ permits and allocated a portion of (0.5 percent) of the total scallop allocation. Unlike vessels with only LAGC IFQ permits, Limited Access vessels that also qualified for an LAGC IFQ permit were not allowed to transfer quota in or out.

The Council also established the NGOM Management Area and permit category through Amendment 11. The area was developed to enable continued fishing and address concerns related to conservation, administrative burden, and enforceability of scallop fishing within the Gulf of Maine. Amendment 11 authorized vessels with either an LAGC NGOM permit or LAGC IFQ permit to fish within the NGOM Management Area at a 200-pound-per-day trip limit until the annual total allowable catch (TAC) for the area is caught. The Council did not recommend restrictions on Limited Access vessels fishing in the NGOM because the improved management and abundance of scallops in the major resource areas on Georges Bank and in the Mid-Atlantic region made access to Gulf of Maine scallops less important for the Limited Access boats and General Category boats from other regions. From 2008 through the end of fishing year 2017, Limited Access vessels were able to operate in the NGOM management area under days-at-sea (DAS) management as long as the LAGC TAC had not been caught. The initial measures were intended to allow directed scallop fishing in the NGOM, and the Council envisioned that management of this area would be reconsidered if the scallop population and fishery in the NGOM grew in the future.

From 2009-2015 the NGOM TAC of 70,000 lbs was not caught, and the fishery remained open for the entire year. In fishing year 2016 and fishing year 2017 there was a notable increase in effort in the NGOM management area by both LAGC and Limited Access vessels fishing the large year class of scallops on Stellwagen Bank. Monitoring removals by the Limited Access component in the NGOM was challenging because vessels could fish both inside and outside NGOM management area while fishing DAS on the same trip.

In response to the increase in effort and landings in the NGOM area in 2016 and 2017, the Council developed a problem statement for the Federal scallop fishery in the NGOM management area:

Recent high landings and unknown biomass in the NGOM Scallop Management Area underscore the critical need to initiate surveys and develop additional tools to better manage the area and fully understand total removals.

Recent actions have developed measures that allow managers to track fishing effort and landings by all components from the NGOM management area. The NGOM TAC is now based on recent survey information, with separate TACs for the Limited Access and LAGC components. These measures are intended to be a short-term solution to allow controlled fishing in the NGOM management area until a future action (this action) could be developed to address NGOM issues more holistically.

The initial General Category possession limit was set at 400 pounds per trip through Amendment 4 (59 FR 2757; January 19, 1994). In 2007, Amendment 11 maintained the General Category possession limit of 400 pounds for qualifying IFQ vessels. Amendment 15 (76 FR 43746; July 21, 2011) increased the LAGC IFQ possession limit to 600 pounds following concerns from industry members that the 400-pound possession limit was not economically feasible due to increased operating costs. The 200-pound trip limit increase was not expected to change the nature of the “dayboat” fishery and would keep the LAGC IFQ component consistent with the vision statement laid out by the Council in Amendment 11. The Council has recently completed a program review of the LAGC IFQ fishery and analyzed the impacts of changes to IFQ trip limits. The results of this work are summarized in the Amendment 21 scoping document, which can be found at this link: https://www.nefmc.org/library/amendment-21.

Amendment 15 allowed LAGC IFQ permit holders to permanently transfer some or all of their quota allocation to another LAGC IFQ permit holder while retaining the permit itself. During development of Amendment 15, the Council considered an option that would have included Limited Access/LAGC IFQ permit holders in this allowance; however, the Council opted against this option because it would change the overall 5 percent and 0.5 percent allocations specified in Amendment 11. For example, the 5 percent allocation would be expected to increase if a Limited Access/LAGC IFQ vessel permanently transferred quota to an LAGC IFQ-only vessel and, therefore, would have implications on quota accumulation caps that apply to LAGC IFQ-only permit holders ( i.e., 5 percent maximum for owners, 2.5 percent maximum for individual vessels).

The Council is planning to develop measures that will support a growing directed scallop fishery in Federal waters in the NGOM. To do so, the action will consider measures that would prevent unrestrained removals from the NGOM management area and allow for orderly access to the scallop resource in this area by the LAGC and Limited Access components. This includes establishing mechanisms to set allowable catches and accurately monitor catch and bycatch.

The Council is planning to develop measures that will increase the LAGC IFQ possession limit and allow Limited Access vessels to transfer IFQ to LAGC IFQ vessels to improve overall economic performance of the LAGC IFQ component. The Council is taking action to ensure that the LAGC IFQ component remains profitable, and that there is continued participation in the General Category fishery at varying levels. To do so, the action will consider approaches that aim to reduce the impacts of decreases in ex-vessel price and increases to fixed costs ( e.g., maintenance and repairs) and variable costs ( e.g., trip expenses including fuel, food, oil, ice, and water), on vessels and crews.

All persons affected by or otherwise interested in scallop fishery management are invited to participate in commenting on the scope and significance of issues to be analyzed by submitting written comments (see ADDRESSES ) or by attending one of the 10 scoping meetings, including one webinar, for this amendment. Scoping consists of identifying the range of actions, alternatives, and possible impacts to be considered. After the scoping process is completed, the Council will begin development of Amendment 21 and expects to prepare an environmental impact statement (EIS) to analyze the impacts of the range of alternatives for the changes considered in this action. The Council will hold public hearings to receive comments on the draft amendment and on the analysis of its impacts presented in the Draft EIS.

The Council will take and discuss scoping comments on this amendment at the following public meetings:

The meetings are accessible to people with physical disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see ADDRESSES ) at least five days prior to meeting dates.

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 product listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

The following product is proposed for addition to the Procurement List for production by the nonprofit agencies listed:

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

The subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.

Purpose of the Meeting: The purpose of the meeting is to provide the subcommittee with an overview of the U.S. Army War College Academic Campaign Plan, discuss Middle States and JPME II accreditation matters, and to address other administrative matters.

Agenda: The subcommittee will review and evaluate information related to the continued academic growth, accreditation, and development of the U.S. Army War College. General deliberations leading to provisional findings will be referred to the Army Education Advisory Committee for deliberation by the Committee under the open-meeting rules.

Public Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165, and subject to the availability of space, this meeting is open to the public. Seating is on a first to arrive basis. Attendees are requested to submit their name, affiliation, and daytime phone number seven business days prior to the meeting to Dr. David Dworak, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Members of the public attending the subcommittee meetings will not be permitted to present questions from the floor or speak to any issue under consideration by the subcommittee. Because the meeting of the subcommittee will be held in a Federal Government facility on a military base, security screening is required. A photo ID is required to enter base. Please note that security and gate guards have the right to inspect vehicles and persons seeing to enter and exit the installation. Root Hall is fully handicap accessible. Wheelchair access is available in front at the main entrance of the building. For additional information about public access procedures, contact Dr. David Dworak, the subcommittee's Alternate Designated Federal Officer, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section.

Written Comments or Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the subcommittee, in response to the stated agenda of the open meeting or in regard to the subcommittee's mission in general. Written comments or statements should be submitted to Dr. David Dworak, the subcommittee Alternate Designated Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Each page of the comment or statement must include the author's name, title or affiliation, address, and daytime phone number. The Alternate Designated Federal Official will review all submitted written comments or statements and provide them to members of the subcommittee for their consideration. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Alternate Designated Federal Official at least seven business days prior to the meeting to be considered by the subcommittee. Written comments or statements received after this date may not be provided to the subcommittee until its next meeting.

The Alternate Designated Federal Officer will review all comments timely submitted with the subcommittee Chairperson, and ensure comments are provided to all members of the subcommittee before the meeting. After reviewing any written comments submitted, the subcommittee Chairperson and the Alternate Designated Federal Official may choose to invite certain submitters to present their comments verbally during the open portion of this meeting or at a future meeting. The Alternate Designated Federal Officer, in consultation with the subcommittee Chairperson, may allot a specific amount of time for submitters to present their comments verbally.

The Board's charter is being renewed pursuant to 33 U.S.C. 426-2 and in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(a). The Board's charter and contact information for the Board's Designated Federal Officer (DFO) can be found at https://www.facadatabase.gov/FACA/apex/FACAPublicAgencyNavigation. The Board provides the Coastal and hydraulics Laboratory, which includes the Coastal Engineering Research Center, through the Chief of Engineers/Commander (“the Chief of Engineers”), U.S. Army Corps of Engineers (“the Corps of Engineers”), independent advice and recommendations on coastal engineering research priorities and additional functions as assigned by the Chief of Engineers.

Pursuant to 33 U.S.C. 426-2, the Board shall be composed of seven members. The DoD, pursuant to the authorizing legislation, shall appoint four officers of the Corps of Engineers to the Board as ex-officio appointments, with one position being occupied by the Deputy Commanding General for Civil and Emergency Operations, U.S. Army Corps of Engineers for no fixed term of service. The Chief of Engineers, in consultation with the Assistant Secretary of the Army (Civil Works), shall determine which three of the eight coastal division commanders shall be nominated as the other ex-officer members of the Board. The Chief of Engineers, in determining which of the coastal division commanders shall serve on the Board, shall consider the individual's tenure as a division commander and his or her expertise in the matters before the Board.

The remaining three Board members shall be civilian engineers recommended by the Chief of Engineers for their expertise in the field of beach erosion, shore protection, and coastal processes and infrastructure. The Deputy Commanding General for Civil and Emergency Operations, Corps of Engineers, shall serve as the President of the Board.

The appointment of the civilian Board members and the three coastal division commanders shall be approved by the Secretary of Defense, the Deputy Secretary of Defense, or the Chief Management Officer for the Department of Defense (CMO) (“the DoD Appointing Authorities”), for a term of service of one-to-four years, in accordance with DoD policies and procedures. No member, unless approved by the DoD Appointing Authorities, may serve more than two consecutive terms of service on the Board, to include its subcommittees, or serve on more than two DoD federal advisory committees at one time. All Board members are appointed to provide advice on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest.

Pursuant to section 105 of Public Law 91-611, special government employee members may be paid at a rate not to exceed the daily equivalent of the rate for a GS-15, step 10, for each day of attendance at Board meetings, not to exceed 30 days per year, in addition to travel and other necessary expenses connected with their official duties on the Board, in accordance with the provisions of 5 U.S.C. 5703(b), (d) and 5707. Regular government employee members may be reimbursed for official Board-related travel and per diem.

The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Board. All written statements shall be submitted to the DFO for the Board, and this individual will ensure that the written statements are provided to the membership for their consideration.

Background: On December 27, 2018, the Department published in the Federal Register a request for public comments on the proposed updates to the Classification of Instructional Programs (83 FR 66687). This request provided a 60-day period, from December 27, 2018, to February 25, 2019, for members of the public to review and comment on the changes. However, due to the lapse in Federal funding, there was a partial government shut-down from December 22, 2018, to January 25, 2019, which impacted several Federal agencies that would be affected by the proposed changes to the 2020 CIP. To account for this, the Department is reopening the public comment period until March 26, 2019. The Department must now receive your comments submitted through the Federal eRulemaking Portal on or before 11:59 p.m., Eastern Time, March 26, 2019, hand delivered on or before 5:00 p.m., Eastern Time, March 26, 2019, or postmarked on or before March 26, 2019, if delivered by postal mail or commercial delivery.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., Braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT .

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

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

General Information: The meeting is open to the public. Any member of the public interested in receiving a draft agenda, attending the meeting, or making comments at the meeting may contact Tom Tracy, the Designated Federal Officer, via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section above. In general, anyone making an oral presentation will be limited to a total of three minutes. All attendees must register online at https://www.eventbrite.com/e/us-epa-bosc-homeland-security-subcommittee-teleconference-tickets-53965523333 by March 18, 2019. Proposed agenda items for the meeting include but not limited to the following: Review of charge questions, draft subcommittee report and Subcommittee discussion.

Information on Services for Individuals with Disabilities: For information on access or services for individuals with disabilities, please contact Tom Tracy at (202) 564-6518 or tracy.tom@epa.gov. To request accommodation of a disability, please contact Tom Tracy, preferably at least ten days prior to the meeting, to give the EPA as much time as possible to process your request.

OMB Control Number: 3060-1184.

Title: Sections 1.946(d), 27.10(d), 27.12, 27.14 and 27.17, Service Rules for the Advanced Wireless Services H Block—Implementing Section 6401 of the Middle Class Tax Relief and Job Creation Act of 2012 Related to the 1915-1920 MHz and 1995-2000 MHz Bands—R&O, FCC 13-88

Form Number: N/A.

Type of Review: Extension of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 1 respondent; 352 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: On occasion reporting requirement and at the end of the license term (2022) for incumbent licensees.

Obligation to Respond: Statutory authority for this collection are contained in sections 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 310, 1404, and 145.

Total Annual Burden: 352 hours.

Total Annual Cost: No cost.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: On June 27, 2013, the FCC adopted: Service Rules for the Advanced Wireless Services H Block—Implementing Section 6401 of the Middle Class Tax Relief and Job Creation Act of 2012 Related to the 1915-1920 MHz and 1995-2000 MHz Bands, WT Docket 12-357, Report and Order, 28 FCC Rcd 9483 (2013) ( H Block R&O ). The H Block R&O adopted service rules for the H Block and makes available 10 MHz of paired spectrum for flexible use in accordance with the Middle Class Tax Relief and Job Creation Act of 2012. The H Block R&O contained the following information collection requirements which have already been approved by OMB.

For the purpose of this collection, a winning bidder of H Block spectrum must comply with each of the following rule sections:

(a) Section 1.946(d) requires H Block licensees to file a construction notification and certify that they have met the applicable performance benchmarks.

(b) Section 27.10(d) requires an H Block licensee to notify the Commission within 30 days if it changes, or adds to, the carrier status on its license.

(c) Section 27.12 requires H Block licensees to comply with certain eligibility reporting requirements.

(d) Section 27.14 requires H Block licensees to file license renewal applications. Included in the application should be a detailed description of: (1) The level and quality of service provided by the applicant; (2) the date service commenced; (3) whether service was ever interrupted; (4) the duration of any interruption or outage; (5) the extent to which service is provided to rural areas; (6) the extent to which service is provided to qualifying Tribal lands; and (7) any other factors associated with the level of service to the public.

(e) Section 27.17 requires H Block licensees to notify the Commission within ten days if they permanently discontinue service by filing FCC Form 601 or 605 and requesting license cancellation.

As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection.

Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

OMB Control Number: 3060-0719.

Title: Quarterly Report of Local Exchange Carriers Listing Payphone Automatic Number Identifications (ANIs).

Form Number: N/A.

Type of Review: Extension of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 400 respondents; 1,600 responses.

Estimated Time per Response: 3.5 hours (8 hours for the initial submission; 2 hours per subsequent submission—for an average of 3.5 hours per response).

Frequency of Response: Quarterly reporting requirement, recordkeeping requirement and third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151, 154, 201-205, 215, 218, 219, 220, 226 and 276 of the Communications Act of 1934, as amended.

Total Annual Burden: 5,600 hours.

Total Annual Cost: No cost.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: The Commission is not requesting respondents to submit confidential information to the Commission. If the respondents wish confidential treatment of their information, they may request confidential treatment under 47 CFR 0.459 of the Commission's rules.

Needs and Uses: The Commission adopted rules and policies governing the payphone industry under section 276(b)(1)(A) of the Telecommunications Act of 1996 (the Act) and established “a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call.” Pursuant to this mandate, and as required by section 64.1310(d) of the Commission's rules, Local Exchange Carriers (LECs) must provide to carriers required to pay compensation pursuant to section 64.1300(a), a quarterly report listing payphone ANIs.

Without provision of this report, resolution of disputed ANIs would be rendered very difficult. Carriers would not be able to discern which ANIs pertain to payphones and therefore would not be able to ascertain which dial-around calls were originated by payphones for compensation purposes. There would be no way to guard against possible fraud. Without this collection, lengthy investigations would be necessary to verify claims. The report allows carriers to determine which dial-around calls are made from payphones. The information must be provided to third parties. The requirement would be used to ensure that LECs and the carriers required to pay compensation pursuant to 47 CFR 64.1300(a) of the Commission's rules comply with their obligations under the Telecommunications Act of 1996.

The Authority is considering Case No. 0-AR-5354 pursuant to its responsibilities under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101-7135 (the Statute), and its regulations on the review of arbitration awards, set forth at 5 CFR part 2425. The issues include whether there is a need for the Authority to reconsider its nearly exclusive reliance on the factors or criteria found in Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), when considering whether an award of attorney fees is in the “interest of justice” (5 U.S.C. 7701(g)), and then, if reconsideration is warranted, what the factors or criteria should be, as adapted for the federal collective-bargaining context. As this matter is likely to be of concern to agencies, labor organizations, and other interested persons, the Authority finds it appropriate to provide for the filing of amici briefs addressing this matter.

In Case No. 0-AR-5354, Arbitrator Fred K. Blackard sustained a grievance and found that the Agency, U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, had violated an article of its collective bargaining agreement with the Union, American Federation of Government Employees (AFGE), Local 1633. Arbitrator Blackard awarded back pay to the grievants but denied attorney fees to the Union, finding no provision in the parties' collective bargaining agreement provided attorney fees to a party prevailing at arbitration. Both the Agency and the Union filed timely exceptions with the Authority on different grounds. Those exceptions are currently pending before the Authority. A summary of the case follows.

The Union filed a grievance seeking environmental differential pay on behalf of housekeepers who worked at the Agency's medical center. The parties submitted the matter to arbitration. The Union argued that the housekeepers were entitled to environmental differential pay under federal law and the parties' collective-bargaining agreement because they worked in close proximity to hazardous micro-organisms. The Agency argued that the housekeepers were not entitled to environmental differential pay because their duties do not meet the standards described under 5 U.S.C. 5343(c)(4); 5 CFR part 532, subpart E, Appendix A; and the parties' agreement. On January 24, 2018, the Arbitrator issued an award finding that the housekeepers worked in sufficient proximity to micro-organisms within the meaning of Appendix A, thereby entitling them to environmental differential pay. Accordingly, the Arbitrator sustained the grievance, and awarded backpay, but denied the Union's request for attorney fees because attorney fees were not authorized under the parties' agreement.

In addition to the exceptions filed by the Agency, an exception was filed by the Union to the award. The Union has argued that the Arbitrator's determination, that he lacked the authority to award attorney fees because the parties' collective-bargaining agreement did not provide for them, is deficient. The Union requests that the Authority find this determination contrary to law, as contravening the Back Pay Act, 5 U.S.C. 5596, and the Union requests that the Authority remand the case to the parties, to resubmit to the Arbitrator, absent settlement, the issue of whether attorney fees are warranted.

In 1984, the Authority first reviewed the issue of entitlement to attorney fees and then adopted the “interest of justice standards” (later called alternatively “factors” or “criteria”) of the Merit Systems Protection Board (MSPB) 1980 decision in Allen v. U.S. Postal Service. In general, the Authority has since held that a threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Further, the award of attorney fees must be in conjunction with an award of backpay to the grievant on correction of the personnel action, that the award of attorney fees must be reasonable and related to the personnel action, and that the award of attorney fees must be in accordance with the standards established under 5 U.S.C. 7701(g). Section 7701(g) in turn prescribes that for an employee to be eligible for an award of attorney fees, the employee must be the prevailing party. Section 7701(g)(1), which applies to all cases except those involving discrimination, requires that an award of attorney fees must be warranted “in the interest of justice,” that the amount must be reasonable, and that the fees must have been incurred by the employee.

The Authority has referred to and applied the case law of the MSPB on attorney fees since 1984. As early as 2016, the Authority has publicly questioned its continued use of the Allen criteria and acknowledged that it may be more appropriate to develop criteria to assess attorney fees that are more applicable to the federal collective-bargaining and grievance-arbitration experience. See U.S. DHS, U.S. CBP, 70 FLRA 73, 76 (2016).

Because the Authority has not directly addressed the issue of appropriate criteria for attorney fees, as reflecting federal collective-bargaining and grievance-arbitration actions, the Authority is providing an opportunity for the parties and other interested persons to file briefs addressing the following questions:

Should the Authority reconsider its nearly exclusive reliance upon MSPB case law ( Allen ) and the MSPB's interpretation of 5 U.S.C. 7701(g) for the purpose of determining whether attorney fees are warranted in the federal collective bargaining context? If so, why? If not, why not?

What factors should the Authority consider when determining whether the statutory criteria for attorney fees are met in the federal collective bargaining context? What factors should the Authority not consider? For example, how should the Authority determine who is a “prevailing party” in the context of the interpretation of a collective-bargaining agreement?

In answering these questions, the parties and other interested persons should address: (1) The wording of the Statute and the Back Pay Act; (2) any principles of statutory construction; (3) any legislative history regarding 5 U.S.C. 7701(g) and any other relevant provisions of the Statute or other applicable laws; and (4) the practical impact of suggested criteria that should be considered in light of the Statute's requirement that its provisions be interpreted in a manner consistent with the requirement of an effective and efficient government.

All briefs shall be captioned “ AFGE, Local 1633 and the U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, Case No. 0-AR-5354.” Briefs shall contain separate, numbered headings for each issue covered. Interested persons must submit an original and four (4) copies of each amicus brief, with any enclosures, on 8 1/2 x 11 inch paper. Briefs must include a signed and dated statement of service that complies with the Authority's Regulations showing service of one copy of the brief on all counsel of record or other designated representatives, 5 CFR 2429.27(a) and (c). Accordingly, briefs must be served on: Stephen Jones, Attorney, American Federation of Government Employees, Local 1633, 2002 Holcombe, Houston, TX 77030, (214) 796-0011, Stephen.jones@sejpc.com; Thomas Herpin, Attorney, U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, 6900 Alameda (02), Houston, TX 77079, (713) 383-2769, Thomas.Herpin@va.gov; Fred K. Blackard, Arbitrator, 10713 Marsha Lane, Houston, TX 77024, FKblackard@aol.com.

I have previously suggested that the FLRA reconsider the Allen Factors. However, I do not think that this is an ideal case for doing so. In my view, the greatest deficiencies of the Allen Factors —as applied to the types of cases the FLRA is called upon to review—is that they are unnecessarily cumbersome and impractical for both practitioners and arbitrators. This case's disposition does not even require application of the Allen Factors. Accordingly, I do not think it is especially instructive.

The new system of records maintains information regarding prospective, current, and former Board employees who seek or receive advice from Board ethics officials. These individuals may seek or receive advice from Board ethics officials regarding compliance with criminal conflicts of interest laws, the Ethics in Government Act, the Standards of Ethical Conduct for Employees of the Executive Branch, the Board's supplemental ethics regulations, and other relevant ethics-related laws or policies.

This bulletin announces the redesignation of a Federal building. Public Law 115-141, Section 632, dated January 3, 2017, designated the Jackson Federal Courthouse, located at 501 East Court Street in Jackson, Mississippi, as the “Thad Cochran United States Courthouse.”

TO: Heads of Federal Agencies.

SUBJECT: Redesignation of Federal Building.

1. What is the purpose of this bulletin ? This bulletin announces the redesignation of a Federal building.

2. When does this bulletin expire ? This bulletin announcement expires September 3, 2019. The building designation remains in effect until canceled or superseded by another bulletin.

3. Redesignation . The former and new name of the redesignated building is as follows:

4. Who should we contact for further information regarding redesignation of this Federal building ? U.S. General Services Administration, Public Buildings Service, Office of Portfolio Management, Attn: Chandra Kelley, 77 Forsyth Street, SW, Atlanta, GA 30303, telephone number: 404-562-2763, or e-mail at chandra.kelley@gsa.gov.

The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee members are Special Government Employees (SGEs), requiring the filing of financial disclosure reports at the beginning and annually during their terms. CDC reviews potential candidates for BSC, NIOSH membership each year, and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in January, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year. SGE Nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Candidates should submit the following items:

Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address).

Cover letter, including a description of the candidate qualifications and why the candidate would be a good fit for the BSC.

At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. (Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency ( e.g., CDC, NIH, FDA, etc.).

Nominations may be submitted by the candidate him- or herself, or by the person/organization recommending the candidate.

The Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities for both CDC and the Agency for Toxic Substances and Disease Registry.

I. Background

Section 1861(iii)(1) of the Social Security Act (“the Act”) defines “home infusion therapy” as the items and services described furnished by a qualified home infusion therapy supplier which are furnished in the individual's home. The individual must be—

• Under the care of an applicable provider; and

• With respect to whom a plan prescribing the type, amount, and duration of infusion therapy services that are to be furnished such individual has been established by a physician and is periodically reviewed by a physician in coordination with the furnishing of home infusion drugs under part B.

According to section 1861(iii)(3)(A) of the Act, “Applicable provider” means a physician, a nurse practitioner, or a physician assistant. In accordance with section 1834(u)(5) of the Act, we defined “National accrediting organization” at 42 CFR 488.1005 as an organization that accredits provider or supplier entities under a specific program and whose accredited provider or supplier entities under each program are widely dispersed geographically across the United States. In addition, the specific program is active, fully implemented, and operational.

In the November 13, 2018 Federal Register (83 FR 56406),we published a final rule titled, “Medicare and Medicaid Programs; CY 2019 Home Health Prospective Payment System Rate Update and CY 2020 Case-Mix Adjustment Methodology Refinements; Home Health Value-Based Purchasing Model; Home Health Quality Reporting Requirements; Home Infusion Therapy Requirements; and Training Requirements for Surveyors of National Accrediting Organizations.” The November 2018 final rule implemented health and safety standards that home infusion therapy suppliers must meet; the temporary transitional payments for home infusion therapy services for CYs 2019; and an approval and oversight process for accrediting organizations (AOs) that accredit home infusion therapy suppliers. For more detailed information on the home therapy organization accreditation requirements see the November 2018 final rule (83 FR 56563 through 56584).

Section 1861(iii)(3)(D)(i)(III) of the Act, as added by section 5012(b) of the 21st Century Cures Act, requires that a home infusion therapy supplier be accredited by an AO designated by the Secretary in accordance with section 1834(u)(5) of the Act. Section 1834(u)(5)(A) of the Act identifies factors for designating AOs and modifying the list of designated AOs. These statutory factors are as follows:

• The ability of the organization to conduct timely reviews of accreditation applications.

• The ability of the organization take into account the capacities of suppliers located in a rural area (as defined in section 1886(d)(2)(D) of the Act).

• Whether the organization has established reasonable fees to be charged to suppliers applying for accreditation.

• Such other factors as the Secretary determines appropriate.

Section 1834(u)(5)(B) of the Act requires the Secretary to designate AOs to accredit home infusion therapy suppliers furnishing home infusion therapy not later than January 1, 2021.

This notice solicits applications from AOs with the ability to accredit home infusion therapy suppliers.

An accreditation organization that can show evidence of the ability to accredit qualified home infusion therapy suppliers as defined in section 1861(iii)(3)(D)(i) of the Act are eligible to apply for approval as a designated accreditation organization.

To be considered for approval as a Medicare-designated home infusion therapy AO under 42 CFR part 488, subpart L (§§ 488.1000 through 488.1050), an accrediting organization must meet the following requirements:

• The AO must have a home infusion therapy accreditation program that it separates and distinguishes from any of its other accreditation programs (if applicable).

• The AO must have home infusion therapy accreditation standards that meet or exceed the Medicare home infusion therapy health and safety standards codified at §§ 486.500 through 486.525 of our regulations.

To be considered for approval by Medicare as a home infusion therapy accrediting organization, an accrediting organization must submit an application to CMS requesting approval of its home infusion therapy accreditation program. The home infusion therapy accrediting organization's application must contain all of the following information to demonstrate that the AO's home infusion therapy accreditation program meets or exceeds the applicable Medicare requirements:

• Documentation to demonstrate that they meet the definition of a “national accrediting organization” as required by 42 CFR 488.1010(a)(1).

• The Medicare provider or supplier type for which the organization is requesting approval or re-approval (§ 488.1010(a)(2)).

• Documentation that demonstrates the home infusion therapy accrediting organization's ability to take into account the capacities of rural home infusion therapy suppliers (as required by section 1834(u)(5)(A)(ii) of the Act and 42 CFR 488.1010(a)(3)).

• Information that demonstrates the home infusion therapy accrediting organization's knowledge, expertise, and experience in home infusion therapy (see § 488.1010(a)(4)).

• A detailed crosswalk (in table format) that identifies, for each of the applicable Medicare requirements, the exact language of the organization's comparable accreditation requirements and standards (see § 488.1010(a)(5)).

• A detailed description of the home infusion therapy accrediting organization's survey processes to confirm that a home infusion therapy supplier's processes are comparable to those of Medicare (see § 488.1010(a)(6)). This description must include all of the following:

++ The types and frequency of surveys performed, and a rationale for which accreditation requirements will be evaluated via onsite surveys and which will be evaluated via offsite audits, or other strategies for ensuring accredited home infusion therapy suppliers maintain adherence to the home infusion therapy accreditation program requirements, including an explanation of how the accrediting organization will maintain the schedule it proposes (§ 488.1010(a)(6)(i)).

++ Copies of the home infusion therapy accrediting organizations survey and audit forms, guidelines, and instructions to surveyors (§ 488.1010(a)(6)(ii)).

++ Documentation demonstrating that the home infusion therapy accrediting organization's onsite survey or offsite audit reports identify, for each finding of non-compliance with accreditation standards, the comparable Medicare home infusion therapy accreditation requirements, as applicable (§ 488.1010(a)(6)(iii)).

++ A description of the home infusion therapy accrediting organization's accreditation survey review process (§ 488.1010(a)(6)(iv)).

++ A description of the home infusion therapy accrediting organization's procedures and timelines for notifying a surveyed or audited home infusion therapy supplier of non-compliance with the home infusion therapy accreditation program's standards (§ 488.1010(a)(6)(v)).

++ A description of the home infusion therapy accrediting organization's procedures and timelines for monitoring the home infusion therapy supplier's correction of identified non-compliance with the accreditation program's standards (§ 488.1010(a)(6)(vi)).

++ The ability of the home infusion therapy accrediting organization to conduct timely reviews of accreditation applications (§ 488.1010(a)(6)(vii)).

++ A statement acknowledging that, as a condition for CMS approval of a national accrediting organization's accreditation program, the home infusion therapy accrediting organization agrees to provide CMS with information extracted from each home infusion therapy accreditation onsite survey, offsite audit or other evaluation strategies as part of its data submissions required under § 488.1010(a)(19), and, upon request from CMS, a copy of the most recent accreditation onsite survey, offsite audit, or other evaluation strategy together with any other information related to the survey as CMS may require (including corrective action plans) (§ 488.1010(a)(6)(viii)).

++ A statement acknowledging that the home infusion therapy accrediting organization will provide timely notification to CMS when an accreditation survey or complaint investigation identifies an immediate jeopardy as that term is defined at § 488.1005. Using the format specified by CMS, the home infusion therapy accrediting organization must notify CMS within 2 business days from the date the accrediting organization identifies the immediate jeopardy (§ 488.1010(a)(6)(ix)).

• Procedures to ensure either of the following:

++ Unannounced onsite surveys, as appropriate, will be conducted periodically, including procedures that protect against unannounced surveys becoming known to the provider or supplier in advance of the visit (§ 488.1010(a)(7)(i)).

++ Offsite survey audits are performed to evaluate the quality of services provided which may be followed up with periodic onsite visits (§ 488.1010(a)(7)(ii)).

• The criteria for determining the size and composition of the home infusion therapy accrediting organization's survey, audit and other evaluation strategy teams for individual supplier onsite surveys. The home infusion therapy accrediting organization's criteria should include, but not be limited to the following information:

++ The expected number of individual home infusion therapy supplier locations to be surveyed using an onsite survey (§ 488.1010(a)(8)(i)).

++ The number of home infusion therapy suppliers to be surveyed using off-site audits (§ 488.1010(a)(8)(ii)).

++ A description of other types of home infusion therapy accreditation review activities to be used (§ 488.1010(a)(8)(iii)).

++ The reasons for each type of survey (that is, initial accreditation survey, reaccreditation survey, and complaint survey) (§ 488.1010(a)(8)(iv)).

• The overall adequacy of the number of the home infusion therapy accrediting organization's surveyors, auditors, and other staff available to perform survey related activities, including how the organization will increase the size of the survey, audit, and other evaluation staff to match growth in the number of accredited facilities or programs while maintaining re-accreditation intervals for existing accredited facilities or programs (§ 488.1010(a)(9)).

• Detailed information about the individuals who perform onsite surveys, offsite audits or other strategies for ensuring accredited home infusion therapy suppliers maintain adherence to the home infusion therapy accreditation program requirements, including all of the following information:

++ The number and types of professional and technical staff available for conducting onsite surveys, offsite audits, or other strategies for ensuring accredited home infusion therapy suppliers maintain adherence to the home infusion therapy accreditation program requirements. (§ 488.1010(a)(10)(i)).

++ The education, employment, and experience requirements surveyors an auditors must meet (§ 488.1010(a)(10)(ii)).

++ The content and length of the orientation program (§ 488.1010(a)(10)(iii)).

• The content, frequency and types of in-service training provided to survey and audit personnel (§ 488.1010(a)(11)).

• The evaluation systems used to monitor the performance of individual surveyors, auditors and survey teams (§ 488.1010(a)(12)).

• The home infusion therapy accrediting organization's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys, audits or participate in accreditation decisions (§ 488.1010(a)(13)).

• The policies and procedures used when a home infusion therapy supplier has a dispute regarding survey or audit findings, or an adverse decision (§ 488.1010(a)(14)).

• Procedures for the home infusion therapy supplier to use to notify the home infusion therapy accrediting organization when the accredited home infusion therapy supplier does the either of the following (§ 488.1010(a)(15)):

++ Removes or ceases furnishing services for which they are accredited.

++ Adds services for which they are not accredited.

• The home infusion therapy accrediting organization's procedures for responding to, and investigating complaints against accredited facilities, including policies and procedures regarding referrals, when applicable, to appropriate licensing bodies, ombudsmen offices, and CMS (§ 488.1010(a)(16)).

• A description of the home infusion therapy accrediting organization's accreditation status decision-making process. The home infusion therapy accrediting organization must furnish the following (§ 488.1010(a)(17)):

++ Its process for addressing deficiencies identified with accreditation program requirements, and the procedures used to monitor the correction of deficiencies identified during an accreditation survey and audit process.

++ A description of all types and categories of accreditation decisions associated with the program, including the duration of each of the organization's accreditation decisions.

++ Its policies and procedures for the granting, withholding or removal of accreditation status for facilities that fail to meet the accrediting organization's standards or requirements, assignment of less than full accreditation status or other actions taken by the organization in response to non-compliance with its standards and requirements.

++ A statement acknowledging that the home infusion therapy accrediting organization agrees to notify CMS (in a manner CMS specifies) of any decision to revoke, terminate, or revise the accreditation status of a home infusion therapy supplier, within 3 business days from the date the organization takes an action.

• A list of all currently accredited home infusion therapy suppliers, the type and category of accreditation, currently held by each, and the expiration date for each home infusion therapy supplier's current accreditation (§ 488.1010(a)(18)).

• A schedule of all survey activity (such as onsite surveys, offsite audits and other types if survey strategies) expected to be conducted by the organization during the 6-month period following submission of an initial or renewal application (§ 488.1010(a)(19)).

• A written presentation that demonstrates the organization's ability to furnish CMS with electronic data (§ 488.1010(a)(20)).

• A description of the home infusion therapy accrediting organization's data management and analysis system with respect to its surveys and accreditation decisions, including all of the following (§ 488.1010(a)(21)):

++ A detailed description of how the home infusion therapy accrediting organization uses its data to assure the compliance of its home infusion therapy accreditation program with the Medicare home infusion therapy accreditation program requirements.

++ A written statement acknowledging that the home infusion therapy accrediting organization agrees to submit timely, accurate, and complete data that CMS has determined is both necessary to evaluate the accrediting organization's performance and is not unduly burdensome for the accrediting organization to submit.

++ The organization must submit necessary data according to the instructions and timeframes CMS specifies.

++ Data to be submitted includes the following:

—Accredited home infusion therapy supplier identifying information.

—Survey findings.

—Quality measures.

—Notices of accreditation decisions.

• The three most recent annual audited financial statements of the home infusion therapy accrediting organization that demonstrate that the organization's staffing, funding, and other resources are adequate to perform the required surveys, audits, and related activities to maintain the accreditation program (§ 488.1010(a)(22)).

• A written statement acknowledging that, as a condition for approval, the home infusion therapy accrediting organization agrees to the following (§ 488.1010(a)(23)):

++ Voluntary termination. Provide written notification to CMS and all home infusion therapy suppliers accredited under its CMS-approved home infusion therapy accreditation program at least 180 calendar days in advance of the effective date of a decision by the home infusion therapy accrediting organization to voluntarily terminate its CMS-approved home infusion therapy accreditation program and the implications for the suppliers' payment status once their current term of accreditation expires in accordance with the requirements at § 488.1045(a).

++ Involuntary termination. Provide written notification to all accredited home infusion therapy suppliers accredited under its CMS-approved home infusion therapy accreditation program no later than 30 calendar days after the notice is published in the Federal Register announcing that CMS is withdrawing its approval of its accreditation program and the implications for the home infusion therapy supplier's payment status in accordance with the requirements at § 488.1045(b) once their current term of accreditation expires.

—For both voluntary and involuntary terminations, provide a second written notification to all accredited home infusion therapy suppliers 10 calendar days prior to the organization's accreditation program effective date of termination.

—Notify CMS, in writing (electronically or hard copy), within 2 business days of a deficiency identified in any accredited home infusion therapy supplier from any source where the deficiency poses an immediate jeopardy to the home infusion therapy supplier's beneficiaries or a hazard to the general public.

++ Summary accreditation activity data and trends. Provide, on an annual basis, summary accreditation activity data and trends including the following:

—Deficiencies.

—Complaints.

—Terminations.

—Withdrawals.

—Denials.

—Accreditation decisions.

—Other survey-related activities as specified by CMS.

++ Termination of an accreditation organization. If CMS terminates a home infusion therapy accrediting organization's approved status, the home infusion therapy accrediting organization must work collaboratively with CMS to direct its accredited home infusion therapy suppliers to the remaining CMS-approved accrediting organizations within a reasonable period of time.

++ Notification of proposed changes. Notify CMS at least 60 days in advance of the implementation date of any significant proposed changes in its CMS-approved home infusion therapy accreditation program and that it agrees not to implement the proposed changes without prior written notice of continued program approval from CMS, except as provided for at § 488.1040(b)(2).

++ Response to a written notice from CMS. A statement acknowledging that, in response to a written notice from CMS to the home infusion therapy accrediting organization of a change in the applicable home infusion therapy accreditation requirements or survey process, the organization will provide CMS with proposed corresponding changes in the accrediting organization's home infusion therapy accreditation requirements for its CMS-approved home infusion therapy accreditation program to ensure that its accreditation standards continue to meet or exceed those of Medicare, or survey process remains comparable with that of Medicare. The home infusion therapy accrediting organization must comply with the following requirements:

—The proposed changes must be submitted within 30 calendar days of the date of the written CMS notice to the home infusion therapy accrediting organization or by a date specified in the notice, whichever is later. CMS gives due consideration to a home infusion therapy accrediting organization's request for an extension of the deadline as long as it is submitted prior to the due date.

—The proposed changes are not to be implemented without prior written notice of continued program approval from CMS, except as provided for at § 488.1040(b)(2)(ii).

• The organization's proposed fees for accreditation, including any plans for reducing the burden and cost of accreditation to small and rural suppliers (§ 488.1010(a)(2)).

• Acknowledgement agreeing to release of accreditation surveys. The home infusion accreditation organization must include a statement within its accreditation application and accreditation agreement with each home infusion therapy supplier, agreeing to release its most current accreditation survey and any information related to the survey that CMS may require, including the home infusion therapy supplier's corrective action plans (§ 488.1025).

• Acknowledgement of Onsite Observation of Accrediting Organizations. The home infusion accreditation organization must include a statement its accreditation application to permit CMS to conduct an onsite inspection of the home infusion therapy accreditation organizations operations and offices at any time to verify the organization's representation and to assess the organizations compliance with its own policies and procedures (§ 488.1040).

• Acknowledgement of Reconsideration Process. The home infusion therapy accreditation organization must include a statement acknowledging understanding of the reconsideration process. The home infusion therapy accreditation organization may request reconsideration of an unfavorable decision made by CMS, as stated at (§ 488.1050).

If CMS determines that additional information is necessary to make a determination for approval or denial of the home infusion therapy accrediting organization's initial application (or reapplication) for CMS-approval of an accreditation program, CMS may require that the home infusion therapy accrediting organization submit any additional documentation and attestations necessary as a condition of approval of accreditation. If such additional information is required, CMS will notify the home infusion therapy accrediting organization and afford it an opportunity to provide the additional information.

A home infusion therapy accrediting organization may withdraw its initial application seeking CMS' approval of its home infusion therapy accreditation program at any time before CMS publishes the final notice as provided in § 488.1020(b).

An application review team will evaluate all applications submitted by accrediting organizations seeking designation as CMS-approved home infusion therapy accrediting organizations under section 1834(u)(5)(B) of the Act using the processes for consideration set forth in part 488, subpart L.

We are required to send a notice of its decision to approve or disapprove the home infusion therapy accrediting organization's application within 210 calendar days from the date CMS determines the home infusion therapy accrediting organization's application is complete. The final notice will specify the following:

• The basis for the decision.

• The effective date.

• The term of the approval (not exceed 6 years).

We are required to publish a notice in the Federal Register when the following conditions are met:

• Proposed notice. CMS publishes a notice after the receipt of a completed application from a national home infusion therapy accrediting organization seeking CMS's approval of a home infusion therapy accreditation program. The notice identifies the home infusion therapy accrediting organization, the type of suppliers covered by the home infusion therapy accreditation program, and provides at least a 30-day public comment period (beginning on the date of publication) (§ 488.1020(a)).

• Final notice. The final notice announces CMS decision to approve or deny a national accrediting organization application. The notice specifies the basis for the CMS decision (§ 488.1020(b)).

++ Approval or re-approval. If CMS approves or re-approves the home infusion therapy accrediting organization's home infusion therapy accreditation program, the final notice at a minimum includes the following information:

++ A description of how the home infusion therapy accreditation program meets or exceeds Medicare home infusion therapy accreditation program requirements.

++ The effective date of approval (no later than the publication date of the notice).

++ The term of the approval (6 years or less).

• Denial. If CMS does not approve the home infusion therapy accrediting organization's accreditation program, the final notice describes the following:

++ How the home infusion therapy accrediting organization fails to meet Medicare home infusion therapy accreditation program requirements.

++ The effective date of the decision.

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

I. Background

On December 21, 2000, the Congress passed the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106-554). Section 531(b) of BIPA mandated that we establish procedures that permit public consultation for coding and payment determinations for new durable medical equipment (DME) under Medicare Part B of title XVIII of the Social Security Act (the Act). In the November 23, 2001 Federal Register (66 FR 58743), we published a notice providing information regarding the establishment of the public meeting process for DME. The procedures and public meetings announced in that notice for new DME were in response to the mandate of section 531(b) of BIPA. As part of HCPCS reform, we expanded the public meeting forum to include all public requests as of the 2005-2006 coding cycle.

It is our intent to distribute any submitted materials to CMS' Healthcare Common Procedure Coding System (HCPCS) workgroup members for their consideration. CMS HCPCS workgroup members require sufficient preparation time to review all relevant materials. Therefore, we are implementing a 10-page submission limit and firm deadlines for receipt of any presentation materials a meeting speaker wishes us to consider. For this reason, CMS will only accept and review presentation materials received by the deadline for each public meeting, as specified in the DATES section of this notice.

The public meeting process provides an opportunity for the public to become aware of and provide input regarding coding changes under consideration, as well as an opportunity for us to gather public input.

The following information must be provided when registering on-line to attend:

• Name.

• Company name and address.

• Direct-dial telephone and fax numbers.

• Email address.

• Special needs information.

A CMS staff member will confirm your registration by email.

Individuals must also indicate whether they are the “primary speaker” for an agenda item. Primary speakers must be designated by the entity that submitted the HCPCS coding request. When registering, primary speakers must provide a brief written statement regarding the nature of the information they intend to provide and advise CMS' HCPCS staff listed in the FOR FURTHER INFORMATION CONTACT section of this notice, regarding needs for audio/visual support. To avoid disruption of the meeting and ensure compatibility with our systems, tapes and disk files are tested and arranged in speaker sequence well in advance of the meeting. We will accept tapes and disk files that are received by the deadline for submissions for each public meeting as specified in the DATES section of this notice. Late submissions and updates of electronic materials after our deadline cannot be accommodated.

Please note our page limit for primary speaker presentation materials. The sum of all presentation materials and additional supporting documentation may not exceed 10 pages (each side of a page counts as 1 page). An exception will be made to the 10-page limit only for relevant studies newly published between the application deadline and the public meeting date, in which case, we would like a copy of the complete publication as soon as possible. This exception applies only to the page limit and not the submission deadline.

The materials may be emailed or delivered by regular mail to CMS officials as specified in the ADDRESSES section of this notice. The materials must be emailed or postmarked no later than the deadline specified in the DATES section of this notice. Individuals will need to provide 25 copies if materials are delivered by mail.

To afford the same opportunity to all attendees, 5-minute speakers are not required to register as primary speakers. However, 5-minute speakers must still register as attendees by the deadline set forth under “Registration Deadlines for all Other Attendees” in the DATES section of this notice. Attendees can sign up only on the day of the meeting to do a 5-minute presentation. Individuals must provide their name, company name and address, contact information as specified on the sign-up sheet, and identify the specific agenda item that they will address.

The product category reported in the HCPCS code application by the applicant may not be the same as that assigned by us. Prior to registering to attend a public meeting, all participants are advised to review the public meeting agendas at www.cms.hhs.gov/medhcpcsgeninfo which identify our category determinations, and the dates each item will be discussed. Draft agendas, including a summary of each request and our preliminary decision will be posted on our HCPCS website at www.cms.hhs.gov/medhcpcsgeninfo at least 4 weeks before each meeting.

Additional details regarding the public meeting process for all new public requests for revisions to the HCPCS, along with information on how to register and guidelines for an effective presentation, will be posted at least 4 weeks before the first meeting date on the official HCPCS website at www.cms.hhs.gov/medhcpcsgeninfo. The document titled “Guidelines for Participation in Public Meetings for All New Public Requests for Revisions to the Healthcare Common Procedure Coding System (HCPCS)” will be made available on the HCPCS website at least 4 weeks before the first public meeting in 2019 for all new public requests for revisions to the HCPCS. Individuals who intend to provide a presentation at a public meeting need to familiarize themselves with the HCPCS website and the valuable information it provides to prospective registrants. The HCPCS website also contains a document titled “Healthcare Common Procedure Coding System (HCPCS) Level II Coding Procedures,” which is a description of the HCPCS coding process, including a detailed explanation of the procedures used to make coding determinations for all the products, supplies, and services that are coded in the HCPCS.

The HCPCS website also contains a document titled “HCPCS Decision Tree & Definitions,” which illustrates, in flow diagram format, HCPCS coding standards as described in our Coding Procedures document.

We can only estimate the amount of meeting time that will be needed since it is difficult to anticipate the total number of speakers that will register for each meeting. Meeting participants must arrive early to allow time to clear security and sign-in. Each meeting is expected to begin promptly as scheduled. Meetings may end earlier than the stated ending time.

All primary speakers must register as provided under the section titled “Meeting Registration.” All materials that will be used in support of an oral presentation must be submitted to the CMS staff specified in the FOR FURTHER INFORMATION CONTACT section of this notice.

The materials may be emailed or delivered by regular mail to the CMS staff as specified in the ADDRESSES section of this notice. The materials must be emailed or postmarked no later than the deadline specified in the DATES section of this notice. Individuals will need to include 25 copies if materials are delivered by mail.

The individual or entity requesting revisions to the HCPCS coding system for a particular agenda item may designate one “primary speaker” to make a presentation for a maximum of 15 minutes. Fifteen minutes is the total time interval for the presentation, and the presentation must incorporate any demonstration, set-up, and distribution of material. In establishing the public meeting agenda, we may group multiple, related requests under the same agenda item. In that case, we will decide whether additional time will be allotted, and may opt to increase the amount of time allotted to the speaker by increments of less than 15 minutes.

Individuals designated to be the primary speaker must register to attend by the date specified in the DATES section of this notice using the meeting registration procedures described in the section II. of this notice, “Meeting Registration”. Primary speakers must also separately register as primary speakers as specified in the DATES section of this notice.

Meeting attendees can sign up at the meeting, on a first-come, first-served basis, to make presentations for up to 5 minutes on individual agenda items. Based on the number of items on the agenda and the progress of the meeting, a determination will be made at the meeting by the meeting coordinator and the meeting moderator regarding how many “5-minute speakers” can be accommodated and whether the 5-minute time allocation would be reduced, to accommodate the number of speakers.

On the day of the meeting, before the end of the meeting, all primary speakers and 5-minute speakers must provide a brief written summary of their comments and conclusions to CMS' HCPCS staff listed in the FOR FURTHER INFORMATION CONTACT section of this notice.

Every primary speaker and 5-minute speaker must declare at the beginning of their presentation at the meeting, as well as in their written summary, whether they have any financial involvement with the manufacturers or competitors of any items being discussed; this includes any payment, salary, remuneration, or benefit provided to that speaker by the manufacturer or the manufacturer's representatives.

Written comments will be accepted from the general public and meeting registrants anytime up to the date of the public meeting at which a request is discussed. Comments must be sent to the address listed in the ADDRESSES section of this notice.

Meeting attendees may also submit their written comments at the meeting. Due to the close timing of the public meetings, subsequent workgroup reconsiderations, and final decisions, we are able to consider only those comments received in writing by the close of business on the date of the public meeting at which the request is discussed.

CMS' HCPCS Public Meetings are, and have been live-streamed on U-Tube for viewing and listening only. CMS is considering steps for future coding cycles that would make our HCPCS coding program even more transparent, and provide additional opportunities for public input, by expanding participation in HCPCS Public Meetings, and making participation easier. Specifically, we are examining the logistics and feasibility of arranging for oral presentations to be made from remote locations, as opposed to in-person at CMS only.

The meeting is open to the public, but attendance is limited to the space available. Persons wishing to attend this meeting must register no later than the date specified in the DATES section of this notice.

Attendees that are foreign nationals are required to identify themselves as such, and provide the necessary information for security clearance in advance of the date of the public meeting the individual plans to attend to CMS' HCPCS staff listed in the ADDRESSES section of this notice.

All individuals who are not foreign nationals who plan to enter the building to attend the public meeting must register for each date that they plan on attending.

This meeting will be held in a Federal government building; therefore, Federal security measures are applicable. We recommend that confirmed registrants arrive reasonably early, but no earlier than 45 minutes prior to the start of the meeting, to allow additional time to clear security. Security measures include the following:

• Presentation of government-issued photographic identification to the Federal Protective Service or Guard Service personnel.

• Inspection of vehicle's interior and exterior (this includes engine and trunk inspection) at the entrance to the grounds. Parking permits and instructions will be issued after the vehicle inspection.

• Inspection, via metal detector or other applicable means of all persons entering the building. We note that all items brought into CMS, whether personal or for the purpose of presentation or to support a presentation, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set-up, safety, or timely arrival of any personal belongings or items used for presentation or to support a presentation.

Note: Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The public may not enter the building earlier than 45 minutes prior to the convening of the meeting.

All visitors must be escorted in areas other than the lower and first floor levels in the Central Building.