On September 1, 2016, we published in the Federal Register (81 FR 60338-60339) a notice of intent to prepare an environmental impact statement (EIS)  1 to analyze the effects of a program to suppress populations of grasshoppers and Mormon cricket from 17 States in the western United States. That notice identified three alternatives for examination in the EIS and requested public comments to help delineate the scope of the issues and alternatives to be analyzed. The public comment period for scoping ended on October 17, 2016. We received 12 comments during the 45-day scoping period and considered these comments in the drafting of the EIS.

On January 30, 2019, the Animal and Plant Health Inspection Service (APHIS) made the draft EIS available and invited public comment on it through March 18, 2019. We received 19 comments. Our responses to the comments are contained in an appendix to the final EIS. On November 1, 2019, the Environmental Protection Agency published a notice of availability of the final EIS in the Federal Register (84 FR 58713). The review period for the final EIS ended on December 2, 2019.

The National Environmental Policy Act (NEPA, as amended (42 U.S.C. 4321 et seq. )) implementing regulations in 40 CFR 1506.10 require a minimum 30-day waiting period between the time a final EIS is published and the time an agency makes a decision on an action covered by the EIS. We did not receive any comments during the 30-day waiting period. APHIS has reviewed the final EIS and concluded that it fully analyzes the issues covered by the draft EIS and addresses the comments and suggestions submitted by commenters. This notice advises the public that the waiting period has elapsed, and APHIS has issued a record of decision (ROD) to implement the preferred alternative described in the final EIS.

The ROD has been prepared in accordance with: (1) NEPA; (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508); (3) USDA regulations implementing NEPA (7 CFR part 1b); and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including African swine fever (ASF). ASF is a highly contagious disease of wild and domestic swine that can spread rapidly in swine populations with extremely high rates of morbidity and mortality. A list of regions where ASF exists or is reasonably believed to exist is maintained on the Animal and Plant Health Inspection Service (APHIS) website at https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/animal-and-animal-product-import-information/animal-health-status-of-regions/. This list is referenced in § 94.8(a)(2) of the regulations.

Section 94.8(a)(3) of the regulations states that APHIS will add a region to the list referenced in § 94.8(a)(2) upon determining ASF exists in the region, based on reports APHIS receives of outbreaks of the disease from veterinary officials of the exporting country, from the World Organization for Animal Health (OIE), or from other sources the Administrator determines to be reliable, or upon determining that there is reason to believe the disease exists in the region. Section 94.8(a)(1) of the regulations specifies the criteria on which the Administrator bases the reason to believe ASF exists in a region. Section 94.8(b) prohibits the importation of pork and pork products from regions listed in accordance with § 94.8 except if processed and treated in accordance with the provisions specified in that section or consigned to an APHIS-approved establishment for further processing. Section 96.2 restricts the importation of swine casings that originated in or were processed in a region where ASF exists, as listed under § 94.8(a).

On September 9, 2019, the veterinary authorities of the Philippines reported to the OIE the occurrence of ASF in that country. Therefore, in response to this outbreak, on September 17, 2019, APHIS added the Philippines to the list of regions where ASF exists or is reasonably believed to exist. This notice serves as an official record and public notification of that action.

As a result, pork and pork products from the Philippines, including casings, are subject to APHIS import restrictions designed to mitigate the risk of ASF introduction into the United States.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this action as not a major rule, as defined by 5 U.S.C. 804(2).

Under the regulations in “Subpart L—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-12, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.

Section 319.56-4 of the regulations contains a notice-based process based on established performance standards for authorizing the importation of fruits and vegetables. Paragraph (c) of that section provides that the name and origin of all fruits and vegetables authorized importation into the United States, as well as the requirements for their importation, are listed on the internet in APHIS' Fruits and Vegetables Import Requirements database, or FAVIR ( https://epermits.aphis.usda.gov/manual ). It also provides that, if the Administrator of APHIS determines that any of the phytosanitary measures required for the importation of a particular fruit or vegetable are no longer necessary to reasonably mitigate the plant pest risk posed by the fruit or vegetable, APHIS will publish a notice in the Federal Register making its pest risk analysis and determination available for public comment.

In accordance with that process, we published a notice  1 in the Federal Register on September 23, 2019 (84 FR 49707-49708, Docket No. APHIS-2019-0054) announcing the availability, for review and comment, of commodity import evaluation documents (CIEDs) prepared relative to revising the conditions for the importation of fresh Unshu oranges from Japan into the United States and allowing Unshu oranges from Kyushu to be imported into any port of entry in the United States (excluding territories). The notice proposed to remove the fumigation requirement for the importation of Unshu oranges to the United States from areas of production on the islands of Honshu and Shikoku in Japan and to expand the number of ports of entry authorized for importation of Unshu oranges from the island of Kyushu.

We solicited comments on the CIEDs for 60 days ending on November 22, 2019. We received six comments by that date. Two of these comments were sent by representatives of State government agricultural agencies, with the remainder submitted by the public. The comments are discussed below.

A commenter stated that the United States should focus more on addressing domestic citrus challenges, particularly with respect to Asian citrus psyllid.

Under its obligations as a cosignatory to the International Plant Protection Convention, APHIS is required to base its import requirements on an assessment of plant pest risk; for the reasons stated in the CIEDs, the initial notice, and this notice, we have determined that revisions to the import requirements for Unshu oranges from Japan are warranted to have these requirements be commensurate with respect to risk.

That being said, as a means to address domestic citrus challenges, APHIS has developed the Citrus Health Response Program (CHRP). The CHRP provides phytosanitary guidelines for nursery stock, fruit inspection, treatment, and certification. The CHRP also works closely with regulatory officials from citrus-producing States to identify and implement appropriate survey, diagnostic, and mitigation measures to reduce the spread of citrus canker, citrus greening, and other citrus diseases.

A commenter asked for assurances that citrus greening will not be transported with Unshu oranges from Japan into Hawaii under the proposed change to the import requirements.

Commercially grown and packaged fruit is an epidemiologically insignificant pathway for the transmission of citrus greening. Moreover, as part of the packinghouse procedures that will be detailed in an operational workplan entered into by APHIS and the national plant protection organization of Japan, Unshu oranges will be washed with sodium hypochlorite solution to mitigate the risk of Asian citrus psyllid, the primary vector of citrus greening.

The commenter added that if APHIS approves these new import requirements, then Hawaiian citrus growers should be allowed to import scion and propagative material to compete with imported fruit on a level playing field.

We are making no changes in response to the commenter. Under the Plant Protection Act (7 U.S.C. 7701 et seq. ), we have the authority to prohibit or restrict the importation of plants and plant products only when necessary to prevent the introduction into or dissemination of plant pests or noxious weeds within the United States. Accordingly, any decisions made by APHIS regarding the movement of propagative materials into Hawaii would be based on phytosanitary safety considerations and not on economic effects.

Another commenter asked if APHIS had conducted research on new pests of concern, noting that the Unshu orange regulations are over 17 years old and that new actionable pests not known to occur in the United States or Hawaii may have emerged since the initial assessment.

No new actionable pests have been found in Japan since APHIS' initial assessment for Unshu orange from Japan. APHIS has maintained pest interception data on Unshu orange from Japan from 1984 to the present. The national plant protection organization (NPPO) of Japan also maintains a working relationship with APHIS to keep us informed of any actionable pest activity.

A commenter asked us to confirm that the regulation suggests that the same applications and risks used to prevent spread of citrus canker in the United States also apply to Japan.

We can confirm that, with respect to importation of citrus from Japan and other countries, APHIS applies pest mitigation measures that are equivalent to those mitigations used for movement of citrus within the United States.

Citing pest risks to domestic citrus production, one commenter opposed ending the use of methyl bromide fumigation on Unshu oranges from Japan but provided no details. Another commenter asked what types of pesticides Japan plans to use to replace methyl bromide.

We have determined that methyl bromide fumigation is no longer necessary as a pest mitigation measure for importation of Unshu oranges from Japan into the United States. No pesticides are intended to be used as a replacement for methyl bromide. The only phytosanitary treatment that the Unshu oranges will receive is washing at the packinghouse with a solution of sodium hypochlorite. If pests are found in the future during phytosanitary inspections in Japan or at ports of entry into the United States, the shipments will be treated in accordance with 7 CFR part 305.

A commenter asked that APHIS clarify in § 319.28(b) all areas of Japan that are allowed to ship Unshu oranges and suggested listing the prefectures for Kyushu included among these areas. The commenter also asked APHIS to clarify in § 319.28(b) that any territorial destinations are not included for import, noting that the notice is confusing and Guam was not included. The commenter also noted that the docket background clearly states “ports of entry in the United States (excluding territories)”.

The commenter is referring to a subpart that was removed from the regulations by a final rule published in the Federal Register on September 14, 2018 (83 FR 46627-46639, Docket No. APHIS-2010-0084). As a result of that rule, import requirements for Unshu oranges from Japan are now solely found in FAVIR. The restriction regarding importing Unshu oranges from Japan to U.S. territories in FAVIR is unambiguous.

A commenter stated that the current rule says “Unshu oranges from Kyushu Island, Japan (Prefectures of Fukuoka, Kumanmoto, Nagasaki, and Saga only) that have not been fumigated in accordance with part 305 of this chapter may not be imported into American Samoa, Arizona, California, Florida, Hawaii, Louisiana, the Northern Mariana Islands, Puerto Rico, Texas, or the U.S. Virgin Islands.” The commenter stated that it was only logical to mention “not been fumigated” if it was also true that Unshu would be enterable to citrus growing States if they were fumigated. Otherwise, the rule would have simply stated “Unshu oranges are prohibited from the Kyushu Prefectures of Fukuoka, Kumanmoto, Nagasaki, and Saga into citrus growing States Arizona, California, Florida, Hawaii, Louisiana, or Texas.”

We are making no changes in response to the commenter. We are unclear as to the commenter's reference to the “current rule.” The prohibitions mentioned by the commenter are actually derived from an earlier version of 7 CFR part 319. The commenter seems to be stating that the import restriction in this outdated version could be reworded to communicate the same point in fewer words. As noted above, FAVIR contains current import requirements. It indicates that oranges originating in Kyushu are only admissible into States other than Arizona, California, Florida, Hawaii, and Texas, and fumigation is not required. It also indicates that Unshu oranges are prohibited entry into the territories of American Samoa, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

A commenter suggested that APHIS confirm continuance of the Bactrocera tsuneonis trapping protocol suspension of shipping from Kyushu Island until negative trapping shows the problem has been resolved. The commenter added that longstanding trapping data does not in itself justify removal of the trapping safeguards and suggested that the current trapping standards could be optional if B. tsuneonis was no longer known to occur based on standard APHIS criteria for generational eradication for the species, or if other efficacious practices replace past ones and are required for all exported Unshu oranges.

We can confirm that trapping will continue for B. tsuneonis in Japan even after removal of the mandatory fumigation requirement.

A commenter expressed concern about the risk that B. tsuneonis poses to California's citrus industry because a male trapping lure does not exist, making it necessary to use protein-based lures, which are less efficacious. The commenter added that standard culling and packing procedures are not likely to remove all infested fruit because fruit fly larvae are internal feeders. Another commenter agreed, stating that allowing shipments of Unshu oranges to enter the United States without undertaking mitigation measures for B. tsuneonis could devastate the Florida citrus industry.

Since 2016, Japan has been conducting trapping on Kyushu Island in accordance with these trapping protocols with no interceptions of B. tsuneonis to date. We acknowledge that Japan has been trapping for B. tsuneonis with a protein-based trap, and also agree that a male trapping lure for B. tsuneonis would be more efficient than a protein-based trap, but disagree that protein-based traps are ineffective at detecting populations of B. tsuneonis. In the absence of a species-specific male lure, protein baits may be used reliably to trap for fruit flies; the absence of the lure is accounted for by adjusting the trapping protocol itself, such as by increasing trap density and servicing. This approach is evidenced in the trapping protocols used extensively throughout Central and South America for Anastrepha spp.

The same commenter added that while fruit fly detection trapping is done in Japan with APHIS-approved methods, we provided no trapping details with the proposal, nor did we provide information on the planned response if fruit flies are detected.

Under an operational workplan entered into by the NPPO of Japan and APHIS, trapping protocols and other pest mitigation are agreed upon and documented in detail. In the event of an infestation, shipment of consignments would be halted from the infested areas until the infestation is eradicated and APHIS determines that risk mitigations for resumption of shipments will be adequate.

A commenter noted that the small number of pest interceptions does not seem like a solid argument against the risk posed by external pests on Unshu oranges. As the economic assessment indicates, the commenter opined, small amounts of this fruit were exported to the United States, so it would be expected that the number of interceptions would also be small.

We disagree with the commenter's premise that the amount of Unshu orange imported into the United States from Japan is proportional to the number of pest interceptions. While the volume of Unshu oranges imported from Japan into the United States has decreased in recent years, import volume has not always been as low. Additionally, APHIS has only detected plant pests on Unshu oranges from Japan 45 times since 1984, regardless of volume of imports in a particular year. This indicates the efficacy of mitigations agreed to between APHIS and the NPPO of Japan, and we do not expect this to change substantially if shipments of fruit are increased. Nonetheless, APHIS does not expect shipments of Unshu orange from Japan to increase significantly as a result of this change to the import requirements.

A commenter agreed that external pests targeted by fumigation could be detected during inspection but stated that inspection should not be the sole mitigation measure. On this point, the commenter noted that post-harvest washing and waxing can reduce the risk of external pests but that APHIS failed to provide information regarding post-harvest handling procedures of Unshu oranges.

As part of the packinghouse procedures, Unshu oranges will be dipped and washed with approved disinfectants to mitigate for surface feeders. Fruit will also be subject to a phytosanitary inspection before entering the United States.

A commenter stated that it is not possible to assess the risk posed by unidentified mealybugs and suggested that further identification is needed to assess species-specific risk.

If mealybugs are detected on Unshu oranges destined for importation into the United States during a phytosanitary inspection, they are subject to fumigation, regardless of species. Identification of species is not required for this mitigation.

A commenter disagreed with discontinuing use of methyl bromide for Unshu oranges from the islands of Honshu or Shikoku because of concerns over two species of mites, Eotetranychus asiaticus and Eotetranychus kankitus, and a fruit fly, Bactrocera tsuneonis. The commenter noted that, despite our statement that these pests are surface feeders and could be detected during phytosanitary inspections, the small mites could easily be missed in a visual inspection.

We have determined that a visual inspection, combined with other requirements detailed in the operational workplan, including packinghouse washing with a solution of sodium hypochlorite, sufficiently mitigates mites and other surface feeders. Additionally, as we discussed earlier in this document, Japan has not detected B. tsuneonis since 2016. Any detections of mites or fruit flies on Unshu oranges from Japan are treated in accordance with 7 CFR part 305.

A commenter questioned whether mitigations were necessary for mites, as they are already addressed by a fruit scrubbing and washing requirement in a 2013 risk analysis. The analysis includes packinghouse washing and scrubbing procedures, disinfection, chemical treatment, and fruit waxing. The commenter asked if these protocols were required or suggested by APHIS.

Post-harvest/packinghouse protocols, which include washing and disinfection of fruit to mitigate mites and other surface feeders, will be included in the operational workplan.

Therefore, in accordance with § 319.56-4(c)(4)(ii) of the regulations, we are announcing our decision to revise the requirements for the importation of Unshu oranges from Japan by removing the methyl bromide requirement for Unshu oranges from the islands of Honshu and Shikoku and allowing Unshu oranges from the island of Kyushu to be imported into any port of entry in the United States, excluding territories. The revised conditions are as follows:

• The oranges must be commercial consignments. In order to be considered commercially produced, the oranges must be washed and disinfected in accordance with an operational workplan agreed to by APHIS and the NPPO of Japan.

• Each consignment must be accompanied by a phytosanitary certificate with an additional declaration that the oranges were packed and produced in accordance with the requirements authorized under 7 CFR 319.56-4.

• Each consignment must be free of leaves, twigs, and other plant parts, except for stems that are less than 1 inch long and attached to the fruit.

• Shipments are prohibited entry into any U.S. territory.

• Each shipment is subject to inspection at the port of entry into the United States.

• Each shipment must be imported under an import permit issued by APHIS.

These revised conditions will be listed in the Fruits and Vegetables Import Requirements database (available at http://www.aphis.usda.gov/favir ). In addition to these specific measures, fresh Unshu oranges from Japan will be subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables.

In accordance with Section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection activities included in this notice are approved by the Office of Management and Budget under control number 0579-0049.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this notice, please contact Mr. Joseph Moxey, APHIS' Information Collection Coordinator, at (301) 851-2483.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this action as not a major rule, as defined by 5 U.S.C. 804(2).

In accordance with the provisions of FACA, the Secretary intends to renew the Board. The Board will be a statutory advisory Board and will operate under the provisions of FACA. The Board will report to the Secretary through the Chief of the Forest Service.

The Board provides a critical role in advising the Secretary best methods to promote public participation during the planning process for the Land Resource Management Plan and continues to provide advice to the Forest Service on environmental education issues.

The Board consists of 17 non-Federal members who provide balanced and broad representation and who shall be considered representatives of LBL user groups or State or local government within the following categories of interests:

A designated Federal employee will serve as the Designated Federal Officer (DFO) under sections 10(e) and (f) of the Federal Advisory Committee Act (5 U.S.C. App. 2). A meeting notice will be published in the Federal Register 15 to 45 days before a scheduled meeting date. All meetings are generally open to the public and may include a “public forum” that may offer 5-10 minutes for participants to present comments to the advisory committee. The Chair of the Board ultimately makes the decision whether to offer time on the agenda for the public to speak to the general body.

Equal opportunity practices were followed in accordance with US Department of Agriculture (USDA) policies. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by USDA, membership includes to the extent possible, individuals with demonstrated ability to represent the needs of all racial and ethnic groups, women and men, and persons with disabilities.

Background

On October 1, 2019, Commerce published the notice of initiation of the first sunset review of the antidumping duty order on MSG from China  1 pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). 2 On October 15, 2019, Commerce received a notice of intent to participate from Ajinomoto Health & Nutrition North America, Inc. (the domestic interested party), a U.S. producer and wholesaler of a domestic like product, within the 15-day deadline specified in 19 CFR 351.218(d)(1)(i). 3

On October 31, 2019, Commerce received an adequate substantive response to the Notice of Initiation from the domestic interested party within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). 4 We received no substantive responses from respondent interested parties with respect to the Order covered by this sunset review.

On November 22, 2019, Commerce notified the International Trade Commission (ITC) that it did not receive adequate substantive responses from respondent interested parties. 5 As a result, pursuant to 19 CFR 351.218(e)(1)(ii)(C)(2), Commerce is conducting an expedited (120-day) sunset review of the antidumping duty order on MSG from China.

The product covered by the Order is MSG, whether or not blended or in solution with other products. Specifically, MSG that has been blended or is in solution with other product(s) is included in this scope when the resulting mix contains 15 percent or more of MSG by dry weight. Products with which MSG may be blended include, but are not limited to, salts, sugars, starches, maltodextrins, and various seasonings. For the full description of the scope of the Order, see the Issues and Decision Memorandum. 6

All issues raised in this sunset review are addressed in the Issues and Decision Memorandum. 7 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Commerce building. A list of topics discussed in the Issues and Decision Memorandum is included as the appendix to this notice. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the antidumping duty order on MSG from China would be likely to lead to the continuation or recurrence of dumping at rates up to 40.41 percent.

This notice also serves as the only reminder to parties subject to APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing these final results and this notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218.

Background: The CINTAC was established under the discretionary authority of the Secretary of Commerce and in accordance with the Federal Advisory Committee Act (5 U.S.C. App.), in response to an identified need for consensus advice from U.S. industry to the U.S. Government regarding the development and administration of programs to expand United States exports of civil nuclear goods and services in accordance with applicable U.S. laws and regulations, including advice on how U.S. civil nuclear goods and services export policies, programs, and activities will affect the U.S. civil nuclear industry's competitiveness and ability to participate in the international market.

The Department of Commerce renewed the CINTAC charter on August 10, 2018. This meeting is being convened under the sixth charter of the CINTAC.

Topics to be considered: The agenda for the CINTAC meeting on Thursday, February 20, 2020, is as follows:

(9 a.m.-4 p.m.)—Subcommittee work, review of deliberative recommendations, and opportunity to hear from members of the public.

Members of the public wishing to attend the meeting must notify Mr. Jonathan Chesebro at the contact information above by 5 p.m. EST on Friday, February 14, 2020 in order to pre-register to participate. Please specify any requests for reasonable accommodation at least five business days in advance of the meeting. Last minute requests will be accepted but may not be possible to fill. A limited amount of time will be available for brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 30 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Chesebro and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5 p.m. EST on Friday, February 14, 2020. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, ITA may conduct a lottery to determine the speakers.

Any member of the public may submit written comments concerning the CINTAC's affairs at any time before and after the meeting. Comments may be submitted to the Civil Nuclear Trade Advisory Committee, Office of Energy & Environmental Industries, Room 28018, 1401 Constitution Ave. NW, Washington, DC 20230. For consideration during the meeting, and to ensure transmission to the Committee prior to the meeting, comments must be received no later than 5 p.m. EST on Friday, February 14, 2020. Comments received after that date will be distributed to the members but may not be considered at the meeting.

Copies of CINTAC meeting minutes will be available within 90 days of the meeting.

The primary purpose of the GMT webinar is to prepare for the Pacific Council's March 2020 agenda items. The GMT will discuss items related to groundfish management and administrative Pacific Council agenda items. A detailed agenda for the webinar will be available on the Pacific Council's website prior to the meeting. The GMT may also address other assignments relating to groundfish management. No management actions will be decided by the GMT.

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

The public listening station is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (503) 820-2412, kris.kleinschmidt@noaa.gov ) at least 10 days prior to the meeting date.

The purpose of the meeting is to create fishery performance reports for blueline and golden tilefish by the Council's Tilefish Advisory Panel. The intent of these reports is to facilitate a venue for structured input from the Advisory Panel members for the Tilefish specifications processes, including recommendations to the Council and its Scientific and Statistical Committee.

The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

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 the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings.

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

On July 24, 2019, NMFS received a request from NSF for an IHA to take marine mammals incidental to conducting a low-energy marine geophysical survey and icebreaking as necessary in the Amundsen Sea. The application was deemed adequate and complete on November 22, 2019. NSF's request is for take of small numbers of 18 species of marine mammals, by harassment. Neither NSF nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. The planned activity is not expected to exceed one year.

NSF plans to conduct a low-energy marine seismic survey in the Amundsen Sea during February 2020. The survey will complement Thwaites Glacier and other Amundsen Sea oceanographic and geological/geophysical studies and provide reference data that can be used to initiate and evaluate the reliability of ocean models. Data obtained by the project would assist in establishing boundary conditions seaward of the Thwaites Glacier grounding line, obtaining records of external drivers of change, improving knowledge of processes leading to the collapse of Thwaites Glacier, and determining the history of past change in grounding line migration and conditions at the glacier base.

Seismic surveys will be conducted over approximately 8400 square kilometers (km 2 ) between 75.25°-73.5° S and 101.0°-108.5°W of the Amundsen Sea for approximately eight days beginning on or about February 6, 2020. Sixty-five percent of data acquisition will occur in intermediate depths (100-1000 meters (m)) and 35 percent in deep waters (1000-< 2000 m). The surveys will involve one source vessel, the Research Vessel/Icebreaker (RVIB) Nathaniel B. Palmer ( Palmer ). NSF has stated the possibility of deploying multiple configurations of generator injector (GI) airgun(s) with one 100-300 m, solid-state, hydrophone streamer towed behind the Palmer. If the preferred airgun configuration (two 45/105 cubic inch (in 3 ) gun array in true GI mode does not provide data to meet scientific objectives, alternate configurations would be utilized (Table 1). All possible configurations will be towed at a depth of 3 m with a total maximum discharge volume for the largest, two-airgun array of 420 in 3 along predetermined track lines, approximately 1600 km. Because of the extent of sea ice in the Amundsen Sea that typically occurs between January and February annually, icebreaking activities are expected to be required during the cruise.

In addition to the operations of the airgun array, a hull-mounted Single Beam Echo Sounder (Knudsen 3260 CHIRP), Multibeam Sonar (Kongsberg EM122), Acoustic Doppler Current Profiler (ADCP) (Teledyne RDI VM-150 or Ocean Surveyor OS-38), as well as EK biological echo sounder (Simrad ES200-7C, ES38B, ES-120-7C) will also be operated from the Palmer during the cruise.

A detailed description of the planned THOR project was provided in the Federal Register notice for the proposed IHA published on December 19, 2019 ( 84 FR 69950 ). Since that time, no changes have been made to the planned survey activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

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

A notice of NMFS's proposal to issue an IHA to NSF was published in the Federal Register on December 19, 2019 ( 84 FR 69950 ). That notice described, in detail, NSF's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission). For full detail of the Commission's recommendations and supporting rationale, please see the letter (available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-thwaites-offshore-research-thor-project-amundsen-sea-antartica ).

Comment: The Commission recommends that NMFS: (1) Specify whether NSF's activities would occur in international waters, the deepest water depth in which the geophysical survey would occur, and the parameters and methods used to estimate the Level B harassment zone for ice-breaking activities; (2) use the humpback whale density of 0.001365 whales/km 2 based on Gohl (2010) to re-estimate the numbers of takes for the geophysical survey and ice-breaking activities; (3)(a) revise the (i) Level A and B harassment zones for the geophysical survey based on a tow depth of 4 m rather than 3 m or restrict the airguns from being towed at a depth of more than 3 m and (ii) ensonified areas for Level B harassment based on transiting 200 km rather than 160 km per day during the geophysical survey and (b) use the total ensonified area for Level B harassment to re-estimate the numbers of takes for the geophysical survey; and (4) increase the numbers of Level B harassment takes to at least 3 blue whales, 40 humpback whales, 40 killer whales, 2,000 crabeater seals, 100 Weddell seals, 50 leopard seals, and 10 Ross seals based on group size and documented occurrence in the Amundsen Sea.

Response: NSF has confirmed that the survey will occur entirely within international waters, and that the maximum survey depth is 1,900 m. The parameters and methods used to estimate the Level B harassment zone for ice-breaking activities are described in the “Estimated Take” section later in this document. Regarding humpback whale density, NMFS concurs with the Commission and has produced revised exposure estimates using the recommended density value (see “Estimated Take,” later in this document). NSF intends to tow the acoustic source at a depth of 3 m; therefore, this value was used in modeling of the acoustic harassment isopleths. NMFS also concurs with the Commission regarding the daily transit distance of 200 km and has revised the exposure estimates accordingly. Similarly, exposure estimate calculations have been performed using the total ensonified area, as recommended by the Commission.

Regarding the recommendation to increase certain authorized take numbers on the basis of expected group size encounters, NMFS concurs with the Commission and has made the recommended adjustments, with two exceptions. NMFS disagrees with the Commission regarding the likelihood of encountering a group of three blue whales, and has retained the initial estimate of two. Blue whales, a rarely encountered species, are typically encountered as single animals or as small groups of up to 2 or 3 animals. Therefore, the estimate of two blue whale takes is sufficient to account for likely group size. For killer whales, we revisited the available information and derived a more appropriate density value on the basis of available observational data (as described below under “Changes from the Proposed IHA to Final IHA”). The revised exposure estimate exceeds the Commission's recommended group size estimate.

Comment: Regarding ice-breaking, the Commission recommends that NMFS use the total ensonified area of 8,491 km 2 to estimate the numbers of Level B harassment takes if ice-breaking activities could occur on any of the survey days, or use the reduced ensonified area of 7,409 km 2 to estimate the numbers of Level B harassment takes if ice-breaking activities are expected to occur for two straight days.

Response: The maximum estimated amount of icebreaking expected by NSF, i.e., 445 km for the maximum of 48 hours, was used in our calculations to avoid the significant overestimation that would result from assuming icebreaking will occur every day (10 survey days, including 2 contingency days). It is unlikely that any given animal would experience the stressor continuously for 10 days, and the potential effects of ice-breaking have been appropriately accounted for in NMFS' authorized take levels.

Comment: The Commission recommends that NMFS (1) include a requirement to extrapolate Level B harassment takes to the unobserved portions of the Level B harassment zone and (2) ensure that NSF keeps a running tally of total Level B harassment takes based on both observed and extrapolated takes.

Response: NMFS agrees that NSF must ensure they do not exceed authorized takes. As is typical in such authorizations, we have included a requirement that NSF report “estimates of the number and nature of exposures that occurred above the harassment threshold based on PSO observations, including an estimate of those that were not detected.”

Comment: The Commission recommends that NMFS require NSF to either (1) re-estimate the proposed Level A and B harassment zones and associated takes of marine mammals using (a) both operational and site-specific environmental parameters, (b) a comprehensive source model and (c) an appropriate sound propagation model for the proposed incidental harassment authorization; or (2) collect or provide the relevant acoustic data to substantiate that its modeling approach is conservative for both deep and intermediate waters beyond the Gulf of Mexico. The Commission further recommends that NMFS (1) explain why it believes that sound channels with downward refraction, as well as seafloor reflections, are not likely to occur during the geophysical survey; (2) specify the degree to which both of those parameters would affect the estimation (or underestimation) of Level B harassment zones in deep and intermediate water; (3) explain why it believes that NSF's model and other `modeling' approaches provide more accurate, realistic, and appropriate Level A and B harassment zones than approaches favored by the Commission, particularly for deep and intermediate water; and (4) explain, if NSF's model and other `modeling' approaches are considered best available science, why other action proponents that conduct seismic surveys are not implementing similar methods particularly given their simplicity.

Response: As noted by the Commission, these comments reflect a longstanding disagreement between NMFS and the Commission regarding NSF's approach to modeling the output of their acoustic sources and its propagation through the water column. NMFS has previously responded to the Commission's comments on NSF's modeling approach. We refer the reader to previous Federal Register notices providing responses rather than repeat them here ( e.g., 84 FR 60059, November 07, 2019; 84 FR 54849, October 11, 2019; 84 FR 35073, July 22, 2019). However, given the Commission's continuing concerns with NSF's modeling approach for its broader survey program (and not solely for the subject survey), NMFS also will engage separately with the Commission about these issues.

Comment: The Commission recommends that NMFS post on its website the same day a notice of proposed authorization publishes in the Federal Register the application, the draft incidental harassment authorization, any hydroacoustic or marine mammal monitoring plans, its list of references, previous monitoring reports, and any other related documents.

Response: NMFS concurs with the recommendation.

Comment: The Commission reiterates programmatic recommendations regarding NMFS' potential use of the renewal mechanism for one-year IHAs.

Response: NMFS disagrees with the Commission's recommendations, as stated in our previous comment responses relating to other actions, which we incorporate here by reference ( e.g., 84 FR 52464; October 02, 2019).

Corrections have been made to the estimated take table (see Table 9), as well as population (see Table 2) values updated and density (see Table 7) values corrected for two and three species, respectively. More recent sources were found for the population abundance of crabeater and Weddell seals. Bengston et al. (2011) reported 2,100,000 crabeater seals in the Ross and Amundsen Sea, which is more relevant to NSF's survey in the Amundsen Sea than Boyd's (2002) report of 5,000,000 seals in the entire Antarctic. For Weddell seals, Hückstädt updated their population estimate from 750,000 (2015) to 1,000,000 (2018) seals.

We re-evaluated the density values and found that the Protected Species Observer Report from a previous NSF Antarctic cruise (Mehle et al. 2015) had higher monitoring/observation counts for minke and killer whales. Thus, the higher Mehle et al. (2015) counts were used for a more conservative take estimate than those used in the proposed IHA; i.e., Ainley et al. (2007) for minke whales and NMSDD (2012) for killer whales. Since both the Ainley et al. (2007) and Mehle et al. (2015) monitoring efforts were conducted from the same vessel, the Palmer, in Antarctica, NMFS used the same calculation method as NSF with the Ainley et al. (2007) data. Therefore, the 1.6 km visual transect width and 556 km survey distance were used to produce the area surveyed, 889.6 km 2 , which allowed the calculation of the density area.

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 about these species ( e.g., physical and behavioral descriptions) may be found on NMFS's website ( https://www.fisheries.noaa.gov/find-species ).

The populations of marine mammals considered in this document do not occur within the U.S. Exclusive Economic Zone (EEZ) and are therefore not assigned to stocks and are not assessed in NMFS' Stock Assessment Reports (SAR). As such, information on potential biological removal (PBR; defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population) and on annual levels of serious injury and mortality from anthropogenic sources are not available for these marine mammal populations. Abundance estimates for marine mammals in the survey location are based on a variety of sources including International Whaling Commission population estimates (IWC 2019), The International Union for Conservation of Nature's (IUCN) Red List of Threatened Species, and various literature estimates (see IHA application for further detail), as this is considered the best available information on potential abundance of marine mammals in the area.

Table 2 lists all species with expected potential for occurrence in the Amundsen Sea, Antarctica, and summarizes information related to the population, including regulatory status under the MMPA and ESA. For taxonomy, we follow the Committee on Taxonomy (2019).

All species that could potentially occur in the planned survey areas are included in Table 2. As described below, all 18 species temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have authorized it.

A detailed description of the of the species likely to be affected by the THOR geophysical survey, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, information regarding local occurrence, and marine mammal hearing were provided in the Federal Register notice for the proposed IHA (84 FR 69950; December 19, 2019). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions.

The effects of underwater noise from NSF's planned geophysical survey have the potential to result in harassment of marine mammals in the vicinity of the survey area. The Federal Register notice for the proposed IHA (84 FR 69950; December 19, 2019) included a discussion of the effects of anthropogenic noise on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to that Federal Register notice (84 FR 69950; December 19, 2019) for that information. No instances of Level A harassment, serious injury or mortality are expected as a result of the planned activities.

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

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

Authorized takes will be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to the acoustic stressors. Based on the nature of the acoustic sources planned for this activity ( i.e., small Level A harassment zones), Level A harassment is neither anticipated, nor authorized. In addition, the anticipated effectiveness of the mitigation measures ( i.e., visual mitigation monitoring; establishment of an exclusion zone; shutdown procedures; ramp-up procedures; and vessel strike avoidance measures), discussed in detail below in the Mitigation section, further reduce the likelihood that Level A harassment may occur.

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

Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be harassed or incur some degree of 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 authorized 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.

NSF's planned activity includes the use of impulsive seismic sources and continuous icebreaking, and therefore both 160 dB re 1 μPa (rms) and 120 dB re 1 μPa (rms) are applicable for the related activity, respectively.

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). NSF's planned activity includes impulsive and non-impulsive acoustic 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.

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 potential take by Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated modeling methods are not available. NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For mobile sources such as seismic surveys and icebreaking, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed. Inputs used in the User Spreadsheet, and the resulting isopleths, are reported below in Tables 4, 5, and 6. As noted in Table 1, the two 45/105 in 3 GI guns is the preferred configuration for NSF's survey. However, values from the GI configuration Alternate 2, two 105/105 in 3 (420 in 3 total), have been used as the basis for modeling and all related take calculations due to its larger volume (and greater acoustic output) to present the most conservative modeling effort.

Table 5 presents the estimated Level A harassment zones for each marine mammal hearing group, which are based on L-DEO modeling incorporated into the companion User Spreadsheet (NMFS 2018).

Predicted distances to Level A harassment isopleths, which vary based on marine mammal hearing groups, were calculated based on modeling performed by L-DEO using the NUCLEUS software program and the NMFS User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to facilitate the estimation of take numbers.

The predicted distances for Level A harassment are sufficiently small ( see Table 5), that the likelihood of Level A harassment for any marine mammal is considered discountable. Given these small zones and the likelihood that any animal would demonstrate aversive behavior to the presence of the vessel at such close ranges, it is unrealistic that a mammal would stay within such a small area long enough to incur onset of PTS. Hence, Level A harassment is not expected or authorized for this survey.

L-DEO's modeling methodology is explained in greater detail in the proposed IHA notice (84 FR 69950; December 19, 2019). Please refer to NSF's IHA application, Attachment A for the Model Report Estimating the Mitigation Zones for Airgun Arrays that could be used in the Amundsen Sea, NSF survey. The estimated distances to the Level B harassment isopleths for all proposed airgun configurations in each water depth category are shown in Table 6.

In this section we provide the information about the presence, density, or group dynamics of marine mammals that informed the take calculations.

For the planned survey area in west Antarctica, NSF and NMFS determined that the preferred sources of density data for marine mammal species that might be encountered in the project area were Ainley et al. (2007), Gohl (2010), and Navy Marine Species Density Database (2012). Densities were estimated using sightings and effort during aerial and vessel-based surveys conducted in and adjacent to the proposed project area, as well as from cetacean density models (NMSDD 2012; see NSF IHA application). NMFS finds the available monitoring information from the previous NSF cruise in the Ross Sea (Mehle et al. 2015), based on their observations of 14 sightings of 254 killer whales and 2 blue whales, to support group size and be the most conservative. In addition, NMFS included the southern elephant seal to the marine mammals potentially present in the project area (Hofmeyr 2015), and divided the available minke whale data, which is undifferentiated, into the two species that may be affected; Antarctic and Common (dwarf) minke whales.

Since Mehle et al. (2015) reported monitoring information rather than specific densities, and both the Ainley et al. (2007) and Mehle et al. (2015) monitoring efforts were conducted from the same vessel, the Palmer, in Antarctica, NMFS derived density values from Mehle et al. (2015) using the same calculation method as was used by NSF to calculate density from the Ainley et al. (2007) data. Specifically, we used the 1.6 km visual transect width and 556 km survey distance to produce 889.6 km  2 area surveyed, allowing the number of individuals sighted to be divided by the area to obtain a density value for each relevant species.

All data sources used for animal abundance are listed in Table 2 above. Estimated densities used to inform take estimates are presented in Table 7.

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

In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in Level B harassment, radial distances from the airgun array to predicted isopleths corresponding to the Level B harassment thresholds are calculated, as described in the notice of proposed IHA. Those radial distances are then used to calculate the area(s) around the airgun array predicted to be ensonified to sound levels that exceed the Level B harassment thresholds. The area estimated to be ensonified in a single day of the survey is then calculated (Table 8), based on the areas predicted to be ensonified around the array and the estimated trackline distance traveled per day. This number is then multiplied by the number of survey days. The product is then multiplied by 1.25 to account for the additional 25 percent contingency. This results in an estimate of the total area (km  2 ) expected to be ensonified to the Level B harassment thresholds for each acoustic source (Table 8).

The marine mammals predicted to occur within these respective areas, based on estimated densities (Table 7), are assumed to be incidentally taken. As discussed previously, based on the small anticipated Level A harassment isopleths and in consideration of the mitigation measures (see Mitigation section below), take by Level A harassment is not expected to occur and is not authorized. Estimated exposures for the planned survey are shown in Table 9.

The USCGC Healy served as a proxy for the source levels expected to result from icebreaking by the Palmer to calculate the ensonified area (Table 8) and Level B take (Table 9): 196.2 db at 1 m source level (Roth 2013), transmission loss 20logR, assuming spherical spreading, and resulting 6.456 km radius to the 120 dB harassment threshold. The maximum estimated amount of icebreaking expected by NSF; i.e. 445 km for the maximum of 48 hours, was used in these calculations to avoid the significant overestimation of assuming icebreaking will occur every day (8 survey days, plus 2 contingency days). We calculate the ensonified area associated with icebreaking using the maximum duration of 48 hours icebreaking rather than the 10 days of the potential survey, as it is unlikely that any given animal would experience the stressor continuously for 10 days.

It should be noted that the authorized take numbers shown in Table 9 are expected to be conservative because in the calculations of estimated take, 25 percent has been added in the form of operational survey days. This is to account for the possibility of additional seismic operations associated with airgun testing and repeat coverage of any areas where initial data quality is sub-standard.

Following our development of the aforementioned take estimates, and based on our review of recommendations from the Marine Mammal Commission (described previously in “Comments and Responses”) we increased Level B harassment take estimates for the following species as stated here: 40 humpback whales, 2,000 crabeater seals, 100 Weddell seals, 50 leopard seals, and 10 Ross seals based on group size and documented occurrence in the Amundsen Sea (Gohl 2010).

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

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

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

NSF has reviewed mitigation measures employed during seismic research surveys authorized by NMFS under previous incidental harassment authorizations, as well as recommended best practices in Richardson et al. (1995), Pierson et al. (1998), Weir and Dolman (2007), Nowacek et al. (2013), Wright (2014), and Wright and Cosentino (2015), and has incorporated a suite of required mitigation measures into their project description based on the above sources.

To reduce the potential for disturbance from acoustic stimuli associated with the activities, NSF is required to implement mitigation measures for marine mammals. Mitigation measures that must be adopted during the planned surveys include (1) Vessel-based visual mitigation monitoring; (2) Establishment of a marine mammal Exclusion Zone (EZ) and buffer zone; (3) shutdown procedures; (4) ramp-up procedures; and (4) vessel strike avoidance measures.

Visual monitoring requires the use of trained observers (herein referred to as visual Protected Species Observers (PSOs)) to scan the ocean surface visually for the presence of marine mammals. PSO(s) must be on duty and conducting visual observations at all times during daylight hours ( i.e., from 30 minutes prior to sunrise through 30 minutes following sunset). Following a shutdown for any reason, observations must occur for at least 30 minutes prior to the planned start of airgun operations. Observations must also occur for 60 minutes after airgun operations cease for any reason (or until 30 minutes following sunset). Observations must also be made during daytime periods when the Palmer is underway without seismic operations, such as during transits, to allow for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Airgun operations must be suspended when marine mammals are observed within, or about to enter, the designated EZ (as described below).

During seismic operations, three visual PSOs must be based aboard the Palmer. PSOs must be appointed by NSF with NMFS approval. One dedicated PSO must monitor the EZ during all daytime seismic operations. PSO(s) must be on duty in shifts of duration no longer than four hours. Other vessel crew must also be instructed to assist in detecting marine mammals and in implementing mitigation requirements (if practical). Before the start of the seismic survey, the crew must be given additional instruction in detecting marine mammals and implementing mitigation requirements.

The Palmer is a suitable platform from which PSOs will watch for marine mammals. Standard equipment for marine mammal observers must be 7 × 50 reticule binoculars and optical range finders. At night, night-vision equipment must be available. The observers must be in communication with ship's officers on the bridge and scientists in the vessel's operations laboratory, so they can advise promptly of the need for avoidance maneuvers or seismic source shutdown.

The PSOs must have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements. PSO resumes must be provided to NMFS for approval. At least one PSO must have a minimum of 90 days at-sea experience working as a PSO during a seismic survey. One “experienced” visual PSO must be designated as the lead for the entire protected species observation team. The lead will serve as primary point of contact for the vessel operator.

An EZ is a defined area within which occurrence of a marine mammal triggers mitigation action intended to reduce the potential for certain outcomes, e.g., auditory injury, severe behavioral reaction. The PSOs must establish a minimum EZ with a 100 m radius for the airgun array. The EZs must be based on radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). With certain exceptions (described below), if a marine mammal appears within or enters this zone, the acoustic source must be shut down (see Shutdown Procedures below).

The 100-m radial distance of the standard EZ is precautionary in the sense that it is expected to contain sound exceeding injury criteria for all marine mammal hearing groups (Table 3) while also providing a consistent, reasonably observable zone within which PSOs will typically be able to conduct effective observational effort. In this case, the 100-m radial distance is also expected to contain sound that will exceed the Level A harassment threshold based on sound exposure level (SEL cum ) criteria for all marine mammal hearing groups (Table 3).

Our intent in prescribing a standard EZ distance is to (1) encompass zones within which auditory injury could occur on the basis of instantaneous exposure; (2) provide additional protection from the potential for more severe behavioral reactions ( e.g., panic, antipredator response) for marine mammals at relatively close range to the acoustic source; (3) provide consistency for PSOs, who need to monitor and implement the EZ; and (4) define a distance within which detection probabilities are reasonably high for most species under typical conditions.

PSOs will also establish and monitor an additional buffer to the exclusion zone, i.e., must monitor the 100-m exclusion zone plus an additional 100-m buffer for a total of 200 m. During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the EZ) will be communicated to the operator to prepare for potential shutdown of the acoustic source. In context of the larger extended EZ (discussed in the following paragraph), the buffer zone is largely applicable to the pre-clearance period prior to beginning the ramp-up procedure (as discussed further under Ramp-up Procedures, later in this section).

An extended EZ of 500 m must be enforced for all beaked whales and for Southern right whales. The latter is a precautionary measure as right whales are not expected in the survey area. NSF will also implement a 500-m EZ for aggregations of six or more large whales ( i.e., sperm whale or any baleen whale) or a large whale with a calf (calf defined as an animal less than two-thirds the body size of an adult observed to be in close association with an adult).

If a marine mammal appears within or enters the relevant EZ, the airguns must be shut down. Following a shutdown, airgun activity must not resume until the marine mammal has cleared the relevant EZ. The animal is considered to have cleared the EZ if the following conditions have been met:

• it is visually observed to have departed the EZ;

• it has not been seen within the EZ for 15 minutes in the case of small odontocetes and pinnipeds; or

• it has not been seen within the EZ for 30 minutes in the case of mysticetes and large odontocetes, including sperm and beaked whales.

Shutdown of the acoustic source is required upon observation of a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized number of takes are met, observed entering or within the Level B harassment zone.

Ramp-up of an acoustic source is intended to provide a gradual increase in sound levels following a shutdown, enabling animals to move away from the source if the signal is sufficiently aversive prior to its reaching full intensity. Ramp-up is required after the array is shut down for any reason for longer than 15 minutes. Ramp-up must begin with the activation of the smallest airgun in the array, with subsequent airgun(s) activated after 5 minute intervals.

Two PSOs are required to monitor during ramp-up. During ramp up, the PSOs must monitor the EZ, and if marine mammals were observed within the EZ, a shutdown will be implemented as though the full array were operational. If airguns have been shut down due to PSO detection of a marine mammal within or approaching the EZ, ramp-up must not be initiated until all marine mammals have cleared the EZ, during the day or night. Criteria for clearing the EZ is described above.

Thirty minutes of pre-clearance observation are required prior to ramp-up for any shutdown of longer than 30 minutes ( e.g., when the array is shut down during transit from one line to another). This 30-minute pre-clearance period may occur during any vessel activity ( i.e., transit). If a marine mammal were observed within or approaching the relevant EZ during this pre-clearance period, ramp-up must not be initiated until all marine mammals cleared the EZ. Criteria for clearing the EZ must be as described above. If the airgun array has been shut down for reasons other than mitigation ( e.g., mechanical difficulty) for a period of less than 30 minutes, it may be activated again without ramp-up if PSOs have maintained constant visual observation and no detections of any marine mammal have occurred within the EZ or buffer zone. Ramp-up must be planned to occur during periods of good visibility when possible. However, ramp-up will be allowed at night and during poor visibility if the 100 m EZ and buffer zone have been monitored by visual PSOs for 30 minutes prior to ramp-up.

The operator is required to notify a designated PSO of the planned start of ramp-up as agreed-upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up. A designated PSO must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed. The operator must provide information to PSOs documenting that appropriate procedures were followed. Following deactivation of the array for reasons other than mitigation, the operator is required to communicate the near-term operational plan to the lead PSO with justification for any planned nighttime ramp-up.

Vessel strike avoidance measures are intended to minimize the potential for collisions with marine mammals. These requirements do not apply in any case where compliance will create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.

The required measures include the following: Vessel operator and crew must maintain a vigilant watch for all marine mammals and slow down or stop the vessel or alter course to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone must be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena. Vessel strike avoidance measures must be followed during surveys and while in transit.

The vessel must maintain a minimum separation distance of 100 m from large whales ( i.e., baleen whales and sperm whales). If a large whale is within 100 m of the vessel, the vessel must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established. If the vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m. The vessel must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals. If an animal is encountered during transit, the vessel must attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course. Vessel speeds must be reduced to 10 kts or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near the vessel.

Based on our evaluation of the applicant's required measures, as well as other measures considered by NMFS, NMFS has determined that the required 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 planned 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).

• Mitigation and monitoring effectiveness.

NSF described a marine mammal monitoring and reporting plan within their IHA application. Monitoring that is designed specifically to facilitate mitigation measures, such as monitoring of the EZ to inform potential shutdowns of the airgun array, are described above and are not repeated here. NSF's monitoring and reporting plan includes the following measures:

As described above, PSO observations must take place during daytime airgun operations and nighttime start-ups (if applicable) of the airguns. During seismic operations, three visual PSOs must be based aboard the Palmer. PSOs must be appointed by NSF with NMFS approval. The PSOs must have successfully completed relevant training, including completion of all required coursework and passing a written and/or oral examination developed for the training program, and must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate training, including (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.

During seismic operations, one PSO is required to monitor for marine mammals around the vessel. PSOs must be on duty in shifts of duration no longer than four hours. Other crew must also be instructed to assist in detecting marine mammals and in implementing mitigation requirements (if practical). During daytime, PSOs must scan the area around the vessel systematically with reticle binoculars ( e.g., 7×50 Fujinon) and with the naked eye. At night, PSOs must be equipped with night-vision equipment.

PSOs must record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data must be used to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They must also provide information needed to order a shutdown of the airguns when a marine mammal is within or near the EZ. When a sighting is made, the following information about the sighting must be recorded:

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

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

All observations and shutdowns must be recorded in a standardized format. Data must be entered into an electronic database. The accuracy of the data entry must be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures allow initial summaries of data to be prepared during and shortly after the field program and facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving. The time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare must also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.

Results from the vessel-based observations must provide:

(1) The basis for real-time mitigation ( e.g., airgun shutdown);

(2) Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS;

(3) Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted;

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

(5) Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.

A draft report must be submitted to NMFS within 90 days after the end of the survey. The report must describe the operations that were conducted and sightings of marine mammals near the operations. The report must provide full documentation of methods, results, and interpretation pertaining to all monitoring and will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report must also include estimates of the number and nature of exposures that occurred above the harassment threshold based on PSO observations, including an estimate of those that were not detected in consideration of both the characteristics and behaviors of the species of marine mammals that affect detectability, as well as the environmental factors that affect detectability.

The draft report must also include geo-referenced time-stamped vessel tracklines for all time periods during which airguns were operating. Tracklines must include points recording any change in airgun status ( e.g., when the airguns began operating, when they were turned off, or when they changed from full array to single gun or vice versa). GIS files must be provided in ESRI shapefile format and include the UTC date and time, latitude in decimal degrees, and longitude in decimal degrees. All coordinates must be referenced to the WGS84 geographic coordinate system. In addition to the report, all raw observational data must be made available to NMFS. A final report must be submitted within 30 days following the resolution of any comments on the draft report.

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

To avoid repetition, our analysis applies to all the species listed in Table 1, given that NMFS expects the anticipated effects of the proposed seismic survey to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, NMFS has identified species-specific factors to inform the analysis.

NMFS does not anticipate that Level A harassment, serious injury or mortality will occur as a result of NSF's proposed seismic survey, even in the absence of proposed mitigation. Thus, the proposed authorization does not authorize any such takes. As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section in our notice of proposed IHA (84 FR 69950), non-auditory physical effects, stranding, and vessel strike are not expected to occur.

No takes by Level A harassment are expected or authorized. As described above, we expect that marine mammals will be likely to move away from a sound source that represents an aversive stimulus, especially at levels that will be expected to result in PTS, given sufficient notice of the Palmer's approach due to the vessel's relatively low speed when conducting seismic surveys. The 100-m exclusion zone encompasses the Level A harassment isopleths for all marine mammal hearing groups, and is expected to prevent animals from being exposed to sound levels that will cause PTS. We expect that any instances of take will be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity and with no lasting biological consequences ( e.g., Southall et al., 2007).

Marine mammal habitat may be impacted by elevated sound levels, but these impacts will be temporary. Feeding behavior is not likely to be significantly impacted, as marine mammals appear to be less likely to exhibit behavioral reactions or avoidance responses while engaged in feeding activities (Richardson et al., 1995). Prey species are mobile and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. In addition, there are no feeding, mating or calving areas known to be biologically important to marine mammals within the proposed project area.

The activity is expected to impact a very small percentage of all marine mammal populations that will be affected by NSF's planned survey (less than 13 percent each for all marine mammal populations combined). Additionally, the acoustic “footprint” of the planned survey will be very small relative to the ranges of all marine mammal species that will potentially be affected. Sound levels will increase in the marine environment in a relatively small area surrounding the vessel compared to the range of the marine mammals within the planned survey area. This includes the small amount of icebreaking, hours at most, expected. The effects of icebreaking are transitory, localized, and constrained to a relatively narrow swath to each side of the vessel. The seismic array will be active 24 hours per day throughout the duration of the proposed survey. However, the very brief overall duration of the planned survey (eight days) will further limit potential impacts that may occur as a result of the proposed activity.

The planned mitigation measures are expected to reduce the number and/or severity of takes by allowing for detection of marine mammals in the vicinity of the vessel by visual observers, and by minimizing the severity of any potential exposures via shutdowns of the airgun array. Based on previous monitoring reports for substantially similar activities that have been previously authorized by NMFS, we expect that the required mitigation will be effective in minimizing impacts.

Of the marine mammal species under our jurisdiction that are likely to occur in the project area, the following species are listed as endangered under the ESA: blue, fin, sei, and sperm whales. Given the very low numbers of takes for these species (Table 9), relative to their population sizes, as well as the type of take (Level B harassment) we do not expect population-level impacts to any of these species. The other marine mammal species that may be taken by harassment during NSF's seismic survey and icebreaking activities are not listed as threatened or endangered under the ESA. There is no designated critical habitat for any ESA-listed marine mammals within the project area; of the non-listed marine mammals for which we authorize take, none are considered “depleted” by NMFS under the MMPA.

NMFS concludes that exposures to marine mammal species due to NSF's planned seismic survey will result in only short-term (temporary and short in duration) effects to individuals exposed, or some small degree of PTS to a very small number of individuals. Marine mammals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the authorized take estimates to impact annual rates of recruitment or survival.

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 or serious injury is anticipated or authorized;

• No take by Level A harassment is anticipated or authorized;

• The anticipated impacts of the proposed activity on marine mammals will primarily be temporary behavioral changes of small percentages of the affected species due to avoidance of the area around the survey vessel. The relatively short duration of the proposed survey (10 days; eight days of survey plus two contingency days) will further limit the potential impacts of any temporary behavioral changes that will occur;

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

• The proposed project area does not contain areas of significance for feeding, mating or calving;

• The potential adverse effects on fish or invertebrate species that serve as prey species for marine mammals from the proposed survey will be temporary and spatially limited; and

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

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

As noted above, only small numbers of incidental take may be authorized under 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.

Marine mammals in the survey area are not assigned to NMFS stocks. For purposes of the small numbers analysis, we rely on the best available information on the abundance estimates for the species of marine mammals that could be taken. The numbers of marine mammals that we authorize to be taken will be considered small relative to the relevant populations (less than 13 percent for all species).

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

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

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

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

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

The NMFS Office of Protected Resources Interagency Cooperation Division issued a Biological Opinion on January 23, 2020, under section 7 of the ESA, on the issuance of an IHA to NSF under section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected Resources Permits and Conservation Division. The Biological Opinion concluded that the proposed action is not likely to jeopardize the continued existence of blue, fin, sei, and sperm whales, and is not likely to destroy or modify critical habitat of listed species because no critical habitat exists for these species in the action area.

As a result of these determinations, NMFS has issued an IHA to NSF for conducting the specified activity in the Amundsen Sea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

The NMFS Pacific Islands Fisheries Science Center (PIFSC) conducted a single-species benchmark stock assessment of the gray jobfish (uku, Aprion virescens ) in the main Hawaiian Islands. PIFSC previously conducted a stock assessment for uku in 2017 using a data-limited length-based approach. The 2020 benchmark assessment diverges significantly from the 2017 assessment in that it implements the first integrated assessment of a domestic stock in the U.S. Pacific Islands Region. The integrated assessment uses the Stock Synthesis (v. 3.30) framework to integrate catch per unit effort indices, size frequency, diver survey, and catch data into a single age-structured model. PIFSC used this integrated model to estimate biomass and stock status through time, and evaluated stock status against the maximum sustainable yield based reference points described in the Council's Fishery Ecosystem Plan for the Hawaii Archipelago. The 2020 assessment provides projections to inform management setting of acceptable biological catch and annual catch limits for 2020-2026.

The WPSAR panel will meet from 9 a.m. to 5 p.m. each day. The agenda order may change, and the meeting will run as late as necessary to complete scheduled business.

This meeting is physically accessible to people with disabilities. Please direct requests for sign language interpretation or other auxiliary aids to Michael Seki (see FOR FURTHER INFORMATION CONTACT section above) at least five days prior to the meeting date.

The primary purpose of the meeting is to review the 2020 benchmark stock assessment for Pacific sardine, which will be used to set annual harvest specifications and management measures for the fishing year beginning July 1, 2020 through June 30, 2021. The review panel will consist of three members of the Pacific Council's Scientific and Statistical Committee's Subcommittee on Coastal Pelagic Species (CPS), and two independent experts. Representatives of the Pacific Council's CPS Management Team and the CPS Advisory Subpanel will also participate in the review as advisers.

As a courtesy, the meeting will be broadcast via Webex in listen-only mode. Login information will be available in advance of the meeting on the Pacific Council website or by contacting Kerry Griffin ( kerry.griffin@noaa.gov; (503) 820-2409).

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

The public listening station is physically accessible to people with disabilities.

Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Dale Sweetnam ( dale.sweetnam@noaa.gov ) at least 10 days prior to the meeting date.

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

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

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

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

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.

On 12/27/2019, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

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

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

2. The action may result in authorizing small entities to furnish the products and services to the Government.

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

Accordingly, the following products and services are deleted from the Procurement List:

1. Background

Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, as amended by section 1109 of the NDAA for FY 2000, and section 1114 of the NDAA for FY 2001, authorizes the Secretary of Defense (SECDEF) to conduct personnel demonstration projects at DoD laboratories designated as STRLs. Most STRLs have a Voluntary Emeritus Program or Voluntary Emeritus Corps flexibility that permits STRLs to offer voluntary assignments to individuals who have retired or separated from Federal service. This new authority will expand this flexibility to permit STRLs to offer the same type of voluntary assignments to U.S. citizens who have not retired or separated from Federal service. Volunteer service will not be used to replace any employee, or interfere with career opportunities of employees. The VEP may not be used to replace or substitute for work performed by government personnel occupying positions required to perform the mission of the STRL.

The 20 current STRLs are:

The VEP will allow U.S. citizens to provide commercial and public sector knowledge, experience and advice, and valuable mentoring to STRL employees.

None.

All DoD laboratories designated as STRLs under section 1105 of the NDAA for FY 2010, section 1103 of the NDAA for FY 2015, and section 1104 of the NDAA for FY 2018 (including any newly designated STRLs authorized by SECDEF or by future legislation) with published demonstration project plans may use the provisions described in this FRN. STRLs implementing this flexibility must fulfill any collective bargaining obligations. Each STRL will establish internal operating procedures as appropriate. Authorized STRLs and correlated FRNs are listed in Appendix A.

Two comments were received regarding the VEP proposed for implementation in the STRL demonstration projects as described in 84 FR 31849, July 2, 2019. The first comment suggested adding a statement concerning intellectual property. An additional statement concerning intellectual property was determined to be unnecessary because it is addressed as part of the agreement between the VEP participant and the STRL. See 2.II.A.(13). The second comment did not pertain to the flexibility described in 84 FR 31849. The comment was forwarded to the specific STRL referenced in the comment for consideration.

All current and future STRL personnel demonstration project plans are hereby amended to add the following:

Under the demonstration project, STRLs have the authority to offer voluntary assignments to U.S. citizens who are retired, separated, or on sabbatical from private or public sector organizations. The VEP will provide opportunities for these individuals to bring commercial sector or public sector knowledge and experience into the STRLs. The VEP will not be used to replace any government personnel or interfere with their career opportunities. The VEP may not be used to replace or substitute for work performed by government personnel occupying positions required to perform the STRL's mission. VEP assignments are not considered “employment” by the Federal government (except as indicated below).

To be accepted into the VEP, an individual must be a U.S. citizen and must be recommended by an STRL manager. No one is entitled to participate in the VEP, and application to the VEP does not guarantee acceptance into the Program or assignment at an STRL. The STRL must clearly document the decision process and decision rationale for each VEP applicant (regardless of whether the applicant is accepted or rejected for the program) and must retain this documentation throughout the assignment (for accepted applicants), or for two years (for rejected applicants). VEP participants will not be permitted to perform any inherently governmental function, or to participate in any contracts or solicitations for which the participant has a conflict of interest. VEP participants are not permitted to participate in contract source selections, nor are they permitted to have access to contractor bid or proposal information or source selection information, or to data or information that is protected by the Trade Secrets Act (18 U.S.C. 1905) without a written agreement between the VEP participant and the owner of the data or information.

The VEP participant shall be required to enter a written agreement with the STRL as a condition of participation in the Program. The agreement will be reviewed by the local Legal Office for legal sufficiency prior to signature. The agreement must be finalized before the VEP participant assumes any duties and shall include, at a minimum:

(1) A statement that the voluntary assignment does not constitute an appointment in the civil service and is without compensation, and any and all claims against the Government (because of the voluntary assignment) are waived by the VEP participant;

(2) a statement that the VEP participant will be considered a federal employee solely for the purpose of:

(a) 18 U.S.C. 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913;

(b) 31 U.S.C. 1343, 1344, and 1349(b);

(c) 5 U.S.C. chapters 73 and 81;

(d) The Ethics in Government Act of 1978;

(e) 41 U.S.C. chapter 21;

(f) 28 U.S.C. chapter 171 (tort claims procedure), and any other Federal tort liability statute; and

(g) 5 U.S.C. 552a (records maintained on individuals).

(3) the VEP participant's work schedule;

(4) the length of the agreement (defined by length of project or time defined by weeks, months, or years);

(5) the support to be provided by the STRL (travel, administrative, office space, supplies);

(6) the VEP participant's duties;

(7) a provision allowing either party to void the agreement with at least two working days' written notice;

(8) the level of security access required (any security clearance required by the assignment will be managed by the STRL while the participant is a member of the VEP);

(9) a provision that any written products prepared for publication that are related to VEP participation will be submitted to the STRL director for review and must be approved prior to publication;

(10) a statement that the VEP participant accepts accountability for loss or damage to Government property occasioned by the VEP participant's negligence or willful action;

(11) a statement that the activities of the VEP participant on the premises will conform to the regulations and requirements of the organization;

(12) a statement that the VEP participant will not improperly use or disclose any non-public information, to include any pre-decisional or draft deliberative information related to DoD programming, budgeting, resourcing, acquisition, procurement or other matter, for the benefit or advantage of the Volunteer Expert or any non-Federal entities. VEP participants will handle all non-public information in a manner that reduces the possibility of improper disclosure;

(13) a statement that the VEP participant agrees to disclose any inventions made in the course of work performed at the STRL. The STRL will have the option to obtain title to any such invention on behalf of the U.S. Government. Should the STRL Director elect not to take title, the STRL will retain a non-exclusive, irrevocable, paid up, royalty-free license to practice or have practiced the invention worldwide on behalf of the U.S. Government;

(14) a statement that the VEP participant must complete either a Confidential or Public Financial Disclosure Report, whichever applies; a disqualification statement prohibiting the VEP participant from working on matters related to his or her former employer; and ethics training in accordance with Office of Government Ethics regulations prior to implementation of the written agreement; and

(15) a statement that the VEP participant must receive post-government employment advice from a DoD ethics counselor at the conclusion of program participation. VEP participants are deemed Federal employees for purposes of post-government employment restrictions.

A written Memorandum of Agreement (MOA) between the STRL and the VEP participant is required and must include all items above, regardless of format used. The use and wording of the MOA will be provided in the internal operating procedures of the STRL.

As part of an annual program evaluation, STRLs will provide specific information concerning the use of this authority to the Director, Laboratories and Personnel Office.

Due to circumstances beyond the control of the Department of Defense, the Board of Regents, Uniformed Services University of the Health Sciences was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the meeting on February 4, 2020 of the Board of Regents, Uniformed Services University of the Health Sciences. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.

This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix), the Government in the Sunshine Act (5 U.S.C. 552b), and 41 CFR 102-3.140 and 102-3.150.

Purpose of the Meeting: The purpose of the meeting is to provide advice and recommendations to the Secretary of Defense, through the USD(P&R), on academic and administrative matters critical to the full accreditation and successful operation of USU. These actions are necessary for USU to pursue its mission, which is to educate, train and comprehensively prepare uniformed services health professionals, officers, scientists, and leaders to support the Military and Public Health Systems, the National Security and National Defense Strategies of the United States, and the readiness of our Uniformed Services.

Agenda: The schedule includes recommendations for degree conferrals, faculty appointments and promotions, and faculty awards presented by the deans of USU's schools and colleges; a report by the USU President on recent actions affecting academic and operational aspects of USU; a report from the Assistant Secretary of Defense for Health Affairs about the Military Health System; a member report covering an academics summary (consisting of submissions from the School of Medicine, Graduate School of Nursing, Postgraduate Dental College, and College of Allied Health Sciences); a member report covering a finance and administration summary (consisting of submissions from the Senior Vice President Campus South, Senior Vice President Campus West, Armed Forces Radiobiology Research Institute, and Office of the Vice President for Research); and additional reports to the Board from the Office of Accreditation and Organizational Assessment, Office of the Registrar, and the Office of the Vice President for Finance and Administration. Reviews of administrative matters of general consent ( e.g., minute's approval, degree conferrals, faculty appointments and promotions, award recommendations, etc.) electronically voted on since the previous Board meeting on November 5, 2019 due to suspense requirements will presented. A closed session will be held following the open session to discuss active investigations and personnel actions.

Meeting Accessibility: Pursuant to Federal statutes and regulations (5 U.S.C. Appendix, 5 U.S.C. 552b, and 41 CFR 102-3.140 through 102-3.165) and the availability of space, the meeting is open to the public from 8:00 a.m. to 11:05 a.m. Seating is on a first-come basis. Members of the public wishing to attend the meeting should contact Sarah Marshall no later than five business days prior to the meeting at the address and phone number noted in the FOR FURTHER INFORMATION CONTACT section. Pursuant to 5 U.S.C. 552b(c)(2, 5-7), the DoD has determined that the portion of the meeting from 11:15 a.m. to 12:00 p.m. shall be closed to the public. The USD(P&R), in consultation with the DoD Office of General Counsel, has determined in writing that this portion of the Board's meeting will be closed as the discussion will disclose sensitive personnel information, will include matters that relate solely to the internal personnel rules and practices of the agency, will involve allegations of a person having committed a crime or censuring an individual, and may disclose investigatory records compiled for law enforcement purposes.

Written Statements: Pursuant to section 10(a)(3) of the FACA and 41 CFR 102-3.140, the public or interested organizations may submit written comments to the Board about its approved agenda pertaining to this meeting or at any time regarding the Board's mission. Individuals submitting a written statement must submit their statement to the DFO at the address listed in the FOR FURTHER INFORMATION CONTACT section. Written statements that do not pertain to a scheduled meeting of the Board may be submitted at any time. If individual comments pertain to a specific topic being discussed at the planned meeting, then these statements must be received at least five calendar days prior to the meeting. Otherwise, the comments may not be provided to or considered by the Board until a later date. The DFO will compile all timely submissions with the Board's Chair and ensure such submissions are provided to Board Members before the meeting.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Student Assistance General Provision—Subpart E—Verification Student Aid Application Information.

OMB Control Number: 1845-0041.

Type of Review: A revision of an existing information collection.

Respondents/Affected Public: Private Sector; Individuals or Households; State, Local, and Tribal Governments.

Total Estimated Number of Annual Responses: 25,180,342.

Total Estimated Number of Annual Burden Hours: 4,048,184.

Abstract: This request is for a revision of the information collection supporting the policies and reporting requirements contained in Subpart E of Part 668—Verification and Updating of Student Aid Application Information. Sections 668.53, 668.54, 668.55, 668.56, 668.57, 668.59 and 668.61 contain information collection requirements (OMB control number 1845-0041). This subpart governs the verification and updating of the Free Application for Federal Student Aid used to calculate an applicant's Expected Family Contribution for purposes of determining an applicant's need for student financial assistance under Title IV of Higher Education Act of 1965, as amended. The collection of this documentation helps ensure that students (and parents in the case of PLUS loans) receive the correct amount of Title IV program assistance by providing accurate information to calculate an applicant's expected family contribution. There has been no change to the regulatory language.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Student Assistance General Provisions—Subpart J—Approval of Independently Administered Tests.

OMB Control Number: 1845-0049.

Type of Review: An extension of an existing information collection.

Respondents/Affected Public: Private Sector; Individuals or Households; State, Local, and Tribal Governments.

Total Estimated Number of Annual Responses: 48,779.

Total Estimated Number of Annual Burden Hours: 6,340.

Abstract: This request is for an extension without change of the approval for the reporting and recordkeeping requirements that are contained in the information collection 1845-0049 for Student Assistance General Provision in the regulations in Subpart J—Approval of Independently Administered Tests; Specification of Passing Score; Approval of State Process. There are no forms or formats established by the Department for the reporting or recordkeeping requirements. These regulations govern the application for and approval by the Secretary of assessments by a private test publisher or State that are used to measure a student's skills and abilities. The administration of approved ability to benefit (ATB) tests may be used to determine a student's eligibility for assistance for the Title IV student financial assistance programs authorized under the Higher Education Act of 1965, as amended (HEA) when, among other conditions, the student does not have a high school diploma or its recognized equivalent. The language of the current statute and regulations have not changed.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Cash Management Contract URL Collection.

OMB Control Number: 1845-0147.

Type of Review: An extension of an existing information collection.

Respondents/Affected Public: Private Sector; State, Local, and Tribal Governments.

Total Estimated Number of Annual Responses: 552.

Total Estimated Number of Annual Burden Hours: 45.

Abstract: The Department of Education (the Department) is seeking to renew OMB control number 1845-0147 for the collection of URLs hosting institutional contracts and contract data relating to campus banking agreements. The Department has created a Cash Management Contract electronic form to allow institutions to report their contract and contract URL to the Department. The Department has also created a central repository for the information provided by the institution that includes the contract data and the web addresses that is publicly available for research and comparison purposes. Both of these are located on studentaid.gov. The database allows interested parties, such as students, families, press, institutions, and researchers to easily access and compare banking agreements available at different institutions.

Full Text of Announcement I. Funding Opportunity Description

Purpose of Program: The Training Program provides grants to train the staff and leadership personnel employed in, participating in, or preparing for employment in, projects funded under the Federal TRIO Programs, so as to improve the operation of these projects.

Priorities: This notice contains six absolute priorities and three invitational priorities. In accordance with 34 CFR 75.105(b)(2)(iv) and 34 CFR 75.105(b)(2)(ii), the absolute priorities are from section 402G(b) of the Higher Education Act of 1965, as amended (HEA), the regulations for this program at 34 CFR 642.24, and the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the Federal Register on March 2, 2018 (83 FR 9096) (Supplemental Priorities).

Absolute Priorities: For FY 2020 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are absolute priorities. Under 34 CFR 75.105(c)(3), we consider only applications that meet one of these absolute priorities.

In accordance with 34 CFR 642.7, each application must clearly identify the specific absolute priority for which a grant is requested. An applicant must submit a separate application for each absolute priority it proposes to address. If an applicant submits more than one application for the same absolute priority, we will accept only the application with the latest “date/time received” validation.

These priorities are:

Absolute Priority 1. Training to improve reporting of student and project performance and the evaluation of project performance in order to design and operate a model project funded under the Federal TRIO Programs.

Estimated number of awards: 2.

Maximum award amount: $287,537.

Absolute Priority 2. Training on budget management and the statutory and regulatory requirements for operation of projects funded under the Federal TRIO Programs.

Estimated number of awards: 2.

Maximum award amount: $287,537.

Absolute Priority 3. Training on assessment of student needs; retention and graduation strategies; and the use of appropriate educational technology in the operation of projects funded under the Federal TRIO programs.

Estimated number of awards: 1.

Maximum award amount: $373,799.

Absolute Priority 4. Training on assisting students in receiving adequate financial aid from programs assisted under title IV of the HEA and from other programs, on college and university admissions policies and procedures, and on supporting instruction in personal financial literacy, knowledge of markets and economics, knowledge of higher education financing and repayment ( e.g., college savings and student loans), or other skills aimed at building personal financial understanding and responsibility.

Estimated number of awards: 2.

Maximum award amount: $287,537.

Absolute Priority 5. Training on strategies for recruiting and serving hard to reach populations, including students who are limited English proficient, students from groups that are traditionally underrepresented in postsecondary education, students with disabilities, students who are homeless children and youths (as this term is defined in section 725 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a)), students who are in foster care or are aging out of the foster care system, or other disconnected students.

Estimated number of awards: 1.

Maximum award amount: $373,799.

Absolute Priority 6. Training on general project management for new project directors who have been in their positions less than two years, including training on the content of absolute priorities 1 through 5. The training should provide new directors with the basic tools required to be a successful TRIO project director.

Estimated number of awards: 2.

Maximum award amount: $318,803.

Under this competition we are particularly interested in applications that address the following priorities.

Invitational Priorities: For FY 2020 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are invitational priorities. Under 34 CFR 75.105(c)(1), we do not give an application that meets these invitational priorities a competitive or absolute preference over other applications.

These priorities are:

Invitational Priority 1:

Applications that propose projects designed to address one or more of the following priority areas:

(a) Implementing strategies that ensure education funds are spent in a way that increases their efficiency and cost-effectiveness, including by reducing waste or achieving better outcomes.

(b) Supporting training aligned with innovative strategies or research that have the potential to lead to significant and wide-reaching improvements in the delivery of educational services.

(c) Reducing compliance burden within the grantee's operations (including the burden on partners working to achieve grant objectives or being served by the grant) in a manner that decreases paperwork or staff time spent on administrative functions, or other operational changes that help education providers to save money, benefit more students, or improve results.

Invitational Priority 2:

Applications that propose projects designed to assist TRIO grantees with the ongoing implementation of the evidence-based strategies they proposed in their approved applications for the Talent Search Program notice inviting applications published in the Federal Register on December 12, 2015 (80 FR 79574); the Educational Opportunity Centers notice inviting applications published in the Federal Register on February 2, 2016 (81 FR 5425); the Upward Bound Program notice inviting applications published in the Federal Register on December 17, 2016 (81 FR 71492); the Upward Bound Math and Science Program notice inviting applications published in the Federal Register on February 10, 2017 (82 FR 10348); the Ronald E. McNair Postbaccalaureate Achievement Program notice inviting applications published in the Federal Register on February 21, 2017 (82 FR 11196); the Veterans Upward Bound Program notice inviting applications published in the Federal Register on May 22, 2017 (82 FR 23215); and the Student Support Services notice inviting applications published on December 17, 2019 (84 FR 68915).

Invitational Priority 3:

Applications that propose projects designed to support programs that lead to recognized postsecondary credentials (as defined in section 3(52) of the Workforce Innovation and Opportunity Act) or skills that align with the skill needs of industries in the State or regional economy involved for careers in science, technology, engineering, and math fields, including computer science.

Program Authority: 20 U.S.C. 1070a-11 and 1070a-17.

Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75 (except for 75.215 through 75.221), 77, 79, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The regulations for this program in 34 CFR part 642.

Note: The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian Tribes.

Note: The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.

Type of Award: Discretionary grants.

Estimated Available Funds: We intend to use an estimated $3,110,426 for new TRIO Training awards under this competition. The President's Budget for FY 2020 requested $950,000,000 for the Administration's proposal to reform the Federal TRIO Programs. The actual level of funding and changes to the program, if any, depend on final congressional action. However, we are inviting applications to allow enough time to complete the grant process if Congress appropriates funds for the Federal TRIO Programs.

Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2021 from the list of unfunded applications from this competition.

Estimated Range of Awards: $287,537-$373,799.

Estimated Average Size of Awards: $311,043.

Maximum Award and Minimum Participants: We will not make an award exceeding the maximum award amount listed here for a single budget period of 12 months. Projects proposed under each absolute priority also must propose to serve the minimum number of applicable participants listed here.

Under Absolute Priorities 1, 2, and 4, the maximum award amount is $287,537 and the minimum number of participants is 231. Under Absolute Priorities 3 and 5, the maximum award amount is $373,799 and the minimum number of participants is 300. Under Absolute Priority 6, the maximum award amount is $318,803 and the minimum number of participants is 256.

Estimated Number of Awards: 10.

Note: The Department is not bound by any estimates in this notice.

Project Period: Up to 24 months.

1. Eligible Applicants: IHEs and other public and private nonprofit institutions and organizations.

2. Cost Sharing or Matching: This program does not require cost sharing or matching.

3. Subgrantees: A grantee under this competition may not award subgrants to entities to directly carry out project activities described in its application.

1. Application Submission Instructions: Applicants are required to follow the Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 13, 2019 (84 FR 3768) and available at www.govinfo.gov/content/pkg/FR-2019-02-13/pdf/2019-02206.pdf, which contain requirements and information on how to submit an application.

2. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this program.

3. Funding Restrictions: We specify unallowable costs in 34 CFR 642.31. We reference additional regulations outlining funding restrictions in the Applicable Regulations and Application Review Information sections of this notice.

4. Recommended Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative, which includes the budget narrative and invitational priorities, to no more than 55 pages and (2) use the following standards:

• A “page” is 8.5″ x 11″, on one side only, with 1″ margins.

• Double space all text in the application narrative, and single space titles, headings, footnotes, quotations, references, and captions.

• Use a 12-point font.

• Use an easily readable font such as Times New Roman, Courier, Courier New, or Arial.

Note: Applications that do not follow the page limit and formatting recommendations will not be penalized.

The recommended page limit does not apply to Part I, the Application for Federal Assistance face sheet (SF 424); Part II, the Budget Information Summary form (ED Form 524); Part III-A, the Program Profile form; Part III-B, the one-page Project Abstract form; or Part IV, the Assurances and Certifications. The recommended page limit also does not apply to a table of contents, which we recommend that you include in the application narrative.

5. Content and Form of Application Submission: You should indicate the absolute priority addressed in your application both on the one-page abstract and on the Training Program Profile Sheet. You must include your complete response to the selection criteria and absolute priority in the application narrative. Other requirements concerning the content of an application, together with the forms you must submit, are in the application package for this program.

1. Selection Criteria: The selection criteria for this program are from 34 CFR 642.21 and are as follows:

(a) Plan of operation. (20 points)

(1) The Secretary reviews each application for information that shows the quality of the plan of operation for the project.

(2) The Secretary looks for information that shows—

(i) High quality in the design of the project;

(ii) An effective plan of management that ensures proper and efficient administration of the project;

(iii) A clear description of how the objectives of the project relate to the purpose of the program;

(iv) The way the applicant plans to use its resources and personnel to achieve each objective; and

(v) A clear description of how the applicant will provide equal access and treatment for eligible project participants who are members of groups that have been traditionally underrepresented, such as—

(A) Members of racial or ethnic minority groups;

(B) Women;

(C) Individuals with disabilities; and

(D) The elderly.

(b) Quality of key personnel. (20 points)

(1) The Secretary reviews each application for information that shows the qualifications of the key personnel the applicant plans to use on the project.

(2) The Secretary looks for information that shows—

(i) The qualifications of the project director;

(ii) The qualifications of each of the other key personnel to be used in the project;

(iii) The time that each person referred to in paragraphs (b)(2)(i) and (ii) of this section plans to commit to the project; and

(iv) The extent to which the applicant, as part of its nondiscriminatory employment practices, encourages applications for employment from persons who are members of groups that have been traditionally underrepresented, such as—

(A) Members of racial or ethnic minority groups;

(B) Women;

(C) Individuals with disabilities; and

(D) The elderly.

(3) To determine the qualifications of a person, the Secretary considers evidence of past experience and training, in fields related to the objectives of the project, as well as other information that the applicant provides.

(c) Budget and cost effectiveness. (10 points)

(1) The Secretary reviews each application for information that shows that the project has an adequate budget and is cost effective.

(2) The Secretary looks for information that shows—

(i) The budget for the project is adequate to support the project activities; and

(ii) Costs are reasonable in relation to the objectives of the project.

(d) Evaluation plan. (10 points)

(1) The Secretary reviews each application for information that shows the quality of the evaluation plan for the project.

(2) The Secretary looks for information that shows methods of evaluation that are appropriate for the project and, to the extent possible, are objective and produce data that are quantifiable.

(e) Adequacy of resources. (15 points)

(1) The Secretary reviews each application for information that shows that the applicant plans to devote adequate resources to the project.

(2) The Secretary looks for information that shows—

(i) The facilities that the applicant plans to use are adequate; and

(ii) The equipment and supplies that the applicant plans to use are adequate.

2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary also may consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

In addition, in making a competitive grant award, the Secretary requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

For this competition, a panel of non-Federal reviewers will review each application in accordance with the selection criteria in 34 CFR 642.21. The individual scores of the reviewers will be added and the sum divided by the number of reviewers to determine the peer review score received in the review process. Additionally, in accordance with 34 CFR 642.22, the Secretary will award prior experience points to eligible applicants by evaluating the applicant's current performance under its expiring Training Program grant. Pursuant to 34 CFR 642.22(b)(1), if there are insufficient funds to fund all applications with the same peer review score within a particular absolute priority, prior experience points, if any, will be added to the averaged peer review score to determine the total score for each application.

Under section 402A(c)(3) of the HEA, the Secretary is not required to make awards under the Training Program in the order of the scores received.

In the event a tie score still exists after applying prior experience points, the Secretary will select for funding the applicant that has the greatest capacity to provide training to eligible participants in all regions of the Nation in order to assure accessibility to the greatest number of prospective training participants, consistent with 34 CFR 642.20(e).

3. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.205, before awarding grants under this program the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose specific conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $250,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through the System for Award Management. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.

1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

If your application is not evaluated or not selected for funding, we notify you.

2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

3. Open Licensing Requirements: Unless an exception applies, if you are awarded a grant under this competition, you will be required to openly license to the public grant deliverables created in whole, or in part, with Department grant funds. When the deliverable consists of modifications to pre-existing works, the license extends only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of pre-existing works. Additionally, a grantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20.

4. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html .

(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

5. Performance Measures: The success of the Training Program is measured by its cost-effectiveness based on the number of TRIO project personnel receiving training each year; the percentage of Training Program participants that, each year, indicate the training as benefiting them in increasing their qualifications and skills in meeting the needs of disadvantaged students; and the percentage of Training Program participants that, each year, indicate the training as benefiting them in increasing their knowledge and understanding of the Federal TRIO Programs. All grantees will be required to submit an annual performance report documenting their success in training personnel working on TRIO-funded projects, including the average cost per trainee and the trainees' evaluations of the effectiveness of the training provided. The success of the Training Program also is assessed on the quantitative and qualitative outcomes of the training projects based on project evaluation results.

6. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things: Whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee's approved application.

In making a continuation grant, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to one of the program contact persons 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 Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

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

In accordance with Title 10 of the Code of Federal Regulations (10 CFR 430.27(f)(2)), DOE gives notice of the issuance of its Decision and Order as set forth below. The Decision and Order grants BWC a waiver from the applicable test procedure at 10 CFR part 430, subpart B, appendix E for a specified basic model of consumer water heaters, and provides that BWC must test and rate such products using the alternate test procedure specified in the Decision and Order. BWC's representations concerning the energy efficiency of the specified basic model must be based on testing according to the provisions and restrictions in the alternate test procedure set forth in the Decision and Order, and the representations must fairly disclose the test results. Distributors, retailers, and private labelers are held to the same requirements when making representations regarding the energy efficiency of these products. (42 U.S.C. 6293(c)).

Consistent with 10 CFR 430.27(j), not later than March 31, 2020, any manufacturer currently distributing in commerce in the United States products employing a technology or characteristic that results in the same need for a waiver from the applicable test procedure must submit a petition for waiver. Manufacturers not currently distributing such products in commerce in the United States must petition for and be granted a waiver prior to the distribution in commerce of such products in the United States. 10 CFR 430.27(j). Manufacturers may also submit a request for interim waiver pursuant to the requirements of 10 CFR 430.27.

The Energy Policy and Conservation Act, as amended (EPCA), 1 authorizes the U.S. Department of Energy (DOE) to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency for certain types of consumer products. These products include consumer water heaters, the focus of this document. (42 U.S.C. 6292(a)(4))

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for consumer water heaters is contained in the Code of Federal Regulations (CFR) at 10 CFR part 430, subpart B, appendix E: Uniform Test Method for Measuring the Energy Consumption of Water Heaters (appendix E).

Any interested person may submit a petition for waiver from DOE's test procedure requirements. 10 CFR 430.27(a)(1). DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures. Id.

By letter dated July 3, 2019, BWC filed a petition for waiver and a petition for interim waiver from the test procedure for consumer water heaters set forth at appendix E. 3 The test procedure for water heaters includes a 24-hour Simulated Use Test (SUT) which consists of a series of hot water draws and standby periods during which the energy consumption of the water heater is measured. For storage-type water heaters, as the stored hot water loses heat through hot water draws and standby losses, the heat source ( e.g., the burner, heat pump, electric heating element) will turn on or “cut-in” to heat water within the tank as needed to maintain the setpoint temperature of the thermostat. Once the thermostat is satisfied, the heat source will turn off or “cut-out.” The time during which the heat source is on is referred to as a “recovery period” because the water heater is recovering the heat lost from the stored water. The first recovery period of the 24-hour SUT is used to determine the “recovery efficiency” of the water heater, which impacts the overall measure of efficiency ( i.e., the uniform energy factor (UEF)). BWC stated that for gas and heat pump storage-type consumer water heaters for which the first cut-out of the 24-hour SUT occurs in the middle of one of the draws, the use of average water temperatures in the DOE test procedure calculation for recovery efficiency artificially inflates the determined energy delivered from the system. BWC asserted that this yields an artificially higher recovery efficiency and results in a lower overall UEF. In support of its waiver request, BWC submitted test data for an individual model based on the platform of the basic model for which BWC seeks a waiver.

On October 8, 2019, DOE published a notice that announced its receipt of the petition for waiver and granted BWC an interim waiver. 84 FR 53710 (Notice of Petition for Waiver). In the Notice of Petition for Waiver, DOE reviewed BWC's description of the issue and suggested alternative test method, as well as test data submitted by BWC. DOE initially agreed with the petitioner's claim that the test procedure at appendix E would test the model in a manner that is unrepresentative of its energy use. DOE also agreed generally that the suggested alternative test method would result in a more accurate calculation of recovery efficiency in those instances in which the first cut-out occurs during a draw, and avoids artificial inflating of the recovery efficiency (thereby resulting in a lower UEF value) that occurs using the calculation in DOE's current test procedure. Because BWC's petition for waiver stated that the issue may not occur for every individual model within a basic model designation, in the interim waiver that DOE granted, DOE modified the suggested alternate test procedure to specify that the alternate calculation applies only if the first cut-out of the 24-hour SUT occurs during a hot water draw during testing. Specifically, the interim waiver required the basic model to be tested to appendix E, except that in the event of such occurrence, the interim waiver provided alternative provisions for section 6.3.2 of appendix E. 84 FR 53710, 53712- 53713 (Oct. 8, 2019). The alternative provisions to section 6.3.2 added a new section 6.3.2.2 which included an equation for recovery efficiency to be used if the first cut-out occurs during a draw. The equation in section 6.3.2.2 used a summation of the energy removed from the tank via hot water for each individual draw, rather than average values across the draws. Id.

In the Notice of Petition for Waiver, DOE also solicited comments from interested parties on all aspects of the petition and the specified alternate test procedure. Id. at 84 FR 53713-53714. DOE received two substantive comments in response to the Notice of Petition for Waiver, one from Rheem Manufacturing Company (Rheem), and the other from Jim Lutz (Lutz). 4

Rheem acknowledged the issue identified by BWC and supported the use of the equation provided in the alternate test procedure, stating that it provides for a more accurate measurement of efficiency and determination of UEF. (Rheem, No. 3 at p. 1) Rheem also stated that this issue is not unique to the model specified by BWC, and that the problem is related to the measurement conditions in appendix E, rather than the result of specific design attributes. ( Id. ) Rheem stated that a broad range of characteristics contribute to cut-in and cut-out timing and recovery duration, such as input rate, efficiency, heater geometry, and temperature control and response. (Rheem, No. 3, pp. 1-2) Rheem stated that, based on its analysis, a typical gas storage or heat pump storage water heater could terminate recovery after several draws. ( Id. ) Therefore, Rheem recommended that the waiver not be approved but instead that DOE act to amend the test procedure to correct and improve the issues related to the model in the waiver and the other model types identified by Rheem. (Rheem, No. 3, p. 2) Although Rheem acknowledged that other manufacturers experiencing the same issue can also request a waiver, it stated that such process is not expedient nor practical to do so on a model by model basis; accordingly, the commenter reasoned that, unless the test procedure is amended, granting the waiver would create a competitive disadvantage for other manufacturers facing the same issue. ( Id. )

As discussed in the Notice of Petition for Waiver and in this document, the issue identified by BWC occurs when, due to a design characteristic (or characteristics), a consumer water heater cuts-out during a draw. 84 FR 53710, 53711 (Oct. 8, 2019). As such, the basic model specified by BWC in its petition contains one or more design characteristics which cause the prescribed test procedures to evaluate the basic model in a manner so unrepresentative of its true energy and/or water consumption characteristics as to provide materially inaccurate comparative data. See 10 CFR 430.27(a)(1). Where the relevant showing has been made under 10 CFR 430.27, a petitioner, such as BWC, is entitled to waiver relief from the applicable DOE test procedure.

While other consumer water heater basic models may encounter similar issues to those experienced by the model identified by BWC, DOE does not have information indicating that consumer water heaters typically experience a cut-out in the middle of a hot water draw. Rather, because hot water is usually removed from the tank at a rate faster than the heater can recover, the heat source ( e.g., burner) typically stays on for the duration of the draw and until after the hot water draw has terminated to achieve the required setpoint. 5

Regarding Rheem's concern about the impacts of granting the subject waiver on similarly situated manufacturers, DOE notes that its regulations already address such concerns. More specifically, the DOE regulations at 10 CFR 430.27(j) provide that within 60 days after the date of this waiver, any manufacturer currently distributing in commerce in the United States a product employing a technology or characteristic that results in the same need for a waiver is to submit a petition for waiver pursuant to the requirements of 10 CFR 430.27. Manufacturers not currently distributing such products in commerce in the United States must petition for and be granted a waiver prior to distribution in commerce in the United States. 10 CFR 430.27(j). Manufacturers may also submit a request for interim waiver. Id. Further, the regulations provide that as soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver, and as soon thereafter as practicable, DOE will publish in the Federal Register a final rule. 10 CFR 430.27(l).

Lutz suggested a wording change to the definition of the first recovery period in the definition of the variable “N r ” in the alternate test procedure. In the interim waiver, DOE defined “N r ” as follows:

Lutz recommended that, rather than define the first recovery period as starting when the main burner is lit (“cut-in”), it should be defined as starting at the beginning of the test. Lutz stated that this change would capture any energy in water removed in draws before the cut-in if it does not occur in the first draw, which should be included in the calculation of recovery efficiency. (Lutz, No. 2 at p. 1)

DOE notes that “recovery efficiency” is defined in section 1.10 of appendix E as “the ratio of energy delivered to the water to the energy content of the fuel consumed by the water heater.” Since the initial recovery would replace heat removed from the water heater during draws prior to that first recovery (when applicable), DOE agrees it is appropriate to capture the energy delivered during the first draw. Further, section 1.13 of appendix E defines Q r , which is used in the calculation of recovery efficiency, as the energy consumption of the water heater from the beginning of the test to the end of the first recovery period following the first draw, which may extend beyond subsequent draws. Therefore, the DOE test procedure already accounts for the energy consumed from the start of the test to the end of the first recovery period, so DOE is adopting this slight change, as suggested by Lutz.

Lutz also recommended that the alternate test procedure, including the new wording change, be applicable to all storage type water heaters. (Lutz, No. 2 p. 1) In response, the waiver process is to address a particular basic model(s) that contains one or more design characteristics which either prevent testing according to the prescribed procedures, or cause the prescribed test procedures to evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Each petition must identify the particular basic model(s) for which a waiver is requested. 10 CFR 430.27(b)(1)(i). DOE only evaluates and grants, as appropriate, a waiver for the basic model for which the waiver was requested. See 10 CFR 430.27(f)(2). A petitioner may request that DOE extend the scope of a waiver to include additional basic models employing the same technology as the basic model(s) set forth in the original petition. 10 CFR 430.27(g). As such, the regulations do not provide for issuing a broad waiver in the manner suggested by Lutz. As stated, DOE will address this issue more broadly in an update to the test procedure.

For the reasons explained here and in the Notice of Petition for Waiver, absent a waiver, the basic model identified by BWC in its petition cannot be tested and rated for energy consumption on a basis representative of its true energy consumption characteristics. DOE has reviewed the recommended alternate procedure suggested by BWC and concludes that it will allow for the accurate measurement of the energy use of the specified basic model, while alleviating the testing problems associated with BWC's implementation of DOE's applicable consumer water heaters test procedure for the specified basic model. As explained in the Notice of Interim Waiver, DOE modified the suggested alternate test procedure to specify that the alternate calculation applies only if the first cut-out of the 24-hour SUT occurs during a hot water draw during testing. In addition, as discussed, DOE is further modifying the alternate test procedure specified in the interim waiver as recommended by Lutz to define the first recovery period as beginning at the start of the test rather than at cut-in.

Thus, DOE is requiring that BWC test and rate the specified consumer water heaters basic model for which it has requested a waiver according to the alternate test procedure specified in this Decision and Order.

This Decision and Order is applicable only to the basic model listed and does not extend to any other basic models. DOE evaluates and grants waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner. BWC may request that DOE extend the scope of this waiver to include additional basic models that employ the same technology as those listed in this waiver. 10 CFR 430.27(g). BWC may also submit another petition for waiver from the test procedure for additional basic models that employ a different technology and meet the criteria for test procedure waivers. 10 CFR 430.27(a)(1).

DOE notes that it may modify or rescind the waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, BWC may request that DOE rescind or modify the waiver if the company discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).

As explained above, the test procedure specified in this Decision and Order is not exactly the same as the alternate test procedure offered by BWC. If BWC believes that the alternate test method it suggested provides representative results and is less burdensome than the test method required by this Decision and Order, BWC may submit a request for modification under 10 CFR 430.27(k)(2) that addresses the concerns that DOE has identified with that procedure. BWC may also submit another less burdensome alternative test procedure not expressly considered in this notice under that same provision of DOE's regulations.

In accordance with 10 CFR 430.27(f)(2), DOE consulted with the Federal Trade Commission (FTC) staff concerning the BWC petition for waiver.

After careful consideration of all the material that was submitted by BWC and comment received in this matter, it is ordered that:

(1) BWC must, as of the date of publication of this Order in the Federal Register , test and rate the following “BRADFORD WHITE” and “JETGLAS” branded consumer water heaters basic model with the alternate test procedure as set forth in paragraph (2):

(2) The alternate test procedure for the BWC basic model referenced in paragraph (1) of this Order is the test procedure for consumer water heaters prescribed by DOE at 10 CFR part 430, subpart B, appendix E, except for Section 6.3.2 (which is modified as detailed below). All other requirements of appendix E and DOE's regulations remain applicable.

The changes to section 6.3.2 of Appendix E read as follows:

6.3.2  Recovery Efficiency.

6.3.2.1 Except as provided in section 6.3.2.2 of this Appendix, the recovery efficiency for gas storage-type water heaters, η r , is computed as:

6.3.2.2 For gas storage-type water heaters, if the first cut-out occurs during a draw, the recovery efficiency, η r , is computed as:

(3) Representations. BWC must make representations about the efficiency of the basic model listed in paragraph (1) of this Order for compliance, marketing, or other purposes only to the extent that the basic model has been tested in accordance with the provisions in this alternate test procedure and such representations fairly disclose the results of such testing.

(4) This waiver shall remain in effect according to the provisions of 10 CFR 430.27.

(5) This waiver is issued on the condition that the statements, representations, and documents provided by BWC are valid. If BWC makes any modifications to the controls or configurations of this basic model, the waiver will no longer be valid, and BWC will either be required to use the current Federal test method or submit a new application for a test procedure waiver. DOE may rescind or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of a basic model's true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, BWC may request that DOE rescind or modify the waiver if BWC discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).

(6) BWC remains obligated to fulfill any certification requirements set forth at 10 CFR part 429.

In accordance with Title 10 of the Code of Federal Regulations (10 CFR 431.401(f)(2)), DOE gives notice of the issuance of its Decision and Order as set forth below. The Decision and Order grants Signify a waiver from the applicable test procedure at 10 CFR 431.204 for specified basic models of illuminated exit signs, and requires that Signify test and rate such equipment using the alternate test procedure specified in the Decision and Order. Signify's representations concerning the energy consumption of the specified basic models must be based on testing according to the provisions and restrictions in the alternate test procedure set forth in the Decision and Order, and the representations must fairly disclose the test results. Distributors, retailers, and private labelers are held to the same requirements when making representations regarding the energy consumption of this equipment. (42 U.S.C. 6293(c))

Consistent with 10 CFR 431.401(j), not later than March 31, 2020, any manufacturer currently distributing in commerce in the United States equipment employing a technology or characteristic that results in the same need for a waiver from the applicable test procedure must submit a petition for waiver. Manufacturers not currently distributing such equipment in commerce in the United States must petition for and be granted a waiver prior to the distribution in commerce of that equipment in the United States. Manufacturers may also submit a request for interim waiver pursuant to the requirements of 10 CFR 431.401.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes the U.S. Department of Energy (“DOE”) to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency for certain types of consumer products. These products include illuminated exit signs, the focus of this document. (42 U.S.C. 6291(37); 42 U.S.C. 6295(w))

Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), energy conservation standards (42 U.S.C. 6295), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that product (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect the energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for illuminated exit signs is contained in the Code of Federal Regulations (“CFR”) at 10 CFR 431.204, “Uniform test method for the measurement of energy consumption of illuminated exit signs.”  3

Under 10 CFR 430.401(a)(1), any interested person may submit a petition for waiver from DOE's test procedure requirements. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 431.401(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures. Id.

As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. 10 CFR 431.401(l) As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. Id.

When DOE amends the test procedure to address the issues presented in a waiver, the waiver will automatically terminate on the date on which use of that test procedure is required to demonstrate compliance. 10 CFR 431.401(h)(2).

On March 5, 2019, Signify filed a petition for waiver from the illuminated exit sign test procedure set forth at 10 CFR 431.204. On April 4, 2019, Signify submitted an updated petition, identifying additional basic models. 4 In its petition, Signify requested a waiver for certain “Chloride by Signify” and “Chloride” branded basic models of illuminated exit signs, typically known as combination exit signs ( i.e., they include components such as egress/emergency lighting that require a larger battery than do exit signs that do not have these components). 5 Signify contended that the design characteristics of these basic models prevent testing in accordance with the DOE test procedure. Noting that DOE's test method measures the input power required to illuminate the exit signage, Signify stated that the test procedure does not contemplate basic models that include emergency egress lighting, and that the design of its basic models that incorporate emergency lighting does not allow for a separate measurement of power associated with only the exit signage portion of the models.

Signify requested that it be permitted to use of the alternate test method as specified in the DOE Waiver Decision and Order granted to Acuity Brands Lighting, Inc. (“Acuity”) for certain illuminated exit sign basic models (Case Number IES-001; hereafter, “Acuity Waiver D&O”) 83 FR 11740 (March 16, 2018). Specifically, this alternate method requires the following procedure: Measure the input power of an equivalent non-combination illuminated exit sign, per the DOE test procedure, and assign the measured input power to the basic model at issue. Id. 83 FR 11742. An equivalent non-combination illuminated exit sign is one in which the electricity-consuming components are identical to all of those of the unit whose input power demand is being determined, but does not include any auxiliary features, and contains an electrically connected battery. Signify stated that the basic models for which the waiver is requested have equivalent non-combination illuminated exit sign basic models.

On August 26, 2019, DOE published a notice that announced its receipt of the petition for waiver (“Notice of Petition for Waiver”). 84 FR 44607. In the Notice of Petition for Waiver, based on a review of product specification sheets, DOE determined that six of the basic models specified by Signify are not combination illuminated exit signs, and therefore would not be subject to any waiver, if granted. Id. at 84 FR 44608. DOE determined that the other basic models specified by Signify are combination illuminated exit signs and provide the dual function of exit signage and lighting for emergency egress. Id. Based on DOE's review of combination exit sign circuitry, DOE tentatively determined that measuring only the input power attributable to illumination of the exit signage is either not possible, or that doing so would require destructive disassembly such as cutting of wires and modifying the circuitry of the combination exit sign, thereby altering the product being tested. Id.

DOE identified equivalent non-combination illuminated exit sign basic models for the combination illuminated exit sign basic models identified in Signify's waiver. DOE also reviewed Signify's suggested use of the alternate test method set forth in the Acuity Waiver D&O that involves testing equivalent non-combination illuminated exit signs. In the Notice of Petition for Waiver, DOE proposed an alternate test procedure substantively similar to alternate test procedure forth in the Acuity Waiver D&O. Id. at 84 FR 44609. Additional language was included to define further “equivalent non-combination unit” and to require explicitly the testing of equivalent units as required by the applicable DOE test procedure. Id.

In the Notice of Petition for Waiver, DOE solicited comments from interested parties on all aspects of the petition and the specified alternate test procedure. Id. DOE received no comments in response to the Notice of Petition for Waiver.

For the reasons explained here and in the Notice of Petition for Waiver, absent a waiver the basic models that are combination illuminated exit signs identified by Signify in its petition cannot be tested and rated for energy consumption on a basis representative of their true energy consumption characteristics. DOE has reviewed the procedure suggested by Signify and concludes that it will allow for the accurate measurement of the energy use of the basic models, while alleviating the testing problems associated with Signify's implementation of DOE's applicable illuminated exit sign test procedure. Thus, DOE is requiring that Signify test and rate specified combination illuminated exit sign basic models according to the alternate test procedure specified in this Decision and Order, which is identical to the procedure proposed by DOE in the Notice of Petition for Waiver. 6

Using this method, for each combination illuminated exit sign unit selected, Signify must assign the measured input power demand of a separate corresponding equivalent non-combination unit. For example, if DOE regulations require testing of two units, Signify must identify and measure the input power demand of two equivalent non-combination units, and assign the measured input power of each unit to each of the two combination units, respectively. In those instances where only a single, non-combination unit is available, Signify is required to measure the input power demand of that single unit and assign the measured input power to the combination unit. See generally 10 CFR 429.48(a) and 10 CFR 429.11(b)(2).

This Decision and Order applies only to the basic models listed and does not extend to any other basic models. DOE evaluates and grants waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner. Signify may request that DOE extend the scope of this waiver to include additional basic models that employ the same technology as those listed in this waiver. 10 CFR 431.401(g). Signify may also submit another petition for waiver from the test procedure for additional basic models that employ a different technology and meet the criteria for test procedure waivers. 10 CFR 431.401(a)(1).

DOE notes that it may modify or rescind the waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.401(k)(1). Likewise, Signify may request that DOE rescind or modify the waiver if the company discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 431.401(k)(2).

In accordance with 10 CFR 430.27(f)(2), DOE consulted with Federal Trade Commission (“FTC”) staff concerning Signify's petition for waiver.

After careful consideration of all the material submitted by Signify, the various public-facing materials ( e.g., marketing materials and product specification sheets) for the units identified in the petition, in this matter, it is ordered that:

(1) Signify must, as of the date of publication of this Order in the Federal Register , test and rate the following “HZ” series basic models, under either the Chloride by Signify or Chloride brand, with the alternate test procedure as set forth in paragraph (2) of the Order:

(2) The alternate test procedure for the Signify basic models referenced in paragraph (1) of this Order is the test procedure for illuminated exit sign prescribed by DOE at 10 CFR part 431, subpart L, with the exception of the following instructions in place of 10 CFR 431.204(b): Determine the energy efficiency of each combination illuminated exit sign unit under test (“combination unit”) by conducting the test procedure, as follows:

(i) Identify a unit of a non-combination illuminated exit sign (“non-combination unit”) equivalent to the combination unit. A non-combination unit is equivalent only if it consists entirely of electricity-consuming components identical to all of those of the combination unit, but does not include any auxiliary features, and contains an electrically connected battery. The equivalent non-combination unit must also have the same manufacturer and number of faces as the combination unit.

(ii) Test the equivalent non-combination unit using the DOE test procedure at 10 CFR part 431, subpart L.

(iii) Assign the measured input power demand of the non-combination unit as the input power demand of the combination unit.

(3) Representations. Signify may not make representations about the energy use of the basic models listed in paragraph (1) of this Order for compliance, marketing, or other purposes unless the basic model has been tested in accordance with the provisions of paragraph (2) of this Order and such representations fairly disclose the results of such testing.

(4) This waiver shall remain in effect according to the provisions of 10 CFR 431.401.

(5) This waiver is issued on the condition that the statements, representations, and documents provided by Signify are valid. If Signify makes any modifications to the controls or configurations of a basic model referenced in paragraph (1) of this Order, the waiver will no longer be valid for that basic model and Signify will either be required to use the current Federal test method or submit a new application for a test procedure waiver. DOE may rescind or modify this waiver at any time if it determines that the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 431.401(k)(1). Likewise, Signify may request that DOE rescind or modify the waiver if Signify discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 431.401(k)(2).

(6) Signify remains obligated to fulfill the certification requirements set forth at 10 CFR part 429.

On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the Federal Register (70 FR 59848) and codified as part 3 of title 40 of the CFR. CROMERR establishes electronic reporting as an acceptable regulatory alternative to paper reporting and establishes requirements to assure that electronic documents are as legally dependable as their paper counterparts. Subpart D of CROMERR requires that state, tribal or local government agencies that receive, or wish to begin receiving, electronic reports under their EPA-authorized programs must apply to EPA for a revision or modification of those programs and obtain EPA approval. Subpart D provides standards for such approvals based on consideration of the electronic document receiving systems that the state, tribe, or local government will use to implement electronic reporting. Additionally, § 3.1000(b) through (e) of 40 CFR part 3, subpart D provides special procedures for program revisions and modifications to allow electronic reporting, to be used at the option of the state, tribe or local government in place of procedures available under existing program-specific authorization regulations. An application submitted under the subpart D procedures must show that the state, tribe or local government has sufficient legal authority to implement the electronic reporting components of the programs covered by the application and will use electronic document receiving systems that meet the applicable subpart D requirements.

On November 1, 2019, the Iowa Department of Natural Resources (IA DNR) submitted an application titled Iowa EASY Air (Environmental Application SYstem for Air) for revisions/modifications to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed IA DNR's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Iowa's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 60, 61, 62, 63, 64, 65, and 70 is being published in the Federal Register :

IA DNR was notified of EPA's determination to approve its application with respect to the authorized programs listed above.

A. OMB Control Number, Title, and Any Associated Form(s)

9000-0034, Examination of Records by Comptroller General and Contract Audit.

The objective of this information collection, for the examination of records by Comptroller General and contract audit, is to require contractors to maintain certain records and to ensure the Comptroller General and/or agency have access to, and the right to, examine and audit records, which includes: Books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form, for a period of three years after final payment. This information is necessary for examination and audit of contract surveillance, verification of contract pricing, and to provide reimbursement of contractor costs, where applicable. The records retention period is required by the statutory authorities at 10 U.S.C. 2313, 41 U.S.C. 4706, and 10 U.S.C. 2306, and are implemented through the following Federal Acquisition Regulation clauses: 52.214-26, Audit and Records-Sealed Bidding; 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items; and 52.215-2, Audit and Records-Negotiation. This information collection does not require contractors to create or maintain any records that the contractor does not normally maintain in its usual course of business.

Respondents: 20,678.

Total Annual Responses: 80,068.

Total Burden Hours: 80,068.

Obtaining Copies: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC 20405, telephone 202-501-4755. Please cite OMB Control No. 9000-0034, Examination of Records by Comptroller General and Contract Audit, in all correspondence.

The Project is located at 630 Sansome Street (Appraisers Building) and 555 Battery Street (U.S. Custom House), San Francisco, California. The Project involves two adjacent historical buildings in Downtown San Francisco, California—the Appraisers Building located at 630 Sansome Street, and the U.S. Custom House located at 555 Battery Street. The Project is proposed in order to improve certain systems of the Appraisers Building and U.S. Custom House up to current building code, safety standards and serviceable condition and to prolong their useful life. Both buildings contain certain building elements and building systems that, due to age, advancement in technologies, failure, or need for operational upgrades, must be addressed.

The Draft EA analyzes an Action Alternative and a No Action Alternative. The Action Alternative would repair, modify, or replace certain building improvements and systems to improve certain building systems to current building code and safety standards, as well as to prolong their useful life. The limited scope repairs would address deficiencies in the following categories: Electrical; Fire Protection; Architectural Barriers Act Accessibility Standard (ABAAS) Compliance; Curtain Walls; Windows; Roofing; Overhang Canopy; Elevators; Exterior Cladding; Sub-basement Water Intrusion; Building Systems—Mechanical & Plumbing; and Window Washing System.

Under the No Action Alternative, the limited scope repairs and alterations to the existing Appraisers Building and U.S. Custom House would not occur.