The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the release of the fly, Lophodiplosis indentata (Diptera: Cecidomyiidae), into the contiguous United States for use as a biological control agent of Melaleuca quinquenervia (Myrtaceae) (hereinafter referred to as melaleuca).

Melaleuca, a large tree native to Australia, New Caledonia, and Papua New Guinea, was imported into Florida in the late 19th century. It was planted extensively in Palm Beach, Broward, Collier, and Miami-Dade Counties. Unsuccessful treatment campaigns during the 1970s and 1980s culminated in Federal and State listing of melaleuca as a noxious weed. By the 1990s, melaleuca covered more than 200,000 hectares of wetlands in south Florida. It dramatically disrupted normal water cycles, fire cycles, disturbance recovery cycles, nutrient cycling, light availability, and tree canopy. Despite gains in controlling melaleuca using three other biological control insects ( Oxyops vitiosa, Boreioglycaspis melaleucae, and Lophodiplosis trifida ), aerial herbicides, and other control efforts, many localized areas in Florida are still overwhelmed by melaleuca.

The fly, Lophodiplosis indentata, is a gall-forming melaleuca specialist that lays eggs on new foliage of the tree. When the eggs hatch, the emerging larvae bore into leaf tissue, instigating a gall (an abnormal growth) to form around them. These galls distort young foliage and result in reduced sapling height.

A permit application has been submitted to APHIS for the purpose of releasing L. indentata into the contiguous United States for use as a biological control agent to add to the impact of the three previously released biological control agents in reducing the severity of melaleuca infestations.

APHIS' review and analysis of the proposed action are documented in detail in an environmental assessment (EA), titled “Field Release of Lophodiplosis indentata (Diptera: Cecidomyiidae), for classical biological control of Melaleuca quinquenervia (Myrtaceae), in the contiguous United States” (March 2021). We are making the EA available to the public for review and comment. We will consider all comments that we receive on or before the date listed under the heading DATES at the beginning of this notice.

The EA may be viewed on the Regulations.gov website or in our reading room (see ADDRESSES above for a link to Regulations.gov and information on the location and hours of the reading room). You may also request paper copies of the EA by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the title of the EA when requesting copies.

The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (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).

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

Title: FNS Information Collection Needs due to COVID-19.

Form Number:

OMB Number: 0584-0654.

Expiration Date: January 31, 2022.

Type of Request: Extension of a currently approved collection.

Abstract: As the Food and Nutrition Service (FNS) continues responding to the COVID-19 Coronavirus pandemic, it is implementing a number of waivers and program adjustments to ensure Americans in need can access nutrition assistance during the crisis while maintaining recommended practices.

Two pieces of legislation have detailed many of the program adjustments available to FNS. The Families First Coronavirus Response Act (Pub. L. 116-127) (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act (Pub. L. 116-136) provided a number of program adjustments and additional funding, respectively. The statutes describing these waivers and flexibilities also have reporting requirements. The Department obtained OMB approval to collect the information described in this Notice (OMB 0584-0654; expiration 1/31/2022). USDA anticipates the need to collect data beyond the expiration date and is seeking approval of this Information Collection Request in order to meet continuing information collection and reporting requirements, as well as program administration needs to implement the CARES Act.

In addition to program adjustments and waiver flexibilities authorized under the FFCRA and CARES Act, Section 12(l) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1760(l)) (NSLA) allows FNS to waive statutory and regulatory requirements established under the NSLA or Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq. ) for a State or eligible service provider administering a Child Nutrition Program (CNP). FNS issues statewide waivers under NSLA waiver authority in response to State agencies' requests to facilitate the ability for Program operators to carry out the purposes of CNPs during COVID-19-related operations. FNS has issued waivers under NSLA authority to enable program operators to operate CNPs with appropriate safety measures in place with respect to the COVID-19 pandemic. NSLA waiver authority requires States or eligible service providers in need of a waiver of program requirements to submit a detailed application that identifies the statutory or regulatory requirements to be waived. Applications must also describe any actions undertaken to remove barriers, describe the goal of the waiver to improve services, and include a description of the impediments to the efficient operation and administration of the program. States must provide notice to the public regarding each waiver request submitted to FNS, and States that receive a waiver approval of program requirements under NSLA waiver authority must submit a report on waiver implementation, including whether the waiver resulted in improved services to children.

Section 2302(a)(2) of the FFCRA allowed USDA to adjust, at the request of State agencies or by guidance in consultation with one or more State agencies, issuance methods and application and reporting requirements for the Supplemental Nutrition Assistance Program (SNAP) under the Food and Nutrition Act (FNA) of 2008, as amended, to be consistent with what is practicable under actual conditions in affected areas. Section 2302(c) of FFCRA required the Secretary of Agriculture to submit a report to Congress following the end of the public health emergency, including a description of the measures taken to address the food security needs of affected populations during the emergency, including any information or data supporting State agency requests, among other information not included in this information collection (IC).

Section 2203(a)(1) of the FFCRA allowed State agencies administering the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) to request a waiver of 17(d)(3)(C)(i) of the Child Nutrition Act of 1966 (42 U.S.C. 1786(d)(3)(C)(i)), which requires applicants be physically present in the clinic. Local agencies are required to submit a report detailing the use and benefits of this waiver within one year of use of such waiver, and State agencies are required to submit a summary report of local agency usage of waivers under this Section within 18 months. Section 2204(a)(1) gave State agencies administering WIC and the WIC Farmers Market Nutrition Program (FMNP) the opportunity to request a waiver or modification of qualified regulatory requirements from USDA if such requirements cannot be met due to COVID-19, and such waivers are necessary to provide assistance to WIC and WIC FMNP participants. State agencies are also required under this Section to provide a report to USDA no later than one year after such waivers were granted, detailing their use of the waiver and how it improved services to women, infants and children.

In the instances described above, the information collection addressed and/or will address burden associated with requirements under provisions of the NSLA, FFCRA, and CARES Act, as well as Nationwide waivers under some of the aforementioned authorities. State agencies have been required to develop and submit waiver requests in response to COVID-19, provide public notification regarding waiver requests, and report to FNS evaluation data on how waivers impacted Federal benefit programs.

Additionally, FNS is asking State agencies to report the USDA commodities used during a disaster on a more frequent basis. This information is currently collected in an OMB-approved form, the FNS-292A, Report of Commodity Distribution for Disaster Relief (OMB Control Number 0584-0594 Food Programs Reporting System, expiration July 31, 2023). State distributing agencies may release commodity or donated foods procured by the USDA to disaster organizations to provide nutritional assistance to disaster victims. Under the Code of Federal Regulations (CFR) at 7 CFR 250.69(f), State distributing agencies shall provide a summary report to FNS within 45 days following termination of the disaster assistance, and maintain records of these reports and other information relating to disasters. OMB approved FNS to change the frequency of the collection of the commodity reports from 45 days after the completion of the disaster, to a weekly basis. This change was requested due to the number of requests and the burden of the FNS regional offices. This request allowed FNS Food Distribution (FD) staff to monitor levels of USDA commodities more frequently to ensure States had access to USDA commodities.

Affected Public: State, Local and Tribal Government: Respondent groups identified include: (1) State agencies and Indian Tribal Organizations that operate USDA Nutrition Assistance Programs; and (2) Local WIC Agencies.

Estimated Number of Respondents: The total estimated number of respondents is 1,349. This includes: 53 SNAP State agencies who will submit waiver information, evaluation information, and weekly operational updates; 20 WIC State program staff who will submit evaluation information and a data pull from their MIS system; 22 Farmers Market Nutrition Program staff who will submit evaluation information; 67 CNP State agencies who will develop and submit waiver requests, provide public notification, and report to FNS on waiver implementation; Food Distribution Program Staff in 60 State Agencies who will submit required forms; and 800 WIC Local Agency Program staff who will submit information on an evaluation survey. Table 1, the estimated burden table below, delineates the number of respondents carrying out each of the aforementioned activities.

As shown in Table 1, FNS anticipates two types of respondents: State Government workers and Local Government workers. Together, their reporting burden is approximately 11,549 burden hours, assuming data collection over 12 months.

SNAP State Program Staff will have two types of burden:

• Waivers: FNS anticipates approximately 3 waiver requests per every 3 months per State agency. SNAP Program Staff in 53 State Agencies will submit approximately 3 waiver requests per every 3 months. Each waiver will take about 10 hours to complete for a total of 6,360 burden hours. [53 State Agency staff × 3 waivers per every 3 months on an annual basis (12 waiver requests) = 636 responses × 10 hours = 6,360 burden hours].

• Data Reports: SNAP Program Staff in 53 State Agencies will submit approximately 3 data reports, reporting on the evaluation data required by FFRCA. It will require about 3 hours to report the data in the data reports for a total of 159 burden hours. (53 State Agency Staff × 3 data reports = 159 responses × 3 hours = 477 burden hours).

• Weekly operational update: SNAP program staff in 53 State Agencies will submit 1 weekly update to their FNS Regional Offices. Each update will take approximately 1 hour to complete. (53 State agencies × 52 weekly reports = 2,756 annual responses × 1 hour per response = 2,756 burden hours).

WIC State Program Staff will have one type of burden:

• Evaluation Information: WIC Program Staff in 20 State Agencies will submit 1 survey, reporting on the evaluation data required by the FFRCA. It will take them about 2 hours to complete the survey, for a total of 40 burden hours. (20 State Agency Staff × 1 survey = 20 responses × 2 hours = 40 burden hours).

• MIS Data Pull: FNS will request states submit a data pull from their MIS systems to help facilitate the evaluation data reporting on the number of WIC participants affected by different waivers. (20 WIC State Agencies × 1 data pull = 20 Responses × 1.5 hours per response = 30 burden hours).

FMNP State Program Staff will have one type of burden:

• Evaluation Information: FMNP Program Staff in 22 State Agencies will submit 1 State Plan, reporting on the evaluation data required by the FFRCA. It will take them about 2 hours to complete the report, for a total of 44 burden hours. (22 State Agency Staff × 1 State Plan = 22 Responses × 2 hours = 44 burden hours).

CN Program Staff will have one type of burden:

• Statewide, COVID-related waivers authorized under Section 12(l) of the NSLA: It is estimated 67 State agencies review statewide waiver protocol and guidance pertaining to the waiver authority established at Section 12(l) of the NSLA, such as Child Nutrition Program Waiver Request Guidance and Protocol—Revised (Memo code: SP15 CACFP 12 SFSP 05-2018). FNS estimates State agencies revisit NSLA waiver guidance one time each year, and that it takes approximately 15 minutes (.25 hours) to review guidance (67 responses × .25 hours = 16.75 hours).

Furthermore, FNS estimates 67 CN State agencies will request statewide waivers that follow guidance outlined in Child Nutrition Program Waiver Request Guidance and Protocol—Revised (Memo code: SP15 CACFP 12 SFSP 05-2018) and submit waiver requests to FNS. It is estimated, together, 67 State agencies will develop and request a total of 130 statewide waivers of CN Program requirements and that each request will take approximately 1 hour to develop and submit to FNS (130 responses × 1 hour = 130 hours). Each State agency that submits a request is required to provide public notice regarding the request. FNS estimates 67 State agencies will provide 130 public notices associated with statewide waiver requests submitted under Section 12(l) waiver authority, and that it takes 30 minutes (.5 hours) to provide each public notice (130 responses × .5 hours = 65 hours).

Of the total 130 estimated statewide waiver requests, FNS estimates 100 will be approved, and will require State agencies to report on waiver implementation within 1 year of the approval date. It takes approximately 30 minutes (.5 hours) for State agencies to develop and submit evaluation data on statewide waiver implementation (100 responses × .5 hours = 50 hours).

Food Distribution State program staff will have one type of burden:

• FNS292A: Food Distribution Program Staff in 60 State Agencies will submit form FNS 292A 52 times (weekly over twelve months). It will take them approximately 15 minutes to complete the form each time for a total of 780 burden hours (60 State Agency Staff × 52 submissions = 3,120 responses × .25 hours = 780 burden hours).

WIC Local Government Agency Staff: Local Agency staff in about 800 Local WIC agencies will submit 1 survey to FNS. It will take 1 hour to complete and submit the report for a total of 800 burden hours (800 Local Agency Staff × 1 submission = 800 responses × 1 hour = 800 burden hours).

The Committee advises the Secretary on the necessary elements of a comprehensive policy approach to supply chain competitiveness designed to support national economic competitiveness and U.S. export growth, encourage innovation, facilitate the movement of goods, and improve the competitiveness of U.S. supply chains for goods and services in the domestic and global economy; and on regulatory policies and programs and investment priorities that affect the competitiveness of U.S. supply chains. The Committee provides detailed policy and technical advice, information, and recommendations to the Secretary regarding:

(1) National, state, or local factors in trade programs and policies that affect the efficient domestic and international operation and competitiveness of U.S. global supply chains from point of origin to destination;

(2) elements of national policies affecting the movement of goods, infrastructure, investment, and regulatory factors that affect supply chain competitiveness and sustainability; and

(3) information and data systems to generate metrics that can be used to quantify and improve supply chain performance.

The Department intends for the Committee to focus on the current challenges facing the supply chain during this charter term.

Members will be selected based on their demonstrated professional or personal qualifications and experience relevant to the functions and tasks of the Committee. Members shall be selected in a manner that ensures that the Committee remains balanced with respect to the diversity of the supply chain sector, including with regard to geographic location and company size. The diverse membership of the Committee assures perspectives and expertise reflecting the full breadth of the Committee's responsibilities and, where possible, the Department of Commerce will also consider the ethnic, racial, and gender diversity of the United States.

Members of the Committee shall represent companies, organizations, and stakeholders involved in the U.S. supply chain, with at least one individual representing each of the following: Supply chain firms or their associations; users of supply chains ( e.g., retailers, distributors, manufacturers, or other sectors); freight transportation providers; ports; labor unions; and academia.

Other than the experts from academia, all members shall serve in a representative capacity, expressing the views and interests of a U.S. company or U.S. organization with which they are affiliated ( e.g. as an employee or director), as well as its particular sector. Members serving in such a representative capacity are not Special Government Employees. The members from academia serve as experts and therefore are Special Government Employees (SGEs) and shall be subject to the ethical standards applicable to SGEs. Members who serve as SGEs must certify that they are not Federally registered lobbyists.

Each member of the Committee must be a U.S. citizen and not registered as a foreign agent under the Foreign Agents Registration Act. All appointments are made without regard to political affiliation. Self-nominations will be accepted.

Members of the Committee will not be compensated for their services or reimbursed for their travel expenses. The Committee shall meet approximately quarterly, or as determined by the designated federal officer. Members shall serve at the pleasure of the Secretary.

Requirements for all nominations. All nominations for membership on the Committee should provide the following information:

(1) Name, title, and relevant contact information (including phone and email address) of the individual requesting consideration; and

(2) An affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938.

Additional requirements for representative nominations. In addition to the above requirements for all nominations, nominations for representatives of companies, organizations, and stakeholders involved in the U.S. supply chain, including supply chain firms or their associations, users of supply chains ( e.g., retailers, distributors, manufacturers, or other sectors), freight transportation providers, labor unions, and ports, should also provide the following information:

(1) A sponsor letter on the letterhead of the sponsoring U.S. company or U.S. organization to be represented, containing a brief description why the nominee should be considered for membership; the nominee may be an employee, director, or other representative of a company or organization; consideration will be given to the nominee's current affiliation with the company or organization to be represented, as well as prior experience with other companies or organizations that demonstrate the ability to contribute to the work of the Committee;

(2) Short biography of nominee including credentials;

(3) Brief description of the U.S. company or U.S. organization to be represented and its activities and size (number of employees or members and annual sales, if applicable); and

(4) An affirmative statement that the applicant meets all Committee eligibility requirements for representative members, including that the applicant represents a U.S. company or U.S. organization.

a. For purposes of Committee eligibility, a U.S. company is at least 51 percent owned by U.S. persons.

b. For purposes of Committee eligibility, a U.S. organization is controlled by U.S. persons, as determined based on its board of directors (or comparable governing body), membership, and funding sources, as applicable.

Please do not send company or organization brochures.

Additional requirements for academic nominations. In addition to the above requirements for all nominations, nominations for experts from academia should also provide the following information:

(1) A description of the nominee's area(s) of expertise;

(2) A concise Curriculum Vitae (CV) or resume that covers education, experience, and relevant publications and summarizes how this expertise addresses supply chain competitiveness;

(3) An affirmative statement that the applicant meets all Committee eligibility requirements. Nominations may be emailed to acscc@trade.gov. Nominees selected for appointment to the Committee will be notified.

Pursuant to 15 CFR 921.33(c), a state must revise the management plan for the research reserve at least every five years. If approved by NOAA, the reserve's revised plan will replace the plan previously approved in 2013.

The draft revised management plan outlines the reserve's strategic goals and objectives; administrative structure; programs for conducting research and monitoring, education, and training; resource protection, restoration, and manipulation plans; public access and visitor use plans; consideration for future land acquisition; and facility development to support reserve operations.

In addition to continuing the tradition of robust local community education, training and research and stewardship programs, the Delaware National Estuarine Research Reserve intends, in this next management planning period, to focus on creating demonstration areas that can be used to model best management practices for local landowners; fostering the next generation of coastal professionals and conservation stewards; engaging land managers in conversations based on watershed scale conservation; and connecting with the Delaware community in a meaningful and inclusive manner to identify their needs as the stakeholders of this research reserve. The revised management plan, once approved, would serve as the guiding document for the 6364-acre research reserve for the next five years.

Since 2013, this research reserve has had an important impact on the local area and its communities. The reserve's training program held 53 trainings, workshops or conferences with 27,851 contact hours with local constituents. The education program had 32,466 contact hours with 11,722 K-12 students and 23,599 public participants. Reserve volunteers donated 20,739 hours of time—producing the full-time employee equivalent of 10.5 years worth of work. Some of those volunteer hours were spent recording 1,784,923 spawning horseshoe crabs on the three beaches that the reserve monitors. Research and monitoring efforts produced 15 peer-reviewed publications that used this reserve's infrastructure and data. The mini-grant opportunity, available through their Research and Monitoring Program, distributed 183,766 dollars of funding to local, Delaware-based researchers, many of which were early career faculty. Seventy-six acres of land within this reserve's boundary have been enhanced through reforestation and other restoration efforts.

This draft management plan expands the boundary of the Delaware National Estuarine Research Reserve and is soliciting comments from the public on the proposed boundary expansion. With the approval of this current management plan, this boundary will be amended to incorporate an additional six parcels—all found within the priority acquisition area identified in the 2013 revision of the plan—increasing the total acreage of the reserve to 6,364 acres. These parcels include lands that enhance and contribute to the ecological protection within the Blackbird Creek watershed. The “McKinley” property at 531 Union Church Road is 67.4 acres in size and includes a mix of native hardwoods and coastal plain ponds (Delmarva Bays). At 0 Taylors Bridge Road, the 32-acre “Unruh” property includes a wooded tributary buffer and agricultural lands. Three parcels known as the “Norris” property, totaling 42.6 acres at Union Church Road were acquired to improve wildlife corridor habitat and include forest and agriculture lands. Additionally, an inholding property known as “Manwaring” at 789 Blackbird Landing Road that is 16.3 acres in size was acquired. More details on these parcels and the boundary change may be found in the draft revised management plan.

NOAA's Office for Coastal Management analyzes the environmental impacts of the proposed approval of this draft revised management plan in accordance with section 102(2)(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(2)(C), and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA (40 CFR 1500-1508).

The public is invited to comment on the draft revised management plan. NOAA will take these comments into consideration in deciding whether to approve the draft revised management plan in whole or in part.

Authority: 16 U.S.C. 1451 et seq. ; 15 CFR 921.33.

On November 10, 2021, NOAA issued a Notice of Intent to Conduct Scoping and to Prepare a Draft Environmental Impact Statement for the Proposed Chumash Heritage National Marine Sanctuary (“Notice of Intent”) (86 FR 62512).

With that Notice of Intent, NOAA initiated a process to consider designating a portion of waters along and offshore of the central coast of California as a national marine sanctuary, in accordance with the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq. This process is based on the area's qualities and boundaries as described in the community-based nomination  1 submitted on July 17, 2015, excluding any geographical overlap of the boundaries proposed for the Morro Bay 399 Area as described in the July 29, 2021, Federal Register Notice of Commercial Leasing for Wind Power Development on the Outer Continental Shelf Offshore Morro Bay, California, East and West Extensions—Call for Information and Nominations (86 FR 40869). 2 For more information, refer to the Notice of Intent (86 FR 62512) or visit www.sanctuaries.noaa.gov/chumash-heritage.

The designation process will be conducted concurrently with a public process under the National Environmental Policy Act to prepare an environmental impact statement. This public scoping process invites comments on the scope and significance of issues to be addressed in the environmental impact statement that are related to designating this area as a national marine sanctuary. The results of this scoping process will assist NOAA in moving forward with the designation process, including preparation and release of draft designation documents, and in formulating alternatives for the draft environmental impact statement, including developing national marine sanctuary boundaries, regulations, and a management plan. This scoping process will also inform the initiation of any consultations with Federal, State, or local agencies, tribes, and other interested parties, as appropriate.

NOAA has received requests for an extension of the public comment period and has decided to extend the comment period by 21 days to provide the public with additional time to provide comments. At this time, NOAA does not expect any changes to the Schedule for the Decision-Making Process outlined in Section IV of the Notice of Intent (86 FR 62512).

Authority: 16 U.S.C. 1431 et seq.; 42 U.S.C. 4321 et seq.; 40 CFR 1500-1508 (National Environmental Policy Act Implementing Regulations); Companion Manual for NOAA Administrative Order 216-6A.

The MMPA requires NMFS to authorize the incidental take of ESA-listed marine mammals in commercial fisheries provided it can make the following determinations: (1) The incidental mortality and serious injury (M/SI) from commercial fisheries will have a negligible impact on the affected species or stocks; (2) a recovery plan for all affected species or stocks of threatened or endangered marine mammals has been developed or is being developed; and (3) where required under MMPA section 118, a take reduction plan has been developed or is being developed, a monitoring program is implemented, and vessels participating in the fishery are registered. We have made a preliminary determination that the CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery meets these three requirements and propose to issue a permit to the fishery to authorize the incidental take of ESA-listed marine mammal species or stocks (CA/OR/WA stock of humpback whale and CA/OR/WA stock of sperm whale) under the MMPA for a period of three years. We solicit public comments on the proposed issuance of the permit and the underlying preliminary determination.

The MMPA List of Fisheries (LOF) classifies each commercial fishery as a Category I, II, or III fishery based on the level of mortality and injury of marine mammals occurring incidental to each fishery as defined in 50 CFR 229.2. Category I and II fisheries must register with NMFS and are subsequently authorized to incidentally take marine mammals during commercial fishing operations. However, that authorization is limited to those marine mammals that are not listed as threatened or endangered under the ESA. Section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1371, states that NMFS, as delegated by the Secretary of Commerce, for a period of up to three years shall allow the incidental, but not intentional, taking of marine mammal stocks designated as depleted because of their listing as an endangered species or threatened species under the ESA, 16 U.S.C. 1531 et seq., by persons using vessels of the United States and those vessels which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1824(b), while engaging in commercial fishing operations, if NMFS makes certain determinations. NMFS must determine, after notice and opportunity for public comment, that: (1) Incidental M/SI from commercial fisheries will have a negligible impact on the affected species or stock; (2) a recovery plan has been developed or is being developed for such species or stock under the ESA; and (3) where required under section 118 of the MMPA, a monitoring program has been established, vessels engaged in such fisheries are registered in accordance with section 118 of the MMPA, and a take reduction plan has been developed or is being developed for such species or stock.

The LOF includes a list of marine mammal species or stocks incidentally killed or injured in each commercial fishery. We evaluated ESA-listed stocks or species included on the final 2021 MMPA LOF as killed or seriously injured following NMFS' Procedural Directive 02-238 “Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals.” Based on this evaluation, we propose to issue a permit under MMPA section 101(a)(5)(E) to vessels registered in the Category II CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery, as classified on the final 2021 MMPA LOF, to incidentally kill or seriously injure the CA/OR/WA stock of humpback whale and CA/OR/WA stock of sperm whale.

NMFS will regularly evaluate other commercial fisheries for purposes of making a negligible impact determination (NID) and issuing section 101(a)(5)(E) authorizations with the annual LOF as new information becomes available. More information about the CA thresher shark/swordfish drift gillnet and Pacific highly migratory species drift gillnet fishery is available in the 2021 MMPA LOF (86 FR 3028; January 14, 2021) and on the internet at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.

We reviewed the best available scientific information to determine if the fishery met the three requirements of MMPA section 101(a)(5)(E) for issuing a permit. This information is included in the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SARs for these species (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ), recovery plans for these species (available at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act ), and other relevant information, as detailed further in the document describing the preliminary determination supporting the permit (available at: https://www.regulations .gov/docket/NOAA-NMFS-2021-0105 ).

NMFS is in the process of revising humpback whale stock structure under the MMPA in light of the 14 Distinct Population Segments (DPSs) established under the ESA (81 FR 62259, September 8, 2016), based on the recently finalized “Procedural Directive 02-204-03: Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act” (NMFS 2019). The humpback whale DPSs that occur in waters under the jurisdiction of the United States do not align with the existing MMPA stocks. Some of the listed DPSs partially coincide with the currently defined stocks. Because we cannot manage one portion of an MMPA stock as ESA-listed and another portion of a stock as not ESA-listed, until such time as the MMPA stock designations are revised in light of the ESA-listed DPSs, NMFS continues to use the existing MMPA stock structure for MMPA management purposes ( e.g., selection of a recovery factor, stock status) and treats such stocks as ESA-listed if a component of that stock is listed under the Act and overlaps with the analyzed commercial fishery. Therefore, for the purpose of this MMPA 101(a)(5)(E) authorization, NMFS considered the CA/OR/WA stock of humpback whale to be ESA-listed as it overlaps with the two ESA-listed DPSs (Mexico, and Central America).

Prior to issuing a MMPA 101(a)(5)(E) permit to take ESA-listed marine mammals incidental to commercial fishing, NMFS must determine if the M/SI incidental to commercial fisheries will have a negligible impact on the affected marine mammal species or stocks. NMFS satisfies this requirement by making a NID. Although the MMPA does not define “negligible impact,” NMFS has issued regulations providing a qualitative definition of “negligible impact,” defined in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

NMFS relies on a quantitative approach for determining negligible impact detailed in NMFS Procedural Directive 02-204-02 (directive), “Criteria for Determining Negligible Impact under MMPA section 101(a)(5)(E),” which became effective on June 17, 2020 (NMFS 2020). The procedural directive is available online at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. The directive describes NMFS' process for determining whether incidental M/SI from commercial fisheries will have a negligible impact on ESA-listed marine mammal species/stocks (the first requirement necessary for issuing a MMPA section 101(a)(5)(E) permit as noted above).

The directive first describes the derivation of two Negligible Impact Thresholds (NIT), which represent levels of removal from a marine mammal species or stock. The first, Total Negligible Impact Threshold (NIT t ), represents the total amount of human-caused M/SI that NMFS considers negligible for a given stock. The second, lower threshold, Single NIT (NIT s ) represents the level of M/SI from a single commercial fishery that NMFS considers negligible for a stock. NIT s was developed in recognition that some stocks may experience non-negligible levels of total human-caused M/SI but one or more individual fisheries may contribute a very small portion of that M/SI, and the effect of an individual fishery may be considered negligible.

The directive describes a detailed process for using these NIT values to conduct a NID analysis for each fishery classified as a Category I or II fishery on the MMPA LOF. The NID process uses a two-tiered analysis. The Tier 1 analysis first compares the total human-caused M/SI for a particular stock to NIT t . If NIT t is not exceeded, then all commercial fisheries that kill or seriously injure the stock are determined to have a negligible impact on the particular stock. If NIT t is exceeded, then the Tier 2 analysis compares each individual fishery's M/SI for a particular stock to NIT s . If NIT s is not exceeded, then the commercial fishery is determined to have a negligible impact on that particular stock. For transboundary, migratory stocks, because of the uncertainty regarding the M/SI that occurs outside of U.S. waters, we assume that total M/SI exceeds NIT t and proceed directly to the Tier 2 NIT s analysis. If a commercial fishery has a negligible impact across all ESA-listed stocks, then the first of three findings necessary for issuing a MMPA 101(a)(5)(E) permit to the commercial fishery has been met ( i.e., a negligible impact determination). If a commercial fishery has a non-negligible impact on any ESA-listed stock, then NMFS cannot issue a MMPA 101(a)(5)(E) permit for the fishery to incidentally take ESA-listed marine mammals.

These NID criteria rely on the best available scientific information, including estimates of a stock's minimum population size and human-caused M/SI levels, as published in the most recent SARs and other supporting documents, as appropriate. Using these inputs, the quantitative negligible impact thresholds allow for straightforward calculations that lead to clear negligible or non-negligible impact determinations for each commercial fishery analyzed. In rare cases, robust data may be unavailable for a straightforward calculation, and the directive provides instructions for completing alternative calculations or assessments where appropriate.

NMFS evaluated the impact of the CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery following the directive, and, based on the best available scientific information, made a draft NID.

The CA/OR/WA stock of humpback whale is a transboundary stock. As noted above, because of the uncertainty regarding M/SI that occurs outside of U.S. waters for transboundary stocks, we assumed that total M/SI exceeds NIT t and proceeded directly to the Tier 2 NIT s analysis. The CA/OR/WA stock of humpback whale has documented incidental M/SI with this fishery in the most recent (2021) draft CA/OR/WA humpback whale SAR (Carretta et al. 2021). The estimated annual M/SI of humpback whales (CA/OR/WA stock) in the CA drift gillnet fishery is 0.1, based on observer data. Since this M/SI (0.1) is less than NIT s (2.48), NMFS determined that the CA drift gillnet fishery/Pacific highly migratory species drift gillnet fishery has a negligible impact on the CA/OR/WA stock of humpback whales (see accompanying MMPA 101(a)(5)(E) determination document linked above for NIT calculations).

The draft 2021 SAR includes mean annual total commercial fishery-related M/SI (≥25.2) for the CA/OR/WA stock of humpback whale. This comprises M/SI from all commercial fisheries, including the CA thresher shark/swordfish drift gillnet fishery, as well as fishery-related M/SI for the stock not assigned to a specific commercial fishery. The SAR also includes unattributed fishery-related M/SI (11.15) for the stock, which is not assigned to a specific commercial fishery. This unattributed fishery-related M/SI could be from any number of commercial, recreational or tribal fisheries, including the CA thresher shark/swordfish drift gillnet fishery. Because data are not currently available to assign the unattributed fishery-related M/SI to a specific commercial fishery, we did not include unattributed mortality in the calculations for the NID Tier 2 analysis. In addition, because the CA/OR/WA humpback whale stock is considered to be a transboundary stock, NMFS assumed NIT t is exceeded and conducted the more conservative Tier 2 analysis with the lower NIT s criterion. NMFS is actively monitoring the CA thresher shark/swordfish drift gillnet fishery through a fishery observer program. Further, most of the information on large whale entanglements on the West Coast is reported to and documented by the West Coast Large Whale Entanglement Response Program. If additional fishery-related M/SI of the CA/OR/WA stock of humpback whale is documented through the observer program or West Coast Large Whale Entanglement Response Program that indicates additional M/SI of the CA/OR/WA stock of humpback whale in the CA thresher shark/swordfish drift gillnet fishery, then NMFS will re-evaluate the NID and the permit.

The CA/OR/WA stock of sperm whale has documented incidental M/SI with this fishery in the most recent (2019) final CA/OR/WA sperm whale SAR (Carretta et al. 2020). The total annual average human-caused M/SI for the CA/OR/WA stock of sperm whales from 2013-2017 is 0.64, including 0.4 per year for the CA thresher shark/swordfish drift gillnet fishery and 0.24 per year for the sablefish hook and line fishery (Carretta et al. 2020). There was no other human-related M/SI of the CA/OR/WA stock of sperm whale reported during this time period. Since M/SI (0.64) is less than NIT t (2.54), the CA drift gillnet fishery/Pacific highly migratory species drift gillnet fishery is considered to have a negligible impact on the CA/OR/WA stock of sperm whales.

The NID analysis is presented in an accompanying MMPA 101(a)(5)(E) determination document that provides summaries of the information used to evaluate each ESA-listed stock documented on the 2021 MMPA LOF as killed or injured incidental to the fishery (available at: https://www.fisheries.noaa.gov/action/mmpa-list-fisheries-2021 ). The draft MMPA 101(a)(5)(E) determination document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0105. Based on the criteria outlined in the directive, the most recent SAR, and the best available scientific information, NMFS has determined that the M/SI incidental to the Category II CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery will have a negligible impact on the associated ESA-listed marine mammal stocks (CA/OR/WA stock of humpback whale and CA/OR WA stock of sperm whale). Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the commercial fishery (see draft MMPA 101(a)(5)(E) determination document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0105 ).

Recovery plans for humpback whales and sperm whales have been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act ). Accordingly, the requirement to have recovery plans in place or being developed is satisfied.

Subject to available funding, MMPA section 118 requires the development and implementation of a Take Reduction Plan (TRP) for each strategic stock that interacts with a Category I or II fishery. The stocks considered for this permit are designated as a strategic stock under the MMPA because the stocks, or a component of the stocks, are listed as threatened or endangered under the ESA (MMPA section 3(19)(C)).

The CA thresher shark/swordfish drift gillnet fishery, for the affected marine mammal species or stocks, has a TRP in place. Accordingly, the requirement under MMPA section 118 to have TRPs in place or in development is satisfied (see preliminary determination supporting the permit available on the internet at https://www.regulations.gov/docket/NOAA-NMFS-2021-0105 ).

Under MMPA section 118(d), NMFS is to establish a program for monitoring incidental M/SI of marine mammals from commercial fishing operations. The CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery has been observed by NMFS since 1990. Accordingly, the requirement under MMPA section 118 to have a monitoring program in place is satisfied.

MMPA section 118(c) requires that vessels participating in Category I and II fisheries register to obtain an authorization to take marine mammals incidental to fishing activities. NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program, with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Therefore, the requirement for vessel registration is satisfied.

Based on the above evaluation for the CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery as it relates to the three requirements of MMPA section 101(a)(5)(E), we propose to issue a MMPA 101(a)(5)(E) permit to the commercial fishery to authorize the incidental take of ESA-listed species or stocks during commercial fishing operations. If, during the 3-year authorization, there is a significant change in the information or conditions used to support any of these determinations, NMFS will re-evaluate whether to amend or modify the authorization, after notice and opportunity for public comment. NMFS solicits public comments on the proposed permit and the preliminary determination supporting the permit.

ESA section 7(a)(2) requires federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA, or destroy or adversely modify designated critical habitat of any ESA-listed species. The effects of the CA thresher shark/swordfish drift gillnet/Pacific highly migratory species drift gillnet fishery on ESA-listed marine mammals for which a permit is proposed here, were analyzed in the appropriate ESA section 7 Biological Opinion on the commercial fishery, and incidental take was exempted for those ESA-listed marine mammals for the fishery.

Under section 7 of the ESA, Biological Opinions quantify the effects of the proposed action on ESA-listed species and their critical habitat and, where appropriate, authorize anticipated future take of ESA-listed species as specified in the incidental take statement. Under MMPA section 101(a)(5)(E), NMFS analyzes previously documented M/SI incidental to commercial fisheries through the negligible impact determination process, and when the necessary findings can be made, issues a MMPA section 101(a)(5)(E) permit that allows for an unspecified amount of incidental taking of specific ESA-listed marine mammal stocks while engaging in commercial fishing operations. Thus, the applicable standards and resulting analyses under the MMPA and ESA differ, and as such, may not always align.

The National Environmental Policy Act (NEPA) requires Federal agencies to evaluate the impacts of alternatives for their actions on the human environment. Because the proposed permit would not modify any fishery operation and the effects of the fishery operations have been evaluated in accordance with NEPA, no additional NEPA analysis beyond that conducted for the associated Fishery Management Plan is required for the permit. Issuing the proposed permit would have no additional impact on the human environment or effects on threatened or endangered species beyond those analyzed in these documents.

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

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

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

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

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

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

On March 17, 2020, NMFS received a request from Scripps for an IHA to take marine mammals incidental to low-energy geophysical surveys in the southeastern Gulf of Mexico, initially planned to occur in summer 2020. The application was deemed adequate and complete on May 26, 2020. On June 9, 2020, Scripps notified NMFS that the proposed survey had been postponed and tentatively rescheduled for summer 2021. On April 8, 2021, Scripps notified NMFS that the survey had been further postponed and is now proposed to occur in July-August 2022. NMFS has reviewed recent draft Stock Assessment Reports and other scientific literature, and determined that neither this nor any other new information affects which species or stocks have the potential to be affected, the potential effects to marine mammals and their habitat as described in the IHA application, or any other aspect of the analysis. Therefore, NMFS has determined that Scripps' IHA application remains adequate and complete. Scripps' request is for take of 20 species of marine mammals by Level B harassment only. Neither Scripps nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

Scripps plans to support a research project that would involve low-energy seismic surveys in the Gulf of Mexico during summer 2022. The study would be conducted on the R/V Justo Sierra, owned by Universidad Nacional Autónoma de México (UNAM), using a portable multi-channel seismic (MCS) system operated by marine technicians from Scripps. The survey would use a pair of low-energy Generator-Injector (GI) airguns with a total discharge volume of 90 cubic inches (in 3 ). The surveys would take place within the Exclusive Economic Zones (EEZs) of Mexico and Cuba in the southeastern Gulf of Mexico.

The specific dates of the survey have not been determined but the cruise is expected to occur in July to August 2022. The proposed research cruise is expected to consist of 15 days at sea, including ~12 days of seismic operations (10 planned days and 2 contingency days) and ~3 days of transit. R/V Justo Sierra would depart from Tampamochaco, Mexico and return to Progreso, Mexico after the program is completed.

The proposed surveys would take place in the Gulf of Mexico between ~22°-25° N and 83.8°-88° W (see Figure 1). Seismic acquisition would occur in two primary survey areas. The Yucatán Channel survey area is located in the deep-water channel between the Campeche and Florida escarpments, within the EEZ of Cuba in water depths ranging from ~1,500 to 3,600 meters (m; 4,921 to 11,811 feet (ft)). The Campeche Bank survey area is located in the northeastern flank of the Campeche escarpment, within the EEZs of Cuba and Mexico in waters ranging in depth from ~110 to 3,000 m (361 to 9,843 ft).

The proposed project consists of low-energy seismic surveys to image sediment drifts along Campeche Bank and in the deep water north of Yucatán Channel in order to reconstruct bottom water current changes through the Cenozoic era. Data collected would also be used to inform potential future site locations for the International Ocean Discovery Program (IODP). To achieve the program's goals, researchers from UNAM and the University of Texas Institute of Geophysics (UTIG) propose to collect low-energy, high-resolution MCS profiles.

The surveys would involve one source vessel, the R/V Justo Sierra, using the portable MCS system operated by marine technicians from Scripps. R/V Justo Sierra would deploy up to two 45-in 3 GI airguns as an energy source with a maximum total discharge volume of ~90 in 3 . The generator chamber of each GI gun, the one responsible for introducing the sound pulse into the ocean, is 45 in 3 . The larger (105 in 3 ) injector chamber injects air into the previously generated bubble to maintain its shape and does not introduce more sound into the water. The two 45-in 3 GI airguns would be spaced 2 m (6.6 ft) apart, and towed 25 m (82 ft) behind the R/V Justo Sierra at a depth of 2-4 m (6.6-13.1 ft). An operational speed of ~7.4-9.3 kilometers (km) per hour (~4-5 knots) would be used during seismic acquisition, and seismic pulses would be emitted at intervals of 8-10 seconds from the GI airguns. The receiving system would consist of one hydrophone streamer, 1,500 m (4,921 ft) in length. As the airguns are towed along the survey lines, the hydrophone streamer would receive the returning acoustic signals and transfer the data to the on-board processing system.

The proposed cruise would acquire ~2,171 km (~1,349 miles) of seismic data in the southeastern Gulf of Mexico. All survey effort proposed in the Yucatán Channel survey area would occur in water >1,000 m (3,281 ft) deep. In the Campeche Bank survey area, approximately 80 percent of survey effort would occur in deep water, and 20 percent would occur in intermediate water 100-1,000 m (328-3,281 ft) deep. No survey effort is proposed in waters less than 100 m (328 ft) deep.

In the Yucatán Channel survey area, a grid is proposed that consists of southwest-northeast trending strike profiles with crossing dip profiles to provide images of the deep water connection between the Straits of Florida and the basinal southeastern Gulf of Mexico (see Figure 1). In the Campeche Bank survey area, several long dip profiles would be acquired that are connected by several strike lines. The survey area also includes three proposed sites for future IODP coring (one in the Campeche Bank survey area and two within the Yucatán Channel survey area, all within the EEZ of Cuba). Around each site, an additional survey of a single 5 km by 5 km (3.1 by 3.1 miles) box would be conducted around the proposed site to better characterize the sediments and provide a number of options to choose the ideal location for proposed future drilling.

A hull-mounted multi-beam echosounder (MBES) and an Acoustic Doppler Current Profiler (ADCP) would also be operated from the R/V Justo Sierra continuously throughout the seismic surveys, but not during transits or and from the survey area or when airguns are not operating. All planned geophysical data acquisition activities would be conducted by Scripps and UNAM with on-board assistance by the scientists who have proposed the studies. The vessel would be self-contained, and the crew would live aboard the vessel. Take of marine mammals is not expected to occur incidental to use of the MBES or ADCP because, whether or not the airguns are operating simultaneously with the other sources, given their characteristics ( e.g., narrow downward-directed beam), marine mammals would experience no more than one or two brief ping exposures, if any exposure were to occur. NMFS does not expect that use of these sources presents any reasonable potential to cause take of marine mammals.

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

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

Table 1 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For most species, stock abundance estimates are based on sightings within the U.S. EEZ, however for some species, this geographic area may extend beyond U.S. waters. Other species may use survey abundance estimates. Survey abundance (as compared to stock or species abundance) is the total number of individuals estimated within the survey area, which may or may not align completely with a stock's geographic range as defined in the SARs. These surveys may also extend beyond U.S. waters. In this case, the proposed survey area outside of the U.S. EEZ does not necessarily overlap with the ranges for stocks managed by NMFS. However, we assume that individuals of these species that may be encountered during the survey may be part of those stocks.

All managed stocks in this region are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs ( e.g., Hayes et al., 2021). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2020 SARs (Hayes et al., 2021) and draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports ).

For the majority of species potentially present in the specified geographical region, NMFS has designated only a single generic stock ( i.e., “Gulf of Mexico”) for management purposes, although there is currently no information to differentiate the stock from the Atlantic Ocean stock of the same species, nor information on whether more than one stock may exist in the GOM (Hayes et al., 2017).

In Table 1 above, we report two sets of abundance estimates: Those from NMFS SARs and those predicted by Roberts et al. (2016). Please see the table footnotes for more detail. NMFS's SAR estimates are typically generated from the most recent shipboard and/or aerial surveys conducted. The Roberts et al. (2016) abundance estimates represent the output of predictive models derived from multi-year observations and associated environmental parameters and which incorporate corrections for detection bias. Incorporating more data over multiple years of observation can yield different results in either direction, as the result is not as readily influenced by fine-scale shifts in species habitat preferences or by the absence of a species in the study area during a given year. NMFS's abundance estimates show substantial year-to-year variability in some cases. For example, NMFS-reported estimates for the Clymene dolphin vary by a maximum factor of more than 100 (2009 estimate of 129 versus 1996-2001 estimate of 17,355), indicating that it may be more appropriate to use the model prediction versus a point estimate, as the model incorporates data from 1992-2009. The latter factor—incorporation of correction for detection bias—should systematically result in greater abundance predictions. For these reasons, we expect that the Roberts et al. (2016) estimates are generally more realistic and, for these purposes, represent the best available information. For purposes of assessing estimated exposures relative to abundance—used in this case to understand the scale of the predicted takes compared to the population—we generally believe that the Roberts et al. (2016) abundance predictions are most appropriate because they were used to generate the exposure estimates and therefore provide the most relevant comparison (see Estimated Take). Roberts et al. (2016) represents the best available scientific information regarding marine mammal occurrence and distribution in the Gulf of Mexico.

As the planned survey lines are outside of the U.S. EEZ, they do not directly overlap with the defined stock ranges within the Gulf of Mexico (Hayes et al., 2021). However, some of the survey lines occur near the U.S. EEZ, and the distribution and abundance of species in U.S. EEZ waters are assumed representative of those in the survey area. As indicated above, all 20 species (with 20 representative stocks in the northern Gulf of Mexico) in Table 1 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. All species that could potentially occur in the proposed survey areas are included in Table 2 of the IHA application. While fin whales ( Balaenoptera physalus ), Rice's whales ( Balaenoptera ricei, formerly known as Gulf of Mexico Bryde's whales), minke whales ( Balaenoptera acutorostrata ), and humpback whales ( Megaptera novaeangliae ) have the potential to occur in the southeast Gulf of Mexico, the temporal and/or spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. These species, and other mysticete species for which there exist rare sighting or stranding records, are considered only of accidental occurrence in the Gulf of Mexico and are generally historically known only from a very small number of strandings and/or sightings (Würsig et al., 2000; Würsig, 2017).

The fin whale is widely distributed in all the world's oceans (Gambell 1985), although it is most abundant in temperate and cold waters (Aguilar and García-Vernet 2018). The fin whale is the second-most frequently reported mysticete in the Gulf of Mexico (after the Rice's whale), though with only a handful of stranding and sighting records, and is considered here as a rare and likely accidental migrant. Roberts et al. (2016) developed a stratified density model for the fin whale in the Gulf of Mexico, on the basis of one observation during an aerial survey in the early 1990s. As noted by the model authors, while the probability of a chance encounter is not zero, the single sighting during NMFS survey effort should be considered extralimital (Roberts et al., 2015a). Duke University's Ocean Biodiversity Information System Spatial Ecological Analysis of Megavertebrate Populations (OBIS-SEAMAP) database includes 12 records of fin whales in the Gulf of Mexico, including six in the southern Gulf (OBIS 2020). Ortega-Ortiz (2002) reported a fin whale at the Campeche Escarpment but no sightings of fin whales have been reported in the Gulf of Mexico since 1998 (Roberts et al., 2016).

Rice's whales are the only baleen whale to occur in the Gulf of Mexico on a regular basis throughout the year (Wursig et al., 2000) but according to Ortega-Ortiz (2000), they do not appear to occur in the southern Gulf of Mexico in Mexican and Cuban waters. Rice's whale calls were not detected via passive acoustic recorders at the Dry Tortugas or in the north-central GoM (south of Alabama) at Main Pass (S irović et al., 2014). The OBIS database includes 30 observation records for the northern Gulf of Mexico, but no records for the southern Gulf (OBIS 2020).

The minke whale has a cosmopolitan distribution ranging from the tropics and subtropics to the ice edge in both hemispheres (Jefferson et al., 2015). Although widespread and common overall, they are rare in the Gulf of Mexico (Würsig et al., 2000). Würsig et al. (2000) reported ten strandings for the Gulf including the Florida Keys; the strandings occurred in the winter and spring and may have been northbound whales from the open ocean or Caribbean Sea. Based on Ortega-Ortiz (2002), the only record of a minke whale in the southern Gulf of Mexico is a single whale recorded as stranded at Celestún, on the northwestern coast of the Yucatán Peninsula.

Although humpback whales only occur rarely in the Gulf of Mexico, several sightings have been made off the west coast of Florida, near Alabama, and off Texas (Würsig et al., 2000); these may have been individuals from the West Indian winter grounds that strayed into the GoM during migration (Weller et al., 1996; Jefferson and Schiro 1997). In addition, Würsig et al. (2000) reported that humpback songs have also been recorded with hydrophones in the northwestern Gulf of Mexico, and there are two stranding records. Humpbacks have also been sighted off the northwest coast of Cuba (Whitt et al., 2011). There are 35 records in the OBIS database for the Gulf, including records for the Campeche Bank survey area, Straits of Florida, and northwestern Cuba.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 2.

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Twenty species of cetacean have the reasonable potential to co-occur with the proposed survey activities. No pinnipeds are expected to be present or taken. Of the cetacean species that may be present, 18 are classified as mid-frequency cetaceans ( i.e., all delphinid and ziphiid species and the sperm whale) and two are classified as high-frequency cetaceans ( i.e., harbor porpoise and Kogia spp.). No low-frequency cetaceans ( i.e., baleen whales) are expected to be present or taken.

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

This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document.

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

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

Sound exposure level (SEL; represented as dB re 1 μPa 2 -s) represents the total energy contained within a pulse and considers both intensity and duration of exposure. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-p) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source and is represented in the same units as the rms sound pressure. Another common metric is peak-to-peak sound pressure (pk-pk), which is the algebraic difference between the peak positive and peak negative sound pressures. Peak-to-peak pressure is typically approximately 6 dB higher than peak pressure (Southall et al., 2007).

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

Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical ( e.g., wind and waves, earthquakes, ice, atmospheric sound), biological ( e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic ( e.g., vessels, dredging, construction) sound. A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

• Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient sound for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf sound becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions;

• Precipitation: Sound from rain and hail impacting the water surface can become an important component of total sound at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times;

• Biological: Marine mammals can contribute significantly to ambient sound levels, as can some fish and snapping shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz; and

• Anthropogenic: Sources of ambient sound related to human activity include transportation (surface vessels), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Vessel noise typically dominates the total ambient sound for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly. Sound from identifiable anthropogenic sources other than the activity of interest ( e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound.

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

Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing ( e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts.

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

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

Airguns produce pulsed signals with energy in a frequency range from about 10-2,000 Hz, with most energy radiated at frequencies below 200 Hz. The amplitude of the acoustic wave emitted from the source is equal in all directions ( i.e., omnidirectional), but airgun arrays do possess some directionality due to different phase delays between guns in different directions. Airgun arrays are typically tuned to maximize functionality for data acquisition purposes, meaning that sound transmitted in horizontal directions and at higher frequencies is minimized to the extent possible.

As described above, a hull-mounted MBES and an ADCP would also be operated from the R/V Justo Sierra continuously throughout the seismic surveys, but not during transits or and from the survey area or when airguns are not operating. Each ping emitted by the MBES consists of eight (in water >1,000 m deep) or four (<1,000 m) successive fan-shaped transmissions, each ensonifying a sector that extends 1° fore-aft. Given the movement and speed of the vessel, the intermittent and narrow downward-directed nature of the sounds emitted by the MBES mean that no exposure of marine mammals is likely to occur. In the unlikely event that exposure did occur, it would result in no more than one or two brief ping exposures of any individual marine mammal. Due to the lower source level of the ADCP relative to the R/V Justo Sierra' s airguns, sounds from the SBP and ADCP are expected to be effectively subsumed by sounds from the airguns. Thus, any marine mammal potentially exposed to sounds from the ADCP would already have been exposed to sounds from the airguns, which are expected to propagate further in the water. As such, we conclude that the likelihood of marine mammal take resulting from exposure to sound from the MBES or ADCP is discountable and therefore we do not consider noise from the MBES or ADCP further in this analysis.

Here, we discuss the effects of active acoustic sources on marine mammals.

Potential Effects of Underwater Sound —Please refer to the information given previously (“Description of Active Acoustic Sources”) regarding sound, characteristics of sound types, and metrics used in this document. Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound from active acoustic sources can potentially result in one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007; Götz et al., 2009). The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure. In general, sudden, high level sounds can cause hearing loss, as can longer exposures to lower level sounds. Temporary or permanent loss of hearing will occur almost exclusively for noise within an animal's hearing range. We first describe specific manifestations of acoustic effects before providing discussion specific to the use of airguns.

Richardson et al. (1995) described zones of increasing intensity of effect that might be expected to occur, in relation to distance from a source and assuming that the signal is within an animal's hearing range. First is the area within which the acoustic signal would be audible (potentially perceived) to the animal, but not strong enough to elicit any overt behavioral or physiological response. The next zone corresponds with the area where the signal is audible to the animal and of sufficient intensity to elicit behavioral or physiological responsiveness. Third is a zone within which, for signals of high intensity, the received level is sufficient to potentially cause discomfort or tissue damage to auditory or other systems. Overlaying these zones to a certain extent is the area within which masking ( i.e., when a sound interferes with or masks the ability of an animal to detect a signal of interest that is above the absolute hearing threshold) may occur; the masking zone may be highly variable in size.

We describe the more severe effects of certain non-auditory physical or physiological effects only briefly as we do not expect that use of airgun arrays are reasonably likely to result in such effects (see below for further discussion). Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973). Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions ( e.g., change in dive profile as a result of an avoidance reaction) caused by exposure to sound include neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack, 2007; Tal et al., 2015). The survey activities considered here do not involve the use of devices such as explosives or mid-frequency tactical sonar that are associated with these types of effects.

Threshold Shift —Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Repeated sound exposure that leads to TTS could cause PTS. In severe cases of PTS, there can be total or partial deafness, while in most cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985).

When PTS occurs, there is physical damage to the sound receptors in the ear ( i.e., tissue damage), whereas TTS represents primarily tissue fatigue and is reversible (Southall et al., 2007; Houser, 2021). In addition, other investigators have suggested that TTS is within the normal bounds of physiological variability and tolerance and does not represent physical injury ( e.g., Ward, 1997). Therefore, NMFS does not consider TTS to constitute auditory injury.

Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several dBs above (a 40-dB threshold shift approximates PTS onset; e.g., Kryter et al., 1966; Miller, 1974) that inducing mild TTS (a 6-dB threshold shift approximates TTS onset; e.g., Southall et al. 2007). Based on data from terrestrial mammals, a precautionary assumption is that the PTS thresholds for impulse sounds (such as airgun pulses as received close to the source) are at least 6 dB higher than the TTS threshold on a peak-pressure basis and PTS cumulative sound exposure level thresholds are 15 to 20 dB higher than TTS cumulative sound exposure level thresholds (Southall et al., 2007). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

For mid-frequency cetaceans in particular, potential protective mechanisms may help limit onset of TTS or prevent onset of PTS. Such mechanisms include dampening of hearing, auditory adaptation, or behavioral amelioration ( e.g., Nachtigall and Supin, 2013; Miller et al., 2012; Finneran et al., 2015; Popov et al., 2016).

TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.

Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration ( i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts.

Finneran et al. (2015) measured hearing thresholds in three captive bottlenose dolphins before and after exposure to ten pulses produced by a seismic airgun in order to study TTS induced after exposure to multiple pulses. Exposures began at relatively low levels and gradually increased over a period of several months, with the highest exposures at peak SPLs from 196 to 210 dB and cumulative (unweighted) SELs from 193-195 dB. No substantial TTS was observed. In addition, behavioral reactions were observed that indicated that animals can learn behaviors that effectively mitigate noise exposures (although exposure patterns must be learned, which is less likely in wild animals than for the captive animals considered in this study). The authors note that the failure to induce more significant auditory effects likely due to the intermittent nature of exposure, the relatively low peak pressure produced by the acoustic source, and the low-frequency energy in airgun pulses as compared with the frequency range of best sensitivity for dolphins and other mid-frequency cetaceans.

Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless porpoise) exposed to a limited number of sound sources ( i.e., mostly tones and octave-band noise) in laboratory settings (Finneran, 2015). In general, harbor porpoises have a lower TTS onset than other measured cetacean species (Finneran, 2015). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes.

Critical questions remain regarding the rate of TTS growth and recovery after exposure to intermittent noise and the effects of single and multiple pulses. Data at present are also insufficient to construct generalized models for recovery and determine the time necessary to treat subsequent exposures as independent events. More information is needed on the relationship between auditory evoked potential and behavioral measures of TTS for various stimuli. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall et al. (2007), Finneran and Jenkins (2012), Finneran (2015), and NMFS (2016a).

Behavioral Effects —Behavioral disturbance may include a variety of effects, including subtle changes in behavior ( e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors ( e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors ( e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source ( e.g., whether it is moving or stationary, number of sources, distance from the source). Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a “progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,” rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007). However, many delphinids approach acoustic source vessels with no apparent discomfort or obvious behavioral change ( e.g., Barkaszi et al., 2012).

Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant ( e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, 2005). However, there are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight.

Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive ( e.g., Frankel and Clark, 2000; Ng and Leung, 2003; Nowacek et al., 2004; Goldbogen et al., 2013a, b). Variations in dive behavior may reflect interruptions in biologically significant activities ( e.g., foraging) or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response.

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

Visual tracking, passive acoustic monitoring, and movement recording tags were used to quantify sperm whale behavior prior to, during, and following exposure to airgun arrays at received levels in the range 140-160 dB at distances of 7-13 km, following a phase-in of sound intensity and full array exposures at 1-13 km (Madsen et al., 2006; Miller et al., 2009). Sperm whales did not exhibit horizontal avoidance behavior at the surface. However, foraging behavior may have been affected. The sperm whales exhibited 19 percent less vocal (buzz) rate during full exposure relative to post exposure, and the whale that was approached most closely had an extended resting period and did not resume foraging until the airguns had ceased firing. The remaining whales continued to execute foraging dives throughout exposure; however, swimming movements during foraging dives were 6 percent lower during exposure than control periods (Miller et al., 2009). These data raise concerns that seismic surveys may impact foraging behavior in sperm whales, although more data are required to understand whether the differences were due to exposure or natural variation in sperm whale behavior (Miller et al., 2009).

Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure ( e.g., Kastelein et al., 2001, 2005, 2006; Gailey et al., 2007, 2016).

Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994).

Cerchio et al. (2014) used passive acoustic monitoring to document the presence of singing humpback whales off the coast of northern Angola and to opportunistically test for the effect of seismic survey activity on the number of singing whales. Two recording units were deployed between March and December 2008 in the offshore environment; numbers of singers were counted every hour. Generalized Additive Mixed Models were used to assess the effect of survey day (seasonality), hour (diel variation), moon phase, and received levels of noise (measured from a single pulse during each ten minute sampled period) on singer number. The number of singers significantly decreased with increasing received level of noise, suggesting that humpback whale breeding activity was disrupted to some extent by the survey activity.

Castellote et al. (2012) reported acoustic and behavioral changes by fin whales in response to shipping and airgun noise. Acoustic features of fin whale song notes recorded in the Mediterranean Sea and northeast Atlantic Ocean were compared for areas with different shipping noise levels and traffic intensities and during a seismic airgun survey. During the first 72 hours (h) of the survey, a steady decrease in song received levels and bearings to singers indicated that whales moved away from the acoustic source and out of the study area. This displacement persisted for a time period well beyond the 10-day duration of seismic airgun activity, providing evidence that fin whales may avoid an area for an extended period in the presence of increased noise. The authors hypothesize that fin whale acoustic communication is modified to compensate for increased background noise and that a sensitization process may play a role in the observed temporary displacement.

Seismic pulses at average received levels of 131 dB re 1 μPa 2 -s caused blue whales to increase call production (Di Iorio and Clark, 2010). In contrast, McDonald et al. (1995) tracked a blue whale with seafloor seismometers and reported that it stopped vocalizing and changed its travel direction at a range of 10 km from the acoustic source vessel (estimated received level 143 dB pk-pk). Blackwell et al. (2013) found that bowhead whale call rates dropped significantly at onset of airgun use at sites with a median distance of 41-45 km from the survey. Blackwell et al. (2015) expanded this analysis to show that whales actually increased calling rates as soon as airgun signals were detectable before ultimately decreasing calling rates at higher received levels ( i.e., 10-minute cumulative SEL (SEL cum ) of ~127 dB). Overall, these results suggest that bowhead whales may adjust their vocal output in an effort to compensate for noise before ceasing vocalization effort and ultimately deflecting from the acoustic source (Blackwell et al., 2013, 2015). These studies demonstrate that even low levels of noise received far from the source can induce changes in vocalization and/or behavior for mysticetes.

Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Humpback whales showed avoidance behavior in the presence of an active seismic array during observational studies and controlled exposure experiments in western Australia (McCauley et al., 2000). Avoidance may be short-term, with animals returning to the area once the noise has ceased ( e.g., Bowles et al., 1994; Goold, 1996; Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur ( e.g., Bejder et al., 2006; Teilmann et al., 2006).

A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response ( e.g., directed movement, rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine mammal strandings (Evans and England, 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves, 2008), and whether individuals are solitary or in groups may influence the response.

Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention ( i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates ( e.g., Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and Radford, 2011). In addition, chronic disturbance can cause population declines through reduction of fitness ( e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both ( e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a 5 day period did not cause any sleep deprivation or stress effects.

Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses.

Stone (2015) reported data from at-sea observations during 1,196 seismic surveys from 1994 to 2010. When large arrays of airguns (considered to be 500 in 3 or more) were firing, lateral displacement, more localized avoidance, or other changes in behavior were evident for most odontocetes. However, significant responses to large arrays were found only for the minke whale and fin whale. Behavioral responses observed included changes in swimming or surfacing behavior, with indications that cetaceans remained near the water surface at these times. Cetaceans were recorded as feeding less often when large arrays were active. Behavioral observations of gray whales during a seismic survey monitored whale movements and respirations pre-, during and post-seismic survey (Gailey et al., 2016). Behavioral state and water depth were the best `natural' predictors of whale movements and respiration and, after considering natural variation, none of the response variables were significantly associated with seismic survey or vessel sounds.

Stress Responses —An animal's perception of a threat may be sufficient to trigger stress responses consisting of some combination of behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses ( e.g., Seyle, 1950; Moberg, 2000). In many cases, an animal's first and sometimes most economical (in terms of energetic costs) response is behavioral avoidance of the potential stressor. Autonomic nervous system responses to stress typically involve changes in heart rate, blood pressure, and gastrointestinal activity. These responses have a relatively short duration and may or may not have a significant long-term effect on an animal's fitness.

Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance ( e.g., Moberg, 1987; Blecha, 2000). Increases in the circulation of glucocorticoids are also equated with stress (Romano et al., 2004).

The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficiently to restore normal function.

Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals ( e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005). Stress responses due to exposure to anthropogenic sounds or other stressors and their effects on marine mammals have also been reviewed (Fair and Becker, 2000; Romano et al., 2002b) and, more rarely, studied in wild populations ( e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales. These and other studies lead to a reasonable expectation that some marine mammals will experience physiological stress responses upon exposure to acoustic stressors and that it is possible that some of these would be classified as “distress.” In addition, any animal experiencing TTS would likely also experience stress responses (NRC, 2003).

Auditory Masking —Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest ( e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, navigation) (Richardson et al., 1995; Erbe et al., 2016). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural ( e.g., snapping shrimp, wind, waves, precipitation) or anthropogenic ( e.g., shipping, sonar, seismic exploration) in origin. The ability of a noise source to mask biologically important sounds depends on the characteristics of both the noise source and the signal of interest ( e.g., signal-to-noise ratio, temporal variability, direction), in relation to each other and to an animal's hearing abilities ( e.g., sensitivity, frequency range, critical ratios, frequency discrimination, directional discrimination, age or TTS hearing loss), and existing ambient noise and propagation conditions.

Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals ( e.g., Clark et al., 2009) and may result in energetic or other costs as animals change their vocalization behavior ( e.g., Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio and Clark, 2009; Holt et al., 2009). Masking can be reduced in situations where the signal and noise come from different directions (Richardson et al., 1995), through amplitude modulation of the signal, or through other compensatory behaviors (Houser and Moore, 2014). Masking can be tested directly in captive species ( e.g., Erbe, 2008), but in wild populations it must be either modeled or inferred from evidence of masking compensation. There are few studies addressing real-world masking sounds likely to be experienced by marine mammals in the wild ( e.g., Branstetter et al., 2013).

Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals ( e.g., from vessel traffic), contribute to elevated ambient sound levels, thus intensifying masking.

Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited, although there are few specific data on this. Because of the intermittent nature and low duty cycle of seismic pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. However, in exceptional situations, reverberation occurs for much or all of the interval between pulses ( e.g., Simard et al. 2005; Clark and Gagnon 2006), which could mask calls. Situations with prolonged strong reverberation are infrequent. However, it is common for reverberation to cause some lesser degree of elevation of the background level between airgun pulses ( e.g., Gedamke 2011; Guerra et al. 2011, 2016; Klinck et al. 2012; Guan et al. 2015), and this weaker reverberation presumably reduces the detection range of calls and other natural sounds to some degree. Guerra et al. (2016) reported that ambient noise levels between seismic pulses were elevated as a result of reverberation at ranges of 50 km from the seismic source. Based on measurements in deep water of the Southern Ocean, Gedamke (2011) estimated that the slight elevation of background levels during intervals between pulses reduced blue and fin whale communication space by as much as 36-51 percent when a seismic survey was operating 450-2,800 km away. Based on preliminary modeling, Wittekind et al. (2016) reported that airgun sounds could reduce the communication range of blue and fin whales 2000 km from the seismic source. Nieukirk et al. (2012) and Blackwell et al. (2013) noted the potential for masking effects from seismic surveys on large whales.

Some baleen and toothed whales are known to continue calling in the presence of seismic pulses, and their calls usually can be heard between the pulses ( e.g., Nieukirk et al. 2012; Thode et al. 2012; Bröker et al. 2013; Sciacca et al. 2016). As noted above, Cerchio et al. (2014) suggested that the breeding display of humpback whales off Angola could be disrupted by seismic sounds, as singing activity declined with increasing received levels. In addition, some cetaceans are known to change their calling rates, shift their peak frequencies, or otherwise modify their vocal behavior in response to airgun sounds ( e.g., Di Iorio and Clark 2010; Castellote et al. 2012; Blackwell et al. 2013, 2015). The hearing systems of baleen whales are undoubtedly more sensitive to low-frequency sounds than are the ears of the small odontocetes that have been studied directly ( e.g., MacGillivray et al. 2014). The sounds important to small odontocetes are predominantly at much higher frequencies than are the dominant components of airgun sounds, thus limiting the potential for masking. In general, masking effects of seismic pulses are expected to be minor, given the normally intermittent nature of seismic pulses.

Vessel noise from the R/V Justo Sierra could affect marine animals in the proposed survey areas. Houghton et al. (2015) proposed that vessel speed is the most important predictor of received noise levels, and Putland et al. (2017) also reported reduced sound levels with decreased vessel speed. Sounds produced by large vessels generally dominate ambient noise at frequencies from 20 to 300 Hz (Richardson et al. 1995). However, some energy is also produced at higher frequencies (Hermannsen et al. 2014); low levels of high-frequency sound from vessels has been shown to elicit responses in harbor porpoise (Dyndo et al. 2015). Increased levels of ship noise have been shown to affect foraging by porpoise (Teilmann et al. 2015; Wisniewska et al. 2018); Wisniewska et al. (2018) suggest that a decrease in foraging success could have long-term fitness consequences.

Ship noise, through masking, can reduce the effective communication distance of a marine mammal if the frequency of the sound source is close to that used by the animal, and if the sound is present for a significant fraction of time ( e.g., Richardson et al. 1995; Clark et al. 2009; Jensen et al. 2009; Gervaise et al. 2012; Hatch et al. 2012; Rice et al. 2014; Dunlop 2015; Erbe et al. 2015; Jones et al. 2017; Putland et al. 2017). In addition to the frequency and duration of the masking sound, the strength, temporal pattern, and location of the introduced sound also play a role in the extent of the masking (Branstetter et al. 2013, 2016; Finneran and Branstetter 2013; Sills et al. 2017). Branstetter et al. (2013) reported that time-domain metrics are also important in describing and predicting masking. In order to compensate for increased ambient noise, some cetaceans are known to increase the source levels of their calls in the presence of elevated noise levels from shipping, shift their peak frequencies, or otherwise change their vocal behavior ( e.g., Parks et al. 2011, 2012, 2016a,b; Castellote et al. 2012; Melcón et al. 2012; Azzara et al. 2013; Tyack and Janik 2013; Luís et al. 2014; Sairanen 2014; Papale et al. 2015; Bittencourt et al. 2016; Dahlheim and Castellote 2016; Gospić and Picciulin 2016; Gridley et al. 2016; Heiler et al. 2016; Martins et al. 2016; O'Brien et al. 2016; Tenessen and Parks 2016). Harp seals did not increase their call frequencies in environments with increased low-frequency sounds (Terhune and Bosker 2016). Holt et al. (2015) reported that changes in vocal modifications can have increased energetic costs for individual marine mammals. A negative correlation between the presence of some cetacean species and the number of vessels in an area has been demonstrated by several studies ( e.g., Campana et al. 2015; Culloch et al. 2016).

Baleen whales are thought to be more sensitive to sound at these low frequencies than are toothed whales ( e.g., MacGillivray et al. 2014), possibly causing localized avoidance of the proposed survey area during seismic operations. Reactions of gray and humpback whales to vessels have been studied, and there is limited information available about the reactions of right whales and rorquals (fin, blue, and minke whales). Reactions of humpback whales to boats are variable, ranging from approach to avoidance (Payne 1978; Salden 1993). Baker et al. (1982, 1983) and Baker and Herman (1989) found humpbacks often move away when vessels are within several kilometers. Humpbacks seem less likely to react overtly when actively feeding than when resting or engaged in other activities (Krieger and Wing 1984, 1986). Increased levels of ship noise have been shown to affect foraging by humpback whales (Blair et al. 2016). Fin whale sightings in the western Mediterranean were negatively correlated with the number of vessels in the area (Campana et al. 2015). Minke whales and gray seals have shown slight displacement in response to construction-related vessel traffic (Anderwald et al. 2013).

Many odontocetes show considerable tolerance of vessel traffic, although they sometimes react at long distances if confined by ice or shallow water, if previously harassed by vessels, or have had little or no recent exposure to ships (Richardson et al. 1995). Dolphins of many species tolerate and sometimes approach vessels ( e.g., Anderwald et al. 2013). Some dolphin species approach moving vessels to ride the bow or stern waves (Williams et al. 1992). Pirotta et al. (2015) noted that the physical presence of vessels, not just ship noise, disturbed the foraging activity of bottlenose dolphins. Sightings of striped dolphin, Risso's dolphin, sperm whale, and Cuvier's beaked whale in the western Mediterranean were negatively correlated with the number of vessels in the area (Campana et al. 2015).

There are few data on the behavioral reactions of beaked whales to vessel noise, though they seem to avoid approaching vessels ( e.g., Würsig et al. 1998) or dive for an extended period when approached by a vessel ( e.g., Kasuya 1986). Based on a single observation, Aguilar Soto et al. (2006) suggest foraging efficiency of Cuvier's beaked whales may be reduced by close approach of vessels.

In summary, project vessel sounds would not be at levels expected to cause anything more than possible localized and temporary behavioral changes in marine mammals, and would not be expected to result in significant negative effects on individuals or at the population level. In addition, in all oceans of the world, large vessel traffic is currently so prevalent that it is commonly considered a usual source of ambient sound (NSF-USGS 2011).

Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales ( e.g., fin whales), which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. The severity of injuries typically depends on the size and speed of the vessel, with the probability of death or serious injury increasing as vessel speed increases (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). Impact forces increase with speed, as does the probability of a strike at a given distance (Silber et al., 2010; Gende et al., 2011).

Pace and Silber (2005) also found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 knots, and exceeded 90 percent at 17 knots. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne, 1999; Knowlton et al., 1995). In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 knots. The chances of a lethal injury decline from approximately 80 percent at 15 knots to approximately 20 percent at 8.6 knots. At speeds below 11.8 knots, the chances of lethal injury drop below 50 percent, while the probability asymptotically increases toward one hundred percent above 15 knots.

The R/V Justo Sierra travels at a speed of 4-5 knots during seismic acquisition. When not towing seismic equipment, the R/V Justo Sierra cruises at 12 knots and has a maximum speed of 12.5 knots. At survey speed, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. At average transit speed, the probability of serious injury or mortality resulting from a strike is less than 50 percent. However, the likelihood of a strike actually happening is again discountable. Ship strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is geophysical survey activity. Jensen and Silber (2004) summarized ship strikes of large whales worldwide from 1975-2003 and found that most collisions occurred in the open ocean and involved large vessels ( e.g., commercial shipping). No such incidents were reported for geophysical survey vessels during that time period.

It is possible for ship strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 knots) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale's vertebrae, and that this was an unavoidable event. This strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity ( p = 1.9 × 10 −6 ; 95 percent CI = 0−5.5 × 10 −6 ; NMFS, 2013b). In addition, a research vessel reported a fatal strike in 2011 of a dolphin in the Atlantic, demonstrating that it is possible for strikes involving smaller cetaceans to occur. In that case, the incident report indicated that an animal apparently was struck by the vessel's propeller as it was intentionally swimming near the vessel. While indicative of the type of unusual events that cannot be ruled out, neither of these instances represents a circumstance that would be considered reasonably foreseeable or that would be considered preventable.

Although the likelihood of the vessel striking a marine mammal is low, we propose to require a robust ship strike avoidance protocol (see Proposed Mitigation), which we believe eliminates any foreseeable risk of ship strike. We anticipate that vessel collisions involving a seismic data acquisition vessel towing gear, while not impossible, represent unlikely, unpredictable events for which there are no preventive measures. Given the required mitigation measures, the relatively slow speed of the vessel towing gear, the presence of bridge crew watching for obstacles at all times (including marine mammals), and the presence of marine mammal observers, we believe that the possibility of ship strike is discountable and, further, that were a strike of a large whale to occur, it would be unlikely to result in serious injury or mortality. No incidental take resulting from ship strike is anticipated, and this potential effect of the specified activity will not be discussed further in the following analysis.

Stranding— When a living or dead marine mammal swims or floats onto shore and becomes “beached” or incapable of returning to sea, the event is a “stranding” (Geraci et al., 1999; Perrin and Geraci, 2002; Geraci and Lounsbury, 2005; NMFS, 2007). The legal definition for a stranding under the MMPA is that (A) a marine mammal is dead and is (i) on a beach or shore of the United States; or (ii) in waters under the jurisdiction of the United States (including any navigable waters); or (B) a marine mammal is alive and is (i) on a beach or shore of the United States and is unable to return to the water; (ii) on a beach or shore of the United States and, although able to return to the water, is in need of apparent medical attention; or (iii) in the waters under the jurisdiction of the United States (including any navigable waters), but is unable to return to its natural habitat under its own power or without assistance.

Marine mammals strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci et al., 1976; Eaton, 1979; Odell et al., 1980; Best, 1982). Numerous studies suggest that the physiology, behavior, habitat relationships, age, or condition of cetaceans may cause them to strand or might pre-dispose them to strand when exposed to another phenomenon. These suggestions are consistent with the conclusions of numerous other studies that have demonstrated that combinations of dissimilar stressors commonly combine to kill an animal or dramatically reduce its fitness, even though one exposure without the other does not produce the same result (Chroussos, 2000; Creel, 2005; DeVries et al., 2003; Fair and Becker, 2000; Foley et al., 2001; Moberg, 2000; Relyea, 2005a; 2005b, Romero, 2004; Sih et al., 2004).

Use of military tactical sonar has been implicated in a majority of investigated stranding events. Most known stranding events have involved beaked whales, though a small number have involved deep-diving delphinids or sperm whales ( e.g., Mazzariol et al., 2010; Southall et al., 2013). In general, long duration (~1 second) and high-intensity sounds (>235 dB SPL) have been implicated in stranding events (Hildebrand, 2004). With regard to beaked whales, mid-frequency sound is typically implicated (when causation can be determined) (Hildebrand, 2004). Although seismic airguns create predominantly low-frequency energy, the signal does include a mid-frequency component. We have considered the potential for the proposed surveys to result in marine mammal stranding and have concluded that, based on the best available information, stranding is not expected to occur.

Effects to Prey —Marine mammal prey varies by species, season, and location and, for some, is not well documented. Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. However, the reaction of fish to airguns depends on the physiological state of the fish, past exposures, motivation ( e.g., feeding, spawning, migration), and other environmental factors. Several studies have demonstrated that airgun sounds might affect the distribution and behavior of some fishes, potentially impacting foraging opportunities or increasing energetic costs ( e.g., Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al., 1992; Santulli et al., 1999; Paxton et al., 2017), though the bulk of studies indicate no or slight reaction to noise ( e.g., Miller and Cripps, 2013; Dalen and Knutsen, 1987; Pena et al., 2013; Chapman and Hawkins, 1969; Wardle et al., 2001; Sara et al., 2007; Jorgenson and Gyselman, 2009; Blaxter et al., 1981; Cott et al., 2012; Boeger et al., 2006), and that, most commonly, while there are likely to be impacts to fish as a result of noise from nearby airguns, such effects will be temporary. For example, investigators reported significant, short-term declines in commercial fishing catch rate of gadid fishes during and for up to five days after seismic survey operations, but the catch rate subsequently returned to normal (Engas et al., 1996; Engas and Lokkeborg, 2002). Other studies have reported similar findings (Hassel et al., 2004). Skalski et al. (1992) also found a reduction in catch rates—for rockfish ( Sebastes spp.) in response to controlled airgun exposure—but suggested that the mechanism underlying the decline was not dispersal but rather decreased responsiveness to baited hooks associated with an alarm behavioral response. A companion study showed that alarm and startle responses were not sustained following the removal of the sound source (Pearson et al., 1992). Therefore, Skalski et al. (1992) suggested that the effects on fish abundance may be transitory, primarily occurring during the sound exposure itself. In some cases, effects on catch rates are variable within a study, which may be more broadly representative of temporary displacement of fish in response to airgun noise ( i.e., catch rates may increase in some locations and decrease in others) than any long-term damage to the fish themselves (Streever et al., 2016).

SPLs of sufficient strength have been known to cause injury to fish and fish mortality and, in some studies, fish auditory systems have been damaged by airgun noise (McCauley et al., 2003; Popper et al., 2005; Song et al., 2008). However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen et al. (2012b. (2012) showed that a TTS of 4-6 dB was recoverable within 24 hours for one species. Impacts would be most severe when the individual fish is close to the source and when the duration of exposure is long—both of which are conditions unlikely to occur for this survey that is necessarily transient in any given location and likely result in brief, infrequent noise exposure to prey species in any given area. For this survey, the sound source is constantly moving, and most fish would likely avoid the sound source prior to receiving sound of sufficient intensity to cause physiological or anatomical damage. In addition, ramp-up may allow certain fish species the opportunity to move further away from the sound source.

A recent comprehensive review (Carroll et al., 2017) found that results are mixed as to the effects of airgun noise on the prey of marine mammals. While some studies suggest a change in prey distribution and/or a reduction in prey abundance following the use of seismic airguns, others suggest no effects or even positive effects in prey abundance. As one specific example, Paxton et al. (2017), which describes findings related to the effects of a 2014 seismic survey on a reef off of North Carolina, showed a 78 percent decrease in observed nighttime abundance for certain species. It is important to note that the evening hours during which the decline in fish habitat use was recorded (via video recording) occurred on the same day that the seismic survey passed, and no subsequent data is presented to support an inference that the response was long-lasting. Additionally, given that the finding is based on video images, the lack of recorded fish presence does not support a conclusion that the fish actually moved away from the site or suffered any serious impairment. In summary, this particular study corroborates prior studies indicating that a startle response or short-term displacement should be expected.

Available data suggest that cephalopods are capable of sensing the particle motion of sounds and detect low frequencies up to 1-1.5 kHz, depending on the species, and so are likely to detect airgun noise (Kaifu et al., 2008; Hu et al., 2009; Mooney et al., 2010; Samson et al., 2014). Auditory injuries (lesions occurring on the statocyst sensory hair cells) have been reported upon controlled exposure to low-frequency sounds, suggesting that cephalopods are particularly sensitive to low-frequency sound (Andre et al., 2011; Sole et al., 2013). Behavioral responses, such as inking and jetting, have also been reported upon exposure to low-frequency sound (McCauley et al., 2000b; Samson et al., 2014). Similar to fish, however, the transient nature of the survey leads to an expectation that effects will be largely limited to behavioral reactions and would occur as a result of brief, infrequent exposures.

With regard to potential impacts on zooplankton, McCauley et al. (2017) found that exposure to airgun noise resulted in significant depletion for more than half the taxa present and that there were two to three times more dead zooplankton after airgun exposure compared with controls for all taxa, within 1 km of the airguns. However, the authors also stated that in order to have significant impacts on r-selected species ( i.e., those with high growth rates and that produce many offspring) such as plankton, the spatial or temporal scale of impact must be large in comparison with the ecosystem concerned, and it is possible that the findings reflect avoidance by zooplankton rather than mortality (McCauley et al., 2017). In addition, the results of this study are inconsistent with a large body of research that generally finds limited spatial and temporal impacts to zooplankton as a result of exposure to airgun noise ( e.g., Dalen and Knutsen, 1987; Payne, 2004; Stanley et al., 2011). Most prior research on this topic, which has focused on relatively small spatial scales, has showed minimal effects ( e.g., Kostyuchenko, 1973; Booman et al., 1996; Sætre and Ona, 1996; Pearson et al., 1994; Bolle et al., 2012).

A modeling exercise was conducted as a follow-up to the McCauley et al. (2017) study (as recommended by McCauley et al. ), in order to assess the potential for impacts on ocean ecosystem dynamics and zooplankton population dynamics (Richardson et al., 2017). Richardson et al. (2017) found that for copepods with a short life cycle in a high-energy environment, a full-scale airgun survey would impact copepod abundance up to three days following the end of the survey, suggesting that effects such as those found by McCauley et al. (2017) would not be expected to be detectable downstream of the survey areas, either spatially or temporally.

Notably, a recently described study produced results inconsistent with those of McCauley et al. (2017). Researchers conducted a field and laboratory study to assess if exposure to airgun noise affects mortality, predator escape response, or gene expression of the copepod Calanus finmarchicus (Fields et al., 2019). Immediate mortality of copepods was significantly higher, relative to controls, at distances of 5 m or less from the airguns. Mortality one week after the airgun blast was significantly higher in the copepods placed 10 m from the airgun but was not significantly different from the controls at a distance of 20 m from the airgun. The increase in mortality, relative to controls, did not exceed 30 percent at any distance from the airgun. Moreover, the authors caution that even this higher mortality in the immediate vicinity of the airguns may be more pronounced than what would be observed in free-swimming animals due to increased flow speed of fluid inside bags containing the experimental animals. There were no sublethal effects on the escape performance or the sensory threshold needed to initiate an escape response at any of the distances from the airgun that were tested. Whereas McCauley et al. (2017) reported an SEL of 156 dB at a range of 509-658 m, with zooplankton mortality observed at that range, Fields et al. (2019) reported an SEL of 186 dB at a range of 25 m, with no reported mortality at that distance. Regardless, if we assume a worst-case likelihood of severe impacts to zooplankton within approximately 1 km of the acoustic source, the brief time to regeneration of the potentially affected zooplankton populations does not lead us to expect any meaningful follow-on effects to the prey base for marine mammals.

A recent review article concluded that, while laboratory results provide scientific evidence for high-intensity and low-frequency sound-induced physical trauma and other negative effects on some fish and invertebrates, the sound exposure scenarios in some cases are not realistic to those encountered by marine organisms during routine seismic operations (Carroll et al., 2017). The review finds that there has been no evidence of reduced catch or abundance following seismic activities for invertebrates, and that there is conflicting evidence for fish with catch observed to increase, decrease, or remain the same. Further, where there is evidence for decreased catch rates in response to airgun noise, these findings provide no information about the underlying biological cause of catch rate reduction (Carroll et al., 2017).

In summary, impacts of the specified activity on marine mammal prey species will likely be limited to behavioral responses, the majority of prey species will be capable of moving out of the area during the survey, a rapid return to normal recruitment, distribution, and behavior for prey species is anticipated, and, overall, impacts to prey species will be minor and temporary. Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects. Mortality from decompression injuries is possible in close proximity to a sound, but only limited data on mortality in response to airgun noise exposure are available (Hawkins et al., 2014). The most likely impacts for most prey species in the survey area would be temporary avoidance of the area. The proposed survey would move through an area relatively quickly, limiting exposure to multiple impulsive sounds. In all cases, sound levels would return to ambient once the survey moves out of the area or ends and the noise source is shut down and, when exposure to sound ends, behavioral and/or physiological responses are expected to end relatively quickly (McCauley et al., 2000b). The duration of fish avoidance of a given area after survey effort stops is unknown, but a rapid return to normal recruitment, distribution, and behavior is anticipated. While the potential for disruption of spawning aggregations or schools of important prey species can be meaningful on a local scale, the mobile and temporary nature of this survey and the likelihood of temporary avoidance behavior suggest that impacts would be minor.

Acoustic Habitat —Acoustic habitat is the soundscape—which encompasses all of the sound present in a particular location and time, as a whole—when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Together, sounds made by animals and the geophysical environment ( e.g., produced by earthquakes, lightning, wind, rain, waves) make up the natural contributions to the total acoustics of a place. These acoustic conditions, termed acoustic habitat, are one attribute of an animal's total habitat.

Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of airgun arrays). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please see also the previous discussion on masking under Acoustic Effects ), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). For more detail on these concepts see, e.g., Barber et al., 2010; Pijanowski et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.

Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). Although the signals emitted by seismic airgun arrays are generally low frequency, they would also likely be of short duration and transient in any given area due to the nature of these surveys. As described previously, exploratory surveys such as this one cover a large area but would be transient rather than focused in a given location over time and therefore would not be considered chronic in any given location.

In summary, activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat or populations of fish species or on the quality of acoustic habitat. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

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

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

Authorized takes would be by Level B harassment only, as use of the acoustic sources ( i.e., seismic airgun) has the potential to result in disruption of behavioral patterns for individual marine mammals. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures ( i.e., marine mammal exclusion zones) discussed in detail below in Proposed Mitigation section, Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.

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

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

Level B Harassment 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.

Scripps' proposed activity includes the use of impulsive seismic sources, and therefore the 160 dB re 1 μPa (rms) is applicable.

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

On August 3, 2020, the USPTO issued a final rule, Setting and Adjusting Patent Fees During Fiscal Year 2020, 85 FR 46932 (Aug. 3, 2020). Under this rule registered patent practitioners and individuals granted limited recognition to practice before the USPTO in patent matters would be permitted to voluntarily certify to the OED Director their completion of 6 credits of CLE in the preceding 24 months (including 5 hours of CLE in patent law and practice and 1 hour of CLE in ethics). 37 CFR 11.11(a)(3)(i). The 2020 final fee rule also provided that the OED Director may recognize practitioners who certify their completion of CLE in the online register of practitioners. 37 CFR 11.11(a)(1).

On October 9, 2020, the USPTO published proposed CLE guidelines with a request for comments in the Federal Register , seeking public input on those guidelines. 85 FR 64128. The request for comments closed on January 7, 2021. The USPTO received 26 comments addressing both the proposed CLE guidelines and the provisions of the final patent fee rule that establish the biennial electronic registration statement.

On June 10, 2021, the USPTO issued a Federal Register Notice announcing that the voluntary CLE certification would commence in the spring of 2022 but that implementation of the biennial electronic registration statement would be delayed until November 1, 2024. 86 FR 30920.

At this time, based on operational priorities, implementation of the voluntary CLE certification will be delayed indefinitely. The expected implementation date for the biennial electronic registration statement remains November 1, 2024.

The USPTO will provide at least 120 days' notice prior to the implementation of the voluntary CLE certification. In addition, the USPTO will issue final CLE guidelines and specific instructions for making the certification prior to any implementation date.

Title of Collection: Electronic Fund Transfer Act (Regulation E) 12 CFR 1005.

OMB Control Number: 3170-0014.

Type of Review: Extension of a currently approved information collection.

Affected Public: Businesses and other for-profit institutions.

Estimated Number of Respondents: 600,000.

Estimated Total Annual Burden Hours: 3,353,592.

Abstract: The Electronic Fund Transfer Act (EFTA), 15 U.S.C. 1693 et seq., requires accurate disclosure of the costs, terms, and rights relating to electronic fund transfer (EFT) services and remittance transfer services to consumers. Entities offering EFT services must provide consumers with full and accurate information regarding consumers' rights and responsibilities in connection with EFT services. These disclosures are intended to protect the rights of consumers using EFT services, such as automated teller machine (ATM) transfers, telephone bill-payment services, point-of-sale transfers at retail establishments, electronic check conversion, payroll cards, and preauthorized transfers from or to a consumer's account. EFTA also establishes error resolution procedures and limits consumer liability for unauthorized transfers in connection with EFT services. EFTA and Regulation E impose disclosure and other requirements on issuers and sellers of gift cards, gift certificates, and general-use prepaid cards. Further, EFTA and Regulation E provide protections for consumers in the United States who send remittance transfers to persons in a foreign country. It also provides comprehensive protections for consumers who use “prepaid accounts.” Tailored provisions governing disclosures, limited liability, error resolution, and periodic statements added new requirements regarding the posting of account agreements. Additionally, Regulations E regulates overdraft credit features offered in connection with prepaid accounts.

Request for Comments: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.

Composition of the specific PRB is provided below:

Purpose of Program: The NRC Program provides grants to institutions of higher education (IHEs) or consortia of IHEs to establish, strengthen, and operate comprehensive and undergraduate centers that will be national resources for: (a) Teaching of modern foreign languages; (b) instruction in fields needed to provide a full understanding of world regions where the modern foreign languages are used; (c) research and training in international studies and international and foreign language aspects of professional and other fields of study; and (d) instruction and research on issues in world affairs.

Priorities: This notice contains two absolute priorities and one competitive preference priority for the NRC Program. Absolute Priority 1 is from section 602(e) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1122(e)). Absolute Priority 2 is from the program regulations (34 CFR 656.23). The competitive preference priority is from the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs published in the Federal Register on December 10, 2021 (86 FR 70612) (Supplemental Priorities).

Absolute Priorities: For FY 2022 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 these priorities.

These priorities are:

Absolute Priority 1 .

Applications that (1) explain how the activities funded by the grant will reflect diverse perspectives and a wide range of views and generate debate on world regions and international affairs; and (2) describe how the applicant will encourage government service in areas of national need, as identified by the Secretary, as well as in areas of need in the education, business, and non-profit sectors.

Absolute Priority 2 .

Applications that propose teacher training activities on the language, languages, area studies, or thematic focus of the Center.

Competitive Preference Priority: For FY 2022 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is a competitive preference priority. Under 34 CFR 75.105(c)(2)(i), we award up to an additional five points to an application, depending on how well the application meets the priority.

This priority is:

Partnership with Minority-Serving Institutions (MSIs) or Community Colleges (up to 5 additional points) .

Under this priority, an applicant must demonstrate that the project will be implemented by or in partnership with one or more of the following entities:

(1) Community colleges (as defined in this notice).

(2) Historically Black colleges and universities (as defined in this notice).

(3) Tribal Colleges and Universities (as defined in this notice).

(4) Minority-serving institutions (as defined in this notice).

Definitions: The definitions below are from the Supplemental Priorities.

Community college means “junior or community college” as defined in section 312(f) of the Higher Education Act of 1965, as amended (HEA).

Historically Black Colleges and Universities means colleges and universities that meet the criteria set out in 34 CFR 608.2.

Minority-Serving Institution (MSI) means an institution that is eligible to receive assistance under sections 316 through 320 of part A of title III, under part B of title III, or under title V of the HEA.

Tribal College or University has the meaning ascribed it in section 316(b)(3) of the HEA.

Note: The institutions designated eligible under title III and title V may be viewed at the following link: www2.ed.gov/about/offices/list/ope/idues/eligibility.html.

Program Authority: Title VI, part A, HEA (20 U.S.C. 1122).

Note: Projects will be awarded and must be operated in a manner consistent with the nondiscrimination requirements contained in Federal civil rights laws.

Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 76, 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 parts 655 and 656. (e) The Supplemental Priorities.

Areas of National Need: In accordance with section 601(c) of the HEA (20 U.S.C. 1121(c)), the Secretary consulted with a wide range of Federal agencies and received recommendations regarding national need for expertise in foreign language and world regions. These agencies' recommendations may be viewed on this web page: https://www2.ed.gov/about/offices/list/ope/iegps/languageneeds.html.

Type of Award: Discretionary grants.

Estimated Available Funds: $23,709,231.

Contingent upon the availability of funds and the quality of applications, we may make additional awards in FYs 2023, 2024, and 2025 from the list of unfunded applications from this competition.

Estimated Range of Awards: $188,000-$270,000 per year.

Estimated Average Size of Awards: $215,000 per year.

Estimated Number of Awards: 100.

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

Project Period: Up to 48 months.

1. Eligible Applicants: IHEs (as defined in section 101 of the HEA (20 U.S.C. 1001)) or consortia of IHEs.

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

b. Supplement-Not-Supplant: The NRC Program has supplement-not-supplant funding requirements. Under 34 CFR 656.33(b)(3), grant funds may not be used to supplant funds normally used by applicants for purposes of this program.

c. Indirect Cost Rate Information: This program uses a restricted indirect cost rate. For more information regarding indirect costs, or to obtain a negotiated indirect cost rate, please see www2.ed.gov/about/offices/list/ocfo/intro.html.

d. Administrative Cost Limitation: This program does not include any program-specific limitation on administrative expenses. All administrative expenses must be reasonable and necessary and conform to Cost Principles described in 2 CFR part 200 subpart E of the Uniform Guidance.

3. Subgrantees: Under 34 CFR 75.708(b) and (c), a grantee under this competition may award subgrants—to directly carry out project activities described in its application—to the following types of entities: IHEs, nonprofit organizations, professional organizations, or businesses. The grantee may award subgrants to entities it has identified in the approved application or that it selects through a competition under procedures established by the grantee.

4. Other: (a) Reasonable and Necessary Costs: Applicants must ensure that all costs included in the proposed budget are necessary and reasonable to meet the goals and objectives of the proposed project. Any costs determined by the Secretary to be unreasonable or unnecessary will be removed from the final approved budget.

(b) Audits: (i) A non-Federal entity that expends $750,000 or more during the non-Federal entity's fiscal year in Federal awards must have a single or program-specific audit conducted for that year in accordance with the provisions of 2 CFR part 200. (2 CFR 200.501(a))

(ii) A non-Federal entity that expends less than $750,000 during the non-Federal entity's fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in 2 CFR 200.503 (Relation to Other Audit Requirements), but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and Government Accountability Office (GAO) (2 CFR 200.501(d)).

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 656.30(b). We reference additional regulations outlining funding restrictions in the Applicable Regulations section of this notice.

4. Recommended Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the priorities, selection criteria, and application requirements that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative to no more than 50 pages for single institution applications, and to no more than 60 pages for consortia applications and (2) use the following standards:

• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

• Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions. Charts, tables, figures, and graphs in the application narrative may be single spaced and will count toward the recommended page limit.

• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, and graphs. Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

The recommended page limit applies to the entirety of the application narrative. The recommended page limit does not apply to the Application for Federal Assistance face sheet (SF 424); the supplemental SF 424 form; Budget Information—Non-Construction Programs (ED 524); the detailed line item budget; the assurances and certifications, and the response to section 427 of the General Education Provisions Act; the project abstract, the table of contents, the list of acronyms, the response to the diverse perspectives/areas of need requirements, the NRC project profile form, and the appendices (curriculum vitae, course list, and, letters of support).

5. Award Basis: In determining whether to approve a grant award and the amount of such award, the Department will consider, among other things, the applicant's performance and use of funds under a previous or existing award under any Department program (34 CFR 75.217(d)(3)(ii) and 75.233). In assessing the applicant's performance and use of funds under a previous or existing award, the Secretary will consider, among other things, the outcomes the applicant has achieved and the results of any Departmental grant monitoring, including the applicant's progress in remedying any deficiencies identified in such monitoring.

1. General: For the FY 2022 NRC competition, all applications will be assigned to peer review panels based on world region—such as Africa, Asia, or the Middle East—or international focus, as specified in the NRC application profile form. Readers who serve on the peer review panels are selected based on their expertise in the specialized area studies, international studies, and modern foreign language(s) necessary to review, score, and rank the assigned applications in each distinct category. The Department will select applications for funding based on the ranking of each application in its distinct regional or thematic focus panel.

2. Selection Criteria: The following selection criteria for this program are from 34 CFR 656.21 and apply to applications for a comprehensive Center or an undergraduate Center, as indicated. The maximum possible points for the selection criteria, taken together with the maximum number of points awarded to applicants for addressing the competitive preference priorities, is 129 points.

Comprehensive Center Selection Criteria:

(a) Commitment to the subject area on which the Center focuses (up to 5 points). The Secretary reviews each application to determine the extent to which the institution provides financial and other support to the operation of the Center, teaching staff for the Center's subject area, library resources, linkages with institutions abroad, outreach activities, and qualified students in fields related to the Center.

(b) Quality of the Center's language instructional program (up to 14 points). The Secretary reviews each application to determine—

(1) The extent to which the Center provides instruction in the languages of the Center's subject area and the extent to which students enroll in the study of the languages of the subject area through programs or instruction offered by the Center or other providers;

(2) The extent to which the Center provides three or more levels of language training and the extent to which courses in disciplines other than language, linguistics, and literature are offered in appropriate foreign languages;

(3) Whether sufficient numbers of language faculty are available to teach the languages and levels of instruction described in the application and the extent to which language teaching staff (including faculty and instructional assistants) have been exposed to current language pedagogy training appropriate for performance-based teaching; and

(4) The quality of the language program as measured by the performance-based instruction being used or developed, the adequacy of resources for language teaching and practice, and language proficiency requirements.

(c) Quality of the Center's non-language instructional program up to 14 points). The Secretary reviews each application to determine—

(1) The quality and extent of the Center's course offerings in a variety of disciplines, including the extent to which courses in the Center's subject matter are available in the institution's professional schools;

(2) The extent to which the Center offers depth of specialized course coverage in one or more disciplines of the Center's subject area;

(3) The extent to which the institution employs a sufficient number of teaching faculty to enable the Center to carry out its purposes and the extent to which instructional assistants are provided with pedagogy training; and

(4) The extent to which interdisciplinary courses are offered for undergraduate and graduate students.

(d) Quality of curriculum design (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which the Center's curriculum has incorporated undergraduate instruction in the applicant's area or topic of specialization into baccalaureate degree programs (for example, major, minor, or certificate programs) and the extent to which these programs and their requirements (including language requirements) are appropriate for a Center in this subject area and will result in an undergraduate training program of high quality;

(2) The extent to which the Center's curriculum provides training options for graduate students from a variety of disciplines and professional fields and the extent to which these programs and their requirements (including language requirements) are appropriate for a Center in this subject area and result in graduate training programs of high quality;

(3) The extent to which the Center provides academic and career advising services for students; and

(4) The extent to which the Center has established formal arrangements for students to conduct research or study abroad and the extent to which these arrangements are used; and the extent to which the institution facilitates student access to other institutions' study abroad and summer language programs.

(e) Quality of staff resources (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which teaching faculty and other staff are qualified for the current and proposed Center activities and training programs, are provided professional development opportunities (including overseas experience), and participate in teaching, supervising, and advising students;

(2) The adequacy of Center staffing and oversight arrangements, including outreach and administration and the extent to which faculty from a variety of departments, professional schools, and the library are involved; and

(3) 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 members of racial or ethnic minority groups, women, persons with disabilities, and the elderly.

(f) Strength of library (up to 6 points). The Secretary reviews each application to determine—

(1) The strength of the institution's library holdings (both print and non-print, English and foreign language) in the subject area and at the educational levels (graduate, professional, undergraduate) on which the Center focuses; and the extent to which the institution provides financial support for the acquisition of library materials and for library staff in the subject area of the Center; and

(2) The extent to which research materials at other institutions are available to students through cooperative arrangements with other libraries or online databases and the extent to which teachers, students, and faculty from other institutions are able to access the library's holdings.

(g) Impact and evaluation (up to 25 points). The Secretary reviews each application to determine—

(1) The extent to which the Center's activities and training programs have a significant impact on the university, community, region, and the Nation as shown through indices such as enrollments, graduate placement data, participation rates for events, and usage of Center resources;

(2) The applicant's record of placing students into post-graduate employment, education, or training in areas of national need and the applicant's stated efforts to increase the number of such students that go into such placements;

(3) The degree to which activities of the Center address national needs, and generate information for and disseminate information to the public;

(4) The extent to which the applicant provides an evaluation plan that is comprehensive and objective and that will produce quantifiable, outcome-measure-oriented data; and the extent to which recent evaluations have been used to improve the applicant's program; and

(5) The extent to which the applicant supplies a clear description of how the applicant will provide equal access and treatment of eligible project participants who are members of groups that have been traditionally underrepresented, such as members of racial or ethnic minority groups, women, persons with disabilities, and the elderly.

(h) Outreach activities (up to 9 points). The Secretary reviews each application to determine the extent to which the Center demonstrates a significant and measurable regional and national impact of, and faculty and professional school involvement in, domestic outreach activities that involve—

(1) Elementary and secondary schools;

(2) Postsecondary institutions; and

(3) Business, media, and the general public.

(i) Program planning and budget (up to 25 points). The Secretary reviews each application to determine—

(1) The extent to which the applicant provides a development plan or timeline demonstrating how the proposed activities will contribute to a strengthened program and whether the applicant uses its resources and personnel effectively to achieve the proposed objectives;

(2) The extent to which the activities for which the applicant seeks funding are of high quality and directly related to the purpose of the National Resource Centers Program;

(3) The extent to which the costs of the proposed activities are reasonable in relation to the objectives of the program; and

(4) The long-term impact of the proposed activities on the institution's undergraduate, graduate, and professional training programs.

Undergraduate Center Selection Criteria:

(a) Commitment to the subject area on which the Center focuses (up to 5 points). The Secretary reviews each application to determine the extent to which the institution provides financial and other support to the operation of the Center, teaching staff for the Center's subject area, library resources, linkages with institutions abroad, outreach activities, and qualified students in fields related to the Center.

(b) Quality of the Center's language instructional program (up to 14 points). The Secretary reviews each application to determine—

(1) The extent to which the Center provides instruction in the languages of the Center's subject area and the extent to which students enroll in the study of the languages of the subject area through programs offered by the Center or other providers;

(2) The extent to which the Center provides three or more levels of language training and the extent to which courses in disciplines other than language, linguistics, and literature are offered in appropriate foreign languages;

(3) Whether sufficient numbers of language faculty are available to teach the languages and levels of instruction described in the application and the extent to which language teaching staff (including faculty and instructional assistants) have been exposed to current language pedagogy training appropriate for performance-based teaching; and

(4) The quality of the language program as measured by the performance-based instruction being used or developed, the adequacy of resources for language teaching and practice, and language proficiency requirements.

(c) Quality of the Center's non-language instructional program (up to 14 points). The Secretary reviews each application to determine—

(1) The quality and extent of the Center's course offerings in a variety of disciplines;

(2) The extent to which the Center offers depth of specialized course coverage in one or more disciplines of the Center's subject area;

(3) The extent to which the institution employs a sufficient number of teaching faculty to enable the Center to carry out its purposes and the extent to which instructional assistants are provided with pedagogy training; and

(4) The extent to which interdisciplinary courses are offered for undergraduate students.

(d) Quality of curriculum design (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which the Center's curriculum has incorporated undergraduate instruction in the applicant's area or topic of specialization into baccalaureate degree programs (for example, major, minor, or certificate programs) and the extent to which these programs and their requirements (including language requirements) are appropriate for a Center in this subject area and will result in an undergraduate training program of high quality;

(2) The extent to which the Center provides academic and career advising services for students; and

(3) The extent to which the Center has established formal arrangements for students to conduct research or study abroad and the extent to which these arrangements are used; and the extent to which the institution facilitates student access to other institutions' study abroad and summer language programs.

(e) Quality of staff resources (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which teaching faculty and other staff are qualified for the current and proposed Center activities and training programs, are provided professional development opportunities (including overseas experience), and participate in teaching, supervising, and advising students;

(2) The adequacy of Center staffing and oversight arrangements, including outreach and administration and the extent to which faculty from a variety of departments, professional schools, and the library are involved; and

(3) 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 members of racial or ethnic minority groups, women, persons with disabilities, and the elderly.

(f) Strength of library (up to 6 points). The Secretary reviews each application to determine—

(1) The strength of the institution's library holdings (both print and non-print, English and foreign language) in the subject area and at the educational levels (graduate, professional, undergraduate) on which the Center focuses; and the extent to which the institution provides financial support for the acquisition of library materials and for library staff in the subject area of the Center; and

(2) The extent to which research materials at other institutions are available to students through cooperative arrangements with other libraries or on-line databases and the extent to which teachers, students, and faculty from other institutions are able to access the library's holdings.

(g) Impact and evaluation (up to 25 points). The Secretary reviews each application to determine—

(1) The extent to which the Center's activities and training programs have a significant impact on the university, community, region, and the Nation as shown through indices such as enrollments, graduate placement data, participation rates for events, and usage of Center resources; the extent to which students matriculate into advanced language and area or international studies programs or related professional programs;

(2) The extent to which the applicant provides an evaluation plan that is comprehensive and objective and that will produce quantifiable, outcome-measure-oriented data; and the extent to which recent evaluations have been used to improve the applicant's program;

(3) The degree to which activities of the Center address national needs, and generate information for and disseminate information to the public;

(4) The applicant's record of placing students into post-graduate employment, education, or training in areas of national need and the applicant's stated efforts to increase the number of such students that go into such placements; and

(5) The extent to which the applicant supplies a clear description of how the applicant will provide equal access and treatment of eligible project participants who are members of groups that have been traditionally underrepresented, such as members of racial or ethnic minority groups, women, persons with disabilities, and the elderly.

(h) Outreach activities (up to 9 points). The Secretary reviews each application to determine the extent to which the Center demonstrates a significant and measurable regional and national impact of, and faculty and professional school involvement in, domestic outreach activities that involve—

(1) Elementary and secondary schools;

(2) Postsecondary institutions; and

(3) Business, media, and the general public.

(i) Program planning and budget (up to 25 points). The Secretary reviews each application to determine—

(1) The extent to which the applicant provides a development plan or timeline demonstrating how the proposed activities will contribute to a strengthened program and whether the applicant uses its resources and personnel effectively to achieve the proposed objectives;

(2) The extent to which the activities for which the applicant seeks funding are of high quality and directly related to the purpose of the National Resource Centers Program;

(3) The extent to which the costs of the proposed activities are reasonable in relation to the objectives of the program; and

(4) The long-term impact of the proposed activities on the institution's undergraduate training program.

3. 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 may also 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).

4. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.206, before awarding grants under these programs the Department conducts a review of the risks posed by applicants. Under 2 CFR 200.208, the Secretary may impose specific conditions and, under 2 CFR 3474.10, 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.

5. 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 200.206(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.

6. In General: In accordance with the Office of Management and Budget's guidance located at 2 CFR part 200, all applicable Federal laws, and relevant Executive guidance, the Department will review and consider applications for funding pursuant to this notice inviting applications in accordance with:

(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);

(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115—232) (2 CFR 200.216);

(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and

(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).

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 or subgrantee 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 .

Performance reports for the NRC Program must be submitted electronically into the International and Foreign Language Education (IFLE) web-based reporting system, International Resource Information System (IRIS). For information about IRIS and to view the reporting instructions, please go to https://iris.ed.gov/iris/pdfs/NRC.pdf .

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

5. Performance Measures: For the purposes of evaluating the success of the NRC Program under the Government Performance and Results Act of 1993 and Department reporting under 34 CFR 75.110, the Department has established the following performance measures:

(a) Percentage of priority languages defined by the Secretary of Education taught at NRCs.

(b) Percentage of NRCs teaching intermediate or advanced courses in priority languages as defined by the Secretary of Education.

(c) Percentage of NRCs that increased the number of intermediate or advanced level language courses in the priority area and/or less and least commonly taught languages (LCTLs) during the course of the grant period.

(d) Percentage of NRCs that increased the number of certificate, minor, or major degree programs in the priority area and/or LCTLs, area studies, or international studies during the course of the four-year grant period.

(e) Percentage of LCTLs taught at NRCs.

(f) Cost per NRC that increased the number of intermediate or advanced level language courses in the priority area and/or LCTLs during the course of the grant period.

The information provided by grantees in their performance reports submitted via the International Resource Information System (IRIS) will be the source of data for these measures. Reporting screens for institutions can be viewed at: http://iris.ed.gov/iris/pdfs/NRC.pdf .

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, whether the grantee has made substantial progress in achieving the performance targets in the grantee's approved application.

In making a continuation award, 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: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document and a copy of the application package in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

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.

Purpose of Program: The UB Program is one of the seven programs known as the Federal TRIO Programs. The UB Program is a discretionary grant program that supports projects designed to provide students with the skills and motivation necessary to complete a program of secondary education and enter into and succeed in a program of postsecondary education. There are three types of grants under the UB Program: UB; Veterans UB; and UB Math and Science grants. In this notice we invite applications for UB grants only. We will invite applications for Veterans UB grants and UB Math and Science grants in forthcoming notices. Required services under the UB Program are specified in sections 402C(b) and (c) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1070a-13), and permissible services under the UB Program are specified in section 402C(d) of the HEA.

Priorities: This notice contains three competitive preference priorities. Competitive Preference Priority 1 is from the Secretary's Notice of Administrative Priorities and Definitions for Discretionary Grant Programs, published in the Federal Register on March 9, 2020 (85 FR 13640) (Administrative Priorities). Competitive Preference Priorities 2 and 3 are from the Secretary's Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the Federal Register on December 10, 2021 (86 FR 70612) (Supplemental Priorities).

Note: Applicants must include in the one-page abstract submitted with the application a statement indicating which, if any, competitive preference priorities are addressed. If the applicant has addressed one or more of the competitive preference priorities, this information must also be listed on the UB Program Profile Form.

Competitive Preference Priorities: For FY 2022 and any subsequent year in which we make awards from the list of unfunded applicants from this competition, these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i), we award up to an additional nine points to an application, depending on how well the application meets the priorities.

The priorities are:

Competitive Preference Priority 1: Applications that Demonstrate a Rationale (Up to 3 points).

Under this priority, an applicant proposes a project that demonstrates a rationale (as defined in this notice).

Note: A list of evidence-based practices that are relevant to the UB Program is available at www2.ed.gov/programs/trioupbound/index.html . This list is not exhaustive. Additional information regarding the What Works Clearinghouse practice guides and intervention reports that could also be relevant is posted on the Department's website at www.ies.ed.gov/ncee/wwc .

Competitive Preference Priority 2: Meeting Student Social, Emotional, and Academic Needs.

Projects that are designed to improve students' social, emotional, academic, and career development, with a focus on underserved students, through providing multi-tiered systems of supports that address learning barriers both in and out of the classroom, that enable healthy development and respond to students' needs and which may include evidence-based trauma-informed practices and professional development for educators on avoiding deficit-based approaches.

Note: Because the UB Program supports students and not the professional development of educators, applicants should address supports for students only.

Competitive Preference Priority 3: Strengthening Cross-Agency Coordination and Community Engagement to Advance Systemic Change.

Projects that are designed to take a systemic evidence-based approach to improving outcomes for underserved students by establishing cross-agency partnerships, or community-based partnerships with local nonprofit organizations, businesses, philanthropic organizations, or others, to meet family well-being needs.

Definitions: The definitions below are from 34 CFR 77.1 and the Supplemental Priorities.

Demonstrates a rationale means a key project component included in the project's logic model is informed by research or evaluation findings that suggest the project component is likely to improve relevant outcomes.

Disconnected youth m eans an individual, between the ages 14 and 24, who may be from a low-income background, experiences homelessness, is in foster care, is involved in the justice system, or is not working or not enrolled in (or at risk of dropping out of) an educational institution.

Evidence-based means the proposed project component is supported by evidence that demonstrates a rationale.

Logic model (also referred to as a theory of action) means a framework that identifies key project components of the proposed project ( i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the theoretical and operational relationships among the key project components and relevant outcomes.

Note: In developing logic models, applicants may want to use resources such as the Regional Educational Laboratory Program's (REL Pacific) Education Logic Model Application, available at https://ies.ed.gov/ncee/edlabs/regions/pacific/elm.asp . Other sources include: https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014025.pdf , https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014007.pdf , and https://ies.ed.gov/ncee/edlabs/regions/northeast/pdf/REL_2015057.pdf .

Project component means an activity, strategy, intervention, process, product, practice, or policy included in a project. Evidence may pertain to an individual project component or to a combination of project components ( e.g., training teachers on instructional practices for English learners and follow-on coaching for these teachers).

Relevant outcome means the student outcome(s) or other outcome(s) the key project component is designed to improve, consistent with the specific goals of the program.

Underserved student means a student in one or more of the following subgroups:

(a) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.

(b) A student experiencing homelessness or housing insecurity.

(c) A student who is in foster care.

(d) A student who is the first in their family to attend postsecondary education.

(e) A student who is enrolled in or is seeking to enroll in postsecondary education who is eligible for a Pell Grant.

(f) A student performing significantly below grade level.

Application Requirements: The following application requirements for FY 2022 are from section 402C(e) of the HEA (20 U.S.C. 1070a-13).

An applicant must submit, as part of its application—

(1) An assurance that not less than two-thirds of the youths participating in the project proposed to be carried out under any application be low-income individuals who are first generation college students;

(2) An assurance that the remaining youths participating in the project proposed to be carried out under any application be low-income individuals, first generation college students, or students who have a high risk for academic failure;

(3) A determination by the institution, with respect to each participant in such project, that the participant has a need for academic support in order to pursue successfully a program of education beyond secondary school;

(4) An assurance that such participants be persons who have completed 8 years of elementary education and are at least 13 years of age but not more than 19 years of age, unless the imposition of any such limitation would defeat the purposes of section 402C(e) of the HEA; and

(5) An assurance that no student will be denied participation in a project assisted under section 402C of the HEA because the student will enter the project after the 9th grade.

Program Authority: 20 U.S.C. 1070a-11 and 1070a-13.

Note: Projects will be awarded and must be operated in a manner consistent with the nondiscrimination requirements contained in Federal civil rights laws.

Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 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 645. (e) The Administrative Priorities. (f) Supplemental Priorities.

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

Type of Award: Discretionary grants.

Estimated Available Funds: The Administration has requested $1,297,761,000 for new awards for the Federal TRIO Programs for FY 2022, of which we intend to use an estimated $355,697,826 for the UB Program. The actual level of funding, if any, depends 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 subsequent years from the list of unfunded applications from this competition.

Estimated Range of Awards: $287,537-$981,028.

Estimated Average Size of Awards: $368,217.

Maximum Award: The maximum award varies based on whether the applicant is currently receiving a UB Program grant, as well as the number of participants served.

• For an applicant that is not currently receiving a UB Program grant, the maximum award amount is $287,537, based upon a per-participant cost of no more than $4,792 and a minimum of 60 participants.

• For an applicant that is currently receiving a UB Program grant, the minimum number of participants is the number of participants in the project's FY 2021 grant award notification and the maximum award amount is equal to the applicant's base award amount for FY 2021.

Estimated Number of Awards: 966.

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

Project Period: Up to 60 months.

1. Eligible Applicants: IHEs; public and private agencies and organizations including community-based organizations with experience in serving disadvantaged youth; secondary schools; and combinations of such institutions, agencies, and organizations.

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

3. Indirect Cost Rate Information: This program uses a training indirect cost rate. This limits indirect cost reimbursement to an entity's actual indirect costs, as determined in its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less. For more information regarding training indirect cost rates, see 34 CFR 75.562. For more information regarding indirect costs, or to obtain a negotiated indirect cost rate, please see www2.ed.gov/about/offices/list/ocfo/intro.html.

4. Administrative Cost Limitation: This program does not include any program-specific limitation on administrative expenses. All administrative expenses must be reasonable and necessary and conform to Cost Principles described in 2 CFR part 200 subpart E of the Uniform Guidance.

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

6. Other: An applicant may submit more than one application for an UB Program grant so long as each application describes a project that serves a different target area or target school (34 CFR 645.20(a)). The Secretary is not designating any additional populations for which an applicant may submit a separate application under this competition (34 CFR 645.20(b)). The term “target area” is defined as a geographic area served by a project (34 CFR 645.6(b)). The term “target school” is defined as a school designated by the applicant as a focus of project services (34 CFR 645.6(b)).

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 645.41. We reference additional regulations outlining funding restrictions in the Applicable Regulations section of this notice.

4. Recommended Page Limit: The application narrative 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, to no more than 65 pages and (2) use the following standards:

• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

• Double space (no more than three lines per vertical inch) all text in the application narrative, excluding titles, headings, footnotes, quotations, references, and captions as well as all text in charts, tables, figures, and graphs, which may be single-spaced.

• Use a font that is either 12 point or larger, and no smaller than 10 pitch (characters per inch).

• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract. However, the recommended page limit does apply to all of the application narrative.

We recommend that any application addressing the competitive preference priorities include no more than three additional pages for each priority, for a total of up to nine additional pages for the competitive preference priorities if the three competitive preference priorities are addressed.

1. Selection Criteria: The selection criteria for this competition are from 34 CFR 645.31.

We will award up to 100 points to an application under the selection criteria and up to 9 additional points to an application under the competitive preference priorities, for a total score of up to 109 points. The maximum number of points available for each criterion is indicated in parentheses.

(a) Need for the project. (Up to 24 points) The Secretary evaluates the need for a Regular Upward Bound project in the proposed target area on the basis of information contained in the application which clearly demonstrates that—

(i) The income level of families in the target area is low; (Up to 4 points)

(ii) The education attainment level of adults in the target area is low; (Up to 4 points)

(iii) Target high school dropout rates are high; (Up to 4 points)

(iv) College-going rates in target high schools are low; (Up to 4 points)

(v) Student/counselor ratios in the target high schools are high; (Up to 4 points) and

(vi) Unaddressed academic, social and economic conditions in the target area pose serious problems for low-income, potentially first-generation college students. (Up to 4 points)

(b) Objectives. (9 points) The Secretary evaluates the quality of the applicant's objectives and proposed targets (percentages) in the following areas on the basis of the extent to which they are both ambitious, as related to the need data provided under paragraph (a) of this section, and attainable, given the project's plan of operation, budget, and other resources:

(i) Academic performance (GPA); (Up to 1 point)

(ii) Academic performance (standardized test scores); (Up to 1 point)

(iii) Secondary school retention and graduation (with regular secondary school diploma); (Up to 2 points)

(iv) Completion of rigorous secondary school program of study; (Up to 1 point)

(v) Postsecondary enrollment; (Up to 3 points) and

(vi) Postsecondary completion. (Up to 1 point)

(c) Plan of operation. (Up to 30 points) The Secretary determines the quality of the applicant's plan of operation by assessing the quality of—

(1) The plan to inform the faculty and staff at the applicant institution or agency and the interested individuals and organizations throughout the target area of the goals and objectives of the project; (Up to 3 points)

(2) The plan for identifying, recruiting, and selecting participants to be served by the project; (Up to 3 points)

(3) The plan for assessing individual participant needs and for monitoring the academic progress of participants while they are in Upward Bound; (Up to 3 points)

(4) The plan for locating the project within the applicant's organizational structure; (Up to 3 points)

(5) The curriculum, services and activities that are planned for participants in both the academic year and summer components; (Up to 3 points)

(6) The planned timelines for accomplishing critical elements of the project; (Up to 3 points)

(7) The plan to ensure effective and efficient administration of the project, including, but not limited to, financial management, student records management, and personnel management; (Up to 3 points)

(8) The applicant's plan to use its resources and personnel to achieve project objectives and to coordinate the Upward Bound project with other projects for disadvantaged students; (Up to 3 points)

(9) The plan to work cooperatively with parents and key administrative, teaching, and counseling personnel at the target schools to achieve project objectives; (Up to 3 points) and

(10) A follow-up plan for tracking graduates of Upward Bound as they enter and continue in postsecondary education. (Up to 3 points)

(d) Applicant and community support. (Up to 16 points) The Secretary evaluates the applicant and community support for the proposed project on the basis of the extent to which—

(1) The applicant is committed to supplementing the project with resources that enhance the project such as: Space, furniture and equipment, supplies, and the time and effort of personnel other than those employed in the project. (Up to 8 points)

(2) Resources secured through written commitments from community partners. (Up to 8 points)

(i) An applicant that is an IHE must include in its application commitments from the target schools and community organizations;

(ii) An applicant that is a secondary school must include in its application commitments from IHEs, community organizations, and, as appropriate, other secondary schools and the school district; and

(iii) An applicant that is a community organization must include in its application commitments from the target schools and IHEs.

(e) Quality of personnel. (Up to 8 points) To determine the quality of personnel the applicant plans to use the Secretary looks for information that shows—

(1) The qualifications required of the project director, including formal training or work experience in fields related to the objectives of the project and experience in designing, managing, or implementing similar projects; (Up to 3 points)

(2) The qualifications required of each of the other personnel to be used in the project, including formal training or work experience in fields related to the objectives of the project; (Up to 3 points)

(3) The quality of the applicant's plan for employing personnel who have succeeded in overcoming barriers similar to those confronting the project's target population. (Up to 2 points)

(f) Budget and cost effectiveness. (Up to 5 points) The Secretary reviews each application to determine the extent to which—

(1) The budget for the project is adequate to support planned project services and activities; (Up to 3 points) and

(2) Costs are reasonable in relation to the objectives and scope of the project. (Up to 2 points)

(g) Evaluation plan. (Up to 8 points) The Secretary evaluates the quality of the evaluation plan for the project on the basis of the extent to which the applicant's methods of evaluation—

(1) Are appropriate to the project and include both quantitative and qualitative evaluation measures; (Up to 4 points) and

(2) Examine in specific and measurable ways the success of the project in making progress toward achieving its process and outcomes objectives. (Up to 4 points)

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 may also 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 645.31. 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 645.32, the Secretary will award prior experience points to applicants that conducted a UB Program project during budget periods 2017-18, 2018-19, 2019-20, and 2020-21, based on their documented experience. Prior experience points, if any, will be added to the application's averaged reader score to determine the total score for each application.

If there are insufficient funds for all applications with the same total scores, the Secretary will choose among the tied applications so as to serve geographic areas in which there is significant child poverty and that have been underserved by the UB Program in accordance with the following procedures. The Secretary will identify and recommend an award for—

• First, applicants in the funding band that applied to serve target schools within a Congressional District (a) that has a child poverty level greater than 30 percent and (b) where UB projects had previously served either 10 or fewer target schools or fewer than 150 students within that Congressional District. If this first tie-breaker provision exhausts available funds, then no further action is taken.

• Second, applicants in the funding band that applied to serve target schools within a Congressional District (a) that has a child poverty level greater than 25 percent and (b) where UB projects had previously served either 15 or fewer target schools or fewer than 200 students within that Congressional District. If this second tie-breaker provision exhausts available funds, then no further action is taken.

• Third, applicants in the funding band that applied to serve target schools within a Congressional District where UB projects had previously served zero target schools.

Note: Within each of step one, two, and three of the tie-breaker, if there is more than one application with the same score and insufficient funding to support these applications, the applicant proposing to serve the target schools within the more impoverished Congressional District will be the final application identified and recommended to receive an award.

In applying the tie-breaker criteria, the Department will use the most current data available. The criteria refer to Congressional Districts, and reference child poverty data within Congressional Districts. The most recent available Child Poverty data from the United States Census for Congressional Districts is for the 117th Congress, and therefore, the geographical boundaries used for the tie-breaker are defined for the 115th Congress. The number of target schools served within the boundaries of a Congressional District, and the number of students served within these target schools, will be derived from the UB Annual Performance Report (APR). The Department will use data from the 2020-2021 APR to count the number of target schools that receive services within Congressional District boundaries.

3. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.206, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 200.208, the Secretary may impose specific conditions and, under 2 CFR 3474.10, 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 200.206(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.

5. In General: In accordance with the Office of Management and Budget's guidance located at 2 CFR part 200, all applicable Federal laws, and relevant Executive guidance, the Department will review and consider applications for funding pursuant to this notice inviting applications in accordance with—

(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);

(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);

(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and

(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).

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 or subgrantee 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 .

5. Performance Measures: The success of the UB Program will be measured by the percentage of UB participants who enroll in and complete postsecondary education. The following performance measures have been developed to track progress toward achieving program success under the Government Performance and Results Act of 1993 and for purposes of Department reporting under 34 CFR 75.110:

1. The percentage of UB students who took two years of mathematics beyond Algebra I by the 12th grade;

2. The percentage of UB students who graduated from secondary school with a regular secondary school diploma;

3. The percentage of UB students who enrolled in postsecondary education;

4. The percentage of UB students who enrolled in a program of postsecondary education by the fall term following graduation from high school and who in the first year of postsecondary education placed into college-level math and English without need for remediation;

5. The percentage of former UB students who enrolled in a program of postsecondary education and graduated on time—within four years for the bachelor's degree and within two years for the associate's degree;

6. The percentage of UB participants who enrolled in a program of postsecondary education and attained either an associate's degree within three years or a bachelor's degree within six years of enrollment; and

7. The percentage of UB students expected to graduate high school in the reporting year who complete a Free Application for Federal Student Aid (FAFSA).

All UB Program grantees will be required to submit APRs.

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, whether the grantee has made substantial progress in achieving the performance targets in the grantee's approved application.

In making a continuation award, 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: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document and a copy of the application package in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, Braille, large print, audiotape, or compact disc, or other accessible format.

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.

The NACIQI is established under Section 114 of the HEA, and is composed of 18 members appointed—

(A) On the basis of the individuals' experience, integrity, impartiality, and good judgment;

(B) From among individuals who are representatives of, or knowledgeable concerning, education and training beyond secondary education, representing all sectors and types of institutions of higher education; and,

(C) On the basis of the individuals' technical qualifications, professional standing, and demonstrated knowledge in the fields of accreditation and administration of higher education.

The NACIQI meets at least twice a year and advises the Secretary of Education with respect to:

• The establishment and enforcement of the standards of accrediting agencies or associations under subpart 2 of part G of Title IV of the HEA;

• The recognition of specific accrediting agencies or associations.

• The preparation and publication of the list of nationally recognized accrediting agencies and associations;

• The eligibility and certification process for institutions of higher education under Title IV of the HEA, together with recommendations for improvements in such process;

• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions; and

• Any other advisory functions relating to accreditation and institutional eligibility that the Secretary of Education may prescribe by regulation.

The term of office of each member is six years. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which the member's predecessor was appointed shall be appointed for the remainder of such term.

The current members of the NACIQI are:

Members Appointed by the Secretary of Education with Terms Expiring September 30, 2025:

• Ronnie L. Booth, Ph.D., Former President, Tri-County Technical College, Anderson, South Carolina.

• Wallace E. Boston, Ph.D., President Emeritus, American Public University System, Inc. Charles Town, West Virginia.

• David A. Eubanks, Ph.D., Assistant Vice President for Assessment and Institutional Effectiveness, Furman University, Greenville, South Carolina.

• Molly Hall-Martin, Student Member, University of Iowa, College of Education, Higher Education & Student Affairs, Coralville, Iowa.

• D. Michael Lindsay, Ph.D., President, Taylor University, Upland, Indiana.

• Mary Ellen Petrisko, Ph.D., Former President, WASC Senior College and University Commission, Pittsburgh, Pennsylvania.

Members Appointed by the Speaker of the House of Representatives with Terms Expiring September 30, 2026:

• Kathleen Sullivan Alioto, Ed.D., Strategic Advisor, Fundraiser, and Consultant, New York, New York, San Francisco, California, and Boston, Massachusetts.

• Roslyn Clark Artis, Ed.D., President, Benedict College, Columbia, South Carolina.

• Jennifer Blum, J.D., Principal, Blum Higher Education Advising, PLLC, Washington, DC.

• Arthur E. Keiser, Ph.D., Chancellor, Keiser University, Fort Lauderdale, Florida.

• Robert Mayes, Jr., CEO, Columbia Southern Education Group, Elberta, Alabama.

• Robert Shireman, Director of Higher Education Excellence and Senior Fellow, The Century Foundation, Berkeley, California.

Members Appointed by the President Pro Tempore of the Senate with Terms Expiring September 30, 2022:

• Jill Derby, Ph.D., Senior Consultant, Association of Governing Boards of Universities and Colleges, Gardnerville, Nevada.

• Paul J. LeBlanc, Ph.D., President, Southern New Hampshire University, Manchester, New Hampshire.

• Claude O. Pressnell Jr., Ed.D., President, Tennessee Independent Colleges and Universities Association, Nashville, Tennessee.

• Steven Van Ausdle, Ph.D., President Emeritus, Walla Walla Community College, Walla Walla, Washington.

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

Authority: 20 U.S.C. 1011c.

Purpose of Program: The FLAS Program allocates academic year and summer fellowships to institutions of higher education (IHEs) and consortia of such institutions to assist meritorious undergraduate and graduate students receiving modern foreign language training in combination with area studies, international studies, or the international aspects of professional studies. FLAS fellowships may also assist graduate students engaged in predissertation-level study, preparation for dissertation research, dissertation research abroad, or dissertation writing.

Priorities: This notice contains two competitive preference priorities. Competitive Preference Priority 1 is from the notice of final priorities for the FLAS Program published in the Federal Register on May 30, 2014 (79 FR 31031) (NFP), and Competitive Preference Priority 2 is from 34 CFR 657.22(a), which provides that the Secretary may designate specific languages as a priority for the allocation of fellowships.

Competitive Preference Priorities: For FY 2022, these priorities are competitive preference priorities. Under 34 CFR 75.105(C)(2)(i), we award an additional five points to an application that meets Competitive Preference Priority 1, and an additional five points to an application that meets Competitive Preference Priority 2. An applicant may receive a total of up to 10 additional points under the competitive preference priorities.

These priorities are:

Competitive Preference Priority 1—FLAS Fellowships for Students Who Demonstrate Financial Need. (0 or 5 points)

Applications that propose to give preference when awarding fellowships to undergraduate students, graduate students, or both, to students who demonstrate financial need as indicated by the students' expected family contribution, as determined under part F of title IV of the Higher Education Act of 1965, as amended (HEA). This need determination will be based on the students' financial circumstances and not on other aid. The applicant must describe how it will ensure that all fellows who receive such preference show potential for high academic achievement based on such indices as grade point average, class ranking, or similar measures that the institution may determine.

Competitive Preference Priority 2—Academic Year FLAS Fellowships Awarded in the Less Commonly Taught Languages. (0 or 5 points)

Applications that propose to award at least 25 percent of academic year FLAS fellowships in modern foreign languages other than French, German, and Spanish.

Program Authority: 20 U.S.C. 1122.

Note: Projects will be awarded and must be operated in a manner consistent with the nondiscrimination requirements contained in Federal civil rights laws.

Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 76, 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 parts 655 and 657. (e) The NFP.

Areas of National Need: In accordance with section 601(c) of the HEA (20 U.S.C. 1121(c)), the Secretary consulted with a wide range of Federal agencies and received recommendations regarding national need for expertise in foreign language and world regions. These agencies' recommendations may be viewed on this web page: https://www2.ed.gov/about/offices/list/ope/iegps/languageneeds.html.

Type of Award: Discretionary grants.

Estimated Available Funds: $31,236,116.

Contingent upon the availability of funds and the quality of applications, we may make additional awards in FYs 2023, 2024, and 2025 from the list of unfunded applications from this competition.

Estimated Range of Awards: $154,500-$351,000 per year.

Estimated Average Size of Awards: $202,500 per year.

Estimated Number of Awards: 100.

FLAS Fellowship Subsistence Allowances: The subsistence allowance for a graduate student academic year fellowship is $20,000; the subsistence allowance for an undergraduate student academic year fellowship is $5,000. The subsistence allowance for a summer fellowship is $2,500 for graduate and undergraduate students.

FLAS Fellowship Institutional Payments: The institutional payment for a graduate student academic year fellowship is $18,000; the institutional payment for an undergraduate student academic year fellowship is $10,000. The institutional payment for a summer fellowship is $5,000 for graduate and undergraduate students.

Note: The Department is not bound by any estimates in this notice. The estimated range and average size of awards are based on a single 12-month budget period.

Project Period: Up to 48 months.

1. Eligible Applicants: IHEs (as defined in section 101 of the HEA (20 U.S.C. 1001)) or consortia of IHEs.

2. Eligible Participants: A student is eligible to receive a fellowship if the student—

(a)(1) Is a citizen or national of the United States; or (2) Is a permanent resident of the United States;

(b) Is accepted for enrollment or is enrolled—

(1) In an institution receiving an allocation of fellowships; and

(2) In a program that combines modern foreign language training with (i) area or international studies; or (ii) research and training in the international aspects of professional and other fields of study;

(c) Shows potential for high academic achievement based on such indices as grade point average, class ranking, or similar measures that the institution may determine;

(d) Is enrolled in a program of modern foreign language training in a language for which the institution has developed or is developing performance-based instruction;

(e) In the case of an undergraduate student, is in the intermediate or advanced study of a less commonly taught language; and

(f) In the case of a graduate student, is engaged in—

(1) Predissertation-level study;

(2) Preparation for dissertation research;

(3) Dissertation research abroad; or

(4) Dissertation writing.

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

b. Administrative Cost Limitation: This program does not allow administrative expenses.

4. Subgrantees: Under 34 CFR 75.708(b) and (c), a grantee under the FLAS Program may not award subgrants to entities to directly carry out project activities described in its application.

5. Other: (a) Reasonable and Necessary Costs: Applicants must ensure that all costs included in the proposed budget are necessary and reasonable to meet the goals and objectives of the proposed project. Any costs determined by the Secretary to be unreasonable or unnecessary will be removed from the final approved budget.

(b) Audits: (i) A non-Federal entity that expends $750,000 or more during the non-Federal entity's fiscal year in Federal awards must have a single or program-specific audit conducted for that year in accordance with the provisions of 2 CFR part 200. (2 CFR 200.501(a))

(ii) A non-Federal entity that expends less than $750,000 during the non-Federal entity's fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in 2 CFR 200.503 (Relation to Other Audit Requirements), but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and Government Accountability Office (GAO). (2 CFR 200.501(d))

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 656.30(b) and 657.33. We reference additional regulations outlining funding restrictions in the Applicable Regulations section of this notice.

4. Recommended Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the priorities, selection criteria, and application requirements that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative to no more than 50 pages for single institution applications, and to no more than 60 pages for consortia applications and (2) use the following standards:

• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

• Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.

• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, and graphs.

• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

The recommended page limit applies to the entirety of the application narrative. The recommended page limit does not apply to the Application for Federal Assistance face sheet (SF 424); the supplemental SF 424 form; Budget Information—Non-Construction Programs (ED 524); the detailed line item budget; the assurances and certifications, and the response to section 427 of the General Education Provisions Act; the project abstract, the table of contents, the list of acronyms, the response to the diverse perspectives/areas of need requirements, the FLAS project profile form, the FLAS-eligible languages form, or the appendices (curriculum vitae, course list, letters of support).

5. Award Basis: In determining whether to approve a grant award and the amount of such award, the Department will consider, among other things, the applicant's performance and use of funds under a previous or existing award under any Department program (34 CFR 75.217(d)(3)(ii) and 75.233). In assessing the applicant's performance and use of funds under a previous or existing award, the Secretary will consider, among other things, the outcomes the applicant has achieved and the results of any Departmental grant monitoring, including the applicant's progress in remedying any deficiencies identified in such monitoring.

1. General: For the FY 2022 FLAS competition, all applications will be assigned to peer review panels based on world region—such as Africa, South Asia, the Middle East—or international in focus as specified in the FLAS application. Readers who serve on the peer review panels are selected based on their expertise in the specialized area studies, international studies, and modern foreign language(s) necessary to effectively review, score, and rank the applications assigned to them. For the FLAS competition, the Department will select applications for funding consideration based on the ranking of each application within its distinct regional panel.

2. Selection Criteria: The following selection criteria for this program are from 34 CFR 657.21. The maximum score under the selection criteria, taken together with the maximum number of points awarded to applicants that address the competitive preference priorities, is 110 points.

(a) Commitment to the subject area on which the applicant focuses (up to 5 points). The Secretary reviews each application for information to determine—

(1) The extent to which the institution provides financial and other support to the operation of the applicant, teaching staff for the applicant's subject area, library resources, and linkages with institutions abroad; and

(2) The extent to which the institution provides financial support to students in fields related to the applicant's teaching program.

(b) Quality of the applicant's language instructional program (up to 14 points). The Secretary reviews each application for information to determine—

(1) The extent to which the applicant provides instruction in the languages of the applicant's subject area and the extent to which students enroll in the study of the languages of the subject area through programs or instruction offered by the applicant or other providers;

(2) The extent to which the applicant provides three or more levels of language training and the extent to which courses in disciplines other than language, linguistics, and literature are offered in appropriate foreign languages;

(3) Whether sufficient numbers of language faculty are available to teach the languages and the levels of instruction described in the application and the extent to which language teaching staff (including faculty and instructional assistants) have been exposed to current language pedagogy training appropriate for performance-based teaching; and

(4) The quality of the language program as measured by the performance-based instruction being used or developed, the adequacy of resources for language teaching and practice, and language proficiency requirements.

(c) Quality of the applicant's non-language instructional program (up to 14 points). The Secretary reviews each application for information to determine—

(1) The quality and extent of the applicant's course offerings in a variety of disciplines, including the extent to which courses in the applicant's subject matter are available in the institution's professional schools;

(2) The extent to which the applicant offers depth of specialized course coverage in one or more disciplines on the applicant's subject area;

(3) The extent to which the institution employs a sufficient number of teaching faculty to enable the applicant to carry out its purposes and the extent to which instructional assistants are provided with pedagogy training; and

(4) The extent to which interdisciplinary courses are offered for students.

(d) Quality of curriculum design (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which the applicant's curriculum provides training options for students from a variety of disciplines and professional fields and the extent to which these programs and their requirements (including language requirements) are appropriate for an applicant in this subject area and result in graduate training programs of high quality;

(2) The extent to which the applicant provides academic and career advising services for students; and

(3) The extent to which the applicant has established formal arrangements for students to conduct research or study abroad and the extent to which these arrangements are used; and the extent to which the institution facilitates student access to other institutions' study abroad and summer language programs.

(e) Quality of staff resources (up to 13 points). The Secretary reviews each application to determine—

(1) The extent to which teaching faculty and other staff are qualified for the current and proposed activities and training programs, are provided professional development opportunities (including overseas experience), and participate in teaching, supervising, and advising students;

(2) The adequacy of applicant staffing and oversight arrangements and the extent to which faculty from a variety of departments, professional schools, and the library are involved; and

(3) The extent to which the applicant, as part of its non-discriminatory employment practices, encourages applications for employment from persons who are members of groups that have been traditionally underrepresented, such as members of racial or ethnic minority groups, women, persons with disabilities, and the elderly.

(f) Strength of library (up to 6 points). The Secretary reviews each application to determine—

(1) The strength of the institution's library holdings (both print and non-print, English and foreign language) for students; and the extent to which the institution provides financial support for the acquisition of library materials and for library staff in the subject area of the applicant; and

(2) The extent to which research materials at other institutions are available to students through cooperative arrangements with other libraries or on-line databases.

(g) Impact and evaluation (up to 25 points). The Secretary reviews each application to determine—

(1) The extent to which the applicant's activities and training programs have contributed to an improved supply of specialists on the program's subject area as shown through indices such as undergraduate and graduate enrollments and placement data; and the extent to which the applicant supplies a clear description of how the applicant will provide equal access and treatment of eligible project participants who are members of groups that have been traditionally underrepresented, such as members of racial or ethnic minority groups, women, persons with disabilities, and the elderly;

(2) The applicant's record of placing students into post-graduate employment, education, or training in areas of national need and the applicant's stated efforts to increase the number of such students that go into such placements;

(3) The degree to which fellowships awarded by the applicant address national needs; and

(4) The extent to which the applicant provides an evaluation plan that is comprehensive and objective and that will produce quantifiable, outcome-measure-oriented data; and the extent to which recent evaluations have been used to improve the applicant's program.

(h) Foreign language and area studies fellowships awardee selection procedures (up to 10 points). The Secretary reviews each application to determine whether the selection plan is of high quality, showing how awards will be advertised, how students apply, what selection criteria are used, who selects the fellows, when each step will take place, and how the process will result in awards being made to correspond to any announced priorities.

3. 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 may also 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).

4. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.206, before awarding grants under this program the Department conducts a review of the risks posed by applicants. Under 2 CFR 200.208, the Secretary may impose specific conditions and, under 2 CFR 3474.10, 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.

5. 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 200.206(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 (SAM). 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.

6. In General: In accordance with the Office of Management and Budget's guidance located at 2 CFR part 200, all applicable Federal laws, and relevant Executive guidance, the Department will review and consider applications for funding pursuant to this notice inviting applications in accordance with:

(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);

(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);

(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and

(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).

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 also notify you informally.

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 or subgrantee 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.

Performance reports for the FLAS Program must be submitted electronically into the Office of International and Foreign Language Education web-based reporting system, International Resource Information System (IRIS). For information about IRIS and to view the reporting instructions, please go to: https://iris.ed.gov/iris/pdfs/FLAS_director.pdf.

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

5. Performance Measures: Under the Government Performance and Results Act of 1993, the following measures will be used by the Department to evaluate the success of the FLAS program:

(a) Percentage of FLAS-graduated fellows who secured employment that utilizes their foreign language and area studies skills within eight years after graduation, based on the FLAS tracking survey.

(b) Percentage of FLAS master's and doctoral graduates who studied priority languages as defined by the Secretary of Education.

(c) Percentage of FLAS fellows who increased their foreign language reading, writing, and/or listening/speaking scores by at least one proficiency level.

(d) Efficiency: Cost per FLAS fellowship program fellow who increased his/her reading, writing, and/or listening/speaking language score by at least one proficiency level.

The information provided by grantees in their performance reports submitted via IRIS will be the source of data for these measures. Reporting screens for institutions can be viewed at: https://iris.ed.gov/iris/pdfs/FLAS_director.pdf.

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, whether the grantee has made substantial progress in achieving the performance targets in the grantee's approved application.

In making a continuation award, 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: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document and a copy of the application package in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, compact disc, or other accessible format.

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.

The Department announces the process for designation of eligible institutions and invites applications for waivers of eligibility requirements for FY 2022 for the following programs:

1. Programs authorized under title III, part A of the HEA: Strengthening Institutions Program (Part A SIP), Alaska Native and Native Hawaiian-Serving Institutions (Part A ANNH), Predominantly Black Institutions (Part A PBI), Native American-Serving Nontribal Institutions (Part A NASNTI), and Asian American and Native American Pacific Islander-Serving Institutions (Part A AANAPISI).

2. Programs authorized under title III, part F of the HEA: Hispanic-Serving Institutions STEM and Articulation (Part F HSI STEM and Articulation), Predominantly Black Institutions (Part F PBI), Alaska Native and Native Hawaiian-Serving Institutions (Part F ANNH), Native American-Serving Nontribal Institutions (Part F NASNTI), and Asian American and Native American Pacific Islander-Serving Institutions (Part F AANAPISI).

3. Programs authorized under title V of the HEA: Developing Hispanic-Serving Institutions (HSI) and Promoting Postbaccalaureate Opportunities for Hispanic Americans (PPOHA).

Purpose of Programs: The Part A SIP, Part A ANNH, Part A PBI, Part A NASNTI, and Part A AANAPISI programs are authorized under title III, part A of the HEA. The Part F HSI STEM and Articulation, Part F PBI, Part F ANNH, Part F NASNTI, and Part F AANAPISI programs are authorized under title III, part F of the HEA. The HSI and PPOHA programs are authorized under title V of the HEA. Please note that certain programs addressed in this notice have the same or similar names as other programs that are authorized under a different statutory authority. For this reason, we specify the statutory authority as part of the acronym for certain programs.

Under the programs discussed above, institutions are eligible to apply for grants if they meet specific statutory and regulatory eligibility requirements. An institution of higher education that is designated as an eligible institution may also receive a waiver of certain non-Federal cost-sharing requirements for one year under the Federal Supplemental Educational Opportunity Grant (FSEOG) program authorized by title IV, part A of the HEA and the Federal Work-Study (FWS) program authorized by section 443 of the HEA. Qualified (eligible) institutions may receive the FSEOG and FWS waivers for one year even if they do not receive a grant under a title III or V grant program. An applicant that receives a grant from the Student Support Services (SSS) program that is authorized under section 402D of the HEA, 20 U.S.C. 1070a-14, may receive a waiver of the required non-Federal cost share for institutions for the duration of the grant. An applicant that receives a grant from the Undergraduate International Studies and Foreign Language (UISFL) program that is authorized under section 604 of the HEA, 20 U.S.C. 1124, may receive a waiver or reduction of the required non-Federal cost share for institutions for the duration of the grant.

Sections 312 and 502 of the HEA, 34 CFR 607.2-607.5, and 34 CFR 606.2-606.5 include most of the basic eligibility requirements for grant programs authorized under titles III and V of the HEA. Sections 312(b)(1)(B) and 502(a)(2)(A) of the HEA provide that, to be eligible for these programs, an institution of higher education's average “educational and general expenditures” (E&G) per full-time equivalent (FTE) undergraduate student must be less than the average E&G expenditures per FTE undergraduate student of institutions that offer similar instruction in that year.

The National Center for Education Statistics (NCES) calculates Core Expenses per FTE of institutions, a statistic like E&G per FTE. Both E&G per FTE and Core Expenses per FTE are based on regular operational expenditures of institutions (excluding auxiliary enterprises, independent operations, and hospital expenses). They differ only in that E&G per FTE is based on fall undergraduate enrollment, while Core Expenses per FTE is based on 12-month undergraduate enrollment for the academic year.

To avoid inconsistency in the data submitted to, and produced by, the Department, for the purpose of sections 312(b)(1)(B) and 502(a)(2)(A) of the HEA, E&G per FTE is calculated using the same methodology as Core Expenses per FTE. Accordingly, the Department will apply the NCES methodology for calculating Core Expenses per FTE. Institutions requesting an eligibility exemption determination must use the Core Expenses per FTE data reported to NCES' Integrated Postsecondary Education Data System (IPEDS) for the most currently available academic year, in this case academic year 2019-2020.

Special Note: To qualify as an eligible institution under the grant programs listed in this notice, your institution must satisfy several criteria. For most of these programs, these criteria include those that relate to the enrollment of needy students and to the Core Expenses per FTE student count for a specified base year. The most recent data available in IPEDS for Core Expenses per FTE are for base year 2019-2020. To award FY 2022 grants in a timely manner, we will use these data to evaluate eligibility.

Accordingly, each institution interested in either applying for a new grant under the title III or V programs addressed in this notice, or requesting a waiver of the non-Federal cost share, must be designated as an eligible institution in FY 2022. Under the HEA, any institution interested in applying for a grant under any of these programs must first be designated as an eligible institution. See 34 CFR 606.5 and 607.5.

Note: Please be advised that final eligibility is program specific. Applicants should refer to the program in question for programmatic requirements. Further information regarding eligibility is set forth below.

Eligible applicants: The eligibility requirements for the programs authorized under part A of title III of the HEA are in sections 312 and 317-320 of the HEA (20 U.S.C. 1058, 1059d-1059g) and in 34 CFR 607.2-607.5. The regulations may be accessed at www.ecfr.gov/cgi-bin/text-idx?SID=bc12bf5d685021e069cd1a15352b381a&mc=true&node=pt34.3.607&rgn=div5. The eligibility requirements for the programs authorized by part F of title III of the HEA are in section 371 of the HEA (20 U.S.C. 1067q). There are currently no specific regulations for these programs.

The eligibility requirements for the title V HSI program are in part A of title V of the HEA and in 34 CFR 606.2-606.5. The regulations may be accessed at www.ecfr.gov/cgi-bin/text-idx?SID=bc12bf5d685021e069cd1a15352b381a&mc=true&node=pt34.3.606&rgn=div5l.

The requirements for the PPOHA program are in part B of title V of the HEA and in the notice of final requirements published in the Federal Register on July 27, 2010 (75 FR 44055), and in 34 CFR 606.2(a) and (b) and 606.3-606.5.

The Department has instituted a process known as the Eligibility Matrix (EM), under which we use information institutions submitted to IPEDS to determine which institutions meet the basic eligibility requirements for the programs authorized by title III or V of the HEA listed above. To make eligibility determinations for FY 2022, we use an institution's 2019-2020 enrollment and fiscal data. Beginning December 16, 2021, an institution will be able to review the Department's EM eligibility decision by checking the eligibility system linked through the Department's Institutional Service Eligibility website: http://www2.ed.gov/about/offices/list/ope/idues/eligibility.html. The direct link is https://HEPIS.ed.gov/.

The EM is a read-only worksheet that lists all potentially eligible postsecondary institutions. If the EM entry for your institution indicates your institution is eligible for a particular program grant, you will not need to apply for eligibility or submit a waiver request as described in this notice. Rather, if you choose to apply for the grant, you may print out the eligibility letter directly. If your institution intends to apply for a program grant for which your EM entry does not show your institution is eligible, you must submit the application discussed in this notice before the application deadline of January 21, 2022.

To check your institution's eligibility in the EM, go to https://HEPIS.ed.gov/, and log into the system using your email address and password. If you are not sure whether you have an account in the system, click the “New User” button. If you have an account, the system will walk you through setup. Note that it may take up to five business days to verify user identity and to complete new account setup, so please allow enough time to complete the application. If the Grant Eligibility Application (GEA) system is open for new applications, you may check your institution's eligibility status by clicking the “View pre-Eligibility Information” button. Your institution's eligibility information will display.

If the EM does not show that your institution is eligible for a program, or if your institution does not appear in the eligibility system, or if you disagree with the eligibility determination reflected in the eligibility system, you can apply for a waiver or reconsideration using the process described in this notice. The application process mirrors that used in previous years: Choose the waiver option on the website at https://HEPIS.ed.gov/ and submit your institution's application.

Please note that through this process, the Department does not certify, nor designate, an institution as a Historically Black College or University, Tribally Controlled College or University, Minority-Serving Institution, or Hispanic-Serving Institution. The Department's EM eligibility determination that an institution is eligible solely relates to the institution's ability to apply for and receive grants under certain programs as discussed in this notice.

Note: Institutions that submit a waiver request for either the Core Expenses per FTE or the Needy Student requirement must submit the required documents and supporting data and evidence by the deadline. All reviews and decisions will be made approximately two weeks after the deadline.

Enrollment of Needy Students: As noted above, to qualify as an eligible institution under the grant programs listed in this notice, your institution must satisfy several criteria, including those that relate to the enrollment of needy students and to the Core Expenses per FTE student count for a specified base year.

As to the enrollment of needy students, for programs under titles III and V (excluding the PBI programs), an institution is considered to have an enrollment of needy students if it meets either of the following two criteria: (1) At least 50 percent of its degree-seeking students received financial assistance under the Federal Pell Grant, FSEOG, or FWS programs; or (2) the percentage of its undergraduate degree-seeking students who were enrolled on at least a half-time basis and received Federal Pell Grants exceeded the median percentage of undergraduate degree students who were enrolled on at least a half-time basis and received Federal Pell Grants at comparable institutions that offer similar instruction.

To qualify under the second criterion, an institution's Federal Pell Grant percentage for base year 2019-2020 must be more than the median for its category of comparable institutions provided in the 2019-2020 Median Pell Grant and Average Core Expenses per FTE Student Table in this notice. If your institution qualifies only under the first criterion, you must submit an application containing the data necessary to satisfy the first criterion (showing at least 50 percent of your degree-seeking students received financial assistance under one of several Federal student aid programs (the Federal Pell Grant, FSEOG, or FWS programs)), since these data are not available in IPEDS.

“Enrollment of Needy Students” for purposes of the Part A PBI program is separately defined in section 318(b)(2) of the HEA, and for purposes of the Part F PBI program is defined in section 371(c)(3) of the HEA.

Core Expenses per FTE Student: For each of the following programs, an institution should compare its base year 2019-2020 Core Expenses per FTE student to the average Core Expenses per FTE student for its category of comparable institutions using the 2019-2020 Median Pell Grant and Average Core Expenses per FTE Student Table in this notice: Title III, Part A SIP; Part A ANNH; Part A PBI; Part A NASNTI; Part A AANAPISI; Title III, Part F HSI STEM and Articulation; Part F PBI; Part F ANNH; Part F NASNTI; Part F AANAPISI; Title V, Part A HSI; and Title V, Part B PPOHA. An institution satisfies this program eligibility requirement if its Core Expenses for the 2019-2020 base year are less than the average Core Expenses of its comparable institutional category.

Core Expenses are defined as the total expenses for the essential education activities of the institution. Core Expenses for public institutions reporting under the Governmental Accounting Standards Board (GASB) requirements include expenses for instruction, research, public service, academic support, student services, institutional support, operation and maintenance of plant, depreciation, scholarships and fellowships, interest, and other operating and non-operating expenses. Core Expenses for institutions reporting under the Financial Accounting Standards Board (FASB) standards (primarily private, not-for-profit, and for-profit institutions) include expenses for instruction, research, public service, academic support, student services, institutional support, net grant aid to students, and other expenses. Core Expenses do not include Federal student aid for the purposes of eligibility. For both FASB and GASB institutions, Core Expenses do not include expenses for auxiliary enterprises ( e.g., bookstores, dormitories), hospitals, and independent operations.

The following table identifies base year 2019-2020 median Federal Pell Grant percentages and average Core Expenses per FTE student for the four categories of comparable institutions:

Waiver Information: Institutions that do not meet the needy student enrollment requirement or the Core Expenses per FTE requirement may apply to the Secretary for a waiver of these requirements, as described in sections 392 and 522 of the HEA, and in the implementing regulations at 34 CFR 606.3(b), 606.4(c) and (d), 607.3(b), and 607.4(c) and (d).

Institutions requesting a waiver of the needy student enrollment requirement or the Core Expenses per FTE requirement must include in their application detailed evidence supporting the waiver request, as described in the instructions for completing the application.

The regulations governing the Secretary's authority to grant a waiver of the needy student requirement refer to “low-income” students or families, at 34 CFR 606.3(b)(2) and (3) and 607.3(b)(2) and (3). The regulations at 34 CFR 606.3(c) and 607.3(c) define “low-income” as an amount that does not exceed 150 percent of the amount equal to the poverty level, as established by the U.S. Census Bureau.

For purposes of this waiver provision, the following table sets forth the low-income levels (at 150 percent) for various family sizes:

Note: We use the 2020 annual low-income levels because those are the amounts that apply to the family income reported by students enrolled for the fall 2019 semester. For family units with more than eight members, add the following amount for each additional family member: $6,720 for the contiguous 48 States, the District of Columbia, and outlying jurisdictions; $8,400 for Alaska; and $7,725 for Hawaii.

The figures shown under family income represent amounts equal to 150 percent of the family income levels established by the U.S. Census Bureau for determining poverty status. The poverty guidelines were published on January 17, 2020, in the Federal Register by the U.S. Department of Health and Human Services (85 FR 3060), with an effective date of January 14, 2020.

Information about “metropolitan statistical areas” referenced in 34 CFR 606.3(b)(4) and 607.3(b)(4) may be obtained at: www.census.gov/prod/2010pubs/10smadb/appendixc.pdf and www.census.gov/prod/2008pubs/07ccdb/appd.pdf .

Electronic Submission of Waiver Applications: If your institution does not appear in the eligibility system as eligible for a program to which you seek to apply, you must apply for a waiver of the eligibility requirements. To request a waiver, you must upload a narrative at https://HEPIS.ed.gov/.

Exception to the Electronic Submission Requirement: We discourage paper applications, but if electronic submission is not possible ( e.g., you do not have access to the internet), you must provide a written statement that you intend to submit a paper application. This written statement must be postmarked no later than two weeks before the application deadline date (14 calendar days or, if the 14th calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday).

Please send this statement to one of the persons listed in the FOR FURTHER INFORMATION CONTACT section of this notice.

If you submit a paper application, you must mail your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Attention: Jason Cottrell, 400 Maryland Avenue SW, Room 2B127, Washington, DC 20202.

You must show proof of mailing consisting of one of the following:

(1) A legibly dated U.S. Postal Service postmark.

(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

(3) A dated shipping label, invoice, or receipt from a commercial carrier.

(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.

If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

(1) A private metered postmark.

(2) A mail receipt that is not dated by the U.S. Postal Service.

Note: The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

We will not consider applications postmarked after the application deadline date.

Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 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 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 certain title III programs in 34 CFR part 607, and for the HSI program in 34 CFR part 606. (e) The notice of final requirements for the PPOHA program published in the Federal Register on July 27, 2010 (75 FR 44055).

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 only.

Note: There are no program-specific regulations for the Part A PBI, Part A NASNTI, and Part A AANAPISI programs or any of the title III, part F programs. Also, the HEA has been amended since the Department last issued regulations for programs established under titles III and V of that statute. Accordingly, we encourage each potential applicant to read applicable sections of the HEA to fully understand all applicable program eligibility requirements.

Accessible Format: On request to one of the program contact persons listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document and a copy of the application package in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

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.

The FERC Transit Subsidy Program (TSP) notice includes 10 new routines, including two prescribed routine uses that will permit FERC to disclose information as necessary in response to an actual or suspected breach that pertains to a breach of its own records or to assist another agency in its efforts to respond to a breach. This notice also addresses the system's manager and location change.

eDiscovery Enterprise Tool Suite, EPA-63 is being modified to update the System Manager to the Director of the eDiscovery Division, to add government-certified cloud locations where data may be stored to the System Location section, to modify Routine Use L, and to add Routine Use M.

The information presented in this preamble is organized as follows:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OLEM-2021-0348. All documents in the docket are listed in the https://www.regulations.gov index. Publicly available docket materials are available either electronically at https://www.regulations.gov or in hard copy at the EPA Docket Center. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2021-0348, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

Do not submit information that you consider to be CBI electronically through https://www.regulations.gov or email. Send or deliver information identified as CBI to only the following address: ORCR Document Control Officer, Mail Code 5305T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; Attn: Docket ID No. EPA-HQ-OLEM-2021-0348. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in Title 40 of the Code of Federal Regulations Part 2.

Entities potentially affected by this notice include states and territories authorized by the EPA to implement the RCRA Subtitle C hazardous waste program, and the EPA Regions that directly implement the RCRA hazardous waste program. Other potentially affected entities include owners and operators of RCRA hazardous waste facilities that are seeking permit or other actions under RCRA, as well as members of the general public who have an interest in RCRA public participation (particularly for the RCRA hazardous waste permitting process).

The EPA is providing notice and inviting public comment on allowing modern electronic alternatives for public notice of the intent to issue hazardous waste permits and other actions. The discussion in this notice focuses on the statutory and regulatory requirements for newspaper notice of permitting actions. However, the interpretations EPA provides and invites comment on in this notice apply to all the RCRA Subtitle C hazardous waste regulatory provisions that require newspaper notice.

First, this notice communicates the EPA's intention to consider qualifying online newspapers as satisfying the public notice requirements under RCRA section 7004(b)(2), 42 U.S.C. 6974(b)(2). That section of the RCRA statute states “before the issuing of a permit . . . for the treatment, storage, or disposal of hazardous wastes . . . the Administrator shall cause to be published in major local newspaper of general circulation . . . .” Specifically, the EPA interprets the phrase “major local newspaper of general circulation” in that section as including qualifying online newspapers. Thus, notice in such newspapers can satisfy the statutory requirement to provide public notice of an “agency's intention to issue . . . a permit” for a RCRA hazardous waste treatment, storage or disposal facility, so long as the newspapers are “major,” “local,” and “of general circulation.” Notice in such newspapers can also satisfy the corresponding EPA regulatory requirements. The main RCRA newspaper public notice regulatory requirement is at § 124.10(c)(2)(ii) of Title 40 of the Code of Federal Regulations (CFR); additional RCRA permitting and other RCRA hazardous waste regulations also require various forms of newspaper notification. The EPA plans to operate under this interpretation; however, the EPA welcomes comment on it and may either affirm the interpretation or revise it following review of any comments. Authorized states with similar newspaper notice regulations would be able to implement an online newspaper interpretation similar to EPA's without seeking authorization if no state regulatory changes are made; states would have this ability with respect this to notice for permit issuance ( i.e., initial permit and permit renewals) and other actions ( e.g., permit modifications).

Second, this notice requests comment on whether online mechanisms that might not typically be viewed as “newspapers,” such as bulletins or newsletters published online by state (or EPA) environmental agency, could also satisfy RCRA section 7004(b)(2)'s public notice requirement and regulatory newspaper notice requirements.

Third, this notice explains the EPA's view that, for actions other than permit issuance  1 (permit modifications for example), which are not governed by section 7004(b)(2), the EPA in appropriate cases can authorize state regulations that provide for notice mechanisms other than newspaper publication, even where EPA regulations require the agency, the permittee, or state, to provide notice of such actions through newspaper publication, as long as the notice is equivalent to and no less stringent than the federal program as discussed in Section VII.

Fourth, the EPA is requesting comment on whether it should modify its RCRA hazardous waste regulations that require newspaper notice, in order to allow the Agency more flexibility for notices that are not governed by section 7004(b)(2) (permit modifications for example) and to codify the flexibility discussed in Section VI for permit issuance notice under section 7004(b)(2) (for use of online newspapers and possibly agency newsletters and bulletins).

For the reasons explained in this notice, the EPA believes both RCRA section 7004(b)(2) and EPA regulations (for permit issuance and other permit actions) can and should be interpreted broadly to effectuate the underlying purpose of public notice of RCRA Subtitle C permit actions, which is to inform the public in the most effective, efficient way of permit actions in their communities. More broadly, the purpose of all the public notice requirements in the Subtitle C regulations is to inform the public of actions and activities related to the Subtitle C program within their states and communities. The EPA intends to allow for the full range of flexibility afforded by RCRA and EPA regulations to satisfy public notice requirements; permitting agencies and other environmental agencies implementing RCRA have discretion to choose which public notice mechanisms would be most effective based on the characteristics and needs of a specific community or circumstance. This effort does not narrow or limit any existing flexibilities for notices under Subtitle C.

In exercising this flexibility, recipients of federal financial assistance, including from EPA, must comply with federal civil rights laws, including Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973. Title VI prohibits discrimination on the basis race color or national origin, including limited English proficiency, and recipients have an affirmative obligation to ensure individuals with limited English proficiency have a meaningful opportunity to participate in permit and other decision making and public involvement processes, including through the translation of vital documents and the provision of qualified interpreter services. Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability, and recipients must provide persons with disabilities needed reasonable accommodations and appropriate auxiliary aids and services where necessary so they may effectively participate in permit actions and other public participation processes. 2

While the focus of this Federal Register notice is on modern online (electronic) newspaper notice options, EPA notes for context that authorized state programs and the EPA are currently making use of electronic alternatives to in-person hearings, 3 in-person meetings, 4 and postal mail  5 to meet additional public notice requirements for some RCRA hazardous waste permitting actions.

This document is issued under the authority of sections 2002, 3005, and 7004 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. 6912, 6925, 6974).

RCRA permits are required for the treatment, storage, or disposal of hazardous waste ( see 42 U.S.C. 6925). These permits include facility-specific requirements, based on the applicable RCRA regulations, for the management of hazardous wastes and are issued by authorized states or EPA regional offices. When “permitting agencies” are referenced in this notice, we are referring to state programs that are authorized to implement the RCRA permitting regulations in lieu of EPA, or EPA regional offices. As discussed further below, permitting agencies are required to publish notices as part of the permitting process. This notice also sometimes refers to “state environmental agencies” when speaking about state RCRA environmental programs acting in capacities broader than permitting.

RCRA section 7004(b)(2), 42 U.S.C. 6974(b)(2), states: “Before the issuing of a permit to any person with respect to any facility for the treatment, storage, or disposal of hazardous wastes under section 3005, the Administrator shall—(A) cause to be published in major local newspapers of general circulation and broadcast over local radio stations notice of the agency's intention to issue such permit. . . .” This section further provides that “no state program which provides for the issuance of permits referred to in this paragraph may be authorized by the Administrator under section 6926 of this title unless such program provides for the notice. . . required by the paragraph.” Thus, this requirement governs permitting by both EPA and authorized states. The EPA's main regulation implementing this provision requires “publication of a notice in a daily or weekly major local newspaper of general circulation.” While this regulation implements RCRA section 7004(b)(2) by requiring newspaper notice of the intent to issue a permit, it also covers a range of other permitting actions which are not governed by that section.

Section 7004(b)(2) applies when EPA or authorized states are “issuing” permits. EPA interprets this section to apply to permit renewals as well as initial issuance of permits, since each RCRA permit has an expiration date, which by statute cannot extend beyond ten years from the date of issuance (RCRA section 3005(c)(3)). The renewal of a RCRA permit is, in effect, the issuance of a RCRA permit, because it replaces the previous permit and establishes a new permit term. However, the EPA does not view other permit actions—for example, a permit modification—as the issuance of permits, because they do not replace the existing permit and do not establish another permit term. Other sections of RCRA distinguish between the issuance and modification of permits ( see, e.g., RCRA section 3005(c)(3)). Permit modification notification by the agency and the permittee is just one example of permitting actions not governed by section 7004(b)(2) for which the regulation requires newspaper public notice. See Section VII for details.

As explained further in Section VII, when EPA is the implementing agency, it is subject to the requirements specified in the regulatory text, 6 but authorized states have flexibility to adopt and seek authorization for other public notice approaches that are equivalent to and at least as stringent as the EPA regulatory requirements, when undertaking actions other than permit issuance (permit modifications for example).

The EPA would like to emphasize that the RCRA program is committed to the importance of adapting public notice methods to the local community and doing appropriate research and outreach to determine what combination of methods will work best for a given community, including disadvantaged populations within the community, persons with limited English proficiency, and persons with disabilities. There are two main steps to achieve this according to the 2016 RCRA Public Participation Manual: The first is to assess the community and the second is to develop a public participation plan. 7 Conducting these recommended steps will increase the degree of meaningful community engagement when it comes to obtaining public input for upcoming EPA RCRA decision-making at the facilities that the communities host. Such decisions include permit issuance, but also include other actions outlined in the manual.

Assessing the Community. According to the approach described in the 2016 RCRA Public Participation Manual, before designing a public participation plan, the permitting agency would perform a community assessment and begin by determining the level of community interest in the action. Each community is different and has its own way of spreading information to interested people. Key institutions and groups also vary from place to place, as do socioeconomic status, limited English proficiency culture and traditions, political and religious activity, disabilities, and values. Understanding these community characteristics is essential to facilitating successful public participation. Community assessments should help agencies, facility owners/operators, and public interest groups identify public participation activities that are useful and meaningful for particular communities. Assessments can include mapping the area around the facility and identifying off-site impacts.

Public Participation Plan Development. After identifying the major community groups, concerns and relevant community characteristics during the community assessment, the agency drafts a public participation plan to address the following components of a public participation plan framework:

• Identifying and establishing effective methods for communicating with community members ( e.g., mailing lists, newsletters, interviews, local broadcast television station news programs, websites, public notice signs at the facility, public conference calls, online social media platforms presence, and other information sources).

• Communicating with the media and elected officials.

• Planning and conducting public participation events.

• Coordinating public participation with other stakeholder groups and community events.

• Preparing and distributing additional resources such as fact sheets, public notices, news releases, meeting handouts, presentations and online or social media updates.

With respect to RCRA permitting, there are both public notice activities required by the statute and regulations, and public notice activities that are optional and can be tailored to reach a specific community. The list below includes examples of required and optional methods (dependent on the specific RCRA actions being taken):  8

Required for the applicant in the regulations:

• Newspaper;

• Radio broadcast;

• Public roadway signage at the facility location or entrances to public roadway;

• Information repository; and

• Pre-application meetings and meeting documentation.

Required for the agency in the regulations:

• Newspaper;

• Mailing list;

• Fact sheets/statements of basis;

• Meetings/hearings;

• Public comment (including response to comment); and

• Notice of decision.

Other optional methods of public engagement:   9

• Community interviews;

• Community advisory groups;

• Telephone calls including public conference calls;

• Local public television (broadcast and cable) seeking local news content;

• Informal meetings with stakeholders;

• Focus groups;

• Facility tours and observation decks;

• On-Scene Information Offices;

• Briefings with key stakeholders;

• Project newsletters and reports;

• Presentations to concerned community groups (and others);

• Exhibits and information tables; and

• Workshops.

In addition to the public participation requirements identified in RCRA and EPA regulations, recipients of federal financial assistance, including from EPA, must comply with federal civil rights laws. These civil rights laws require recipients to ensure individuals with limited English proficiency have a meaningful opportunity to participate in permit and other decision making and public involvement processes, including through the translation of vital documents and the provision of qualified interpreter services. The federal civil rights laws also require that recipients provide persons with disabilities needed reasonable accommodations and appropriate auxiliary aids and services where necessary so they may effectively participate in permit actions and other public participation processes. This includes an obligation, when in-person hearings are held, to choose facilities in which to hold permit hearings and other public participation events, that are accessible to persons with physical disabilities.

Communities have different needs. Some communities have a lack of newspapers, and most of the community members consume news through the internet (as described in Section V.B); while other communities may have limited internet access. According to a Pew Research Center survey of U.S. adults conducted from Jan. 25 to Feb. 8, 2021, 10 11 “7% of U.S. adults say they do not use the internet” and it also states that “rural residents go online less frequently than their urban counterparts” and that “eight-in-ten adults who live in rural communities say they use the internet on at least a daily basis, compared with roughly nine-in-ten of those in urban areas (88%).” While people tend to use the internet on multiple devices, this is less common with rural residents according to the Pew Research Survey, and they may need to rely on the internet connection at home. “Roughly seven-in-ten rural Americans (72%) say they have a broadband internet connection at home.” In communities with widely used local newspapers and limited internet access, it is expected that the community assessment process listed above would result in a development of a public participation plan that focuses on the use of the local print newspaper (in addition to other methods, as needed).

In addition, several tribal members raised to the EPA that some households on tribal lands do not have access to the internet and rely on other methods like local television and radio. 12 According to the Federal Communications Commission (FCC), 628,000 tribal households—roughly 36% of Tribal households nationwide—lack access to standard broadband (no providers). The same FCC report stated that 8% of non-tribal households lacked access to standard broadband providers. 13 A study by the American Indian Policy Institute in 2019 found nearly one in five reservation residents has no internet at home. 14

These statistics underscore the importance of assessing the community and planning public participation based on community characteristics and needs.

Many localities no longer have newspapers that might have traditionally been considered “local;” there has been a trend in newspapers ceasing publication; and there has been a trend in circulation reductions. These three trends are described below.

• Communities with no local newspaper. —According to a study in 2018 by the University of North Carolina Hussman School of Media and Journalism (UNC Hussman), nationally 171 counties with 3.2 million residents had no local newspaper. 15 The counties without a newspaper have now increased to more than 200 according to their updated report (2020 UNC Hussman report  16 ).

• Recent trend of newspaper reductions. —The 2020 UNC Hussman report also concluded that, in the past 15 years, the U.S. has lost one-fourth (2,100) of its newspapers “leaving at least 1,800 communities that had a local news outlet in 2004 without any at the beginning of 2020.” Most of these losses were sustained in economically struggling communities; however, some were also in larger cities with more affluential readership. UNC Hussman also found that the economic fallout from the COVID-19 pandemic has dramatically increased the decline—with at least 30 newspapers that closed or merged in April and May of 2020, and dozens of newspapers that switched to online-only delivery of news. 17

• Circulation reduction trends. —The same 2020 UNC Hussman report stated that total newspaper circulation decreased by 55 million between 2004 and the end of 2019. An estimated “half of newspaper readers have vanished over the past 15 years.” Between 2004 and 2019, total weekday circulation—including both dailies and weeklies—declined 45 percent, from more than 122 million to 68 million. Daily papers lost 22 million print readers. Only 39 dailies had a circulation of more than 100,000 in 2019, compared with 104 in 2004. Most of the drop in daily circulation resulted from decisions by owners of dailies to pare back distribution of the print paper, especially in outlying areas. The dramatic circulation drop occurred despite new rules adopted by the industry after 2004 that allowed newspapers to count print and online readership that had previously been excluded (this is likely to undercount online readership since “circulation” does not include free online readership). 18 19

State permitting agencies have also raised these trends in various meetings over the years with EPA, reporting that print newspapers are not available in all communities. A few recent examples have been shared with the EPA. An example illustrating the ineffectiveness of newspaper notification in some scenarios is the Holcim facility in Artesia, Mississippi. EPA Region 4 issued a renewal permit on September 21, 2017, to operate a RCRA hazardous waste fuel blending facility. Because there was no local paper with readership in the community near the facility, EPA issued public notice in a more regional newspaper out of Starkville, Mississippi, over 20 miles from Holcim's facility. The region also posted the draft permit on their website and took comments for the duration of the comment period and the region found it was more effective in reaching the local community. A more unusual example involves a RCRA corrective action permit in Johnston Atoll issued by EPA Region 9 on December 21, 2018. The print newspaper closest to Johnson Atoll is the Honolulu Star-Advertiser which is based in Hawaii and is published 720 nautical miles from the facility. The EPA used the Honolulu Star-Advertiser publication to satisfy the statutory and regulatory newspaper notice requirement, but the notice was relatively expensive and no inquiries regarding the permit originated from the newspaper notice, but rather were initiated by the public reviewing the EPA website and using that contact information. In contrast to these, notification for the Chemical Waste Management's Kettleman Hills facility (a RCRA hazardous waste and Toxic Substances Control Act (TSCA) landfill) in Kings County, California demonstrates what notification under authorities with greater flexibility can look like. The Kettleman Hills landfill is a facility with a community whose closest print newspaper is roughly 30 miles away in Hanford and is published in English only. The nearest community to the facility, in Kettleman City, is primarily Spanish speaking. California's Department of Toxic Substances Control (DTSC) handles the facility's RCRA permitting notices and has specifically assessed the community needs and identified effective communication methods in addition to the required newspaper notice. EPA in its most recent notice for the Kettleman Hills facility, for approval to dispose of polychlorinated biphenyls under TSCA, elected to apply some enhanced communication methods. The notice was published in the Hanford Sentinel, but the EPA region also provided notice via direct mail and email, web page postings, and posters in the local community in both English and Spanish. These mechanisms were considered more effective than the newspaper publication.

In light of these trends described above, some state permitting agencies find that notice in traditional print newspapers is ineffective. They have supported modernizing the public notice requirements under their authorized programs and have raised the issue to the EPA. For example, two states (Alabama and Georgia) identified this issue for consideration under the 2017 Executive Order (E.O.) 13777 “Enforcing the Regulatory Reform Agenda.”  20 Both states would prefer that EPA amend its regulations to increase notice flexibility. In comment to this E.O., Georgia Department of Natural Resources  21 stated that “depending on the location of the facility, publication in the major local newspaper with circulation in that area can be very expensive, especially if it is in a major metropolitan area . . . As more newspapers go out of business, it may not be possible to find an appropriate newspaper in which to publish the notice.” Also, in comment to this E.O., the Alabama Department of Environmental Management's letter  22 of May 12, 2017, regarded the newspaper requirement as archaic, expensive, and ineffective. The letter stated: “These archaic rules, originally written in the 1970's, are completely obsolete and ineffective. First, as print news media has evolved over time, the availability of daily, and even weekly newspapers, is extremely limited. Moreover, many times, outside the control of the regulatory agency, permit notices are published in sections of the media that have very limited readership . . . And as the availability and effectiveness of these outlets has declined, the cost associated with these notice methods have increased.”

While the large majority of Americans get their news from digital devices, 23 some newspapers have gone to having print newspapers on a more limited basis and publishing “e-editions” on the other days. 24 The permitting agencies have mentioned that publication of notices in printed newspapers can often delay the permitting process, based on available space for the publication in the print newspaper and based on the publication schedule (if biweekly, for example).

Often the online and print versions will both be available, but in some cases, the community may only have access to online newspapers. In general, online-only newspapers are increasingly common but are not filling the void of the overall decreasing local newspaper availability. 25

Other EPA permitting programs have finalized changes to their public notice regulations to use a public website notice as a replacement to newspaper notice. The general benefits of internet-based notices used to support these regulatory changes support the interpretations of RCRA and its implementing regulations advanced in today's notice. Unlike RCRA, the statutory provisions governing these other programs do not require newspaper notice, and the regulatory changes under these programs have dispensed with the previous requirements to provide newspaper notice. EPA does not have that flexibility for notices of permit issuance under RCRA.

The EPA's Office of Air rulemaking for Prevention of Significant Deterioration (PSD) permits (81 FR 71613, October 18, 2016) and EPA Office of Water's rulemaking for National Pollutant Discharge Elimination System (NPDES) permits (84 FR 3324, February 12, 2019) describe the basis for the regulatory change from newspaper notice to internet postings to satisfy public notice requirements. 26 The decision to replace the newspaper requirement was supported by data and rationale presented in the preambles of those rulemakings. 27 The replacement of newspaper notice in those permitting program regulations support the effort for flexibility with RCRA newspaper notice for permitting actions.

The PSD rule preamble (81 FR 71613, page 71622) stated that “the EPA believes that in those instances when internet posting is the sole notice provided, it will be fully adequate to meet the purpose for which notice is intended—to provide, to as many of the public at large as can reasonably be expected to be interested, access to important information regarding draft permits. In addition, internet publishing provides the potential to reach unknown interested parties.” The preamble went on to say that residents in a local jurisdiction might not subscribe to a local paper or happen to see a one-day posting in the legal notices section of the newspaper. At any given time, residents may be out of town and/or relying on the internet for news. The fact that “e-notices” (a term used in the PSD program) will remain on the internet for the duration of the public comment period vastly increases the likelihood that interested parties will receive notice about draft permits. In addition, interested parties would not have the burden of traveling to a physical location to review a copy of the draft permit if a link to the document is also posted on the internet notice. 28 The preamble also mentioned that “Given the widespread use of the internet in our mobile society, the EPA believes that e-notice's reach will improve the public notice process and yield positive results.”

Online newspapers can reach a broader audience than print newspapers since notices published online align with the trend on how many Americans are consuming news. Internet use among the public in the United States has expanded tremendously and continues to penetrate all demographic groups. 29 Moreover, online news is often (but not always)  30 cheaper and easier for readers to access than subscriptions for traditional printed newspapers. Online readership for most daily newspapers exceeds print readership. 31 An advantage of online newspapers is that they can be read from mobile devices, enabling permitting agencies to reach individuals wherever they are. Notices in online newspapers can be translated into different languages by widely available software and can be adapted for people with disabilities (for example, screen readers for the visually impaired). The EPA is aware that in some cases, print newspapers can address some of the issues listed above (publishing multilingual papers for example), but the EPA believes that on average, online newspapers address these issues to a larger extent.

The vast majority of people in the United States have internet access. When Pew Research Center began systematically tracking Americans' internet usage in early 2000, about half of all adults were already online. Today, 93% of American adults use the internet and roughly three-quarters of American adults have broadband internet service at home. The share of Americans that own a smartphone is now 85% (as of February 8, 2021), up from just 35% in Pew Research Center's first survey of smartphone ownership conducted in 2011. 32 EPA is aware that concerns have been raised for those who do not have internet access. EPA acknowledges that the portion of the population that does not have access tends to be rural and low-income people (see Section V.A). Furthermore, internet access does not always mean consistent access. In this regard, EPA reiterates that today's notice does not require online notice in lieu of notice in a printed newspaper; rather, it interprets RCRA and EPA's regulations as allowing for notice in qualifying online newspapers as well as print newspapers and requests comment on also allowing for notice in qualifying agency online bulletins and newsletters. It is important that agencies know and understand the communities they serve so that the appropriate mix of services for providing effective notice can be considered, including the community's access to internet services. In addition, while some communities may have limited internet access, those communities may also not be served by traditional local print newspapers. And, even if they are, residents might not routinely consult those papers for information on things like permit notices. EPA believes it makes sense to afford permitting agencies the maximum flexibility to use notice vehicles that will best serve the local community. 33

The following Act and Executive Order that the PSD rule (81 FR 71613, page 71621) cited highlight the broader direction within the Federal Government to move towards online and electronic vehicles in government operations and toward efforts to increase efficiency. These authorities support today's notice.

• The E-Government Act of 2002  34 generally requires and encourages federal agencies to better manage and promote internet and information technology use to bring about improvements in government operations and customer service. This Act establishes an Office of Electronic Government in the Office of Management and Budget (OMB) and imposes responsibilities on various high-level government officials including heads of federal government agencies. The Act defines “electronic Government” as “the use by the Government of Web-based internet applications and other information technologies, combined with processes that implement these technologies, to: (A) Enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities; or (B) bring about improvements in Government operations that may include effectiveness, efficiency, service quality, or transformation.” 44 U.S.C. 3601(3). While the Act does not mandate internet publication of the EPA's or other agencies' public notices, online publication of notices would, in many communities, advance the goals of enhancing the access to government information by the public, using the internet to improve the effectiveness and efficiency of government operations (in this case, the RCRA permitting process), and providing for higher quality service for the affected communities.

• Executive Order 13576 (June 13, 2011), Delivering an Efficient, Effective, and Accountable Government, 35 encourages federal agencies to cut waste, streamline structure and operations, and reinforce performance and management reform. The objectives of the E.O. include “reducing wasteful or ineffective programs, policies, and procedures.” The EPA maintains that increased effectiveness in public notice would support these objectives.

Some state permitting agencies find the newspaper notice an expensive form of notice in general relative to its effectiveness. The costs for public notices are entirely dependent upon the newspaper and its circulation. Basically, the rates tend to be highest for daily newspapers in large metropolitan areas and lowest in small rural towns. In 2015, the EPA Office of Superfund Remediation and Technology Innovation (OSRTI) conducted a study on newspaper notification in the Superfund cleanup process  36 where it concluded that a major local newspaper of general circulation is not always effective in reaching the intended audience and that it is relatively costly. The study found that the rates for publication in daily newspapers in large metropolitan areas vary from $2,800 (Sacramento Bee) to $3,500 (Houston Chronicle). Publication costs for small rural newspapers are significantly less. In general, it costs about $3,000 for ads in large daily newspapers and often less than $100 or free for small rural newspapers according to the research conducted. Also, based on information provided by seven EPA regions for the research, it is estimated that the average cost per public notice was $884 at that time. The print newspaper ads ranged from an average of $352-$1,550 across the different EPA Regions. OSRTI's study also noted that circulation of newspapers is shrinking, so even when newspapers are available, readership is decreasing on average. The EPA's recommendation in that study was that the community is better served with a strategic approach that uses communication and outreach methods that are best suited to the community and situation. The PSD  37 and NPDES  38 rulemakings (mentioned previously in this section) included a discussion in their preambles on the estimated costs and program savings of amending regulations to use internet-based notice versus newspaper.

The Agency sees all the above reasons as providing a strong case that EPA and authorized states need the flexibility to provide notice of the intent to issue permits—and to take other actions—through vehicles other than print newspapers. EPA believes significant benefits will be realized by recognizing that qualifying online newspapers satisfy the newspaper requirement of RCRA section 7004(b)(2). EPA believes significant additional benefits would be realized if online newsletters or bulletins published by permitting agencies could satisfy the requirement as well (see Section VI.B for the discussion on online newsletters or bulletins).

EPA believes that online newspapers can qualify as “newspapers” within the meaning of RCRA section 7004(b)(2) and EPA's regulations. In addition, EPA believes that such newspapers can satisfy the criteria of being “major,” “local,” and “of general circulation.”

There is no reason, in EPA's view, that an online publication cannot be considered a newspaper. The term “online newspaper,” for the purposes of this document, refers to any electronic or internet-accessible newspaper. While definitions of “newspaper” vary, a fairly standard definition is found in the online Cambridge Dictionary: “a regularly printed document consisting of large sheets of paper that are folded together, or a website, containing news reports, articles, photographs, and advertisements.”  39 Dictionary.com defines newspaper as: “1. A printed publication issued at regular and usually close intervals, especially daily or weekly, and commonly containing news, comment, features, and advertising. . . . 4. an online version of a newspaper.”  40 A number of federal and state cases refer to “online newspapers” or “internet newspapers,” in acknowledgement that such publications are widely referred to and considered to be newspapers, e.g., Act Now to Stop War v. D.C., 846 F.3d 391, 401 (D.C. Cir. 2017). The EPA's PSD rulemaking discussed above treats both “print and digital” newspapers as newspapers (81 FR 71621). Some well-known, formerly printed newspapers have transitioned to online-only format ( e.g., the Seattle Post-Intelligencer), and EPA believes these publications are widely considered and referred to as newspapers. Moreover, some statutes requiring notice in newspapers specify that the newspapers be “printed,” whereas RCRA section 7004(b)(2) does not specify “print” newspapers. See case discussion in What constitutes newspaper of “general circulation” within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R. 4th 822 section 11[a]. In short, EPA believes an online publication that has the kinds of characteristics identified in standard definitions of “newspaper” qualifies as a newspaper within the meaning of section 7004(b)(2).

Furthermore, EPA believes an online newspaper can meet the additional section 7004(b)(2) and corresponding regulatory elements. As with the term “newspaper,” definitions of “newspaper of general circulation” vary. Discussion of the term in a number of judicial cases has been summarized as:

EPA sees no reason that an online newspaper cannot qualify as a newspaper of general circulation. Nor is EPA aware of a reason that an online newspaper cannot qualify as “major” and “local.”

It is not the purpose of this notice to specify the criteria for determining what online (or print) newspapers qualify as major, local, and of general circulation. Rather, this notice conveys EPA's interpretation that a newspaper is not disqualified from meeting those elements simply because it is online.

While this notice does not specify criteria in this regard, it does convey EPA's view that the section 7004(b)(2) terms should be construed broadly in determining whether an online (or print) newspaper qualifies, to meet the intent of the statutory provision. Congress added this section to RCRA so that people who live in the vicinity of a proposed hazardous waste management facility would have notice of the intended issuance of permits and thereby “have the opportunity to have their opinions heard before a permit to build a hazardous chemical waste site is issued.”  42 This objective could be frustrated by a narrow reading of the statutory text.

As shown above in Section V, notice methods other than print newspapers are likely to be more effective in the current media environment in many communities, and this reality will only become more pronounced as the public increasingly turns to online news and information sources. While the EPA and authorized states must comply with section 7004(b)(2), the EPA will interpret its text in way that is most likely to effectively provide timely and meaningful notice to citizens potentially impacted by permitted facilities in an increasingly digital world.

Moreover, a narrow reading of the statutory text could make issuance of permits impossible in many communities—a result that Congress surely did not intend and that the statutory language does not compel. EPA and authorized states must publish notice of their intention to issue each RCRA Subtitle C permit in a major local newspaper of general circulation. And yet, as shown above, many communities no longer have newspapers that would likely have traditionally considered to be “local.” Thus, as a practical matter, section 7004(b)(2) must be interpreted flexibly to ensure that EPA and authorized states can continue to issue permits while providing compliant notice.

EPA's discussion in this section about online newspapers satisfying the requirement for newspaper notice applies to notice for permit actions other than permit issuance, in addition to the agency's notice of permit issuance covered under 7004(b)(2) specified above. More broadly, this discussion and interpretation applies to all RCRA regulatory requirements for “newspaper” notice. For example, it applies to the requirement that EPA publish notice of its decision to approve revisions to a state's authorized program under RCRA “in enough of the largest newspapers in the State to attract statewide attention” per 40 CFR 271.21(b)(3)(i)(B) and (b)(4)(i)(B). Simply put, EPA believes that the term “newspaper” is commonly understood to refer to online as well as print newspapers and that the benefits of the flexibility to use online as well as print newspapers apply regardless of the specific purpose of the notice. These interpretations apply to all EPA regulations that require “newspaper” notice of RCRA permit actions, of course, whether or not the action is governed by RCRA 7004(b)(2).

The EPA welcomes comment on the interpretation that notice of the intent to issue RCRA permits in online newspapers that are major, local and of general circulation satisfies RCRA section 7004(b)(2) and the corresponding EPA regulatory requirements, and that online newspapers generally qualify as “newspapers” under Subtitle C regulations requiring newspaper notice. The EPA intends to operate under this interpretation in the meantime, because it does not believe the interpretation should be controversial and because it does not see a good basis to operate under a more restrictive interpretation. States with similar authorized regulations  43 may also implement an interpretation similar to EPA's without seeking authorization if no state regulatory changes are made. However, EPA will consider any comments received and may either affirm the interpretation or revise it following review of any comments. Also, EPA welcomes comment on whether it should clarify the inclusion of “online newspapers” by amending its regulations that require newspaper notice for permit and other actions.

Note that this interpretation does not prohibit authorized states and EPA from publishing notices in print newspapers; rather, this interpretation clarifies the flexibility afforded by the statutory and EPA regulatory text. The EPA encourages permitting agencies to satisfy the statutory and regulatory newspaper requirements in a manner that provides the most effective public notice mechanisms for a specific community. Section V.A describes the importance of adapting public notice methods to the local community and the importance of doing appropriate research and outreach to determine what combination, of the many methods available, will work best for a given community. In some situations, notice in both print and online newspapers will likely make the most sense. However, EPA recognizes that permitting agencies often have limited funds for notification and wish to have the most effective notice with their limited funds, and in some situations the print version is an additional cost with limited circulation. As mentioned in Section V.B, some state permitting agencies find print newspaper notice ineffective and expensive. 44 45 See additional background on the notification costs in Section V.C and Section VI.B.

In addition, the EPA notes that newspapers are just one of several public participation vehicles used by states and EPA in engaging communities; newspaper notice is required by statute for permit issuance, but other vehicles can certainly be used in addition to newspaper notice and be more efficient.

The Agency is considering and requests comment on whether online newsletters or bulletins published by permitting agencies could qualify as newspapers under EPA regulations, and specifically whether they could qualify under RCRA section 7004(b)(2) and corresponding regulations as major local newspapers of general circulation. While EPA believes significant benefits can be realized by providing notice in online versions of traditional newspapers as compared to print newspapers, EPA also believes that further gains in the quality and efficiency of notice would be achieved in many communities if RCRA section 7004(b)(2) and the EPA regulations were interpreted as allowing for notices posted in appropriate vehicles on agency websites.

EPA has previously recognized the significant notice benefits that can be realized through the posting of notices on agency websites, as compared to notices in traditional newspapers. For example, in the previously referenced PSD (81 FR 71613, October 18, 2016) and NPDES rulemakings (84 FR 3324, February 12, 2019), EPA recognized that online formats can provide more efficient and effective notice for permitting programs in those rulemakings. The PSD change was supported by findings on newspaper readership decline, statistics on the increase of internet usage (and wide availability of internet in public libraries), cost, and other rationale. The rulemaking preamble stated that all state and local agency commenters generally supported the proposal and summarized the benefits of e-notice as follows:  46

Prior to those rulemakings, in 2011, the EPA issued the Tribal New Source Review (NSR) rules that contained, among other things, requirements for noticing of permits in Indian Country that provided for options other than newspaper and print media (76 FR 38748, July 1, 2011). The July 2011 Tribal NSR rule provides options such as web posting and email lists among the methods that the permitting agency may use to provide adequate public notice of such permits.

The benefits EPA identified in these rulemakings apply with equal force to RCRA permitting, and also largely apply to notice of other implementation actions under the Subtitle C regulations. For example, publication of permit notices in online bulletins or newsletters published by state environmental agencies would further reduce costs and processing time for permitting agencies, as they would have greater control over posting and updating public notices. The online sites could also easily make the information available for the entire time the notice is applicable (versus the typical one-time publication in a print newspaper, since it can be inordinately costly to run the ad for the entire public comment period and is not required). See additional information on cost in Section V.C. States and the EPA could provide greater context for the notice, for example, linking to applicable permitting documents. In addition, it is reasonable to assume the public, seeking information about hazardous waste facilities permitted by a state or the EPA, would naturally seek information from the state or the EPA websites directly. News bulletins published by state environmental agencies could allow the public a central place to find and subscribe to all environmental news affecting their locality. State RCRA hazardous waste permitting agencies have strongly supported modernizing the public notice requirements under their authorized programs and have raised the issue to the EPA for many years (see discussion and examples in Section V). The RCRA state programs have also raised the issue that print newspapers are not available in all communities (see examples and discussion in Section V.B).

Candidly, EPA views the section 7004(b)(2) newspaper requirement as anachronistic. It seems likely that, if the provision were being drafted today, Congress would not require this notice method for every permit issuance, in view of the rise of online information and news sources and the disappearance of local newspapers. Were it not for section 7004(b)(2), EPA would most likely move toward the broader range of flexibility for RCRA permitting that it created for PSD and NPDES permitting, which utilize web postings for the notice (see Section V.C). In view of this provision of RCRA, however, EPA intends to utilize and provide for the broadest degree of flexibility the text can afford.

Courts and other authorities have acknowledged that the line between newspapers and other publications is difficult to draw. 47 Moreover, there is a range of definitions of “newspaper of general circulation.” In a holding typical of a number of decisions, a court has stated that, in determining whether a publication qualifies as a newspaper of general circulation under a statute, “the ultimate consideration” is whether the publication “fulfills the purpose underlying [the] statute . . . —to give notice to the general public.”  48 The EPA believes online newsletters and bulletins could potentially qualify as newspapers of general circulation for purposes of section 7004(b)(2) if they fulfill the purpose of effectively providing notice to the affected community.

EPA recognizes that Agency web postings would probably not commonly be referred to as newspapers. Publications understood to be newspapers are typically generated by private companies, rather than by government agencies. However, courts have treated publications of the Army News Service, which is part of the Army's Command Information Program, as newspapers. 49 Thus, EPA does not believe publication by a federal agency bars an information source from being considered a newspaper.

EPA has identified examples of web-based bulletins and newsletters published by state environmental agencies that satisfy key criteria identified in case law and other sources to identify newspapers of general circulation. A summary of such criteria from Corpus Juris Secundum (CJS) is quoted above. A similar summary is provided in Black's Law Dictionary, which defines “newspaper of general circulation” as:

Applying the kinds of criteria found in the definitions, EPA has identified online bulletins and newsletters published by some state environmental agencies that:

• Contain news and information of interest to the general public, rather than to a particular segment. Members of the public generally have interest in environmental and land use issues affecting the community, and the postings of environmental agency bulletins and newsletters generally are not targeted to a particular segment of the population. Along these lines, some state bulletins and newsletters appear on websites that contain information on a broad range of public lands, recreational and other environmental and conservation-related matters as well as information on specific permitting actions.

• Have been continuously serving the same readership for an extended period and are widely recognized in the state as reliable sources of information on environmental developments and issues. These sources are therefore likely to be consulted for such information, such that it is probable that notices appearing in them will be brought to the attention of the interested public.

• Are available to subscribers, in addition to the public more generally, through Listservs.

• Publish at regular, short intervals.

Courts have held newspapers to be of general circulation for the purpose of a particular type of notice where they were of interest to the part of the community likely to be concerned with the subject of the notice in question and/or have a reputation for carrying a particular type of notice. This consideration would militate in favor of considering well-established online state environmental bulletins and newsletters to be newspapers of general circulation.

Moreover, EPA has identified online bulletins and newsletters that can be viewed as “local.” They are specific to the state, and some divide the notices within the state into regions (for example, by county or city). Their circulation may not be limited to particular localities in the same way as traditional local print newspapers; but, again, many communities do not have such traditional local newspapers in any format. And these bulletins can be considered “major,” because they have a large number of subscribers and are widely known in the state as the best source for information on environmental permits and other environmental issues.

EPA recognizes that web-based agency environmental bulletins will likely not have all of the elements identified in the various definitions of “newspaper of general circulation.” For example, the summary provided in CJS identifies “editorial opinion, and advertisements” as elements. However, there is no definitive definition of “newspaper of general circulation,” and the various definitions differ. Accordingly, courts have held that newspapers that lack some of the features identified in some definitions nonetheless qualify as newspapers of general circulation. 50 RCRA section 7004(b)(2) does not prescribe specific characteristics that a newspaper must have to qualify under the general statutory language, and it should therefore be interpreted flexibly to accomplish the underlying purpose of providing effective notice to the public. EPA is specifically requesting comment regarding whether online bulletins or newsletters published by state or EPA permitting agencies can be considered major local newspapers of general circulation and, if so, what attributes they should possess to be considered as such. EPA will not implement such an interpretation until after comments are received and assessed (but with regard to permit actions that are not under section 7004(b)(2), see the approach outlined in Section VII). Also, EPA welcomes comments on whether it should propose to amend the permitting public notice regulations to address the use of agency newsletters and bulletins. (Note, other options will continue to be available, see Section V.A on site-specific assessment for notification and outreach for permit issuance and other actions outlined in the 2016 RCRA Public Participation Manual. 51 )

RCRA section 7004(b)(2) applies only to notice of a state agency's or EPA's intention to issue  52 a RCRA permit. However, as stated above, EPA regulations impose newspaper notice requirements on a broader range of permitting actions. Examples include the following:

• Class 3 modifications (§ 124.10(c)(2)(ii)) and Agency-initiated modifications (§§ 270.41, 124.5, and 124.10(c)(2)(ii));

• Permit modification requests by the permittee per §§ 270.42(b)(2) and (c)(2));

• Requirement to list annual permit modification approvals in a statewide newspaper (§ 270.42(i));

• Permit denials (§ 124.1(a)); and

• Any other newspaper notice required under RCRA Subtitle C that are not for the permitting agency's intention to issue a RCRA permit.

EPA regulations also require newspaper notice for actions and events other than permitting actions. For example, the regulations in 40 CFR 271.21(b)(3)(i)(B) and (b)(4)(i)(B)) require EPA to provide notice of state authorization decisions in state newspapers.

When the EPA is the permitting agency, the EPA must adhere to these requirements. Although authorized states are subject to the section 7004(b)(2) requirement for the issuance of permits, they are not subject to the 40 CFR part 124 regulatory requirements; rather, they are subject to the analogous authorized text in their regulatory requirements. Authorized state permitting requirements must be equivalent to and no less stringent than the federal program, but they need not be identical (see the note  53 in the regulations at 40 CFR 271.14). As explained in Section VI.B above, the EPA believes that online forms of notice (including state newsletters/bulletins) are likely to be more effective than notice in traditional print newspapers in many communities. Consequently, if authorized states interpret their existing authorized regulations as allowing for such flexibility for notices not subject to section 7004(b)(2), EPA would generally not view that as creating an issue as to the equivalence of the state program as long as they provide for notice that is likely to be as effective as or more effective than the notice required by the federal regulations. If states must amend their regulations to provide this flexibility, EPA believes that these regulations are likely to be equivalent to the federal program.

Finally, EPA requests comment on whether it should amend its public notice regulations to clarify options for public noticing permit actions and other actions (except for permit issuance), which are not governed by RCRA 7004(b)(2). EPA does not envision regulatory changes to preclude newspaper notice where it is appropriate, but the Agency is interested in the public's views as to whether the regulations should allow for a broader range of notice mechanisms, including web postings, where appropriate for the community and circumstances. As discussed in the preceding paragraph, such amendments are not necessary to afford authorized states this flexibility, and most permit actions are undertaken by authorized states.

The EPA has carefully considered the principles of equity in developing this notice to ensure equity and accessibility and to increase transparency to marginalized communities. The principle of equity focuses on ensuring that all communities have access to equitable environmental and public health benefits and a meaningful opportunity to participate in decision making. This includes communities of color and low-income communities as well as people with limited English proficiency and with disabilities. As noted by the EPA Administrator “[t]oo many communities whose residents are predominantly of color, Indigenous, or low-income continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts.” In an effort to increase EPA's protective measures, activities, and programs in new and creative ways in communities with environmental justice concerns, the EPA carefully evaluated the potential effect of the interpretations presented in this notice on underserved communities with EJ concerns. In addition, EPA considered the interpretations presented in this notice in light of the federal civil rights laws that apply to recipients of EPA financial assistance.

Public notices represent one of the regular and official channels of communication with communities burdened with environmental justice concerns. The RCRA Expanded Public Participation Rule  54 enhanced public involvement in the RCRA permit process by requiring permitting agencies ( e.g., EPA or the authorized state) to expand procedural opportunities for public participation earlier in the process and during key milestones for communities affected by RCRA permits. The effectiveness of noticing methods for reaching marginalized communities and communities with environmental justice concerns is a substantial concern to the EPA. As noted in Section V.C, the loss of newspapers is disproportionate. The 2020 UNC Hussman report concluded that, in the past 15 years, the U.S. has lost one-fourth (2,100) of its newspapers and most of these losses were sustained in economically struggling communities. The economic fallout from the COVID-19 pandemic has dramatically increased the decline. To ensure the most meaningful public participation in the issuance of RCRA permits and other RCRA permit actions, EPA finds it necessary to consider modern tools and methods for public notice and outreach, as discussed in this notice, to reflect substantial changes in technology, the media, and the way different segments of the public access information.

According to the final National Environmental Justice Advisory Council (NEJAC), EJ in Permitting Subgroup Report, 55 the publication in the legal section of a regional print newspaper is antiquated, ineffective, and is not ideal for providing notice to low-income and minority communities. Regarding public participation, the report recommends the following to the EPA: “To ensure meaningful public participation, the public notice and outreach process must include direct communication in appropriate languages through telephone calls and mailings to EJ and tribal communities, press releases, radio announcements, electronic and regular mail, website postings and the posting of signs.” EPA finds today's notice consistent with the report's recommendations in that EPA intends to provide for the full range of flexibility allowed by RCRA and EPA regulations to satisfy the public notice requirements.

In the 2016 PSD rulemaking described above, commenters noted that modernizing notification processes to provide for electronic notice would be more efficient and convenient for communicating permitting-related information to the public, including communities with environmental justice concerns. Several commenters supported the EPA's conclusion that because there have been substantial changes in technology, the media, and the way the public access media, electronic notifications are more effective means of public notification than newspaper publication. Commenters note that this conclusion applied not only to the public in general, but also for communities with environmental justice concerns. One commenter noted that overburdened communities today obtain and share more information through the internet than through newspaper circulation. The comments also confirmed that some districts have already been encouraged to provide electronic notice by EJ advocates, noting that such notices improve the level of available information and customer service offered to the public, including marginalized communities, by allowing the district to immediately make available permitting action notices in languages other than English. To that point, the commenter explained that public outreach initiatives cannot be nearly as effective with just traditional newspaper notification. The EPA agreed with the commenters and found that electronic notice and electronic access have been an effective and convenient way to communicate permitting-related information to the public. 56

As marginalized communities impacted by environmental justice concerns and other targeted audiences shift away from traditional news and information vehicles and increase their use of the web-based resources for information, the option for electronic noticing public notices could improve communication and increase the public's participation in the RCRA permit process for some of these communities.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.