Background

Pursuant to Section 135 of the Trade Act of 1974 (19 U.S.C. 2155 (c)) and the Federal Advisory Committee Act, as amended, (5 U.S.C. 10), notice is hereby given that the Secretary of Agriculture (Secretary), in coordination with the United States Trade Representative (Trade Representative or USTR), is soliciting nominations for the Agricultural Policy Advisory Committee (APAC) and the related Agricultural Technical Advisory Committees (ATACs) for Trade. In 1974, Congress established a private-sector advisory committee system to ensure that U.S. trade policy and negotiation objectives adequately reflect U.S. commercial and economic interests.

As provided for in the law and their charters, the APAC has the following responsibilities:

(A) The Committee will advise, consult with, and make recommendations to the Secretary and Trade Representative concerning the trade policy of the United States and the matters arising in the administration of such policy; (B) The Committee will provide information and advice regarding the following: negotiating objectives and bargaining positions of the United States before the United States enters into trade agreements, the operation of any trade agreement once entered into, and matters arising in connection with the administration of the trade policy of the United States; and (C) The Committee will furnish such other advisory opinions and reports as the Secretary and Trade Representative deem necessary; and the ATACs have similar responsibilities:

Each committee has a chairperson, who is elected from the membership of that committee. Committees meet as needed, and all committee meetings are typically held in Washington, DC or by telephone or video conference. Committee meetings may be closed if USDA or USTR determines that a committee will be discussing issues that justify closing a meeting or portions of a meeting, in accordance with 19 U.S.C. 2155(f). Throughout the year, members are requested to review sensitive trade policy information and provide comments regarding trade negotiations. In addition to their other advisory responsibilities, at the conclusion of negotiations of any trade agreement, all committees are required to provide a report on each agreement to the President, Congress, USTR and USDA.

All committee members are appointed by and serve at the discretion of the Secretary and Trade Representative. Committee appointments are typically for a period of four years but may be renewed for an additional term. Each committee member must be a U.S. citizen and must represent a U.S. entity with an interest in agricultural trade and must not be registered with the Department of Justice under the Foreign Agents Registration Act. To attend most meetings, committee members must have a current security clearance. New members will be guided in how to apply for a security clearance and their appointment will be contingent on successful completion of the investigation. Committee members serve without compensation and are not reimbursed for their travel expenses. No person may serve on more than one USDA advisory committee at the same time unless a specific exception is granted by the USDA Committee Management Officer. No entity may have more than one representative on any single trade advisory committee.

Eligibility: Nominations for APAC and ATAC membership are open to individuals representing U.S. entities with an interest in agricultural trade without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. Equal opportunity practices in accordance with U.S. Government policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee reflect the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. Members should have expertise and knowledge of agricultural trade as it relates to policy and commodity specific issues. Members will normally come from an entity with an interest in agriculture, and will serve as a Representative, presenting the views and interests of a particular U.S. entity that has an interest in the subject matter of the committee. However, should a member be appointed primarily for his or her expertise, and not as a representative of an interest group, he or she shall be designated as a Special Government Employee (SGE). SGEs are subject to specific provisions of the ethics laws, including disclosure of financial interests, if they are appointed because of their personal knowledge, background, or expertise. USDA will assist SGEs in disclosing their financial interest and will provide ethics training on an annual basis.

Appointments are made of individuals only and are not transferrable. No person, company, producer, farm organization, trade association, or other entity has a right to membership on a committee. In making appointments, every effort will be made to maintain balanced representation on the committees with representation from producers, farm and commodity organizations, processors, traders, and consumers. Geographical diversity on each committee will also be sought.

Nominations: Nominating a person to serve on any of the committees requires submission of a current resume for the nominee and the USDA AD-755 (Advisory Committee Membership Background Information, OMB Number 0505-0001), available on the internet at: http://www.fas.usda.gov/trade-advisorycommittees-applying-membership. A cover letter should also be submitted indicating the specific committee for which the individual is being nominated, why the nominee wants to be a committee member, and his or her qualifications for membership, and how the submitter learned about this call for nominations. The cover letter should also include the statements required below related to Federally Registered Lobbyists and Foreign Firms. If applicable, the application should include a sponsor letter on the non-Federal governmental entity letterhead containing a brief description of the manner in which international trade affects the entity and why the applicant should be considered for membership. Forms may also be requested by sending an email to ATACs@usda.gov, or by phone at (202) 868-7059.

Federally Registered Lobbyists: All nominees must provide a statement confirming their lobbyist status.

Pursuant to the Revised Guidance on Appointment of Lobbyists to Federal Advisory Committees, Boards, and Commissions, published by the Office of Management and Budget (OMB) on August 13, 2014, “federally registered lobbyists are no longer prohibited from serving on the advisory committees in a representative capacity.” OMB's revised guidance clarifies that the eligibility restriction does not apply to advisory committee members who are specifically appointed to represent the interests of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, environmental groups, etc.), or state or local governments. The lobbyist prohibition continues to apply to persons serving on advisory committees in their individual capacity ( e.g., SGEs).

Foreign Firms: If the nominee is to represent an entity or corporation with ten percent or greater non-U.S. ownership, the nominee must state the extent to which the organization or interest to be represented by the nominee is owned by non-U.S. citizens, organizations, or interests and demonstrate at the time of nomination that this ownership interest does not constitute control and will not adversely affect his or her ability to serve as an advisor on the U.S. agriculture advisory committee for trade.

On December 21, 2012, a Federal coal LBA was submitted to the BLM Eastern States Office by Emera Corporation on behalf of Ouro Mining, Inc. On March 7, 2014, the BLM accepted the lease application. The application requests access to extract Federal metallurgical coal resources under lands managed by the ONF on the Poteau-Cold Springs Ranger District in Arkansas. The proposed lease area is in T3N, R32W, Sections 8-11, 14, 15, 17-19 and T3N, R33W, Section 13 in Scott and Sebastian Counties, Arkansas. The proposed Federal lease area is located adjacent and directly to the north of current coal leases held by Ouro Mining on private lands near Bates, Arkansas. The Emera Corporation's application involves a mix of reserved public domain lands and acquired lands on the ONF.

BLM is responsible for considering whether a coal lease would be offered through the competitive bid process and what stipulations would be required for surface resource protection. Because the lease would involve minerals underlying the ONF, the FS administrative unit with jurisdiction for managing surface resources, the BLM must have FS consent prior to deciding whether to offer the lease for sale.

The purpose of the project is to respond to the Federal coal LBA submitted to the BLM Eastern States Office by Emera Corporation on behalf of Ouro Mining Inc. to extract metallurgical coal from 3,077 acres beneath the ONF. Under the Mineral Leasing Act of 1920 (MLA), as amended, 30 U.S.C. 181 et seq., and the Mineral Leasing Act for Acquired Lands of 1947 (MLAAL), as amended, 30 U.S.C. 351 et seq. The BLM is responsible for leasing Federal coal and regulation of the development of that coal on approximately 570 million acres of the 700 million acres of mineral estate that is owned by the Federal Government. This responsibility encompasses Federal mineral rights on Federal lands and Federal mineral rights located under surface lands with non-Federal ownership. Under the authority of the MLA and MLAAL, the BLM administers leasing and monitors coal production.

Under the MLA, the BLM has responsibility for reviewing the Emera Corporation application and determining if it will approve the application and offer the lease for sale through a competitive bid process. The BLM takes into consideration whether leasing the applied for lands would be in the public interest (30 U.S.C. 181-287, 351-359; 43 CFR 3425.1 and 3472.1). The BLM regulations state the BLM must reject an application if “leasing of the land covered by the application, environmental or other sufficient reasons, would be contrary to the public interest” (43 CFR 3425.1-8(a)(3)). Many, often competing, interests must be considered in arriving at a public interest determination, including, but not limited to, the applicant's request; the environmental impacts; the economic benefit to the local, state, and national economy; rights of qualified surface owners; ensuring a fair return for the use of the public resources; and conservation of the public resource (BLM Manual 3435). Further, because the lease would involve minerals underlying the ONF, the BLM must have FS consent prior to deciding whether to offer the lease for sale (43 CFR 3461.5). The ONF is an administrative unit of the FS and as such FS has the jurisdiction for managing surface resources. FS will determine whether to provide consent to the BLM under the applicable statutory standards.

The 2005 Ouachita National Forest Revised Land and Resource Management Plan (ONF Revised Forest Plan) does not address metallurgical coal leasing. For this reason, the FS will determine whether the proposed lease area on NFS lands is suitable for coal leasing. A forest plan amendment that provides additional direction for managing coal may be needed. If needed, the scope of the plan amendment would be limited to the 3,077 acres proposed for Federal metallurgical coal leasing. However, it would be programmatic in nature and plan direction would apply to future projects (36 CFR 219.13(b)). As part of its consent analysis, the Forest Service will consider, but not limit it to, the unsuitability criteria that the BLM applies on its own lands as outlined in 43 CFR 3461.5.

In association with the Federal coal lease application, the Forest Service will respond to a special use permit application received from Arkansas Valley Electric Cooperative to construct and operate approximately 3.0 miles (out of 9 total miles) of 161kV transmission powerline and 2.0 miles of associated new powerline access roads across NFS lands on the ONF for the purpose of providing electricity to the coal operation. The approximately 6.0 miles of powerline not on NFS lands would be addressed in the EIS cumulative effects analysis.

The FS will assess whether the proposed lease area on NFS lands is suitable for coal leasing and if so, whether to consent to leasing 3,077 acres of Federal coal underlying the Ouachita National Forest as described in the Emera Corporation application. As part of assessing consent, the FS will develop lease stipulations that protect surface resources. The stipulations will be included with any FS consent decision to lease. The BLM would include these stipulations in the coal lease.

Additionally, connected actions associated with the lease include the:

• Construction, operation, and maintenance of a 161kV powerline on 3.0 miles of NFS lands and the construction of approximately 2.0 miles of powerline access roads.

• Issuance of a special use permit that authorizes a 100-foot right of way (ROW) for the 161kV powerline. Issuance of the permit would be contingent on the metallurgical coal lease being sold, and the mining plan approved and permitted.

• If needed, a forest plan amendment that may add management direction for the leasing of metallurgical coal on 3,077 acres.

Disclosure of potential adverse impacts to NFS lands includes subsidence, which means the land surface is lowered as a result of mining activities. Resources potentially affected include, but are not limited to, vegetation, soil, and water. The EIS will address the potential for impacts from increased carbon emissions. Whether greenhouse gas emissions could approach significance over the life of the project is unknown at this time. Construction and maintenance of the electrical powerline and its associated roads would be designed to comply with the ONF Revised Forest Plan; significant impacts to vegetation, water, and soil resources are not expected.

The FS is the lead agency for the preparation and development of the EIS. The BLM and OSMRE are cooperating agencies. The FS will coordinate with BLM and OSMRE as cooperating agencies during preparation of the EIS, during the public review process, and throughout the decision-making process. The FS and BLM will be making separate decisions. The OSMRE does not have a decision to be made at time but may tier to this analysis for future decisions.

The official responsible for the Forest Service consent determination is the Ouachita Forest Supervisor. This authority was delegated by the Southern Region Regional Forester on October 16, 2023. The official responsible for the BLM leasing decision is the BLM Eastern States State Director.

This notice of intent initiates the scoping process, which guides the development of the EIS. In this process the FS and BLM are requesting comments on the plan amendment, potential alternatives and impacts, and identification of any relevant information, studies or analyses of any kind concerning impacts affecting the quality of the human environment. Additional opportunities for public comment will be provided when the draft EIS is available. Whether virtual or in-person meetings will be hosted during the scoping period is to be determined. It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the final EIS; therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. Commenting during the opportunity to comment provided by the FS Responsible Official as prescribed by the applicable regulations will also govern eligibility to object once the final EIS and Draft Record of Decision has been published. Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, they will not be used to establish eligibility for the objection process.

The site-specific FS decisions (consent and the powerline) will be subject to the FS's predecisional administrative review procedures established in 36 CFR part 218. Those wishing to object to the site-specific decisions must meet the requirements at 36 CFR part 218, subparts A and B, for the project.

If a forest plan amendment is needed, that decision will be subject to the plan-level administrative review procedures established in 36 CFR part 219. Those wishing to object to the forest plan amendment must meet the requirements at 36 CFR part 219, subpart B (per 36 CFR 219.54). (See 36 CFR 219.59(b).) It is possible that the 36 CFR parts 218 and 219 objection process would run concurrently.

Should the BLM decide to sell the Federal metallurgical coal lease through the competitive bid process, OSMRE will be the permitting authority for the 3,077 acres of Federal land for coal leasing. OSMRE would approve and enforce the operator's subsidence control plan and ensure that mining-related impacts on the hydrological balance or acid mine discharge would be minimized. The Federal lease holder would be required to provide OSMRE with a final mine plan that provides details on how the underground mine and any surface infrastructure would be constructed, operated, and maintained.

OSMRE would prepare a mine plan decision document and make a recommendation to the DOI Assistant Secretary of the Interior for Land and Minerals Management (ASLM) whether to approve, approve with conditions, or disapprove the mine plan. OSMRE would request FS consent on the terms and conditions of the mine plan approval prior to submitting its recommendation to ASLM.

An additional finding is required by the Secretary of the Interior on whether Federal lands within the national forest have significant recreational, timber, economic, or other values that may be incompatible with coal mining operations. That finding, as required by section 522(e)(2) of the Surface Mining Control and Reclamation Act (30 CFR 761.11(b)), would rely on a recommendation of compatibility and determination of compliance (1990 OSMRE and FS memorandum of understanding (MOU)) from the FS, and a subsequent compatibility determination from OSMRE. Operation and reclamation of the metallurgical coal mine would be under the permitting jurisdiction of OSMRE.

Among other considerations, the responsible officials will review the proposed action, other alternatives, environmental consequences, in order to make the following decisions:

For the BLM the decisions to be made are whether:

(1) The proposed metallurgical coal lease area is acceptable for coal leasing (43 CFR part 3461).

(2) Areas unsuitable for surface mining of coal have been identified as required by 43 CFR 3461.5.

(3) There are special conditions designed to protect resources that would be required for a future coal lease.

(4) The amount of coal recoverable has been identified and is acceptable for a future consideration of leasing.

(5) The screening process has been completed in accordance with 43 CFR 3420.1-4(e). If the BLM determines the proposed lease area is suitable and can made available for a Federal coal lease, the lease would be offered for sale through the competitive bid process. The BLM decision for a lease to utilize Federal lands would be documented in a record of decision (ROD) issued by the BLM.

For the FS the decisions to be made are whether:

(1) The lands underlying the ONF are suitable for coal leasing;

(2) To provide consent, with appropriate lease stipulations to protect surface resources, to the BLM concerning a Federal coal Lease by Application (LBA) submitted to the BLM from the Emera Corporation on behalf of Ouro Mining Inc.;

(3) To approve the powerline and associated access roads and issue a special use permit with terms and conditions; and

(4) If needed, to approve a forest plan amendment that may provide management direction for coal leasing on 3,077 acres within the ONF.

The FS decision on suitability, consent with surface leasing stipulations, the powerline and access roads special use permit, and a forest plan amendment (if needed) would be documented in a Record of Decision issued by the FS. Consent to the BLM would be issued through correspondence.

The FS's Land Management Planning Rule at 36 CFR 219.13(b)(2) requires the responsible official to provide notice of which substantive requirements of 36 CFR 219.8 through 219.11 are likely to be directly related to the amendment. Whether a rule provision is directly related to an amendment is determined by the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and is informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale (36 CFR 219.13(b)(5)). Based on those criteria, the Planning Rule provision likely to be directly related to the forest plan amendment (if needed) is: § 219.10(a)(2) (multiple use).

The EIS will identify, analyze, and consider mitigation to address the reasonably foreseeable impacts to surface resources from the LBA, the electrical powerline, and the associated access roads. In accordance with 40 CFR 1502.14(e), the agencies will evaluate appropriate mitigation measures not already included in the LBA. Mitigation may include avoidance, minimization, rectification, reduction or elimination over time, and compensation; and may be considered at multiple scales, including the landscape scale. The agencies will utilize and coordinate the National Environmental Policy Act (NEPA) and land use planning processes to help support compliance with applicable procedural requirements under the Endangered Species Act (16 U.S.C. 1536) and section 106 of the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3), including public involvement requirements of section 106. The information about historic and cultural resources and threatened and endangered species within the area potentially affected by the LBA and proposed plan amendment will assist the agencies in identifying and evaluating impacts to such resources.

Indian Tribal Nations will be consulted on a government-to-government basis in accordance with Executive Order 13175, BLM MS 1780, and other Departmental policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, state, and local agencies, along with Indian Tribal Nations and other stakeholders that may be interested in or affected by the proposed Federal coal LBA for the Heavener project, the amendment to the ONF Revised Forest Plan, and powerline-associated actions. They are invited to participate in the scoping process and, if eligible, may request or be requested by the agencies to participate in the development of the EIS as a cooperating agency.

Additional opportunities for government-to-government consultation will be provided during the NEPA process.

Background

Commerce is conducting an administrative review of the antidumping duty order on multilayered wood flooring (MLWF) from the People's Republic of China (China). 1 The review covers 48 companies, including mandatory respondent, Senmao.

For events that occurred since the Initiation Notice and the analysis behind our preliminary results herein, see the Preliminary Decision Memorandum. 2 The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at https://access.trade.gov/public/FRNoticesListLayout.aspx. A list of topics discussed in the Preliminary Decision Memorandum is included as Appendix I to this notice.

The product covered by the Order is MLWF from China. For a complete description of the scope of this administrative review, see the Preliminary Decision Memorandum.

On May 1, 2023, Kahrs International Inc. (Kahrs) timely withdrew its request for review of the Fusong Jinlong Group (Jinlong). 4 No other parties requested a review of this company. 5 Accordingly, Commerce is rescinding the administrative review with respect to Jinlong. 6

Based on an analysis of information from U.S. Customs and Border Protection (CBP), no shipment certifications, and other record information, we preliminarily determine that 23 companies had no shipments of subject merchandise during the POR. For a listing of these companies, see Appendix II of this notice. Consistent with our practice in non-market economy (NME) cases, we are not rescinding this review with respect to these companies but, rather, intend to complete the review and issue appropriate instructions to CBP based on the final results of the review. 7

We preliminarily determine that, in addition to Senmao, two companies not individually-examined are eligible for separate rates in this administrative review, Dalian Deerfu Wooden Product Co., Ltd. (Deerfu) and Dalian Jaenmaken Wood Industry Co., Ltd. (Jaenmaken). 8 The Tariff Act of 1930, as amended (the Act), and Commerce's regulations do not address the establishment of a separate rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for separate-rate respondents which Commerce did not examine individually in an administrative review. For the preliminary results of this review, Commerce has determined the estimated dumping margin for Senmao to be zero. 9 For the reasons explained in the Preliminary Decision Memorandum, we are assigning this rate to Deerfu and Jaenmaken, i.e., the non-examined respondents which qualify for a separate rate in this review.

Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review. 10 Under this policy, the China-wide entity will not be under review unless a party specifically requests, or Commerce self-initiates, a review of the entity. Because no party requested a review of the China-wide entity, the entity is not under review, and the entity's rate ( i.e., 85.13 percent) is not subject to change. See the Preliminary Decision Memorandum for further discussion.

Aside from the companies for which we preliminarily find no shipments and the company for which the review is being rescinded, Commerce considers all other companies for which a review was requested and did not demonstrate separate rate eligibility to be part of the China-wide entity. 11 For the preliminary results of this review, we consider 21 companies to be part of the China-wide entity. For a listing of these companies, see Appendix II of this notice.

We are conducting this administrative review in accordance with sections 751(a)(1)(B) of the Act and 19 CFR 351.213. We calculated export prices for Senmao in accordance with section 772(a) of the Act. Because China is an NME country within the meaning of section 771(18) of the Act, we calculated NV in accordance with section 773(c) of the Act.

We preliminarily determine that the following weighted-average dumping margins exist for the POR December 1, 2021, through November 30, 2022:

We intend to disclose the calculations performed for these preliminary results to interested parties with an Administrative Protective Order within five days after the date of publication of these preliminary results. 12

Pursuant to 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs no later than 30 days after the date of publication of this notice. 13 Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs. 14 Interested parties who submit case briefs or rebuttal briefs in this proceeding must submit: (1) a table of contents listing each issue; and (2) a table of authorities. 15 As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In this administrative review, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs. 16 Further, we request that interested parties limit their executive summary of each issue to no more than 450 words, not including citations. We intend to use the executive summaries as the basis of the comment summaries included in the issues and decision memorandum that will accompany the final results in this administrative review. We request that interested parties include footnotes for relevant citations in the executive summary of each issue. Note that Commerce has amended certain of its requirements pertaining to the service of documents in 19 CFR 351.303(f). 17

Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. An electronically-filed hearing request must be received successfully in its entirety by Commerce's electronic system, ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice. 18

Unless the deadline is extended, we intend to issue the final results of this administrative review, which will include the results of our analysis of the issues raised in the case briefs, within 120 days of publication of these preliminary results in the Federal Register , pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).

Upon issuance of the final results, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review, in accordance with 19 CFR 351.212(b).

If Senmao's ad valorem weighted-average dumping margin is not zero or de minimis ( i.e., less than 0.50 percent) in the final results of this review, Commerce will calculate importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales and the total quantity of those sales, in accordance with 19 CFR 351.212(b)(1). 19 Commerce will also calculate (estimated) ad valorem importer-specific assessment rates with which to assess whether the per-unit assessment rate is de minimis. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific ad valorem assessment rate calculated in the final results of this review is not zero or de minimis.

For Deerfu and Jaenmaken, i.e., the respondents that were not selected for individual examination in this administrative review that qualified for a separate rate, the assessment rate will be the separate rate established in the final results of this administrative review. If, in the final results, the respondents' weighted-average dumping margins continue to be zero or de minimis ( i.e., less than 0.5 percent), Commerce will instruct CBP to liquidate the appropriate entries without regard to antidumping duties. 20

For entries that were not reported in the U.S. sales databases submitted by Senmao during this review, and for the 21 companies that do not qualify for a separate rate, Commerce will instruct CBP to liquidate such entries at the China-wide rate ( i.e., 85.13 percent). 21 In addition, if we continue to find no shipments of subject merchandise for the 23 companies for which we preliminarily find no such shipments during the POR, 22 any suspended entries of subject merchandise associated with those companies will be liquidated at the China-wide rate. 23

For Jinlong, i.e., the company for which the administrative review is rescinded, antidumping duties shall be assessed at a rate equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i).

We intend to issue appropriate assessment instructions with respect to Jinlong, i.e., the company for which this administrative review is rescinded, to CBP 35 days after the publication of the preliminary results in the Federal Register . For all other companies that continue to be subject to review, we intend to issue appropriate assessment instructions to CBP 35 days after the publication of the final results in the Federal Register . If a timely summons is filed at the U.S. Court of International Trade, the assessment instructions will direct CBP not to liquidate relevant entries until the time for parties to file a request for a statutory injunction has expired ( i.e., within 90 days of publication).

The following cash deposit requirements will be effective upon publication of the final results of this review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for the companies listed above that have a separate rate, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is de minimis, then a cash deposit rate of zero will be required); (2) for previously investigated or reviewed Chinese and non-Chinese exporters for which a review was not requested and that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the China-wide entity ( i.e., 85.13 percent); and (4) for all non-Chinese exporters of subject merchandise that have not received their own rate, the cash deposit rate will be the rate applicable to Chinese exporter that supplied that non-Chinese exporter. These cash deposit requirements, when imposed, shall remain in effect until further notice.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or increase in the amount of antidumping duties by the amount of the countervailing duties.

We are issuing and publishing the preliminary results of this review in accordance with sections 751(a)(l) and 777(i)(l) of the Act, and 19 CFR 351.221(b)(4).

Wednesday, January 10, 2024, 9 a.m.-5 p.m., EST.

The meeting will begin with member and staff introductions, overview of Advisory Panel (AP) Meeting Process, election of chair and vice chair, adoption of agenda and review the charge of the AP and overview of Meeting Scope.

The committee will review past discussions from charter-for-hire data collection including presentation and background materials from original Southeast For-Hire Integrated Electronic Reporting (SEFHIER) amendment and technical document of program recommendations. The AP will discuss new charter for-hire data collection program goals and objectives and receive presentations for considerations for a data collection program and summary of SEFHIER program data. The AP will discuss recommendations for a New For-hire Data Collection Program and receive public comments, if any.

The committee will reconvene and continue discussions on Recommendations for a New For-hire Data Collection Program, revisit the AP charge, evaluate desired program goals and objectives and wrap-up recommendations to Council.

The committee will discuss Other Business items, and receive Public Comments before the meeting adjourns.

The Agenda is subject to change, and the latest version along with other meeting materials will be posted on https://www.gulfcouncil.org.

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

Authority: 16 U.S.C. 1801 et seq.

Background

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

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

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

This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 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 June 15, 2023, NMFS received a request from Trident for an IHA to take marine mammals incidental to vibratory and impact pile driving to replace the Bunkhouse Dock at their facility in Kodiak, Alaska. Following NMFS' review of the application, Trident submitted a revised version on September 1, 2023. The application was deemed adequate and complete on October 26, 2023. Trident's request is for take of six species of marine mammals by Level B harassment only. Neither Trident nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

Trident proposes to remove and replace the Bunkhouse Dock on the shore of Near Island Channel in Kodiak, Alaska. The purpose of this project is to remove the degraded dock and replace it with a new structure to provide safe housing and waterfront infrastructure for seafood processing. The activity includes the removal of existing piles and the installation of both temporary and permanent piles of various sizes. Takes of marine mammals by Level B harassment would occur due to down-the-hole (DTH) drilling and vibratory pile driving and removal. This project would occur Kodiak, Alaska along the western shore of Near Island Channel within Township 27S. Construction activities are expected to occur over 8 weeks starting in March 2024.

The proposed activities are expected to start in March 2024 and last 8 weeks. It is expected to take 94 hours over 55 non-consecutive days. All pile driving and removal would be completed during daylight hours.

The proposed activities would take place at the Trident Seafoods facility along the City of Kodiak's downtown working waterfront. It is located on the western shore of Near Island Channel in Kodiak, Alaska within Township 27S. All construction would occur within the footprint of the existing Trident-owned Bunkhouse Dock. The timing of this work is planned to not interfere with the commercial fishing season.

The Bunkhouse Dock replacement will include the removal of 100 14-inch (in) (36 centimeter (cm)) diameter timber piles, 75 14-in (36-cm) steel H-piles, and 60 16-in (41 cm) diameter steel pipe piles. Once the existing piles are removed, 26 16-in (41 cm) diameter steel pipe piles and 52 24-in (61 cm) diameter steel pipe piles would be installed to support the new pier. The installation and removal of 52 temporary 24-in (61 cm) diameter steel pipe piles would be completed to support permanent pile installation. All piles will be removed with the deadpull method with the vibratory hammer being used if the deadpull method is unsuccessful. Temporary and permanent piles will be initially installed with the vibratory hammer followed by the DTH drill to embed them to their final depth. The work would be completed within the footprint of the existing Bunkhouse Dock in Kodiak, Alaska.

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

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

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

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. 2022 SARs. All values presented in table 2 are the most recent available at the time of publication and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

As indicated above, all six species (with eight managed stocks) in table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the proposed project area are included in table 5 of the IHA application. While gray whales, North Pacific right whales, minke whales, fin whales, Cuvier's beaked whales, sperm whales, Pacific white-sided dolphins, and northern fur seals in the area, 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 are all considered to be rare (no sightings in recent years) within the project area. Take of these species has not been requested nor is proposed to be authorized and these species are not considered further in this document.

Additional information relevant to our analyses (beyond that included above, in the application, and on NMFS website) is included below, as appropriate.

On September 8, 2016, NMFS divided the once single species into 14 distinct population segments (DPS) under the ESA, removed the species-level listing as endangered, and, in its place, listed 4 DPSs as endangered and one DPS as threatened (81 FR 62259, September 8, 2016). The remaining nine DPSs were not listed. There are four DPSs in the North Pacific, including Mexico, which is listed as threatened, and Hawaii, which is not listed.

The 2022 Alaska and Pacific SARs described a revised stock structure for humpback whales which modifies the previous stocks designated under the MMPA to align more closely with the ESA-designated DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the three previous North Pacific humpback whale stocks (Central and western North Pacific stocks and a CA/OR/WA stock) were replaced by five stocks, largely corresponding with the ESA-designated DPSs. These include Western North Pacific and Hawaii stocks and a Central America/Southern Mexico-CA/OR/WA stock (which corresponds with the Central America DPS). The remaining two stocks, corresponding with the Mexico DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks (Caretta et al., 2023; Young et al., 2023). The former stock is expected to occur along the west coast from California to southern British Columbia, while the latter stock may occur across the Pacific, from northern British Columbia through the Gulf of Alaska and Aleutian Islands/Bering Sea region to Russia.

The Hawai'i stock consists of one demographically independent population (DIP)—Hawai'i-southeast Alaska/northern British Columbia DIP and one unit—Hawai'i-north Pacific unit, which may or may not be composed of multiple DIPs (Wade et al., 2021). The DIP and unit are managed as a single stock at this time, due to the lack of data available to separately assess them and lack of compelling conservation benefit to managing them separately (NMFS, 2023; NMFS, 2019; NMFS, 2022b). The DIP is delineated based on two strong lines of evidence: genetics and movement data (Wade et al., 2021). Whales in the Hawai'i-southeast Alaska/northern British Columbia DIP winter off Hawai'i and largely summer in southeast Alaska and northern British Columbia (Wade et al., 2021). The group of whales that migrate from Russia, western Alaska (Bering Sea and Aleutian Islands), and central Alaska (Gulf of Alaska excluding southeast Alaska) to Hawai'i have been delineated as the Hawai'i-North Pacific unit (Wade et al., 2021). There are a small number of whales that migrate between Hawa'i and southern British Columbia/Washington, but current data and analyses do not provide a clear understanding of which unit these whales belong to (Wade et al., 2021; Caretta et al., 2023; Young et al., 2023).

The Mexico-North Pacific unit is likely composed of multiple DIPs, based on movement data (Martien et al., 2021; Wade, 2021, Wade et al., 2021). However, because currently available data and analyses are not sufficient to delineate or assess DIPs within the unit, it was designated as a single stock (NMFS, 2023a; NMFS, 2019; NMFS, 2022c). Whales in this stock winter off Mexico and the Revillagigedo Archipelago and summer primarily in Alaska waters (Martien et al., 2021; Carretta et al., 2023; Young et al., 2023).

Wild et al. (2023) identified the waters around and to the East of Kodiak Island (including the proposed project area) as a Biologically Important Area (BIA) for humpback whales for feeding during the months of May through September, with an importance score of 1 (the lowest of three possible scores (1, 2, or 3), reflecting an Intensity score of 2 (indicating an area of moderate comparative significance) and a Data Support score of 1 (lower relative confidence in the available supporting data). While the majority of sightings occur outside of the Near Island Channel, a singular humpback whale was documented transiting the channel during the Kodiak Ferry Terminal construction in March 2016 (NMFS 2017).

Steller sea lions were listed as threatened range-wide under the ESA on November 26, 1990 (55 FR 49204). Steller sea lions were subsequently partitioned into the western and eastern Distinct Population Segments (DPSs; western and eastern stocks) in 1997 (62 FR 24345, May 5, 1997). The eastern DPS remained classified as threatened until it was delisted in November 2013. The western DPS (those individuals west of the 144° W longitude or Cape Suckling, Alaska) was upgraded to endangered status following separation of the DPSs, and it remains endangered today. There is regular movement of both DPSs across this 144° W longitude boundary (Jemison et al., 2013) however, due to the distance from this DPS boundary, it is likely that only western DPS Steller sea lions are present in the project area. Therefore, animals potentially affected by the project are assumed to be part of the western DPS. Sea lions from the eastern DPS, are not likely to be affected by the proposed activity and are not discussed further.

Steller sea lions do not follow traditional migration patterns, but will move from offshore rookeries in the summer to more protected haulouts closer to shore in the winter. They use rookeries and haulouts as resting spots as they follow prey movements and take foraging trips for days, usually within a few miles of their rookery or haulout. They are generalist marine predators and opportunistic feeders based on seasonal abundance and location of prey. Steller sea lions forage in nearshore as well as offshore areas, following prey resources. They are highly social and are often observed in large groups while hauled out but alone or in small groups when at sea (NMFS 2022).

Steller sea lions are frequent in the proposed project area as many have become habituated to the human activity at the seafood processing facilities. Steller sea lions regularly haul out on the Dog Bay float in St. Herman Harbor, which is approximately 792 m (2,600 ft) from the proposed project area. A bi-weekly census of Steller sea lions at the Dog Bay float conducted from November 2015 to June 2016, in association with the Kodiak Ferry Terminal project, revealed maximum numbers (>100) from mid-March through mid-June, with 5,111 total observations from November 2015 to June 2016 (NMFS 2019a). The highest average hourly number (11-15/hour) of sea lions within the entire Kodiak Ferry Terminal observation area occurred from February through April 2016 (NMFS 2019a).

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. 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, 2019) recommended that marine mammals be divided into hearing groups based on directly measured (behavioral or auditory evoked potential techniques) or estimated hearing ranges (behavioral response data, anatomical modeling, etc. ). Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 3.

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

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.

This section provides a discussion of the ways in which 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 whether those impacts are reasonably expected to, or reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

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

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

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

Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak sound pressure levels (SPLs) may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman, et al., 2009). Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (Nedwell and Edwards, 2002; Carlson, et al., 2005).

DTH systems would also be used during the proposed construction. A DTH hammer is essentially a drill bit that drills through the bedrock using a rotating function like a normal drill, in concert with a hammering mechanism operated by a pneumatic (or sometimes hydraulic) component integrated into the DTH hammer to increase speed of progress through the substrate ( i.e., it is similar to a “hammer drill” hand tool). The sounds produced by the DTH methods contain both a continuous non-impulsive component from the drilling action and an impulsive component from the hammering effect. Therefore, NMFS treats DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously.

The likely or possible impacts of Trident's proposed activities on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel; however, given there are no known pinniped haul-out sites in the vicinity of the proposed project site, visual and other non-acoustic stressors would be limited, and any impacts to marine mammals are expected to primarily be acoustic in nature.

The introduction of anthropogenic noise into the aquatic environment from pile driving or drilling is the primary means by which marine mammals may be harassed from the Haines Borough specified activity. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall et al., 2007; Southall et al., 2019). In general, exposure to pile driving or drilling noise has the potential to result in auditory threshold shifts and behavioral reactions ( e.g., avoidance, temporary cessation of foraging and vocalizing, changes in dive behavior). Exposure to anthropogenic noise can also lead to non-observable physiological responses, such an increase in stress hormones. Additional noise in a marine mammal's habitat can mask acoustic cues used by marine mammals to carry out daily functions, such as communication and predator and prey detection. The effects of pile driving or drilling noise on marine mammals are dependent on several factors, including, but not limited to, sound type ( e.g., impulsive vs. non-impulsive), the species, age and sex class ( e.g., adult male vs. mom with calf), duration of exposure, the distance between the pile and the animal, received levels, behavior at time of exposure, and previous history with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we discuss physical auditory effects (threshold shifts) followed by behavioral effects and potential impacts on habitat.

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

Permanent Threshold Shift (PTS) —NMFS defines PTS as a permanent, irreversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS, 2018). PTS does not generally affect more than a limited frequency range, and an animal that has incurred PTS has incurred some level of hearing loss at the relevant frequencies; typically animals with PTS are not functionally deaf (Richardson et al., 1995; Au and Hastings, 2008). Available data from humans and other terrestrial mammals indicate that a 40 dB threshold shift approximates PTS onset (Ward et al., 1958, Ward et al., 1959; Ward, 1960; Kryter et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson et al., 2008). PTS criteria for marine mammals are estimates, as with the exception of a single study unintentionally inducing PTS in a harbor seal (Kastak et al., 2008), there are no empirical data measuring PTS in marine mammals largely due to the fact that, for various ethical reasons, experiments involving anthropogenic noise exposure at levels inducing PTS are not typically pursued or authorized (NMFS, 2018).

Temporary Threshold Shift (TTS) —A temporary, reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS, 2018). Based on data from cetacean TTS measurements (Southall et al., 2007; Southall et al., 2019), a TTS of 6 dB is considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt et al., 2000; Finneran et al., 2000; Finneran et al., 2002). As described in Finneran (2015), marine mammal studies have shown the amount of TTS increases with cumulative SEL (SEL cum ) in an accelerating fashion: at low exposures with lower SELcum, the amount of TTS is typically small and the growth curves have shallow slopes. At exposures with higher SEL cum , the growth curves become steeper and approach linear relationships with the noise SEL.

Depending on the degree (elevation of threshold in dB), duration ( i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that takes place during a time when the animal is traveling through the open ocean, where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. We note that reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so we can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

Many studies have examined noise-induced hearing loss in marine mammals (see Finneran (2015) and Southall et al. (2019) for summaries). TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 2013). 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. For cetaceans, published data on the onset of TTS are limited to captive bottlenose dolphin ( Tursiops truncatus ), beluga whale ( Delphinapterus leucas ), harbor porpoise, and Yangtze finless porpoise ( Neophocoena asiaeorientalis ) (Southall et al., 2019). For pinnipeds in water, measurements of TTS are limited to harbor seals, elephant seals ( Mirounga angustirostris ), bearded seals ( Erignathus barbatus ), and California sea lions ( Zalophus californianus ) (Kastak et al., 1999; Kastak et al., 2007; Kastelein et al., 2019b; Kastelein et al., 2019c; Reichmuth et al., 2019; Sills et al., 2020; Kastelein et al., 2021; Kastelein et al., 2022a; Kastelein et al., 2022b). These studies examine hearing thresholds measured in marine mammals before and after exposure to intense or long-duration sound exposures. The difference between the pre-exposure and post-exposure thresholds can be used to determine the amount of threshold shift at various post-exposure times.

The amount and onset of TTS depends on the exposure frequency. Sounds at low frequencies, well below the region of best sensitivity for a species or hearing group, are less hazardous than those at higher frequencies, near the region of best sensitivity (Finneran and Schlundt, 2013). At low frequencies, onset-TTS exposure levels are higher compared to those in the region of best sensitivity ( i.e., a low frequency noise would need to be louder to cause TTS onset when TTS exposure level is higher), as shown for harbor porpoises and harbor seals (Kastelein et al., 2019a; Kastelein et al., 2019c). Note that in general, harbor seals and harbor porpoises have a lower TTS onset than other measured pinniped or cetacean species (Finneran, 2015). In addition, TTS can accumulate across multiple exposures, but the resulting TTS will be less than the TTS from a single, continuous exposure with the same SEL (Mooney et al., 2009; Finneran et al., 2010; Kastelein et al., 2014; 2015). This means that TTS predictions based on the total, cumulative SEL will overestimate the amount of TTS from intermittent exposures, such as sonars and impulsive sources. Nachtigall et al. (2018) describe measurements of hearing sensitivity of multiple odontocete species (bottlenose dolphin, harbor porpoise, beluga, and false killer whale ( Pseudorca crassidens ) when a relatively loud sound was preceded by a warning sound. These captive animals were shown to reduce hearing sensitivity when warned of an impending intense sound. Based on these experimental observations of captive animals, the authors suggest that wild animals may dampen their hearing during prolonged exposures or if conditioned to anticipate intense sounds. Another study showed that echo-locating animals (including odontocetes) might have anatomical specializations that might allow for conditioned hearing reduction and filtering of low-frequency ambient noise, including increased stiffness and control of middle ear structures and placement of inner ear structures (Ketten et al., 2021). Data available on noise-induced hearing loss for mysticetes are currently lacking (NMFS, 2018). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species.

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 decibels 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 impulsive sounds (such as impact pile driving 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.

Furthermore, installing piles for this project requires a combination of vibratory pile driving and DTH drilling. For the project, these activities would not occur at the same time and there would likely be pauses in activities producing the sound during each day. Given these pauses and that many marine mammals are likely moving through the action area and not remaining for extended periods of time, the potential for any TS declines.

Exposure to noise from pile driving and removal also has the potential to behaviorally disturb marine mammals. Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, 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; Southall et al., 2021).

Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors ( e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors ( e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007, Southall et al. 2021; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within exposures of an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012; Southall et al., 2021), and can vary depending on characteristics associated with the sound source ( e.g., whether it is moving or stationary, number of sources, distance from the source). In general, pinnipeds seem more tolerant of, or at least habituate more quickly to, potentially disturbing underwater sound than do cetaceans, and generally seem to be less responsive to exposure to industrial sound than most cetaceans. For a review of studies involving marine mammal behavioral responses to sound, see: Southall et al., 2007; Gomez et al., 2016; and Southall et al., 2021.

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 is informed by 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.

The area likely impacted by the project is relatively small compared to the available habitat in the surrounding waters of the Near Island Channel.

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

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

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. Masking of natural sounds can result when human activities produce high levels of background sound at frequencies important to marine mammals. Conversely, if the background level of underwater sound is high ( e.g., on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked.

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. Background sound levels in the project area are generally already elevated due to the cruise ships, passenger ferries, charter and commercial fishing vessels, barges, and freight vessels that frequent the area. Marine Mammal Habitat Effects.

The proposed project would occur within the same footprint as existing marine infrastructure. The nearshore habitat where the proposed project would occur is an area of relatively high marine vessel traffic. Most marine mammals do not generally use the area within the immediate vicinity of the project area. Temporary, intermittent, and short-term habitat alteration may result from increased noise levels within the Level B harassment zones. Effects on marine mammals will be limited to temporary displacement from pile installation and removal noise, and effects on prey species will be similarly limited in time and space.

Water Quality —Temporary and localized reduction in water quality will occur as a result of in-water construction activities. Most of this effect will occur during the installation and removal of piles and bedrock removal when bottom sediments are disturbed. The installation and removal of piles and bedrock removal will disturb bottom sediments and may cause a temporary increase in suspended sediment in the project area. During pile extraction, sediment attached to the pile moves vertically through the water column until gravitational forces cause it to slough off under its own weight. The small resulting sediment plume is expected to settle out of the water column within a few hours. Studies of the effects of turbid water on fish (marine mammal prey) suggest that concentrations of suspended sediment can reach thousands of milligrams per liter before an acute toxic reaction is expected (Burton, 1993).

Impacts to water quality from DTH hammers are expected to be similar to those described for pile driving. Impacts to water quality would be localized and temporary and would have negligible impacts on marine mammal habitat. Effects to turbidity and sedimentation are expected to be short-term, minor, and localized. Since the currents are strong in the area, following the completion of sediment-disturbing activities, suspended sediments in the water column should dissipate and quickly return to background levels in all construction scenarios. Turbidity within the water column has the potential to reduce the level of oxygen in the water and irritate the gills of prey fish species in the proposed project area. However, turbidity plumes associated with the project would be temporary and localized, and fish in the proposed project area would be able to move away from and avoid the areas where plumes may occur. Therefore, it is expected that the impacts on prey fish species from turbidity, and therefore on marine mammals, would be minimal and temporary. In general, the area likely impacted by the proposed construction activities is relatively small compared to the available marine mammal habitat in southeast Alaska.

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

Impacts on marine mammal prey ( i.e., fish or invertebrates) of the immediate area due to the acoustic disturbance are possible. The duration of fish or invertebrate avoidance or other disruption of behavioral patterns in this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. Further, significantly large areas of fish and marine mammal foraging habitat are available in the nearby vicinity in the Near Island Channel.

The duration of the construction activities is relatively short, with pile driving and removal activities expected last less than one-year. Each day, construction would occur for no more than 12 hours during the day and pile driving activities would be restricted to daylight hours. The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

Construction activities, in the form of increased turbidity, have the potential to adversely affect fish in the project area. Increased turbidity is expected to occur in the immediate vicinity (on the order of 10 ft (3 m) or less) of construction activities. However, suspended sediments and particulates are expected to dissipate quickly within a single tidal cycle. Given the limited area affected and high tidal dilution rates any effects on fish are expected to be minor or negligible. In addition, best management practices would be in effect, which would limit the extent of turbidity to the immediate project area.

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

This section provides an estimate of the number of incidental takes proposed for authorization through the IHA, which will inform both NMFS' consideration of “small numbers,” and the negligible impact determinations. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to pile driving activities. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized.

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

For acoustic impacts, 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) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential 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 estimates.

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

Level B Harassment —Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context ( e.g., frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment ( e.g., bathymetry, other noises in the area, predators in the area), and the receiving animals (hearing, motivation, experience, demography, life stage, depth) and can be difficult to predict ( e.g., Southall et al., 2007, 2021, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-mean-squared pressure received levels (RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 μPa)) for continuous ( e.g., vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 μPa for non-explosive impulsive ( e.g., seismic airguns) or intermittent ( e.g., scientific sonar) sources. Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by TTS as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur.

Trident's proposed activity includes the use of continuous (vibratory pile driving) sources, and therefore the RMS SPL threshold of 120 dB re 1 μPa is applicable. DTH drilling has both continuous and intermittent (impulsive) components as discussed in the Description of Sound Sources section above. When evaluating Level B harassment, NMFS recommends treating DTH as a continuous source and applying the RMS SPL thresholds of 120 dB re 1 μPa.

Level A Harassment —NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Trident's proposed activity includes the use of non-impulsive (vibratory pile driving) sources. As described above, DTH includes both impulsive and non-impulsive characteristics. When evaluating Level A harassment, NMFS recommends treating DTH as an impulsive source.

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

Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.

The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project ( i.e., vibratory pile driving and removal, DTH drilling). The maximum (underwater) area ensonified above the thresholds for behavioral harassment referenced above is 125 km 2 (48.26 mi 2 ), that would be truncated by land masses that would obstruct underwater sound transmission and would extend into Near Island Channel and St. Paul Harbor (see figure 5 in Trident's application). Additionally, vessel traffic and other commercial and industrial activities in the project area may contribute to elevated background noise levels which may mask sounds produced by the project.

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

This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6-dB reduction in sound level for each doubling of distance from the source (20*log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log[range]). A practical spreading value of 15 is often used under conditions, such as the project site, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss is assumed here.

The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. In order to calculate the distances to the Level A harassment and the Level B harassment sound thresholds for the methods and piles being used in this project, the applicant and NMFS used acoustic monitoring data from other locations to develop proxy source levels for the various pile types, sizes and methods. The project includes vibratory and DTH pile installation of steel pipe piles and vibratory removal of steel pipe piles, steel H-piles, and timber piles. Source levels for each pile size and driving method are presented in table 5.

The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional User Spreadsheet tool to accompany the Technical Guidance that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. For stationary sources such as pile driving, the optional User Spreadsheet tool predicts the distance at which, if a marine mammal remained at that distance for the duration of the activity, it would be expected to incur PTS. Inputs used in the optional User Spreadsheet tool, and the resulting estimated isopleths, are reported below.

Background

Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (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 authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

Except with respect to certain activities not pertinent here, 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).

On September 1, 2022, NMFS published final notice of our issuance of an IHA authorizing take of 16 species of marine mammals incidental to marine site characterization surveys in coastal waters off of Massachusetts, Rhode Island, Connecticut, and New York in the area of the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS)-A 0543 and along potential offshore export cable corridors (OECC) to landfall locations (87 FR 44087). The effective dates of that IHA were September 1, 2022, through August 31, 2023. On October 30, 2023, Park City Wind informed NMFS that the project was delayed. None of the work identified in the initial IHA ( i.e., geophysical, geotechnical, and geohazard data collection) has occurred. Park City Wind submitted a request to re-issue the IHA, with effective dates from March 1, 2024, through February 28, 2025, in order to conduct the marine site characterization survey work that was analyzed and authorized through the previously issued IHA. The initial IHA was effective from September 1, 2022, through August 31, 2023. Park City Wind has requested issuance with new effective dates of March 1, 2024, through February 28, 2025.

The planned activities (including mitigation, monitoring, and reporting), authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued IHA.

As part of their overall marine site characterization survey operations, Park City Wind plans to conduct high-resolution geophysical (HRG) and geotechnical surveys in Lease Area OCS-A 0543, and the associated OECC. The purpose of the marine site characterization surveys is to collect data concerning seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of offshore wind facility development. Surveys are also conducted to map potential unexploded ordnance (UXO) and benthic habitat studies.

The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described for the initial IHA. The mitigation and monitoring are also as prescribed in the initial IHA.

Species that have the potential to be taken by the planned activities can be found in the initial 2022 Federal Register notices (87 FR 32123, 87 FR 44087). A description of the methods and inputs used to estimate take anticipated to occur and, ultimately, the take that was authorized is found in the previous documents referenced above. NMFS has reviewed recent Stock Assessment Reports, information on relevant Unusual Mortality Events, and recent scientific literature, and determined that no new information affects our original analysis of impacts under the initial IHA.

We refer to the documents related to the previously issued IHA, which include the Federal Register notice of the issuance of the initial 2022 IHA for Park City Wind's survey work (87 FR 44087), Park City Wind's application, the Federal Register notice of the proposed IHA (87 FR 32123), and all associated references and documents.

On August 1, 2022, NMFS announced proposed changes to the existing NARW vessel speed regulations to further reduce the likelihood of mortalities and serious injuries to endangered NARWs from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (87 FR 46921, August 1, 2022). Should a final vessel speed rule be issued and become effective during the effective period of this IHA (or any other MMPA incidental take authorization), the authorization holder would be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. These changes would become effective immediately upon the effective date of any final vessel speed rule and would not require any further action on NMFS's part.

Park City Wind will conduct activities as analyzed in the initial 2022 IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The issued 2024 IHA includes identical required mitigation, monitoring, and reporting measures as the initial 2022 IHA, and there is no new information suggesting that our analysis or findings should change.

Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) Park City Wind's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.

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 with respect to environmental consequences on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) of the Companion Manual for NAO 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 determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has determined that the application of this categorical exclusion remains appropriate for this IHA.

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

NMFS Office of Protected Resources previously determined that issuance of the initial 2022 IHA falls within the scope of activities analyzed in NMFS Greater Atlantic Regional Fisheries Office's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the 3 Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021).

NMFS has issued an IHA to Park City Wind for marine site characterization survey activities associated with the specified activity from March 1, 2024, through February 28, 2025. All previously described mitigation, monitoring, and reporting requirements from the initial 2022 IHA are incorporated.

Agenda

The Risk Policy Working Group (RPWG) will address the terms of reference (TORs) approved by the New England Fishery Management Council (Council), including progress made in reviewing the Council's current Risk Policy, and Risk Policy Road Map (TOR 1). They will continue to consider possible changes to the risk policy (TOR 2), focusing on how to structure a revised risk policy, including discussions on a decision tree approach and a tiered approach. The RPWG will receive presentations on how other regional fishery management Councils approach risk in decision making. Other business will be discussed, if necessary.

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

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

Authority: 16 U.S.C. 1801 et seq.

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

Title of Collection: Process for FSA ID Account Creation for Individuals without a Social Security Number in Connection with Person Authentication Service (PAS).

OMB Control Number: 1845-0179.

Type of Review: A new information collection request.

Respondents/Affected Public: Individuals and Households.

Total Estimated Number of Annual Responses: 3,500.

Total Estimated Number of Annual Burden Hours: 1,155.

Abstract: The Department of Education (Department) requested emergency processing for this information collection, 1845-0179, Process for FSA ID Account Creation for Individuals without a Social Security Number in Connection with Person Authentication Service (PAS); and therefore, is requesting the 60-day public comment period for the full ICR. Applicants, parents, and borrowers establish an FSA ID, which includes a username and password. The FSA ID is used for the purposes of verifying the identity of the user; allowing users to establish an account with FSA; safeguarding their personally identifiable and financial information; signing applications and loan related documents; providing users access to their information and applications; allowing users to customize or update their accounts with FSA; renewing or revoking a user's account with FSA; and supporting the Federal Student Aid Information Center (FSAIC) help desk functions.

The specific questions that applicants are asked to answer in the FSA ID creation process are described separately in the Creating FSA-ID document, which explains the use of the questions in the application. As part of the standard process, users' information is matched with information from the Social Security Administration (SSA) to confirm their SSA status.

In the event of individuals who do not have a SSN to match, they are instructed to the contact the Department and provide one of the following documents (U.S. State/Territory Driver's License; U.S. State or City Identification Card; Foreign Passport; Municipal identification card; Community ID; or a Consular identification card) and a signed attestation of their identity under the penalty of perjury, as instructed by the Privacy Act.

This collection provides the process and application that individuals without an SSN may use to acquire an FSA ID to access the statutory and regulatory benefits of the Title IV, HEA student financial assistance programs. The Department received emergency clearance on December 20, 2023, since normal clearance processing would not enable to implement this critical change by the launch of the 2024-25 FAFSA form, which would result in no access to the FAFSA application for individuals who need to get an FSA ID without a Social Security Number. Any delay in getting access to the FAFSA form would increase the potential for public harm through delayed access to student financial aid and the possibility of decreasing the likelihood of postsecondary enrollment. As a result, in order to meet the late-December 2023 form launch, the Department requested that OMB approve the collection associated with non-Social Security Number FSA ID account creation process using the emergency clearance procedures.

Purpose of the Board: The purpose of the Board is to provide advice and recommendations concerning the following EM site-specific issues: clean-up activities and environmental restoration; waste and nuclear materials management and disposition; excess facilities; future land use and long-term stewardship. The Board may also be asked to provide advice and recommendations on any EM program components.

Public Participation: The meeting is open to the public. To register for in-person attendance, please send an email to srscitizensadvisoryboard@srs.gov no later than 4:00 p.m. EST on Thursday, January 25, 2024. The EM SSAB, Savannah River Site, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Amy Boyette at least seven days in advance of the meeting at the telephone number listed above. Written statements may be filed with the Board via email either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should submit their request to srscitizensadvisoryboard@srs.gov. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. Comments will be accepted after the meeting, by no later than 4:00 p.m. EST on Tuesday, February 6, 2024. Please submit comments to srscitizensadvisoryboard@srs.gov. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make oral public comments will be provided a maximum of five minutes to present their comments. Individuals wishing to submit written public comments should email them as directed above.

Minutes: Minutes will be available by emailing or calling Amy Boyette at the email address or telephone number listed above. Minutes will also be available at the following website: https://cab.srs.gov/srs-cab.html.

Purpose of the Board: The purpose of the Board is to provide advice and recommendations concerning the following EM site-specific issues: clean-up activities and environmental restoration; waste and nuclear materials management and disposition; excess facilities; future land use and long-term stewardship. The Board may also be asked to provide advice and recommendations on any EM program components.

Tentative Agenda:

Public Participation: The meeting is open to the public. The EM SSAB, Hanford, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Lindsay Somers at least seven days in advance of the meeting at the telephone number listed above. Written statements may be filed with the Board either before or within five business days after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Lindsay Somers. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comments will be provided a maximum of five minutes to present their comments.

Minutes: Minutes will be available at the following website: http://www.hanford.gov/page.cfm/hab/FullBoardMeetingInformation .

The BIL is a once-in-a-generation investment in infrastructure, which will grow a more sustainable, resilient, and equitable economy through enhancing U.S. competitiveness, driving the creation of good-paying union jobs, and ensuring stronger access to economic, environmental, and other benefits for disadvantaged communities. The BIL appropriates more than $62 billion to DOE to invest in American manufacturing and workers; expand access to energy efficiency; deliver reliable, clean, and affordable power to more Americans; and deploy the technologies of tomorrow through clean energy demonstrations.

The forthcoming ALRD Amendment 000008, expected to take effect in January 2024 (available at: https://www.fedconnect.net/fedconnect/?doc=DE-FOA-0003221&agency=DOE ), will support the Administration and Congressional goals to (1) demonstrate measurable improvements in energy resilience in the United States and mitigate climate related risk, (2) invest in modernized grid infrastructure that can enable consumer access to lower-cost energy and accommodate increased electrification, increased penetrations of variable renewable electricity and distributed energy resources, and other evolving system needs over the coming decades, (3) invest in clean energy and decarbonization solutions to achieve a carbon-free power sector by 2035 and net-zero greenhouse gas emissions economy-wide by 2050, and (4) create good-paying jobs with the free and fair choice to join a union.

The purpose of ALRD Amendment 000008 is to allow for submission of applications for the FY 2024 formula grant allocations. The FY 2024 formula grant allocation amounts are available at: https://netl.doe.gov/bilhub/grid-resilience/formula-grants. The process for requesting a FY 2024 allocation depends on whether the applicant is an existing grant recipient, a current grant applicant, or a new grant applicant:

• Existing Grant Recipients that have already received grants for FY 2022 and FY 2023 of the Program will have 90 days from the issuance of ALRD Amendment 000008 to request their FY 2024 allocation, in accordance with the Terms and Conditions of their current Grant award.

• Current Grant Applicants that previously submitted a grant application for FY 2022 and FY 2023 of the program but have not yet received their grant at the time the ALRD Amendment 000008 (for FY 2024) is issued, will have 90 days from the issuance of ALRD Amendment 000008 to amend their submitted grant application to include the FY 2024 allocations.

• New Grant Applicants are eligible applicants (as defined in ALRD Amendment 0000008) that did not submit a grant application for FY 2022 and FY 2023 of the Program. New Grant Applicants will have 90 days from the issuance of ALRD Amendment 000008 to submit a grant application for a FY 2024 allocation. Several one-time actions, explained below, must be completed before an application can be submitted, including registration with the System for Award Management (SAM), obtaining a Unique Entity Identifier (UEI), and registering with FedConnect.net. These actions can be completed prior to the issuance of ALRD Amendment 000008. Prospective New Grant Applicants are encouraged to address these items as soon as possible, as some may take several weeks to complete. Additional instructions for New Grant Applicants will be provided in the ALRD Amendment 000008.

The current ALRD (Amendment 000007) is available at: https://www.fedconnect.net/fedconnect/?doc=DE-FOA-0002736&agency=DOE.

New Grant Applicants must complete the following steps in order to submit their application via FedConnect:

Pre-application actions:

SAM —Applicants must register with the SAM at https://www.sam.gov/ prior to submitting an application in response to this ALRD. Designating an Electronic Business Point of Contact (EBiz POC) and obtaining a special password called an MPIN are important steps in SAM registration. The applicant must maintain an active SAM registration with current information at all times during which it has an active Federal award or an application under consideration. More information about SAM registration for applicants is available at: https://www.fsd.gov/gsafsd_sp?id=gsafsd_kb_articles&sys_id=650d493e1bab7c105465 eaccac4bcbcb.

UEI —Applicants must obtain an UEI from the SAM to uniquely identify the entity. The UEI is available in the SAM entity registration record.

FedConnect.net —Applicants must register with FedConnect to submit applications in response to the ALRD, to submit questions, and to receive the award. FedConnect website: https://www.fedconnect.net/. For more information regarding registration with FedConnect, review the FedConnect Ready, Set, Go! Guide at: https://www.fedconnect.net/FedConnect/Marketing/Documents/FedConnect_Ready_Set_Go.pdf.

Electronic Signatures —Acknowledgement of award documents by the Grant Recipient authorized representative through electronic systems used by the Department of Energy, including FedConnect, constitutes the Grantee's acceptance of the terms and conditions of the award. Acknowledgement via FedConnect by the Grantee's authorized representative constitutes the Grantee's electronic signature.

This document of the Department of Energy was signed on December 14, 2023, by Maria D. Robinson, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

1. In this Notice of Inquiry (NOI), the Commission seeks comment on whether, and if so, how, the Commission should revise its policy on providing blanket authorizations for investment companies  1 under section 203(a)(2) of the Federal Power Act (FPA). 2 The Commission also seeks comment on what constitutes control of a public utility in evaluating holding companies', including investment companies', requests for blanket authorization and what factors it should consider when evaluating control over public utilities or holdings companies thereof as part of a request for blanket authorization.

2. Section 203(a)(2) of the FPA provides that:

3. The Commission has both established in its regulations and granted by Commission order blanket authorizations under section 203(a)(2) for transactions that meet certain criteria. In Order No. 669, 4 the Commission promulgated regulations to implement the amendments to section 203 in the Energy Policy Act of 2005 (EPAct 2005), 5 including granting blanket authorizations for certain types of transactions, such as foreign utility acquisitions by holding companies, intra-holding company system financing and cash management arrangements, certain internal corporate reorganizations, and certain investments in transmitting utilities and electric utility companies. 6 The Commission stated that its goal in promulgating the new regulations was “to ensure that all jurisdictional transactions subject to section 203 are consistent with the public interest and at the same time ensure that our rules do not impede day-to-day business transactions or stifle timely investment in transmission and generation infrastructure.”  7 For example, one of the blanket authorizations granted by the Commission provides authorization for holding companies regulated by the Board of Governors of the Federal Reserve Bank or by the Office of the Comptroller of the Currency, under the Bank Holding Company Act of 1956 as amended by the Gramm-Leach-Bliley Act of 1999, to acquire and hold an unlimited amount of the securities of holding companies that include a transmitting utility or an electric utility company. 8 The blanket authorization requires that the securities be held either as a fiduciary, as principal for derivatives hedging purposes incidental to the business of banking (so long as it commits not to vote such securities to the extent they exceed 10 percent of the outstanding shares), as collateral for a loan, or solely for purposes of liquidation and in connection with a loan previously contracted for and owned beneficially for a period of not more than two years (subject to conditions and a reporting requirement). 9

4. Prior to Order No. 669, the Commission's order in UBS AG granted a blanket authorization on an individual basis for UBS AG and Bank of America to acquire public utility securities during their banking businesses. 10 The Commission stated that it was satisfied that the applicants in that proceeding would be precluded from using their fiduciary holdings to serve their own interests, rather than the interests of their fiduciary clients. The Commission stated that “backstop protection is provided by the procedures, controls and monitoring programs banking institutions are required to have in place in order to conduct fiduciary activities and the comprehensive nature of supervision and regulation by Bank Regulators of banks' fiduciary.”  11

5. The Commission has also issued blanket authorizations, on a case-specific basis to investment companies, that allowed the acquisitions of securities in public utilities over the $10 million threshold established by EPAct 2005 and up to 20% of the outstanding voting securities of a given public utility. For instance, in 2006, the Commission granted a blanket authorization for Capital Research and Management Company to acquire utility securities on behalf of its funds, subject to certain conditions. 12 As a result of these conditions, including limitations on the amount of both collective ownership and ownership of securities for each individual fund, governing policies, and status as beneficial owners eligible to file Schedule 13G under the Securities' and Exchange Act of 1934, 13 the Commission found that Capital Research and Management Company could not exercise control over public utilities, and that there would be no harm to the public interest that could otherwise result from their holding significant equity positions in public utilities. 14 The Commission noted that the repeal of the Public Utility Holding Company Act of 1935 (PUHCA 1935) and modifications to section 203 of the FPA had changed the law governing investment in utility securities. 15 The Commission found that a blanket authorization was appropriate to “encourage greater investment in utilities by mutual funds,” provided that the Commission can perform continuing oversight in accordance with section 203 of the FPA. 16

To give stakeholders additional time to review materials and prepare comments, EPA extended the comment period established in the Federal Register document of October 27, 2023, at 88 FR 73841 (FRL-11384-01-OCSPP) for 60 days, from December 26, 2023. However, the extended comment period date established in the Federal Register document of December 14, 2023, at 88 FR 86644 (FRL-11384-02-OCSPP), was incorrectly stated as February 26, 2023. This notice corrects the comment period date to February 26, 2024. More information on the action can be found in the Federal Register of October 27, 2023.

In the Federal Register of December 14, 2023, in FR Doc. 2023-27405, on page 86644, in the first column, correct the Dates caption to read:

Authority: 7 U.S.C. 136 et seq. and 21 U.S.C. 346a.

I. CARB's Waiver Request

CARB's May 22, 2023, letter to the EPA Administrator notified EPA that CARB had finalized its ACC II regulations. The ACC II regulations, adopted by the Board on August 25, 2022 (approved by California's Office of Administrative Law (OAL) and becoming effective November 30, 2022) contain a series of requirements under California's low-emission vehicle (LEV) IV regulation and a series of requirements regarding its zero-emission vehicle (ZEV) program. 1 The LEV IV requirements include, for example, applying exhaust and evaporative emission fleet-average standards solely to vehicles powered by internal combustion engines and excluding ZEVs from the fleet calculation. The LEV IV requirements reduce the maximum allowed exhaust and evaporative emission rates from vehicles under the existing fleet-average standard and aim to reduce cold-start emissions by applying the emissions standards to a broader range of in-use driving conditions. 2 The ZEV requirements of ACC II include, for example, a requirement for vehicle manufacturers to sell increasing percentages of ZEVs beginning with the 2026 MY. 3 Manufacturers are able to meet up to 20 percent of their sales requirements through the use of plug-in hybrid vehicles (PHEVs) that meet specified requirements.

CARB requests that EPA grant a new waiver for the ACC II regulatory program. CARB's request and waiver analysis includes “a description of California's rulemaking actions, a review of the criteria governing EPA's evaluation of California's request for waiver action, [CARB's] analysis and rationale supporting [its] request, and supporting documents.”  4 CARB's waiver analysis, set forth in its ACC II Waiver Support Document, addresses how the ACC II regulations and CARB's waiver request meet each of the three waiver criteria in section 209(b)(1) of the CAA. 5 For example, CARB explains how the ACC II regulations will not cause California motor vehicle emission standards, in the aggregate, to be less protective of public health and welfare than applicable federal standards and that no basis exists for the EPA Administrator to find that CARB's determination is arbitrary and capricious under section 209(b)(1)(A) of the CAA. 6 CARB also explains how it continues to demonstrate California's need for a separate motor vehicle emission program, including the ACC II regulations contained in its waiver request, under section 209(b)(1)(B) of the CAA. 7 Finally, CARB explains how the ACC II regulations in its waiver request meet the requirement in section 209(b)(1)(C), which requires California's regulations to be consistent with section 202(a) of the CAA. 8

Section 209(a) of the CAA provides:

Section 209(b) of the Act requires the Administrator, after notice and opportunity for public hearing, to waive application of the prohibitions of section 209(a) for any state that has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the state determines that the state standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. California is the only state that is qualified to seek and receive a waiver under section 209(b). 9 Section 209(b)(1) requires the Administrator to grant a waiver unless he finds that (A) the determination of the state is arbitrary and capricious, (B) the state does not need the state standards to meet compelling and extraordinary conditions, or (C) the state standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act. Previous decisions granting waivers of Federal preemption for motor vehicles have stated that State standards are inconsistent with section 202(a) if there is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time period or if the Federal and State test procedures impose inconsistent certification procedures. 10

When EPA receives new waiver requests from CARB, EPA traditionally publishes a notice of opportunity for public hearing and comment and then, after the comment period has closed, publishes a notice of its decision in the Federal Register . In this action, EPA invites comment on the following three criteria: whether (a) California's determination that its motor vehicle emission standards are, in the aggregate, at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious, (b) California needs such standards to meet compelling and extraordinary conditions, and (c) California's standards and accompanying enforcement procedures are consistent with section 202(a) of the CAA.

With regard to section 209(b)(1)(B), EPA must grant a waiver request unless the Agency finds that California “does not need such State standards to meet compelling and extraordinary conditions.” EPA has interpreted the phrase “need[s] such State standards to meet compelling and extraordinary conditions” to mean that California needs a separate motor vehicle program as a whole in order to address environmental problems caused by conditions specific to California and/or effects unique to California (the “traditional” interpretation). 11 EPA intends to use this traditional interpretation in evaluating California's need for the ACC II regulations under section 209(b)(1)(B).

With regard to section 209(b)(1)(C), EPA must grant a waiver request unless the Agency finds that California's standards are not consistent with section 202(a). EPA has previously stated that consistency with section 202(a) requires that California's standards must be technologically feasible within the lead time provided, giving due consideration to costs, and that California and applicable Federal test procedures be consistent. 12

EPA also maintains a web page that contains general information on its review of California waiver and authorization requests. Included on that page are links to prior waiver and authorization Federal Register notices. The page can be accessed at https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations .

The virtual public hearing will be held on January 10, 2024. If necessary, an additional session may be held on January 11, 2024, to accommodate the number of testifiers that sign-up to testify. The hearing will begin at 10:00 a.m. Eastern Time (ET). All hearing attendees (including those who do not intend to provide testimony and merely listen) should register for the public hearing at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car . Those seeking to register should do so by January 4, 2024.

If you require the services of a translator or special accommodations such as American Sign Language, please pre-register for the hearing and describe your needs by January 4, 2024. EPA may not be able to arrange accommodations without advance notice.

Please note that any updates made to any aspect of the hearing will be posted online at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car . While EPA expects the hearing to go forward as set forth above, please monitor the website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates.

Each commenter will have 3 minutes to provide oral testimony. EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. EPA recommends submitting the text of your oral comments as written comments to the docket for this action. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.

The Agency will make a verbatim record of the proceedings at the hearing that will be placed in the docket. EPA will keep the record open until February 27, 2024. After expiration of the comment period, the Administrator will render a decision on CARB's request based on the record of the public hearing, relevant written submissions, and other information that he deems pertinent.

I. General Information A. What action is the Agency taking?

The Agency is seeking public nominations of scientific and technical experts that EPA can consider for service as ad hoc reviewers assisting the SACC with the peer review of the Agency's evaluation of the risks from formaldehyde being conducted to inform risk management decisions under TSCA and FIFRA programs. EPA expects to ask the SACC to consider and review the OPPT and OPP joint hazard assessments for human and ecological health; and the OPPT exposure and risk characterizations. This SACC peer review is in addition to prior external peer reviews by the National Academies of Science, Engineering, and Medicine (NASEM), the EPA's Human Studies Review Board (HSRB) and the SACC. The Agency is leveraging these peer reviews to support further development of the risk evaluation of formaldehyde. To facilitate nominations, this document provides information about the SACC, the intended topic for the planned peer review, the expertise sought for this peer review, instructions for submitting nominations to EPA, and the Agency's plan for selecting the ad hoc reviewers for this peer review.

In addition, this document provides advance notice that EPA's plans to publish in the Federal Register in early 2024 separate documents to: (1) Announce the availability of and solicit public comment on the candidate list of ad hoc expert reviewers for this peer review; (2) Announce a 4-day public meeting of the SACC anticipated to be scheduled for May 2024; and (3) Announce the availability of and solicit public comment on the draft documents and related materials submitted to the SACC for peer review. In these future notices, EPA will also provide instructions for submitting written comments and for registering to provide oral comments at the SACC meeting.

EPA established the SACC in 2016 in accordance with TSCA section 26(o), 15 U.S.C. 2625(o), to provide independent advice and expert consultation with respect to the scientific and technical aspects of issues relating to the implementation of TSCA. The SACC operates in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. 10, and supports activities under TSCA, 15 U.S.C. 2601 et seq., the Pollution Prevention Act (PPA), 42 U.S.C. 13101 et seq., and other applicable statutes.

This action is directed to the public in general. This action may, however, be of interest to those involved in the manufacture, processing, distribution, and disposal of chemical substances and mixtures, and/or those interested in the assessment of risks involving chemical substances and mixtures regulated under TSCA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.

Do not submit CBI or other sensitive information to EPA through https://www.regulations.gov or email. If your nomination contains any information that you consider to be CBI or otherwise protected, please contact the DFO listed under FOR FURTHER INFORMATION CONTACT to obtain special instructions before submitting that information.

The SACC provides independent scientific advice and recommendations to the EPA on the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures and approaches for chemicals regulated under TSCA. The SACC is comprised of experts in toxicology; environmental risk assessment; exposure assessment; and related sciences ( e.g., synthetic biology, pharmacology, biotechnology, nanotechnology, biochemistry, biostatistics, physiologically based pharmacokinetic (PBPK) modeling, computational toxicology, epidemiology, environmental fate, environmental engineering and sustainability). The SACC currently consists of 18 members. When needed, the committee will be assisted by ad hoc reviewers with specific expertise in the topics under consideration.

TSCA requires EPA to conduct risk evaluations on prioritized chemical substances and identifies the minimum components the Agency must include in all chemical substance risk evaluations. The purpose of conducting risk evaluations is to determine whether a chemical substance presents an unreasonable risk to human health or the environment under the chemical's conditions of use (COUs). These evaluations include assessing risks to relevant potentially exposed or susceptible subpopulations. As part of this process, EPA integrates hazard and exposure assessments using the best available science and reasonably available information to assure decisions are based on the weight of the scientific evidence (WoSE). For more information about the three stages of EPA's process for ensuring the safety of existing chemicals ( i.e., prioritization, risk evaluation, and risk management), go to https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/how-epa-evaluates-safety-existing-chemicals.

EPA is planning this SACC peer review of the Agency's evaluation of the risks from formaldehyde being conducted to inform risk management decisions under TSCA and FIFRA programs. EPA expects to ask the SACC to consider and review the OPPT and OPP joint hazard assessments for human and ecological health; and the OPPT exposure and risk characterizations. This SACC peer review is in addition to prior external peer reviews by the NASEM, the EPA's HSRB and the SACC. The Agency is leveraging these peer reviews to support further development of the risk evaluation of formaldehyde. The TSCA risk evaluation of formaldehyde is expected to comprise several modules ( i.e., human health hazard, ecological hazard, release and exposure assessments) and two risk assessment documents—the ecological risk assessment and the human health risk assessment. As part of the TSCA risk evaluation for formaldehyde, OPPT is assessing formaldehyde COUs ( e.g., composite wood products, plastics, rubber, toys, and various adhesives and sealants).

Recommendations from the formaldehyde SACC review will be considered in the development of the TSCA and FIFRA risk evaluations and may inform other EPA efforts related to the assessment and regulation of formaldehyde. The Agency will be seeking SACC review of its data analyses and methodologies relevant to human health hazard and exposure analyses that have not been previously peer reviewed.

With respect to the formaldehyde human health hazard identification and dose-response analysis for acute inhalation and dermal routes, EPA is relying on peer review from three HSRB meetings:October 2022, May 2023, and October 2023. The HSRB reviewed the WoSE for EPA's acute inhalation point of departure (POD). Because the Agency's updated hazard characterization takes into consideration the HSRB's recommendations, EPA will not be soliciting review of the acute inhalation POD or WoSE. The HSRB reviewed relevant dermal studies, but not the WoSE for establishing the dermal POD. As such, EPA will seek review of the dermal POD and WoSE.

For chronic inhalation exposure and the cancer inhalation unit risk (IUR), the Agency intends to defer to the draft 2022 Integrated Risk Information System Toxicological Review of Formaldehyde and associated 2023 review by the NASEM. In part due to overlapping discussion of specific studies under review by NASEM and the HSRB, the latter recommended in its July 2023 report that EPA conduct a more coordinated peer review approach with other entities ( e.g., NASEM, HSRB, SACC) regarding advice in establishing PODs for formaldehyde. In response to this recommendation, EPA intends to solicit comment on the chronic inhalation reference concentration (RfC).

The Agency intends to seek review of the oral POD and WoSE including the Agency's assessment of the strengths and uncertainties in the underlying data and the utility of the data for risk assessment purposes. The Agency anticipates several areas of peer review related to human and environmental exposure to formaldehyde. EPA intends to request SACC review of how the environmental fate and monitoring data are used to support the qualitative assessment of formaldehyde exposure via water and land pathways to human and ecological populations. The Agency intends to seek SACC review related to EPA's assessment of formaldehyde air exposure via inhalation to terrestrial species based on fate, exposure modeling, monitoring, and toxicity data.

EPA intends to request SACC review on the Agency's interpretation of the available occupational monitoring data utilized in the formaldehyde occupational exposure assessment. The request for SACC review will focus on unique attributes considered and relied upon in the exposure assessment, including use of short-term exposure estimates, application of data relevancy, and evidence integration strategies.

EPA intends to seek review on its qualitative assessment of consumer exposure via the oral route. The Agency based this assessment on available data for TSCA COUs, indicating that formaldehyde is not expected to be released from consumer products or, if released, will not be available for uptake via an oral exposure route ( e.g., mouthing).

EPA intends to seek SACC review of the approach used to assess indoor air exposures, which considers both modeled and monitored formaldehyde concentrations.

EPA intends to seek review on the interpretation and assessment of ambient air monitoring data and its use in the risk evaluation. However, the Agency is not intending to request review on the modeling methods used to estimate formaldehyde exposure in ambient (outdoor) air as the methods used have been previously peer reviewed. SACC already reviewed both the Draft TSCA Screening Level Approach for Assessing Ambient Air and Water Exposures to Fenceline Communities, Version 1.0 and the 2023 Draft Supplement to the 1,4-Dioxane Risk Evaluation. Furthermore, feedback from these reviews have been incorporated into the draft formaldehyde risk assessment.

EPA intends to request review of the assessment of aggregate exposure to formaldehyde.

As part of a broader process for developing a pool of candidates for SACC peer reviews, EPA is asking the public and stakeholder communities for nominations of scientific and technical experts that EPA can consider as prospective candidates for service as ad hoc reviewers assisting the SACC with the peer reviews. Any interested person or organization may nominate qualified individuals for consideration as prospective candidates for this review by following the instructions provided in this document. Individuals may also self-nominate.

Those who are selected from the pool of prospective candidates will be invited to attend the public meeting and to participate in the discussion of key issues and assumptions at the meeting. In addition, they will be asked to review and to help finalize the meeting minutes.

Individuals nominated for this SACC peer review, should have expertise in one or more of the following areas: Indoor air quality; ambient air quality; exposure science with experience in air modeling and monitoring (for review of air exposure analysis); risk assessment (experience in chemicals and environmental fate of chemicals with background in risk assessment, aggregate exposure and risk assessment, industrial hygiene, ecological/terrestrial exposure); inhalation toxicology; dermal sensitization; statistics (experience in air quality data for review of interpretation of available monitoring data, experience in interpretation of environmental release data ( e.g., Toxic Release Inventory (TRI) and National Emissions Inventory (NEI))); epidemiology; and toxicology with expertise in interpreting gastrointestinal toxicity data associated with oral chemical exposure. Nominees should be scientists who have sufficient professional qualifications, including training and experience, to be capable of providing expert comments on the scientific issues for this review.

By the deadline indicated under DATES , submit your nomination to the DFO listed under FOR FURTHER INFORMATION CONTACT . Each nomination should include the following information: Contact information for the person making the nomination; name, affiliation, and contact information for the nominee; and the disciplinary and specific areas of expertise of the nominee.

SACC members and ad hoc reviewers are subject to the provisions of the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635, conflict of interest statutes in Title 18 of the United States Code and related regulations. In anticipation of this requirement, prospective candidates for service on the SACC will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks and bonds, and where applicable, sources of research support. EPA will evaluate the candidates' financial disclosure forms to assess whether there are financial conflicts of interest, appearance of a loss of impartiality, or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on the SACC.

The selection of scientists to serve as ad hoc reviewers for the SACC is based on the function of the Committee and the expertise needed to address the Agency's charge to the Committee. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a federal department or agency or their employment by a federal department or agency, except EPA. Other factors considered during the selection process include availability of the prospective candidate to fully participate in the Committee's reviews, absence of any conflicts of interest or appearance of loss of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of loss of impartiality, lack of independence, and bias may result in non-selection, the absence of such concerns does not assure that a candidate will be selected to serve on the SACC.

Numerous qualified candidates are often identified for SACC reviews. Therefore, selection decisions involve carefully weighing a number of factors including the candidates' areas of expertise and professional qualifications, and achieving an overall balance of different scientific perspectives across reviewers. The Agency will consider all nominations of prospective candidates for service as ad hoc reviewers for the SACC that are received on or before the date listed in the DATES section of this document.

As indicated previously, EPA's plans to publish separate documents in the Federal Register in early 2024 to announce the planned activities related to this peer review that are briefly discussed in this unit.

Although the final selection of ad hoc reviewers is a discretionary function of the Agency, EPA plans to make available for public comment a candidate list of ad hoc expert reviewers for this peer review in early 2024. The “List of Candidates” provides the names and biographical sketches of all interested and available nominees identified from respondents to this solicitation, other nominations received, and any additional candidates identified by EPA staff.

EPA plans to announce a 4-day public meeting of the SACC that is anticipated to be scheduled for May 2024. At that time, EPA will provide logistical information and instructions for registering to attend and/or provide oral comments at the SACC meeting.

EPA plans to announce the availability of and solicit public comment on the draft documents and related materials submitted to the SACC for peer review. At that time, EPA will provide instructions for accessing the materials provided to the SACC and will provide instructions for submitting written comments and instructions for registering to provide oral comments at the SACC meeting. These materials will also be available in Docket ID No. EPA-HQ-OPPT-2022-0613 at https://www.regulations.gov and through the SACC website at https://www.epa.gov/tsca-peer-review. As additional background materials become available and are provided to the SACC, EPA will include those additional background documents ( e.g., SACC members and consultants participating in this meeting and the meeting agenda) in the docket and through the SACC website.

You may subscribe to the following listserv for alerts regarding this and other SACC-related activities: https://public.govdelivery.com/accounts/USAEPAOPPT/subscriber/new?topic_id=USAEPAOPPT_101.

I. Public Participation

Response to this request for public comment is voluntary. Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2023-0451, 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 Environmental Protection Agency may publish any comment received to its public docket. Responses to this request for public comment may be submitted by a single party or a team. Responses will only be accepted using Microsoft Word (.docx) or Adobe PDF (.pdf) file formats. The response document should contain the following:

Two clearly delineated sections: (1) Cover page with company name and contact information; and (2) responses by topic and/or that address specific EPA questions.

1-inch margins (top, bottom, and sides).

Times New Roman and 12-point font.

Comments containing references, studies, research, and other empirical data that are not widely published should include copies or electronic links to the referenced materials. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), 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. 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). Please visit: https://www.epa.gov/dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments. No confidential and/or business proprietary information, copyrighted information, or personally identifiable information should be submitted in response to this notice.

Privacy Note: All comments received from members of the public will be available for public viewing on Regulations.gov . In accordance with FAR 15.202(3), responses to this notice are not offers and cannot be accepted by the Federal Government to form a binding contract. Additionally, those submitting responses are solely responsible for all expenses associated with response preparation.

The EPA will use the feedback and information received through this public comment process, along with findings of the external peer review and data quality assessment, to inform future improvements to WARM.

The Environmental Protection Agency launched the Waste Reduction Model (WARM) in 1998. WARM has been updated and expanded fifteen times since its launch in 1998. In 2022 and 2023, WARM underwent an external peer review and a data quality assessment as part of the EPA's on-going efforts to ensure WARM's scientific integrity. (Reports are available in the docket EPA-HQ-OLEM-2023-0451 and on the web at https://epa.gov/warm .)