Vol. 76 Monday, No. 30 February 14, 2011

Pages 8265–8602

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 30

Monday, February 14, 2011

Agriculture Department Education Department See Forest Service NOTICES See Rural Business-Cooperative Service Agency Information Collection Activities; Proposals, See Rural Utilities Service Submissions, and Approvals, 8355–8357

Air Force Department Employment and Training Administration NOTICES NOTICES Meetings: Meetings: Global Positioning Systems Directorate Interface Control Native American Employment and Training Council, Working Group for Document ICD–GPS–870, 8353 8380 Energy Department Army Department See Federal Energy Regulatory Commission See Engineers Corps See Western Area Power Administration NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Meetings: Great Lakes and Mississippi River Interbasin Study, Basic Energy Sciences Advisory Committee, 8358–8359 Information for Additional NEPA Public Scoping Biological and Environmental Research Advisory Meetings, 8353–8355 Committee, 8357–8358 DOE/NSF High Energy Physics Advisory Panel, 8358 Coast Guard DOE/NSF Nuclear Science Advisory Committee, 8359 NOTICES Environmental Management Site-Specific Advisory Meetings: Board, Portsmouth, 8359 Commercial Fishing Safety Advisory Committee, 8372– 8373 Engineers Corps NOTICES Commerce Department Environmental Impact Statements; Availability, etc.: See International Trade Administration Great Lakes and Mississippi River Interbasin Study, See National Oceanic and Atmospheric Administration Information for Additional NEPA Public Scoping NOTICES Meetings, 8353–8355 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8337 Environmental Protection Agency RULES Defense Acquisition Regulations System Approvals and Promulgations of Air Quality Implementation Plans: RULES Virginia, Revision to Definition of Volatile Organic Defense Federal Acquisition Regulation Supplements: Compound, 8298–8300 Award-Fee Contracts, 8303–8305 Finding of Failure to Submit State Implementation Plan Revisions for Particulate Matter: Defense Department Maricopa County PM–10 Nonattainment Area, Arizona, See Air Force Department 8300–8303 See Army Department PROPOSED RULES See Defense Acquisition Regulations System Approval and Promulgation of State Implementation Plans: See Engineers Corps Colorado; Interstate Transport of Pollution Revisions, etc., RULES for the Interference with Visibility Requirement, TRICARE Program; Surgery for Morbid Obesity, 8294–8298 8326–8329 NOTICES Approvals and Promulgations of Air Quality Agency Information Collection Activities; Proposals, Implementation Plans: Submissions, and Approvals, 8349–8350 Virginia, Revision to Definition of Volatile Organic Meetings: Compound, 8330 Defense Department Advisory Committee on Women in NOTICES the Services, 8351–8352 Agency Information Collection Activities; Proposals, Department of Defense Wage Committee, 8352 Submissions, and Approvals: Federal Advisory Committee, 8350–8352 Community Right-to-Know Reporting Requirements, etc., Privacy Act; Systems of Records, 8352–8353 8363–8365 Science and Technology Reinvention Laboratory Personnel NESHAP for Clay Ceramics Manufacturing, Glass Management Demonstration Project: Manufacturing and Secondary Nonferrous Metals Naval Air Warfare Center, Aircraft and Weapons Processing Area Sources (Renewal), 8362–8363 Divisions, 8530–8570 NSPS for Equipment Leaks of VOC in Petroleum Refineries, 8365–8366 Department of Transportation Title IV of 2002 Public Health Security and Bioterrorism See Pipeline and Hazardous Materials Safety Preparedness and Response Act; Drinking Water Administration Security and Safety, 8361–8362

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Request for Nominations: Fish and Wildlife Service Science Advisory Board Environmental Justice Technical NOTICES Panel, 8366–8367 Endangered and Threatened Wildlife and Plants: Permit Applications, 8374 Federal Aviation Administration Forest Service RULES Amendments to Class B Airspace: PROPOSED RULES Cleveland, OH, 8281–8288 National Forest System Land Management Planning, 8480– Special Conditions: 8528 NOTICES Gulfstream Model GVI Airplane; Enhanced Flight Vision Meetings: System, 8278–8281 Ashley Resource Advisory Committee, 8333 Standard Instrument Approach Procedures, and Takeoff Cherokee National Forest Resource Advisory Committee, Minimums and Obstacle Departure Procedures: 8333 Miscellaneous Amendments, 8288–8293 PROPOSED RULES Del Norte Resource Advisory Committee, 8333–8334 Proposed Amendments of Class D and Class E Airspace: White Pine–Nye County Resource Advisory Committee, Livermore, CA, 8322–8324 8334 Proposed Amendments of Class E Airspace: Health and Human Services Department McCall, ID, 8324–8325 See National Institutes of Health Special Conditions: NOTICES Gulfstream Model GVI Airplane; Design Roll Maneuver Interest Rates on Overdue Debts, 8370 Requirement for Electronic Flight Controls, 8319– Meetings: 8321 National Toxicology Program Board of Scientific Gulfstream Model GVI Airplane; Interaction of Systems Counselors, 8370–8371 and Structures, 8316–8319 Gulfstream Model GVI Airplane; Operation Without Homeland Security Department Normal Electric Power, 8314–8315 See Coast Guard Pratt and Whitney Canada Model PW210S Turboshaft See Federal Emergency Management Agency Engine, 8321–8322 See U.S. Customs and Border Protection See U.S. Immigration and Customs Enforcement Federal Bureau of Investigation NOTICES Housing and Urban Development Department Meetings: NOTICES CJIS Advisory Policy Board, 8379–8380 Federal Property Suitable as Facilities to Assist the Homeless, 8572–8601 Federal Election Commission Indian Affairs Bureau NOTICES NOTICES Meetings; Sunshine Act, 8367–8368 Indian Gaming, 8375 Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist Bundling Disclosure Threshold, Interior Department 8368–8370 See Fish and Wildlife Service See Indian Affairs Bureau Federal Emergency Management Agency See Land Management Bureau PROPOSED RULES See National Park Service Flood Elevation Determinations; Correction, 8330 International Trade Administration Federal Energy Regulatory Commission NOTICES RULES Agency Information Collection Activities; Proposals, Natural Gas Pipelines: Submissions, and Approvals: Project Cost and Annual Limits, 8293–8294 Survey of Participating Companies in the U.S.–European Union and U.S.–Swiss Safe Harbor Frameworks, 8337–8338 Federal Railroad Administration Antidumping Duty Administrative Reviews; Preliminary NOTICES Results and Preliminary Partial Rescissions: Environmental Impact Statements; Availability, etc.: Certain Frozen Warmwater Shrimp from People’s Chicago, IL to St. Louis, MO High Speed Rail Program Republic of China, 8338–8345 Corridor, 8397–8399 Final Results of Expedited Sunset Reviews of Antidumping Duty Orders: Federal Reserve System Certain Carbon Steel Butt-Weld Pipe Fittings from Brazil, RULES Japan, Taiwan, Thailand, and People’s Republic of Conformance Period for Prohibited Proprietary Trading or China, 8345 Private Equity or Hedge Fund Activities, 8265–8278 Glycine from People’s Republic of China, 8345 NOTICES Changes in Bank Control: Justice Department Acquisitions of Shares of Bank or Bank Holding See Federal Bureau of Investigation Company, 8370 See National Institute of Corrections

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Labor Department Nuclear Regulatory Commission See Employment and Training Administration PROPOSED RULES Draft Guidance Document: Land Management Bureau Implementation Guidance for Distribution of Source NOTICES Material to Exempt Persons, etc.; Correction, 8314 Alaska Native Claims Selection, 8375 NOTICES Plats of Survey: Environmental Assessments; Availability, etc.: Arizona, 8375–8378 Defense Logistics Agency Strategic Materials Depot, New Haven, IN, 8382–8383 National Aeronautics and Space Administration Interim Staff Guidances: NOTICES Impacts of Construction of New Nuclear Power Plants on Meetings: Operating Units at Multi-Unit Sites, 8383–8384 Science Committee, 8380–8381

National Credit Union Administration Pipeline and Hazardous Materials Safety Administration NOTICES NOTICES Meetings; Sunshine Act, 8381 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8401–8402 National Highway Traffic Safety Administration NOTICES Postal Regulatory Commission Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 8399–8400 Periodic Reporting, 8325–8326 Petitions for Exemptions from the Vehicle Theft Prevention Standard: Mitsubishi Motors, 8400–8401 Railroad Retirement Board NOTICES National Institute of Corrections Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 8384–8385 Meetings: Advisory Board, 8380 Rural Business-Cooperative Service National Institutes of Health RULES NOTICES Biorefinery Assistance Guaranteed Loans, 8404–8477 Generic Submission of Technology Transfer Center External NOTICES Customer Satisfaction Surveys: Funding Applications: Correction, 8371–8372 Rural Economic Development Loan and Grant Program Meetings: Fiscal Year 2011, 8334–8337 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 8372 Rural Utilities Service RULES National Oceanic and Atmospheric Administration Biorefinery Assistance Guaranteed Loans, 8404–8477 RULES Fisheries of Northeastern United States: Atlantic Mackerel, Squid, and Butterfish Fisheries; Securities and Exchange Commission Specifications and Management Measures, 8306– NOTICES 8313 Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 8385–8386 Hawaii Bottomfish and Seamount Groundfish Fisheries: Self-Regulatory Organizations; Proposed Rule Changes: Modification to Advance Notification Period for Fishery EDGA Exchange, Inc., 8389–8391 Closures, 8330–8332 NASDAQ OMX BX LLC, 8391–8393 NOTICES New York Stock Exchange LLC, 8386–8388 Endangered and Threatened Species: Recovery Plan Module for Columbia River Estuary NYSE Arca, Inc., 8388–8389 Salmon and Steelhead, 8345–8349 Small Business Administration National Park Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 8393 Alaska Region Subsistence Resource Commission, 8378 Meetings: National Register of Historic Places: Interagency Task Force on Veterans Small Business Pending Nominations and Related Actions, 8378–8379 Development, 8393 National Science Foundation NOTICES Social Security Administration Meetings: NOTICES Proposal Review for Physics, 8381 Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 8381–8382 Submissions, and Approvals, 8394–8395

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State Department Western Area Power Administration NOTICES NOTICES Presidential Permits Authorizing Expansion, Renovation, Proposed Base Charge and Rates: Operation, and Maintenance of Commercial and Boulder Canyon Project, 8359–8361 Pedestrian Border Crossings: Nogales–Mariposa, Vicinity of Nogales, AZ, International Boundary between United States and Mexico, 8395– 8396 Separate Parts In This Issue Reports Commissioned by Department of Energy; Availability, etc.: Part II Keystone XL Assessment Regarding Proposed Agriculture Department, Rural Business-Cooperative TransCanada Keystone XL Project, 8396 Service, 8404–8477 Agriculture Department, Rural Utilities Service, 8404–8477 Transportation Department See Federal Aviation Administration See Federal Railroad Administration Part III See National Highway Traffic Safety Administration Agriculture Department, Forest Service, 8480–8528 See Pipeline and Hazardous Materials Safety Administration Part IV Defense Department, 8530–8570 U.S. Customs and Border Protection RULES Completion of Entry and Entry Summary; Declaration of Part V Value; Correction, 8294 Housing and Urban Development Department, 8572–8601 U.S. Immigration and Customs Enforcement NOTICES Reader Aids Agency Information Collection Activities; Proposals, Consult the Reader Aids section at the end of this page for Submissions, and Approvals: phone numbers, online resources, finding aids, reminders, Student and Exchange Visitor Information System, 8373– and notice of recently enacted public laws. 8374 To subscribe to the Federal Register Table of Contents Veterans Affairs Department LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Public Availability of Department of Veterans Affairs FY archives, FEDREGTOC-L, Join or leave the list (or change 2010 Service Contract Inventory, 8402 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

7 CFR 4279...... 8404 4287...... 8404 10 CFR Proposed Rules: 40...... 8314 12 CFR 225...... 8265 14 CFR 25...... 8278 71...... 8281 97 (2 documents) ....8288, 8291 Proposed Rules: 25 (3 documents) ...8314, 8316, 8319 33...... 8321 71 (2 documents) ....8322, 8324 18 CFR 157...... 8293 19 CFR 141...... 8294 32 CFR 199...... 8294 36 CFR Proposed Rules: 219...... 8480 39 CFR Proposed Rules: 3050...... 8325 40 CFR 52 (2 documents) ....8298, 8300 Proposed Rules: 52 (2 documents) ....8326, 8330 44 CFR Proposed Rules: 67...... 8330 48 CFR 216...... 8303 252...... 8303 50 CFR 648...... 8306 Proposed Rules: 665...... 8330

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Rules and Regulations Federal Register Vol. 76, No. 30

Monday, February 14, 2011

This section of the FEDERAL REGISTER and Constitution Avenue, NW., regarding the implementation of its contains regulatory documents having general Washington, DC 20551. Users of prohibitions and restrictions.5 As a applicability and legal effect, most of which Telecommunication Device for Deaf general matter, authority for developing are keyed to and codified in the Code of (TDD) only, call (202) 263–4869. and adopting regulations to implement Federal Regulations, which is published under the prohibitions and restrictions of the 50 titles pursuant to 44 U.S.C. 1510. SUPPLEMENTARY INFORMATION: Volcker Rule is divided between the I. Background The Code of Federal Regulations is sold by Board, the Office of the Comptroller of the Superintendent of Documents. Prices of The Dodd-Frank Act was enacted on the Currency (‘‘OCC’’), the Federal new books are listed in the first FEDERAL July 21, 2010.1 Section 619 of the Dodd- Deposit Insurance Corporation (‘‘FDIC’’), REGISTER issue of each week. Frank Act adds a new section 13 to the the SEC and the CFTC in the manner Bank Holding Company Act of 1956 provided in section 13(b)(2) of the BHC (‘‘BHC Act’’) (to be codified at 12 U.S.C. Act.6 The Board and these other FEDERAL RESERVE SYSTEM 1851) that generally prohibits banking agencies are directed to adopt entities 2 from engaging in proprietary implementing rules not later than 9 12 CFR Part 225 trading or from investing in, sponsoring, months after completion of the FSOC’s Regulation Y; Docket No. R–1397 or having certain relationships with a study.7 The restrictions and hedge fund or private equity fund.3 The prohibitions of the Volcker Rule become RIN 7100–AD58 new section 13 of the BHC Act also effective 12 months after issuance of provides that nonbank financial Conformance Period for Entities final rules by the agencies, or July 21, companies supervised by the Board that Engaged in Prohibited Proprietary 2012, whichever is earlier. engage in such activities or have such Trading or Private Equity Fund or The Board, however, is solely charged investments shall be subject to Hedge Fund Activities with adopting rules to implement the additional capital requirements, provisions of the Volcker Rule that AGENCY: Board of Governors of the quantitative limits, or other provide a banking entity or a nonbank Federal Reserve System (‘‘Board’’). restrictions.4 These prohibitions and financial company supervised by the ACTION: Final rule. other provisions of section 619 are Board a period of time after the effective commonly known, and referred to date of the Volcker Rule to bring the SUMMARY: The Board is adopting a final herein, as the ‘‘Volcker Rule.’’ activities, investments, and rule to implement the conformance The Board and several other agencies relationships of the banking entity or period during which banking entities have responsibilities with respect to the company that were commenced, and nonbank financial companies Volcker Rule. As required by the Dodd- acquired, or entered into before the supervised by the Board must bring Frank Act, the FSOC recently issued a Volcker Rule’s effective date into their activities and investments into study of the Volcker Rule, which compliance with the Volcker Rule and compliance with the prohibitions and included several recommendations the agencies’ implementing restrictions on proprietary trading and regulations.8 This period is intended to relationships with hedge funds and 1 Dodd-Frank Wall Street Reform and Consumer give markets and firms an opportunity Protection Act, Public Law 111–203, 124 Stat. 1376 private equity funds imposed by section 9 (2010). to adjust to the Volcker Rule. 619 of the Dodd-Frank Wall Street 2 The term ‘‘banking entity’’ is defined in section In November 2010, the Board Reform and Consumer Protection Act 13(h)(1) of the BHC Act, as amended by section 619 requested public comment on a (‘‘Dodd-Frank Act’’). Section 619 is of the Dodd-Frank Act. See 12 U.S.C. 1851(h)(1). proposed rule that would implement the commonly referred to as the ‘‘Volcker The term means any insured depository institution (other than certain limited-purpose trust conformance period provisions of the 10 Rule.’’ The final rule is similar to the institutions), any company that controls an insured Volcker Rule. The proposed rule proposal issued for comment in depository institution, any company that is treated included the general two-year November 2010. The Board, however, as a bank holding company for purposes of section conformance period available to all has incorporated a number of changes to 8 of the International Banking Act of 1978 (12 U.S.C. 3106), and any affiliate or subsidiary of any banking entities and nonbank financial the final rule to address issues raised by of the foregoing. companies supervised by the Board, as public commenters, to reduce potential 3 The Volcker Rule defines the terms ‘‘hedge fund’’ well as the provisions of the Volcker regulatory burdens, and to clarify and ‘‘private equity fund’’ as an issuer that would be an investment company, as defined under the application of the rule. 5 See FSOC, Study & Recommendations on Investment Company Act of 1940 (15 U.S.C. 80a– Prohibitions on Proprietary Trading & Certain DATES: The final rule is effective on 1 et seq.), but for section 3(c)(1) or 3(c)(7) of that Relationships with Hedge Funds & Private Equity Act, or any such similar funds as the appropriate April 1, 2011. Funds (January 18, 2011), available at http:// Federal banking agencies, the Securities and www.treasury.gov/initiatives/Documents/Volcker FOR FURTHER INFORMATION CONTACT: Exchange Commission (‘‘SEC’’), and the Commodity %20sec%20%20619%20study%20final Brian P. Knestout, Senior Attorney, Futures Trading Commission (‘‘CFTC’’) may, by %201%2018%2011%20rg.pdf. rule, determine should be treated as a hedge fund (202) 452–2249, Jeremy R. Newell, 6 or private equity fund. See 12 U.S.C. 1851(h)(2). See 12 U.S.C. 1851(b)(2). The Secretary of the Senior Attorney, (202) 452–3239, Treasury, as Chairperson of the FSOC, is 4 See 12 U.S.C. 1851(a)(2) and (f)(4). A ‘‘nonbank responsible for coordinating the agencies’ Christopher M. Paridon, Senior financial company supervised by the Board’’ is a rulemakings under the Volcker Rule. See id. at Attorney, (202) 452–3274, or Kieran J. nonbank financial company or other company that § 1851(b)(2)(B)(ii). Fallon, Associate General Counsel, (202) has been designated by the Financial Stability 7 See id. at § 1851(b)(2)(A). 452–5270, Legal Division; David K. Oversight Council (‘‘FSOC’’) under section 113 of the Dodd-Frank Act as requiring supervision and 8 See id. at § 1851(c)(6). Lynch, Division of Banking Supervision regulation by the Board on a consolidated basis 9 See 156 Cong. Rec. S5898 (daily ed. July 15, and Regulation, Board of Governors of because of the danger such company may pose to 2010) (Statement of Senator Merkley). the Federal Reserve System, 20th Street the financial stability of the United States. 10 See 75 FR 72741 (Nov. 26, 2010).

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Rule that allow the Board to extend, by does not prohibit foreign companies These changes as well as the Board’s rule or order, this two-year period by up from engaging in prohibited proprietary responses to the comments received are to three, one-year periods.11 In addition, trading in the securities of U.S. discussed in greater detail below. the proposal implemented the special companies if such trades were booked The final rule does not address five-year extended transition period outside of the United States. definitional or other aspects of the available for certain qualifying Additionally, some commenters Volcker Rule that are subject to, or more investments in hedge funds and private addressed the procedural aspects of the appropriately addressed as part of, the 12 equity funds that are ‘‘illiquid funds.’’ proposed rule governing the receipt and separate interagency rulemaking to be The proposed rule also defined certain review of applications for an extension conducted under section 13(b)(2) of the terms related to the conformance period, of the conformance period. For example, BHC Act.13 For example, the final rule specified how an application or request some commeters requested that the rule incorporates without modification the for extension should be submitted, and permit the Board to grant all possible definitions of ‘‘banking entity,’’ ‘‘hedge identified the factors that the Board may extensions to a banking entity at a single fund,’’ and ‘‘private equity fund’’ time. Other commenters suggested that consider when evaluating such a contained in the Dodd-Frank Act. In the final rule permit banking entities to request. The public comment period on addition, the final rule does not address submit a request for extension well in the proposed rule closed on January 10, several topics suggested by advance of the date an extension might 2011. commenters—such as, for example, the be needed, and expressly provide for a II. Overview of Comments general application of the Volcker Rule standard time period for the Board to to banking entities that are insurance The Board received 12 comments on review any extension requests. The companies or foreign entities, or the proposed rule. Commenters comments received on the proposed whether banking entities should also included financial trade associations, rule are discussed in greater detail in have an extended period of time to banking entities, individuals, and a the following parts of this conform investments in funds that do member of Congress. In general, SUPPLEMENTARY INFORMATION. commenters supported the proposed not qualify for the statute’s extended rule but recommended one or more III. Explanation of Final Rule transition period for illiquid funds—that changes to specific provisions of the In developing this final rule, the are appropriately addressed through the proposal. A majority of the commenters Board has carefully considered the coordinated interagency rulemaking focused on the 5-year extended comments received on the proposal, as process provided for in section 13(b)(2) 14 transition period available to banking well as the language and legislative of the BHC Act. The Board expects to entities to the extent necessary to fulfill history of the Volcker Rule, and the review the final rule after completion of a contractual obligation in place on May Board’s experience in supervising and the interagency rulemaking process 1, 2010, to take or retain an interest in regulating banking entities’ trading under section 13(b)(2) to determine a hedge fund or private equity fund that activities and investments in, or whether modifications or adjustments to qualifies as an ‘‘illiquid fund’’ under the relationships with, hedge funds and the rule are appropriate in light of the Volcker Rule. For example, some private equity funds. The Board also final rules adopted under that section. commenters suggested that the Board consulted with the Department of the A. General Conformance Period broaden its definition of ‘‘illiquid Treasury, the OCC, the FDIC, the SEC, assets,’’ which is used in determining and the CFTC. The prohibitions and restrictions of whether a hedge fund or private equity After this review, the Board has the Volcker Rule do not take effect until fund is an illiquid fund. Others determined to adopt a final rule that is the earlier of July 21, 2012, or 12 requested that the Board lower the substantially similar to the proposed months after the issuance of final proposed rule’s requirement that at least rule. However, in response to regulations by the rulewriting agencies 75 percent of a fund’s assets be invested comments, the Board has modified the under section 13(b)(2) of the BHC Act. in ‘‘illiquid assets’’ (either as of May 1, proposed rule in a number of respects. However, in order to allow the markets 2010, or on a future date) in order for For example, the Board has— and firms to adjust to these prohibitions the fund to qualify for the extended • Expanded the conditions under and restrictions, the Volcker Rule, by its transition period. Many commenters which an asset may be considered an terms and without any action by the also asserted that the proposed rule’s ‘‘illiquid asset’’ to include situations Board, provides banking entities and definition of when a banking entity has where an asset is subject to a contractual nonbank financial companies a ‘‘contractual obligation’’ to invest or restriction on sale or redemption for a supervised by the Board an additional remain invested in an illiquid fund was period of 3 years or more; conformance period during which the too narrow and would limit the number • Broadened the types of documents entity or company can wind down, sell, of hedge funds and private equity funds that may be considered in determining or otherwise conform its activities, that could take advantage of the whether a hedge fund or private equity investments, and relationships to the extended transition period for illiquid fund is ‘‘contractually committed’’ to requirements of the Volcker Rule. Under funds. principally invest in illiquid assets or the statute, this conformance period Some commenters also asked that the whether a banking entity that has generally extends through the date that Board, in the final rule, address several sponsored a hedge fund or private is 2 years after the date on which the aspects of the Volcker Rule that were equity fund is ‘‘contractually obligated’’ prohibitions become effective or, in the not covered by the proposal. For to invest or remain invested in the fund; case of a nonbank financial company instance, some commenters requested • Extended, from 90 days to 180 days, supervised by the Board, 2 years after that the final rule state that section 13 the number of days in advance a request the company is designated by the FSOC of the BHC Act does not prohibit for an extension of the conformance for supervision by the Board, if that insurance companies from conducting period by a specific company must be period is later. their normal business operations, or filed with the Board; and • Clarified that the Board expects to 13 See id. at § 1851(b)(2). 11 12 U.S.C. 1851(c)(2). act on extension requests within 90 days 14 See, e.g., 12 U.S.C. 1851 (d)(1)(F), (H), (I), and 12 12 U.S.C. 1851(c)(3), (c)(4), and (h)(7). from receipt of a complete record. (J).

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Section 225.181(a) of the final rule potentially available under section 2010.20 The statute also provides that implements these provisions. In 13(c)(2) of the BHC Act.18 One any extended transition period granted addition, section 225.181(a)(2) of the commenter, however, suggested that with respect to an illiquid fund final rule clarifies how the conformance multiple extensions of the conformance automatically terminates on the date period applies to a company that first period would not be in keeping with the during any such extension on which the becomes a banking entity after July 21, purpose of the Volcker Rule and urged banking entity is no longer under a 2010 (the date of enactment of the the Board to restrict extensions to a contractual obligation to invest in, or Dodd-Frank Act), because, for example, single one-year general extension (with provide capital to, the illiquid fund. the company acquires or becomes potentially one additional one-year As provided in the Volcker Rule, the affiliated with an insured depository extension in the case of an illiquid fund Board may grant a banking entity only institution for the first time. In these investment). Section 13(c)(2) of the BHC one extended transition period with circumstances, the restrictions and Act specifically provides that the ‘‘Board respect to any illiquid fund, which may prohibitions of the Volcker Rule would may, by rule or order, extend [the not exceed 5 years.21 Any extended first become effective with respect to the general two-year conformance period] transition period granted may be in company only at the time it became a for not more than one year at a time,’’ addition to the conformance period banking entity. Accordingly, the final with a maximum of three, one-year available under other provisions of the rule (like the proposal) provides that extensions.19 Accordingly, the Board Volcker Rule.22 The purpose of this such a company generally must bring its has modified the rule to clarify that the extended transition or ‘‘wind-down’’ activities, investments, and Board may only grant up to three period for investments in an illiquid relationships into compliance with the separate one-year extensions of the fund is to minimize disruption of requirements of the Volcker Rule before general conformance period (and may existing investments in illiquid funds the later of: (i) The date the Volcker not grant all three one-year extensions at and permit banking entities to fulfill Rule’s prohibitions would otherwise a single time). existing obligations to illiquid funds become effective with respect to the Several commenters requested that while still steadily moving banking company under section 225.181(a)(1) of the Board clarify that the final rule entities toward conformance with the the rule; or (ii) 2 years after the date on provides a conformance period for both prohibitions and restrictions of the 23 which the company first becomes a investments in hedge funds and private Volcker Rule. Section 225.181(b) of the final rule banking entity. Thus, for example, a equity funds and activities prohibited implements the statute’s extended company that first becomes a banking under the Volcker Rule. The general transition period for illiquid funds.24 As entity on January 1, 2015, would have conformance period (including any a general matter, and consistent with the until January 1, 2017, to bring its extension thereof) is available to both terms of the Volcker Rule, the final rule activities and investments into banking entities and nonbank financial conformance with the requirements of companies supervised by the Board for 20 Id. at § 1851(c)(3)(A). section 13 of the BHC Act and its activities commenced prior to the implementing regulations. In this way, 21 The statute provides that a banking entity may Volcker Rule’s effective date and applies apply for a single extension with respect to an the final rule provides comparable to any activities, investments and illiquid fund, and that such extension may not treatment to ‘‘new’’ banking entities and relationships that may be prohibited or exceed 5 years. In light of the statutory language, nonbank financial companies and as noted in the notice of proposed rulemaking, restricted by the Volcker Rule. the Board retains the right to grant an extended supervised by the Board, and is transition period of less than 5 years if, based on consistent with the manner in which C. Extended Transition Period for all the facts and circumstances, it determines a newly established bank holding Illiquid Funds limited extension is appropriate. 22 companies are treated for purposes of Section 619 of the Dodd-Frank Act Id. at § 1851(c)(3)(B). 23 See 156 Cong. Rec. S5899 (daily ed. July 15, the nonbanking restrictions under includes a special provision to address section 4 of the BHC Act.15 2010) (statement of Sen. Merkley). the difficulty banking entities may 24 Section 13(h)(7)(B) of the BHC Act provides B. Extension of Conformance Period experience in conforming investments that, for purposes of the definition of an ‘‘illiquid in illiquid funds. This provision fund,’’ the term ‘‘hedge fund’’ shall not include a The Volcker Rule also permits the ‘‘ ’’ expressly permits a banking entity to private equity fund, as such term is used in Board, by rule or by order, to extend the section 203(m) of the Investment Advisors Act of request the Board’s approval for an generally available two-year 1940 (15 U.S.C. 80b–3(m)).’’ See 12 U.S.C. additional extension of up to 5 years in 1851(h)(7)(B). However, section 203(m) of the conformance period by up to three order to permit the banking entity to Investment Advisors Act, as added by section 408 additional one-year periods, for an meet contractual commitments in place of the Dodd-Frank Act, does not contain a aggregate conformance period of 5 definition of, nor does it use the term, ‘‘private as of May 1, 2010, to a hedge fund or years.16 In order to grant any extension, equity fund.’’ Moreover, as the Board noted in the private equity fund that qualifies as an proposal, Congress’ intent in adopting this the Board must determine that the ‘‘illiquid fund.’’ Specifically, the statute exclusion is unclear. For example, a fund that extension is consistent with the provides that the Board may extend the invests primarily in nonpublic portfolio companies, purposes of the Volcker Rule and would which are commonly referred to in the investment period during which a banking entity not be detrimental to the public community as ‘‘private equity funds,’’ appears to be may take or retain an ownership interest the type of fund that the Volcker Rule intended to interest.17 The process and standards for in, or otherwise provide additional potentially qualify as an ‘‘illiquid fund.’’ The Board obtaining a one-year extension are capital to, an illiquid fund, but only if does not believe that it is necessary to resolve the discussed in Part III.E of this ambiguity surrounding this provision because the the extension is necessary to allow the SUPPLEMENTARY INFORMATION. exclusion would not have any effect on the ability banking entity to fulfill a contractual of a fund to qualify as an illiquid fund. This is Several commenters requested that obligation that was in effect on May 1, because the Volcker Rule defines a ‘‘hedge fund’’ the Board modify the rule to allow the and a ‘‘private equity fund’’ synonymously. 12 Board to grant a banking entity at one U.S.C. 1851(h)(2). Thus, any illiquid fund that time all three of the one-year extensions 18 If the extension request pertained to an would have been excluded from the definition of investment in an illiquid fund, some commenters ‘‘hedge fund’’ because it met the missing definition also requested that the rule allow the Board, at the of a ‘‘private equity fund’’ in the Investment 15 See 12 U.S.C. 1843(a)(2). same time, to also approve a five-year extended Advisors Act could still qualify for the extended 16 12 U.S.C. 1851(c)(2). transition period for the investment. conformance period afforded to illiquid funds as a 17 Id. 19 See 12 U.S.C. 1851(c)(2) (emphasis added). ‘‘private equity fund’’ under the Volcker Rule itself.

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requires that a banking entity’s quotations to other brokers and dealers The fourth standard above is based, in investment in, or relationship with, a on request; part, on the criteria used to identify hedge fund or private equity fund must • Any asset the price of which is whether a security or other asset is a meet two sets of criteria to qualify for quoted routinely in a widely ‘‘marketable security’’ or a ‘‘liquid asset’’ the statute’s extended transition period. disseminated publication that is readily for purposes of the Board’s Regulation The first set of criteria focuses on the available to the general public or W governing transactions between nature, assets and investment strategy of through an electronic service that member banks and their affiliates.29 In the hedge fund or private equity fund provides indicative data from real-time each instance, the Board has modified itself. The second set of criteria focuses financial networks; the standard as incorporated into the • on the terms of the banking entity’s Any asset with an initial term of final rule to reflect the broader range of investment in the hedge fund or private one year or less and the payments on financial instruments (including equity fund. which at maturity may be settled, derivatives) or other assets that may be closed-out, or paid in cash or one or 1. Fund-Focused Criteria held by a hedge fund or private equity more other liquid assets described fund and that should be considered As noted above, the extended above; and ‘‘liquid’’ if traded or quoted in the transition period under section 13(c)(3) • Any other asset that the Board manner described. of the BHC Act is available only with determines, based on all the facts and respect to investments made in an circumstances, is a liquid asset.26 The fifth standard is designed to ‘‘illiquid fund,’’ and then only with These standards are designed to capture instruments with a relatively respect to investments in or obligations capture the wide range of instruments short (one year or less) duration and that to these funds made as of May 1, 2010. and assets (or their equivalents) that one can be monetized or converted at In accordance with the language of the actively or routinely trades on markets maturity into a liquid asset. In light of Volcker Rule, the final rule retains the or trading facilities, or for which bid, these features, the Board believes it is definition of an ‘‘illiquid fund’’ to mean offer or price quotations are widely appropriate to treat such instruments as a hedge fund or private equity fund that: available. For example, these standards liquid assets for purposes of the Volcker (i) As of May 1, 2010, was principally would treat as a liquid asset: (i) Equity Rule’s conformance period. The final invested in illiquid assets, or was and debt securities, derivatives, and rule recognizes that there may be invested in, and contractually commodity futures traded on a situations where other, non-enumerated committed to principally invest in, registered securities exchange, board of assets may be liquid even though they illiquid assets; and (ii) makes all trade, alternative trading system, are not included in the standards investments pursuant to, and consistent electronic trading platform or similar contained in sections 225.181(h)(1)–(5) with, an investment strategy to market that provides independent, bona of the final rule. In order to address principally invest in illiquid assets.25 In fide offers to buy and sell; (ii) assets these situations, the Board has expressly determining how to implement the traded on an electronic inter-dealer retained the ability to determine that definition of an illiquid fund, the Board quotation system, such as OTC Bulletin any other asset is a liquid asset, based has considered, among other things, the Board or the system maintained by on all the facts and circumstances. terms of the statute, as well as public PINK OTC Markets, Inc., as well as over- On the other hand, consistent with comments submitted on the proposed the-counter derivatives, debt securities the language of the Volcker Rule, the (such as corporate bonds), and rule, information (including definition of illiquid assets in the final syndicated commercial loans for which confidential supervisory information) rule should generally encompass active inter-dealer markets exist; and concerning the terms of investments in investments made by hedge funds or (iii) financial instruments for which hedge funds or private equity funds, the private equity funds in privately-held indicative price data is supplied by an characteristics of liquid and illiquid portfolio companies, real estate (other electronic service, such as Markit Group assets, and the ability of a fund to divest than those made through publicly Limited. assets held by the fund. traded REITs), and venture capital ‘‘ ’’ The standards contained in the a. Illiquid Asset. opportunities, as well as investments in The final rule, like the proposal, second, third, and fourth standards other hedge funds or private equity generally defines an ‘‘illiquid asset’’ as above are based on existing standards in funds where such investments do not any asset that is not a liquid asset. In the Federal banking and securities laws qualify as liquid assets.30 The Volcker turn, the final rule defines ‘‘liquid that are designed to identify securities Rule specifically refers to portfolio assets’’ to include: that are liquid and may be sold • Cash or cash equivalents; promptly at a price that is reasonably company investments, real estate • Any asset that is traded on a related to its fair value. Specifically, the investments, and venture capital recognized, established exchange, second standard above is based in part investments as examples of the types of trading facility or other market on on the SEC’s definition of securities for investments that should normally be which there exist independent, bona which a ‘‘ready market’’ exists for fide offers to buy and sell so that a price purposes of the net capital rules 29 See 12 CFR 223.42(e) and (f)(5). reasonably related to the last sales price 30 Some commenters requested that the Board applicable to broker-dealers under the specifically include in the definition of ‘‘illiquid or current bona fide competitive bid and Securities Exchange Act of 1934 asset’’ any investment in real estate or a portfolio offer quotations can be determined for (‘‘Exchange Act’’).27 Similarly, the third company and venture capital investments. While the asset almost instantaneously; standard above is based, in part, on the the Board agrees that such investments are typically • Any asset for which there are bona illiquid, the Board does not believe it appropriate actions regularly taken by a ‘‘qualified to include as illiquid assets all investments that fide, competitive bid and offer OTC market maker’’ as defined in the potentially could be characterized as a real estate, quotations in a recognized inter-dealer SEC’s Rule 3b–8, with respect to portfolio company, or venture capital investment. quotation system or similar system or securities under the Exchange Act.28 For example, the Board believes that an investment for which multiple dealers furnish bona in the equity securities of a small or recently established company should be considered a liquid fide, competitive bid and offer 26 12 CFR 225.180(h). asset for purposes of the Volcker Rule if such equity 27 See 15 CFR 240.15c3–1(c)(11)(i). securities are traded on a national security 25 12 CFR 225.180(f). 28 See 15 CFR 240.3b–8(a). exchange.

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considered illiquid assets for these banking entity’s request for an extended qualify as illiquid funds. The statute purposes.31 transition period, the Board will provides a general conformance period In addition, the final rule, like the consider the extent to which the fund’s of up to 5 years for any asset, which proposed rule, provides that an asset— current assets are no longer illiquid (e.g. should assist banking entities in including a liquid asset such as a due to the lapse of applicable transitioning large positions or assets to security—may be considered an restrictions on an investment because a the requirements of the Volcker Rule. ‘‘illiquid asset’’ if, because of statutory or previously illiquid venture capital or Moreover, as discussed in Part III.E regulatory restrictions applicable to the portfolio company investment has below, for those funds that do qualify as hedge fund, private equity fund or asset, become liquid, such as through the illiquid funds, the Board may consider the asset cannot be offered, sold, or initial public offering of the company’s market conditions, as well as the actions otherwise transferred by the hedge fund stock). taken by the banking entity to divest the or private equity fund to a person that Some commenters requested that the impermissible investment, in is unaffiliated with the banking entity. Board broaden the definition of ‘‘illiquid determining whether to grant up to a 5- This exception to the general ‘‘liquid assets’’ to specifically include assets that year extended transition period with asset’’ definition recognizes that funds would otherwise meet the rule’s respect to the fund. For these reasons, frequently acquire assets that are definition of a liquid asset, but that the the Board has not modified the rule to normally liquid in transactions that relevant fund may have difficulty allow an asset to be considered illiquid cause the asset to be subject to one or selling (or selling at a price the fund based on market conditions or the more statutory or regulatory restrictions believes to be reasonable) because the absolute or relative size of a fund’s under the Federal securities laws that size of the fund’s position in the holdings. temporarily prohibit the transferability security or instrument is large relative to b. ‘‘Principally invested.’’ or resale of the security. For example, daily trading volume in the security or The statute’s fund-related criteria also hedge funds or private equity funds instrument or the outstanding number require that the hedge fund or private often acquire equity securities in private of securities or instruments of the same equity fund either (1) have been transactions that result in the security class or type. Some commenters also principally invested in illiquid assets as being subject to restrictions on resale requested that the rule provide the of May 1, 2010, or (2) have been (such as under Rule 144A of the Board flexibility to determine, on a case- invested to some degree in illiquid Securities Act of 1933).32 Several by-case basis, that an asset that assets and contractually committed to commenters requested that the final rule otherwise meets the definition of a principally invest in illiquid assets as of also permit an asset to be an illiquid liquid asset was illiquid. Similarly, such date. In addition, in either case, asset due to contractual restrictions on some commenters asked that the rule the fund must make all of its sale or transfer (in addition to statutory specifically provide that a liquid asset investments pursuant to, and consistent or regulatory restrictions). In response to could be considered illiquid due to with, an investment strategy to comments, the Board has modified the adverse market conditions that might principally invest in illiquid assets. The final rule to provide that an asset may make it difficult for the fund to sell the proposed rule provided that a hedge be considered an illiquid asset if security or instrument or sell it at a fund or private equity fund would be contractual restrictions applicable to the price the fund believes is reasonable. considered to be ‘‘principally invested’’ hedge fund, private equity fund or asset The Board recognizes that market in illiquid assets if at least 75 percent of prohibit the fund from offering, selling, conditions (including trading volumes) the fund’s consolidated total assets are, or otherwise transferring the asset to a at the time a security or instrument is or were expected to be, comprised of person that is unaffiliated with the being sold may have a material effect on illiquid assets or risk-mitigating hedges relevant banking entity for a period of the price of the security or instrument. entered into in connection with, and 3 or more years. However, by including only investments related to, individual or aggregated Similarly, the proposed rule also in portfolio companies, real estate positions in, or holdings of, illiquid provided that an asset would be investments, and venture capital assets. The proposal allowed a fund to considered illiquid only for so long as investments as examples of illiquid count risk-mitigating hedging positions the relevant statutory or regulatory assets, the Volcker Rule itself suggests that are related to the fund’s holdings of restriction was applicable. In light of the that the term ‘‘illiquid asset’’ was illiquid assets towards the 75 percent foregoing, as well as the forward-looking intended to encompass only those types asset test because such positions are, by nature of the ‘‘principally invested’’ and of investments that are illiquid by their definition, associated with the fund’s ‘‘contractually committed’’ to principally nature, rather than those that may be illiquid holdings. invest in illiquid assets tests discussed illiquid due only to prevailing market Commenters supported the inclusion below, the Board has removed those conditions or the size of a particular of risk-mitigating hedging positions provisions of the proposal. Accordingly, fund’s holdings of the security or related to illiquid assets in the assets subject to the type of statutory, instrument. This intent is reinforced by determination of whether a fund is regulatory, or contractual restrictions the fact that the statute requires that a ‘‘principally invested’’ in illiquid specified in the final rule would banking entity determine whether a assets.34 However, many commenters generally be considered illiquid assets hedge fund or private equity fund is an asserted that the proposed 75 percent for purposes of the Volcker Rule. illiquid fund as of May 1, 2010.33 If the threshold for a fund to be principally However, because these restrictions may status of an investment by a fund as a invested in illiquid assets was too high lapse at a future date (including prior to liquid or illiquid asset was dependent and requested that a lower threshold— the point in time when a banking entity on market conditions at a future date, it no higher than approximately 50 submits its request for an extended would be difficult or impossible for percent—be included in the final rule. transition period), the final rule has banking entities and the Board to Many of these commenters noted that been modified to specifically provide determine which funds qualify as that, in connection with its review of a illiquid funds and, potentially, all hedge 34 The Board expects to interpret the language concerning risk-mitigating hedges consistent with funds and private equity funds could the manner in which such language is implemented 31 12 U.S.C. 1851(h)(7)(A)(i) through the rulemaking process conducted under 32 See 15 CFR 230.144a. 33 12 U.S.C. 1851(h)(7)(A)(i). section 13(b)(2) of the BHC Act.

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the Board had previously interpreted the general conformance period under not prepare additional financial the phrase ‘‘engaged principally’’ in the Volcker Rule (which, as noted statements between March 30 and May section 20 of the Glass-Steagall Act above, may potentially extend to 2017). 1, 2010). (previously codified at 12 U.S.C. 377) to As the courts have recognized, Under the proposed rule, a fund mean between 5 percent and 25 percent statutory terms must be read in light of would have been considered to be of the relevant firm’s revenue.35 On the the purposes of the relevant statutory ‘‘contractually committed to principally other hand, one commenter asserted provision and, thus, the same or similar invest’’ in illiquid assets as of May 1, that the 75 percent test was appropriate. terms may appropriately be interpreted 2010, if the fund’s organizational The Board continues to believe that differently when used in different documents (such as the limited 75 percent is an appropriate threshold acts.37 The Board notes, moreover, that partnership agreement in the case of a for determining whether a fund is while commenters requested a lower fund organized in this manner), or other ‘‘principally invested’’ in illiquid assets threshold, commenters did not provide documents that constitute a contractual for purposes of the Volcker Rule. As specific examples of funds that would obligation of the fund (such as a binding noted in the proposed rule, many types potentially satisfy the ‘‘principally side letter agreement entered into with of hedge funds and private equity funds invested’’ asset test if it was set at 50 investors) that was in effect as of May have investment strategies that focus percent as opposed to 75 percent or 1, 2010, provided for the fund to be almost exclusively on one type of supporting explanations as to why principally invested in illiquid assets. illiquid assets, such as real estate or treating such funds as illiquid funds The proposed rule would have required start-up companies (including new or would be more consistent with the that any such contractual commitments emerging companies in the technology, purposes of the Volcker Rule. require the fund to be principally life sciences, alternative energy, or As noted above, by the terms of the invested in illiquid assets during the ‘‘clean tech’’ areas).36 These types of statute, a fund qualifies as an illiquid period beginning on the date when hedge funds and private equity funds fund if, as of May 1, 2010, it (i) was capital contributions are first received typically request capital contributions ‘‘principally invested in illiquid assets,’’ by the fund for the purpose of making from their investors only when or (ii) was invested in illiquid assets to investments and ending on the fund’s particular investment opportunities some degree and contractually expected termination date. have been identified and hold only a committed to principally invest in Additionally, the proposed rule small portion of their assets in cash or illiquid assets. In addition, the fund provided that a fund would be other liquid assets (other than during must actually make all of its considered to have an ‘‘investment brief periods pending the investment of investments (including investments strategy to principally invest’’ in illiquid capital or the distribution of proceeds made after May 1, 2010,) pursuant to assets if the fund either: (i) markets or from the sale of an investment). The and consistent with an investment holds itself out to investors as intending strategy to principally invest in illiquid Board continues to believe that by to principally invest in illiquid assets; assets.38 limiting the availability of the extended or (ii) has a documented investment The final rule provides that the policy of principally investing in transition period to hedge funds or determination of whether a fund was private equity funds that ‘‘principally illiquid assets. ‘‘principally invested’’ in illiquid assets The Board has made several changes invest’’ in and have an investment as of May 1, 2010, must be made based to the corresponding provisions of the strategy to principally invest in illiquid on the fund’s financial statements final rule in response to comments assets, such as real estate, nonpublic prepared in accordance with U.S. received on the proposal. First, the portfolio companies, and venture capital Generally Accepted Accounting Board has modified the final rule to opportunities, Congress appears to have Principles (‘‘GAAP’’) or other applicable provide that, in determining whether a intended the extended transition period accounting standards. Several fund is contractually committed to to be available to those types of funds commenters noted that funds often principally invest, or has an investment that principally focus and direct their prepare their financial statements at the strategy to principally invest, in illiquid capital towards investments in illiquid end of each calendar quarter and, thus, assets, a banking entity may take into assets. Moreover, the Volcker Rule’s may not have financial statements dated account written representations extended transition period is available as of May 1, 2010. In recognition of this, contained in the fund’s offering only to banking entities that are a banking entity may use a fund’s most documents regarding its investment contractually obligated to invest or recent financial statements prepared obligations and strategy (in addition to remain invested in the fund. Funds that under GAAP or other appropriate the fund’s organizational documents). have (or expect to have) a substantial accounting standards as of any date Funds typically are bound to comply majority of their investments in illiquid between February 28, 2010, and May 1, with any written representations assets are more likely to prohibit 2010, to determine whether the fund contained in the fund’s private investors from withdrawing their was principally invested in illiquid placement memorandum or other investments prior to the expiration of assets as of May 1, 2010. Thus, if a fund offering documents and a fund’s failure prepares financial statements at the end to do so may subject the fund to liability 35 Revenue Limit on Bank-Ineligible Activities of of each calendar quarter, the banking under the Federal securities laws.39 Subsidiaries of Bank Holding Companies Engaged in Underwriting and Dealing in Securities, 61 FR entity could use the fund’s financial Second, the final rule has been 68750 (Dec. 30, 1996); see also J.P. Morgan & Co., statements as of March 30, 2010, to modified so that a fund will be Inc., The Chase Manhattan Corp., Bankers Trust determine whether the fund was New York Corp., Citicorp, and Security Pacific principally invested in illiquid assets as 39 See, e.g., 17 CFR 240.10b–5. Some commenters Corp., 75 Federal Reserve Bulletin 192 (1989); of May 1, 2010 (assuming the fund did requested that the Board provide that a fund is Citicorp, J.P. Morgan & Co., and Bankers Trust New ‘‘contractually committed’’ to principally invest in York Corp., 73 Federal Reserve Bulletin 473 (1987). illiquid assets if that was consistent with the 36 Accordingly, institutional investors, such as 37 See Environmental Defense v. Duke Energy reasonable expectations of investors in the fund. pension plans and endowments, that seek exposure Corp., 549 U.S. 561, 575 (2007); see also U.S. v. The Board has not modified the rule in this manner to different types of assets typically invest in a Cleveland Indians Baseball Co., 532 U.S. 200, 213 because such expectations may not represent a range of different types of hedge funds or private (2001); Robinson v. Shell Oil Co., 519 U.S. 337, legally binding obligation of the fund and would be equity funds to obtain diversification across asset 343–344 (1997). difficult to verify, thus potentially allowing classes. 38 See 12 U.S.C. 1851(h)(7)(i) and (ii). evasions of the Volcker Rule.

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considered ‘‘contractually committed to fund’s documents do not specify that remain invested for purposes of the principally invest’’ in illiquid assets if the equity of such companies must not Volcker Rule if: (i) The obligation may the fund’s organizational documents or be traded or quoted in the manner be terminated by the banking entity or offering documents provide for the fund described in section 225.180(h)(2)–(4). any of its subsidiaries or affiliates; or (ii) to be principally invested in illiquid This would be true even if such the obligation may be terminated with assets at all times other than during investments may later be converted into the consent of other persons unless the limited temporary periods. Some publicly traded securities of the banking entity and its subsidiaries and commenters noted that, after its initial company (such as, for example, in affiliates have used their reasonable best pre-investment organizational period, connection with an initial public efforts to obtain such consent and such an illiquid fund may naturally offering of the company) in order to consent has been denied. experience certain limited periods of facilitate the fund’s sale of the The Board received a number of time when more than 25 percent of its investment. comments on these aspects of the assets may be in liquid assets, such as proposal. For example, some 2. Criteria Focused on the Banking when investments are exited and capital commenters noted that a banking Entity’s Investment has not yet been reinvested or entity’s contractual obligation to remain distributed to investors. Besides meeting the criteria described invested in a fund may be subject to one Several commenters also asked that above, a banking entity’s interest in a or more contractual provisions whereby the Board clarify when the hedge fund or private equity fund may the obligation may be excused or determination of whether a fund is qualify for the extended transition otherwise terminated if the banking ‘‘contractually committed to principally period in section 13(c)(3) of the BHC entity’s compliance with the obligation invest’’ in illiquid assets must be made Act only if the banking entity’s retention would cause, or would be reasonably and how such determination should be of that ownership interest in the fund, likely to cause, the banking entity or the made with respect to investments not or provision of additional capital to the fund to be in violation of applicable yet made. The Volcker Rule expressly fund, is necessary to fulfill a contractual laws or regulations (so-called provides that the determination of obligation of the banking entity that was ‘‘regulatory-out’’ provisions). whether a fund is ‘‘contractually in effect on May 1, 2010.41 This Commenters requested that the final committed to principally invest’’ in statutory restriction complements and rule permit a banking entity to qualify illiquid assets is to be made ‘‘as of May reinforces the fund-related criteria for the extended transition period and 1, 2010.’’ 40 Thus, a fund that was discussed above because a fund that is remain invested in an illiquid fund contractually committed to principally principally invested in liquid assets is despite such regulatory-out provisions. invest in illiquid assets on May 1, 2010, unlikely to require its investors to These commenters asserted that would meet this prong of the test to be commit to remaining invested in the otherwise the purpose of the extended an illiquid fund. fund for, or provide additional capital transition period would not be fulfilled In considering whether a hedge fund over, the extended period of time because those banking entities that or private equity fund’s organizational covered by the Volcker Rule’s extended exercised prudence in obtaining documents, marketing materials, or transition period. regulatory outs in their agreements with investment policy provide for the fund The proposed rule provided that a illiquid funds would be forced to exit to principally invest in illiquid assets, banking entity would be considered to these investments and could not take banking entities should consider have a ‘‘contractual obligation’’ to advantage of the Volcker Rule’s whether the assets to be acquired by the remain invested in a fund only if the extended transition period for illiquid fund (as specified in such materials) are banking entity, under the contractual funds. These commenters also asserted of the type and nature that would make terms of its equity, partnership, or other that such forced sales could have the assets ‘‘illiquid assets’’ or ‘‘liquid ownership interest in the fund or other adverse consequences on the banking assets’’ for purposes of the rule. For contractual arrangements with the fund entity, other investors in the fund, or the example, if a fund’s investment strategy that were in effect as of May 1, 2010, is markets for illiquid assets. provides for the fund to primarily invest prohibited from both: (i) Redeeming all In addition, some commenters in publicly traded stocks or OTC of its equity, partnership, or other requested that the Board strike the derivatives that are regularly bought and ownership interests in the fund; and (ii) provisions of the final rule that provide sold in the inter-dealer market, the fund selling or otherwise transferring all such that the extended transition period would not be considered to have an ownership interests to a person that is automatically terminates upon investment strategy to principally invest not an affiliate of the banking entity. expiration of the banking entity’s in illiquid assets. This would be the Similarly, the proposed rule specified contractual obligation to remain case even if the fund’s investment that a banking entity has a contractual invested in, or provide capital to, an strategy did not indicate that the assets obligation to provide additional capital illiquid fund. One commenter acquired by the fund must be traded on to an illiquid fund only if the banking specifically requested that the final rule a recognized exchange, trading facility, entity is required, under the contractual provide a 6-month ‘‘grace period’’ which or market of the type described in terms of its equity, partnership, or other would allow a banking entity to section 225.180(h)(2) or quoted on inter- ownership interest in the fund or other conform its investment in and dealer systems of the type described in contractual arrangements with the fund relationship with an illiquid fund upon section 225.180(h)(3). On the other (such as a side letter with the fund that termination of the extended transition hand, a fund generally would be is binding on the banking entity) that period. Several commenters also considered to have an investment policy were in effect as of May 1, 2010, to requested that the final rule allow a of principally investing in illiquid assets provide additional capital to the fund. banking entity to use ‘‘commercially if the fund’s organizational documents The proposal also provided that either reasonable efforts’’ instead of or offering materials provide for the of the contractual obligations described ‘‘reasonable best efforts’’ to obtain any fund to invest in the equity of early- above will be considered not to impose consents or approvals necessary to stage nonpublic companies, even if the a contractual obligation to invest or terminate the banking entity’s contractual obligation to a fund, and 40 12 U.S.C. 1851(h)(7)(A)(i). 41 12 U.S.C. 1851(c)(3)(A). allow the banking entity to remain

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invested so long as such efforts are not of the Volcker Rule’s general minimis interest permitted under the successful. conformance period and any extensions Volcker Rule.48 Accordingly, if a The Board has carefully considered thereof and should begin to plan for banking entity is granted an extended these comments. The plain language of such actions. In some instances, transition period to take or retain an the Volcker Rule permits a banking however, the banking entity’s right or interest in an illiquid fund, the banking entity to potentially receive an extended ability to redeem or sell its investments entity may continue to serve as the transition period with respect to an under a regulatory-out provision general partner, managing member, or investment in an illiquid fund only if pertaining to its obligations in effect as sponsor of the illiquid fund to the extent and to the extent necessary to fulfill a of May 1, 2010, may be dependent on such service is related to the banking contractual obligation that was in effect the consent of an unaffiliated party entity’s retention of its permitted on May 1, 2010.42 Moreover, the (such as the general partner or other ownership interest. If, however, a Volcker Rule specifically provides that investors of the fund).45 In such banking entity was not acting as general any extended transition granted by the circumstances, the banking entity and partner, managing member, or sponsor Board will automatically, by operation its affiliates must use their reasonable of the illiquid fund as of May 1, 2010, of law, terminate on the date on which best efforts to obtain such consent.46 then it may not begin to serve that role the contractual obligation to invest in The Board will consider whether a during the extended transition period. the illiquid fund terminates.43 banking entity and its affiliates have D. Nonbank Financial Companies If, pursuant to the terms of its used their reasonable best efforts to Supervised by the Board obligation in effect on May 1, 2010, a obtain the unaffiliated party’s consent in banking entity has the contractual right determining whether to grant the As noted above, the Volcker Rule does to terminate its investment or banking entity an extended transition not prohibit nonbank financial commitments to an illiquid fund period with respect to the investment.47 companies supervised by the Board because such investments would be For example, the Board will consider from engaging in proprietary trading, or prohibited by the Volcker Rule after the whether the banking entity used its from having the types of investments in expiration of the general conformance reasonable best efforts, but an or relationships with hedge funds or period (and any extensions thereof), unaffiliated general partner or other private equity funds that banking then an extended transition period investors denied the request due to the entities are prohibited or restricted from would not be necessary to fulfill the failure of the banking entity to agree to having under the Volcker Rule. banking entity’s contractual obligation unreasonable demands by the general However, the Volcker Rule provides that to the fund because the banking entity partner or investors. the Board or other appropriate agency could legally withdraw from its As noted above, the statute provides impose additional capital charges, investments or commitments without that the extended transition period is quantitative limits, or other restrictions violating its contractual obligation at the only available to banking entities in on nonbank financial companies end of the general conformance period order to take or retain an interest in an supervised by the Board or their (and any extensions thereof). Thus, the illiquid fund, and then only to the subsidiaries that are engaged in such Board does not believe the statute extent necessary to fulfill a contractual activities or maintain such permits it to grant an extended obligation that was in effect on May 1, relationships.49 The Volcker Rule transition period to a banking entity if 2010. The Board recognizes that there generally gives nonbank financial its contractual obligation in place on may be instances where, in connection companies supervised by the Board the May 1, 2010, permits the banking entity with its ownership interest in an same general two-year conformance to terminate those obligations because illiquid fund, a banking entity serves as period (with the potential of up to three, they would violate the Volcker Rule the general partner or managing member one-year extensions) to bring their after the end of the general conformance of, or otherwise ‘‘sponsors,’’ an illiquid activities into compliance with any period (and any extensions thereof).44 fund. In such situations, a banking requirements or limits established as is Whether a banking entity has the right entity will usually hold some ownership available to banking entities. to withdraw its investments or interest in the fund, and that ownership Accordingly, section 225.182 of the final terminate its obligations to an illiquid interest may be in excess of the de rule provides a nonbank financial fund based on the contractual company supervised by the Board two provisions in effect on May 1, 2010, will 45 For example, the terms of the banking entity’s years after the date the company first depend on the specific terms of those regulatory-out provision in its contractual becomes a nonbank financial company obligations. For example, if those obligation may allow the banking entity to redeem or sell its investments only with the approval of the supervised by the Board to conform its obligations provide the banking entity general partner, or only if the general partner activities to any applicable requirements the right and ability to redeem or sell its concurs that retention of the banking entity’s of the Volcker Rule, including any investment if the banking entity ownership interest would result in a violation of the capital requirements or quantitative determines that continued ownership of law. 46 The Board believes that requiring a banking limitations adopted thereunder and the investment would violate the entity to use its ‘‘reasonable best efforts’’ to applicable to the company. Consistent Volcker Rule, the banking entity must terminate its obligation appropriately reflects the with the conformance period available exercise that right no later than the end Volcker Rule’s intent that banking entities should to banking entities, the final rule also use all reasonable efforts to conform to the requirements of the Volcker Rule. provides the Board the ability to extend 42 12 U.S.C. 1851(c)(3). 47 Some commenters noted that some contractual this two-year conformance period by up 43 Id. at § 1851(c)(4)(B). obligations in place as of May 1, 2010, may require to three additional one-year periods, if 44 For similar reasons, the Board does not have a banking entity to provide additional capital to a the Board determines that such an discretion to permit the extended transition period fund even after the banking entity has fully sold its to continue after the date the relevant banking investment in the fund (such as, for example, if the extension is consistent with the purpose entity’s contractual obligation terminates. As such, person that acquired the banking entity’s ownership of the Volcker Rule and would not be the final rule does not provide any ‘‘grace period’’ interest fails to comply with any related obligation detrimental to the public interest.50 and retains the requirement that any extended to provide such additional amounts). Subject to the transition period automatically terminates on the conditions and restrictions described above and in date on which the contractual obligation to invest the final rule, such obligations may constitute a 48 See 12 U.S.C. 1851(d)(4). in, or provide additional capital to, the illiquid fund contractual obligation to provide additional capital 49 See id. at § 1851(a)(2), (d)(4). terminates. to the fund. 50 See id. at § 1851(c)(2).

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E. Procedures Governing Extension fund, including the potential creation of terms governing the banking entity’s Requests conflicts of interest between a banking interest in the fund; (vi) the degree of The proposed rule also addressed the entity that sponsored a private equity or control held by the banking entity over process for banking entities and hedge fund and other investors in such investment decisions of the fund; (vii) nonbank financial companies fund. the types of assets held by the fund; After considering the comments, the supervised by the Board to request a (viii) the date on which the fund is Board has modified the provisions one-year extension of the general expected to wind up its activities and governing the submission and review of conformance period and for banking liquidate or its investments may be extension requests in several respects. entities to request up to a five-year redeemed or sold; (ix) the total exposure First, the final rule provides that a extended transition period with respect of the banking entity (or company) to banking entity or nonbank financial to an illiquid fund. The proposed rule the activity or investment and the risks company supervised by the Board generally required that any request for that disposing of, or maintaining, the seeking an extension of the conformance an extension must: (1) Be submitted in investment or activity may pose to the period must submit its request at least banking entity (or company); (x) the cost writing to the Board at least 90 days 180 days prior to the expiration of the to the banking entity (or company) of prior to the expiration of the applicable applicable time period, rather than 90 disposing of the activity or investment time period; (2) provide the reasons why days as proposed. This additional within the applicable period; and (xi) the banking entity or nonbank financial period is designed to provide the Board any other factor that the Board believes company supervised by the Board additional time to review any appropriate believes the extension should be submission, as well as to request After consideration of the comments, granted; and (3) provide a detailed additional information from the the Board has modified one existing explanation of the plan of the banking requesting company if necessary or factor and added two additional factors entity of nonbank financial company appropriate. This deadline is the date by to this list. The first additional factor is supervised by the Board for divesting or which an extension request must be whether divestiture or conformance of conforming the activity or filed. Firms are encouraged to submit the activity or investment would investment(s). The proposed rule also their extension requests to the Board as involve or result in a material conflict described the factors that the Board may early as possible. If additional requests of interest between the banking entity consider in reviewing any requests for are contemplated as being necessary (or nonbank financial company an extension. after a permissible extension has been supervised by the Board) and The Board received several comments granted, a banking entity or nonbank unaffiliated clients, customers, or on the procedures for requesting an financial company supervised by the counterparties to which the banking extension and the standards for Board may submit an additional request entity owes a duty. Because the Volcker reviewing these requests set forth in the after the first day of the newly-extended Rule is intended to help prevent proposed rule. In general, commenters period, and the Board would consider material conflicts of interest between a requested that the Board allow a firm to each request submitted in accordance banking entity or nonbank financial submit an extension request well in with the procedures contained in the company supervised by the Board and advance of the end of the applicable final rule. The final rule also provides its clients, customers or counterparties, time period. Commenters noted that that the Board will seek to act on any the Board believe this is an appropriate winding down the activities and extension request no later than 90 days factor to consider in reviewing operations subject to the restrictions of after receipt of all necessary information extension requests.52 The Board expects the Volcker Rule could take significant relating to the request.51 that this factor may be relevant when time, and, as a result, companies subject The proposed rule provided that, in the banking entity serves as general to the Volcker Rule would benefit from reviewing a request for an extension, the partner or sponsor to a fund in which knowing as early as possible whether or Board may consider all the facts and unaffiliated persons are investors, but not they had been granted an extension. circumstances related to the activity, generally would not be relevant when Some commenters additionally investment, or fund, including each of the banking entity (in addition to having suggested that the Board modify the the following factors (to the extent they an investment) serves only as final rule to expressly provide for a are relevant): (i) Whether the activity or investment advisor to the fund, because standard time period for its review of investment (A) involves or results in serving as an investment advisor would any specific extension request, material conflicts of interest between generally be a permissible activity for a accompanied by an automatic approval the banking entity (or nonbank financial banking entity even if it divests its of an extension if the review was not company supervised by the Board) and ownership interests in the fund itself. In completed in the specified period. One its clients, customers or counterparties; addition, the Board has modified the list commenter suggested that the Board (B) would result, directly or indirectly, of factors to specify that the Board may require banking entities to provide in a material exposure by the banking consider the firm’s prior efforts to divest extensive information on the steps that entity (or company) to high-risk assets or conform the activity or investments, the banking entity has taken to conform or high-risk trading strategies; (C) would including, with respect to an illiquid to the requirements of the Volcker Rule. pose a threat to the safety and fund, the extent to which the banking Several comments also addressed the soundness of the banking entity (or entity has made reasonable best efforts proposed rule’s list of factors that the company); or (D) would pose a threat to to terminate or obtain a waiver of its Board would take into account in the financial stability of the United contractual obligation to take or retain reviewing any request for a conformance States; (ii) market conditions; (iii) the an equity, partnership, or other period extension. For example, nature of the activity or investment; (iv) ownership interest in, or provide commenters suggested that the Board the date that the banking entity’s additional capital to, the illiquid fund. take into account the impact that an contractual obligation to make or retain The Board expects all banking entities extension (or denial of an extension) an investment in the fund was incurred and nonbank financial companies related to investments in a hedge fund and when it expires; (v) the contractual supervised by the Board to make or private equity fund would have on unaffiliated, third-party investors in the 51 See 12 CFR 225.181(d)(2) and 225.182(d)(2). 52 See 12 U.S.C. 1851(d)(2)(A)(i).

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reasonable and good-faith efforts to banking entity, as well as before explanation of the company’s plan for divest or otherwise conform their imposing conditions in connection with coming into compliance with the prohibited activities and investments the approval of any extension request by requirements of the Volcker Rule. A within the prescribed time periods. This the banking entity. request by a banking entity or nonbank includes taking all reasonable steps to financial company supervised by the IV. Administrative Law Matters divest the firm’s interests in private Board also must address the relevant equity and hedge funds covered by the A. Paperwork Reduction Act Analysis factors set out in section 225.181(d). A restrictions in the Volcker Rule, such as In accordance with the Paperwork banking entity or nonbank financial making requests of a general partner or Reduction Act of 1995 (‘‘PRA’’),54 the company supervised by the Board may other applicable person(s) to withdraw Board has reviewed this final rule under request confidential treatment of from or transfer its interest in the fund the authority delegated to the Board by information submitted as part of an whenever authorized or permitted by Office of Management and Budget extension request in accordance with the relevant fund documents. The (‘‘OMB’’). The Board may not conduct or the Freedom of Information Act. In connection with the proposal, the factors listed in the rule are not sponsor, and a respondent is not exclusive, and the Board retains the Board estimated that there were required to respond to, an information ability to consider other factors or approximately 7,200 banking entities as collection unless it displays a currently considerations that it deems of December 31, 2009. Of that number, valid OMB control number. the Board estimated that approximately appropriate. Sections 225.181(c) and 225.182(c) of As noted in the proposed rule, the 720 banking entities would request an the final rule contain collections of Board expects to carefully review extension of the conformance period information that are subject to the PRA. requests for an extended transition under the proposed rule. The number of The OMB control number for these period to ensure that the banking nonbank financial companies information collections will be assigned. entity’s interest in the fund and the supervised by the Board will be These collections of information would fund’s assets and investment strategy determined by the FSOC in accordance only be required for banking entities satisfy the requirements contained in with the procedures established under and nonbank financial companies the rule in order to be eligible for an the Dodd-Frank Act. Accordingly, the supervised by the Board that voluntarily extended transition period. As noted Board was unable and remains unable at decide to seek an extension of time to above in Part III.C.1.a of this this time to estimate the number of conform their activities to the Volcker SUPPLEMENTARY INFORMATION, the final nonbank financial companies Rule or divest their interest in an rule provides that in evaluating the supervised by the Board that might illiquid hedge fund or private equity merits and appropriateness of a request request an extension of the Volcker Rule fund. As discussed in the for an extended transition period for an conformance period under the proposed SUPPLEMENTARY INFORMATION, the Dodd- investment in an illiquid fund, the rule. In the proposal, the Board Frank Act generally requires banking Board will consider the extent to which estimated the burden request as 1 hour, entities and nonbank financial holding the fund’s current assets are no longer for a total estimated amount of annual companies supervised by the Board to illiquid (e.g. due to lapse of applicable burden of 720 hours. conform their activities and investments restrictions on an investment because a Some commenters asserted that the to the restrictions in the Volcker Rule previously illiquid venture capital or Board’s proposal underestimated the within 2 years of the effective date of portfolio company investment has regulatory burden and stated that it the Volcker Rule’s restrictions. The final become liquid, such as through the would take substantially longer than rule implements this conformance initial public offering of the company’s one hour to prepare a request for an period and, as permitted by the Dodd- stock). The Board has modified the list extension and relevant supporting Frank Act, permits a banking entity or of factors the Board may consider in the information. One commenter nonbank financial company supervised final rule to make this clear. specifically noted that a banking entity The final rule retains the proposed by the Board to request an extension of could potentially be required to submit rule’s provision that allows the Board to time to conform its activities to the up to four extension requests with impose conditions on any extension Volcker Rule. Section 225.181(c) would respect to a single illiquid fund (three granted if the Board determines such require an application for an extension requests for extension of the general conditions are necessary or appropriate by a banking entity to be (1) submitted conformance period and one request for to protect the safety and soundness of in writing to the Board at least 180 days the extended transition period provided banking entities or the financial stability prior to the expiration of the applicable for illiquid funds). In light of the of the United States, address material time period, (2) provide the reasons why comments received, the Board has conflicts of interest or other unsound the banking entity believes the revised its estimated burden per request practices, or otherwise further the extension should be granted, and (3) to be 3 hours, and estimates that each purposes of section 13 of the BHC Act provide a detailed explanation of the of the 720 banking entities that are and the final rules.53 In cases where the banking entity’s plan for divesting or estimated to request an extension will banking entity is primarily supervised conforming the activity or file, on average, 10 requests for an by another Federal banking agency, the investment(s). Section 225.182(c) would extension, for a total estimated annual SEC, or the CFTC, the Board will require an application for an extension burden of 21,600 hours. by a nonbank financial holding consult with such agency prior to B. Regulatory Flexibility Act Analysis approving any extension request by the company to be (1) submitted in writing to the Board at least 180 days prior to In accordance with Section 4(a) of the 53 Nothing in the Volcker Rule or the final rule the expiration of the applicable time Regulatory Flexibility Act, 5 U.S.C. 601 limits or otherwise affects the authority that the period, (2) provide the reasons why the et seq, (‘‘RFA’’), the Board must publish Board, the other Federal banking agencies, the SEC, nonbank financial holding company a final regulatory flexibility analysis or the CFTC may have under other provisions of believes the extension should be with this rulemaking. The RFA requires law. In the case of the Board, these authorities include, but are not limited to, section 8 of the granted, and (3) provide a detailed an agency either to provide a final Federal Deposit Insurance Act and section 8 of the regulatory flexibility analysis with a BHC Act. See 12 U.S.C. 1818, 1847. 54 44 U.S.C. 3506; 5 CFR 1320, Appendix A.1 final rule for which a general notice of

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proposed rulemaking is required or to less likely to be engaged in the types of companies, Reporting and certify that the final rule will not have activities or hold investments recordkeeping requirements, Securities. a significant economic impact on a prohibited under the Volcker Rule, and Authority and Issuance substantial number of small entities. as such estimates that only 5 percent of Based on this analysis and for the small banking entities likely would file For the reasons stated in the reasons stated below, the Board believes an extension request under the rule. The preamble, the Board is amending that the final rule would not have a Board specifically requested comment Regulation Y, 12 CFR part 225, as set significant economic impact on a on whether this estimate is appropriate, forth below: substantial number of small entities. and no comments were received on this Nevertheless, the Board is publishing a issue. The Board notes that the impact PART 225—REGULATION Y—BANK final regulatory flexibility analysis. of the rule on entities choosing to take HOLDING COMPANIES AND CHANGE The Volcker Rule, adopted as a new advantage of the rule’s extended IN BANK CONTROL (REGULATION Y) section 13 of the BHC Act, applies to all conformance period would be positive ■ banking entities and nonbank financial 1. The authority citation for part 225 and not adverse. This is because the rule is revised to read as follows: companies supervised by the Board, would allow affected entities to seek regardless of size. The Board is and obtain an extended period of time Authority: 12 U.S.C. 1817(j)(13), 1818, amending Regulation Y to implement to conform their activities, investments, 1828(o), 1831i, 1831p–1, 1843(c)(8), 1844(b), the provisions of the Dodd-Frank Act or relationships to the requirements of 1851, 1972(1), 3106, 3108, 3310, 3331–3351, 3907, and 3909; 15 U.S.C. 6801 and 6805. that allow a banking entity—including a the Volcker Rule. The Board also has small banking entity—or a nonbank taken several steps to reduce the ■ 2. Section 225.1(c)(11) is revised to financial company supervised by the potential burden of the rule on all read as follows: Board to obtain, with the Board’s banking entities, including small approval, an extended period of time to banking entities. For example, the rule § 225.1 Authority, purpose, and scope. conform its activities and investments to establishes a straightforward process for * * * * * the requirements of the Volcker Rule. banking entities, including small (c) * * * Under the rule, a banking entity of any banking entities, to request an extension (11) Subpart K governs the period of size may request up to three one-year of the conformance period or an time that firms subject to section 13 of extensions of the general two-year extended transition period with respect the Bank Holding Company Act (12 conformance period provided under to an investment in an illiquid fund, U.S.C. 1851) have to bring their section 13 of the BHC Act, as well as and permits such requests to be activities, investments and relationships one extension of up to five years to submitted in letter form. The rule also into compliance with the requirements divest certain ownership interests in a uses standards drawn from existing of such section. hedge fund or private equity fund that federal banking and securities * * * * * qualifies as an ‘‘illiquid fund’’ under the regulations to help define the types of ■ statute and proposed rule. The 3. Subpart K is added to read as funds that may qualify as an ‘‘illiquid follows: SUPPLEMENTARY INFORMATION provides fund’’ under the statute and the rule, Subpart K—Proprietary Trading and additional information regarding the which should assist small banking reasons for, and the objective and legal Relationships With Hedge Fund and Private entities in determining whether their Equity Funds basis of, the rule. investments qualify for the extended Under regulations issued by the Small transition period available for Sec. Business Administration (‘‘SBA’’), a 225.180 Definitions. investments in illiquid funds. bank or other depository institution is 225.181 Conformance Period for Banking considered ‘‘small’’ if it has $175 million As discussed in the SUPPLEMENTARY Entities Engaged in Proprietary Trading or less in assets.55 As of December 31, INFORMATION, the Dodd-Frank Act or Private Fund Activities. 2009, there were approximately 2450 requires that the Board adopt rules 225.182 Conformance Period for Nonbank small bank holding companies, 293 implementing the Volcker Rule’s Financial Companies Supervised by the conformance period. The Board does Board Engaged in Proprietary Trading or small savings association, 132 small Private Fund Activities. national banks, 73 small State member not believe that the final rule duplicates, banks, 665 small State nonmember overlaps, or conflicts with any other Subpart K—Proprietary Trading and banks, and 21 small foreign banking Federal rules. Relationships With Hedge Funds and organizations that are subject to section Plain Language Private Equity Funds 8 of the International Banking Act of 1978. As of that date, there were no Section 722 of the Gramm-Leach- § 225.180 Definitions. nonbank financial companies Bliley Act requires the Federal banking For purposes of this subpart: supervised by the Board. The Volcker agencies to use plain language in all (a) Banking entity means— Rule would affect only those entities proposed and final rules published after (1) Any insured depository that engage in activities or that hold January 1, 2000. The Board invited institution; investments prohibited or restricted comment on whether the proposed rule (2) Any company that controls an under the terms of the Volcker Rule. As was written plainly and clearly, or insured depository institution; explained above, the Board estimates whether there were ways the Board (3) Any company that is treated as a that of the total number of banking could make the rule easier to bank holding company for purposes of entities that would be affected by the understand. The Board received no section 8 of the International Banking Volcker Rule, approximately 10 percent comments on these matters and believes Act of 1978; and would likely file an extension request that the final rule is written plainly and (4) Any affiliate or subsidiary of any under the proposed rule. Based on its clearly. of the foregoing entities. (b) Hedge fund and private equity supervisory experience, the Board List of Subjects in 12 CFR Part 225 believes that small banking entities are fund mean an issuer that would be an Administrative practice and investment company, as defined in the 55 13 CFR 121.201. procedure, Banks, Banking, Holding Investment Company Act of 1940 (15

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U.S.C. 80a–1 et seq.), but for section (2) Because of statutory or regulatory offering materials distributed to 3(c)(1) or 3(c)(7) of that Act, or such restrictions applicable to the hedge potential investors provide for the fund similar funds as the appropriate Federal fund, private equity fund or asset, to be principally invested in assets banking agencies, the Securities and cannot be offered, sold, or otherwise described in paragraph (i)(1) at all times Exchange Commission, and the transferred by the hedge fund or private other than during temporary periods, Commodity Futures Trading equity fund to a person that is such as the period prior to the initial Commission may, by rule, as provided unaffiliated with the relevant banking receipt of capital contributions from in section 13(b)(2) of the Bank Holding entity; or investors or the period during which the Company Act (12 U.S.C. 1851(b)(2)), (3) Because of contractual restrictions fund’s investments are being liquidated determine. applicable to the hedge fund, private and capital and profits are being (c) Insured depository institution has equity fund or asset, cannot be offered, returned to investors; and the same meaning as given that term in sold, or otherwise transferred by the (3) Has an investment strategy to section 3 of the Federal Deposit hedge fund or private equity fund for a principally invest in illiquid assets if the Insurance Act (12 U.S.C. 1813), except period of 3 years or more to a person fund— that for purposes of this subpart the that is unaffiliated with the relevant (i) Markets or holds itself out to term shall not include an institution banking entity. investors as intending to principally that functions solely in a trust or (h) Liquid asset means: invest in assets described in paragraph fiduciary capacity if— (1) Cash or cash equivalents; (i)(1) of this section; or (1) All or substantially all of the (2) An asset that is traded on a (ii) Has a documented investment deposits of such institution are in trust recognized, established exchange, policy of principally investing in assets funds and are received in a bona fide trading facility or other market on described in paragraph (i)(1) of this fiduciary capacity; which there exist independent, bona section. (2) No deposits of such institution fide offers to buy and sell so that a price which are insured by the Federal reasonably related to the last sales price § 225.181 Conformance Period for Banking Deposit Insurance Corporation are or current bona fide competitive bid and Entities Engaged in Prohibited Proprietary offered or marketed by or through an offer quotations can be determined for Trading or Private Fund Activities. affiliate of such institution; the particular asset almost (a) Conformance Period—(1) In (3) Such institution does not accept instantaneously; general. Except as provided in demand deposits or deposits that the (3) An asset for which there are bona paragraph (b)(2) or (3) of this section, a depositor may withdraw by check or fide, competitive bid and offer banking entity shall bring its activities similar means for payment to third quotations in a recognized inter-dealer and investments into compliance with parties or others or make commercial quotation system or similar system or the requirements of section 13 of the loans; and for which multiple dealers furnish bona Bank Holding Company Act (12 U.S.C. (4) Such institution does not— fide, competitive bid and offer 1851) and this subpart no later than 2 (i) Obtain payment or payment related quotations to other brokers and dealers years after the earlier of: services from any Federal Reserve bank, on request; (i) July 21, 2012; or including any service referred to in (4) An asset the price of which is (ii) Twelve months after the date on section 11A of the Federal Reserve Act quoted routinely in a widely which final rules adopted under section (12 U.S.C. 248a); or disseminated publication that is readily 13(b)(2) of the Bank Holding Company (ii) Exercise discount or borrowing available to the general public or Act (12 U.S.C. 1851(b)(2)) are published privileges pursuant to section 19(b)(7) of through an electronic service that in the Federal Register. the Federal Reserve Act (12 U.S.C. provides indicative data from real-time (2) New banking entities.—A 416(b)(7)). financial networks; company that was not a banking entity, (5) An asset with an initial term of (d) Nonbank financial company or a subsidiary or affiliate of a banking one year or less and the payments on supervised by the Board means a entity, as of July 21, 2010, and becomes which at maturity may be settled, nonbank financial company supervised a banking entity, or a subsidiary or closed-out, or paid in cash or one or by the Board of Governors, as defined in affiliate of a banking entity, after that more other liquid assets described in section 102 of the Dodd-Frank Wall date shall bring its activities and paragraphs (h)(1), (2), (3), or (4); and Street Reform and Consumer Protection investments into compliance with the (6) Any other asset that the Board Act of 2010 (12 U.S.C. 5311). requirements of section 13 of the Bank (e) Board means the Board of determines, based on all the facts and Holding Company Act (12 U.S.C. 1851) Governors of the Federal Reserve circumstances, is a liquid asset. and this subpart before the later of— System. (i) Principally invested and related (f) Illiquid fund means a hedge fund definitions. A hedge fund or private (i) The conformance date determined or private equity fund that: equity fund: in accordance with paragraph (a)(1) of (1) As of May 1, 2010— (1) Is principally invested in illiquid this section; or (i) Was principally invested in assets if at least 75 percent of the fund’s (ii) Two years after the date on which illiquid assets; or consolidated total assets are— the company becomes a banking entity (ii) Was invested in, and contractually (i) Illiquid assets; or or a subsidiary or affiliate of a banking committed to principally invest in, (ii) Risk-mitigating hedges entered entity. illiquid assets; and into in connection with and related to (3) Extended conformance period. (2) Makes all investments pursuant to, individual or aggregated positions in, or The Board may extend the two-year and consistent with, an investment holdings of, illiquid assets; period under paragraph (a)(1) or (2) of strategy to principally invest in illiquid (2) Is contractually committed to this section by not more than three assets. principally invest in illiquid assets if the separate one-year periods, if, in the (g) Illiquid assets means any real fund’s organizational documents, other judgment of the Board, each such one- property, security, obligation, or other documents that constitute a contractual year extension is consistent with the asset that— obligation of the fund, or written purposes of section 13 of the Bank (1) Is not a liquid asset; representations contained in the fund’s Holding Company Act (12 U.S.C. 1851)

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and this subpart and would not be obligation for purposes of paragraph (vi) The degree of control held by the detrimental to the public interest. (b)(3)(i) or (ii) of this section only if— banking entity over investment (b) Illiquid funds—(1) Extended (A) The obligation may not be decisions of the fund; transition period. The Board may terminated by the banking entity or any (vii) The types of assets held by the further extend the period provided by of its subsidiaries or affiliates under the fund, including whether any assets that paragraph (a) of this section during terms of its agreement with the fund; were illiquid when first acquired by the which a banking entity may acquire or and fund have become liquid assets, such as, retain an equity, partnership, or other (B) In the case of an obligation that for example, because any statutory, ownership interest in, or otherwise may be terminated with the consent of regulatory, or contractual restrictions on provide additional capital to, a private other persons, the banking entity and its the offer, sale, or transfer of such assets equity fund or hedge fund if— subsidiaries and affiliates have used have expired; (i) The fund is an illiquid fund; and their reasonable best efforts to obtain (viii) The date on which the fund is (ii) The acquisition or retention of such consent and such consent has been expected to wind up its activities and such interest, or provision of additional denied. liquidate, or its investments may be capital, is necessary to fulfill a (c) Approval Required to Hold redeemed or sold; contractual obligation of the banking Interests in Excess of Time Limit. The (ix) The total exposure of the banking entity that was in effect on May 1, 2010. conformance period in paragraph (a) of entity to the activity or investment and (2) Duration limited. The Board may this section may be extended in the risks that disposing of, or grant a banking entity only one accordance with paragraph (a)(3) or (b) maintaining, the investment or activity extension under paragraph (b)(1) of this of this section only with the approval of may pose to the banking entity or the section and such extension— the Board. A banking entity that seeks financial stability of the United States; (i) May not exceed 5 years beyond any the Board’s approval for an extension of (x) The cost to the banking entity of conformance period granted under the conformance period under divesting or disposing of the activity or paragraph (a)(3) of this section; and paragraph (a)(3) or for an extended investment within the applicable (ii) Shall terminate automatically on transition period under paragraph (b)(1) period; the date during any such extension on must— (xi) Whether the divestiture or which the banking entity is no longer (1) Submit a request in writing to the conformance of the activity or under a contractual obligation described Board at least 180 days prior to the investment would involve or result in a in paragraph (b)(1)(ii). expiration of the applicable time period; material conflict of interest between the (3) Contractual obligation. For (2) Provide the reasons why the banking entity and unaffiliated clients, purposes of this paragraph (b)— banking entity believes the extension customers or counterparties to which it (i) A banking entity has a contractual should be granted, including owes a duty; obligation to take or retain an equity, information that addresses the factors in (xii) The banking entity’s prior efforts partnership, or other ownership interest paragraph (d)(1) of this section; and to divest or conform the activity or in an illiquid fund if the banking entity (3) Provide a detailed explanation of investment(s), including, with respect to is prohibited from redeeming all of its the banking entity’s plan for divesting or an illiquid fund, the extent to which the equity, partnership, or other ownership conforming the activity or banking entity has made efforts to interests in the fund, and from selling or investment(s). terminate or obtain a waiver of its otherwise transferring all such (d) Factors governing Board contractual obligation to take or retain ownership interests to a person that is determinations—(1) Extension requests an equity, partnership, or other not an affiliate of the banking entity— generally. In reviewing any application ownership interest in, or provide (A) Under the terms of the banking by a specific company for an extension additional capital to, the illiquid fund; entity’s equity, partnership, or other under paragraph (a)(3) or (b)(1) of this and ownership interest in the fund or the section, the Board may consider all the (xiii) Any other factor that the Board banking entity’s other contractual facts and circumstances related to the believes appropriate. arrangements with the fund or activity, investment, or fund, including, (2) Timing of Board review. The Board unaffiliated investors in the fund; or to the extent relevant— will seek to act on any request for an (B) If the banking entity is the sponsor (i) Whether the activity or extension under paragraph (a)(3) or of the fund, under the terms of a written investment— (b)(1) of this section no later than 90 (A) Involves or results in material representation made by the banking calendar days after the receipt of a conflicts of interest between the banking entity in the fund’s offering materials complete record with respect to such entity and its clients, customers or distributed to potential investors; request. counterparties; (3) Consultation. In the case of a (ii) A banking entity has a contractual (B) Would result, directly or banking entity that is primarily obligation to provide additional capital indirectly, in a material exposure by the supervised by another Federal banking to an illiquid fund if the banking entity banking entity to high-risk assets or agency, the Securities and Exchange is required to provide additional capital high-risk trading strategies; to such fund— (C) Would pose a threat to the safety Commission, or the Commodity Futures (A) Under the terms of its equity, and soundness of the banking entity; or Trading Commission, the Board will partnership or other ownership interest (D) Would pose a threat to the consult with such agency prior to the in the fund or the banking entity’s other financial stability of the United States; approval of a request by the banking contractual arrangements with the fund (ii) Market conditions; entity for an extension under paragraph or unaffiliated investors in the fund; or (iii) The nature of the activity or (a)(3) or (b)(1) of this section. (B) If the banking entity is the sponsor investment; (e) Authority to impose restrictions on of the fund, under the terms of a written (iv) The date that the banking entity’s activities or investments during any representation made by the banking contractual obligation to make or retain extension period—(1) In general. The entity in the fund’s offering materials an investment in the fund was incurred Board may impose such conditions on distributed to potential investors; and and when it expires; any extension approved under (iii) A banking entity shall be (v) The contractual terms governing paragraph (a)(3) or (b)(1) of this section considered to have a contractual the banking entity’s interest in the fund; as the Board determines are necessary or

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appropriate to protect the safety and (d) Factors governing Board airworthiness regulations do not contain soundness of the banking entity or the determinations—(1) In general. In adequate or appropriate safety standards financial stability of the United States, reviewing any application for an for this design feature. These special address material conflicts of interest or extension under paragraph (b) of this conditions contain the additional safety other unsound banking practices, or section, the Board may consider all the standards that the Administrator otherwise further the purposes of facts and circumstances related to the considers necessary to establish a level section 13 of the Bank Holding nonbank financial company and the of safety equivalent to that established Company Act (12 U.S.C. 1851) and this request including, to the extent by the existing airworthiness standards. subpart. determined relevant by the Board, the DATES: The effective date of these (2) Consultation. In the case of a factors described in § 225.181(d)(1). special conditions is February 3, 2011. banking entity that is primarily (2) Timing. The Board will seek to act We must receive your comments by supervised by another Federal banking on any request for an extension under March 31, 2011. agency, the Securities and Exchange paragraph (b) of this section no later Commission, or the Commodity Futures than 90 calendar days after the receipt ADDRESSES: You must mail two copies Trading Commission, the Board will of a complete record with respect to of your comments to: Federal Aviation consult with such agency prior to such request. Administration, Transport Airplane imposing conditions on the approval of (f) Authority to impose restrictions on Directorate, Attn: Rules Docket (ANM– a request by the banking entity for an activities or investments during any 113), Docket No. NM443, 1601 Lind extension under paragraph (a)(3) or extension period. The Board may Avenue, SW., Renton, Washington, (b)(1) of this section. impose conditions on any extension 98057–3356. You may deliver two approved under paragraph (b) of this copies to the Transport Airplane § 225.182 Conformance Period for section as the Board determines are Directorate at the above address. You Nonbank Financial Companies Supervised necessary or appropriate to protect the must mark your comments: Docket No. by the Board Engaged in Proprietary NM443. You can inspect comments in Trading or Private Fund Activities. safety and soundness of the nonbank financial company or the financial the Rules Docket weekdays, except (a) Divestiture Requirement. A stability of the United States, address Federal holidays, between 7:30 a.m. and nonbank financial company supervised material conflicts of interest or other 4 p.m. by the Board shall come into unsound practices, or otherwise further FOR FURTHER INFORMATION CONTACT: Dale compliance with all applicable the purposes of section 13 of the Bank Dunford, FAA, Airplane and Flight requirements of section 13 of the Bank Holding Company Act (12 U.S.C. 1851) Crew Interface Branch, ANM–111, Holding Company Act (12 U.S.C. 1851) and this subpart. Transport Standards Staff, Transport and this subpart, including any capital Airplane Directorate, Aircraft requirements or quantitative limitations Subpart L—Conditions to Orders Certification Service, 1601 Lind adopted thereunder and applicable to Avenue, SW., Renton, Washington the company, not later than 2 years after ■ 4. Add subpart L with a heading as set 98057–3356; telephone (425) 227–2239; the date the company becomes a forth above, and consisting of existing facsimile (425) 227–1320. nonbank financial company supervised § 225.200. by the Board. By order of the Board of Governors of the SUPPLEMENTARY INFORMATION: The FAA (b) Extensions. The Board may, by Federal Reserve System, February 8, 2011. has determined that the substance of rule or order, extend the two-year Jennifer J. Johnson, these special conditions has been subject to the public-comment process period under paragraph (a) by not more Secretary of the Board. in several prior instances with no than three separate one-year periods, if, [FR Doc. 2011–3199 Filed 2–11–11; 8:45 am] in the judgment of the Board, each such substantive comments received. The BILLING CODE 6210–01–P one-year extension is consistent with FAA therefore finds that good cause the purposes of section 13 of the Bank exists for making these special Holding Company Act (12 U.S.C. 1851) conditions effective upon issuance. DEPARTMENT OF TRANSPORTATION and this subpart and would not be Comments Invited detrimental to the public interest. Federal Aviation Administration (c) Approval Required to Hold We invite interested people to take part in this rulemaking by sending Interests in Excess of Time Limit. A 14 CFR Part 25 nonbank financial company supervised written comments, data, or views. The by the Board that seeks the Board’s [Docket No. NM443; Special Conditions No. most helpful comments reference a approval for an extension of the 25–416–SC] specific portion of the special conformance period under paragraph (b) conditions, explain the reason for any Special Conditions: Gulfstream Model of this section must— recommended change, and include GVI Airplane; Enhanced Flight Vision (1) Submit a request in writing to the supporting data. We ask that you send System Board at least 180 days prior to the us two copies of written comments. expiration of the applicable time period; AGENCY: Federal Aviation We will file in the docket all (2) Provide the reasons why the Administration (FAA), DOT. comments we receive, as well as a nonbank financial company supervised ACTION: Final special conditions; request report summarizing each substantive by the Board believes the extension for comments. public contact with FAA personnel should be granted; and about these special conditions. You can (3) Provide a detailed explanation of SUMMARY: These special conditions are inspect the docket before and after the the company’s plan for conforming the issued for the Gulfstream GVI airplane. comment closing date. If you wish to activity or investment(s) to any This airplane will have a novel or review the docket in person, go to the applicable requirements established unusual design feature associated with address in the ADDRESSES section of this under section 13(a)(2) or (f)(4) of the a head-up display (HUD) system preamble between 7:30 a.m. and 4 p.m., Bank Holding Company Act (12 U.S.C. modified to display forward-looking Monday through Friday, except Federal 1851(a)(2) and (f)(4)). infrared (FLIR) imagery. The applicable holidays.

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We will consider all comments we incorporates the same novel or unusual display area of the HUD, leaving much receive by the closing date for design features, the special conditions of that area free of reflected light that comments. We may change these special would also apply to the other model could interfere with the pilot’s view out conditions based on the comments we under provisions of § 21.101. the window through the display. receive. However, unlike stroke symbology, the Novel or Unusual Design Features If you want us to acknowledge receipt video image illuminates most of the of your comments on these special The enhanced flight vision system total display area of the HUD conditions, include with your (EFVS) is a novel or unusual design (approximately 30 degrees horizontally comments a self-addressed, stamped feature because it projects a video image and 25 degrees vertically) which is a postcard on which you have written the derived from a forward-looking infrared significant fraction of the pilot docket number. We will stamp the date (FLIR) camera through the head-up compartment view. The pilot cannot see on the postcard and mail it back to you. display (HUD). The EFVS image is around the larger illuminated portions projected in the center of the ‘‘pilot Background of the video image but must see the compartment view,’’ which is governed outside scene through it. On March 29, 2005, Gulfstream by § 25.773. The image is displayed Unlike the pilot’s external view, the Aerospace Corporation (hereafter with HUD symbology and overlays the EFVS image is a monochrome, two- referred to as ‘‘Gulfstream’’) applied for forward outside view. Therefore, dimensional display. Many, but not all, an FAA type certificate for its new § 25.773 does not contain appropriate of the depth cues found in the natural Gulfstream Model GVI passenger safety standards for the EFVS display. view are also found in the image. The airplane. Gulfstream later applied for, Operationally, during an instrument quality of the EFVS image and the level and was granted, an extension of time approach, the EFVS image is intended of EFVS infrared sensor performance for the type certificate, which changed to enhance the pilot’s ability to detect could depend significantly on ‘‘ the effective application date to and identify visual references for the conditions of the atmospheric and ’’ September 28, 2006. The Gulfstream intended runway (see § 91.175(l)(3)) to external light sources. The pilot needs continue the approach below decision Model GVI airplane will be an all-new, adequate control of sensor gain and height or minimum descent altitude. two-engine jet transport airplane with image brightness, which can Depending on atmospheric conditions an executive cabin interior. The significantly affect image quality and and the strength of infrared energy maximum takeoff weight will be 99,600 transparency (i.e., the ability to see the emitted and/or reflected from the scene, pounds, with a maximum passenger outside view through the image). the pilot can see these visual references count of 19 passengers. Certain system characteristics could in the image better than he or she can create distracting and confusing display Type Certification Basis see them through the window without artifacts. Finally, because this is a Under provisions of Title 14 Code of EFVS. sensor-based system that is intended to Federal Regulations (14 CFR) 21.17, Scene contrast detected by infrared provide a conformal perspective Gulfstream must show that the sensors can be much different from that corresponding with the outside scene, Gulfstream Model GVI airplane detected by natural pilot vision. On a the system must be able to ensure (hereafter referred to as ‘‘the GVI’’) meets dark night, thermal differences of accurate alignment. the applicable provisions of objects which are not detectable by the Hence, safety standards are needed for 14 CFR part 25, as amended by naked eye will be easily detected by each of the following factors: Amendments 25–1 through 25–119, many imaging infrared systems. On the 25–122 and 25–124. If the Administrator other hand, contrasting colors in visual —An acceptable degree of image finds that the applicable airworthiness wavelengths may be distinguished by transparency; regulations (i.e., 14 CFR part 25) do not the naked eye but not by an imaging —Image alignment; contain adequate or appropriate safety infrared system. Where thermal contrast —Lack of significant distortion; and standards for the GVI because of a novel in the scene is sufficiently detectable, —The potential for pilot confusion or or unusual design feature, special the pilot can recognize shapes and misleading information. conditions are prescribed under the patterns of certain visual references in Section 25.773, ‘‘Pilot Compartment provisions of § 21.16. the infrared image. However, depending View,’’ specifies that ‘‘Each pilot In addition to complying with the on conditions, those shapes and compartment must be free of glare and applicable airworthiness regulations patterns in the infrared image can reflection that could interfere with the and special conditions, the GVI must appear significantly different than they normal duties of the minimum flight comply with the fuel vent and exhaust would with normal vision. Considering crew. * * *’’ In issuing § 25.773, the emission requirements of 14 CFR part these factors, the EFVS image needs to FAA did not anticipate the development 34 and the noise certification be evaluated to determine that it can be of EFVSs and does not consider § 25.773 requirements of 14 CFR part 36. The accurately interpreted by the pilot. to be adequate to address the specific FAA must also issue a finding of The image may improve the pilot’s issues related to such a system. regulatory adequacy pursuant to section ability to detect and identify items of Therefore, the FAA has determined that 611 of Public Law 92–574, the ‘‘Noise interest. However, the EFVS needs to be special conditions are needed to address Control Act of 1972.’’ evaluated to determine that the imagery the specific issues particular to the The FAA issues special conditions, as allows the pilot to perform the normal installation and use of an EFVS. defined in 14 CFR 11.19, in accordance duties of the flight crew and adequately Discussion with § 11.38, and they become part of see outside the window through the the type certification basis under image, consistent with the safety intent The EFVS is intended to function by § 21.17(a)(2). of § 25.773(a)(2). presenting an enhanced view during the Special conditions are initially Compared to a HUD displaying the approach. This enhanced view would applicable to the model for which they EFVS image and symbology, a HUD that help the pilot to see and recognize are issued. Should the type certificate displays only stroke-written symbols is external visual references, as required for that model be amended later to easier to see through. Stroke symbology by § 91.175(l), and to visually monitor include any other model that illuminates a small fraction of the total the integrity of the approach, as

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described in FAA Order 6750.24D § 25.773 compliant pilot compartment List of Subjects in 14 CFR Part 25 (‘‘Instrument Landing System and view without an EVS image. This is the Aircraft, Aviation safety, Reporting Ancillary Electronic Component fundamental objective of the special and recordkeeping requirements. Configuration and Performance conditions. The authority citation for these Requirements,’’ dated March 1, 2000). The FAA will also apply additional special conditions is as follows: Based on this functionality, users certification criteria, not as special would seek to obtain operational conditions, for compliance with related Authority: 49 U.S.C. 106(g), 40113, 44701, approval to conduct approaches, regulatory requirements, such as 44702, 44704. including approaches to Type I §§ 25.1301 and 25.1309. These The Special Conditions runways, when the runway visual range additional criteria address certain image is as low as 1,200 feet. Accordingly, pursuant to the characteristics, installation, authority delegated to me by the The purpose of these special demonstration, and system safety. conditions is to ensure that the EFVS to Administrator, the following special Image characteristics criteria include conditions are issued as part of the type be installed can perform the following the following: functions: certification basis for Gulfstream GVI —Resolution, —Present an enhanced view that would airplanes. 1. Enhanced flight vision system aid the pilot during the approach. —Luminance, —Provide enhanced flight visibility to —Luminance uniformity, (EFVS) imagery on the head-up display the pilot that is no less than the —Low level luminance, (HUD) must not degrade the safety of visibility prescribed in the standard —Contrast variation, flight or interfere with the effective use instrument approach procedure. —Display quality, of outside visual references for required —Display an image that the pilot can —Display dynamics (e.g., jitter, flicker, pilot tasks during any phase of flight in use to detect and identify the ‘‘visual update rate, and lag), and which it is to be used. references for the intended runway’’ 2. To avoid unacceptable interference —Brightness controls. with the safe and effective use of the required by § 91.175(l)(3) to continue Installation criteria address visibility the approach with vertical guidance pilot compartment view, the EFVS and access to EFVS controls and device must meet the following to 100 feet height above the integration of EFVS in the cockpit. touchdown zone elevation. requirements: The EFVS demonstration criteria (a) The EFVS design must minimize Depending on the atmospheric address the flight and environmental unacceptable display characteristics or conditions and the particular visual conditions that need to be covered. artifacts (e.g. noise, ‘‘burlap’’ overlay, references that happen to be distinctly The FAA also intends to apply running water droplets, etc.) that visible and detectable in the EFVS certification criteria relevant to high obscure the desired image of the scene, image, these functions would support intensity radiated fields (HIRF) and impair the pilot’s ability to detect and its use by the pilot to visually monitor lightning protection. identify visual references, mask flight the integrity of the approach path. hazards, distract the pilot, or otherwise Compliance with these special Applicability degrade task performance or safety. conditions does not affect the As discussed above, these special (b) Control of EFVS display brightness applicability of any of the requirements conditions are applicable to the GVI. must be sufficiently effective, in of the operating regulations (i.e., 14 CFR Should Gulfstream apply at a later date dynamically changing background parts 91, 121, and 135). Furthermore, for a change to the type certificate to (ambient) lighting conditions, to prevent use of the EFVS does not change the include another model incorporating the full or partial blooming of the display approach minima prescribed in the same novel or unusual design feature, that would distract the pilot, impair the standard instrument approach these special conditions would apply to pilot’s ability to detect and identify procedure being used; published that model as well. visual references, mask flight hazards, minima still apply. or otherwise degrade task performance The FAA certification of this EFVS is Conclusion or safety. If automatic control for image limited as follows: This action affects only certain novel brightness is not provided, it must be —The infrared-based EFVS image will or unusual design features on one model shown that a single manual setting is not be certified as a means to satisfy of airplane. It is not a rule of general satisfactory for the range of lighting the requirements for descent below applicability. conditions encountered during a time- 100 feet height above touchdown The substance of these special critical, high workload phase of flight (HAT). conditions has been subjected to the (e.g., low visibility instrument —The EFVS may be used as a notice and comment period in several approach). supplemental device to enhance the prior instances and has been derived (c) A readily accessible control must pilot’s situational awareness during without substantive change from those be provided that permits the pilot to any phase of flight or operation in previously issued. It is unlikely that immediately deactivate and reactivate which its safe use has been prior public comment would result in a display of the EFVS image on demand established. significant change from the substance without removing the pilot’s hands from An EFVS image may provide an contained herein. Therefore, the FAA the primary flight controls (yoke or enhanced image of the scene that may has determined that prior public notice equivalent) or thrust control. compensate for any reduction in the and comment are unnecessary, and good (d) The EFVS image on the HUD must clear outside view of the visual field cause exists for adopting these special not impair the pilot’s use of guidance framed by the HUD combiner. The pilot conditions upon issuance. The FAA is information or degrade the presentation must be able to use this combination of requesting comments to allow interested and pilot awareness of essential flight information seen in the image and the persons to submit views that may not information displayed on the HUD, such natural view of the outside scene seen have been submitted in response to the as alerts, airspeed, attitude, altitude and through the image as safely and prior opportunities for comment direction, approach guidance, wind effectively as the pilot would use a described above. shear guidance, TCAS resolution

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advisories, unusual attitude recovery DEPARTMENT OF TRANSPORTATION approaches to CLE within the confines cues, etc. of Class B airspace and better segregate Federal Aviation Administration (e) The EFVS image and the HUD IFR aircraft arriving/departing CLE and symbols (which are spatially referenced non-participating VFR aircraft operating 14 CFR Part 71 in the vicinity of the Cleveland Class B to the pitch scale, outside view, and airspace area. image), must be scaled and aligned (i.e., [Docket No. FAA–2009–0514; Airspace Docket No. 07–AWA–1] Interested parties were invited to conformal) to the external scene. Also, participate in this rulemaking effort by when considered singly or in RIN 2120–AA66 submitting written comments on the combination, the EFVS image and HUD proposal. In response to the NPRM, the symbols must not be misleading, cause Amendment to Class B Airspace; FAA received 14 written comment pilot confusion, or increase workload. It Cleveland, OH submissions, including comments from should be noted that there may be AGENCY: Federal Aviation Aircraft Owners and Pilots Association airplane attitudes or cross-wind Administration (FAA), DOT. (AOPA) and the Soaring Society of conditions which cause certain symbols, ACTION: Final rule. America (SSA). Two comments received such as the zero-pitch line or flight path were duplicate documents submitted by vector, to reach field of view limits such SUMMARY: This action modifies the two different commenters. Many of the that they cannot be positioned Cleveland, OH, Class B airspace area by commenters identified themselves as conformally with the image and external expanding the existing airspace area to pilots who operate within, or through, scene. In such cases these symbols may ensure containment of all published the local area. All comments received be displayed, but with an altered instrument procedures and the aircraft were considered before making a appearance which makes the pilot flying those instrument procedures determination on the final rule. An aware that they are no longer displayed within Class B airspace, and segregation analysis of the comments received and the FAA’s responses are contained in conformally (e.g., ‘‘ghosting’’). of Instrument Flight Rules (IFR) aircraft arriving/departing Cleveland-Hopkins the ‘‘Discussion of Comments’’ section (f) A HUD system used to display International Airport (CLE) and non- below. EFVS images must, if previously participating Visual Flight Rules (VFR) Subsequent to the NPRM publication, certified, continue to meet all of the aircraft operating in the vicinity of the typographical errors were identified for requirements of the original approval. Cleveland Class B airspace area. The two geographic coordinates proposed in 3. The safety and performance of the additional Class B airspace will support the Area E description published in the pilot tasks associated with the pilot simultaneous arrival and departure regulatory text. The geographic coordinates that were published as ‘‘lat. compartment view must be not be operations under VFR conditions and 42°47′20″ N., long. 81°27′36″ W.’’ in the degraded by the display of the EFVS simultaneous IFR approaches during NPRM should have been ‘‘lat. 41°47′20″ image. Pilot tasks which must not be marginal VFR conditions using ° ′ ″ Precision Runway Monitor/ N., long. 81 27 36 W.’’, and the degraded by the EFVS image include: geographic coordinates that were Simultaneous Offset Instrument ° ′ ″ (a) Detection, accurate identification Approaches (PRM/SOIA). Geographic published as ‘‘lat. 42 40 43 N., long. and maneuvering, as necessary, to avoid 81°38′13″ W.’’ should have been ‘‘lat. coordinates listed in the description are ° ′ ″ ° ′ ″ traffic, terrain, obstacles, and other also updated to reflect current 41 40 43 N., long. 81 38 13 W.’’. The hazards of flight. aeronautical database information. This geographic coordinate errors are (b) Accurate identification and action enhances safety, improves the corrected in this action. utilization of visual references required flow of air traffic, and reduces the Discussion of Comments for every task relevant to the phase of potential for midair collision in the The AOPA cited the work of the FAA flight. Cleveland terminal area. in developing this rule. They support 4. Appropriate limitations must be DATES: Effective Date: 0901 UTC, April the proposed modifications and stated in the operating limitations 7, 2011. The Director of the Federal appreciate the common sense approach section of the airplane flight manual to Register approves this incorporation by the FAA adopted to include only that prohibit the use of the EFVS for reference action under 1 CFR part 51, airspace required for the containment of subject to the annual revision of FAA functions that have not been found to be arrivals and departures at CLE. Further, Order 7400.9 and publication of acceptable. AOPA applauded the FAA’s efforts to conforming amendments. address and mitigate concerns raised by Issued in Renton, Washington, on February FOR FURTHER INFORMATION CONTACT: general aviation pilots regarding access 3, 2011. Colby Abbott, Airspace, Regulations, to the airports affected by the redesign. Jeffrey E. Duven, and ATC Procedures Group, Office of Seven commenters objected to Acting Manager, Transport Airplane Airspace Services, Federal Aviation proposed Areas F and G. They argued Directorate, Aircraft Certification Service. Administration, 800 Independence the FAA proposed these areas [FR Doc. 2011–3214 Filed 2–11–11; 8:45 am] Avenue, SW., Washington, DC 20591; significantly larger than required or BILLING CODE 4910–13–P telephone: (202) 267–8783. presented previously. Six of the SUPPLEMENTARY INFORMATION: commenters wanted the lateral dimensions of the areas reduced to only History five nautical mile (NM) extensions in On April 20, 2010, the FAA published length by five NM in width. One in the Federal Register a notice of commenter argued that federal airways proposed rulemaking (NPRM) to modify are established with four NM lateral the Cleveland, OH, Class B airspace area widths from a radial of a navigation aid (75 FR 20528). The FAA proposed this and that the FAA should reduce the action to ensure containment of turbo- widths of the areas to four NM also. jet IFR aircraft conducting instrument Three commenters wanted Areas F and

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G eliminated altogether if the lateral those procedures at CLE within Class B from the altitude of other aircraft dimensions could not be reduced. And airspace, as well as segregate the IFR conducting simultaneous approaches. lastly, three commenters suggested the aircraft and non-participating VFR Air traffic control must continue to FAA define the boundaries of Areas F aircraft flying in the vicinity of the CLE maintain at least 1,000 feet vertical and G to coincide with visual landmarks Class B airspace area. separation between aircraft flying PRM/ to prevent inadvertent Class B airspace The FAA acknowledges the benefits SOIA procedures until they reach 14 violations. Unless changed, the of using visual landmarks for defining NM from CLE where the actively commenters believed the proposed airspace boundaries and does so when monitored No Transgression Zone Areas F and G would deteriorate safe possible. However, there are no between the approaches begins. flight operations beneath and in the prominent landmarks in the areas Specifically, during an east flow at CLE, vicinity of the Class B airspace needed to mark the lateral boundaries of aircraft will be turned onto and extension. Areas F and G. Using the landmarks that established on final approach courses at The FAA does not agree. For clarity, the commenters noted would not define 5,000 feet MSL and 7,000 feet MSL for the lateral dimensions of Areas F and G the minimum airspace needed as Runway 6L, and 6,000 feet MSL and as proposed in the NPRM are 10 NM in addressed above. Since there were no 8,000 feet MSL for Runway 6R. For both length, extending from the CLE Runway visual landmarks to define the runways, air traffic controllers may be 24L ILS/DME antenna (I–HPI) 20 NM boundaries of Areas F and G, the FAA sequencing aircraft from two or more arc to the I–HPI 30 NM arc. The areas used arcs and radials from existing CLE arrival streams, necessitating the use of are 6 NM in width, from the CLE navigation aids to define them. multiple altitudes in the arrival descent Runway 6R localizer (I–CLE) signal Eight commenters suggested the split areas, until lateral separation is extended to 6 NM north of the Runway floor altitudes proposed for Areas F and established. Under some projected 6L localizer (I–LIZ) signal extended for G (5,000 feet mean sea level (MSL) and traffic scenarios, multiple altitude Area F and from the I–CLE signal 6,000 feet MSL, respectively) would downwind patterns will be utilized, extended to 6 NM south of the Runway cause confusion and probably some with aircraft ‘‘layered’’ by altitude and 6R localizer (I–EYU) signal extended for inadvertent Class B airspace incursions. worked by separate controllers. As the Area G. These lateral dimensions were The commenters stated the split level boundary between Areas F and G is determined to be the absolute minimum proposed design still presented a safety based on the extended Runway 6R essential to control IFR aircraft arriving infringement to the glider operations at localizer I–CLE signal, the FAA from multiple arrival streams that are Reader-Botsford airport (67D) and continues to believe that Class B being sequenced in the traffic patterns offered multiple recommendations for incursions will not become an issue. for Precision Runway Monitor/ changing the floor altitudes to remedy Lastly, as noted in the NPRM, the Simultaneous Offset Instrument their concerns. Two commenters proposed Areas F and G are expected to Approaches (PRM/SOIA) procedures recommended raising the floor of Areas provide the gliders operating at 67D into CLE. The length of these areas F and G to 6,000 feet MSL and 7,000 feet with airspace supportive of their ensures the 15 to 18 percent of IFR MSL, respectively; two commenters operations while at the same time aircraft arrivals that currently enter, recommended making both floor ensuring the integrity of the CLE Class exit, and re-enter the CLE Class B altitudes 6,000 feet MSL; and three B airspace by containing all instrument airspace (as noted in the NPRM) are commenters recommended raising the procedures and the IFR aircraft flying fully contained within Class B airspace Area G floor only to 7,000 feet MSL. the procedures at CLE. once they enter the traffic patterns to The FAA does not agree and has Eleven commenters stated that intercept the final approach course and determined it is not possible to raise the establishing the proposed Areas F and G the PRM/SOIA procedures. During floor altitude of either area without extension would adversely affect flight periods of moderate and heavy traffic, impacting the operational efficiency of safety beneath and in the near vicinity aircraft may be turned onto the PRM/ the PRM/SOIA into CLE. Again, for of the extension. The safety concerns SOIA finals as far as 25 NM to 30 NM clarity, the vertical dimensions of Areas cited included compression of general from CLE, as is the case today. The F and G as proposed in the NPRM are aviation aircraft under the extension width of these areas ensures IFR arrival from 5,000 feet MSL to and including where gliders operate, increased aircraft conducting PRM/SOIA are 8,000 feet MSL for Area F and from potential for mid-air collisions, wake contained within Class B airspace while 6,000 feet MSL to and including 8,000 turbulence effects on gliders from heavy flying in the traffic patterns and are feet MSL for Area G. Initially, the Class aircraft arrivals on approach to CLE, and safely separated, in accordance with B airspace extension to the southwest in increased potential for off-field landings aircraft separation standards and the same airspace proposed as Areas F by glider pilots as a result of the guidance, between non-participating and G was designed as a single area extension overhead 67D. VFR aircraft that may be flying along the with a floor altitude of 5,000 feet MSL. The FAA acknowledges that some boundaries of Areas F and G and IFR After receiving public input from the ad compression will occur since non- aircraft flying the instrument approach hoc committee and public comments participating VFR general aviation and procedures to Runways 6L/6R. To following the informal airspace glider aircraft have their choice of flying reduce the lateral dimensions (length or meetings recommending the either above or below the Class B width) of the Areas F or G Class B configuration proposed, the subdivision airspace extension or circumnavigating airspace extensions would be and altitudes of the two areas were it further west to remain clear should impractical. proposed using the minimum amount of they decide not to contact the Cleveland For the same reasons as discussed airspace necessary to contain PRM/ Terminal Radar Approach Control above, the FAA has determined the SOIA procedures to Runways 6L/6R at (TRACON) facility to receive Class B request to consider eliminating Areas F CLE. services. However, establishing the and G if they cannot be reduced in size Aircraft flying PRM/SOIA procedures Class B airspace extensions is necessary, is also impractical. The extensions are cannot be assigned the same altitude consistent with regulatory guidance, to necessary in the interest of flight safety during turn-on to the final approach contain all instrument procedures and to contain all the instrument approach course; they must be assigned an the IFR turbo-jet aircraft flying the procedures and the IFR aircraft flying altitude that differs by at least 1,000 feet instrument approach procedures within

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Class B airspace, and to enhance flight Six commenters stated that the The FAA does not agree. The FAA is safety to all in the CLE terminal area by proposed Class B airspace Areas F and taking action to modify the current Class segregating the large turbo-jet aircraft G would establish Class B airspace B airspace area to contain all instrument and the non-participating VFR aircraft directly over the airspace Fun Country procedures at CLE and the aircraft flying operating in the vicinity of the CLE Soaring (FCS) currently flies in and those instrument procedures to and Class B airspace areas. would diminish safe glider operations. from CLE within Class B airspace, All aircraft operating beneath or in the The commenters argued that FCS would consistent with FAA directives, based vicinity of Areas F and G are expected be forced to consider shutting down its on the instrument approach and to continue to comply with the operation or relocating away from 67D. departure procedures in place today. regulatory requirements of Title 14 of The commenters further suggested that This action overcomes IFR aircraft the Code of Federal Regulations (14 the loss of FCS would create personal entering, exiting, and reentering the CLE CFR) § 91.111, titled Operating Near financial hardships and result in Class B airspace area while flying Other Aircraft, to avoid creating a financial impacts for the owner of 67D published instrument approach collision hazard with other aircraft and the town of Wellington, OH. procedures and the associated traffic operating in the same airspace. The FAA does not agree. As noted in patterns during arrival. Additionally, Additionally, all aircraft operating in the NPRM, the initial CLE Class B this action further enhance flight safety the same areas noted above are expected airspace extension extending to the by segregating IFR aircraft flying to continue complying with 14 CFR southwest was proposed from 5,000 feet instrument procedures into CLE and § 91.113, titled Right-of-Way Rules: MSL to 8,000 feet MSL. During the VFR aircraft operating in the vicinity of Except Water Operations, to ‘‘see and informal airspace meeting held in the CLE Class B airspace. The Class B avoid’’ other aircraft as well. The FAA Wellington, OH, a member of the glider airspace modifications in this rule believes that continued general aviation community suggested the airspace represent the minimum airspace needed and glider operator compliance with extension be split into a north section to reasonably accommodate the current established flight rules regulatory and a south section whereby the floor of operations, fleet mix, and existing flight requirements, and these two regulations the Class B airspace overlying 67D, tracks at CLE. specifically, will overcome the mid-air where the gliders operate, could be AOPA recommended the FAA collision and wake turbulence concerns raised to 6,000 feet MSL. This would consider raising the portion of Area B raised by the commenters. provide glider operators over 5,000 feet north of the shoreline over Lake Erie of airspace to maneuver and minimize from the existing 1,900 feet MSL to Lastly, the FAA acknowledges the impacts to glider operations at 67D. 3,000 feet MSL. A second commenter concerns of the glider community with Almost half of the comments received also requested the FAA lift the existing the establishment of Class B airspace following the informal airspace 1,900 feet MSL and 3,000 feet MSL overhead 67D. However, the design of meetings endorsed this Class B airspace floors over Lake Erie the Class B airspace extension to the recommendation, including the (Areas B and C, respectively), but did southwest of CLE was minimized to the comments received from the Village of not indicate an alternative altitude. Both absolute essential dimensions Wellington, OH, Administrator. The commenters stated that an alternative to operationally practical by incorporating FAA adopted this suggestion and raising the Class B floor altitudes over the recommendations made by the created Area F and Area G as proposed Lake Erie could be the addition of a VFR glider community participating on the in the NPRM. Again, since most glider flyway. The second commenter also ad hoc committee and as requested operations occur to the south and west requested the FAA establish a VFR during the informal airspace meetings. of 67D, the Areas F and G proposed in flyway between the eastern Cleveland Since the majority of glider operations the NPRM are expected to enable glider suburban airports, Cuyahoga County occur to the south and west of 67D and operations to continue with negligible Airport and Burke Lakefront Airport, the redesigned configuration of the impact to local area or cross-country and the greater Columbus and Class B airspace extension overlying flights. As such, the FCS operation at Cincinnati airports. 67D was raised to 6,000 feet MSL, the 67D is not expected to shut down or The FAA has determined it is not FAA believes impacts to local area or relocate and the financial impacts to the possible to raise the floor altitudes for cross-country glider flight operation at FCS members, owner of 67D, and town the CLE Class B airspace areas over Lake 67D will be negligible and off-field of Wellington, OH, that were alluded to Erie, as requested. No modifications landing will not be a factor. by the commenters responding to the were proposed for these areas as the The FAA has considered the safety NPRM, would be averted. existing airspace structure was deemed concerns cited above thoroughly and Seven commenters questioned the sufficient to continue supporting and determined they do not negate the need need for the proposed CLE Class B protecting IFR aircraft departing for this action. At the present time, large modifications in light of the United and Runways 6L/6R and VFR aircraft flying turbo-jet air carrier, general aviation, Continental airlines merger. They along the Lake Erie shoreline. Although and glider aircraft are flying suggested that the merger would include the commenters cited safety reasons as simultaneously in the airspace proposed considerable consolidation and the basis for their recommendation and to become Areas F and G, due to the reduction of routes resulting in a lower request, there are no known safety outdated design of the CLE Class B traffic volume at CLE; making the Class issues for that airspace today. The FAA airspace area. The traffic compression, B airspace expansion unnecessary. In recognizes that raising the CLE Class B mid-air collisions, effects of wake addition, one commenter stated further Areas B and C airspace floors over Lake turbulence on gliders, and off-field that if the proposed Class B airspace Erie would provide VFR pilots landings concerns raised by the extension areas were being used by air additional transit altitudes and airspace commenters all exist today. Moving carriers currently, then they did not see over Lake Erie to operate east and west forward with the Class B airspace the requirement to legislate the along the shoreline north of Cleveland. modifications in this action will exclusion of general aviation flyers by However, the Class B airspace in Areas enhance flight safety for all operators initiating this rulemaking action. In B and C protects the IFR aircraft flying within, through, or near the CLE essence they were, arguing this departing Runways 6L/6R climbing and Class B airspace area. rulemaking action was not needed. turning left over Lake Erie to transition

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to westbound routings and the VFR Areas F and G proposed in the NPRM the public. Additionally, glide slope aircraft flying in the vicinity of those differ from what was presented during angles above 3.1 degrees would result in Class B airspace areas from the IFR the informal airspace meetings. the loss of approach minimums for departures. Additionally, establishing However, the proposed Areas F and G category D and E aircraft. A 3 degree VFR flyways is not a regulatory action airspace published in the NPRM is the glide slope angle is the standard for and falls outside the scope of this rule. minimum necessary to reasonably safety, and increasing the angle of the As such, the commenters’ VFR flyway contain IFR arrival aircraft flying PRM/ glide slope is outside the scope of this recommendations are being provided to SOIA procedures to runways 6L and 6R, airspace rule. the Cleveland TRACON facility for their and the geographic coordinates Two commenters noted the consideration as appropriate, and are published accurately reflect these areas. dimensions of the airspace not addressed further in this action. With respect to the comments about the modifications [presumably Areas F and One commenter questioned the southern boundary of Area G, the G] proposed in the NPRM were different adequacy of the air traffic controller and commenters are correct that the from what the ad hoc committee radar resources to safely control and boundary is not parallel to the runway discussed. One of the commenters went separate the aircraft operating in the 6R centerline extended. The northern on to question whether the FAA had vicinity of the proposed Class B airspace and southern boundaries of the Area G published the airspace extension Areas E, F, and G. The commenter was are defined from different navigation descriptions in the NPRM with errors, specifically concerned that establishing aids. The northern boundary is defined while the other asserted that the passage the new Class B airspace extensions by the Runway 6R localizer (I–CLE) of time since the ad hoc committee without additional resources would signal extended, and the southern meeting in 2008 had diminished the increase the number of near mid-air boundary is defined 6 miles south and public’s awareness and participation in collisions occurring in the airspace parallel to the Runway 6R localizer (I– this proposed rulemaking. In addition, below the extensions due to increasing EYU) signal extended. This accounts for five commenters argued that the numbers of high performance aircraft the fact that the southern boundary of airspace modifications proposed in the skirting beneath the proposed Class B Area G is offset by 3 degrees and is not NPRM did not reflect the correct airspace extensions and impacting those parallel to the northern boundary. dimensions the users agreed would be a aircraft already flying there. One commenter requested the FAA workable revision. Two of these The FAA does not agree. Staffing and consider opening a ‘‘Window’’ into the commenters further argued they did not equipment resources are already in proposed Areas F and G to make that think it was proper or legal for the FAA place and adequate to support the CLE airspace available to glider pilots when to force what they consider to be Class B modifications and provide all CLE is landing on Runways 24L and unacceptable, unsafe restrictions on Class B services without impacting 24R. The commenter based their request pilots and air traffic by publishing safety or efficiency. The FAA does not on what they noted as the FAA’s incorrect information without re- expect either to be an issue for CLE. No practice of opening Windows into Class engaging the public forum. air traffic control facility airspace sector A airspace for glider operations under The FAA acknowledges that the changes will be required to handle the mountain wave conditions in Western dimensions of the Class B airspace Class B airspace modifications; hence, States. proposed in the NPRM are different the existing number of air traffic Air traffic control has the authority to from the initial airspace configuration controllers assigned is sufficient. authorize, on a case by case basis, dimensions discussed by the ad hoc Additionally, since there are no changes certain operations within Class B committee. However, the FAA does not to the current traffic flows associated airspace pursuant to the regulatory agree that the NPRM was published with this Class B modification action, requirements of 14 CFR part 91.131, with errors in the proposed airspace the existing radar sites, radar displays, Operations in Class B Airspace. extension descriptions, or that the navigation aids and communication Establishing operational procedures is public’s awareness and participation in equipment is also sufficient. However, not a regulatory action. As such, this the rulemaking process has been should circumstances arise that indicate commenter’s request for operational diminished. An ad hoc committee was a need for additional air traffic procedures is being provided to the formed to solicit local input on an controller or radar resources, action will Cleveland TRACON for further initial proposal and met in 2008 to be taken to obtain them. consideration as appropriate. develop recommendations to the FAA Three commenters stated that the One commenter recommended that a regarding the proposed design of the geographic coordinates [latitude/ steeper descent profile from the existing Class B airspace. The committee did not longitude] defining Areas F and G did 3 degree glide slopes at CLE be used so reach consensus on an airspace design, not coincide with the text of the NPRM as to enhance air carrier safety. The SSA but did recommend a variety of and needed to be redefined consistent was concerned that poor weather alternatives for the FAA to consider. In with the dimensions briefed at the descents, with reduced aircraft addition, as announced in the Federal informal airspace meetings. Two of performance in landing configurations, Register (73 FR 40446) on July 14, 2008, these commenters further noted that the could result in air carrier crashes not the FAA held Informal Airspace southern boundary of Area G was not being contained within airfield Meetings in the CLE local area on parallel with the Runway 6R centerline boundaries, risking the public and September 16 and September 17, 2008, extended as proof the coordinates were others. to inform users of the planned airspace in error. The FAA does not agree. Aircraft changes and to gather facts and The FAA does not agree. The accidents and crash sites are influenced information relevant to the proposed coordinates published in the NPRM by many factors, i.e. nature of the airspace action. A comment period regulatory text for defining Areas F and emergency, altitude, airspeed, weight, followed these informal airspace G were validated with the FAA’s phase of flight, distance from an airport, meetings to solicit comments or Aeronautical Navigation Procedures terrain, etc. Establishing steeper recommendations on the proposal from Group and found to be correct and instrument approach descent profiles the public. Finally, the NPRM was consistent with the text published in the does not necessarily equate to a safer published in the Federal Register (75 NPRM. The FAA acknowledges that approach into an airport or less risk to FR 20528) on April 20, 2010, to again

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inform users of the proposed airspace operations; which reflect the IFR and extends from the existing Area D changes and provide a 60 day period for VFR arrivals, departures, and local boundary defined by the 20-mile arc of users to submit comments or operations at the airport only. It does I–HPI to the 30-mile arc of I–HPI. The recommendations on the proposal. All not account for any overflight northern boundary of this area is 6 miles comments received were considered operations flying in the vicinity of CLE north and parallel to the Runway 24R prior to the FAA’s determination in this that contribute to the traffic density or localizer (I–PVY) signal extended, and final rule action. operational complexity. the southern boundary is 6 miles south The development of the CLE Class B As noted in the NPRM, the procedural and parallel to the Runway 24L localizer airspace modification was a dynamic, requirements for using PRM/SOIA to (I–FVZ) signal extended. This new area iterative process of informing the public establish aircraft on final at least 15 is established with the floor extending of the proposed airspace action, miles from CLE result in aircraft upward from 5,000 feet MSL to and receiving comments and exceeding the lateral boundaries of the including 8,000 feet MSL, overlying the recommendations from the public, and current Class B airspace by up to 10 Willoughby Lost Nation Airport in considering the operational miles during moderate levels of air Willoughby, OH. The effect of this new requirements in concert with public traffic. Based on the total terminal area ensures IFR aircraft flying comments and recommendations operations figures above and the instrument approaches to runways 24L received. The comments and existing IFR traffic flows in the vicinity and 24R are contained within Class B recommendations received from the ad of CLE, the FAA has determined the airspace throughout the approach, hoc committee were considered by the proposed Class B airspace area segregates IFR aircraft arriving CLE and FAA in developing the proposed modifications are justified and non-participating VFR aircraft operating airspace action presented at the necessary. The Class B airspace in the vicinity of the Cleveland Class B informal airspace meetings, and the extensions will enhance flight safety by airspace area, and provides airspace public’s comments and containing all instrument procedures below and above this area for non- recommendations received following and the aircraft flying the instrument participating VFR aircraft operations the informal airspace meetings were approach procedures within Class B outside of Class B airspace. considered in the development of the airspace and ensuring the segregation of Area F. Area F is established to the proposed airspace action presented in IFR aircraft arriving/departing CLE and southwest of CLE. This modification the NPRM. As such, the proposed Class VFR general aviation and glider aircraft extends from the existing Area D B airspace extension (Areas F and G) operating in the vicinity of the boundary defined by the 20-mile arc of descriptions in the NPRM were not Cleveland Class B airspace area. I–HPI to the 30-mile arc of I–HPI. The published with errors and the public’s northern boundary is 6 miles north and The Rule awareness and participation in this parallel to the Runway 6L localizer (I– rulemaking action has not been The FAA is amending 14 CFR part 71 LIZ) signal extended, and the southern diminished with the passage of time. to modify the Cleveland, OH, Class B boundary is defined by the Runway 6R One commenter questioned the total airspace area. This action (depicted on localizer (I–CLE) signal extended. This operations figure of 550,171 for CLE in the attached chart) administratively new area is established with the floor 2008 that was cited in the Federal corrects one area within the existing extending upward from 5,000 feet MSL Register (75 FR 20528) notice. The Cleveland Class B airspace area and to and including 8,000 feet MSL, commenter stated he was unable to find establishes two airspace extensions (the overlying to the north and west of any traffic numbers near the figure first, Area E, to the northeast, and the Wellington, OH. Similar to the effect of presented, but did find a 200,268 total second, defined by Areas F and G, to the Area E, this new area [with Area G operations statistic for 2009 provided by southwest) in order to provide described below] ensures IFR aircraft the Hopkins International Airport additional airspace needed to contain flying instrument approaches to website, as well as a Department of IFR aircraft conducting instrument runways 6L and 6R are contained Transportation statistic that showed approach operations within Class B within Class B airspace throughout the 104,823 total departures for CLE in airspace once they have entered it and approach, segregates IFR aircraft 2008. The commenter further to better segregate the IFR aircraft arriving CLE and non-participating VFR questioned that with actual traffic arriving/departing CLE and the non- aircraft operating in the vicinity of the numbers less than half of the volume participating VFR aircraft operating in Cleveland Class B airspace area, and cited in the NPRM summary was the the vicinity of the Cleveland Class B provides airspace below and above this proposed change to the airspace really airspace area. The modifications to the area for VFR aircraft operations outside justified? Cleveland Class B airspace area are of Class B airspace. The FAA source for the 550,171 total discussed below. Area G. Area G is established to the operations for CLE in 2008 cited in the Areas A, C, and D. Areas A, C, and D southwest of CLE also. This background section of the NPRM comes are unchanged by this action. modification extends from the existing from the Air Traffic Activity Data Area B. The FAA is correcting the Area D boundary defined by the 20-mile Systems (ATADS). The FAA’s ATADS legal description for Area B by removing arc of I–HPI to the 30-mile arc of I–HPI. contains the official National Airspace the portion that excludes the airspace The northern boundary is defined by the System (NAS) air traffic operations data within a 2-mile radius of Burke Runway 6R localizer (I–CLE) signal available for public release. The total Lakefront Airport. The Class B airspace extended, and the southern boundary is operations figure cited in the NPRM is within Area B does not overlap the defined 6 miles south and parallel to the in fact the total terminal operations for airspace contained within a 2-mile Runway 6R localizer (I–EYU) signal CLE; which is the sum of the tower radius of the Burke Lakefront Airport. extended. This new area is established operations (240,340) and the TRACON Therefore, the Area B exclusion with the floor extending upward from operations (309,831) using the language addressing the airspace within 6,000 feet MSL to and including 8,000 Cleveland Class B airspace area. The a 2-mile radius of Burke Lakefront feet MSL, overlying the Reader-Botsford total operations figure the commenter Airport is unnecessary. Airport in Wellington, OH. Similar to cited from the Hopkins International Area E. Area E is established to the the effect of Areas E and F, this new area Airport website is the total airport northeast of CLE. This modification (with Area F described above) ensures

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IFR aircraft flying instrument rules that include a Federal mandate governmental jurisdictions subject to approaches to runways 6L and 6R are likely to result in the expenditure by regulation. To achieve this principle, contained within Class B airspace State, local, or tribal governments, in the agencies are required to solicit and throughout the approach, segregates IFR aggregate, or by the private sector, of consider flexible regulatory proposals aircraft arriving CLE and non- $100 million or more annually (adjusted and to explain the rationale for their participating VFR aircraft operating in for inflation with base year of 1995). actions to assure that such proposals are the vicinity of the Cleveland Class B This portion of the preamble given serious consideration.’’ The RFA airspace area, and provides airspace summarizes the FAA’s analysis of the covers a wide-range of small entities, below and above this area for VFR economic impacts of this final rule. including small businesses, not-for- aircraft operations outside of Class B Department of Transportation Order profit organizations, and small airspace. DOT 2100.5 prescribes policies and governmental jurisdictions. Additionally, this action updates the procedures for simplification, analysis, Agencies must perform a review to CLE airport reference point and the CLE and review of regulations. If the determine whether a rule will have a Runway 24L ILS/DME antenna (I–HPI) expected cost impact is so minimal that significant economic impact on a geographic coordinates listed in the a proposed or final rule does not substantial number of small entities. If airspace designation of the Cleveland warrant a full evaluation, this order the agency determines that it will, the Class B airspace area to reflect current permits that a statement to that effect agency must prepare a regulatory NAS aeronautical data. and the basis for it be included in the flexibility analysis as described in the preamble if a full regulatory evaluation RFA. However, if an agency determines Environmental Review of the cost and benefits is not prepared. that a rule is not expected to have a The FAA has determined that this Such a determination has been made for significant economic impact on a action qualifies for categorical exclusion this final rule. The reasoning for this substantial number of small entities, under the National Environmental determination follows. section 605(b) of the RFA provides that Policy Act in accordance with FAA This final rule enhances safety by the head of the agency may so certify Order 1050.1E, ‘‘Environmental Impacts: improving the flow of air traffic, and and a regulatory flexibility analysis is Policies and Procedures,’’ paragraph reducing the potential for midair not required. The certification must 311a. This airspace action is not collision in the Cleveland terminal area. include a statement providing the expected to cause any potentially In the NPRM, we concluded that the factual basis for this determination, and significant environmental impacts, and benefits of the proposed rule exceeded the reasoning should be clear. no extraordinary circumstances exist any minimal cost associated with the Our initial determination was that the that warrant preparation of an requirements. One commenter indicated rule would not have a significant environmental assessment. that a soaring club would be forced to economic impact on a substantial consider shutting down or relocating number of small entities. One Paperwork Reduction Act operations as a result of the proposal. commenter indicated that a soaring club The Paperwork Reduction Act of 1995 The company may decide not to relocate would be affected as a result of the (44 U.S.C. 3507(d)) requires that the which would result in no additional proposal. We agree that, if a company FAA consider the impact of paperwork costs. If a company changes locations, changes locations, there would be some and other information collection there would be relocation costs. relocation cost. However, because we burdens imposed on the public. We However, as explained earlier, the final have incorporated the recommendations have determined that there is no new rule will continue to allow glider of affected individuals into the information collection requirement operations resulting in only a minimal requirements, and we expect operations associated with this final rule. impact. to continue, there will be minimal Regulatory Evaluation Summary The FAA has determined establishing economic impact. As such, this final these requirements are essential to rule will not have a significant Changes to Federal regulations must ensure flight safety and efficiency of the economic impact on a substantial undergo several economic analyses. NAS in the CLE terminal airspace. Due number of small entities because the First, Executive Order 12866 directs that to the efficiency and safety benefits, and economic impact is expected to be each Federal agency shall propose or because we have incorporated the minimal. adopt a regulation only upon a reasoned recommendations of affected Therefore, the FAA Administrator determination that the benefits of the individuals into the requirements, there certifies that this final rule will not have intended regulation justify its costs. will only be minimal economic cost a significant economic impact on a Second, the Regulatory Flexibility Act with substantial positive net benefits. substantial number of small entities. of 1980 (Pub. L. 96–354) requires The FAA has, therefore, determined International Trade Impact Assessment agencies to analyze the economic that this final rule is not a ‘‘significant impact of regulatory changes on small regulatory action’’ as defined in section The Trade Agreements Act of 1979 entities. Third, the Trade Agreements 3(f) of Executive Order 12866, and is not (Pub. L. 96–39), as amended by the Act (Pub. L. 96–39) prohibits agencies ‘‘significant’’ as defined in DOT’s Uruguay Round Agreements Act (Pub. from setting standards that create Regulatory Policies and Procedures. L. 103–465), prohibits Federal agencies unnecessary obstacles to the foreign from establishing standards or engaging commerce of the United States. In Final Regulatory Flexibility in related activities that create developing U.S. standards, the Trade Determination unnecessary obstacles to the foreign Act requires agencies to consider The Regulatory Flexibility Act of 1980 commerce of the United States. international standards and, where (Pub. L. 96–354) (RFA) establishes ‘‘as a Pursuant to these Acts, the appropriate, that they be the basis of principle of regulatory issuance that establishment of standards is not U.S. standards. Fourth, the Unfunded agencies shall endeavor, consistent with considered an unnecessary obstacle to Mandates Reform Act of 1995 (Pub. L. the objectives of the rule and of the foreign commerce of the United 104–4) requires agencies to prepare a applicable statutes, to fit regulatory and States, so long as the standard has a written assessment of the costs, benefits, informational requirements to the scale legitimate domestic objective, such as and other effects of proposed or final of the businesses, organizations, and the protection of safety, and does not

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operate in a manner that excludes PART 71—DESIGNATION OF CLASS A, Area C. That airspace extending upward imports that meet this objective. The B, C, D, AND E AIRSPACE AREAS; AIR from 3,000 feet MSL to and including 8,000 statute also requires consideration of TRAFFIC SERVICE ROUTES; AND feet MSL within a 15-mile radius of I–HPI, international standards and, where REPORTING POINTS excluding Areas A and B previously described. appropriate, that they be the basis for ■ Area D. That airspace extending upward U.S. standards. The FAA has assessed 1. The authority citation for part 71 continues to read as follows: from 4,000 feet MSL to and including 8,000 the effect of this final rule and feet MSL within a 20-mile radius of I–HPI, determined that it will enhance safety Authority: 49 U.S.C. 106(g), 40103, 40113, excluding Areas A, B, and C previously 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– and is not considered an unnecessary described. 1963 Comp., p.389. obstacle to trade. Area E. That airspace extending upward § 71.1 [Amended] from 5,000 feet MSL to and including 8,000 Unfunded Mandates Assessment ° ′ ″ ■ feet MSL starting at point lat. 41 30 41 N., 2. The incorporation by reference in long. 81°27′22″ W., then northeast to point Title II of the Unfunded Mandates 14 CFR 71.1 of the Federal Aviation lat. 41°37′00″ N., long. 81°16′29″ W., then Reform Act of 1995 (Pub. L. 104–4) Administration Order 7400.9U, northwest along the 30-mile arc of I–HPI to requires each Federal agency to prepare Airspace Designations and Reporting point lat. 41°47′20″ N., long. 81°27′36″ W., a written statement assessing the effects Points, dated August 18, 2010, and then southwest to point lat. 41°40′43″ N., of any Federal mandate in a proposed or effective September 15, 2010, is long. 81°38′13″ W., then southeast along the final agency rule that may result in an amended as follows: 20-mile arc of I–HPI to the point of expenditure of $100 million or more (in Paragraph 3000 Subpart B—Class B beginning. 1995 dollars) in any one year by State, airspace Area F. That airspace extending upward local, and tribal governments, in the from 5,000 feet MSL to and including 8,000 * * * * * feet MSL starting at point lat. 41°16′17″ N., aggregate, or by the private sector; such AGL OH B Cleveland, OH [Modified] long. 82°16′56″ W., then southwest to point a mandate is deemed to be a ‘‘significant lat. 41°09′35″ N., long. 82°27′23″ W., then regulatory action.’’ The FAA currently Cleveland-Hopkins International Airport (Primary Airport) southeast along the 30-mile arc of I–HPI to ° ′ ″ ° ′ ″ uses an inflation-adjusted value of (Lat. 41°24′34″ N., long. 81°51′18″ W.) point lat. 41 04 24 N., long. 82 22 43 W., $143.1 million in lieu of $100 million. Cleveland-Hopkins International Airport then northeast to point lat. 41°10′52″ N., This final rule does not contain such a Runway 24L ILS/DME Antenna (I–HPI) long. 82°12′37″ W., then northwest along the mandate; therefore, the requirements of (Lat. 41°23′44″ N., long. 81°52′18″ W.) 20-mile arc of I–HPI to the point of Title II of the Act do not apply. Gilbert Airport (Pvt) beginning. (Lat. 41°22′00″ N., long. 81°58′00″ W.) Area G. That airspace extending upward List of Subjects in 14 CFR Part 71 Boundaries from 6,000 feet MSL to and including 8,000 feet MSL starting at point lat. 41°06′13″ N., Airspace, Incorporation by reference, Area A. That airspace extending upward long. 82°05′07″ W., then southwest to point from the surface to and including 8,000 feet Navigation (air). lat. 40°59′08″ N., long. 82°15′03″ W., then MSL within a 5-mile radius of I–HPI, northwest along the 30-mile arc of I–HPI to excluding that airspace within a 1-mile The Amendment point lat. 41°04′24″ N., long. 82°22′43″ W., radius of Gilbert Airport. ° ′ ″ Area B. That airspace extending upward then northeast to point lat. 41 10 52 N, long. In consideration of the foregoing, the ° ′ ″ Federal Aviation Administration from 1,900 feet MSL to and including 8,000 82 12 37 W, then southeast along the 20- mile arc of I–HPI to the point of beginning. amends 14 CFR part 71 as follows: feet MSL within an 8.5-mile radius of I–HPI, excluding Area A previously described. BILLING CODE–P

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BILLING CODE C Minimums and Obstacle Departure ADDRESSES: Availability of matter Issued in Washington, DC, on February 7, Procedures for operations at certain incorporated by reference in the 2011. airports. These regulatory actions are amendment is as follows: Edith V. Parish, needed because of the adoption of new For Examination— Manager, Airspace, Regulations and ATC or revised criteria, or because of changes 1. FAA Rules Docket, FAA Procedures Group. occurring in the National Airspace Headquarters Building, 800 [FR Doc. 2011–3211 Filed 2–11–11; 8:45 am] System, such as the commissioning of Independence Avenue, SW., BILLING CODE P new navigational facilities, adding new Washington, DC 20591; obstacles, or changing air traffic 2. The FAA Regional Office of the requirements. These changes are region in which the affected airport is DEPARTMENT OF TRANSPORTATION designed to provide safe and efficient located; 3. The National Flight Procedures 14 CFR Part 97 use of the navigable airspace and to promote safe flight operations under Office, 6500 South MacArthur Blvd., [Docket No. 30768; Amdt. No. 3413] instrument flight rules at the affected Oklahoma City, OK 73169 or airports. 4. The National Archives and Records Standard Instrument Approach Administration (NARA). For Procedures, and Takeoff Minimums DATES: This rule is effective February information on the availability of this and Obstacle Departure Procedures; 14, 2011. The compliance date for each material at NARA, call 202–741–6030, Miscellaneous Amendments SIAP, associated Takeoff Minimums, or go to: http://www.archives.gov/ _ AGENCY: Federal Aviation and ODP is specified in the amendatory federal register/ _ _ _ Administration (FAA), DOT. provisions. code of federal regulations/ ibr_locations.html. ACTION: Final rule. The incorporation by reference of certain publications listed in the Availability—All SIAPs are available SUMMARY: This rule establishes, amends, regulations is approved by the Director online free of charge. Visit nfdc.faa.gov suspends, or revokes Standard of the Federal Register as of February to register. Additionally, individual Instrument Approach Procedures 14, 2011. SIAP and Takeoff Minimums and ODP (SIAPs) and associated Takeoff copies may be obtained from:

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1. FAA Public Inquiry Center (APA– The Rule so minimal. For the same reason, the 200), FAA Headquarters Building, 800 This amendment to 14 CFR part 97 is FAA certifies that this amendment will Independence Avenue, SW., effective upon publication of each not have a significant economic impact Washington, DC 20591; or separate SIAP as amended in the on a substantial number of small entities 2. The FAA Regional Office of the transmittal. For safety and timeliness of under the criteria of the Regulatory region in which the affected airport is change considerations, this amendment Flexibility Act. located. incorporates only specific changes List of Subjects in 14 CFR Part 97 FOR FURTHER INFORMATION CONTACT: contained for each SIAP as modified by Harry J. Hodges, Flight Procedure FDC/P–NOTAMs. Air Traffic Control, Airports, Standards Branch (AFS–420) Flight The SIAPs, as modified by FDC P– Incorporation by reference, and Technologies and Programs Division, NOTAM, and contained in this Navigation (Air). Flight Standards Service, Federal amendment are based on the criteria Issued in Washington, DC on February 4, Aviation Administration, Mike contained in the U.S. Standard for 2011. Monroney Aeronautical Center, 6500 Terminal Instrument Procedures South MacArthur Blvd., Oklahoma City, (TERPS). In developing these changes to John McGraw, OK 73169 (Mail Address: P.O. Box SIAPs, the TERPS criteria were applied Deputy Director, Flight Standards Service. 25082 Oklahoma City, OK 73125) only to specific conditions existing at Adoption of the Amendment telephone: (405) 954–4164. the affected airports. All SIAP SUPPLEMENTARY INFORMATION: This rule amendments in this rule have been Accordingly, pursuant to the amends Title 14, Code of Federal previously issued by the FAA in a FDC authority delegated to me, Title 14, Regulations, part 97 (14 CFR part 97) by NOTAM as an emergency action of Code of Federal Regulations, part 97, 14 amending the referenced SIAPs. The immediate flight safety relating directly CFR part 97, is amended by amending complete regulatory description of each to published aeronautical charts. The Standard Instrument Approach SIAP is listed on the appropriate FAA circumstances which created the need Procedures, effective at 0901 UTC on Form 8260, as modified by the National for all these SIAP amendments requires the dates specified, as follows: Flight Data Center (FDC)/Permanent making them effective in less than 30 Notice to Airmen (P–NOTAM), and is days. PART 97—STANDARD INSTRUMENT incorporated by reference in the Because of the close and immediate APPROACH PROCEDURES amendment under 5 U.S.C. 552(a), 1 relationship between these SIAPs and CFR part 51, and § 97.20 of Title 14 of safety in air commerce, I find that notice ■ 1. The authority citation for part 97 the Code of Federal Regulations. and public procedure before adopting continues to read as follows: The large number of SIAPs, their these SIAPs are impracticable and Authority: 49 U.S.C. 106(g), 40103, 40106, complex nature, and the need for a contrary to the public interest and, 40113, 40114, 40120, 44502, 44514, 44701, special format make their verbatim where applicable, that good cause exists 44719, 44721–44722. publication in the Federal Register for making these SIAPs effective in less expensive and impractical. Further, than 30 days. ■ 2. Part 97 is amended to read as airmen do not use the regulatory text of follows: the SIAPs, but refer to their graphic Conclusion depiction on charts printed by The FAA has determined that this §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, publishers of aeronautical materials. regulation only involves an established and 97.35 [Amended] body of technical regulations for which Thus, the advantages of incorporation By amending: § 97.23 VOR, VOR/ frequent and routine amendments are by reference are realized and DME, VOR or TACAN, and VOR/DME necessary to keep them operationally publication of the complete description or TACAN; § 97.25 LOC, LOC/DME, current. It, therefore—(1) is not a of each SIAP contained in FAA form LDA, LDA/DME, SDF, SDF/DME; ‘‘significant regulatory action’’ under documents is unnecessary. This § 97.27 NDB, NDB/DME; § 97.29 ILS, Executive Order 12866; (2) is not a amendment provides the affected CFR ILS/DME, MLS, MLS/DME, MLS/RNAV; ‘‘significant rule’’ under DOT regulatory sections and specifies the types of SIAP § 97.31 RADAR SIAPs; § 97.33 RNAV Policies and Procedures (44 FR 11034; and the corresponding effective dates. SIAPs; and § 97.35 COPTER SIAPs, February 26, 1979); and (3) does not This amendment also identifies the Identified as follows: airport and its location, the procedure warrant preparation of a regulatory and the amendment number. evaluation as the anticipated impact is * * * Effective Upon Publication

AIRAC date State City Airport FDC No. FDC date Subject

10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2077 1/26/11 RADAR–1, Amdt 17 10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2078 1/26/11 ILS OR LOC RWY 22R, Amdt 2 10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2079 1/26/11 VOR A, Orig-B 10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2080 1/26/11 ILS OR LOC RWY 4R, Amdt 2 10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2081 1/26/11 ILS OR LOC RWY 22L, Orig 10–Mar–11 ... AR Little Rock ...... Adams Field ...... 0/2084 1/26/11 ILS OR LOC RWY 4L, Amdt 25C 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3721 1/5/11 RNAV (GPS) RWY 14, Orig-A Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3722 1/5/11 RNAV (GPS) RWY 5, Orig Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3723 1/5/11 LOC BC RWY 23, Amdt 19 Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3724 1/5/11 VOR RWY 23, Amdt 20A Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3725 1/5/11 ILS OR LOC RWY 5, Amdt 22E Field.

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AIRAC date State City Airport FDC No. FDC date Subject

10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3726 1/5/11 RNAV (GPS) RWY 32, Orig-A Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3727 1/5/11 RADAR–1, Amdt 4 Field. 10–Mar–11 ... IN Terre Haute ...... Terre Haute Intl—Hulman 0/3729 1/5/11 RNAV (GPS) RWY 23, Orig Field. 10–Mar–11 ... MN Rochester ...... Rochester Intl ...... 0/3831 1/3/11 ILS OR LOC RWY 31, Amdt 22 10–Mar–11 ... MA Provincetown ...... Provincetown Muni ...... 1/0137 1/4/11 RNAV (GPS) RWY 7, Orig-B 10–Mar–11 ... GA Atlanta ...... Hartsfield-Jackson Atlanta Intl 1/0138 1/4/11 ILS PRM RWY 27R (Sim. Close Parallel), Orig 10–Mar–11 ... WV Petersburg ...... Grant County ...... 1/0140 1/4/11 GPS RWY 31, Amdt 1 10–Mar–11 ... FL Orlando ...... Orlando Intl...... 1/0142 1/4/11 ILS OR LOC RWY 35L, ILS RWY 35L (CAT II), ILS RWY 35L (CAT III), Amdt 6 10–Mar–11 ... TN Memphis ...... Memphis Intl ...... 1/0148 1/4/11 ILS OR LOC RWY 27, Amdt 3 10–Mar–11 ... TN Memphis ...... Memphis Intl ...... 1/0149 1/4/11 ILS OR LOC RWY 9, Amdt 27 10–Mar–11 ... TN Memphis ...... Memphis Intl ...... 1/0150 1/4/11 ILS OR LOC RWY 18L, Amdt 2 10–Mar–11 ... TN Memphis ...... Memphis Intl...... 1/0178 1/6/11 ILS OR LOC RWY 36C, ILS RWY 36C (CAT II), ILS RWY 36C (CAT III), Amdt 3 10–Mar–11 ... TN Memphis ...... Memphis Intl...... 1/0179 1/6/11 ILS OR LOC RWY 36L, ILS RWY 36L (CAT II), ILS RWY 36L (CAT III), Amdt 14 10–Mar–11 ... TN Memphis ...... Memphis Intl...... 1/0180 1/6/11 ILS OR LOC RWY 36R, ILS RWY 36R (CAT II), ILS RWY 36R (CAT III), Amdt 3 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0188 1/4/11 RNAV (GPS) RWY 36, Amdt 1D 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0189 1/4/11 ILS OR LOC RWY 36, Amdt 6D 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0190 1/4/11 NDB RWY 36, Amdt 5C 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0191 1/4/11 VOR RWY 36, Amdt 16B 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0192 1/4/11 VOR RWY 27, Amdt 4B 10–Mar–11 ... WI Oshkosh ...... Wittman Rgnl ...... 1/0193 1/4/11 LOC/DME BC RWY 18, Amdt 6B 10–Mar–11 ... AR De Queen ...... J Lynn Helms Sevier County .. 1/0559 1/7/11 RNAV (GPS) RWY 8, Orig 10–Mar–11 ... SD Sioux Falls ...... Joe Foss Field ...... 1/0728 1/18/11 RNAV (GPS) RWY 21, Orig-B 10–Mar–11 ... SD Sioux Falls ...... Joe Foss Field ...... 1/0735 1/18/11 VOR/DME OR TACAN RWY 33, Amdt 12A 10–Mar–11 ... AR De Queen ...... J Lynn Helms Sevier County .. 1/0739 1/10/11 Takeoff Minimums and Obstacle DP, Amdt 1 10–Mar–11 ... MO Trenton ...... Trenton Muni ...... 1/0740 1/18/11 NDB RWY 36, Amdt 9A 10–Mar–11 ... AR Paragould ...... Kirk Field ...... 1/0742 1/10/11 NDB RWY 22, Amdt 1 10–Mar–11 ... WI Wausau ...... Wausau Downtown ...... 1/0747 1/10/11 RNAV (GPS) RWY 12, Orig 10–Mar–11 ... AR Heber Springs ...... Heber Springs Muni ...... 1/0749 1/18/11 RNAV (GPS) RWY 23, Orig 10–Mar–11 ... WI Wausau ...... Wausau Downtown ...... 1/0750 1/10/11 NDB OR GPS B, Orig 10–Mar–11 ... IL Chicago ...... Chicago-O’Hare Intl ...... 1/0754 1/10/11 ILS OR LOC RWY 22L, Amdt 4H 10–Mar–11 ... WI Marshfield ...... Marshfield Muni ...... 1/0755 1/26/11 NDB RWY 16, Amdt 9A 10–Mar–11 ... NE Lincoln ...... Lincoln ...... 1/0789 1/10/11 ILS OR LOC RWY 18, Amdt 6E 10–Mar–11 ... NE Lincoln ...... Lincoln ...... 1/0790 1/10/11 RNAV (GPS) RWY 14, Orig 10–Mar–11 ... AL Tuscaloosa ...... Tuscaloosa Rgnl ...... 1/0841 1/18/11 Takeoff Minimums and Obstacle DP, Amdt 2 10–Mar–11 ... WI Marshfield ...... Marshfield Muni ...... 1/0912 1/26/11 NDB OR GPS RWY 4, Amdt 13A 10–Mar–11 ... AR Rogers ...... Rogers Muni-Carter Field ...... 1/0913 1/26/11 Takeoff Minimums and Obstacle DP, Orig 10–Mar–11 ... AR Texarkana ...... Texarkana Rgnl-Webb Field ... 1/0914 1/19/11 RNAV (GPS) RWY 31, Orig-A 10–Mar–11 ... IN New Castle ...... New Castle-Henry Co Muni .... 1/0915 1/19/11 NDB OR GPS RWY 9, Amdt 5A 10–Mar–11 ... IN New Castle ...... New Castle-Henry Co Muni .... 1/0916 1/19/11 NDB RWY 27, Amdt 5 10–Mar–11 ... IL Urbana ...... Frasca Field ...... 1/1096 1/18/11 VOR/DME OR GPS B, Amdt 6 10–Mar–11 ... IL Urbana ...... Frasca Field ...... 1/1097 1/18/11 VOR OR GPS A, Amdt 11 10–Mar–11 ... VA Franklin ...... Franklin Muni-John Beverly 1/1120 1/18/11 RNAV (GPS) RWY 9, Orig Rose. 10–Mar–11 ... VA Franklin ...... Franklin Muni-John Beverly 1/1121 1/18/11 VOR RWY 9, Amdt 14B Rose. 10–Mar–11 ... VA Franklin ...... Franklin Muni-John Beverly 1/1122 1/18/11 VOR/DME RWY 27, Amdt 9E Rose. 10–Mar–11 ... VA Franklin ...... Franklin Muni-John Beverly 1/1123 1/18/11 RNAV (GPS) RWY 27, Orig-A Rose. 10–Mar–11 ... GA Hampton ...... Clayton County—Tara Field .... 1/1176 1/14/11 RNAV (GPS) RWY 6, Orig 10–Mar–11 ... IA Webster City...... Webster City Muni...... 1/1309 1/18/11 VOR/DME OR GPS RWY 14, Amdt 4 10–Mar–11 ... WI Hayward ...... Sawyer County ...... 1/1310 1/18/11 RNAV (GPS) RWY 2, Orig-A 10–Mar–11 ... IA Hampton ...... Hampton Muni ...... 1/1312 1/18/11 Takeoff Minimums and Obstacle DP, Amdt 3 10–Mar–11 ... IA Hampton ...... Hampton Muni ...... 1/1313 1/18/11 VOR/DME RWY 35, Amdt 1B 10–Mar–11 ... IA Hampton ...... Hampton Muni ...... 1/1314 1/18/11 RNAV (GPS) RWY 35, Orig 10–Mar–11 ... IA Hampton ...... Hampton Muni ...... 1/1315 1/18/11 RNAV (GPS) RWY 17, Orig

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AIRAC date State City Airport FDC No. FDC date Subject

10–Mar–11 ... IA Hampton ...... Hampton Muni ...... 1/1316 1/18/11 NDB RWY 17, Amdt 4A 10–Mar–11 ... IL Centralia ...... Centralia Muni ...... 1/1318 1/18/11 RNAV (GPS) RWY 36, Orig 10–Mar–11 ... IL Centralia ...... Centralia Muni ...... 1/1322 1/18/11 RNAV (GPS) RWY 18, Orig 10–Mar–11 ... NE Scottsbluff ...... Western Neb. Rgnl/William B. 1/1358 1/19/11 ILS OR LOC/DME RWY 12, Orig Heilig Field. 10–Mar–11 ... NE Crete ...... Crete Muni ...... 1/1437 1/18/11 VOR/DME RWY 35, Amdt 3B 10–Mar–11 ... MI Lakeview ...... Lakeview Airport—Griffith Field 1/1547 1/18/11 GPS RWY 27, Orig 10–Mar–11 ... MI Lakeview ...... Lakeview Airport—Griffith Field 1/1550 1/18/11 GPS RWY 9, Orig 10–Mar–11 ... VA Warrenton ...... Warrenton-Fauquier ...... 1/1693 1/14/11 RNAV (GPS) RWY 15, Orig 10–Mar–11 ... VA Warrenton ...... Warrenton-Fauquier ...... 1/1694 1/14/11 VOR RWY 15, Amdt 4 10–Mar–11 ... TN Memphis ...... Memphis Intl ...... 1/1695 1/14/11 RNAV (GPS) RWY 36C, Amdt 1 10–Mar–11 ... NC Oak Island ...... Brunswick County ...... 1/1790 1/14/11 Takeoff Minimums and Obstacle DP, Orig 10–Mar–11 ... FL Brooksville ...... Hernando County ...... 1/1798 1/19/11 ILS RWY 9, Amdt 2A 10–Mar–11 ... FL St. Petersburg ...... Albert Whitted ...... 1/1879 1/14/11 RNAV (GPS) RWY 18, Orig-A 10–Mar–11 ... OH Hillsboro ...... Highland County ...... 1/1889 1/14/11 NDB OR GPS RWY 23, Amdt 4 10–Mar–11 ... LA Bastrop ...... Morehouse Memorial ...... 1/1893 1/18/11 NDB RWY 34, Amdt 6A 10–Mar–11 ... LA Bastrop ...... Morehouse Memorial ...... 1/1896 1/18/11 VOR/DME A, Amdt 9A 10–Mar–11 ... NJ Woodbine ...... Woodbine Muni ...... 1/1912 1/14/11 RNAV (GPS) RWY 1, Orig 10–Mar–11 ... RI Providence ...... Theodore Francis Green State 1/1935 1/18/11 RNAV (GPS) RWY 34, Orig-C 10–Mar–11 ... NJ Trenton ...... Trenton Mercer ...... 1/1936 1/18/11 VOR OR GPS RWY 24, Amdt 4A 10–Mar–11 ... TN Springfield ...... Springfield Robertson County 1/1938 1/18/11 Takeoff Minimums and Obstacle DP, Orig 10–Mar–11 ... NJ Lincoln Park ...... Lincoln Park ...... 1/1939 1/19/11 Takeoff Minimums and Obstacle DP, Orig 10–Mar–11 ... TN Smyrna ...... Smyrna ...... 1/1942 1/18/11 ILS RWY 32. Amdt 5B 10–Mar–11 ... FL Lakeland ...... Lakeland Linder Rgnl ...... 1/1974 1/18/11 VOR RWY 27, Amdt 7A 10–Mar–11 ... FL Lakeland ...... Lakeland Linder Rgnl ...... 1/1975 1/18/11 VOR RWY 9, Amdt 4 10–Mar–11 ... FL Lakeland ...... Lakeland Linder Rgnl ...... 1/1977 1/18/11 NDB RWY 5, Amdt 4A 10–Mar–11 ... FL Lakeland ...... Lakeland Linder Rgnl ...... 1/1978 1/18/11 ILS OR LOC RWY 5, Amdt 7A 10–Mar–11 ... MI Traverse City ...... Cherry Capital ...... 1/2194 1/18/11 GPS RWY 36, Orig-A 10–Mar–11 ... IN Indianapolis ...... Indianapolis Intl ...... 1/2195 1/19/11 ILS OR LOC RWY 5L, ILS OR LOC RWY 5L (CAT II), ILS OR LOC RWY 5L (CAT III), Amdt 3A 10–Mar–11 ... IL Chicago ...... Chicago-O’Hare Intl ...... 1/2497 1/26/11 RNAV (GPS) RWY 14L, Amdt 1B 10–Mar–11 ... IL Chicago ...... Chicago-O’Hare Intl ...... 1/2499 1/26/11 RNAV (GPS) RWY 28, Amdt 2A 10–Mar–11 ... IL Chicago ...... Chicago-O’Hare Intl...... 1/2500 1/26/11 ILS OR LOC RWY 14L, ILS RWY 14L (CAT II), ILS RWY 14L (CAT III), Amdt 29B 10–Mar–11 ... PA Allentown ...... Lehigh Valley Intl ...... 1/2602 1/19/11 RNAV (GPS) RWY 31, Amdt 1A 10–Mar–11 ... VA Richmond/Ashland .. Hanover County Muni ...... 1/2664 1/26/11 RNAV (GPS) RWY 16, Orig 10–Mar–11 ... KY Campbellsville ...... Taylor County ...... 1/2665 1/26/11 SDF RWY 23, Amdt 2A 10–Mar–11 ... KY Campbellsville ...... Taylor County ...... 1/2667 1/26/11 NDB OR GPS RWY 23, Amdt 3A 10–Mar–11 ... TN Memphis ...... Memphis Intl ...... 1/2724 1/26/11 RNAV (GPS) RWY 36L, Amdt 1 10–Mar–11 ... FL Fort Lauderdale ...... Fort Lauderdale/Hollywood Intl 1/2726 1/26/11 ILS OR LOC RWY 27R, Amdt 9 10–Mar–11 ... AL Huntsville ...... Madison County Executive/ 1/2727 1/26/11 Takeoff Minimums and Obstacle Tom Sharp Jr. Fld. DP, Amdt 3 10–Mar–11 ... GA Atlanta ...... Newnan Coweta County ...... 1/2746 1/26/11 Takeoff Minimums and Obstacle DP, Amdt 3A 10–Mar–11 ... FL Venice ...... Venice Muni ...... 1/2764 1/26/11 NDB RWY 31, Amdt 2 10–Mar–11 ... ME Portland ...... Portland Intl Jetport ...... 1/2971 1/26/11 RNAV (GPS) RWY 36, Orig-B 10–Mar–11 ... OR John Day ...... Grant Co. Rgnl/Ogilvie Field ... 1/3435 1/26/11 RNAV (GPS) Y RWY 9, Orig 10–Mar–11 ... KY Monticello ...... Wayne County ...... 1/3700 1/26/11 GPS RWY 21, Orig 10–Mar–11 ... KY Monticello ...... Wayne County ...... 1/3702 1/26/11 GPS RWY 3, Orig

[FR Doc. 2011–3000 Filed 2–11–11; 8:45 am] DEPARTMENT OF TRANSPORTATION ACTION: Final rule. BILLING CODE 4910–13–P Federal Aviation Administration SUMMARY: This establishes, amends, suspends, or revokes Standard 14 CFR Part 97 Instrument Approach Procedures (SIAPs) and associated Takeoff [Docket No. 30767; Amdt. No. 3412] Minimums and Obstacle Departure Procedures for operations at certain Standard Instrument Approach airports. These regulatory actions are Procedures, and Takeoff Minimums and Obstacle Departure Procedures; needed because of the adoption of new Miscellaneous Amendments or revised criteria, or because of changes occurring in the National Airspace AGENCY: Federal Aviation System, such as the commissioning of Administration (FAA), DOT. new navigational facilities, adding new

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obstacles, or changing air traffic establishing, amending, suspending, or ODPs, and safety in air commerce, I find requirements. These changes are revoking SIAPS, Takeoff Minimums that notice and public procedures before designed to provide safe and efficient and/or ODPS. The complete regulators adopting these SIAPS, Takeoff use of the navigable airspace and to description of each SIAP and its Minimums and ODPs are impracticable promote safe flight operations under associated Takeoff Minimums or ODP and contrary to the public interest and, instrument flight rules at the affected for an identified airport is listed on FAA where applicable, that good cause exists airports. form documents which are incorporated for making some SIAPs effective in less by reference in this amendment under 5 DATES: This rule is effective February than 30 days. U.S.C. 552(a), 1 CFR part 51, and 14 14, 2011. The compliance date for each CFR 97.20. The applicable FAA Forms Conclusion SIAP, associated Takeoff Minimums, are FAA Forms 8260–3, 8260–4, 8260– The FAA has determined that this and ODP is specified in the amendatory 5, 8260–15A, and 8260–15B when regulation only involves an established provisions. required by an entry on 8260–15A. body of technical regulations for which The incorporation by reference of The large number of SIAPs, Takeoff frequent and routine amendments are certain publications listed in the Minimums and ODPs, in addition to necessary to keep them operationally regulations is approved by the Director their complex nature and the need for current. It, therefore—(1) is not a of the Federal Register as of February a special format make publication in the ‘‘significant regulatory action’’ under 14, 2011. Federal Register expensive and Executive Order 12866; (2) is not a ADDRESSES: Availability of matters impractical. Furthermore, airmen do not ‘‘significant rule ’’ under DOT incorporated by reference in the use the regulatory text of the SIAPs, Regulatory Policies and Procedures (44 amendment is as follows: Takeoff Minimums or ODPs, but instead FR 11034; February 26,1979); and (3) For Examination— refer to their depiction on charts printed does not warrant preparation of a 1. FAA Rules Docket, FAA by publishers of aeronautical materials. regulatory evaluation as the anticipated Headquarters Building, 800 The advantages of incorporation by impact is so minimal. For the same Independence Avenue, SW., reference are realized and publication of reason, the FAA certifies that this Washington, DC 20591; the complete description of each SIAP, amendment will not have a significant 2. The FAA Regional Office of the Takeoff Minimums and ODP listed on economic impact on a substantial region in which the affected airport is FAA forms is unnecessary. This number of small entities under the located; amendment provides the affected CFR criteria of the Regulatory Flexibility Act. 3. The National Flight Procedures sections and specifies the types of SIAPs Office, 6500 South MacArthur Blvd., and the effective dates of the associated List of Subjects in 14 CFR Part 97 Oklahoma City, OK 73169 or Takeoff Minimums and ODPs. This Air Traffic Control, Airports, 4. The National Archives and Records amendment also identifies the airport Incorporation by reference, and Administration (NARA). For and its location, the procedure, and the Navigation (Air). information on the availability of this amendment number. Issued in Washington, DC, on February 4, material at NARA, call 202–741–6030, The Rule 2011. or go to: http://www.archives.gov/ John McGraw, federal_register/ This amendment to 14 CFR part 97 is Deputy Director, Flight Standards Service. code_of_federal_regulations/ effective upon publication of each ibr_locations.html. separate SIAP, Takeoff Minimums and Adoption of the Amendment ODP as contained in the transmittal. Availability—All SIAPs and Takeoff Accordingly, pursuant to the Some SIAP and Takeoff Minimums and Minimums and ODPs are available authority delegated to me, Title 14, textual ODP amendments may have online free of charge. Visit http:// Code of Federal Regulations, part 97 (14 been issued previously by the FAA in a www.nfdc.faa.gov to register. CFR part 97) is amended by Additionally, individual SIAP and Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency establishing, amending, suspending, or Takeoff Minimums and ODP copies may revoking Standard Instrument Approach be obtained from: action of immediate flight safety relating directly to published aeronautical Procedures and/or Takeoff Minimums 1. FAA Public Inquiry Center (APA– and/or Obstacle Departure Procedures 200), FAA Headquarters Building, 800 charts. The circumstances which created the need for some SIAP and effective at 0902 UTC on the dates Independence Avenue, SW., specified, as follows: Washington, DC 20591; or Takeoff Minimums and ODP 2. The FAA Regional Office of the amendments may require making them PART 97—STANDARD INSTRUMENT region in which the affected airport is effective in less than 30 days. For the APPROACH PROCEDURES located. remaining SIAPS and Takeoff Minimums and ODPS, an effective date ■ 1. The authority citation for part 97 FOR FURTHER INFORMATION CONTACT: at least 30 days after publication is continues to read as follows: Harry J. Hodges, Flight Procedure provided. Authority: 49 U.S.C. 106(g), 40103, 40106, Standards Branch (AFS–420), Flight Further, the SIAPs and Takeoff Technologies and Programs Divisions, 40113, 40114, 40120, 44502, 44514, 44701, Minimums and ODPS contained in this 44719, 44721–44722. Flight Standards Service, Federal amendment are based on the criteria Aviation Administration, Mike contained in the U.S. Standard for ■ 2. Part 97 is amended to read as Monroney Aeronautical Center, 6500 Terminal Instrument Procedures follows: South MacArthur Blvd., Oklahoma City, (TERPS). In developing these SIAPS and Little Rock, AR, Adams Field, RNAV (GPS) OK 73169 (Mail Address: P.O. Box Takeoff Minimums and ODPs, the RWY 18, Amdt 1 Show Low, AZ, Show Low Rgnl, RNAV 25082, Oklahoma City, OK 73125) TERPS criteria were applied to the Telephone: (405) 954–4164. (GPS) RWY 24, Amdt 1 conditions existing or anticipated at the Titusville, FL, Arthur Dunn Air Park, Takeoff SUPPLEMENTARY INFORMATION: This rule affected airports. Because of the close Minimums and Obstacle DP, Amdt 2 amends Title 14 of the Code of Federal and immediate relationship between Atlanta, GA, Atlanta Rgnl Falcon Field, ILS Regulations, part 97 (14 CFR part 97), by these SIAPs, Takeoff Minimums and OR LOC RWY 31, Amdt 1

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Atlanta, GA, Atlanta Rgnl Falcon Field, NDB Paynesville, MN, Paynesville Muni, RNAV project cost and annual limits for RWY 31, Amdt 2 (GPS) RWY 29, Orig natural gas pipelines blanket Atlanta, GA, Atlanta Rgnl Falcon Field, Kansas City, MO, Kansas City Intl, ILS OR construction certificates for each RNAV (GPS) RWY 13, Amdt 1 LOC RWY 1L, Amdt 14 calendar year. Atlanta, GA, Atlanta Rgnl Falcon Field, Mountain View, MO, Mountain View, RNAV (GPS) RWY 31, Amdt 1A Takeoff Minimums and Obstacle DP, Amdt DATES: Effective date: This final rule is Atlanta, GA, Atlanta Rgnl Falcon Field, 4 effective February 14, 2011. Takeoff Minimums and Obstacle DP, Amdt Potosi, MO, Washington County, RNAV Applicability date: This final rule 2 (GPS) RWY 2, Amdt 1 establishes cost limits applicable from Algona, IA, Algona Muni, Takeoff Minimums Potosi, MO, Washington County, RNAV January 1, 2011 through December 31, and Obstacle DP, Amdt 4 (GPS) RWY 20, Amdt 1 2011. Ankeny, IA, Ankeny Rgnl, RNAV (GPS) RWY Wilmington, NC, Wilmington Intl, ILS OR 18, Amdt 1 LOC RWY 35, Amdt 21 FOR FURTHER INFORMATION CONTACT: Davenport, IA, Davenport Muni, ILS OR LOC Bismarck, ND, Bismarck Muni, Takeoff Richard Foley, Chief, Certificates RWY 15, Amdt 1 Minimums and Obstacle DP, Amdt 8 Branch 1, Division of Pipeline Davenport, IA, Davenport Muni, RNAV (GPS) Berlin, NH, Berlin Rgnl, VOR–B, Amdt 3 Certificates, (202) 502–8955. RWY 3, Amdt 1 Columbus, OH, Ohio State University, ILS Davenport, IA, Davenport Muni, RNAV (GPS) OR LOC RWY 9R, Amdt 5 SUPPLEMENTARY INFORMATION: RWY 15, Amdt 2 Hamilton, OH, Butler Co Rgnl, Takeoff Davenport, IA, Davenport Muni, RNAV (GPS) Minimums and Obstacle DP, Amdt 4 Publication of Project Cost Limits RWY 21 Amdt 1 Tulsa, OK, Richard Lloyd Jones Jr., Takeoff Under Blanket Certificates; Order of the Davenport, IA, Davenport Muni, RNAV (GPS) Minimums and Obstacle DP, Amdt 7 Director, OEP RWY 33, Amdt 1 John Day, OR, Grant Co Rgnl/Ogilvie Field, Moline, IL, Quad City Intl., LOC RWY 10, Section 157.208(d) of the RNAV (GPS) Z RWY 9, Orig-A Commission’s Regulations provides for Orig Rapid City, SD, Rapid City Rgnl, Takeoff Moline, IL, Quad City Intl., RNAV (GPS) Minimums and Obstacle DP, Amdt 7 project cost limits applicable to RWY 28, Orig Anahuac, TX, Chambers County, Takeoff construction, acquisition, operation and Moline, IL, Quad City Intl, Takeoff Minimums and Obstacle DP, Orig miscellaneous rearrangement of Minimums and Obstacle DP, Orig Brownsville, TX, Brownsville/South Padre facilities (Table I) authorized under the French Lick, IN, French Lick Muni, GPS Island Intl, VOR/DME RNAV OR GPS RWY blanket certificate procedure (Order No. RWY 26, Orig-A, CANCELLED 17, Amdt 3A, CANCELLED 234, 19 FERC ¶ 61,216). Section French Lick, IN, French Lick Muni, RNAV Coleman, TX, Coleman Muni, Takeoff 157.215(a) specifies the calendar year (GPS) RWY 8, Amdt 1 Minimums and Obstacle DP, Orig French Lick, IN, French Lick Muni, RNAV dollar limit which may be expended on Dallas, TX, Dallas Love Field, RNAV (GPS) underground storage testing and (GPS) RWY 26, Orig Z RWY 13L, Orig-B Winchester, IN, Randolph County, GPS RWY Midlothian/Waxahachie, TX, Mid-Way Rgnl, development (Table II) authorized under 25, Orig-A, CANCELLED RNAV (GPS) RWY 18, Orig the blanket certificate. Section Winchester, IN, Randolph County, RNAV Midlothian/Waxahachie, TX, Mid-Way Rgnl, 157.208(d) requires that the ‘‘limits (GPS) RWY 8, Orig Takeoff Minimums and Obstacle DP, Amdt specified in Tables I and II shall be Winchester, IN, Randolph County, RNAV 1 adjusted each calendar year to reflect (GPS) RWY 26, Orig Mineola, TX, Mineola Wisener Field, Takeoff the ’GDP implicit price deflator’ Winchester, IN, Randolph County, VOR–A, Minimums and Obstacle DP, Orig published by the Department of Amdt 9 Wink, TX, Winkler County, Takeoff El Dorado, KS, Captain Jack Thomas/El Commerce for the previous calendar Minimums and Obstacle DP, Orig-A year.’’ Dorado, GPS RWY 4, Orig, CANCELLED Amery, WI, Amery Muni, NDB RWY 18, El Dorado, KS, Captain Jack Thomas/El Amdt 6A, CANCELLED Pursuant to § 375.308(x)(1) of the Dorado, GPS RWY 15, Orig, CANCELLED Williamson, WV, Mingo County Rgnl, Commission’s Regulations, the authority El Dorado, KS, Captain Jack Thomas/El Takeoff Minimums and Obstacle DP, Orig, for the publication of such cost limits, Dorado, GPS RWY 22, Orig, CANCELLED CANCELLED as adjusted for inflation, is delegated to El Dorado, KS, Captain Jack Thomas/El [FR Doc. 2011–3003 Filed 2–11–11; 8:45 am] the Director of the Office of Energy Dorado, GPS RWY 33, Orig-B, Projects. The cost limits for calendar CANCELLED BILLING CODE 4910–13–P El Dorado, KS, Captain Jack Thomas/El year 2011, as published in Table I of Dorado, NDB RWY 4, Amdt 3, § 157.208(d) and Table II of § 157.215(a), CANCELLED DEPARTMENT OF ENERGY are hereby issued. El Dorado, KS, Captain Jack Thomas/El List of Subjects in 18 CFR Part 157 Dorado, RNAV (GPS) RWY 4, Orig Federal Energy Regulatory El Dorado, KS, Captain Jack Thomas/El Commission Administrative practice and Dorado, RNAV (GPS) RWY 15, Orig procedure, Natural Gas, Reporting and El Dorado, KS, Captain Jack Thomas/El recordkeeping requirements. Dorado, RNAV (GPS) RWY 22, Orig 18 CFR Part 157 El Dorado, KS, Captain Jack Thomas/El [Docket No. RM81–19–000] Jeff C. Wright, Dorado, RNAV (GPS) RWY 33, Orig Director, Office of Energy Projects. Marysville, KS, Marysville Muni, NDB RWY Natural Gas Pipelines; Project Cost Accordingly, 18 CFR part 157 is 34, Amdt 5 and Annual Limits Marysville, KS, Marysville Muni, RNAV amended as follows: (GPS) RWY 16, Orig February 8, 2011. PART 157—[AMENDED] Marysville, KS, Marysville Muni, RNAV AGENCY: Federal Energy Regulatory (GPS) RWY 34, Orig Commission. ■ Shreveport, LA, Shreveport Downtown, 1. The authority citation for part 157 Takeoff Minimums and Obstacle DP, Amdt ACTION: Final rule. continues to read as follows: 3A SUMMARY: Pursuant to the authority Authority: 15 U.S.C. 717–717w, 3301– Ely, MN, Ely Muni, VOR–A, Orig, 3432; 42 U.S.C. 7101–7352. CANCELLED delegated by 18 CFR 375.308(x)(1), the Paynesville, MN, Paynesville Muni, RNAV Director of the Office of Energy Projects ■ 2. Table I in § 157.208(d) is revised to (GPS) RWY 11, Orig (OEP) computes and publishes the read as follows:

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§ 157.208 Construction, acquisition, TABLE II—Continued Dated: February 9, 2011. operation, replacement, and miscellaneous Harold M. Singer, rearrangement of facilities. Year Limit Director, Regulations and Disclosure Law * * * * * Division, U.S. Customs and Border Protection. (d) * * * 1999 ...... 4,550,000 [FR Doc. 2011–3265 Filed 2–11–11; 8:45 am] 2000 ...... 4,650,000 BILLING CODE 9111–14–P TABLE I 2001 ...... 4,750,000 2002 ...... 4,850,000 Limit 2003 ...... 4,900,000 2004 ...... 5,000,000 DEPARTMENT OF DEFENSE Year Auto. proj. Prior notice 2005 ...... 5,100,000 cost limit proj. cost limit 2006 ...... 5,250,000 Office of the Secretary (Col.1) (Col.2) 2007 ...... 5,400,000 2008 ...... 5,550,000 32 CFR Part 199 1982 ...... $4,200,000 $12,000,000 2009 ...... 5,600,000 1983 ...... 4,500,000 12,800,000 2010 ...... 5,700,000 [DOD–2008–HA–0057] 1984 ...... 4,700,000 13,300,000 2011 ...... 5,750,000 RIN 0720–AB24 1985 ...... 4,900,000 13,800,000 1986 ...... 5,100,000 14,300,000 * * * * * TRICARE Program; Surgery for Morbid 1987 ...... 5,200,000 14,700,000 [FR Doc. 2011–3190 Filed 2–11–11; 8:45 am] 1988 ...... 5,400,000 15,100,000 Obesity BILLING CODE P 1989 ...... 5,600,000 15,600,000 AGENCY: Office of the Secretary, DoD. 1990 ...... 5,800,000 16,000,000 1991 ...... 6,000,000 16,700,000 ACTION: Final rule. 1992 ...... 6,200,000 17,300,000 DEPARTMENT OF HOMELAND SUMMARY: This final rule adds a 1993 ...... 6,400,000 17,700,000 SECURITY 1994 ...... 6,600,000 18,100,000 definition of Bariatric Surgery, amends the definition of Morbid Obesity, and 1995 ...... 6,700,000 18,400,000 U. S. Customs and Border Protection 1996 ...... 6,900,000 18,800,000 revises the language relating to the 1997 ...... 7,000,000 19,200,000 treatment of morbid obesity to allow 1998 ...... 7,100,000 19,600,000 19 CFR Part 141 benefit consideration for newer bariatric 1999 ...... 7,200,000 19,800,000 [USCBP–2008–0062; CBP Dec. 10–34] surgical procedures that are considered 2000 ...... 7,300,000 20,200,000 appropriate medical care. The final rule 2001 ...... 7,400,000 20,600,000 RIN 1515–AD61 (Formerly 1505–AB96) removes language that specifically 2002 ...... 7,500,000 21,000,000 limits the types of surgical procedures 2003 ...... 7,600,000 21,200,000 Technical Correction: Completion of to treat co-morbid conditions associated 2004 ...... 7,800,000 21,600,000 Entry and Entry Summary— with morbid obesity and retains the 2005 ...... 8,000,000 22,000,000 Declaration of Value; Correction 2006 ...... 9,600,000 27,400,000 TRICARE Program exclusion of non- 2007 ...... 9,900,000 28,200,000 AGENCY: Customs and Border Protection, surgical interventions related to morbid 2008 ...... 10,200,000 29,000,000 Department of Homeland Security. obesity, obesity and/or weight 2009 ...... 10,400,000 29,600,000 ACTION: Final rule; correction. reduction. This final rule is necessary to 2010 ...... 10,500,000 29,900,000 allow coverage for other surgical 2011 ...... 10,600,000 30,200,000 SUMMARY: Customs and Border procedures that reduce or resolve co- Protection (CBP) published in the morbid conditions associated with * * * * * Federal Register of December 30, 2010, morbid obesity and the use of the Body ■ 3. Table II in § 157.215(a)(5) is revised a document concerning technical Mass Index (BMI), which is the more to read as follows: corrections to part 141 of title 19 of the accurate measure for excess weight to estimate relative risk of disease. As new § 157.215 Underground storage testing CBP Regulations (19 CFR part 141). and development. Inadvertently, an erroneous CBP technologies or procedures evolve from investigational into generally accepted (a) * * * Decision Number was listed in the norms for medical practice, the statutes (5) * * * heading of that document. This document corrects the December 30, and regulations governing the TRICARE Program allow the Department to offer TABLE II 2010 document to reflect that the correct CBP Decision Number is 10–34 as set beneficiaries these new benefits. These Year Limit forth above. changes are required in order to allow the Department to provide these newer DATES: The final rule is effective 1982 ...... $2,700,000 February 14, 2011. technologies and procedures for the 1983 ...... 2,900,000 treatment of morbid obesity as they 1984 ...... 3,000,000 FOR FURTHER INFORMATION CONTACT: evolve. 1985 ...... 3,100,000 Michele J. Snavely, Regulations and 1986 ...... 3,200,000 Rulings, Office of International Trade, DATES: Effective Date: This rule is 1987 ...... 3,300,000 (202) 325–0354. effective March 16, 2011. 1988 ...... 3,400,000 ADDRESSES: TRICARE Management 1989 ...... 3,500,000 Correction Activity, Medical Benefits and 1990 ...... 3,600,000 In rule document 2010–32912 Reimbursement Branch, 16401 East 1991 ...... 3,800,000 beginning on page 82241 in the issue of Centretech Parkway, Aurora, CO 80011– 1992 ...... 3,900,000 9066. 1993 ...... 4,000,000 Thursday, December 30, 2010, make the 1994 ...... 4,100,000 following correction in the third FOR FURTHER INFORMATION CONTACT: Gail 1995 ...... 4,200,000 column: L. Jones, Medical Benefits and 1996 ...... 4,300,000 Remove in the heading of the Reimbursement Branch, TRICARE 1997 ...... 4,400,000 document ‘‘CBP Dec. 10–33’’ and add in Management Activity, telephone (303) 1998 ...... 4,500,000 its place ‘‘CBP Dec. 10–34’’. 676–3401.

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SUPPLEMENTARY INFORMATION: procedures that have moved from the comments with specific suggestions and unproven status to the position of questions and we have responded to I. Background nationally accepted medical practice, as each of these comments below. On December 27, 1982, the determined by the Program standard of Comment: One commenter objected to Department of Defense (DoD) published reliable evidence. the provisions of the proposed rule in a final rule in the Federal Register (47 Also in 1982 during development of the belief the coverage is inappropriate FR 57491–57493) that restricted surgical the current regulation for morbid for the selected group of patients. intervention for morbid obesity to obesity, overweight and obesity were Response: We disagree. As discussed gastric bypass, gastric stapling, or typically measured with height-weight in the proposed rule, TRICARE allows gastroplasty method (excluding all other tables (such as the Metropolitan Life coverage for surgical procedures that types) when the primary purpose of Table). The 1982 regulation restricted may reduce or resolve co-morbid surgery is to treat a severe related eligibility for bariatric surgery to conditions associated with morbid medical illness or medical condition. individuals who exceed their ideal obesity. This is because a component of The severe medical conditions or illness weight for height by 100 pounds with an the effective treatment of the co- associated with morbid obesity included associated severe medical condition, or morbidity condition for those who fit diabetes mellitus, hypertension, 200 percent or more over their ideal the morbid obesity criteria set forth in cholecystitis, narcolepsy, Pickwickian body weight with no associated medical this rule is weight loss. Thus while the Syndrome (and other severe respiratory condition required. Department does not pay for general disease), hypothalamic disorders, and This final rule changes the Program weight loss programs, it may pay for severe arthritis of the weight-bearing definition of morbid obesity to reflect these bariatric surgical procedures as a joints. The DoD also limited program the current nationally accepted medical component of the treatment of the co- payments to two categories of patients: use of the BMI, rather than the typical morbidity condition. Title 10, United (1) Those who weighed 100 pounds over assessed height-weight table (i.e., the States Code Section 1079(a)(13) is their ideal weight with a specific severe Metropolitan Life Table), to determine sometimes referred to as the medical condition; and (2) those who an individual’s eligibility for bariatric Department’s ‘‘medical necessity’’ were 200 percent or more over their surgical treatment. The BMI is the more provision. It prohibits the Department ideal weight with no medical accurate measure for excess weight to from providing any service or supply, complications required. Program estimate relative risk of disease. Since which is not medically, or payment was made available as well in there now are more than 30 major psychologically necessary to prevent, cases in which a patient, who originally diseases associated with obesity, the diagnose, or treat a mental or physical met the criteria, received an intestinal final rule requires the Director, TMA, to illness, injury, or bodily malfunction as bypass, or other surgery for obesity and, issue specific criteria for co-morbid assessed or diagnosed by a physician or because of complications, required a conditions exacerbated or caused by other authorized provider. Because the second surgery. Payment was allowed (morbid) obesity, as determined by the Department has found this type of even though the patient’s condition may Program standard of reliable evidence. treatment for the co-morbidity condition not have technically met the definition This final rule does not expand the to be medically necessary, the type of of morbid obesity because of the weight TRICARE benefit for morbid obesity health care services in the proposed rule that was already lost following the surgery. However, it does make the are the type of health care services initial surgery. All other surgeries specific procedures that are covered, as authorized by statute and may be including non-surgical treatment related well as the clinical conditions for which provided by the TRICARE program. to morbid obesity, obesity, and/or coverage may be extended, a matter of Comment: Another commenter asked weight reduction were excluded. policy. In other words, new bariatric if there is anything being done to help The DoD used the definition of surgery procedures may be added to the employees cope with their obesity, and morbid obesity, which was based on the TRICARE benefit structure as such whether there are any preventative Metropolitan Life Table and used then procedures are proven safe and effective programs in place to educate people and by other major health care plans, as well and are established as nationally help them to avoid obesity. as reflected the 1982 general opinion accepted medical practice as Response: There is a focus on health regarding which cases justify surgical determined by the Program standard of and wellness for active duty members, intervention. The DoD decided, at the reliable evidence. DoD civilians, retired members, time, that it was necessary to be very contractors, reservists, and beneficiaries specific in benefit parameters due to II. Public Comments to help encourage healthy lifestyles. fiscal responsibility and to ensure that On October 29, 2009 (74 FR 55792– Each of the armed services has Program beneficiaries were not being 55794), the Office of the Secretary of developed programs to promote fitness exposed to less than fully developed Defense published a proposed rule and and health. The Army has the MOVE medical technology or procedures. provided the public the opportunity to Program, which is a personalized online At the time the current regulation was comment on implementing changes to weight management program that written in 1982, gastric bypass, gastric surgery for morbid obesity. The comprises up to 13 one-hour sessions. stapling, and gastroplasty methods were comment period closed on December The Navy Shipshape Program is the recognized surgeries for morbid 28, 2009. As result of publication of the designed to move military personnel obesity. However, in recent years, other proposed rule, DoD received 18 and their families toward healthier food bariatric surgical procedures have comments. Thirteen commenters choices, fitness habits and lifestyles. evolved and some have a substantial expressed support and approval. We The Air Force Fit to Fight Program body of literature to support their safety appreciate all expressions of support encourages unit fitness programs, and efficacy. Unlike the original rule and approval for the proposed encourages units to exercise together, that listed the specific surgical guidelines. We do not discuss the and offers nutrition and fitness procedures and the clinical conditions majority these comments which were counseling to those with borderline for which coverage may be extended; favorable to the proposed rule and thus fitness test scores. These wellness this final rule authorizes benefit with which the Agency generally agrees. programs are designed to provide consideration for those bariatric surgical However, several people made individuals with tools to improve their

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overall health and lifestyles and address concern to the Department. Medical programs for individuals who are everything from smoking to obesity. literature indicates as well that well- unable to meet those standards. Comment: One professional controlled trials are needed to Comment: Another commenter organization affirmed the purpose and determine both short-term and long- expresses his company’s support for the scope of the rule acknowledging the term safety and efficacy of BPD/DS and proposal rule to add new bariatric need to use body mass index (BMI) long-term (> 5 years) weight loss and co- surgical procedures to the TRICARE criteria instead of the Metropolitan Life morbidity resolution data for VSG. The benefit structure when such procedures Tables accurately to classify the degree Agency will continue to monitor the are proven safe, effective, and of morbid obesity. The commenter development of the literature and the established as nationally accepted recommends that DoD provide coverage status of ongoing well-controlled medical practice, as determined by the for other standard accepted bariatric clinical trials regarding the effectiveness TRICARE definition of reliable surgical procedures as recognized by the of the laparoscopic VSG and BPD/DS evidence. The commenter also noted American College of Surgeons (ACS), procedures. At such time when the that the proposed rule did not clearly Bariatric Surgery Center Network reliable evidence demonstrates that state that the definition of reliable (BSCN) and American Society for these bariatric surgical procedures have evidence applies to the determination Metabolic and Bariatric Surgery proven medical effectiveness, the that a procedure is established as (ASMBS). Another professional Director, TMA will initiate action to nationally accepted medical practice; commenter points out that gastric sleeve cover these procedures. and therefore, recommend paragraph resection has been established and Comment: This same commenter asks (e)(15) of this section be modify. recognized by the ASMBS as having an that DoD consider improving Response: We appreciate the important role, as an intermediate reimbursement for bariatric surgical commenter’s support and concerns intervention regarding both risk and procedure to a level that increases regarding the application of TRICARE efficacy of weight loss between bypass access for patients. The commenter goes definition of reliable evidence and have and adjustable gastric banding. on to state that current reimbursement modified paragraph (e)(15) of this Response: Before the Department may levels are so low that many surgeons section to include a reference to § 199.2 offer any treatment or procedure to its will not accept these patients because of this part for the procedures used in beneficiaries, the regulations in this part TRICARE rates are tied to Medicare fee determining if a medical treatment or require that the treatment or procedure schedule, and rates have declined over procedure is unproven. must be ‘‘proven care’’. This is done as 10% in the last two years despite outlined in § 199.4(g)(15) of this part Comment: This same commenter increasing practice overhead expenses. using the hierarchy of established recommends coverage for laparoscopic Response: In section 707 the National reliable evidence as defined in § 199.2 adjustable gastric band (LAGB) and of this part. A procedure must meet this Defense Authorization Act of Fiscal medically necessary adjustment of standard in order for the Department to Year 2002, Congress amended the LAGB systems. The commenter also ensure safe, quality health care for its statutory authorization (in 10 U.S.C. recommends that DoD revise the beneficiaries and to avoid arbitrary 1079(j)(2)) to a mandate that TRICARE proposed rule to add coverage for post- administration of TRICARE benefit payment methods shall be determined surgical follow-up and band decisions. in accordance with Medicare payment adjustments. The commenter also Comment: Another commenter agrees rules to the extent practicable. In the recommends that DoD not specify any with the changes as well but same way under 10 U.S.C. 1079(h), the minimum duration of weight loss recommends that the list of obesity- amount to be paid to health care management as a precondition for the associated co-morbidities be a complete, professional and other non-institutional bariatric surgery and that type 2 inclusive list to prevent inappropriate health care providers ‘‘shall be equal to diabetes mellitus be specified as a high- denial of service. The commenter goes an amount determined to be risk co-morbidity exacerbated or caused on to state that covered procedures appropriate, to the extent practicable, in by morbid obesity. should include the laparoscopic vertical accordance with the same Response: The laparoscopic sleeve gastrectomy and duodenal switch reimbursement rules used by Medicare’’ adjustable gastric banding surgical procedures. Comment: One commenter asked if procedure (including post-surgical Response: We appreciate the the proposed guidelines apply to active follow-up and band adjustments) suggestion that morbid obesity multiple duty service members as well. became a TRICARE benefit effective co-morbidities be a complete, inclusive Response: TRICARE covers most February 1, 2007. TRICARE also list and will consider it as one of many health care deemed medically necessary provides coverage for follow-up care to recommendations in revising the benefit for active and retired military and their include band adjustments and any policy. We disagree with the dependent family. However, bariatric unfortunate sequelae resulting from the commenter’s suggestion that vertical surgery primarily represents a major and adjustment for those patients who sleeve gastrectomy (VSG) and permanent change to the digestive underwent the LAP-Band surgery before biliopancreatic diversion with duodenal system and requires a strict adherence the effective date of coverage. Coverage, switch (BPD/DS) should be covered to a dietary regimen, which interferes however, is contingent upon the patient under the TRICARE Program. The with operational deployment of active meeting TRICARE morbid obesity policy evidence evaluating the safety and duty service members (ADSMs). criteria at the time of his or her surgery. efficacy of BPD/DS and VSG do not Because of this, ADSMs are not We appreciate the suggestion that DoD meet the program specific standards of permitted to have bariatric surgery. not specify any minimum duration of reliable evidence. Existing data does ADSMs have an obligation to maintain weight loss management as a suggest the use of these procedures is a themselves in a state of high physical precondition for the bariatric surgery possible benefit to some patients but readiness and the Services have weight and that type 2 diabetes mellitus be there is incomplete information to and fitness screening programs to assure specified as a high-risk co-morbidity predict the effect of long-term outcomes. compliance with Service standards, and and will consider these as one of many This lack of information relating to the each Service offers evidence-based, recommendations in future revisions long-term outcomes is a matter of multidisciplinary weight and fitness regarding the benefit policy.

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Comment: This same commenter economic impact on a substantial Morbid obesity. A body mass index noted that the proposed rule did not number of small entities. Set forth in the (BMI) equal to or greater than 40 require physicians or facilities final rule are minor revisions to the kilograms per meter squared (kg/m2), or performing bariatric surgical procedures existing regulation. The DoD does not a BMI equal to or greater than 35 kg/m2 to fulfill any specific qualification anticipate a significant impact on the in conjunction with high-risk co- requirements for coverage. The Program. The change from height- morbidities, which is based on the commenter states that it is the weight tables to the BMI should have a guidelines established by the National understanding that DoD intends to leave minimal impact on the number of Heart, Lung and Blood Institute on the the issue of facility and surgeon beneficiaries eligible for surgery. Identification and Management of qualification to the discretion of TMA or Patients with Obesity. Public Law 96–511, ‘‘Paperwork its Managed Care Support Contractors. Reduction Act’’ (44 U.S.C. Chapter 35) Note: Body mass index is equal to weight Response: All TRICARE authorized in kilograms divided by height in meters providers are subject to the It has been certified that this rule does squared. requirements as outlined in 32 CFR not impose reporting or recordkeeping 199.6. Otherwise covered services are requirements under the Paperwork * * * * * cost shared only if the individual Reduction Act of 1995. ■ 3. Section 199.4 is amended by revising paragraphs (e)(15) and (g)(28) to professional provider holds a current, Executive Order 13132, Federalism valid license or certification to practice read as follows: It has been certified that this rule does his or her profession in the jurisdiction § 199.4 Basic program benefits. where the service is rendered. not have federalism implications, as set This final rule considered all forth in Executive Order 13132. This * * * * * (e) * * * comments received during the comment rule does not have substantial direct (15) Morbid obesity. The TRICARE period and has responded to those effects on: morbid obesity benefit is limited to comments in this final rule. Since the (1) The States; those bariatric surgical procedures for proposed rule was published, DoD has (2) The relationship between the which the safety and efficacy has been revised paragraph (e)(15) of this section. National Government and the States; or (3) The distribution of power and proven comparable or superior to Regulatory Procedures responsibilities among the various conventional therapies and is consistent with the generally accepted norms for Executive Order 12866, ‘‘Regulatory levels of Government. medical practice in the United States Planning and Review’’ The final rule is consistent with the proposed rule. medical community. (See the definition It has been determined that this rule of reliable evidence in § 199.2 of this is not a significant regulatory action. List of Subjects in 32 CFR Part 199 part for the procedures used in This rule does not: Claims, Dental health, Health care, determining if a medical treatment or (1) Have an annual effect on the Health insurance, Individuals with procedure is unproven.) economy of $100 million or more or disabilities, and Military personnel. (i) Conditions for coverage. (A) Payment for bariatric surgical adversely affect in a material way the Accordingly, 32 CFR part 199 is procedures is determined by the economy; a section of the economy; amended as follows: productivity; competition; jobs; the requirements specified in paragraph environment; public health or safety; or PART 199—[AMENDED] (g)(15) of this section, and as defined in State, local, or tribal governments or § 199.2(b) of this part. communities; ■ 1. The authority citation for part 199 (B) Covered bariatric surgical (2) Create a serious inconsistency or continues to read as follows: procedures are payable only when the patient has completed growth (18 years otherwise interfere with an action taken Authority: 5 U.S.C. 301; 10 U.S.C. chapter or planned by another Agency; 55. of age or documentation of completion (3) Materially alter the budgetary of bone growth) and has met one of the impact of entitlements, grants, user fees, ■ 2. Section 199.2, paragraph (b) is following selection criteria: or loan programs, or the rights and amended by adding the definition of (1) The patient has a BMI that is equal obligations of recipients thereof; or ‘‘Bariatric Surgery’’ and revising the to or exceeds 40 kg/m2 and has (4) Raise novel legal or policy issues definition of ‘‘Morbid Obesity’’ to read as previously been unsuccessful with arising out of legal mandates, the follows: medical treatment for obesity. President’s priorities, or the principles (2) The patient has a BMI of 35 to 39.9 § 199.2 Definitions. 2 set forth in this Executive Order. kg/m , has at least one high-risk co- * * * * * morbid condition associated with Unfunded Mandates Reform Act (Sec. (b) * * * morbid obesity, and has previously been 202, Pub. L. 104–4) Bariatric Surgery. Surgical procedures unsuccessful with medical treatment for It has been certified that this rule does performed to treat co-morbid conditions obesity. not contain a Federal mandate that may associated with morbid obesity. Note: The Director, TMA, shall issue result in the expenditure by State, local Bariatric surgery is based on two guidelines for review of the specific high-risk and tribal governments, in aggregate, or principles: (1) Divert food from the co-morbid conditions, exacerbated or caused by the private sector, of $100 million or stomach to a lower part of the digestive by obesity based on the Reliable Evidence more in any one year. tract where the normal mixing of Standard as defined in § 199.2 of this part. digestive fluids and absorption of (ii) Treatment of complications. Public Law 96–354, ‘‘Regulatory nutrients cannot occur (i.e., (A) Payment may be extended for Flexibility Act’’ (5 U.S.C. 601) Malabsorptive surgical procedures); or repeat bariatric surgery when medically It has been certified that this rule is (2) Restrict the size of the stomach and necessary to correct or treat not subject to the Regulatory Flexibility decrease intake (i.e., Restrictive surgical complications from the initial covered Act (5 U.S.C. 601) because it would not, procedures). bariatric surgery (a takedown). For if promulgated, have a significant * * * * * instance, the surgeon in many cases will

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do a gastric bypass or gastroplasty to these revisions to Virginia’s definitions Electronic files should avoid the use of help the patient avoid regaining the in accordance with the requirements of special characters, any form of weight that was lost. In this situation, the Clean Air Act (CAA). encryption, and be free of any defects or payment is authorized even though the DATES: This rule is effective on April 15, viruses. patient’s condition technically may not 2011 without further notice, unless EPA Docket: All documents in the meet the definition of morbid obesity receives adverse written comment by electronic docket are listed in the because of the weight that was already March 16, 2011. If EPA receives such http://www.regulations.gov index. lost following the initial surgery. comments, it will publish a timely Although listed in the index, some (B) Payment is authorized for withdrawal of the direct final rule in the information is not publicly available, otherwise covered medical services and Federal Register and inform the public i.e., CBI or other information whose supplies directly related to that the rule will not take effect. disclosure is restricted by statute. complications of obesity when such Certain other material, such as ADDRESSES: Submit your comments, copyrighted material, is not placed on services and supplies are an integral and identified by Docket ID Number EPA– necessary part of the course of treatment the Internet and will be publicly R03–OAR–2010–0902 by one of the available only in hard copy form. that was aggravated by the obesity. following methods: (iii) Exclusions. CHAMPUS payment Publicly available docket materials are A. http://www.regulations.gov. Follow may not be extended for weight control available either electronically in http:// the on-line instructions for submitting services, weight control/loss programs, www.regulations.gov or in hard copy comments. during normal business hours at the Air dietary regimens and supplements, B. E-mail: [email protected]. Protection Division, U.S. Environmental appetite suppressants and other C. Mail: EPA–R03–OAR–2010–0902, Protection Agency, Region III, 1650 medications; food or food supplements, Harold A. Frankford, Air Protection Arch Street, Philadelphia, Pennsylvania exercise and exercise programs, or other Division, Mailcode 3AP00, U.S. programs and equipment that are 19103. Copies of the State submittal are Environmental Protection Agency, available at the Virginia Department of primarily intended to control weight or Region III, 1650 Arch Street, for the purpose of weight reduction, Environmental Quality, 629 East Main Philadelphia, Pennsylvania 19103. Street, Richmond, Virginia 23219. regardless of the existence of co-morbid D. Hand Delivery: At the previously- FOR FURTHER INFORMATION CONTACT: conditions. listed EPA Region III address. Such * * * * * deliveries are only accepted during the Harold A. Frankford, (215) 814–2108, or (g) * * * Docket’s normal hours of operation, and by e-mail at [email protected]. (28) Obesity, weight reduction. special arrangements should be made SUPPLEMENTARY INFORMATION: Service and supplies related ‘‘solely’’ to for deliveries of boxed information. I. Background obesity or weight reduction or weight Instructions: Direct your comments to Throughout this document, whenever control whether surgical or nonsurgical; Docket ID No. EPA–R03–OAR–2010– ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean wiring of the jaw or any procedure of 0902. EPA’s policy is that all comments EPA. On September 27, 2010, the similar purpose, regardless of the received will be included in the public Commonwealth of Virginia submitted a circumstances under which performed docket without change, and may be formal revision to its State (except as provided in paragraph (e)(15) made available online at http:// of this section). Implementation Plan (SIP). The SIP www.regulations.gov, including any revision consists of the revised * * * * * personal information provided, unless definition of ‘‘Volatile organic Dated: February 1, 2011. the comment includes information compound’’ (VOC) listed in 9VAC5 Morgan F. Park, claimed to be Confidential Business Chapter 10 (General Definitions), Alternate OSD Federal Register Liaison Information (CBI) or other information Regulation 5–10–20 (Terms defined). Officer, Department of Defense. whose disclosure is restricted by statute. Do not submit information that you II. Summary of SIP Revision [FR Doc. 2011–3207 Filed 2–11–11; 8:45 am] consider to be CBI or otherwise BILLING CODE 5001–06–P Virginia amended the definition of protected through http:// ‘‘Volatile organic compound’’ to add the www.regulations.gov or e-mail. The organic compounds propylene http://www.regulations.gov Web site is carbonate and dimethyl carbonate to the ENVIRONMENTAL PROTECTION an ‘‘anonymous access’’ system, which AGENCY list of excluded compounds. The means EPA will not know your identity exclusion of these compounds is 40 CFR Part 52 or contact information unless you consistent with the list of excluded provide it in the body of your comment. compounds found in EPA’s definition of [EPA–R03–OAR–2010–0902; FRL–9265–6] If you send an e-mail comment directly ‘‘Volatile organic compounds (VOC)’’ at to EPA without going through http:// 40 CFR 51.100(s)(1). Approval and Promulgation of Air www.regulations.gov, your e-mail Quality Implementation Plans; Virginia; address will be automatically captured III. General Information Pertaining to Revision to the Definition of Volatile and included as part of the comment SIP Submittals From the Organic Compound that is placed in the public docket and Commonwealth of Virginia AGENCY: Environmental Protection made available on the Internet. If you In 1995, Virginia adopted legislation Agency (EPA). submit an electronic comment, EPA that provides, subject to certain ACTION: Direct final rule. recommends that you include your conditions, for an environmental name and other contact information in assessment (audit) ‘‘privilege’’ for SUMMARY: EPA is taking direct final the body of your comment and with any voluntary compliance evaluations action to approve a revision to the disk or CD–ROM you submit. If EPA performed by a regulated entity. The Virginia State Implementation Plan cannot read your comment due to legislation further addresses the relative (SIP). The revision amends the technical difficulties and cannot contact burden of proof for parties either definition of Volatile Organic you for clarification, EPA may not be asserting the privilege or seeking Compound (VOC). EPA is approving able to consider your comment. disclosure of documents for which the

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privilege is claimed. Virginia’s administrative, civil, or criminal merely approves state law as meeting legislation also provides, subject to penalties because granting such Federal requirements and does not certain conditions, for a penalty waiver immunity would not be consistent with impose additional requirements beyond for violations of environmental laws Federal law, which is one of the criteria those imposed by state law. For that when a regulated entity discovers such for immunity.’’ reason, this action: violations pursuant to a voluntary Therefore, EPA has determined that • Is not a ‘‘significant regulatory compliance evaluation and voluntarily Virginia’s Privilege and Immunity action’’ subject to review by the Office discloses such violations to the statutes will not preclude the of Management and Budget under Commonwealth and takes prompt and Commonwealth from enforcing its Executive Order 12866 (58 FR 51735, appropriate measures to remedy the program consistent with the Federal October 4, 1993); violations. Virginia’s Voluntary requirements. In any event, because • Does not impose an information Environmental Assessment Privilege EPA has also determined that a state collection burden under the provisions Law, Va. Code Sec. 10.1–1198, provides audit privilege and immunity law can of the Paperwork Reduction Act (44 a privilege that protects from disclosure affect only state enforcement and cannot U.S.C. 3501 et seq.); • documents and information about the have any impact on Federal Is certified as not having a content of those documents that are the enforcement authorities, EPA may at significant economic impact on a product of a voluntary environmental any time invoke its authority under the substantial number of small entities assessment. The Privilege Law does not CAA, including, for example, sections under the Regulatory Flexibility Act (5 113, 167, 205, 211 or 213, to enforce the U.S.C. 601 et seq.); extend to documents or information (1) • that are generated or developed before requirements or prohibitions of the state Does not contain any unfunded the commencement of a voluntary plan, independently of any state mandate or significantly or uniquely environmental assessment; (2) that are enforcement effort. In addition, citizen affect small governments, as described prepared independently of the enforcement under section 304 of the in the Unfunded Mandates Reform Act CAA is likewise unaffected by this, or of 1995 (Pub. L. 104–4); assessment process; (3) that demonstrate • a clear, imminent and substantial any, state audit privilege or immunity Does not have Federalism danger to the public health or law. implications as specified in Executive Order 13132 (64 FR 43255, August 10, environment; or (4) that are required by IV. Final Action law. 1999); EPA is approving the amendment to • Is not an economically significant On January 12, 1998, the the definition of ‘‘Volatile organic regulatory action based on health or Commonwealth of Virginia Office of the compound’’ in Virginia Regulation safety risks subject to Executive Order Attorney General provided a legal 9VAC5–10–20 (Terms defined) as a 13045 (62 FR 19885, April 23, 1997); opinion that states that the Privilege revision to the Virginia State • Is not a significant regulatory action Law, Va. Code Sec. 10.1–1198, Implementation Plan. EPA is publishing subject to Executive Order 13211 (66 FR precludes granting a privilege to this rule without prior proposal because 28355, May 22, 2001); documents and information ‘‘required the Agency views this as a • Is not subject to requirements of by law,’’ including documents and noncontroversial amendment and Section 12(d) of the National information ‘‘required by Federal law to anticipates no adverse comment. Technology Transfer and Advancement maintain program delegation, However, in the ‘‘Proposed Rules’’ Act of 1995 (15 U.S.C. 272 note) because authorization or approval,’’ since section of today’s Federal Register, EPA application of those requirements would Virginia must ‘‘enforce Federally is publishing a separate document that be inconsistent with the CAA; and authorized environmental programs in a will serve as the proposal to approve the • Does not provide EPA with the manner that is no less stringent than SIP revision if adverse comments are discretionary authority to address, as their Federal counterparts ....’’ The filed. This rule will be effective on April appropriate, disproportionate human opinion concludes that ‘‘[r]egarding 15, 2011 without further notice unless health or environmental effects, using § 10.1–1198, therefore, documents or EPA receives adverse comment by practicable and legally permissible other information needed for civil or March 16, 2011. If EPA receives adverse methods, under Executive Order 12898 criminal enforcement under one of these comment, EPA will publish a timely (59 FR 7629, February 16, 1994). programs could not be privileged withdrawal in the Federal Register In addition, this rule does not have because such documents and informing the public that the rule will tribal implications as specified by information are essential to pursuing not take effect. EPA will address all Executive Order 13175 (65 FR 67249, enforcement in a manner required by public comments in a subsequent final November 9, 2000), because the SIP is Federal law to maintain program rule based on the proposed rule. EPA not approved to apply in Indian country delegation, authorization or approval.’’ will not institute a second comment located in the state, and EPA notes that Virginia’s Immunity law, Va. Code Sec. period on this action. Any parties it will not impose substantial direct 10.1–1199, provides that ‘‘[t]o the extent interested in commenting must do so at costs on tribal governments or preempt consistent with requirements imposed this time. tribal law. by Federal law,’’ any person making a voluntary disclosure of information to a V. Statutory and Executive Order B. Submission to Congress and the state agency regarding a violation of an Reviews Comptroller General environmental statute, regulation, Under the CAA, the Administrator is The Congressional Review Act, 5 permit, or administrative order is required to approve a SIP submission U.S.C. 801 et seq., as added by the Small granted immunity from administrative that complies with the provisions of the Business Regulatory Enforcement or civil penalty. The Attorney General’s CAA and applicable Federal regulations. Fairness Act of 1996, generally provides January 12, 1998 opinion states that the 42 U.S.C. 7410(k); 40 CFR 52.02(a). that before a rule may take effect, the quoted language renders this statute Thus, in reviewing SIP submissions, agency promulgating the rule must inapplicable to enforcement of any EPA’s role is to approve state choices, submit a rule report, which includes a Federally authorized programs, since provided that they meet the criteria of copy of the rule, to each House of the ‘‘no immunity could be afforded from the CAA. Accordingly, this action Congress and to the Comptroller General

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of the United States. EPA will submit a for judicial review may be filed, and reference, Ozone, Reporting and report containing this action and other shall not postpone the effectiveness of recordkeeping requirements, Volatile required information to the U.S. Senate, such rule or action. Parties with organic compounds. the U.S. House of Representatives, and objections to this direct final rule are Dated: February 1, 2011. the Comptroller General of the United encouraged to file a comment in W.C. Early, States prior to publication of the rule in response to the parallel notice of Acting Regional Administrator, Region III. the Federal Register. A major rule proposed rulemaking for this action cannot take effect until 60 days after it published in the proposed rules section 40 CFR part 52 is amended as follows: is published in the Federal Register. of today’s Federal Register, rather than This action is not a ‘‘major rule’’ as file an immediate petition for judicial PART 52—[AMENDED] defined by 5 U.S.C. 804(2). review of this direct final rule, so that ■ EPA can withdraw this direct final rule 1. The authority for citation for part 52 C. Petitions for Judicial Review and address the comment in the continues to read as follows: Under section 307(b)(1) of the CAA, proposed rulemaking. This action to Authority: 42 U.S.C. 7401 et seq. approve Virginia’s revision to the petitions for judicial review of this Subpart VV—Virginia action must be filed in the United States definition of ‘‘Volatile organic compound’’ may not be challenged later Court of Appeals for the appropriate ■ 2. In § 52.2420, the table in paragraph in proceedings to enforce its circuit by April 15, 2011. Filing a (c) is amended by adding a seventh requirements. (See section 307(b)(2).) petition for reconsideration by the entry under 5–10–20 to read as follows: Administrator of this final rule does not List of Subjects in 40 CFR Part 52 affect the finality of this action for the § 52.2420 Identification of plan. purposes of judicial review nor does it Environmental protection, Air * * * * * extend the time within which a petition pollution control, Incorporation by (c) * * *

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State State citation Title/subject effective EPA approval date Explanation [former SIP date citation]

9 VAC 5 Chapter 10 ...... General Definitions [Part I]

******* 5–10–20 ...... Terms Defined ...... 2/18/10 2/14/11 [Insert page number Revised definition of ‘‘Volatile where the document begins]. organic compound.’’

*******

* * * * * PM–10 National Ambient Air Quality sanctions and 2-year clock for a federal [FR Doc. 2011–3096 Filed 2–11–11; 8:45 am] Standards (NAAQS) by its required implementation plan (FIP) under the BILLING CODE 6560–50–P statutory attainment deadline, is subject Act. This action is consistent with the to section 189(d) of the CAA. For such CAA mechanism for assuring SIP areas, section 189(d) requires that states submissions. ENVIRONMENTAL PROTECTION submit within 12 months after the AGENCY applicable attainment date, plan DATES: Effective Date: This action was revisions which provide for attainment effective as of February 14, 2011. 40 CFR Part 52 of the PM–10 NAAQS, and from the FOR FURTHER INFORMATION CONTACT: [EPA–R09–OAR–2011–0041; FRL–9264–1] date of such submission until Gregory Nudd, U.S. Environmental attainment, for an annual reduction of Protection Agency, Region 9, Air Finding of Failure To Submit State PM–10 or PM–10 precursor emissions Division (AIR–2), 75 Hawthorne Street, Implementation Plan Revisions for within the area of not less than 5 San Francisco, CA 94105–3901, Particulate Matter, PM–10, Maricopa percent of the amount of such emissions Telephone: (415) 947–4107; County (Phoenix) PM–10 as reported in the most recent inventory [email protected]. Nonattainment Area, AZ prepared for the area. SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection Arizona submitted a section 189(d) Agency (EPA). plan for the Maricopa area on December I. Background 21, 2007, and EPA proposed action on ACTION: Final rule. this plan on September 9, 2010. On The NAAQS are standards for certain SUMMARY: EPA is taking final action to January 25, 2011, prior to final action on ambient air pollutants set by EPA to find that Arizona failed to make a state the plan by EPA, Arizona withdrew the protect public health and welfare. PM– implementation plan (SIP) submittal submitted plan from the Agency’s 10 is among the ambient air pollutants required under the Clean Air Act (CAA consideration. As a result of the for which EPA has established health- or Act) for the Maricopa County withdrawal, EPA is today finding that based standards. PM–10 causes adverse (Phoenix) nonattainment area (Maricopa Arizona failed to make the submittal health effects by penetrating deep in the area) for particulate matter of 10 required for the Maricopa area under lungs, aggravating the cardiopulmonary microns or less (PM–10). The Maricopa section 189(d) of the Act. system. Children, the elderly, and area is a serious PM–10 nonattainment This action triggers the 18-month people with asthma and heart area which, having failed to attain the clock for mandatory application of conditions are the most vulnerable.

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On July 1, 1987 EPA revised the an attainment date extension under CFR 52.31.1 The 18-month clock will health-based NAAQS (52 FR 24672), CAA section 188(e) from December 31, stop and the sanctions will not take replacing the standards for total 2001 to December 31, 2006. On July 25, effect if, within 18 months after the date suspended particulates with new 2002, EPA approved the serious area of the finding, EPA finds that the State standards applying only to particulate PM–10 plan for the Maricopa area and has made a complete submittal matter up to ten microns in diameter granted Arizona’s request to extend the addressing the 189(d) PM–10 (PM–10). At that time, EPA established attainment date for the area to December requirements for the Maricopa area. In two PM–10 standards, annual standards 31, 2006. 67 FR 48718. This final action, addition, CAA section 110(c)(1) and 24-hour standards. Effective as well as the two proposals preceding provides that EPA must promulgate a December 18, 2006, EPA revoked the it, provide a more detailed discussion of federal implementation plan (FIP) no annual PM–10 standards but retained the history of PM–10 planning in the later than 2 years after a finding under the 24-hour PM–10 standards. 71 FR Maricopa area. See 65 FR 19964 (April section 179(a) unless EPA takes final 61144 (October 17, 2006). The 24-hour 13, 2000) and 66 FR 50252 (October 2, action to approve the submittal within PM–10 standards of 150 micrograms per 2001). 2 years of EPA’s finding. cubic meter (μg/m3) are attained when On June 6, 2007, EPA found that the the expected number of days per B. Effective Date Under the Maricopa area failed to attain the 24- calendar year with a 24-hour average Administrative Procedures Act hour PM–10 NAAQS by December 31, concentration above 150 μg/m3, as This final action is effective on 2006 (72 FR 31183) and required the determined in accordance with February 14, 2011. submittal of a new plan meeting the appendix K to 40 CFR part 50, is equal Under the Administrative Procedures requirements of section 189(d) by to or less than one. 40 CFR 50.6 and 40 Act (APA), 5 U.S.C. 553(d)(3), an agency December 31, 2007. CFR part 50, appendix K. rulemaking may take effect before 30 On the date of enactment of the 1990 On December 19, 2007, the Maricopa days after the date of publication in the Clean Air Act Amendments (CAA or the Association of Governments (MAG) Federal Register if an agency has good Act), many areas, including the adopted the ‘‘MAG 2007 Five Percent cause to mandate an earlier effective Maricopa area, meeting the Plan for PM–10 for the Maricopa County date. Today’s action concerns SIP qualifications of section 107(d)(4)(B) of Nonattainment Area’’ (189(d) plan). On revisions that are already overdue and the amended Act were designated December 21, 2007 the Arizona the State has been aware of applicable nonattainment by operation of law. 56 Department of Environmental Quality provisions of the CAA relating to FR 11101 (March 15, 1991). The (ADEQ) submitted the 189(d) plan. overdue SIPs. In addition, today’s action Maricopa area is located in the eastern MAG adopted and ADEQ submitted this simply starts a ‘‘clock’’ that will not portion of Maricopa County and SIP revision in order to address the CAA result in sanctions for 18 months, and encompasses the cities of Phoenix, requirements in section 189(d). that the State may ‘‘turn off’’ by a Mesa, Scottsdale, Tempe, Chandler, CAA section 110(k)(1) requires EPA to complete SIP submittal addressing the Glendale, as well as 17 other determine whether a SIP submission is 189(d) PM–10 requirements for the jurisdictions and unincorporated complete within 60 days of receipt. This Maricopa area. These reasons support County lands. The nonattainment area section also provides that any plan that an effective date prior to 30 days after also includes the town of Apache has not been affirmatively determined to the date of publication. Junction in Pinal County. EPA codified be complete or incomplete shall become the boundaries of the Maricopa area at C. Notice-and-Comment Under the complete within 6 months by operation Administrative Procedures Act 40 CFR 81.303. of law. EPA’s completeness criteria are Once an area is designated This final agency action is not subject found in 40 CFR part 51, appendix V. nonattainment for PM–10, section 188 to the notice-and-comment The 189(d) plan submittal became of the CAA outlines the process for requirements of the APA, 5 U.S.C. complete by operation of law on June classifying the area as moderate or 533(b). EPA believes that because of the 21, 2008. serious and establishes the area’s limited time provided to make findings attainment deadline. In accordance with EPA proposed to partially approve of failure to submit regarding SIP section 188(a), at the time of and partially disapprove the 189(d) plan submissions, Congress did not intend designation, all PM–10 nonattainment on September 9, 2010 (75 FR 54806). On such findings to be subject to notice- areas, including the Maricopa area, were January 25, 2011, prior to any final EPA and-comment rulemaking. However, to initially classified as moderate. action, Arizona withdrew the 189(d) the extent such findings are subject to A moderate PM–10 nonattainment plan from the Agency’s consideration. notice-and-comment rulemaking, EPA area must be reclassified to serious PM– II. Final Action invokes the good cause exception 10 nonattainment by operation of law if pursuant to the APA, 5 U.S.C. 553(d)(3). EPA determines after the applicable A. Finding of Failure To Submit Notice and comment are unnecessary attainment date that, based on air Required SIP Revisions because no EPA judgment is involved in quality, the area failed to attain by that making a nonsubstantive finding of If Arizona does not submit the date. CAA sections 179(c) and 188(b)(2). failure to submit SIPs required by the On May 10, 1996, EPA reclassified the required plan revisions within 18 Maricopa area as a serious PM–10 months of the effective date of today’s 1 In a 1994 rulemaking, EPA established the nonattainment area. 61 FR 21372. rulemaking, pursuant to CAA section Agency’s selection of the sequence of these two As a serious PM–10 nonattainment 179(a) and 40 CFR 52.31, the offset sanctions: The offset sanction under section sanction identified in CAA section 179(b)(2) shall apply at 18 months, followed 6 area, the Maricopa area acquired a new months later by the highway sanction under section attainment deadline of no later than 179(b) will be applied in the affected 179(b)(1) of the Act. EPA does not choose to deviate December 31, 2001. CAA section area. If the State has still not made a from this presumptive sequence in this instance. 188(c)(2). However CAA section 188(e) complete submittal 6 months after the For more details on the timing and implementation offset sanction is imposed, then the of the sanctions, see 59 FR 39832 (August 4, 1994), allows states to apply for up to a 5-year promulgating 40 CFR 52.31, ‘‘Selection of sequence extension of that deadline if certain highway funding sanction will apply in of mandatory sanctions for findings made pursuant conditions are met. Arizona requested the affected area, in accordance with 40 to section 179 of the Clean Air Act.’’

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CAA. Furthermore, providing notice requires EPA to establish a plan for section 6 of the Executive Order do not and comment would be impracticable informing and advising any small apply to this rule. because of the limited time provided governments that may be significantly F. Executive Order 13175, Coordination under the statute for making such or uniquely impacted by the rule. With Indian Tribal Governments determinations. Finally, notice and EPA has determined that today’s comment would be contrary to the action does not include a Federal Executive Order 13175, entitled public interest because it would divert mandate that may result in estimated ‘‘Consultation and Coordination with Agency resources from the critical costs of $100 million or more to either Indian Tribal Governments’’ (65 FR substantive review of submitted SIPs. State, local, or tribal governments in the 67249, November 9, 2000), requires EPA See 58 FR 51270, 51272, note 17 aggregate, or to the private sector. The to develop an accountable process to (October 1, 1993); 59 FR 39832, 39853 CAA provision discussed in this rule ensure ‘‘meaningful and timely input by (August 4, 1994). requires states to submit SIPs. This rule tribal officials in the development of merely finds that Arizona has not met regulatory policies that have tribal III. Statutory and Executive Order implications.’’ This final rule does not Reviews that requirement. Accordingly, no additional costs to State, local, or tribal have tribal implications, as specified in A. Executive Order 12866, Regulatory governments, or to the private sector, Executive Order 13175. It will not have Planning and Review result from this action. substantial direct effects on tribal governments, on the relationship The Office of Management and Budget E. Executive Order 13132, Federalism (OMB) has exempted this regulatory between the Federal government and action from Executive Order 12866, Federalism (64 FR 43255, August 10, Indian tribes, or on the distribution of entitled ‘‘Regulatory Planning and 1999) revokes and replaces Executive power and responsibilities between the Review.’’ Orders 12612 (Federalism) and 12875 Federal government and Indian tribes. (Enhancing the Intergovernmental Thus, Executive Order 13175 does not B. Paperwork Reduction Act Partnership). Executive Order 13132 apply to this rule. This action does not impose an requires EPA to develop an accountable G. Executive Order 13045, Protection of information collection burden under the process to ensure ‘‘meaningful and Children From Environmental Health provisions of the Paperwork Reduction timely input by State and local officials Risks and Safety Risks Act, 44 U.S.C. 3501 et seq. Burden is in the development of regulatory EPA interprets Executive Order 13045 defined at 5 CFR 1320.3(b). policies that have federalism (62 FR 19885, April 23, 1997) as implications.’’ ‘‘Policies that have C. Regulatory Flexibility Act applying only to those regulatory federalism implications’’ is defined in actions that concern health or safety The Regulatory Flexibility Act (RFA) the Executive Order to include risks, such that the analysis required generally requires an agency to conduct regulations that have ‘‘substantial direct under section 5–501 of the Executive a regulatory flexibility analysis of any effects on the States, on the relationship rule subject to notice and comment Order has the potential to influence the between the national government and rulemaking requirements unless the regulation. This rule is not subject to the States, or on the distribution of agency certifies that the rule will not Executive Order 13045 because it power and responsibilities among the have a significant economic impact on merely finds that Arizona has failed to various levels of government.’’ Under a substantial number of small entities. make a submission that is required Executive Order 13132, EPA may not Small entities include small businesses, under the Clean Air Act. issue a regulation that has federalism small not-for-profit enterprises, and implications, that imposes substantial small governmental jurisdictions. H. Executive Order 13211, Actions That This final rule will not have a direct compliance costs, and that is not Significantly Affect Energy Supply, significant impact on a substantial required by statute, unless the Federal Distribution, or Use number of small entities because government provides the funds This rule is not subject to Executive findings of failure to submit required necessary to pay the direct compliance Order 13211, ‘‘Actions Concerning SIP revisions do not by themselves costs incurred by State and local Regulations That Significantly Affect create any new requirements. Therefore, governments, or EPA consults with Energy Supply, Distribution, or Use’’ (66 I certify that this action will not have a State and local officials early in the FR 28355, May 22, 2001) because it is significant economic impact on a process of developing the proposed not a significant regulatory action under substantial number of small entities. regulation. EPA also may not issue a Executive Order 12866. regulation that has federalism D. Unfunded Mandates Reform Act implications and that preempts State I. National Technology Transfer and Under section 202 of the Unfunded law unless the Agency consults with Advancement Act Mandates Reform Act of 1995 State and local officials early in the Section 12 of the National Technology (‘‘Unfunded Mandates Act’’), signed into process of developing the proposed Transfer and Advancement Act law on March 22, 1995, EPA must regulation. (NTTAA) of 1995 requires Federal prepare a budgetary impact statement to This rule will not have substantial agencies to evaluate existing technical accompany any proposed or final rule direct effects on the States, on the standards when developing a new that includes a Federal mandate that relationship between the national regulation. To comply with NTTAA, may result in estimated costs to State, government and the States, or on the EPA must consider and use ‘‘voluntary local, or tribal governments in the distribution of power and consensus standards’’ (VCS) if available aggregate; or to the private sector, of responsibilities among the various and applicable when developing $100 million or more. Under section levels of government, as specified in programs and policies unless doing so 205, EPA must select the most cost- Executive Order 13132, because it does would be inconsistent with applicable effective and least burdensome not alter the relationship or the law or otherwise impractical. alternative that achieves the objectives distribution of power and The EPA believes that VCS are of the rule and is consistent with responsibilities established in the Clean inapplicable to this action. Today’s statutory requirements. Section 203 Air Act. Thus, the requirements of action does not require the public to

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perform activities conducive to the use Dated: January 3, 2011. stated that holding 40 percent of the of VCS. Jared Blumenfeld, award fee until the final evaluation does Regional Administrator, Region IX. not consider the completion of J. Executive Order 12898: Federal individual contract line items or Actions To Address Environmental [FR Doc. 2011–3027 Filed 2–11–11; 8:45 am] BILLING CODE 6560–50–P undefinitized work. Justice in Minority Populations and DoD Response: The purpose of Low-Income Population making 40 percent of the award-fee pool Executive Order (EO) 12898 (59 FR DEPARTMENT OF DEFENSE available under the final evaluation 7629 (Feb. 16, 1994)) establishes federal period is to set aside a sufficient amount executive policy on environmental Defense Acquisition Regulations to protect the taxpayer’s interest in the justice. Its main provision directs System event a contractor fails to meet federal agencies, to the greatest extent contractual obligations. Assuming the practicable and permitted by law, to 48 CFR Parts 216 and 252 contract is properly structured, there is nothing in the rule that prohibits make environmental justice part of their RIN 0750–AF51 mission by identifying and addressing, contractors from being paid for completed contract line items or work as appropriate, disproportionately high Defense Federal Acquisition and adverse human health or performed under undefinitized Regulation Supplement; Award-Fee contracts. environmental effects of their programs, Contracts (DFARS Case 2006–D021) policies, and activities on minority b. Comment: The respondents populations and low-income AGENCY: Defense Acquisition expressed concern that holding 40 populations in the United States. Regulations System, Department of percent award fee until the final Defense (DoD). evaluation does not reward contract EPA lacks the discretionary authority ACTION: Final rule. performance, particularly if a contract is to address environmental justice in this terminated before the final evaluation. rulemaking. SUMMARY: DoD is issuing a final rule One respondent was concerned that by K. Congressional Review Act amending the Defense Federal making a specified percentage of the Acquisition Regulation Supplement award fee available for the final The Congressional Review Act, 5 (DFARS) to address award-fee contracts, evaluation period, in the event of a U.S.C. 801 et seq., as added by the Small including eliminating the use of termination for convenience, the Business Regulatory Enforcement provisional award-fee payments. contractor may not have the ability to Fairness Act of 1996, generally provides DATES: Effective Date: February 14, earn that final award–fee percentage. that before a rule may take effect, the 2011. DoD response: The rule does not agency promulgating the rule must change the current procedures for FOR FURTHER INFORMATION CONTACT: submit a rule report, which includes a Mr. terminations for convenience. In the copy of the rule, to each House of the Mark Gomersall, Defense Acquisition event of a termination for convenience Congress and to the Comptroller General Regulations System, OUSD (AT&L) prior to the final evaluation period, DPAP/DARS, 3060 Defense Pentagon, of the United States. EPA will submit a contractors will be eligible to earn Room 3B855, Washington, DC 20301– report containing this rule and other award fee available up to the point of 3060. Telephone 703–602–0302; required information to the U.S. Senate, the termination. facsimile 703–602–0350. Please cite the U.S. House of Representatives, and c. Comment: One respondent was DFARS Case 2006–D021. the Comptroller General of the United concerned that holding of 40 percent of States prior to publication of the rule in SUPPLEMENTARY INFORMATION: the award fee until final evaluation will the Federal Register. A major rule I. Background negatively affect cash flow. The cannot take effect until 60 days after it respondents were also concerned that is published in the Federal Register. DoD published a proposed rule in the the proposed rule will increase financial This action is not a ‘‘major rule’’ as Federal Register (75 FR 22728) on April risk to Government contractors and 30, 2010, to revise guidance for award- defined by 5 U.S.C. section 804(2). This result in an imbalance in the risk/ fee evaluations and payments, eliminate rule will be effective February 14, 2011. reward relationship. One respondent the use of provisional award-fee was concerned, therefore, that the rule L. Petitions for Judicial Review payments, and incorporate DoD policy will unfavorably impact DoD’s supplier guidance on the use of objective criteria. base by adversely impacting suppliers’ Under section 307(b)(1) of the Clean A new clause entitled Award Fee sets ability to attract debt and equity Air Act, petitions for judicial review of forth the use of award fees in DoD investment. this action must be filed in the United contracts. DoD Response: Contractors will States Court of Appeals for the continue to be paid incurred costs on appropriate circuit by April 15, 2011. II. Discussion and Analysis cost-type contracts, completed work Filing a petition for reconsideration by A. Analysis of Public Comments under fixed-price contracts with the Administrator of this final rule does progress payments, or milestones not affect the finality of this rule for the In response to the proposed rule, DoD achieved under fixed-price contracts purposes of judicial review nor does it received comments from three respondents. A discussion of the with performance-based payments. extend the time within which a petition comments is provided below: Accordingly, a contractor’s cash flow for judicial review may be filed, and should not be significantly impacted. shall not postpone the effectiveness of 1. Making 40 Percent of the Award-Fee Since contractors who consistently meet such rule or action. This action may not Pool Available for the Final Evaluation contractual performance requirements be challenged later in proceedings to a. Comment: The respondents will maximize the amount of award fee enforce its requirements (see section considered the language aligning fee earned, there is no imbalance in the 307(b)(2)). distributions with contract performance risk/reward relationship. There should Authority: 42 U.S.C. 7401 et seq. and cost schedules. One respondent be little, if any, impact on a superior

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performer’s ability to attract debt and performance. DoD expects contracting e. Comment: Respondents suggested equity investment. officers to utilize appropriate contract that DoD should reconsider the policy d. Comment: One respondent types. that prohibits roll-over of unearned commented that the 40 percent fee b. Comment: One respondent award fee. withhold until final evaluation is suggested DoD delete the language at DoD Response: Contractors should not arbitrary. The respondent requested DFARS 216.45–2(3)(A)(1). be given a second opportunity to obtain DoD to consider reducing the 40 percent DoD Response: DoD believes the unearned award fees when they fail to of the award-fee amount held until final respondent meant proposed DFARS meet cost, schedule, and technical evaluation to a minimum of 20 percent. 216.405–2(3)(i)(A)(2) (renumbered from performance criteria specified in the DoD response: DoD agrees that under current DFARS 216.405–2(c)(3)(i)(A)(2)), contract. The roll-over of unearned certain circumstances it may be which states that the CPAF contract award fee would provide a disincentive appropriate to establish a lower should not be used to avoid developing to contractors to meet cost, schedule, percentage of award fee to be available objective targets so a cost-plus- and technical performance criteria for the final evaluation period. incentive-fee (CPIF) contract can be specified in the contract in a given Therefore, DFARS 216.405–2(1) has used. This language has not been evaluation period if the contractor been revised to state that the percentage revised by this rule. CPAF contract believes they will be given additional of award fee available for the final types should not be used instead of a opportunities to obtain that unearned evaluation may be set below 40 percent CPIF contract type where a CPFF award fee in subsequent evaluation if the contracting officer determines that contract type is appropriate. periods. a lower percentage is appropriate, and 4. Other Issues B. Other Change this determination is approved by the head of the contracting activity. a. Comment: One respondent In addition to changes made in recommended the reference to the response to the public comments, the 2. Elimination of Provisional Award-Fee ‘‘Government’’ be revised to reference phrase ‘‘held for’’ has been replaced by Payments the ‘‘Contracting Officer’’ in the the phrase ‘‘available for’’ in DFARS a. Comment: One respondent was proposed clause at DFARS 252.216– 216.405–2(1) to better reflect DoD concerned that the elimination of 70XX. policy. provisional award-fee payments will DoD Response: DoD agrees. DFARS III. Executive Order 12866 negatively affect cash flow. One 252.216–7005 has been changed respondent suggested that DoD should accordingly. Furthermore, the reference This is not a significant regulatory provide a definition of ‘‘provisional to ‘‘the Contracting Officer’s final action and, therefore, was not subject to award-fee payments’’ and consider evaluation’’ in DFARS 216.405–2(2) has review under Section 6(b) of Executive continuation of provisional award-fee been revised for clarity to reference ‘‘the Order 12866, Regulatory Planning and payments, but with more restrictions. fee-determining official’s final Review, dated September 30, 1993. This DoD response: DoD understands the evaluation.’’ rule is not a major rule under 5 U.S.C. respondents’ concerns. However, the b. Comment: One respondent 804. payment of award fee prior to the end suggested that DoD clarify the definition IV. Regulatory Flexibility Act of an award-fee period is not of CPAF such that it includes only appropriate since the contractor’s contracts that provide for fee only on an DoD certifies that this final rule will performance has not been evaluated and award-fee basis, and does not include not have a significant economic impact the contractor may not earn that paid any hybrid award-fee/incentive-fee on a substantial number of small entities award fee during that period. Because contracts. within the meaning of the Regulatory DoD has made the policy decision that DoD Response: No change to the Flexibility Act, 5 U.S.C. 601, et seq., provisional award-fee payments are not definition has been made. Award-fee because most contracts awarded to appropriate, no definition of the term is portions of hybrid contracts shall be small entities use simplified acquisition required. subject to the award-fee requirements of procedures or are awarded on a b. Comment: One respondent stated this rule. competitive fixed-price basis and do not that payment for successful completion c. Comment: Respondents suggested utilize award-fee type incentives. Of the of elements of multiple-incentive that the proposed rule should not be 1.16 million contracts awarded to small contracts should not be affected by the applied retroactively. businesses in Fiscal Year 2010, less than proposed rule’s elimination of DoD Response: The incorporation into 0.1 percent were award-fee contracts. provisional award fees. an existing contract of the new clause at The rule prohibits roll-over of DoD Response: DoD agrees. There is DFARS 252.216–7005 would require a unearned award fee, and requires that at nothing in the rule that prohibits bilateral modification to that contract. least 40 percent of the award-fee pool be payment when a contractor has The rule does not require contracting available for the final performance successfully completed elements of a officers to insert DFARS 252.216–7005 evaluation with the intent of multiple-incentive contract. into existing contracts. However, in incentivizing the contractor throughout cases where its use may be justified, the performance of the contract. Any impact 3. Selection of Contract Type contracting officer may insert the clause of these requirements on small a. Comment: According to one via a bilateral modification in businesses that do have award-fee respondent, limitations on cost-plus- accordance with FAR 1.108(d). contracts is mitigated by the fact that award-fee (CPAF) contracts have the d. Comment: Respondents suggested contractors will continue to be paid unintended consequence of encouraging that award-fee contract funding costs on cost-type contracts, and the use of the less desirable cost-plus- modifications should be provided progress or performance-based fixed-fee (CPFF) contract type. concurrent with the fee-determining payments on fixed-price contracts. DoD Response: The purpose of the official’s rating. Therefore, contractors’ cash flow will proposed rule is to ensure the amount DoD Response: This rule has no effect not be impacted significantly unless of award fees paid on CPAF contracts is on the timeliness of funding there is a failure to meet the commensurate with the contractor’s modifications. performance criteria in the contract.

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Furthermore, the final rule provides contract type is a multiple-incentive ancillary to the development of a major more flexibility regarding the contract containing both objective weapon system or equipment, where— requirement that 40 percent of the incentives and subjective award-fee (1) It is more advantageous; and award-fee pool must be available for the criteria (i.e., cost-plus-incentive-fee/ final evaluation period. With the award-fee or fixed-price-incentive/ (2) The purpose of the acquisition is approval of the head of the contracting award-fee). clearly to determine or solve specific activity, the contracting officer can (3) See PGI 216.401(e) for guidance on problems associated with the major determine that, in some cases, a the use of award-fee contracts. weapon system or equipment. percentage of less than 40 percent of the ■ 4. Revise section 216.405–2 to read as (ii) Do not apply the weighted award-fee pool is appropriate to be follows: guidelines method to cost-plus-award- made available for the final evaluation fee contracts for either the base (fixed) period. 216.405–2 Cost-plus-award-fee contracts. fee or the award fee. Additionally, no comments were (1) Award-fee pool. The award-fee (iii) The base fee shall not exceed received in response to publication of pool is the total available award fee for three percent of the estimated cost of the the proposed rule with respect to the each evaluation period for the life of the impact of the proposed rule on small contract. The contracting officer shall contract exclusive of the fee. entities. perform an analysis of appropriate fee (4) See PGI 216.405–2 for guidance on the use of cost-plus-award-fee contracts. V. Paperwork Reduction Act distribution to ensure at least 40 percent of the award fee is available for the final ■ 5. Revise section 216.406 to read as The final rule does not impose any evaluation so that the award fee is follows: information collection requirements that appropriately distributed over all require the approval of the Office of evaluation periods to incentivize the 216.406 Contract clauses. Management and Budget under the contractor throughout performance of Paperwork Reduction Act (44 U.S.C. the contract. The percentage of award (e)(1) Use the clause at 252.216–7004, 3501, et seq.). fee available for the final evaluation Award Fee Reduction or Denial for Jeopardizing the Health or Safety of List of Subjects in 48 CFR Parts 216 and may be set below 40 percent if the Government Personnel, in all 252 contracting officer determines that a lower percentage is appropriate, and solicitations and contracts containing Government procurement. this determination is approved by the award-fee provisions. Ynette R. Shelkin, head of the contracting activity (HCA). (2) Use the clause at 252.216–7005, Editor, Defense Acquisition Regulations The HCA may not delegate this approval Award Fee, in solicitations and System. authority. contracts when an award-fee contract is Therefore, 48 CFR parts 216 and 252 (2) Award-fee evaluation and contemplated. are amended as follows: payments. Award-fee payments other than payments resulting from the ■ 1. The authority citation for 48 CFR PART 252—SOLICITATION evaluation at the end of an award-fee parts 216 and 252 continues to read as PROVISIONS AND CONTRACT period are prohibited. (This prohibition follows: CLAUSES does not apply to base-fee payments.) Authority: 41 U.S.C. 421 and 48 CFR The fee-determining official’s rating for ■ chapter 1. 6. Add section 252.216–7005 to read award-fee evaluations will be provided as follows: to the contractor within 45 calendar PART 216—TYPES OF CONTRACTS days of the end of the period being 252.216–7005 Award Fee. evaluated. The final award-fee payment ■ 2. Revise section 216.401, paragraph As prescribed in 216.406(e)(2), insert (e), to read as follows: will be consistent with the fee- determining official’s final evaluation of the following clause: 216.401 General. the contractor’s overall performance AWARD FEE (FEB 2011) * * * * * against the cost, schedule, and The Contractor may earn award fee from a (e) Award-fee plans required in FAR performance outcomes specified in the minimum of zero dollars to the maximum 16.401(e) shall be incorporated into all award-fee plan. amount stated in the award-fee plan in this award-fee type contracts. Follow the (3) Limitations. contract. In no event will award fee be paid procedures at PGI 216.401(e) when (i) The cost-plus-award-fee contract to the Contractor for any evaluation period in planning to award an award-fee shall not be used— which the Government rates the Contractor’s contract. (A) To avoid— overall cost, schedule, and technical ■ 3. Add section 216.401–71 to read as (1) Establishing cost-plus-fixed-fee performance below satisfactory. The follows: contracts when the criteria for cost-plus- Contracting Officer may unilaterally revise fixed-fee contracts apply; or the award-fee plan prior to the beginning of 216.401–71 Objective criteria. (2) Developing objective targets so a any rating period in order to redirect (1) Contracting officers shall use cost-plus-incentive-fee contract can be contractor emphasis. objective criteria to the maximum extent used; or (End of clause) possible to measure contract (B) For either engineering [FR Doc. 2011–3116 Filed 2–11–11; 8:45 am] performance. Objective criteria are development or operational system BILLING CODE 5001–08–P associated with cost-plus-incentive-fee development acquisitions that have and fixed-price–incentive contracts. specifications suitable for simultaneous (2) When objective criteria exist but research and development and the contracting officer determines that it production, except a cost-plus-award- is in the best interest of the Government fee contract may be used for individual also to incentivize subjective elements engineering development or operational of performance, the most appropriate system development acquisitions

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DEPARTMENT OF COMMERCE The EA/RIR/IRFA is accessible via the § 648.21 also specify that IOY for Illex Internet at http://www.nero.noaa.gov. and Loligo squid is equal to the National Oceanic and Atmospheric NMFS prepared a Final Regulatory combination of Research Set-Aside Administration Flexibility Analysis (FRFA), which is (RSA) and DAH, with no TALFF contained in the Classification section specified for squid. For butterfish, the 50 CFR Part 648 of this rule. Copies of the FRFA and the regulations specify that a butterfish [Docket No. 100804323–0569–02] Small Entity Compliance Guide are bycatch TALFF will be specified only if available from: Patricia Kurkul, Regional TALFF is specified for mackerel. RIN 0648–BA03 Administrator, National Marine At its June 8–10, 2010, meeting in Fisheries Service, Northeast Region, 55 Fisheries of the Northeastern United New York, NY, the Council Great Republic Drive, Gloucester, MA States; Atlantic Mackerel, Squid, and recommended MSB specifications for 01930–2276, or via the Internet at Butterfish Fisheries; Specifications the 2011 fishing year. The Council http://www.nero.noaa.gov. and Management Measures considered the recommendations made Written comments regarding the by its Monitoring Committee and AGENCY: National Marine Fisheries burden-hour estimates or other aspects Scientific and Statistical Committee Service (NMFS), National Oceanic and of the collection-of-information (SSC). The SSC recommends ABC. SSC Atmospheric Administration (NOAA), requirements contained in this rule may advice accounts for scientific Commerce. be submitted to NMFS, Northeast uncertainty regarding stock status and ACTION: Final rule. Regional Office, and by e-mail to biological reference points in [email protected], or fax recommending the ABC, and the SUMMARY: This final rule implements to 202–395–7285. Council relies on that ABC 2011 specifications and management FOR FURTHER INFORMATION CONTACT: Aja recommendation to set other measures for the Atlantic mackerel, Peters-Mason, Fishery Policy Analyst, specifications. In addition to 2011 squid, and butterfish (MSB) fisheries. 978–281–9195, fax 978–281–9135. specifications for each of the MSB Specifically, this action sets quotas for SUPPLEMENTARY INFORMATION: species, the Council recommended a the MSB fisheries, modifies the measure modification to the provision that that transfers Loligo squid (Loligo) quota Background transfers Trimester I quota underages to underages from Trimester I to Regulations implementing the MSB Trimesters II and III for the Loligo Trimesters II and III by limiting the Fishery Management Plan (FMP) appear fishery. The Council submitted these Trimester II quota increase to no more at 50 CFR part 648, subpart B. recommendations, along with the than 50 percent, and revises the 72-hr Regulations governing foreign fishing required analyses, for agency review on pre-trip observer notification appear at 50 CFR part 600, subpart F. July 19, 2010, with final submission on requirement for the Loligo fishery to The regulations at §§ 648.21 and September 23, 2010. A proposed rule for accommodate vessels departing for 600.516(c) require that NMFS, based on the 2011 MSB specifications and multiple day trips in a week. These the maximum optimum yield (Max OY) management measures was published specifications and management of each fishery, as established by the on November 17, 2010 (75 FR 70187), measures promote the utilization and regulations, annually publish a rule and the public comment period for the conservation of the MSB resource. specifying the amounts of the initial proposed rule ended on December 17, DATES: Effective February 14, 2011. optimum yield (IOY), allowable 2010. Details concerning the Council’s ADDRESSES: Copies of supporting biological catch (ABC), domestic annual development of these measures were documents used by the Mid-Atlantic harvest (DAH), and domestic annual presented in the preamble of the Fishery Management Council (Council), processing (DAP), as well as, where proposed rule and are not repeated here. including the Environmental applicable, the amounts for total Final MSB Specifications and Assessment (EA) and Regulatory Impact allowable level of foreign fishing Management Measures for the 2011 Review (RIR)/Initial Regulatory (TALFF) and joint venture processing Fishing Year Flexibility Analysis (IRFA), are (JVP) for the affected species managed available from: Dr. Christopher M. under the FMP. In addition, these This action implements the following Moore, Executive Director, Mid-Atlantic regulations allow specifications to be MSB specifications and management Fishery Management Council, Suite 201, specified for up to 3 years, subject to measures for the 2011 fishing year, 800 N. State Street, Dover, DE 19901. annual review. The regulations at which are described in detail below.

TABLE 1—FINAL SPECIFICATIONS, IN METRIC TONS (MT), FOR ATLANTIC MACKEREL, SQUID, AND BUTTERFISH FOR 2011 FISHING YEAR

Specifications Loligo Illex Mackerel Butterfish

Max OY ...... 32,000 Unknown Unknown Unknown ABC ...... 24,000 24,000 47,395 1,500 IOY ...... 20,000 23,328 46,779 500 DAH ...... 1 19,906 23,328 2 46,779 3 495 DAP ...... 19,906 23,328 31,779 495 JVP ...... N/A N/A 0 0 TALFF ...... N/A N/A 0 0 1 Excludes 94 mt for RSA. 2 Includes a 15,000-mt catch of Atlantic mackerel by the recreational fishery. 3 Excludes 5 mt for RSA.

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Atlantic Mackerel Atlantic Squids moratorium permit. Such vessels This action specifies the mackerel Loligo intending to land more than 2,500 lb ABC at 47,395 mt, based on the formula (1.13 mt) of Loligo are now required to ¥ This action specifies a Loligo Max OY notify the NMFS Northeast Fishery ABC = T C. T, or total annual catch, is of 32,000 mt, an ABC of 24,000 mt, an the yield associated with a fishing Observer Program (NEFOP) at least 72 IOY of 20,000 mt, an RSA of 94 mt, and hr, but not more than 10 days before mortality rate that is equal to the target a DAH and DAP of 19,906 mt. The FMP fishing mortality rate (F). The embarking on a Loligo trip. This does not authorize the specification of adjustment is intended to reduce the Transboundary Resources Advisory JVP and TALFF for the Loligo fishery Committee (TRAC) could not establish burden of this requirement for vessels because of the domestic industry’s that embark on multiple trips that last biomass reference points or target F at capacity to harvest and process the OY its March 2010 mackerel stock status less than 24 hr during a single week by for this fishery; therefore, there will be allowing them to notify for several assessment, and recommended that total no JVP or TALFF in 2011. annual catches not exceed the average upcoming trips at one time. total landings (80,000 mt) over the last Distribution of the Loligo DAH Illex 3 years (2006–2008) until new As was done in fishing years 2007 This action specifies the Illex ABC as information is available. C is the through 2010, this action allocates the 24,000 mt, and specifies IOY, DAH, and estimated catch of mackerel in Canadian 2011 Loligo DAH into trimesters, DAP as 23,328 mt to account for waters (32,605 mt) for the upcoming according to percentages specified in discards, which were estimated as 2.8 fishing year. Thus 80,000 mt minus the FMP, as follows: percent of total catch in the last 32,605 mt results in the 2011 mackerel assessment. The FMP does not authorize ABC of 47,395 mt. The 2010 TRAC TABLE 2—TRIMESTER ALLOCATION OF the specification of JVP and TALFF for assessment estimated that U.S. mackerel LOLIGO QUOTA IN 2011 the Illex fishery because of the domestic discards from 2004–2008 (the most fishing industry’s capacity to harvest recent years for which complete data are Trimester Percent Metric and to process the IOY from this fishery. available) accounted for 1.3 percent of tons 1 total catch. Thus NMFS is specifying the Butterfish mackerel IOY and DAH at 46,779 m I (Jan–Apr) ...... 43 8,560 This action specifies the butterfish (ABC minus 616 mt for discards). The II (May–Aug) ...... 17 3,384 III (Sep–Dec) ...... 40 7,962 ABC at 1,500 mt, and the IOY at 500 mt, DAH includes commercial harvest plus and DAH and DAP at 495 mt. the 15,000 mt available for the Total ...... 100 19,906 Additionally, consistent with MSB recreational fishery. regulations, the Council recommended, While a surplus existed between ABC 1 Trimester allocation after 94-mt RQ deduction. and this action is specifying, zero and DAH for many years, that surplus TALFF for butterfish because zero has disappeared due to downward For the 2010 fishing year, Trimester I TALFF is specified for mackerel. adjustments of the specifications in Loligo underages greater than 25 percent Amendment 10 created a butterfish recent years. Analysis of the state of the of the Trimester I quota were distributed mortality cap for the Loligo fishery, world mackerel market and possible evenly between Trimesters II and III. which is equal to 75 percent of the increases in U.S. production levels The Council expressed concern that the butterfish ABC. Thus, this action sets concluded that specifying an IOY butterfish mortality cap on the Loligo the butterfish mortality cap at 1,125 mt. resulting in zero TALFF will yield fishery, established in 2010 by If the portion of the butterfish mortality positive social and economic benefits to Amendment 10 to the FMP cap allocated to Trimester I (January– both U.S. harvesters and processors, and (Amendment 10) (75 FR 11441, March April) or Trimester III (September– to the Nation. For these reasons NMFS 11, 2010), could result in a substantial December) is harvested, the directed is specifying IOY at level that can be Trimester I underage if the Loligo Loligo fishery will close for the fully harvested by the domestic fleet fishery is closed because the Trimester remainder of that trimester. (46,779 mt), thereby precluding the I butterfish catch cap is reached. Under specification of a TALFF, in order to the 2010 underage distribution scheme, Comments and Responses support the U.S. mackerel industry. this could result in a large roll-over of NMFS received seven comments from This action maintains JVP at zero. In Loligo quota to Trimester II, when the industry entities: Three from the Garden the past, the Council recommended a butterfish catch cap cannot close the State Seafood Association (GSSA), JVP greater than zero because it believed fishery. Therefore, this action limits the submitted on behalf of several fishery U.S. processors lacked the ability to roll-over of quota from Trimester I to organizations; one from Lund’s process the total amount of mackerel Trimester II to no more than 50 percent Fisheries, Incorporated; one submitted that U.S. harvesters could land. of the Trimester II allocation. This on behalf of Seafreeze, Ltd.; one from However, for the past 7 years, the adjustment will continue to prevent an Top Catch, Inc.; and one from Council has recommended zero JVP underharvest of the annual quota by TrawlWorks, Inc. In addition, there was because U.S. shoreside processing distributing the quota across the one form letter submitted with capacity for mackerel has expanded. remaining trimesters, while reducing signatures from 73 individuals. Some The Council concluded that processing management uncertainty related to the commenters identified issues that are capacity was no longer a limiting factor implementation of the butterfish not related to this action; only relative to domestic production of mortality cap for the Loligo fishery. comments related to the proposed mackerel, even at the higher DAP of specifications are responded to below. 100,000 mt; this is even more true with Adjustment to the Loligo Pre-trip Trip Comment 1: All of the industry the specified DAP of 31,779 mt. The Notification Requirement groups and the 73 individuals who differential between the DAH and the The action changes the 72-hr pre-trip commented through the form letter DAP reflects a projection that the observer notification requirement stated their opposition to the proposed recreational mackerel fishery will land established through Amendment 10 for specifications for butterfish, due to the 15,000 mt. vessels issued a Loligo and butterfish butterfish mortality cap specified for the

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Loligo fishery. Most of these 1,500 mt in 2008 was made at a time GSSA also stated that recent commenters noted that the butterfish when no new assessment data were downward trends in the butterfish stock stock assessment results produced by available, in an effort to discourage a may be due to increased predation. the Northeast Fisheries Science Center’s directed butterfish fishery. GSSA stated They believe that, because predation 49th Stock Assessment Workshop (SAW the view that SAW 49 determined that mortality is high and because Loligo 49) did not include a finding that butterfish were not overfished, nor were squid is a major butterfish predator, overfishing was occurring, and did not they overfished in the past; therefore, management measures that promote the attribute the butterfish stock decline to the 1,500-mt ABC is based on erroneous utilization of the Loligo resource may fishing mortality. All of the commenters information. They argued that setting actually be beneficial to the butterfish expressed concern about the restrictive the ABC at 4,445 mt is more stock. butterfish mortality cap, given the scientifically sound, and appropriately Response 1: The MSB FMP and its uncertainty in the butterfish stock risk averse. implementing regulations require the assessment results produced by SAW Seafreeze stated that the 2011 specification of the butterfish ABC, and 49, arguing that the uncertainty means butterfish specifications violate National the resulting butterfish mortality cap. the level specified for the cap cannot be Standard 1 because the butterfish quota NMFS acknowledges that SAW 49 did justified. prevents a directed butterfish fishery not produce approved biological All of the commenters expressed from occurring, and the butterfish reference points, and thus did not make concern that the butterfish mortality cap mortality cap would result in the a formal determination that the will be attained, and that participants in premature closure of the Loligo fishery. butterfish stock is currently overfished. the Loligo fishery will be precluded Thus, they concluded that the butterfish The stock assessment concluded that from fully harvesting the Loligo quota, specifications will prevent the Loligo fishing mortality has been declining causing unnecessary economic harm to fishery from achieving optimum yield, over time, and has been very low in participants in the Loligo fishery. GSSA in violation of National Standard 1. recent years. However, SAW 49 also and Lunds both requested that NMFS Seafreeze also stated that the recommended that point estimates of consider the potential loss of income specifications violate National Standard both biomass and fishing mortality that will occur in Mid-Atlantic 2 because they ignore the best available should be interpreted with caution, and communities. GSSA, Lunds, Top Catch, science, namely the most recent NEFSC noted that the biological reference Inc., and the form letter stated the view bottom trawl survey results. Seafreeze points could not be estimated because that measures to regulate butterfish, a claimed that the Autumn 2009 and the stock does not appear to be at bycatch species with a 3-year lifespan, Spring 2010 bottom trawl surveys both equilibrium. It also concluded that the should not control the $50-million showed butterfish catches comparable stock assessment appropriately reflected Loligo fishery. TrawlWorks stated that to the period from 1980–1990 when stock trends, demonstrating a Loligo harvesters will be particularly butterfish biomass was estimated at convincing long-term decreasing trend impacted if the butterfish mortality cap 125,000–150,000 mt, therefore in spawning stock biomass (SSB), with is attained in the fall, and the Loligo indicating that the butterfish stock can recent biomass estimates among the fishery is closed when Loligo is usually sustain an ABC of 20,000 mt. They lowest in the time series. abundant. GSSA noted that the decline stated that, because the life span of While butterfish fishing mortality is in butterfish stock abundance is butterfish is about 3 years, it is low, and overfishing appears not to be unrelated to the recent rate of Loligo imperative to use this recent trawl occurring, the butterfish mortality cap fishing, and that the economic losses survey data. Seafreeze suggested that was designed by the Council in that would result from closure of the NMFS should reject the proposed Amendment 10 to minimize butterfish Loligo fishery would be much greater specifications, reassess the butterfish bycatch in the Loligo fishery, not to than any potential benefit to the stock based on trawl survey data, and address overfishing. In addition to the butterfish resource. establish a butterfish ABC that will butterfish mortality cap, Amendment 10 GSSA, Lunds, Top Catch, Inc., and allow for a directed butterfish fishery. enacted a rebuilding program for the form letter specifically requested GSSA noted that the 2004 SARC only butterfish. At the time Amendment 10 NMFS to specify the butterfish ABC at had abundance estimates based on was being developed, the 2004 4,445 mt, a level the commenters survey data from the R/V Albatross, and butterfish assessment (SAW 38) claimed is justified based on the best that calibration exercises since that indicated that a reduction in fishing available science. GSSA, Lunds, and time, that compare R/V Albatross data mortality may lead to improvements in Top Catch stated their view that this with new data from the R/V Bigelow, the butterfish stock. The analysis in level was identified by the SSC as a safe, shows that that butterfish catch data Amendment 10 noted that the butterfish scientifically justified harvest level. The from the R/V Albatross were biased low. mortality cap could be a tool to limit the form letter also stated that it is They stated that, in their view, the SAW portion of butterfish fishing mortality unjustified to use a precautionary 49 estimated 2008 butterfish biomass of attributable to the Loligo fishery and, approach when specifying butterfish 88,800 mt would indicate that setting accordingly, may provide rebuilding ABC in light of the uncertainty in the the butterfish ABC at 20,000 mt will benefits to the stock. Though more recent assessment. The commenters result in no risk to the stock. recent information provided in SAW 49 expressed the view that guesswork was GSSA further asserted that the lack of indicates that fishing mortality is low used to quantify butterfish predation reference points for the butterfish stock, compared to natural mortality, and is mortality. GSSA and Lunds stated their the fact that butterfish predation likely not the driver of long-term view that the range of ABCs considered mortality far surpasses fisheries declines in SSB, both SAW 38 and SAW valid by the SSC included a 25,000-mt mortality, and the fact that the Autumn 49 did determine that butterfish option that was risk-neutral; therefore, 2010 bottom trawl survey results have discards were equal to twice the annual they concluded that the ABC of 1,500 yet to be compiled, all indicate that landings. Amendment 10 identified the mt seems excessively precautionary. there is no information to inform Loligo fishery as the predominate source GSSA and Lund’s pointed out that the abundance projections for butterfish for of butterfish discards. Thus, butterfish ABC was set at 4,545 mt in 2011, making any management action Amendment 10 enacted the butterfish 2007, and that the reduction of ABC to arbitrary and unsupported by science. mortality cap as a permanent measure to

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limit butterfish bycatch in the Loligo reason for the reduction of the ABC to upturn constitutes a trend. NMFS notes fishery. 1,500 mt for subsequent years. Though that the butterfish stock assessment is Though there was considerable no new stock assessment data were not based solely on survey biomass uncertainty in the recent assessment, available leading up to implementation indices, but incorporates data sets including limited information about the of the 2008 specifications (the action within a stock assessment model. causes of the butterfish stock decline, that first set the butterfish ABC at 1,500 NMFS acknowledges that, if the cap is NMFS determined that there was no mt, and IOY/DAH at 500 mt), the ABC attained before the Loligo fishery has evidence presented that suggests that and IOY were reduced to cap the fishery fully harvested the annual Loligo quota, the status of the butterfish stock has at recent levels (500 mt) to prevent any there could be revenue losses for some improved since the 2004 SAW 38 expansion of the directed fishery of Loligo harvesters. This possibility was assessment concluded that the stock butterfish while the stock is being discussed in the Council’s Initial was overfished. SAW 49 reviewers rebuilt. At that time, the Council was Regulatory Flexibility Analysis (IRFA), agreed that the status of the butterfish developing measures for Amendment 10 which assessed impacts of the proposed stock could not be determined based on to reduce butterfish discards and measures on small businesses. That the assessment. Several commenters rebuild the stock. analysis noted that, in 2009, the Loligo argued that, in their view, the cap is NMFS disagrees that the butterfish fishery ex-vessel value was overly precautionary, and that the specifications violate either National approximately $18 million. It is not uncertainty in the stock assessment Standard 1 or National Standard 2. possible to estimate when the Loligo results means it is inappropriate to be National Standard 1 does not require fishery might reach the cap, because precautionary. NMFS disagrees that this NMFS to specify a quota that will environmental conditions and fleet is necessarily the case, and notes that support a directed fishery if it is behavior are likely to strongly influence this alone is insufficient basis for an inappropriate to the stock condition. In how much butterfish the Loligo fishery increase to the butterfish ABC (and the fact, since 2008, the Council has encounters. If high rates of butterfish resulting butterfish mortality cap). recommended, and NMFS has specified, catch occur, Amendment 10 estimated NMFS notes that the SSC utilized the the butterfish quota at 500 mt to that up to 64 percent of 2006 Loligo results of SAW 49 in making the maintain butterfish landings at low revenue levels could be lost. The recommendation for the ABC specified levels due to concerns about the stock. analysis noted that 2007–2009 landings in this action. The alternate suggested In addition, courts have recognized that were lower than in 2006, so a closure of values for ABC were not validated or optimum yield is a level to be achieved the Loligo fishery would likely have a endorsed by the SSC, as some on a continuing basis and not in a single smaller impact, but concluded that a commenters indicated. Because of year (see North Carolina Fisheries closure related to the butterfish uncertainty about butterfish stock size, Association v. Daley). The commenters mortality cap could substantially restrict and uncertainty about the potential concluded that National Standard 2 is Loligo landings. The economic impacts response of the butterfish stock to violated because the specifications were of the cap are further detailed in fishing pressure, the Council staff developed before the most recent Amendment 10. NMFS notes that the generated a range of potential ABCs for NEFSC bottom trawl survey results were preliminary data for Loligo in 2010 consideration by the SSC. These ranged available. They believe that these survey indicate that landings appear to have from 1,362 mt to 25,000 mt, and were results, which obtained more butterfish decreased from 9,306 mt in 2009 to developed using several different samples than in previous years, must be approximately 6,714 mt in 2010. NMFS approaches. The 4,445-mt ABC (average incorporated into the 2011 butterfish also notes that, during the debate over catch from 1996–2008) and the 25,000- specifications. NMFS disagrees. Amendment 10, some industry members mt ABC (an F of 0.39 applied to a National Standard 2 requires the use of often stated they could avoid butterfish 45,000-mt stock) cited by the the best available science at the point in voluntarily, and thus minimize commenters were included in this time that an action is being developed. interactions. range. While the SSC used this The Council’s process for developing Comment 2: GSSA and Lund’s both information from Council staff, in annual specifications for the butterfish supported setting aside 3 percent of the conjunction with SAW 49, to inform its fishery begins in June each year, and the mackerel IOY as RSA, but thought that final ABC recommendation, the range Council utilized the best science the proposed rule should have included generated by Council staff was in no available to it at that time to develop information about the 14 bilateral way binding for the SSC, nor was it this action. If, in the future, new research priorities that emerged from endorsed by the SSC as appropriate or information indicates that the butterfish the recent TRAC. scientifically justified. There is no basis stock condition has changed, the Response 2: NMFS solicited research for the commenters’ contention that Council can consider that information proposals under the 2011 Mid-Atlantic these higher values are risk-averse or in the 2012 specifications process. RSA Program through the Federal risk-neutral; there is no SSC conclusion The results of the Autumn 2009, Register (75 FR 3092, January 19, 2010), to that effect. The SSC ultimately Spring 2010, and Autumn 2010 NEFSC and reviewed them in an application recommended 1,500 mt as the 2011 surveys were not included in the data process that is separate from the setting butterfish ABC because available used for the SAW 49 stock assessment. of annual specifications. The information suggested that, provided NMFS notes that survey indices do not solicitation document is the appropriate improved environmental conditions provide a point estimate of stock size or vehicle to identify research priorities. affecting recruitment, the butterfish amount to a status determination. The The distribution of RSA quota to fund stock size could increase in the future calibration-adjusted butterfish catch research depends both on Council if the 2011 ABC was maintained at this rates from the Autumn 2009 and specified research priorities and on the level. The SSC used the best scientific Autumn 2010 bottom trawl surveys desire and capacity for the research information available to it at the time it were 6.4 kg/tow and 5.59 kg/tow, community to compete for mackerel made its recommendation. respectively. Though these numbers are RSA. For the 2011 RSA Program, no The commenters are correct that the about twice the average from Autumn proposals requesting mackerel RSA butterfish ABC was set at 4,545 mt until surveys from 1999–2008 (3.4 kg/tow), it were approved, and thus no mackerel 2007, but did not fully describe the is not possible to determine if this RSA will be allocated through this

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action. The identification and catch. Despite the progress made in the these fishermen. The overall development of joint U.S./Canada recent joint assessment of the mackerel conservation objectives of the butterfish research priorities for mackerel is the stock, there is no joint process for the mortality cap will be undermined if the subject of U.S./Canada Bilateral allocation of the mackerel resource, and mortality cap is exceeded in Trimester Fisheries Consultations and is not the the United States and Canada set their I prior to the implementation of this subject of this rulemaking. catch levels for mackerel independently. action. Comment 3: GSSA and Lund’s NMFS notes that, despite the fact that The Council prepared an EA for the expressed concern that the proposed the mackerel quota allocation for 2011 2011 specifications, and the NOAA mackerel specifications, which reflect (46,779 mt) is lower than the 2010 Assistant Administrator for Fisheries the TRAC’s recommendation that U.S. allocation of 115,000 mt, it is still concluded that there will be no and Canadian catch not exceed 80,000 almost double the average U.S. mackerel significant impact on the human mt, are overly conservative and will landings of 25,000 mt during the past environment as a result of this rule. A unnecessarily reduce U.S. access to the 3 years (2007–2009). NMFS notes that copy of the EA is available upon request mackerel resource. Both organizations mackerel apparently continues to be (see ADDRESSES). are supportive of the proposed 2011 unavailable to the U.S. fleet, as This action is authorized by 50 CFR U.S. ABC of 47,395 mt as an interim preliminary 2010 landings of mackerel part 648 and has been determined to be quota, given the current uncertainty in are approximately 10,000 mt. As a not significant for purposes of Executive stock status, and the method used to result, the 2011 mackerel quota appears Order 12866 (E.O. 12866). derive expected Canadian catch; unlikely to constrain the fishery. NMFS, pursuant to section 604 of the however, they expressed concern that Comment 4: GSSA and Lund’s both Regulatory Flexibility Act, has prepared the Canadian mackerel quota for 2011 support the proposed specifications for a FRFA, included in the preamble of has been specified at 60,000 mt, a value Illex and Loligo squid. this final rule, in support of the 2011 higher than the Council expected. Response 4: NMFS is implementing MSB specifications and management Lund’s expressed concern that scientific the proposed specifications through this measures. The FRFA describes the uncertainty has recently led to final rule. economic impact that this final rule, dramatically reduced catch levels for Classification along with other non-preferred otherwise apparently healthy resources alternatives, will have on small entities. like mackerel, which, until the 2010 The Administrator, Northeast Region, The FRFA incorporates the economic assessment, was described as not NMFS, determined that these impacts and analysis summarized in the overfished, with overfishing not specifications are necessary for the IRFA, a summary of the significant occurring. conservation and management of the issues raised by the public in response Both organizations supported the Atlantic mackerel, squid, and butterfish to the IRFA, and NMFS responses to Agency’s determination that both JVP fisheries and that it is consistent with those comments. A copy of the IRFA, and TALFF be set at zero because there the Magnuson-Stevens Fishery the RIR, and the EA are available upon is sufficient demand for mackerel in Conservation and Management Act and request (see ADDRESSES). world markets to create opportunities other applicable laws. for U.S. harvesters and shoreside The Assistant Administrator for Statement of Need for This Action processors to utilize all of the U.S. ABC. Fisheries finds good cause under 5 This action proposes 2011 Response 3: Although the TRAC was U.S.C. 553(d)(3), to waive the 30-day specifications and management unable to establish reference points for delay in effectiveness otherwise measures for MSB fisheries and stock biomass and fishing mortality, the required by the Administrative modifies existing management measures assessment indicated reduced stock Procedure Act. If there is a delay in to improve the management of MSB productivity and a lack of older fish in implementing this action, NMFS will fisheries. A complete description of the the survey and catch, and suggested lack the regulatory authority to issue a reasons why this action is being limiting total catch of mackerel to closure for the Loligo fishery if the considered, and the objectives of and 80,000 mt (average U.S./Canadian butterfish mortality cap is attained. The legal basis for this action, is contained landings from 2006–2008) until new Loligo squid fishery is particularly in the preamble to the proposed and information suggests that a different active during the first Trimester of the final rules and is not repeated here. amount is appropriate. The SSC’s advice fishing year. Given the timing of Loligo to the Council was consistent with this fleet activity, and history of fishery A Summary of the Significant Issues recommendation, and NMFS has interactions between Loligo and Raised by the Public Comments in determined that the approach reflected butterfish, a delay in the effectiveness of Response to the IRFA, a Summary of the in the specifications is based on the best this action is likely to result in a Assessment of the Agency of Such scientific information available. situation where the Trimester I Issues, and a Statement of Any Changes The U.S. quota is derived from ABC butterfish mortality cap is exceeded. Made in the Final Rule as a Result of by estimating Canadian catch in 2011 at The regulations state that any overages Such Comments 32,605 mt. NMFS acknowledges the of the butterfish mortality cap during Eight unique comment letters were commenters’ concern that the Canadian Trimester I and II will be applied to received during the comment period on Government has set the mackerel quota Trimester III of the same year. If the the proposed specifications. The at 60,000 mt, but does not believe it is 2011 mortality for Trimester I is comments were not specifically directed necessary to adjust the Canadian catch exceeded prior to the effectiveness of to the IRFA, but each of the comments estimate in response. While the this rule, this overage must be deducted expressed concern about negative Canadian quota provides the from Trimester III, and the Loligo fishery economic impacts of the proposed ABCs opportunity for the Canadian fishery to would be closed even more prematurely for butterfish and mackerel, on small increase landings substantially, NMFS during Trimester III. This outcome entities. All public comments on issues believes that the Council’s derivation would severely limit the activity of relative to the IRFA, in which method, which is based on recent Loligo fishermen who participate in the commenters expressed concern directly fishery performance, provides the most fishery during the latter portion of the and indirectly about the economic reliable estimate of 2011 Canadian year, which would negatively impact impacts of the 2011 specifications, are

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described in the ‘‘Comments and Description of the Steps the Agency Has associated with this measure is expected Responses’’ section of the preamble to Taken To Minimize the Significant to be minimal. this final rule and, therefore, are not Economic Impacts on Small Entities The Illex IOY (23,328 mt) specified in repeated here. NMFS’s response to the Consistent With the Stated Objectives of this action represents a slight decrease concerns about the economic impacts Applicable Statutes, Including a compared to status quo (24,000 mt). associated with the butterfish mortality Statement of the Factual, Policy, and Though annual Illex landings have been cap for the Loligo fishery is provided in Legal Reasons for Selecting the increasing over the past 3 years (9,002 Response 1; and Response 3 addresses Alternative Adopted in the Final Rule mt for 2007, 15,900 mt for 2008, and 18,419 mt for 2009), the landings were concerns about mackerel. and Why Each One of the Other Significant Alternatives to the Rule lower than the specified level. Thus, Description and Estimate of Number of Considered by the Agency Which Affect implementation of this action should Small Entities To Which the Rule Will the Impact on Small Entities Was not result in a reduction in revenue or Apply Rejected a constraint on expansion of the fishery in 2011. Based on permit data for 2010, the Actions Implemented With the Final The butterfish IOY specified in this numbers of potential fishing vessels in Rule action (500 mt) represents status quo, as the 2011 fisheries are as follows: 360 The mackerel IOY specified in this compared to 2010, and represents only Loligo/butterfish moratorium permits, action (46,779 mt, with 15,000 mt a minimal constraint to vessels relative 76 Illex moratorium permits, 2,156 allocated to recreational catch) to the landings in recent years. Due to mackerel permits, 1,844 incidental represents a reduction from status quo market conditions, there has not been a squid/butterfish permits, and 1,844 (115,000 mt). Despite the reduction, the directed butterfish fishery in recent MSB party/charter permits. There are no specified IOY is above recent U.S. years; therefore, recent landings have large entities participating in this landings; mackerel landings for 2007– been low. Given the lack of a directed fishery, as defined in section 601 of the 2009 averaged 23,310 mt; and butterfish fishery and low butterfish preliminary landings in 2010 are landings, this action is not expected to RFA. Therefore, there are no approximately 10,000 mt. Thus, the reduce revenues in this fishery more disproportionate economic impacts on reduction does not pose a constraint to than minimally. small entities. Many vessels participate vessels relative to the landings in recent As discussed in the FRFA for MSB in more than one of these fisheries; years. Accordingly, no reductions in Amendment 10, the butterfish mortality therefore, permit numbers are not revenues for the mackerel fishery are cap has a potential for economic impact additive. expected as a result of this action. on fishery participants. The Loligo Description of Projected Reporting, The Loligo IOY (20,000 mt) represents fishery will close during Trimesters I a slight increase from the status quo Recordkeeping, and Other Compliance and III, if the butterfish mortality cap is (19,000 mt). Loligo landings for 2007– reached. If the Loligo fishery is closed in Requirements 2009 averaged 11,019 mt. This provides response to butterfish catch before the This action contains a change to an an opportunity to increase landings, entire Loligo quota is harvested, then a information collection previously though if recent trends continue, there loss in revenue is possible. The approved by the Office of Management may be no increase in landings, despite potential for Loligo revenue loss is and Budget (OMB) under OMB Control the increase in the allocation. No dependent upon the size of the reductions in revenues for the Loligo Number 0648–0601: Atlantic Mackerel, butterfish mortality cap, which is based fishery are expected as a result of this Squid, and Butterfish Amendment 10 on the level of butterfish abundance. As action. Data Collection. This action requires the butterfish stock rebuilds, the The accounting methods for Loligo mortality cap will increase, and the that vessels intending to embark on trimester underages implemented in this potential for lost Loligo revenue should Loligo trips notify NEFOP at least 72 hr, action will distribute any substantial decrease. When the butterfish stock but no more than 10 days before their underage in Trimester I (greater than rebuilds, a directed butterfish fishery intended departure dates. The 25 percent of the Trimester I quota) could resume, provided discards are adjustment will also allow vessels to between Trimester II and III, but will kept low, and would have economic submit an email address for contact. limit the transfer of quota such that the benefits for fishery participants. This change did not increase the Trimester II quota could increase by reporting burden for these entities, and 50 percent, at most. This method of Alternatives to the Actions in the Final has been approved by OMB. This action transferring quota may provide some Rule does not duplicate, overlap, or conflict economic benefit to the fishery during The Council analysis evaluated two with any other Federal rules. Trimesters II and III, because it will alternatives to this action for mackerel. allow access to underutilized Trimester Based on recent harvest levels, neither I quota later in the fishing year. of the ABC and IOY alternatives would The change to the pre-trip observer represent a constraint on vessels in this notification requirement implemented fishery. The first alternative (status quo; in this action, which would allow least restrictive), which would have set vessels to notify at least 72 hr, but no the ABC at 156,000 mt and IOY at more than 10 days prior to fishing trips, 115,000 mt, was not selected because is an administrative measure to facilitate the ABC would have exceeded the SSC’s the placement of observers aboard the recommendation. Loligo fleet, and is intended to reduce As in the selected action the burden of the notification (intermediately restrictive), the second requirement for vessels that depart on alternative (most restrictive) started multiple trips in a short period by from the SSC recommended stockwide allowing for advance notification. The ABC of 80,000 mt, but instead economic burden on fishery participants subtracted an estimated 41,556 mt for

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Canadian landings. This would have be sufficient to address management other aspect of this data collection, resulted in a U.S. ABC of 38,444 mt, and uncertainty related to the including suggestions for reducing the an IOY and DAH of 37,944 mt (U.S. implementation of the butterfish burden, to NMFS (see ADDRESSES) and ABC minus 1.3 percent for discards). mortality cap in 2011. by e-mail to For this alternative, expected Canadian Two non-selected alternatives were [email protected], or fax catch (41,556 mt) was derived by considered for Illex; both would have to 202–395–7285. examining the relationship between set the ABC at 24,000 mt. The first Notwithstanding any other provision Canadian landings in one year (e.g., alternative would have set IOY, DAH, of the law, no person is required to 1994) and the Canadian landings 2 years and DAP at 24,000 mt (status quo; least respond to, and no person shall be later (e.g., 1996); this analysis was restrictive) rather than the 23,328 mt subject to penalty for failure to comply chosen so that 2009 Canadian landings specified in this action (intermediately with, a collection of information subject could be used to determine expected restrictive). This alternative was not to the requirements of the PRA, unless Canadian landings for 2011. The years selected because the higher that collection of information displays a examined included 1962–2009. Though specifications were inconsistent with currently valid OMB Control Number. the two landings series were found to be the results of the most recent stock strongly correlated (correlation assessment. The second alternative List of Subjects in 50 CFR Part 648 coefficient = 0.71), this method of (most restrictive) would have set IOY, Fisheries, Fishing, Recordkeeping and deriving expected Canadian catch (and DAH, and DAP at 22,656 mt (ABC reporting requirements. the resulting specifications alternative) reduced by 5.6 percent, based on double Dated: February 8, 2011. was not determined to be the best the discard ratio estimate). The Council Samuel D. Rauch III, approach. The landings series compared considered this alternative unnecessarily restrictive. Deputy Assistant Administrator for in the method used to derive 2011 Regulatory Programs, National Marine Canadian catch in the selected One non-selected alternative was Fisheries Service. alternative (U.S. landings in one year considered for butterfish that would For the reasons set out in the and Canadian landings in the next year) maintain the status quo, which only preamble, 50 CFR part 648 is amended were found to have a stronger differs from the selected alternative in as follows: correlation (correlation coefficient = that it would have set Max OY at 12,175 mt. The selected alternative removes the 0.86) than the landings series compared PART 648—FISHERIES OF THE specification of Max OY, because it is in this alternative. Thus, using the NORTHEASTERN UNITED STATES Canadian catch derivation method in no longer supported by best available the selected alternative provides a more science. All other specifications are ■ 1. The authority citation for part 648 reliable estimate of 2011 Canadian identical to the status quo alternative. continues to read as follows: catch. Small Entity Compliance Guide Authority: 16 U.S.C. 1801 et seq. There were two alternatives to the selected action evaluated for Loligo. Section 212 of the Small Business ■ 2. In § 648.21, paragraph (f)(2) is Both alternatives set the Max OY at Regulatory Enforcement Fairness Act of revised to read as follows: 32,000 mt, the same level as the selected 1996 states that, for each rule or group action. The first alternative (status quo) of related rules for which an agency is § 648.21 Procedures for determining initial would have set the ABC and IOY at required to prepare a FRFA, the agency annual amounts. 19,000 mt; this alternative was not shall publish one or more guides to * * * * * chosen, because it was not consistent assist small entities in complying with (f) * * * with the ABC recommended by the SSC. the rule, and shall designate such (2) Any underages of commercial The second alternative (least restrictive) publications as ‘‘small entity compliance period quota for Trimester I that are would have set the ABC at the level guides.’’ The agency shall explain the greater than 25 percent of the Trimester recommended by the SSC (24,000 mt), actions a small entity is required to take I quota will be reallocated to Trimesters but would have set the IOY at 22,560 mt to comply with a rule or group of rules. II and III of the same year. The (ABC reduced by 6 percent to account As part of this rulemaking process, a reallocation of quota from Trimester I to for discards). This alternative was not letter to permit holders that also serves Trimester II is limited, such that the adopted by the Council because two as small entity compliance guide was Trimester II quota may only be sources of uncertainty, namely the prepared. The guide will be sent to all increased by 50 percent; the remaining uncertainty regarding the discard holders of permits issued for the MSB portion of the underage will be estimate and the management fisheries. In addition, copies of this final reallocated to Trimester III. Any uncertainty regarding the operation of rule and guide (i.e., permit holder letter) underages of commercial period quota the Loligo fishery in 2011, given the are available from the Regional for Trimester I that are less than 25 impending implementation of the Administrator and are also available percent of the Trimester I quota will be butterfish mortality cap, warranted from NMFS, Northeast Region (see applied to Trimester III of the same year. setting the IOY at the more ADDRESSES). Any overages of commercial quota for precautionary level specified in this This action contains a collection-of- Trimesters I and II will be subtracted action (intermediately restrictive). information requirement subject to the from Trimester III of the same year. The alternatives also differed in how Paperwork Reduction Act (PRA), which * * * * * Trimester I underages and overages was previously approved by OMB under ■ 3. In § 648.22, paragraph (a)(2)(i) is would be applied to the Loligo quotas in OMB Control Number 0648–0601. The revised to read as follows: the following Trimesters. The first public reporting burden for the phone alternative (status quo) would maintain call to declare a Loligo fishing trip is § 648.22 Closure of the fishery. the current measure to distribute an estimated to average 2 min per call per (a) * * * underage in Trimester I greater than 25 trip. Public burden for the phone call to (2) * * * percent of the Trimester I quota evenly cancel a Loligo trip is estimated to (i) If the Regional Administrator between Trimesters II and III. The average 1 min. Send comments determines that the Trimester I closure current measure was not considered to regarding these burden estimates or any threshold has been underharvested by

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25 percent or more, then the amount of number, contact name for coordination NMFS of an upcoming trip, is selected the underharvest shall be reallocated to of observer deployment, telephone by NMFS to carry an observer, and then Trimesters II and III, as specified at number or e-mail address for contact; cancels that trip, then the representative § 648.21(f)(2), through notice in the and the date, time, port of departure, is required to provide notice to NMFS Federal Register. and approximate trip duration, at least of the vessel name, vessel permit * * * * * 72 hr, but no more than 10 days prior number, contact name for coordination ■ 4. Section 648.26 is amended by to beginning any fishing trip, unless it of observer deployment, and telephone revising paragraphs (a) and (d) to read complies with the possession number or e-mail for contact, and the as follows: restrictions in paragraph (c) of this intended date, time, and port of section. departure for the cancelled trip prior to § 648.26 Observer requirements for the Loligo fishery. * * * * * the planned departure time. In addition, if a trip selected for observer coverage (a) A vessel issued a Loligo and (d) If a vessel issued a Loligo and is canceled, then that vessel is required butterfish moratorium permit, as butterfish moratorium permit, as specified at § 648.4(a)(5)(i), must, for the specified at § 648.4(a)(5)(i), intends to to carry an observer, provided an purposes of observer deployment, have possess, harvest, or land 2,500 lb (1.13 observer is available, on its next trip. a representative provide notice to NMFS mt) or more of Loligo per trip or per [FR Doc. 2011–3245 Filed 2–11–11; 8:45 am] of the vessel name, vessel permit calendar day, has a representative notify BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 30

Monday, February 14, 2011

This section of the FEDERAL REGISTER For the Nuclear Regulatory Commission. 111, Transport Standards Staff, contains notices to the public of the proposed Jack W. Foster, Transport Airplane Directorate, Aircraft issuance of rules and regulations. The Chief, Licensing Branch, Division of Materials Certification Service, 1601 Lind purpose of these notices is to give interested Safety and State Agreements, Office of Avenue, SW., Renton, Washington persons an opportunity to participate in the Federal and State Materials and 98057–3356; telephone (425) 227–2432; rule making prior to the adoption of the final Environmental Management Programs. rules. facsimile (425) 227–1320. [FR Doc. 2011–3222 Filed 2–11–11; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 7590–01–P Comments Invited NUCLEAR REGULATORY COMMISSION We invite interested people to take DEPARTMENT OF TRANSPORTATION part in this rulemaking by sending 10 CFR Part 40 written comments, data, or views. The Federal Aviation Administration most helpful comments reference a RIN 3150–AH15 specific portion of the special 14 CFR Part 25 conditions, explain the reason for any [NRC–2011–0003] [Docket No. NM444 Special Conditions No. recommended change, and include 25–11–03–SC] supporting data. We ask that you send Implementation Guidance for us two copies of written comments. Distribution of Source Material to Special Conditions: Gulfstream Model We will file in the docket all Exempt Persons and to General GVI Airplane; Operation Without comments we receive, as well as a Licensees and Revision of General Normal Electric Power report summarizing each substantive public contact with FAA personnel License and Exemptions; Draft AGENCY: Federal Aviation concerning these special conditions. Guidance Document; Correction Administration (FAA), DOT. You can inspect the docket before and AGENCY: Nuclear Regulatory ACTION: Notice of proposed special after the comment closing date. If you Commission. conditions. wish to review the docket in person, go to the address in the ADDRESSES section ACTION: Request for comment; SUMMARY: This action proposes special of this preamble between 7:30 a.m. and correction. conditions for the Gulfstream GVI airplane. The Gulfstream GVI airplane 4 p.m., Monday through Friday, except Federal holidays. SUMMARY: This document corrects a will have numerous electrically notice appearing in the Federal Register operated systems whose function is We will consider all comments we on January 7, 2011, that announces the needed for continued safe flight and receive on or before the closing date for availability of draft implementation landing of the airplane. The applicable comments. We will consider comments guidance for public comment. This airworthiness regulations do not contain filed late if it is possible to do so action is necessary to correct the adequate or appropriate safety standards without incurring expense or delay. We ADAMS Accession Number for the draft for these design features. These may change these special conditions Part 40 implementation guidance. proposed special conditions contain the based on the comments we receive. additional safety standards that the If you want us to acknowledge receipt FOR FURTHER INFORMATION CONTACT: Lisa Administrator considers necessary to of your comments on this proposal, Dimmick, Health Physicist, Office of establish a level of safety equivalent to include with your comments a self- Federal and State Materials and that established by the existing addressed, stamped postcard on which Environmental Management Programs, airworthiness standards. you have written the docket number. U.S. Nuclear Regulatory Commission, We will stamp the date on the postcard DATES: We must receive your comments Washington, DC 20555–0001, telephone: and mail it back to you. 301–415–0694, e-mail: by March 31, 2011. [email protected]. ADDRESSES: You must mail two copies Background of your comments to: Federal Aviation On March 29, 2005, Gulfstream SUPPLEMENTARY INFORMATION: On Administration, Transport Airplane Aerospace Corporation (hereafter January 7, 2011, at 76 FR 1100, NRC Directorate, Attn: Rules Docket (ANM– referred to as ‘‘Gulfstream’’) applied for published a document announcing the 113), Docket No. NM444, 1601 Lind an FAA type certificate for its new availability of draft implementation Avenue, SW., Renton, Washington Gulfstream Model GVI passenger guidance for public comment. In that 98057–3356. You may deliver two airplane. Gulfstream later applied for, publication, the accession number was copies to the Transport Airplane and was granted, an extension of time incorrect. Directorate at the above address. You for the type certificate, which changed In the January 7, 2011, issue of the must mark your comments: Docket No. the effective application date to Federal Register, on page 1101, the first NM444. You can inspect comments in September 28, 2006. The Gulfstream paragraphs in both the second and third the Rules Docket weekdays, except Model GVI airplane will be an all-new, columns, the ADAMS accession number Federal holidays, between 7:30 a.m. and two-engine jet transport airplane with for the guidance document is corrected 4 p.m. an executive cabin interior. The to read ‘‘ML103160257.’’ FOR FURTHER INFORMATION CONTACT: maximum takeoff weight will be 99,600 Dated at Rockville, Maryland, this 24th day Nazih Khaouly, FAA, Airplane and pounds, with a maximum passenger of January 2011. Flight Crew Interface Branch, ANM– count of 19 passengers.

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Type Certification Basis their failure will either reduce the reductions resulting from the associated Under provisions of Title 14 Code of capability of the airplane or the ability failure must be made. Federal Regulations (14 CFR) 21.17, of the crew to cope with adverse 4. Availability of APU operation Gulfstream must show that the operating conditions, or prevent should not be considered in establishing Gulfstream Model GVI airplane continued safe flight and landing of the emergency power system adequacy. (hereafter referred to as ‘‘the GVI’’) meets airplane. The airworthiness standards of Applicability the applicable provisions of part 25 do not contain adequate or appropriate standards for protection of 14 CFR part 25, as amended by As discussed above, these proposed Amendments 25–1 through 25–119, these systems from the adverse effects of operation without normal electrical special conditions are applicable to the 25–122, and 25–124. If the GVI. Should Gulfstream apply at a later Administrator finds that the applicable power. The current rule, § 25.1351(d), date for a change to the type certificate airworthiness regulations (i.e., 14 CFR to include another model incorporating part 25) do not contain adequate or Amendment 25–72, requires safe operation under visual flight rules (VFR) the same novel or unusual design appropriate safety standards for the GVI features, these proposed special because of a novel or unusual design conditions for at least five minutes after loss of all normal electrical power. This conditions would apply to that model as feature, special conditions are well. prescribed under the provisions of rule was structured around traditional § 21.16. airplane designs that used mechanical Conclusion In addition to complying with the control cables and linkages for flight applicable airworthiness regulations control. These manual controls allowed This action affects only certain novel and special conditions, the GVI must the crew to maintain aerodynamic or unusual design features of the GVI. It comply with the fuel vent and exhaust control of the airplane for an indefinite is not a rule of general applicability. period of time after loss of all electrical emission requirements of 14 CFR part List of Subjects in 14 CFR Part 25 34 and the noise certification power. Under these conditions, the requirements of 14 CFR part 36. The mechanical flight control system Aircraft, Aviation safety, Reporting provided the crew with the ability to fly FAA must also issue a finding of and recordkeeping requirements. regulatory adequacy pursuant to section the airplane while attempting to identify 611 of Public Law 92–574, the ‘‘Noise the cause of the electrical failure, start The authority citation for these Control Act of 1972.’’ the engine(s) if necessary, and special conditions is as follows: The FAA issues special conditions, as reestablish some of the electrical power Authority: 49 U.S.C. 106(g), 40113, 44701, defined in 14 CFR 11.19, in accordance generation capability, if possible. 44702, 44704. with § 11.38, and they become part of To maintain the same level of safety the type certification basis under associated with traditional designs, the The Proposed Special Conditions GVI must be designed for operation with § 21.17(a)(2). Accordingly, the Federal Aviation Special conditions are initially the normal sources of engine and auxiliary power unit (APU) generated Administration (FAA) proposes the applicable to the model for which they following special conditions as part of are issued. Should the type certificate electrical power inoperative. Service experience has shown that loss of all the type certification basis for the GVI for that model be amended later to airplanes. include any other model that electrical power from the airplane’s incorporates the same novel or unusual engine and APU driven generators is not Since the total loss of normal design features, the special conditions extremely improbable. Thus, Gulfstream generated electrical power in two engine would also apply to the other model must demonstrate that the airplane is aircraft has not achieved the extremely under provisions of § 21.101. capable of recovering adequate primary improbable level, and since the loss of electrical power generation for safe all electrical power may be catastrophic Novel or Unusual Design Features flight and landing. to aircraft utilizing an electronic flight The GVI incorporates an electronic For compliance purposes, a test control system, the following special flight control system that requires a demonstration of the loss of normal conditions are proposed in lieu of 14 continuous source of electrical power in engine generator must be established CFR 25.1351(d): order to keep the system operable. Due such that: It must be demonstrated by test or a to rapid improvements in airplane 1. The failure condition should be combination of test and analysis that the technology, the applicable airworthiness assumed to occur during night airplane can continue safe flight and landing regulations do not contain adequate or instrument meteorological conditions with inoperative normal engine and APU appropriate safety standards for these (IMC) at the most critical phase of the generator electrical power (electrical power design features. These proposed special flight relative to the electrical power sources excluding the battery and any other conditions for the GVI contain the system design and distribution of standby electrical sources). The airplane additional safety standards that the equipment loads on the system. operation should be considered at the critical Administrator considers necessary to 2. After the unrestorable loss of phase of flight and include the ability to establish a level of safety equivalent to normal engine generator power, the restart the engines and maintain flight for the that established by the existing airplane engine restart capability must maximum diversion time capability being airworthiness standards. be provided and operations continued certified. in IMC. Issued in Renton, Washington, on February Discussion of Proposed Special 3. The airplane should be 3, 2011. Conditions demonstrated to be capable of The GVI incorporates an electronic continuous safe flight and landing. The Jeffrey E. Duven, flight control system that requires a length of time must be computed based Acting Manager,Transport Airplane continuous source of electrical power in on the maximum diversion time Directorate,Aircraft Certification Service. order to keep the system operable. The capability for which the airplane is [FR Doc. 2011–3210 Filed 2–11–11; 8:45 am] criticality of this system is such that being certified. Consideration for speed BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION specific portion of the special and special conditions, the GVI must conditions, explain the reason for any comply with the fuel vent and exhaust Federal Aviation Administration recommended change, and include emission requirements of 14 CFR part supporting data. We ask that you send 34 and the noise certification 14 CFR Part 25 us two copies of written comments. requirements of 14 CFR part 36. The [Docket No. NM442 Special Conditions No. We will file in the docket all FAA must also issue a finding of 25–11–02–SC] comments we receive, as well as a regulatory adequacy pursuant to section report summarizing each substantive 611 of Public Law 92–574, the ‘‘Noise Special Conditions: Gulfstream Model public contact with FAA personnel Control Act of 1972.’’ GVI Airplane; Interaction of Systems concerning these special conditions. The FAA issues special conditions, as and Structures You can inspect the docket before and defined in 14 CFR 11.19, in accordance after the comment closing date. If you with § 11.38, and they become part of AGENCY: Federal Aviation wish to review the docket in person, go the type certification basis under Administration (FAA), DOT. to the address in the ADDRESSES section § 21.17(a)(2). ACTION: Notice of proposed special of this preamble between 7:30 a.m. and Special conditions are initially conditions. 4 p.m., Monday through Friday, except applicable to the model for which they Federal holidays. are issued. Should the type certificate SUMMARY: This action proposes special We will consider all comments we conditions for the Gulfstream GVI for that model be amended later to receive on or before the closing date for include any other model that airplane. This airplane will have novel comments. We will consider comments or unusual design features when incorporates the same novel or unusual filed late if it is possible to do so design features, the special conditions compared to the state of technology without incurring expense or delay. We envisioned in the airworthiness would also apply to the other model may change these special conditions under provisions of § 21.101. standards for transport category based on the comments we receive. airplanes. These design features include If you want us to acknowledge receipt Novel or Unusual Design Features systems that affect the structural of your comments on this proposal, The Model GVI airplane will capability of the airplane. The include with your comments a self- incorporate novel or unusual design applicable airworthiness regulations do addressed, stamped postcard on which features. These features are systems that not contain adequate or appropriate you have written the docket number. may affect the airplane’s structural safety standards for these design We will stamp the date on the postcard performance, either directly or as a features. The proposed special and mail it back to you. conditions contain the additional safety result of failure or malfunction. That is, standards that the Administrator Background the airplane’s systems affect how it considers necessary to establish a level On March 29, 2005, Gulfstream responds in maneuver and gust of safety equivalent to that established Aerospace Corporation (hereafter conditions, and thereby affect its by the existing airworthiness standards. referred to as ‘‘Gulfstream’’) applied for structural capability. These systems may an FAA type certificate for its new also affect the aeroelastic stability of the DATES: We must receive your comments airplane. These systems include the by March 31, 2011. Gulfstream Model GVI passenger airplane. Gulfstream later applied for, GVI’s flight control systems, autopilots, ADDRESSES: You must mail two copies stability augmentation systems, load of your comments to: Federal Aviation and was granted, an extension of time for the type certificate, which changed alleviation systems, and fuel Administration, Transport Airplane management systems. Such systems Directorate, Attn: Rules Docket (ANM– the effective application date to September 28, 2006. The Gulfstream represent a novel and unusual feature 113), Docket No. NM442, 1601 Lind when compared to the technology Avenue, SW., Renton, Washington Model GVI airplane will be an all-new, two-engine jet transport airplane with envisioned in the current airworthiness 98057–3356. You may deliver two standards. copies to the Transport Airplane an executive cabin interior. The Directorate at the above address. You maximum takeoff weight will be 99,600 Discussion of Proposed Special must mark your comments: Docket No. pounds, with a maximum passenger Conditions count of 19 passengers. NM442. You can inspect comments in Special conditions are needed to the Rules Docket weekdays, except Type Certification Basis require consideration of the effects of Federal holidays, between 7:30 a.m. and Under provisions of Title 14, Code of systems on the structural capability and 4 p.m. Federal Regulations (14 CFR) 21.17, aeroelastic stability of the airplane, both FOR FURTHER INFORMATION CONTACT: Carl Gulfstream must show that the in the normal and in the failed state, Niedermeyer, FAA, Airframe/Cabin Gulfstream Model GVI airplane because these effects are not covered by Safety Branch, ANM–115, Transport (hereafter referred to as ‘‘the GVI’’) meets current regulations. Standards Staff, Transport Airplane the applicable provisions of 14 CFR part These proposed special conditions are Directorate, Aircraft Certification 25, as amended by Amendments 25–1 identical or nearly identical to those Service, 1601 Lind Avenue, SW., through 25–119, 25–122, and 25–124. If previously required for type Renton, Washington 98057–3356; the Administrator finds that the certification of other transport airplane telephone (425) 227–2279; facsimile applicable airworthiness regulations models. These proposed special (425) 227–1320. (i.e., 14 CFR part 25) do not contain conditions were derived initially from SUPPLEMENTARY INFORMATION: adequate or appropriate safety standards standardized requirements developed for the GVI because of a novel or by the Aviation Rulemaking Advisory Comments Invited unusual design feature, special Committee (ARAC), comprised of We invite interested people to take conditions are prescribed under the representatives of the FAA, Europe’s part in this rulemaking by sending provisions of § 21.16. Joint Aviation Authorities (now written comments, data, or views. The In addition to complying with the replaced by the European Aviation most helpful comments reference a applicable airworthiness regulations Safety Agency), and industry.

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These proposed special conditions 1. The following criteria must be used structural performance of the airplane require that the airplane meets the for showing compliance with this (e.g., system failure conditions that structural requirements of subparts C proposed special condition for airplanes induce loads, change the response of the and D of 14 CFR part 25 when the equipped with flight control systems, airplane to inputs such as gusts or pilot airplane systems are fully operative. autopilots, stability augmentation actions, or lower flutter margins). These proposed special conditions also systems, load alleviation systems, fuel B. Effects of Systems on Structures require that the airplane meet these management systems, and other systems requirements considering failure that either directly or as a result of 1. General. The following criteria will conditions. In some cases, reduced failure or malfunction affect structural be used in determining the influence of margins are allowed for failure performance. a system and its failure conditions on conditions based on system reliability. 2. The criteria defined herein only the airplane structure. These special conditions establish a address the direct structural 2. System fully operative. With the level of safety that neither raises nor consequences of the system responses system fully operative, the following lowers the standard set forth in the and performance. They cannot be apply: applicable regulations. considered in isolation but should be (a) Limit loads must be derived in all In these proposed special conditions included in the overall safety evaluation and in the current standards and normal operating configurations of the of the airplane. These criteria may in system from all the limit conditions regulations, the term ‘‘any’’ is used. Use some instances duplicate standards of this term has traditionally been specified in Subpart C (or used in lieu already established for this evaluation. of those specified in Subpart C), taking understood to require all items covered These criteria are only applicable to by the term are addressed, rather than into account any special behavior of structure whose failure could prevent such a system or associated functions or addressing only a portion of the items. continued safe flight and landing. The use of the term ‘‘any’’ in these any effect on the structural performance Specific criteria that define acceptable of the airplane that may occur up to the proposed special conditions continues limits on handling characteristics or this traditional understanding. limit loads. In particular, any significant stability requirements when operating nonlinearity (rate of displacement of Applicability in the system degraded or inoperative control surface, thresholds or any other mode are not provided in this proposed As discussed above, these proposed system nonlinearities) must be special condition. special conditions are applicable to the accounted for in a realistic or 3. Depending upon the specific GVI. Should Gulfstream apply at a later conservative way when deriving limit characteristics of the airplane, date for a change to the type certificate loads from limit conditions. additional studies may be required that to include another model incorporating (b) The airplane must meet the go beyond the criteria provided in this the same novel or unusual design strength requirements of part 25 (static proposed special condition in order to features, these proposed special strength, residual strength), using the demonstrate the capability of the conditions would apply to that model as specified factors to derive ultimate loads airplane to meet other realistic well. from the limit loads defined above. The conditions such as alternative gust or effect of nonlinearities must be Conclusion maneuver descriptions for an airplane investigated beyond limit conditions to This action affects only certain novel equipped with a load alleviation system. ensure the behavior of the system or unusual design features of the GVI. It 4. The following definitions are presents no anomaly compared to the is not a rule of general applicability. applicable to this proposed special behavior below limit conditions. condition. However, conditions beyond limit List of Subjects in 14 CFR Part 25 (a) Structural performance: Capability conditions need not be considered when of the airplane to meet the structural Aircraft, Aviation safety, Reporting it can be shown that the airplane has requirements of 14 CFR part 25. and recordkeeping requirements. design features that will not allow it to (b) Flight limitations: Limitations that The authority citation for this special exceed those limit conditions. condition is as follows: can be applied to the airplane flight conditions following an in-flight (c) The airplane must meet the Authority: 49 U.S.C. 106(g), 40113, 44701, aeroelastic stability requirements of 44702, 44704. occurrence and that are included in the flight manual (e.g., speed limitations, § 25.629. The Proposed Special Conditions avoidance of severe weather conditions, 3. System in the failure condition. For any system failure condition not shown Accordingly, the Federal Aviation etc.). to be extremely improbable, the Administration (FAA) proposes the (c) Operational limitations: following apply: following special conditions as part of Limitations, including flight limitations, the type certification basis for the GVI that can be applied to the airplane (a) At the time of occurrence. Starting airplanes. operating conditions before dispatch from 1-g level flight conditions, a (e.g., fuel, payload and master minimum realistic scenario, including pilot A. General equipment list limitations). corrective actions, must be established The GVI is equipped with systems (d) Probabilistic terms: The to determine the loads occurring at the that affect structural performance, either probabilistic terms (probable, time of failure and immediately after the directly or as a result of a failure or improbable, extremely improbable) used failure. malfunction. The influence of these in this proposed special condition are (1) For static strength substantiation, systems and their failure conditions on the same as those used in § 25.1309. these loads multiplied by an appropriate structural performance must be taken (e) Failure condition: The term failure factor of safety that is related to the into account when showing compliance condition is the same as that used in probability of occurrence of the failure with the requirements of Subparts C and § 25.1309; however, this proposed are ultimate loads to be considered for D of part 25 of Title 14, Code of Federal special condition applies only to system design. The factor of safety (FS) is Regulations. failure conditions that affect the defined in Figure 1.

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(2) For residual strength loads that could result in detrimental (iii) The limit rolling conditions substantiation, the airplane must be able deformation of primary structure. specified in § 25.349 and the limit to withstand two thirds of the ultimate (b) For the continuation of the flight. unsymmetrical conditions specified in loads defined in subparagraph B.3(a)(1). For the airplane in the system failed § 25.367 and § 25.427(b) and (c). For pressurized cabins, these loads must state, and considering any appropriate (iv) The limit yaw maneuvering be combined with the normal operating reconfiguration and flight limitations, conditions specified in § 25.351. differential pressure. the following apply: (3) Freedom from aeroelastic (1) The loads derived from the (v) The limit ground loading instability must be shown up to the following conditions (or used in lieu of conditions specified in § 25.473 and speeds defined in § 25.629(b)(2). For the following conditions) at speeds up § 25.491. failure conditions that result in speeds to VC/MC (or the speed limitation (2) For static strength substantiation, beyond VC/MC, freedom from prescribed for the remainder of the each part of the structure must be able aeroelastic instability must be shown to flight) must be determined: to withstand the loads in paragraph increased speeds, so that the margins (i) The limit symmetrical B.3(b)(1) of this proposed special intended by § 25.629(b)(2) are maneuvering conditions specified in condition multiplied by a factor of maintained. § 25.331 and in § 25.345. (4) Failures of the system that result (ii) The limit gust and turbulence safety depending on the probability of in forced structural vibrations conditions specified in § 25.341 and in being in this failure state. The factor of (oscillatory failures) must not produce § 25.345. safety is defined in Figure 2.

Qj = (Tj)(Pj) applied to all limit load conditions specified combined with the normal operating in Subpart C. Where: differential pressure. Qj = Probability of being in failure condition (4) If the loads induced by the failure (3) For residual strength condition have a significant effect on j substantiation, the airplane must be able Tj = Average time spent in failure condition fatigue or damage tolerance then their j (in hours) to withstand two thirds of the ultimate effects must be taken into account. Pj = Probability of occurrence of failure mode loads defined in paragraph B.3(b)(2) of (5) Freedom from aeroelastic j (per hour) this proposed special condition. For instability must be shown up to a speed Note: If Pj is greater than 10¥3 per flight pressurized cabins, these loads must be determined from Figure 3. Flutter hour then a 1.5 factor of safety must be clearance speeds V′ and V″ may be

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based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).

V′ = Clearance speed as defined by indication systems to achieve the limitations must be such that the § 25.629(b)(2). objective of this requirement. These probability of being in this combined ″ V = Clearance speed as defined by certification maintenance requirements failure state and then subsequently § 25.629(b)(1). must be limited to components that are Qj = (Tj)(Pj) where: encountering limit load conditions is Qj = Probability of being in failure condition not readily detectable by normal extremely improbable. No reduction in j detection and indication systems, and these safety margins is allowed if the Tj = Average time spent in failure condition where service history shows that subsequent system failure rate is greater j (in hours) inspections will provide an adequate than 1E–3 per hour. Pj = Probability of occurrence of failure mode level of safety. Issued in Renton, Washington, on February j (per hour) (b) The existence of any failure 3, 2011. ¥3 condition, not extremely improbable, Note: If Pj is greater than 10 per flight Jeffrey E. Duven, hour, then the flutter clearance speed must during flight that could significantly not be less than V″. affect the structural capability of the Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. airplane and for which the associated (6) Freedom from aeroelastic [FR Doc. 2011–3215 Filed 2–11–11; 8:45 am] instability must also be shown up to V′ reduction in airworthiness can be BILLING CODE 4910–13–P in Figure 3 above, for any probable minimized by suitable flight limitations, system failure condition combined with must be signaled to the flight crew. For example, failure conditions that result any damage required or selected for DEPARTMENT OF TRANSPORTATION investigation by § 25.571(b). in a factor of safety between the airplane (c) Consideration of certain failure strength and the loads of Subpart C Federal Aviation Administration conditions may be required by other below 1.25, or flutter margins below V″, sections of 14 CFR part 25 regardless of must be signaled to the crew during 14 CFR Part 25 calculated system reliability. Where flight. analysis shows the probability of these 5. Dispatch with known failure [Docket No. NM441 Special Conditions No. failure conditions to be less than 10¥9, conditions. If the airplane is to be 25–11–01–SC] criteria other than those specified in this dispatched in a known system failure condition that affects structural Special Conditions: Gulfstream Model paragraph may be used for structural GVI Airplane; Design Roll Maneuver substantiation to show continued safe performance, or that affects the reliability of the remaining system to Requirement for Electronic Flight flight and landing. Controls 4. Failure indications. For system maintain structural performance, then failure detection and indication, the the provisions of this proposed special AGENCY: Federal Aviation following apply: condition must be met, including the Administration (FAA), DOT. (a) The system must be checked for provisions of paragraph B.2 for the ACTION: Notice of proposed special failure conditions, not extremely dispatched condition and paragraph B.3 conditions. improbable, that degrade the structural for subsequent failures. Expected capability below the level required by operational limitations may be taken SUMMARY: This action proposes special part 25 or significantly reduce the into account in establishing Pj as the conditions for the Gulfstream GVI reliability of the remaining system. As probability of failure occurrence for airplane. This airplane will have novel far as reasonably practicable, the flight determining the safety margin in Figure or unusual design features when crew must be made aware of these 1. Flight limitations and expected compared to the state of technology failures before flight. Certain elements operational limitations may be taken envisioned in the airworthiness of the control system, such as into account in establishing Qj as the standards for transport category mechanical and hydraulic components, combined probability of being in the airplanes. These design features include may use special periodic inspections, dispatched failure condition and the an electronic flight control system that and electronic components may use subsequent failure condition for the provides roll control of the airplane daily checks, in lieu of detection and safety margins in Figures 2 and 3. These through pilot inputs to the flight

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computers. These proposed special We will stamp the date on the postcard computers. The current design roll conditions contain the additional safety and mail it back to you. maneuver requirement for structural standards that the Administrator loads in 14 CFR part 25 is inadequate Background considers necessary to establish a level for addressing an airplane with of safety equivalent to that established On March 29, 2005, Gulfstream electronic flight controls that affect by the existing airworthiness standards. Aerospace Corporation (hereafter maneuvering. Special conditions are referred to as ‘‘Gulfstream’’) applied for DATES: We must receive your comments proposed to take into account the effects an FAA type certificate for its new by March 31, 2011. of an electronic flight control system. Gulfstream Model GVI passenger ADDRESSES: You must mail two copies airplane. Gulfstream later applied for, Discussion of Proposed Special of your comments to: Federal Aviation and was granted, an extension of time Conditions Administration, Transport Airplane for the type certificate, which changed The GVI is equipped with an Directorate, Attn: Rules Docket (ANM– the effective application date to electronic flight control system that 113), Docket No. NM441, 1601 Lind September 28, 2006. The Gulfstream provides roll control of the airplane Avenue, SW., Renton, Washington Model GVI airplane will be an all-new, through pilot inputs to the flight 98057–3356. You may deliver two two-engine jet transport airplane with computers. Current part 25 copies to the Transport Airplane an executive cabin interior. The airworthiness regulations account for Directorate at the above address. You maximum takeoff weight will be 99,600 ‘‘control laws’’ for which aileron must mark your comments: Docket No. pounds, with a maximum passenger deflection is proportional to control NM441. You can inspect comments in count of 19 passengers. wheel deflection. They do not address the Rules Docket weekdays, except any nonlinearities 1 or other effects on Type Certification Basis Federal holidays, between 7:30 a.m. and aileron and spoiler actuation that may 4 p.m. Under provisions of Title 14, Code of be caused by electronic flight controls. FOR FURTHER INFORMATION CONTACT: Carl Federal Regulations (14 CFR) 21.17, Therefore, the FAA considers the flight Niedermeyer, FAA, Airframe/Cabin Gulfstream must show that the control system to be a novel and Safety Branch, ANM–115, Transport Gulfstream Model GVI airplane unusual feature compared to those Standards Staff, Transport Airplane (hereafter referred to as ‘‘the GVI’’) meets envisioned when the current regulations Directorate, Aircraft Certification the applicable provisions of 14 CFR part were adopted. Since this type of system Service, 1601 Lind Avenue, SW., 25, as amended by Amendments 25–1 may affect flight loads, and therefore the Renton, Washington 98057–3356; through 25–119, 25–122, and 25–124. If structural capability of the airplane, telephone (425) 227–2279; facsimile the Administrator finds that the special conditions are needed to address (425) 227–1320. applicable airworthiness regulations these effects. (i.e., 14 CFR part 25) do not contain SUPPLEMENTARY INFORMATION: These proposed special conditions adequate or appropriate safety standards differ from current requirements in that Comments Invited for the GVI because of a novel or the special conditions require that the We invite interested people to take unusual design feature, special roll maneuver result from defined part in this rulemaking by sending conditions are prescribed under the movements of the cockpit roll control as written comments, data, or views. The provisions of § 21.16. opposed to defined aileron deflections. In addition to complying with the most helpful comments reference a Also, these proposed special conditions applicable airworthiness regulations specific portion of the special require an additional load condition at and special conditions, the GVI must conditions, explain the reason for any design maneuvering speed (VA), in comply with the fuel vent and exhaust recommended change, and include which the cockpit roll control is emission requirements of 14 CFR part supporting data. We ask that you send returned to neutral following the initial 34 and the noise certification us two copies of written comments. roll input. requirements of 14 CFR part 36. The We will file in the docket all FAA must also issue a finding of Applicability comments we receive, as well as a regulatory adequacy pursuant to section As discussed above, these proposed report summarizing each substantive 611 of Public Law 92–574, the ‘‘Noise special conditions are applicable to the public contact with FAA personnel Control Act of 1972.’’ GVI. Should Gulfstream apply at a later concerning these special conditions. The FAA issues special conditions, as date for a change to the type certificate You can inspect the docket before and defined in 14 CFR 11.19, in accordance to include another model incorporating after the comment closing date. If you with § 11.38, and they become part of the same novel or unusual design wish to review the docket in person, go the type certification basis under features, these proposed special to the address in the ADDRESSES section § 21.17(a)(2). conditions would apply to that model as of this preamble between 7:30 a.m. and Special conditions are initially well. 4 p.m., Monday through Friday, except applicable to the model for which they Federal holidays. are issued. Should the type certificate Conclusion We will consider all comments we for that model be amended later to This action affects only certain novel receive on or before the closing date for include any other model that or unusual design features of the GVI. It comments. We will consider comments incorporates the same novel or unusual is not a rule of general applicability. filed late if it is possible to do so design features, the special conditions without incurring expense or delay. We would also apply to the other model List of Subjects in 14 CFR Part 25 may change these special conditions under provisions of § 21.101. Aircraft, Aviation safety, Reporting based on the comments we receive. and recordkeeping requirements. Novel or Unusual Design Features If you want us to acknowledge receipt The authority citation for these of your comments on this proposal, The GVI is equipped with an special conditions is as follows: include with your comments a self- electronic flight control system that addressed, stamped postcard on which provides roll control of the airplane 1 A nonlinearity is a situation where output does you have written the docket number. through pilot inputs to the flight not change in the same proportion as input.

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Authority: 49 U.S.C. 106(g), 40113, 44701, DEPARTMENT OF TRANSPORTATION Comments Invited 44702, 44704. We invite interested people to take Federal Aviation Administration The Proposed Special Conditions part in this rulemaking by sending written comments, data, or views. The 14 CFR Part 33 Accordingly, the Federal Aviation most helpful comments reference a Administration (FAA) proposes the [Docket No. NE130; Notice No. 33–10–01– specific portion of the special following special conditions as part of SC] conditions, explain the reason for any the type certification basis for the GVI recommended change, and include airplanes. Special Conditions: Pratt and Whitney supporting data. We ask that you send Canada Model PW210S Turboshaft us two copies of written comments. In lieu of compliance with § 25.349(a), Engine Gulfstream must comply with the We will file in the docket all following special conditions. AGENCY: Federal Aviation comments we receive, as well as a Administration (FAA), DOT. report summarizing each substantive The following conditions, speeds, and public contact with FAA personnel cockpit roll control motions (except as ACTION: Notice of proposed special conditions. about these special conditions. You can the motions may be limited by pilot inspect the docket before and after the effort) must be considered in SUMMARY: This action proposes special comment closing date. If you wish to combination with an airplane load conditions for the Pratt and Whitney review the docket in person, go to the factor of zero and of two-thirds of the Canada (PWC) model PW210S address in the ADDRESSES section of this positive maneuvering factor used in turboshaft engine. This engine model preamble between 9 am. and 5 p.m., design. In determining the resulting will have a novel or unusual design Monday through Friday, except Federal control surface deflections, the torsional feature associated with engine operation holidays. flexibility of the wing must be in auxiliary power unit (APU) mode. We will consider all comments we considered in accordance with The applicable airworthiness receive by the closing date for § 25.301(b): regulations do not contain adequate or comments. We will consider comments filed late if it is possible to do so 1. Conditions corresponding to steady appropriate safety standards for this without incurring expense or delay. We rolling velocities must be investigated. design feature. These proposed special may change these special conditions In addition, conditions corresponding to conditions contain the added safety standards that the Administrator based on the comments we receive. maximum angular acceleration must be considers necessary to establish a level If you want us to let you know we investigated for airplanes with engines of safety equivalent to that established received your comments on this or other weight concentrations outboard by the existing airworthiness standards. proposal, send us a pre-addressed, of the fuselage. For the angular DATES: stamped postcard on which the docket acceleration conditions, zero rolling We must receive your comments by March 16, 2011. number appears. We will stamp the date velocity may be assumed in the absence on the postcard and mail it back to you. of a rational time history investigation ADDRESSES: You must mail two copies of the maneuver. of your comments to: Federal Aviation Background Administration, Engine and Propeller On December 5, 2005, PWC applied 2. At VA, sudden movement of the Directorate, Attn: Marc Bouthillier, cockpit roll control up to the limit is for a type certificate for the model Rules Docket (ANE–111), Docket No. PW210S turboshaft engine. The engine assumed. The position of the cockpit NE130, 12 New England Executive Park, roll control must be maintained until a is a free turbine turboshaft designed for Burlington, Massachusetts 01803–5299. a transport category helicopter. This steady roll rate is achieved and then You may deliver two copies to the engine incorporates a two stage must be returned suddenly to the Engine and Propeller Directorate at the compressor driven by a single stage neutral position. above address. You must mark your turbine and a two stage free power comments: Docket No. NE130. You can 3. At VC, the cockpit roll control must turbine driving a two stage reduction be moved suddenly and maintained so inspect comments in the Rules Docket gearbox and main output shaft. The as to achieve a roll rate not less than weekdays, except Federal holidays, control system includes a dual channel that obtained in paragraph 2. between 7:30 am. and 4 p.m. digital electronic control. The engine FOR FURTHER INFORMATION CONTACT: For 4. At V , the cockpit roll control must will incorporate a novel or unusual D technical questions concerning this be moved suddenly and maintained so design feature associated with engine proposed rule contact Marc Bouthillier, operation in auxiliary power unit (APU) as to achieve a roll rate not less than one ANE–111, Engine and Propeller third of that obtained in paragraph 2. mode. The helicopter will incorporate a Directorate, Aircraft Certification main rotor brake what will allow the Issued in Renton, Washington, on February Service, 12 New England Executive engine main output shaft and power 3, 2011. Park, Burlington, Massachusetts 01803– turbine to be brought to a stop and to Ali Bahrami, 5299, telephone (781) 238–7120; remain stationary, while the gas Manager, Transport Airplane Directorate, facsimile (781) 238–7199; e-mail generator portion of the engine Aircraft Certification Service. [email protected]. For legal continues to operate as an APU while questions concerning this proposed rule [FR Doc. 2011–3216 Filed 2–11–11; 8:45 am] on the ground. contact Vincent Bennett, ANE–7 Engine BILLING CODE 4910–13–P The applicable airworthiness and Propeller Directorate, Aircraft standards do not contain adequate or Certification Service, 12 New England appropriate airworthiness standards to Executive Park, Burlington, address this design feature. Massachusetts 01803–5299; telephone These special conditions contain the (781) 238–7044; facsimile (781) 238– additional airworthiness standards 7055; e-mail [email protected]. necessary to establish a level of safety SUPPLEMENTARY INFORMATION: equivalent to the level that would result

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from compliance with the applicable Also, the type certification engine rotor speed, torque, temperature, standards of airworthiness in effect on considerations for function and air bleed and power extraction as the date of application. reliability are common between these specified by the applicant. two engine types in this regard, making (b) Dynamic braking: A total of 400 Type Certification Basis requirements similar to current § 33.96 application-release cycles of simulated Under the provisions of 14 CFR 21.17, generally applicable to turboshaft brake engagements must be made in a PWC must show that the model PW210S engine types. Future rulemaking may manner which clearly demonstrates the turboshaft engine meets the provisions occur to expand the applicability of complete engine’s ability to function of the applicable regulations in effect on § 33.96 to include turboshaft type without adverse affect under the the date of application. The application engines. maximum conditions of engine date is December 5, 2005, which acceleration and deceleration rate, rotor Applicability corresponds to 14 CFR part 33 speed, torque and temperature as Amendment 20. However, PWC has As discussed above, these special specified by the applicant. The engine elected to demonstrate compliance to conditions are applicable to PWC model output shaft must be stopped prior to later amendments of part 33 for this PW210S turboshaft engines. If Pratt and brake-release. model. Therefore, the certification basis Whitney Canada applies later for a (c) One hundred engine starts and for the PW210S model turboshaft engine change to the type certificate to include stops with the output shaft locked in a will be part 33, effective February 1, another related model incorporating the manner simulating rotor brake 1965, as amended by Amendments 33– same novel or unusual design feature, engagement. 1 through 33–24. these special conditions would apply to (d) The tests required by paragraphs If the Administrator finds that the that model as well. (a), (b) and (c) of this section must be applicable airworthiness regulations in performed on the same engine, but this Conclusion part 33, as amended, do not contain engine need not be the same engine adequate or appropriate safety standards This action affects only certain novel used for the tests required by § 33.87 of for the PWC model PW210S turboshaft or unusual design features on one model 14 CFR part 33. engine, because of a novel or unusual of engine. It is not a rule of general (e) The tests required by paragraphs design feature, special conditions are applicability, and it affects only the (a), (b) and (c) of this section must be prescribed under the provisions of applicant who applied to the FAA for followed by engine disassembly to the § 21.16. approval of these features on the engine. extent necessary to show that each The FAA issues special conditions, as List of Subjects in 14 CFR Part 33 engine part conforms to the type design defined by 14 CFR 11.19, in accordance and is eligible for incorporation into an with 14 CFR 11.38, which become part Air transportation, Aircraft, Aviation engine for continued operation in of the type certification basis in safety, Safety. accordance with information submitted accordance with § 21.17(b)(2). The authority citation for these in compliance with § 33.4, Instructions Special conditions are initially special conditions is as follows: for Continued Airworthiness. applicable to the model for which they Authority: 49 U.S.C. 106(g), 40113, 44701– (f) Brake engagement and release: The are issued. Should the type certificate 44702, 44704. effects on the engine of braking and for that model be amended later to releasing the output shaft, including The Proposed Special Conditions include another related model that partial or sudden events while the incorporates the same or similar novel Accordingly, the Federal Aviation engine is running, must be determined. Administration (FAA) proposes the or unusual design feature, or should any Issued in Burlington, Massachusetts, on other model already included on the following special conditions as part of January 30, 2011. the type certification basis for Pratt and same type certificate be modified to Peter A. White, incorporate the same or similar novel or Whitney Canada (PWC) model PW210S turboshaft engines. Acting Manager, Engine and Propeller unusual design feature, the special Directorate, Aircraft Certification Service. conditions would also apply to the other 1. PART 1 DEFINITION. Unless [FR Doc. 2011–3068 Filed 2–11–11; 8:45 am] model. otherwise approved by the Administrator and documented in the BILLING CODE 4910–13–M Novel or Unusual Design Features appropriate manuals and certification The Pratt and Whitney Canada (PWC) documents, the following definition DEPARTMENT OF TRANSPORTATION model PW210S turboshaft engine will applies to this special condition: incorporate a novel or unusual design ‘‘Auxiliary Power Unit Mode’’ Engine Federal Aviation Administration feature associated with engine operation operation with the main output shaft in auxiliary power unit (APU) mode. and power turbine locked and 14 CFR Part 71 Special conditions for APU mode are stationary, while the gas generator proposed to address the novel and portion of the engine continues to [Docket No. FAA–2010–1264; Airspace unusual design feature. The special operate, for the purpose of supplying Docket No. 10–AWP–23] conditions are discussed below. the rotorcraft with electric/hydraulic/ Proposed Amendment of Class D and pneumatic power (as applicable) while Discussion Class E Airspace; Livermore, CA on the ground. The proposed special conditions are 2. PART 33 REQUIREMENTS: AGENCY: Federal Aviation similar to those requirements that (a) Ground locking: A total of 45 Administration (FAA), DOT. currently exist in 14 CFR part 33, hours with the engine output shaft ACTION: Notice of proposed rulemaking § 33.96 Engine Tests in Auxiliary Power locked to simulate rotor brake (NPRM). Unit (APU) Mode. However the current engagement, in a manner which clearly rule only applies to turboprop type demonstrates the complete engine’s SUMMARY: This action proposes to engines, therefore special conditions are ability to function without adverse amend Class E airspace at Livermore, needed to apply appropriate affect while operating in the APU mode CA, to accommodate aircraft using new requirements to turboshaft type engines. under the maximum conditions of Instrument Landing System (ILS)

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Localizer (LOC) standard instrument comments will be considered before Order 7400.9U, dated August 18, 2010, approach procedures at Livermore taking action on the proposed rule. The and effective September 15, 2010, which Municipal Airport, and would also proposal contained in this action may is incorporated by reference in 14 CFR correct the airspace designation. This be changed in light of comments 71.1. The Class D and Class E airspace action also would correct a received. All comments submitted will designation listed in this document will typographical error in the airspace be available for examination in the be published subsequently in this description for Class D airspace. The public docket both before and after the Order. FAA is proposing this action to enhance closing date for comments. A report The FAA has determined this the safety and management of summarizing each substantive public proposed regulation only involves an Instrument Flight Rules (IFR) operations contact with FAA personnel concerned established body of technical at the airport. with this rulemaking will be filed in the regulations for which frequent and DATES: Comments must be received on docket. routine amendments are necessary to or before March 31, 2011. Availability of NPRMs keep them operationally current. ADDRESSES: Therefore, this proposed regulation; (1) Send comments on this An electronic copy of this document is not a ‘‘significant regulatory action’’ proposal to the U.S. Department of may be downloaded through the under Executive Order 12866; (2) is not Transportation, Docket Operations, M– Internet at http://www.regulations.gov. a ‘‘significant rule’’ under DOT 30, West Building Ground Floor, Room Recently published rulemaking Regulatory Policies and Procedures (44 W12–140, 1200 New Jersey Avenue, SE., documents can also be accessed through Washington, DC 20590; telephone (202) the FAA’s Web page at http:// FR 11034; February 26, 1979); and (3) 366–9826. You must identify FAA www.faa.gov/airports_airtraffic/ does not warrant preparation of a Docket No. FAA–2010–1264; Airspace air_traffic/publications/ regulatory evaluation as the anticipated Docket No. 10–AWP–23, at the airspace_amendments/. impact is so minimal. Since this is a beginning of your comments. You may You may review the public docket routine matter that will only affect air also submit comments through the containing the proposal, any comments traffic procedures and air navigation, it Internet at http://www.regulations.gov. received, and any final disposition in is certified this proposed rule, when FOR FURTHER INFORMATION CONTACT: person in the Dockets Office (see the promulgated, would not have a Eldon Taylor, Federal Aviation ADDRESSES section for the address and significant economic impact on a Administration, Operations Support phone number) between 9 a.m. and substantial number of small entities Group, Western Service Center, 1601 5 p.m., Monday through Friday, except under the criteria of the Regulatory Lind Avenue, SW., Renton, WA 98057; Federal holidays. An informal docket Flexibility Act. telephone (425) 203–4537. may also be examined during normal The FAA’s authority to issue rules SUPPLEMENTARY INFORMATION: business hours at the Northwest regarding aviation safety is found in Mountain Regional Office of the Federal Title 49 of the U.S. Code. Subtitle 1, Comments Invited Aviation Administration, Air Traffic section 106, describes the authority for Interested parties are invited to Organization, Western Service Center, the FAA Administrator. Subtitle VII, participate in this proposed rulemaking Operations Support Group, 1601 Lind Aviation Programs, describes in more by submitting such written data, views, Avenue, SW., Renton, WA 98057. detail the scope of the agency’s or arguments, as they may desire. Persons interested in being placed on authority. This rulemaking is Comments that provide the factual basis a mailing list for future NPRMs should promulgated under the authority supporting the views and suggestions contact the FAA’s Office of Rulemaking, described in subtitle VII, part A, subpart presented are particularly helpful in (202) 267–9677, for a copy of Advisory I, section 40103. Under that section, the developing reasoned regulatory Circular No. 11–2A, Notice of Proposed FAA is charged with prescribing decisions on the proposal. Comments Rulemaking Distribution System, which regulations to assign the use of the are specifically invited on the overall describes the application procedure. airspace necessary to ensure the safety regulatory, aeronautical, economic, of aircraft and the efficient use of environmental, and energy-related The Proposal airspace. This regulation is within the aspects of the proposal. The FAA is proposing an amendment scope of that authority as it establishes Communications should identify both to Title 14 Code of Federal Regulations additional controlled airspace at docket numbers (FAA Docket No. FAA– (14 CFR) part 71 by modifying Class E Livermore Municipal Airport, 2010–1264 and Airspace Docket No. 10– airspace extending upward from 700 Livermore, CA. AWP–23) and be submitted in triplicate feet above the surface at Livermore to the Docket Management System (see Municipal Airport, Livermore, CA. This List of Subjects in 14 CFR Part 71 ADDRESSES section for address and action also would add the airport name Airspace, Incorporation by reference, phone number). You may also submit and geographic coordinates to the Class Navigation (air). comments through the Internet at E airspace designation. Controlled http://www.regulations.gov. airspace is necessary to accommodate The Proposed Amendment Commenters wishing the FAA to aircraft using the new ILS LOC standard Accordingly, pursuant to the acknowledge receipt of their comments instrument approach procedures at authority delegated to me, the Federal on this action must submit with those Livermore Municipal Airport. Also, this Aviation Administration proposes to comments a self-addressed stamped action would correct a typographic error amend 14 CFR part 71 as follows: postcard on which the following in the regulatory text of the Class D statement is made: ‘‘Comments to FAA airspace area by correcting the word PART 71—DESIGNATION OF CLASS A, Docket No. FAA–2010–1264 and ‘iport’ to ‘Airport’. This action would B, C, D AND E AIRSPACE AREAS; AIR Airspace Docket No. 10–AWP–23’’. The enhance the safety and management of TRAFFIC SERVICE ROUTES; AND postcard will be date/time stamped and aircraft operations at the Airport. REPORTING POINTS returned to the commenter. Class D and Class E airspace All communications received on or designations are published in paragraph 1. The authority citation for 14 CFR before the specified closing date for 5000 and 6005, respectively, of FAA part 71 continues to read as follows:

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Authority: 49 U.S.C. 106(g), 40103, 40113, Municipal Airport, McCall, ID. proposal contained in this action may 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Decommissioning of the McCall Non- be changed in light of comments 1963 Comp., p. 389. Directional Beacon (NDB) at McCall received. All comments submitted will § 71.1 [Amended] Municipal Airport has made this action be available for examination in the 2. The incorporation by reference in necessary for the safety and public docket both before and after the 14 CFR 71.1 of the Federal Aviation management of Instrument Flight Rules closing date for comments. A report Administration Order 7400.9U, (IFR) operations at the airport. This summarizing each substantive public Airspace Designations and Reporting action also would correct the airport contact with FAA personnel concerned Points, dated August 18, 2010, and name from McCall Airport. with this rulemaking will be filed in the effective September 15, 2010 is DATES: Comments must be received on docket. amended as follows: or before March 31, 2011. Availability of NPRMs ADDRESSES: Send comments on this Paragraph 5000 Class D airspace. proposal to the U.S. Department of An electronic copy of this document * * * * * Transportation, Docket Operations, M– may be downloaded through the 30, West Building Ground Floor, Room Internet at http://www.regulations.gov. AWP CA D Livermore, CA [Amended] W12–140, 1200 New Jersey Avenue, SE., Recently published rulemaking Livermore Municipal Airport, CA Washington, DC 20590; telephone (202) documents can also be accessed through (Lat. 37°41′36″ N., long. 121°49′13″ W.) 366–9826. You must identify FAA the FAA’s Web page at http:// _ _ That airspace extending upward from the Docket No. FAA–2011–0097; Airspace www.faa.gov/airports airtraffic/air surface to and including 2,900 feet MSL Docket No. 11–ANM–3, at the beginning traffic/publications/airspace within a 4-mile radius of Livermore _amendments/. Municipal Airport. This Class D airspace area of your comments. You may also submit is effective during the specific dates and comments through the Internet at http:// You may review the public docket times established in advance by a Notice to www.regulations.gov. containing the proposal, any comments Airmen. The effective date and time will FOR FURTHER INFORMATION CONTACT: received, and any final disposition in thereafter be continuously published in the Eldon Taylor, Federal Aviation person in the Dockets Office (see the Airport/Facility Directory. Administration, Operations Support ADDRESSES section for the address and Paragraph 6005 Class E airspace areas Group, Western Service Center, 1601 phone number) between 9 a.m. and extending upward from 700 feet or more Lind Avenue, SW., Renton, WA 98057; 5 p.m., Monday through Friday, except above the surface of the earth. telephone (425) 203–4537. Federal holidays. An informal docket may also be examined during normal * * * * * SUPPLEMENTARY INFORMATION: business hours at the Northwest AWP CA E5 Livermore, CA [Amended] Comments Invited Mountain Regional Office of the Federal Livermore Municipal Airport, CA ° ′ ″ ° ′ ″ Interested parties are invited to Aviation Administration, Air Traffic (Lat. 37 41 36 N., long. 121 49 13 W.) Organization, Western Service Center, That airspace extending upward from 700 participate in this proposed rulemaking by submitting such written data, views, Operations Support Group, 1601 Lind feet above the surface within 8.1 miles north Avenue, SW., Renton, WA 98057. and 4 miles south of the Livermore or arguments, as they may desire. Municipal Airport 091° bearing extending 23 Comments that provide the factual basis Persons interested in being placed on miles east of Livermore Municipal Airport, supporting the views and suggestions a mailing list for future NPRMs should and within 3.5 miles north and 4 miles south presented are particularly helpful in contact the FAA’s Office of Rulemaking, ° of the Livermore Municipal Airport 271 developing reasoned regulatory (202) 267–9677, for a copy of Advisory bearing extending 2.6 miles west of the Circular No. 11–2A, Notice of Proposed airport. decisions on the proposal. Comments are specifically invited on the overall Rulemaking Distribution System, which Issued in Seattle, Washington, on February regulatory, aeronautical, economic, describes the application procedure. 7, 2011. environmental, and energy-related The Proposal John Warner, aspects of the proposal. Manager, Operations Support Group, Western Communications should identify both The FAA is proposing an amendment Service Center. docket numbers (FAA Docket No. FAA– to Title 14 Code of Federal Regulations [FR Doc. 2011–3219 Filed 2–11–11; 8:45 am] 2011–0097 and Airspace Docket No. 11– (14 CFR) Part 71 by amending Class E BILLING CODE 4910–13–P ANM–3) and be submitted in triplicate airspace extending upward from 700 to the Docket Management System (see feet above the surface for standard ADDRESSES section for address and instrument approach procedures at DEPARTMENT OF TRANSPORTATION phone number). You may also submit McCall Municipal Airport, McCall, ID. Airspace reconfiguration is necessary Federal Aviation Administration comments through the Internet at http:// www.regulations.gov. due to the decommissioning of the Commenters wishing the FAA to McCall NDB and cancellation of the 14 CFR Part 71 acknowledge receipt of their comments NDB approach. Controlled airspace is [Docket No. FAA–2011–0097; Airspace on this action must submit with those necessary for the safety and Docket No. 11–ANM–3] comments a self-addressed stamped management of IFR operations at the postcard on which the following Airport. This also would correct the Proposed Amendment of Class E statement is made: ‘‘Comments to FAA airport name from McCall Airport to Airspace; McCall, ID Docket No. FAA–2011–0097 and McCall Municipal Airport. AGENCY: Federal Aviation Airspace Docket No. 11–ANM–3’’. The Class E airspace designations are Administration (FAA), DOT. postcard will be date/time stamped and published in paragraph 6005, of FAA ACTION: Notice of proposed rulemaking returned to the commenter. Order 7400.9U, dated August 18, 2010, (NPRM). All communications received on or and effective September 15, 2010, which before the specified closing date for is incorporated by reference in 14 CFR SUMMARY: This action proposes to comments will be considered before Part 71.1. The Class E airspace amend Class E airspace at McCall taking action on the proposed rule. The designation listed in this document will

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be published subsequently in this Airspace Designations and Reporting section as the source for case-related Order. Points, dated August 18, 2010, and information for advice on alternatives to The FAA has determined this effective September 15, 2010 is electronic filing. proposed regulation only involves an amended as follows: FOR FURTHER INFORMATION CONTACT: established body of technical Stephen L. Sharfman, General Counsel, regulations for which frequent and Paragraph 6005 Class E airspace areas at 202–789–6820 (case-related routine amendments are necessary to extending upward from 700 feet or more information) or [email protected] keep them operationally current. above the surface of the earth. (electronic filing assistance). Therefore, this proposed regulation: * * * * * SUPPLEMENTARY HISTORY: On February 3, (1) Is not a ‘‘significant regulatory ANM ID E5 McCall, ID [Amended] 2011, the Postal Service filed a request action’’ under Executive Order 12866; for temporary waivers from periodic (2) is not a ‘‘significant rule’’ under DOT McCall Municipal Airport, ID (Lat. 44°53′19″ N., long. 116°06′06″ W.) reporting of service performance Regulatory Policies and Procedures (44 measurement for various market FR 11034; February 26, 1979); and (3) That airspace extending upward from 700 feet above the surface within 5 miles west dominant postal services, or does not warrant preparation of a and 7 miles east of the 169° and 349° components of postal services, pursuant regulatory evaluation as the anticipated bearings from the McCall Municipal Airport to Commission Order No. 465.1 impact is so minimal. Since this is a extending from 21 miles south to 6 miles Order No. 465 established a process routine matter that will only affect air north of the McCall Municipal Airport; that for the Postal Service to achieve full traffic procedures and air navigation, it airspace extending upward from 1,200 feet compliance with all periodic service is certified this proposed rule, when above the surface within a line from lat. ° ′ ″ ° ′ ″ performance reporting requirements by promulgated, would not have a 44 12 00 N., long. 116 06 00 W.; to lat. the filing date of the FY 2011 Annual significant economic impact on a 45°05′00″ N., long. 117°28′00″ W.; to lat. 45°15′00″ N., long. 117°19′00″ W.; to lat. Compliance Report. Order No. 465 at substantial number of small entities ° ′ ″ ° ′ ″ 18–24. As part of the process, the under the criteria of the Regulatory 45 05 30 N., long. 115 52 00 W.; to lat. 44°16′00″ N., long. 115°40′00″ W.; thence to Commission directed the Postal Service Flexibility Act. the point of beginning, excluding Federal to seek temporary waivers where it The FAA’s authority to issue rules airways; La Grande and Baker City, OR, and cannot immediately comply with regarding aviation safety is found in Boise, ID, Class E airspace areas. specific reporting requirements. As a Title 49 of the U.S. Code. Subtitle 1, Issued in Seattle, Washington, on February condition of granting any waiver, the Section 106, describes the authority for Commission directed the Postal Service the FAA Administrator. Subtitle VII, 7, 2011. John Warner, to develop and present implementation Aviation Programs, describes in more plans addressing each reporting detail the scope of the agency’s Manager, Operations Support Group, Western Service Center. requirement for which the Postal authority. This rulemaking is Service cannot provide the required [FR Doc. 2011–3218 Filed 2–11–11; 8:45 am] promulgated under the authority information. The ‘‘plans at a minimum described in Subtitle VII, Part A, BILLING CODE 4910–13–P should provide an explanation of why a Subpart I, Section 40103. Under that reporting requirement cannot be section, the FAA is charged with complied with, the steps necessary to prescribing regulations to assign the use POSTAL REGULATORY COMMISSION come into compliance, and a timeline of of the airspace necessary to ensure the 39 CFR Part 3050 events necessary to achieve compliance. safety of aircraft and the efficient use of Interim milestones shall be included in airspace. This regulation is within the [Docket No. RM2011–7; Order No. 664] the plans where applicable such that scope of that authority as it amends both the Postal Service and the controlled airspace at McCall Municipal Periodic Reporting Commission can evaluate progress being Airport, McCall, ID. AGENCY: Postal Regulatory Commission. made.’’ Id. at 23. In the instant docket, the Postal List of Subjects in 14 CFR Part 71 ACTION: Notice of proposed rulemaking; Service requests certain temporary availability of rulemaking petition. Airspace, Incorporation by reference, waivers from periodic reporting Navigation (air). SUMMARY: The Commission is (quarterly) of service performance The Proposed Amendment establishing a docket to consider certain measurements for Standard Mail, Bound Accordingly, pursuant to the temporary waivers from periodic Printed Matter Flats, and certain area authority delegated to me, the Federal reporting of service performance and district level data for Presort First- Aviation Administration proposes to measurement. Establishing this docket Class Mail, and End-to-End Periodicals. amend 14 CFR Part 71 as follows: will allow the Commission to consider Request at 1. The Request includes the Postal Service’s proposal and proposals for interim service PART 71—DESIGNATION OF CLASS A, comments from the public. performance measurement reporting. B, C, D AND E AIRSPACE AREAS; AIR DATES: Comments are due: February 15, Two related dockets are pending TRAFFIC SERVICE ROUTES; AND 2011. before the Commission. Docket No. RM2011–1 concerns a Postal Service REPORTING POINTS ADDRESSES: Submit comments request which seeks temporary waivers ‘‘ 1. The authority citation for 14 CFR electronically by accessing the Filing for First-Class Mail Flats at the district ’’ Part 71 continues to read as follows: Online link in the banner at the top of level, non-retail First-Class Mail Parcels, the Commission’s Web site (http:// Authority: 49 U.S.C. 106(g), 40103, 40113, www.prc.gov) or by directly accessing 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1 United States Postal Service Request for 1963 Comp., p. 389. the Commission’s Filing Online system Temporary Waivers from Periodic Reporting of at https://www.prc.gov/prc-pages/filing- Service Performance Measurement, February 3, § 71.1 [Amended] online/login.aspx. Commenters who 2011 (Request); see also Docket No. RM2009–11, Order Establishing Final Rules Concerning Periodic 2. The incorporation by reference in cannot submit their views electronically Reporting of Service Performance Measurements 14 CFR 71.1 of the Federal Aviation should contact the person identified in and Customer Satisfaction, May 25, 2010, at 22–24 Administration Order 7400.9U, FOR FURTHER INFORMATION CONTACT (Order No. 465).

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all categories of Standard Mail, Outside ENVIRONMENTAL PROTECTION Instructions: Direct your comments to County Periodicals, non-retail Media AGENCY Docket ID No. EPA–R08–OAR–2007– Mail, Library Mail, Bound Printed 1036. EPA’s policy is that all comments Matter Parcels, and Stamp Fulfillment 40 CFR Part 52 received will be included in the public 2 Services. Docket No. RM2011–4 [EPA–R08–OAR–2007–1036; FRL–9266–2] docket without change and may be concerns a Postal Service request for a made available online at http:// semi-permanent exception from Approval and Promulgation of State www.regulations.gov, including any periodic reporting of service Implementation Plans; State of personal information provided, unless performance measurement for First- Colorado; Interstate Transport of the comment includes information Class Mail Flats at the district level or Pollution Revisions for the 1997 8-Hour claimed to be Confidential Business 3 other relief as appropriate. Interested Ozone and 1997 PM2.5 NAAQS: Information (CBI) or other information persons are encouraged to review the ‘‘Interference With Visibility’’ whose disclosure is restricted by statute. filings presented in both related dockets Requirement Do not submit information that you when considering the instant request for AGENCY: Environmental Protection consider to be CBI or otherwise waivers. protected through http:// The Commission establishes Docket Agency (EPA). www.regulations.gov or e-mail. The No. RM2011–7 for consideration of ACTION: Proposed rule. matters related to the proposed http://www.regulations.gov Web site is SUMMARY ‘‘ ’’ temporary waivers from periodic : EPA is proposing partial an anonymous access system, which reporting of service performance approval of the Colorado interstate means EPA will not know your identity measurement identified in the Postal transport State Implementation Plan or contact information unless you Service’s Request. (SIP) revisions, submitted on March 31, provide it in the body of your comment. Interested persons may submit 2010, addressing the requirements of If you send an e-mail comment directly comments on whether the Postal Clean Air Act (CAA) section to EPA, without going through http:// Service’s Request is consistent with the 110(a)(2)(D)(i)(II) for the 1997 ozone www.regulations.gov, your e-mail policies of 39 U.S.C. 3652(a)(2) and with National Ambient Air Quality Standards address will be automatically captured the directions given in Order No. 465. (NAAQS), and the requirements of CAA and included as part of the comment Interested persons also may comment section 110(a)(2)(D)(i)(I) and (II) for the that is placed in the public docket and on interim measurement proposals. 1997 PM2.5 NAAQS. Specifically, in this made available on the Internet. If you Comments are due no later than Federal Register action EPA proposes submit an electronic comment, EPA February 15, 2011. The Postal Service’s full approval of those portions of the recommends that you include your Request can be accessed via the Colorado March 31, 2010 submission name and other contact information in Commission’s Web site (http:// that address the section the body of your comment and with any www.prc.gov). 110(a)(2)(D)(i)(II) requirement disk or CD–ROM you submit. If EPA The Commission appoints Emmett prohibiting a State’s emissions from cannot read your comment due to Rand Costich to serve as Public interfering with any other State’s technical difficulties and cannot contact Representative in the captioned required measures to protect visibility you for clarification, EPA may not be proceeding. for the 1997 ozone and PM2.5 NAAQS. able to consider your comment. It is ordered: This action is being taken under section Electronic files should avoid the use of 1. The Commission establishes Docket 110 of the CAA. special characters, any form of No. RM2011–7 for consideration of DATES: Comments must be received on encryption, and be free of any defects or matters raised by the Postal Service’s or before March 16, 2011. viruses. For additional instructions on Request. ADDRESSES: Submit your comments, submitting comments, go to Section I. 2. Comments by interested persons in identified by Docket ID No. EPA–R08– General Information of the this proceeding are due no later than OAR–2007–1036, by one of the SUPPLEMENTARY INFORMATION section of February 15, 2011. following methods: this document. 3. Pursuant to 39 U.S.C. 505, Emmett • http://www.regulations.gov. Follow Docket: All documents in the docket Rand Costich is appointed to serve as the on-line instructions for submitting are listed in the http:// the officer of the Commission (Public comments. Representative) to represent the • E-mail: dygowski.laurel @epa.gov. www.regulations.gov index. Although interests of the general public in this • Fax: (303) 312–6064 (please alert listed in the index, some information is proceeding. the individual listed in the FOR FURTHER not publicly available, e.g., CBI or other 4. The Secretary shall arrange for INFORMATION CONTACT if you are faxing information whose disclosure is publication of this order in the Federal comments). restricted by statute. Certain other Register. • Mail: Callie Videtich, Director, Air material, such as copyrighted material, By the Commission. Program, Environmental Protection will be publicly available only in hard Ruth Ann Abrams, Agency (EPA), Region 8, Mailcode copy. Publicly-available docket materials are available either Acting Secretary. 8P–AR, 1595 Wynkoop Street, Denver, electronically in http:// [FR Doc. 2011–3192 Filed 2–11–11; 8:45 am] Colorado 80202–1129. • Hand Delivery: Callie Videtich, www.regulations.gov or in hard copy at BILLING CODE 7710–FW–P Director, Air Program, Environmental the Air Program, Environmental Protection Agency (EPA), Region 8, Protection Agency (EPA), Region 8, 2 See Docket No. RM2011–1, United States Postal Service Request for Temporary Waivers from Mailcode 8P–AR, 1595 Wynkoop, Mailcode 8P–AR, 1595 Wynkoop, Periodic Reporting of Service Performance Denver, Colorado 80202–1129. Such Denver, Colorado 80202–1129. EPA Measurement, October 1, 2010. deliveries are only accepted Monday requests that if at all possible, you 3 See Docket No. RM2011–4, United States Postal through Friday, 8 a.m. to 4:30 p.m., contact the individual listed in the FOR Service Request for Semi-Permanent Exception FURTHER INFORMATION CONTACT section to from Periodic Reporting of Service Performance excluding Federal holidays. Special Measurement or, in the Alternative, Petition for arrangements should be made for view the hard copy of the docket. You Rulemaking Concerning 39 CFR 3055.45(c). deliveries of boxed information. may view the hard copy of the docket

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Monday through Friday, 8 a.m. to b. Follow directions—The agency may submission, the State later submitted 4 p.m., excluding Federal holidays. ask you to respond to specific questions two superceding interstate transport SIP FOR FURTHER INFORMATION CONTACT: or organize comments by referencing a revisions: (a) A June 18, 2009 Laurel Dygowski, Air Program, U.S. Code of Federal Regulations (CFR) part submission addressing the requirements Environmental Protection Agency, or section number. of elements (1) and (2) of section Region 8, Mailcode 8P–AR, 1595 c. Explain why you agree or disagree; 110(a)(2)(D)(i) for the 1997 ozone Wynkoop, Denver, Colorado 80202– suggest alternatives and substitute NAAQS; and (b) a March 31, 2010 1129, (303) 312–6144, language for your requested changes. submission addressing the requirements [email protected]. d. Describe any assumptions and of elements (3) and (4) for the 1997 provide any technical information and/ 8-hour ozone NAAQS and of elements SUPPLEMENTARY INFORMATION : or data that you used. (1) through (4) for the 1997 PM2.5 Definitions e. If you estimate potential costs or NAAQS. As noted earlier, in this burdens, explain how you arrived at rulemaking EPA is evaluating only the For the purpose of this document, we your estimate in sufficient detail to Colorado SIP revisions of the March 31, are giving meaning to certain words or allow for it to be reproduced. 2010 submission that address the initials as follows: f. Provide specific examples to requirements of element (4), prohibiting (i) The words or initials Act or CAA illustrate your concerns, and suggest sources in Colorado from emitting mean or refer to the Clean Air Act, alternatives. pollutants from interfering with any unless the context indicates otherwise. g. Explain your views as clearly as other state’s measures to protect (ii) The words EPA, we, us or our possible, avoiding the use of profanity visibility, for the 1997 ozone and PM2.5 mean or refer to the United States or personal threats. NAAQS. EPA has already taken final Environmental Protection Agency. h. Make sure to submit your action on elements (1) and (2) for ozone (iii) The initials SIP mean or refer to comments by the comment period (see 75 FR 31306 and 75 FR 71029, State Implementation Plan. deadline identified. respectively). EPA will be taking action (iv) The words Colorado and State II. Background Information on elements (1)–(3) for PM2.5 and mean the State of Colorado. element (3) for ozone in a separate On July 18, 1997, EPA promulgated action. Table of Contents new NAAQS for 8-hour ozone and for I. General Information fine particulate matter (PM2.5). This III. What action is EPA proposing? What should I consider as I prepare my action is being taken in response to the EPA is proposing approval of the comments for EPA? promulgation of the 1997 8-hour ozone sections of the Colorado Interstate II. Background Information and PM2.5 NAAQS. This action does not Transport SIP submitted March 31, 2010 III. What action is EPA proposing? address the requirements for the 2006 that address the section IV. What is the State process to submit these PM2.5, or the 2008 8-hour ozone 110(a)(2)(D)(i)(II) ‘‘interference with materials to EPA? NAAQS; those standards will be ’’ V. EPA’s Review and Technical Information visibility protection requirement for the VI. Proposed Action addressed in later actions. 1997 ozone and PM2.5 NAAQS. On VII. Statutory and Executive Order Reviews Section 110(a)(1) of the CAA requires January 13, 2010, the Colorado Air States to submit SIPs to address a new Quality Control Commission (AQCC) I. General Information or revised NAAQS within 3 years after adopted interstate transport SIP What should I consider as I prepare my promulgation of such standards, or revisions addressing the requirements of comments for EPA? within such shorter period as EPA may CAA section 110(a)(2)(D)(i)(II) for the prescribe. Section 110(a)(2) lists the 1997 ozone NAAQS, and the 1. Submitting CBI. Do not submit CBI elements that such new SIPs must requirements of CAA section to EPA through http:// address, as applicable, including section 110(a)(2)(D)(i)(I) and (II) for the 1997 www.regulations.gov or e-mail. Clearly 110(a)(2)(D)(i), which pertains to PM2.5 NAAQS. Colorado submitted mark the part or all of the information interstate transport of certain emissions. these revisions to EPA on March 31, that you claim to be CBI. For CBI Section 110(a)(2)(D)(i) of the CAA 2010. In this Federal Register action information in a disk or CD–ROM that requires that a State’s SIP must contain EPA is proposing to approve the you mail to EPA, mark the outside of the adequate provisions prohibiting any sections of the March 31, 2010 disk or CD–ROM as CBI and then source or other type of emissions submissions that address element (4), identify electronically within the disk or activity within the State from emitting ‘‘interference with visibility protection,’’ CD–ROM the specific information that any air pollutant in amounts which will: of section 110(a)(2)(D)(i). is claimed as CBI. In addition to one (1) Contribute significantly to complete version of the comment that nonattainment of the NAAQS in any IV. What is the State process to submit includes information claimed as CBI, a other State; (2) interfere with these materials to EPA? copy of the comment that does not maintenance of the NAAQS by any Section 110(k) of the CAA addresses contain the information claimed as CBI other State; (3) interfere with any other EPA’s rulemaking action on SIP must be submitted for inclusion in the State’s required measures to prevent submissions by States. The CAA public docket. Information so marked significant deterioration of air quality; requires States to observe certain will not be disclosed except in or (4) interfere with any other State’s procedural requirements in developing accordance with procedures set forth in required measures to protect visibility. SIP revisions for submittal to EPA. 40 CFR part 2. On June 11, 2008, the State of Section 110(a)(2) of the CAA requires 2. Tips for Preparing Your Comments. Colorado submitted to EPA an Interstate that each SIP revision be adopted after When submitting comments, remember Transport SIP addressing all four reasonable notice and public hearing. to: elements of the interstate transport This must occur prior to the revision a. Identify the rulemaking by docket requirements of CAA section being submitted by a State to EPA. number and other identifying 110(a)(2)(D)(i) for the 1997 ozone and The Colorado AQCC held a public information (subject heading, Federal PM2.5 NAAQS. In response to EPA’s hearing in December 2009 for the Register date and page number). concerns regarding the June 11, 2008 interstate transport SIP revision: ‘‘State

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of Colorado Implementation Plan to Colorado source or identified a Colorado RH Rule, States must establish Meet the Requirements of the Clean Air source that interferes with efforts to reasonable progress goals which provide Act Section 110(a)(2)(d)(i)(I) and (II)— improve visibility.’’ 3 Consistent with for an improvement in visibility for the Regarding Interstate Transport for the EPA’s 2006 Guidance, the Colorado SIP most impaired, or worst days, and no 1997 8-Hour Ozone and PM2.5 NAAQS.’’ verifies that there are no sources in the degradation on the best days (see 40 The AQCC adopted this revision on State that emit pollutants interfering CFR 51.308(d)(1)). The State analyzed January 13, 2010, and the State with any other State’s measures to its projected 2018 impacts on the worst submitted it to EPA on March 31, 2010. protect visibility through their RAVI days on surrounding Class I areas in EPA has reviewed the submittal from SIPs. Arizona, Arkansas, Missouri, New the State of Colorado and has With respect to the 1999 Regional Mexico, Oklahoma, South Dakota, Utah, determined that the State met the Haze provisions (see 64 FR 35714) and Wyoming. The modeling the State requirements for reasonable notice and addressing visibility impairment due to used for this analysis includes emission public hearing under section 110(a)(2) emission of air pollutants from reductions for RH that are not Federally of the CAA. numerous sources located over a wide enforceable. For nitrates, the most geographical area, the 2006 Guidance V. EPA’s Review and Technical impacted areas were Canyonlands indicated that States could satisfy the Information National Park in Utah and Bandelier interference with visibility protection National Monument in New Mexico. The interstate transport provisions at requirement through their EPA- Colorado’s modeled contribution to CAA section 110(a)(2)(D)(i), also approved Regional Haze (RH) SIPs. The nitrate extinction was 6.9% and 5.1%, ‘‘ ’’ referred to as the good neighbor 2006 Guidance did not prohibit States respectively. Total nitrates from all provisions, require that each SIP contain from satisfying element (4) by source regions are projected to comprise adequate provisions prohibiting something other than an EPA-approved 9.5% of the extinction in Canyonlands emissions that adversely affect any other RH SIP. The State submitted a partial and 6.6% of the extinction in Bandelier. State’s air quality through interstate RH SIP to EPA on June 11, 2008, and Thus, Colorado’s nitrate contribution to transport of air pollutants. As discussed revisions to the 2008 submittal on June the overall extinction in 2018 is 0.3% at in the Background Information section 18, 2009. In the fall of 2010, the State Bandelier (0.051 × 0.066) and 0.7% of this notice, a SIP must contain revised its entire RH SIP and will be (0.069 × 0.095) at Canyonlands. For provisions that satisfy the four elements submitting this SIP to EPA in 2011. sulfates, the most impacted areas were of section 110(a)(2)(D)(i). This action Thus, at the time the State submitted the also Canyonlands National Park and only addresses element (4), or the March 13, 2010 Interstate Transport SIP, Bandelier National Monument. ‘‘interference with visibility protection’’ EPA had not approved a RH SIP for Colorado’s modeled contribution to requirement, for the 1997 ozone and Colorado. sulfate extinction was 2.3% and 1.2%, PM2.5 NAAQS. On August 15, 2006, The State of Colorado has elected to respectively. Total sulfates from all EPA issued guidance (2006 Guidance) 1 satisfy the element (4) requirement of source regions are projected to comprise outlining the Agency’s phased approach the good neighbor provisions by 15.5% of the extinction in Canyonlands to visibility protection: The 1980 providing a demonstration in its March and 14.8% of the extinction in requirements of the Reasonably 13, 2010 Interstate Transport SIP Bandelier. Thus, Colorado’s sulfate Attributable Visibility Impairment submittal that it does not interfere with contribution to the overall extinction in (RAVI) program, that addressed other State’s measures to protect 2018 is 0.3% (0.012 × 0.148) at visibility impairment caused by one or visibility through their RH SIP. The Bandelier and 0.2% (0.023 × 0.155) at a small number of sources, and the 1999 State provides an analysis in its SIP that Canyonlands. Colorado’s total impact Regional Haze requirements addressing begins with an inventory of current visibility impairment due to emission of control measures (some approved only from nitrates and sulfates combined at air pollutants from numerous sources at the State level, some that are Bandelier and at Canyonlands is 0.5% located over a wide geographical area. Federally enforceable, and some that are and 1.0% of the overall extinction, The 2006 Guidance further explains Federal programs) that reduce visibility respectively. EPA performed additional that since EPA had not determined at impairing pollutants. Some examples of analysis (discussed below) to assess that point in time that emissions from measures the State has relied on in impacts to reasonable progress goals in any States interfered with any other making its demonstration that are Class I areas outside of the State. States’ measures addressing RAVI, Federally enforceable or are Federal Under CAA section 110(a)(2)(D), the States could satisfy this portion of the programs include: (1) Regulation measures relied on by Colorado to make ‘‘interference with visibility protection’’ Number 1—Emission Controls for a demonstration that it does not requirement by certifying that none of Particulates, Smoke, Carbon Monoxide interfere with other States’ measures to their sources emitted pollutants and Sulfur Oxides; (2) parts of protect visibility in their RH SIP have to interfering with other States’ Regulation Number 3—Stationary be approved by EPA as part of a SIP and implementation plan measures to Source Permitting and Air pollutant made Federally enforceable. As protect visibility under the 1980 Emission Notice Requirements; and (3) mentioned above, the State’s regulations.2 The Colorado Interstate Federal mobile source tailpipe exhaust demonstration relies on potential RH Transport submission of March 31, 2010 programs. The State also included some SIP emission reductions that have not outlines the periodic update of the State reductions attributable to its RH SIP, been approved by EPA. EPA conducted RAVI SIP and verifies that ‘‘no State or which have not been approved by EPA. a weight of evidence analysis on Federal Land Manager has identified The State used emission inventory Canyonlands National Park, the most Class I area impairment attributed to a information and modeling provided by impacted Class I area to determine the Western Regional Air Partnership Colorado’s impact if non-Federally 1 ‘‘Guidance for State Implementation Plan (SIP) (WRAP) to quantify the visibility enforceable measures were not included Submissions to Meet Current Outstanding impacts from Colorado sources on Class in the demonstration. EPA’s weight of Obligations Under Section 110(a)(2)(D)(i) for the evidence analysis includes a 8-Hour Ozone and PM2.5 National Ambient Air I areas outside of the State. Under the Quality Standards’’ August 15, 2006. recalculation of the reasonable progress 2 Id. 3 Colorado March 31, 2010 SIP submission, at 23. goal to reflect the addition of non-

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Federally enforceable measures, review The RH Rule also requires States under the Regulatory Flexibility Act (5 of current and future year emission ensure no degradation of visibility on U.S.C. 601 et seq.); inventories, and an evaluation of the the best days. The WRAP modeling • Does not contain any unfunded weighted emission potential (WEP) for projects that visibility on the best days mandate or significantly or uniquely will not degrade in 2018 at any of the sulfates and nitrates. The weighted affect small governments, as described emission potential information was surrounding Class I areas. For example, in the Unfunded Mandates Reform Act obtained from technical work performed modeling indicates that the visibility at of 1995 (Pub. L. 104–4); by the WRAP.4 (The complete weight of Canyonlands on the best days is evidence analysis is included in the expected to improve from 3.8 dv to 3.5 • Does not have Federalism docket for this notice.) dv. Accordingly, EPA finds that implications as specified in Executive EPA recalculated the reasonable Colorado does not interfere with another Order 13132 (64 FR 43255, August 10, progress goal to determine approximate States’ ability to ensure no degradation 1999); changes to visibility impacts at of visibility on the best days. • Is not an economically significant Based on the information presented Canyonlands due to emission increases. regulatory action based on health or above, EPA concludes that Colorado To account for measures that are not safety risks subject to Executive Order does not interfere with Utah’s measures Federally enforceable, EPA increased 13045 (62 FR 19885, April 23, 1997); the Colorado emission inventory 45,700 to protect visibility at Canyonlands • Is not a significant regulatory action tons for sulfates and 5,200 tons for National Park. Since Colorado impacts nitrates from the emission inventory Canyonlands more than any other out of subject to Executive Order 13211 (66 FR used for Colorado in the WRAP 2018 State Class I area, Colorado’s impacts on 28355, May 22, 2001); reasonable progress modeling. To other Class I areas, including Bandelier, • Is not subject to requirements of calculate the approximate visibility would be even less. EPA thus has Section 12(d) of the National impact from this change, the following determined that Colorado does not Technology Transfer and Advancement procedure was followed: (1) Recalculate interfere with other States’ measures to Act of 1995 (15 U.S.C. 272 note) because the baseline haze index (2000–2004) protect visibility in their RH SIP. application of those requirements would using daily 20% worst case monitored VI. Proposed Action be inconsistent with the Clean Air Act; species extinction from WRAP data; (2) EPA is proposing partial approval of and recalculate 2018 predicted reasonable the March 31, 2010 Colorado Interstate • Does not provide EPA with the progress goal haze index by applying Transport SIP revisions submission. discretionary authority to address, as Class I area specific annual relative Specifically, in this action EPA is appropriate, disproportionate human response factors (RRFs) provided by proposing to approve subsections 3.1, WRAP to the daily 20% worst case health or environmental effects, using 3.2 and 3.3, addressing the ‘‘interference practicable and legally permissible monitored for each pollutant; (3) assume with protection of visibility’’ that Colorado’s relative contribution of methods, under Executive Order 12898 requirement for the 1997 ozone NAAQS, (59 FR 7629, February 16, 1994). nitrates and sulfates identified by and subsections 6.1, 6.2 and 6.3, WRAP tracer modeling for the 2018 base addressing the ‘‘interference with In addition, this rule does not have case is the same for the 2018 reasonable protection of visibility’’ requirement for Tribal implications as specified by progress case; (4) rescale sulfate the 1997 PM2.5 NAAQS. Executive Order 13175 (65 FR 67249, extinction and nitrate extinction in step November 9, 2000), because the SIP is VII. Statutory and Executive Order 2 to account for Colorado emissions that not approved to apply in Indian country Review are not Federally enforceable; and (5) located in the State, and EPA notes that recalculate the reasonable progress goals Under the Clean Air Act, the it will not impose substantial direct that would be expected. This method of Administrator is required to approve a costs on Tribal governments or preempt approximating the change in the haze SIP submission that complies with the Tribal law. index, given in deciviews (dv),5 shows provisions of the Act and applicable that the 2018 predicted reasonable Federal regulations. 42 U.S.C. 7410(k); List of Subjects in 40 CFR Part 52 progress goal would only increase from 40 CFR 52.02(a). Thus, in reviewing SIP 10.77 dv to 10.80 dv. submissions, EPA’s role is to approve Environmental protection, Air EPA also analyzed WEP information State choices, provided that they meet pollution control, Incorporation by developed by the WRAP. The WEP the criteria of the Clean Air Act. reference, Intergovernmental relations, analysis was developed as a screening Accordingly, this action merely Nitrogen dioxide, Ozone, Particulate tool for States to decide which source approves State law as meeting Federal matter, Reporting and recordkeeping regions have the potential to contribute requirements and does not impose requirements, Volatile Organic to haze formation in Class I areas, based additional requirements beyond those Compounds. on annual emissions inventories, imposed by State law. For that reason, Authority: 42 U.S.C. 7401 et seq. baseline period back trajectories, and this action: source to Class I area distances. The • Is not a ‘‘significant regulatory Dated: February 3, 2011. WEP analyses also show that Colorado action’’ subject to review by the Office Carol Rushin, has a minimal impact on visibility at of Management and Budget under Deputy Regional Administrator, Region 8. Canyonlands. Executive Order 12866 (58 FR 51735, [FR Doc. 2011–3280 Filed 2–11–11; 8:45 am] October 4, 1993); • BILLING CODE 6560–50–P 4 The WRAP technical work, including modeling, Does not impose an information was used by all western States as the basis for collection burden under the provisions evaluating impacts on Class I areas and the need for of the Paperwork Reduction Act (44 controls. U.S.C. 3501 et seq.); 5 A deciview is a measure of visibility impairment • that directly relates to human perception. A higher Is certified as not having a deciview number indicates more perceptible significant economic impact on a visibility impairment. substantial number of small entities

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ENVIRONMENTAL PROTECTION www.regulations.gov, including any Dated: February 1, 2011. AGENCY personal information provided, unless W.C. Early, the comment includes information Acting Regional Administrator, Region III. 40 CFR Part 52 claimed to be Confidential Business [FR Doc. 2011–3098 Filed 2–11–11; 8:45 am] Information (CBI) or other information [EPA–R03–OAR–2010–0902; FRL–9265–7] BILLING CODE 6560–50–P whose disclosure is restricted by statute. Approval and Promulgation of Air Do not submit information that you consider to be CBI or otherwise Quality Implementation Plans; Virginia; DEPARTMENT OF HOMELAND protected through http:// Revision to the Definition of Volatile SECURITY Organic Compound www.regulations.gov or e-mail. The http://www.regulations.gov Web site is Federal Emergency Management AGENCY: Environmental Protection an ‘‘anonymous access’’ system, which Agency Agency (EPA). means EPA will not know your identity ACTION: Proposed rule. or contact information unless you 44 CFR Part 67 provide it in the body of your comment. SUMMARY: EPA proposes to approve the If you send an e-mail comment directly [Docket ID FEMA–2011–0002; Internal State Implementation Plan (SIP) to EPA without going through http:// Agency Docket No. FEMA–B–1171] revision submitted by the www.regulations.gov, your e-mail Commonwealth of Virginia consisting of address will be automatically captured Proposed Flood Elevation the amended wording of the definition and included as part of the comment Determinations ‘‘ ’’ of Volatile organic compound (VOC). that is placed in the public docket and Correction In the Final Rules section of this made available on the Internet. If you Federal Register, EPA is approving submit an electronic comment, EPA In proposed rule document 2011– Virginia’s SIP submittal as a direct final recommends that you include your 1061, appearing on pages 3590–3595, in rule without prior proposal because the name and other contact information in the issue of Thursday, January 20, 2011, Agency views this as a noncontroversial the body of your comment and with any make the following correction: submittal and anticipates no adverse disk or CD–ROM you submit. If EPA § 67.4 [Corrected] comments. A detailed rationale for the cannot read your comment due to On page 3592 in § 67.4, under approval is set forth in the direct final technical difficulties and cannot contact ADDRESSES, in ‘‘Unincorporated Areas of rule. If no adverse comments are you for clarification, EPA may not be received in response to this action, no Nowata County,’’ in the Maps line, the able to consider your comment. text is corrected to read as follows: further activity is contemplated. If EPA Electronic files should avoid the use of receives adverse comments, the direct special characters, any form of Unincorporated Areas of Nowata final rule will be withdrawn and all encryption, and be free of any defects or County public comments received will be viruses. Maps are available for inspection at addressed in a subsequent final rule Docket: All documents in the the Nowata County Office, 229 North based on this proposed rule. EPA will electronic docket are listed in the http:// Maple Street, Nowata, OK 74048. not institute a second comment period. www.regulations.gov index. Although Any parties interested in commenting [FR Doc. C1–2011–1061 Filed 2–11–11; 8:45 am] listed in the index, some information is on this action should do so at this time. BILLING CODE 1505–01–D not publicly available, i.e., CBI or other DATES: Comments must be received in information whose disclosure is writing by March 16, 2011. restricted by statute. Certain other ADDRESSES: Submit your comments, material, such as copyrighted material, DEPARTMENT OF COMMERCE identified by Docket ID Number EPA– is not placed on the Internet and will be National Oceanic and Atmospheric R03–OAR–2010–0902 by one of the publicly available only in hard copy Administration following methods: form. Publicly available docket A. http://www.regulations.gov. Follow materials are available either 50 CFR Part 665 the on-line instructions for submitting electronically in http:// comments. www.regulations.gov or in hard copy [Docket No. 101210611–1080–02] B. E-mail: [email protected]. during normal business hours at the Air C. Mail: EPA–R03–OAR–2010–0902, Protection Division, U.S. Environmental RIN 0648–BA58 Harold A. Frankford, Air Protection Protection Agency, Region III, 1650 Hawaii Bottomfish and Seamount Division, Mailcode 3AP00, U.S. Arch Street, Philadelphia, Pennsylvania Groundfish Fisheries; Modification to Environmental Protection Agency, 19103. Copies of the State submittal are Advance Notification Period for Region III, 1650 Arch Street, available at the Virginia Department of Fishery Closures Philadelphia, Pennsylvania 19103. Environmental Quality, 629 East Main D. Hand Delivery: At the previously- Street, Richmond, Virginia 23219. AGENCY: National Marine Fisheries listed EPA Region III address. Such Service (NMFS), National Oceanic and FOR FURTHER INFORMATION CONTACT: deliveries are only accepted during the Atmospheric Administration (NOAA), Harold A. Frankford, (215) 814–2108, or Docket’s normal hours of operation, and Commerce. by e-mail at [email protected]. special arrangements should be made ACTION: Proposed rule; request for for deliveries of boxed information. SUPPLEMENTARY INFORMATION: For comments. Instructions: Direct your comments to further information, please see the Docket ID No. EPA–R03–OAR–2010– information provided in the direct final SUMMARY: This proposed rule would 0902. EPA’s policy is that all comments action, with the same title, that is change the advance notification period received will be included in the public located in the ‘‘Rules and Regulations’’ for in-season closure of the main docket without change, and may be section of this Federal Register Hawaiian Islands (MHI) Deep-7 made available online at http:// publication. bottomfish fishery to seven days from

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the current 14 days. The intent of the to determine the specified date the TAC cumulative progress towards the TAC. proposed change is to enhance is projected to be reached. With this information, fishermen are administration of the fishery. Pursuant to Federal regulations at 50 able to see an estimate of when the DATES: Comments on the amendment CFR 665.211, when the specified TAC is fishery may close and are able to plan must be received by March 1, 2011. projected to be reached, NMFS notifies accordingly. Additionally, prior to the ADDRESSES: Comments on the proposed fishermen and the public of the date closure date, letters notifying bottomfish rule, identified by 0648–BA58, may be when the non-commercial and fishermen of the closure date are mailed sent to either of the following addresses: commercial Deep-7 bottomfish fisheries to permit holders, and advisements of • Electronic Submission: Submit all will be closed, through a notice in the the closure date are announced to the electronic public comments via the Federal Register and by other means. public in local news media. Federal e-Rulemaking Portal http:// The regulations require that NMFS To be considered, comments on this www.regulations.gov; or provide at least 14 days from the date proposed rule must be received by • Mail: Mail written comments to the notice is filed for public inspection March 1, 2011, not postmarked or Michael D. Tosatto, Regional at the Office of the Federal Register to otherwise transmitted by that date. the actual closure date. The 14-day Administrator, NMFS, Pacific Islands Classification Region (PIR), 1601 Kapiolani Blvd., advanced notification period has Suite 1110, Honolulu, HI 96814–4700. created an administrative challenge for Pursuant to section 304(b)(1)(A) of the Instructions: Comments must be NMFS, in that it requires the agency to Magnuson-Stevens Fishery submitted to one of these two addresses determine the projected closure date at Conservation and Management Act, to ensure that the comments are least three weeks in advance of actual 16 U.S.C. 1854(b)(1)(A), the NMFS received, documented, and considered closure so that the closure notice can be Assistant Administrator has determined by NMFS. Comments sent to any other processed to provide the required 14- that this proposed rule is consistent address or individual, or received after day notice. This requires projecting the with the Fishery Ecosystem Plan for the the end of the comment period, may not closure date further in advance than is Hawaiian Archipelago, other provisions be considered. All comments received necessary and with less complete of the Magnuson-Stevens Act, and other are a part of the public record and will information compared to this proposed applicable laws, subject to further generally be posted to http:// action. consideration after public comment. www.regulations.gov without change. Trip reports submitted to the State of This proposed rule has been All personal identifying information Hawaii by the 500+ state CML holders determined to be not significant for (e.g., name, address, etc.) submitted who reported fishing for bottomfish purposes of Executive Order 12866. voluntarily by the commenter may be indicate that the vast majority of The Chief Counsel for Regulation of publicly accessible. Do not submit fishermen engage in single day trips, the Department of Commerce certified confidential business information, or i.e., lasting less than 24 hours. Only 12 to the Chief Counsel for Advocacy of the otherwise sensitive or protected fishermen reported multi-day Small Business Administration that this information. NMFS will accept bottomfish trips, and those trips lasted proposed rule, if adopted, would not anonymous comments (enter ‘‘NA’’ in only three days or less. Based on this have a significant economic impact on information about the fishery, and on the required fields if you wish to remain a substantial number of small entities. the need for more time to process the anonymous). Attachments to electronic The analysis follows: closure notice, the Council comments will be accepted in Microsoft The proposed rule is administrative in recommended that NMFS shorten the Word or Excel, WordPerfect, or Adobe nature, and would change the advance advance notice period to seven days. PDF file formats only. notification period for closure of the main The objective of the proposed action Hawaiian Islands (MHI) Deep-7 bottomfish FOR FURTHER INFORMATION CONTACT: is to enhance administration of the fishery to seven days from the current 14 Jarad Makaiau, NMFS PIR Sustainable fishery by streamlining the advanced days. A description of the action, why it is Fisheries, 808–944–2108. notification period. A seven-day being considered, and the legal basis are SUPPLEMENTARY INFORMATION: The MHI notification period would continue to contained in the preamble to this proposed Deep 7 bottomfish are onaga (Etelis provide ample time for fishermen to be rule. coruscans), ehu (E. carbunculus), gindai All fishing vessels that participate in the made aware of the in-season closure. MHI Deep 7 bottomfish fishery are (Pristipomoides zonatus), kalekale (P. (By comparison, NMFS provides seven considered to be small entities under the sieboldii), opakapaka (P. filamentosus), days advance notification when closing Small Business Administration definition of lehi (Aphareus rutilans), and hapuupuu the commercial longline fishery; this a small entity, i.e., they are engaged in the (Epinephelus quernus). The Deep 7 has been ample time for longliners, even business of fish harvesting, are fishery is managed under a total when their trips last up to six weeks.) independently-owned or operated, are not allowable catch (TAC) limit. The TAC is Additionally, shortening the advance dominant in their field of operation, and specified each fishing year by NMFS, as notification period from 14 to seven have annual gross receipts not in excess of recommended by the Western Pacific days allows the agency to determine the $4 million. Therefore, there are no disproportionate economic impacts between Fishery Management Council (Council) projected closure date closer to the large and small entities, and the proposed based on the best available scientific, actual closure. This is because the seven action is not expected to have any impact on commercial, and other information. The additional days can be allocated to these small entities. Trip reports submitted to fishing year begins on September 1, and processing and analyzing catch data. the State of Hawaii by the 500+ state CML if the TAC is not reached, the fishing This could increase precision in holders who reported fishing for bottomfish year ends on August 31. NMFS and the forecasting the closure date, and also indicate that the vast majority of fishermen State of Hawaii monitor progress facilitate adherence to the catch limit by engage in single day trips, i.e., lasting less towards the TAC based on commercial reducing the number of days fish could than 24 hours. Only 12 fishermen reported bottomfish landings data submitted to multi-day bottomfish trips, and those trips be caught once a closure notice is lasted only three days or less. Therefore, a the State by commercial marine license announced. seven-day notification period would provide (CML) holders. When bottomfish Up-to-date catch information is ample time for all fishery participants to be landings approach the TAC, NMFS, the posted at http://www.fpir.noaa.gov made aware of the in-season closure. State of Hawaii, and the Council meet throughout the fishing year to show the Additionally, shortening the advance

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notification period from 14 to seven days Dated: February 8, 2011. (c) When the TAC limit specified in allows the agency to determine the projected Samuel D. Rauch III, this section is projected to be reached closure date closer to the actual closure. This Deputy Assistant Administrator for based on analyses of available is because the seven additional days can be Regulatory Programs, National Marine information, the Regional Administrator allocated to processing and analyzing catch Fisheries Service. shall publish a notice to that effect in data. This could increase precision in For the reasons set out in the the Federal Register and shall use other forecasting the closure date, and also preamble, 50 CFR part 665 is proposed means to notify permit holders. The facilitate adherence to the catch limit by to be amended as follows: notice will include an advisement that reducing the number of days fish could be the fishery will be closed beginning at caught once a closure notice is announced. PART 665—FISHERIES IN THE a specified date, which is not earlier This rule does not duplicate, overlap, or WESTERN PACIFIC conflict with other Federal rules. than seven days after the date of filing l. The authority citation for part 665 the closure notice for public inspection As a result, an initial regulatory continues to read as follows: at the Office of the Federal Register, flexibility analysis is not required and Authority: 16 U.S.C. 1801 et seq. until the end of the fishing year in none has been prepared. 2. In § 665.211, revise paragraph (c) to which the TAC is reached. List of Subjects in 50 CFR Part 665 read as follows: * * * * * [FR Doc. 2011–3244 Filed 2–11–11; 8:45 am] § 665.211 Total allowable catch (TAC) limit. Bottomfish, Fishing, Hawaii. BILLING CODE 3510–22–P * * * * *

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Notices Federal Register Vol. 76, No. 30

Monday, February 14, 2011

This section of the FEDERAL REGISTER Agriculture Tom Vilsack. Two All comments, including names and contains documents other than rules or Tennessee counties, Cocke and Monroe, addresses when provided, are placed in proposed rules that are applicable to the are setting aside a percentage of their the record and are available for public public. Notices of hearings and investigations, Secure Rural Schools Act payment inspection and copying. The public may committee meetings, agency decisions and under Title II of the Act to be used for inspect comments received at Ashley rulings, delegations of authority, filing of petitions and applications and agency projects on federal land. The RAC will National Forest, 355 North Vernal statements of organization and functions are ultimately review and recommend Avenue, Vernal, UT. examples of documents appearing in this projects to be funded from this money. FOR FURTHER INFORMATION CONTACT: section. Projects approved must benefit National Louis Haynes, RAC Coordinator, Ashley Forests lands. Projects can maintain National Forest, (435) 781–5105; e-mail: infrastructure, improve the health of [email protected]. DEPARTMENT OF AGRICULTURE watersheds and ecosystems, protect Individuals who use communities, and strengthen local telecommunication devices for the deaf Forest Service economies. The agenda for the March (TDD) may call the Federal Information 10th meeting of the Cherokee National Public Meeting, Cherokee National Relay Service (FIRS) at 1–800–877–8339 Forest RAC will focus on review and Forest Resource Advisory Committee between 8 a.m. and 8 p.m., Eastern consideration of proposed projects. RAC Standard Time, Monday through Friday. AGENCY: Forest Service, USDA. meetings are open to the public. ACTION: Notice of public meeting, SUPPLEMENTARY INFORMATION: The H. Thomas Speaks, Jr., meeting is open to the public. The Cherokee National Forest Resource Forest Supervisor, Cherokee National Forest. Advisory Committee. following business will be conducted: [FR Doc. 2011–3066 Filed 2–11–11; 8:45 am] (1) Welcome and roll call; (2) Approval SUMMARY: In accordance with the Secure BILLING CODE 3410–11–M of meeting minutes; (3) Creation and Rural Schools and Community Self approval of evaluation criteria to be Determination Act of 2000 (Pub. L. 106– used to rank order recommended 393), [as reauthorized as part of Public DEPARTMENT OF AGRICULTURE projects; (4) Review of next meeting Law 110–343] and the Federal Advisory purpose, location, and date; (5) Receive Forest Service Committee Act of 1972 (FACA), the U.S. public comment. Persons who wish to Department of Agriculture, Forest Ashley Resource Advisory Committee bring related matters to the attention of Service, Cherokee National Forest the Committee may file written Resource Advisory Committee will meet AGENCY: Forest Service, USDA. statements with the committee staff as indicated below. before or after the meeting. Public input ACTION: Notice of meeting. DATES: The Cherokee National Forest sessions will be provided and Resource Advisory Committee meeting SUMMARY: The Ashley Resource individuals who made written requests will be conducted on Thursday, March Advisory Committee will meet in by March 10, 2011 will have the 10, 2011 from 12:30–4:30 p.m. Vernal, Utah. The committee is meeting opportunity to address the committee at ADDRESSES: McGhee Tyson Airport, as authorized under the Secure Rural these meetings. 2055 Alcoa Highway, Alcoa, TN 37701. Schools and Community Self- Dated: February 7, 2011. Meeting visitors should park in the Determination Act (Pub. L. 110–343) Kevin B. Elliott, main airport parking garage and bring and in compliance with the Federal Forest Supervisor. their parking ticket to the meeting for Advisory Committee Act. The purpose validation. Take the centrally located [FR Doc. 2011–3070 Filed 2–11–11; 8:45 am] of the meeting is conduct introductions, BILLING CODE 3410–11–M elevator in the passenger terminal to the approve meeting minutes, develop and 3rd floor and see the receptionist for finalize evaluation criteria for the directions to the meeting room. ranking of recommended projects, set DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: the next meeting date, time and location Terry Bowerman, Designated Federal and receive public comment on the Forest Service Official, Cherokee National Forest, 4900 meeting subjects and proceedings. Asheville Hwy SR 70, Greeneville, TN Del Norte Resource Advisory 37743: Telephone: 423–638–4109, e- DATES: The meetings will be held March Committee (RAC) mail [email protected]. 17, 2011, from 6 p.m. to 8 p.m. SUPPLEMENTARY INFORMATION: The ADDRESSES: The meeting will be held in AGENCY: Forest Service, USDA. Cherokee National Forest Resource the Interagency Fire Dispatch Center ACTION: Notice of meeting. Advisory Committee (RAC) proposes conference room at the Ashley National projects and funding to the Secretary of Forest Supervisor’s Office, 355 North SUMMARY: The Del Norte Resource Agriculture under Section 203 of the Vernal Avenue in Vernal, Utah. Written Advisory Committee (RAC) will meet in Secure Rural Schools and Community comments should be sent to Ashley Crescent City, California. The committee Self Determination Act of 2000, (as National Forest, 355 North Vernal meeting is authorized under the Secure reauthorized as part of Pub. L. 110–343). Avenue, Vernal, UT 84078. Comments Rural Schools and Community Self- The Cherokee National Forest RAC may also be sent via e-mail to Determination (SRS) Act (Pub. L. 110– consists of 15 people selected to serve [email protected], or via facsimile to 343) and in compliance with the Federal on the committee by Secretary of 435–781–5142. Advisory Committee Act.

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DATES: The meeting will be held Dated: January 18, 2011. Arizona February 28, 2011, from 5 p.m. to 9 p.m. Steven Williams, USDA Rural Development State Office, 230 ADDRESSES: The meeting will be held at Designated Federal Official. North First Avenue, Suite 206, Phoenix, AZ 85003–1706, (602) 280–8702/TDD (602) the Del Norte County Unified School [FR Doc. 2011–3283 Filed 2–11–11; 8:45 am] 280–8705. District, Redwood Room, 301 West BILLING CODE 3410–11–P Washington Boulevard, Crescent City, Arkansas California 95531. USDA Rural Development State Office, DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: Federal Building, 700 West Capitol Avenue, Room 3416, Little Rock, AR Adam Dellinger, Committee Rural Business-Cooperative Service 72201–3225, (501) 301–3200/TDD (501) Coordinator, Six Rivers National Forest, 301–3279. at (707) 441–3569; e-mail Inviting Applications for the Rural California [email protected]. Economic Development Loan and Grant Program for Fiscal Year 2011 USDA Rural Development State Office, 430 G SUPPLEMENTARY INFORMATION: The Del Street, Agency 4169, Davis, CA 95616– Norte RAC will review applications AGENCY: Rural Business-Cooperative 4169, (530) 792–5800/TDD (530) 792–5848. received during the 2nd round of Service, USDA. Colorado proposal solicitations and will vote on ACTION: Notice. projects to recommend for funding. The USDA Rural Development State Office, meeting is open to the public and there Denver Federal Center, Building 56, Room SUMMARY: This Notice is to invite 2300, P.O. Box 25426, Denver, CO 80225– will also be a public comment applications for loans and grants under 0426, (720) 544–2903/TDD (800) 659–3656. opportunity. the Rural Economic Development Loan Delaware/Maryland Dated: February 4, 2011. and Grant (REDLG) program pursuant to 7 CFR part 4280, subpart A for Fiscal USDA Rural Development State Office, 1221 Tyrone Kelley, College Park Drive, Suite 200, Dover, DE Forest Supervisor. Year (FY) 2011 subject to the 19904, (302) 857–3580/TDD (302) 857– [FR Doc. 2011–3281 Filed 2–11–11; 8:45 am] availability of funding. The commitment 3585. of program dollars will be made to BILLING CODE 3410–11–P applicants of selected responses that Florida/Virgin Islands have fulfilled the necessary USDA Rural Development State Office, 4440 NW 25th Place, P.O. Box 147010, DEPARTMENT OF AGRICULTURE requirements for obligation. Expenses incurred in developing applications will Gainesville, FL 32614–7010, (352) 338– 3400/TDD (352) 338–3499. Forest Service be at the applicant’s risk. Historically, on an annual basis, Congress has Georgia White Pine-Nye County Resource appropriated $33 million for loans and USDA Rural Development State Office, Advisory Committee (RAC) $10 million for grants for these Stephens Federal Building, 355 East programs. This Notice is being issued Hancock Avenue, Stop 300, Athens, GA AGENCY: Forest Service, USDA. prior to passage of a FY 2011 30601–2768, (706) 546–2162/TDD (706) ACTION: Notice of meeting. Appropriations Act, which may or may 546–2034. not provide an appropriation for these Hawaii SUMMARY: The White Pine-Nye County programs, to allow applicants sufficient Resource Advisory Committee (RAC) USDA Rural Development State Office, time to leverage financing, submit Federal Building, Room 311, 154 will hold a meeting. applications, and give the Agency time Waianuenue Avenue, Hilo, HI 96720, (808) DATES: The meeting will be held on to process applications within FY 2011. 933–8302/TDD (808) 933–8321. March 2nd, 2011 and will begin at 9 A subsequent notice identifying the Idaho a.m. amount received in the appropriations USDA Rural Development State Office, 9173 ADDRESSES: The meeting will be held in will be published, if any. West Barnes Drive, Suite A1, Boise, ID Eureka County at the Eureka Opera DATES: The deadline for receipt of 83709, (208) 378–5601/TDD (208) 378– House, 31 S. Main Street, Eureka, applications in the USDA Rural 5644. Nevada 89316. Development State Office is: Third Illinois FOR FURTHER INFORMATION CONTACT: Jose Quarter, March 31, 2011; and Fourth USDA Rural Development State Office, 2118 Noriega, RAC Coordinator, USDA, Quarter, June 30, 2011. West Park Court, Suite A, Champaign, IL Humboldt-Toiyabe National Forest, Ely ADDRESSES: Submit applications in 61821, (217) 403–6200/TDD (217) 403– Ranger District, 825 Avenue E Ely, NV paper format to the USDA Rural 6240. 89301 (775) 289–3031; e-mail Development State Office in the state Indiana where your project is located. A list of [email protected]. USDA Rural Development State Office, 5975 the USDA Rural Development State Lakeside Boulevard, Indianapolis, IN SUPPLEMENTARY INFORMATION: Agenda Offices addresses and telephone items include: (1) Review and approve 46278, (317) 290–3100 ext. 4/TDD (317) numbers are as follows: 290–3343. operating guidelines, (2) Review and approve meeting and business expenses, Alabama Iowa (3) Review and recommend funding USDA Rural Development State Office, USDA Rural Development State Office, allocation for proposed projects, (4) Sterling Centre, Suite 601, 4121 Federal Building, Room 873, 210 Walnut Determine timeframes for the next Carmichael Road, Montgomery, AL 36106– Street, Des Moines, IA 50309, (515) 284– round of project proposals, (5) Public 3683, (334) 279–3400/TDD (334) 279–3495. 4663/TDD (515) 284–4858. Comment. The meeting is open to the Alaska Kansas public. Public input opportunity will be USDA Rural Development State Office, 800 USDA Rural Development State Office, 1303 provided and individuals will have the West Evergreen, Suite 201, Palmer, AK SW First American Place, Suite 100, opportunity to address the Committee at 99645–6539, (907) 761–7707/TDD (907) Topeka, KS 66604–4040, (785) 271–2700/ that time. 761–8905. TDD (785) 271–2767.

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Kentucky Street, Suite 357, Syracuse, NY 13202– Montpelier, VT 05602, (802) 828–6080/ USDA Rural Development State Office, 771 2541, (315) 477–6435/TDD (315) 477–6447. TDD (802) 223–6365. Corporate Drive, Suite 200, Lexington, KY North Carolina Virginia 40503, (859) 224–7300/TDD (859) 224– 7422. USDA Rural Development State Office, 4405 USDA Rural Development State Office, 1606 Bland Road, Suite 260, Raleigh, NC 27609, Santa Rosa Road, Suite 238, Richmond, VA Louisiana (919) 873–2015/TDD (919) 873–2003. 23229–5014, (804) 287–1552/TDD (804) 287–1753. USDA Rural Development State Office, 3727 North Dakota Government Street, Alexandria, LA 71302, Washington (318) 473–7920/TDD (318) 473–7655. USDA Rural Development State Office, Federal Building, Room 208, 220 East USDA Rural Development State Office, 1835 Maine Rosser, P.O. Box 1737, Bismarck, ND Black Lake Boulevard SW, Suite B, USDA Rural Development State Office, 967 58502–1737, (701) 530–2037/TDD (701) Olympia, WA 98512–5715, (360) 704– Illinois Avenue, Suite 4, P.O. Box 405, 530–2113. 7740/TDD (360) 704–7760. Bangor, ME 04402–0405, (207) 990–9160/ Ohio West Virginia TDD (207) 942–7331. USDA Rural Development State Office, USDA Rural Development State Office, 1550 Massachusetts/Rhode Island/Connecticut Federal Building, Room 507, 200 North Earl Core Road, Suite 101, Morgantown, USDA Rural Development State Office, 451 High Street, Columbus, OH 43215–2418, WV 26505, (304) 284–4860/TDD (304) 284– West Street, Amherst, MA 01002–2999, (614) 255–2400/TDD (614) 255–2554. 4836. (413) 253–4300/TDD (413) 253–4590. Oklahoma Wisconsin Michigan USDA Rural Development State Office, 100 USDA Rural Development State Office, 4949 USDA Rural Development State Office, 3001 USDA, Suite 108, Stillwater, OK 74074– Kirschling Court, Stevens Point, WI 54481, Coolidge Road, Suite 200, East Lansing, MI 2654, (405) 742–1000/TDD (405) 742–1007. (715) 345–7600/TDD (715) 345–7614. 48823, (517) 324–5190/TDD (517) 324– Oregon 5169. Wyoming USDA Rural Development State Office, 1201 USDA Rural Development State Office, P.O. Minnesota Northeast Lloyd Blvd., Suite 801, Portland, Box 11005, 100 East B, Federal Building, USDA Rural Development State Office, 375 OR 97232, (503) 414–3305/TDD (503) 414– Room 1005, Casper, WY 82601, (307) 233– Jackson Street, Suite 410, St. Paul, MN 3387. 6703/TDD (307) 233–6733. 55101–1853, (651) 602–7800/TDD (651) Pennsylvania FOR FURTHER INFORMATION CONTACT: 602–3799. The USDA Rural Development State Office, One Rural Development State Office Mississippi Credit Union Place, Suite 330, Harrisburg, identified in this Notice where the USDA Rural Development State Office, PA 17110–2996, (717) 237–2262/TDD (717) project will be located. Federal Building, Suite 831, 100 West 237–2261. SUPPLEMENTARY INFORMATION: Capitol Street, Jackson, MS 39269, (601) Puerto Rico 965–4211/TDD (601) 965–5850. Overview USDA Rural Development State Office, 654 Missouri Munos Rivera Avenue, Suite 601, San Juan, Federal Agency: Rural Business- USDA Rural Development State Office, 601 PR 00918–6106, (787) 766–5095/TDD (787) Cooperative Service. Business Loop 70 West, Parkade Center, 766–5332. Funding Opportunity Type: Rural Suite 235, Columbia, MO 65203, (573) Economic Development Loans and South Carolina 876–0987/TDD (573) 876–9480. Grants. USDA Rural Development State Office, Strom Montana Announcement Type: Initial Thurmond Federal Building, 1835 Announcement. Assembly Street, Room 1007, Columbia, SC USDA Rural Development State Office, 2229 Catalog of Federal Domestic Boot Hill Court, Bozeman, MT 59715, (406) 29201, (803) 765–5163/TDD (803) 765– 585–2580/TDD (406) 585–2562. 5697. Assistance Number: 10.854. Dates: Application Deadline: Nebraska South Dakota Completed applications must be USDA Rural Development State Office, USDA Rural Development State Office, received in the State Office as follows: Federal Building, Room 152, 100 Federal Building, Room 210, 200 Fourth Third Quarter, March 31, 2011; and Centennial Mall North, Lincoln, NE 68508, Street, SW, Huron, SD 57350, (605) 352– Fourth Quarter, June 30, 2011. (308)632–2195/TDD (402) 437–5093. 1100/TDD (605) 352–1147. I. Funding Opportunity Description Nevada Tennessee USDA Rural Development State Office, 1390 USDA Rural Development State Office, 3322 The regulations for these programs are South Curry Street, Carson City, NV West End Avenue, Suite 300, Nashville, at 7 CFR part 4280, subpart A. The 89703–9910, (775) 887–1222/TDD (775) TN 37203–1071, (615) 783–1300. primary objective of the program is to 885–0633. promote rural economic development Texas New Jersey and job creation projects. Assistance USDA Rural Development State Office, provided to rural areas, as defined, USDA Rural Development State Office, 8000 Federal Building, Suite 102, 101 South under this program may include Midlantic Drive, 5th Floor North, Suite Main, Temple, TX 76501, (254) 742–9700/ 500, Mt. Laurel, NJ 08054, (856) 787–7700/ TDD (254) 742–9712. business startup costs, business TDD (856) 787–7784. expansion, business incubators, Utah technical assistance feasibility studies, New Mexico USDA Rural Development State Office, advanced telecommunications services USDA Rural Development State Office, 6200 Wallace F. Bennett Federal Building, 125 and computer networks for medical, Jefferson Street, Room 255, Albuquerque, South State Street, Room 4311, Salt Lake educational, and job training services NM 87109, (505) 761–4950/TDD (505) 761– City, UT 84138, (801) 524–4321/TDD (801) and community facilities projects for 4938. 524–3309. economic development. Awards are New York Vermont/New Hampshire made on a competitive basis using USDA Rural Development State Office, The USDA Rural Development State Office, City specific selection criteria contained in 7 Galleries of Syracuse, 441 South Salina Center, 3rd Floor, 89 Main Street, CFR part 4280, subpart A. Information

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required to be in the application D. Completeness Eligibility package for this program by the Catalog includes an SF–424, ‘‘Application for Applications will not be considered of Federal Domestic Assistance Number Federal Assistance;’’ a Resolution of the for funding if they do not provide or FedGrants Funding Opportunity Board of Directors; AD–1047, sufficient information to determine Number, which can be found at http:// ‘‘Debarment/Suspension Certification;’’ eligibility or are missing required www.grants.gov. Assurance Statement for the Uniform elements. B. Content and Form of Submission Act; Restrictions on Lobbying, AD 1049, ‘‘Certification Regarding Drug-Free IV. Fiscal Year 2011 Application and An application must contain all of the Workplace Requirements;’’ Form RD Submission Information required elements. Each selection priority criterion outlined in 7 CFR 400–1, ‘‘Equal Opportunity Agreement;’’ A. Address To Request Application 4280.42(b), must be addressed in the Form RD 400–4, ‘‘Assurance Package Agreement;’’ Seismic Certification (if application. Failure to address any of construction); Form RD 1940–20, For further information, entities the criteria will result in a zero-point ‘‘Request for Environmental wishing to apply for assistance should score for that criterion and will impact Information;’’ RUS Form 7,‘‘Financial contact the Rural Development State the overall evaluation of the application. and Statistical Report;’’ and RUS Form Office identified in this Notice to obtain Copies of 7 CFR part 4280, subpart A, 7a, ‘‘Investments, Loan Guarantees, and copies of the application package. will be provided to any interested Loans,’’ or similar information; and Applicants are encouraged to submit applicant making a request to a Rural written narrative of project description. applications through the Grants.gov Development State Office listed in this Applications will be tentatively scored Web site at: http://www.grants.gov. notice. Applications may be submitted in either by the State Offices and submitted to the C. Submission Dates and Times National Office for review. electronic or paper format. Users of Grants.gov will be able to download a Application Deadline Dates: Third Definitions copy of the application package, Quarter, March 31, 2011, and Fourth The definitions are published at 7 complete it off line, and then upload Quarter, June 30, 2011. CFR 4280.3. and submit the application via the Explanation of Deadlines: Grants.gov Web site. Applications may Applications must be in the Rural II. Award Information not be submitted by electronic mail. Development State Office by the • Type of Awards: Loans and Grants. When you enter the Grants.gov Web deadline dates as indicated above. site, you will find information about Fiscal Year Funds: FY 2011. V. Application Review Information submitting an application electronically Maximum Anticipated Award: This The National Office will score amount depends on the amount through the site as well as the hours of operation. USDA Rural Development applications based on the grant Congress appropriates, but the Agency selection criteria and weights contained anticipates the following amounts: strongly recommends that you do not wait until the application deadline date in 7 CFR part 4280, subpart A, and will Loans—$740,000; Grant—$300,000. select an Intermediary subject to the Anticipated Award Dates: Third to begin the application process through Grants.gov. To use Grants.gov, Intermediary’s satisfactory submission Quarter, June 15, 2011; and Fourth of the additional items required by 7 Quarter, September 15, 2011. applicants must have a Dun and Bradstreet Data Universal Numbering CFR part 4280, subpart A and the USDA III. Eligibility Information System (DUNS) number which can be Rural Development Letter of Conditions. A. Eligible Applicants obtained at no cost via a toll-free request VI. Award Administration Information line at 1–866–705–5711 or at http:// Loans and grants may be made to any www.dnb.com. A. Award Notices entity that is identified by USDA Rural • You may submit all documents Successful applicants will receive Development as an eligible borrower electronically through the Web site, notification for funding from the Rural under the Rural Electrification Act. In including all information typically Development State Office. Applicants accordance with 7 CFR 4280.13, included on the application for REDLGs must comply with all applicable statutes applicants that are not delinquent on and all necessary assurances and and regulations before the loan/grant any Federal debt or otherwise certifications. award will be approved. Provided the disqualified from participation in these • After electronically submitting an application requirements have not programs are eligible to apply. An application through the Web site, the changed, an application not selected applicant must be eligible under 7 applicant will receive an automatic will be reconsidered in three subsequent U.S.C. 940c. acknowledgement from Grants.gov that funding competitions for a total of four contains a Grants.gov tracking number. competitions. If an application is B. Cost Sharing or Matching • USDA Rural Development may withdrawn, it can be resubmitted and For loans, either the Ultimate request that the applicant provide will be evaluated as a new application. Recipient or the Intermediary must original signatures on forms at a later provide supplemental funds for the date. B. Administrative and National Policy project equal to at least 20 percent of the • If applicants experience technical Requirements loan to the Intermediary. For grants, the difficulties on the closing date and are Additional requirements that apply to Intermediary must provide unable to meet the deadline, you may Intermediary’s selected for this program supplemental funds for the project equal submit a paper copy of your application can be found in 7 CFR part 4280, to at least 20 percent of the grant to the to your respective Rural Development subpart A. Applicable provisions of 7 Intermediary. State Office. Paper applications CFR parts 3015, 3019, and 3052 also submitted to a Rural Development State C. Other Eligibility Requirements apply. Office must meet the closing date and Applications will only be accepted for local time deadline. VII. Agency Contacts projects that promote rural economic Please note that applicants must For general questions about this development and job creation. locate the downloadable application announcement, please contact your

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Rural Development State Office Average Hours per Response: 5 ACTION: Notice. identified in this Notice. minutes. Burden Hours: 106. SUMMARY: The Department of VIII. Paperwork Reduction Act Needs and Uses: United States (U.S.) Commerce, as part of its continuing In accordance with the Paperwork participation in the Inter-American effort to reduce paperwork and Reduction Act of 1995, the information Tropical Tuna Commission (IATTC) respondent burden, invites the general collection requirement contained in this results in certain recordkeeping public and other Federal agencies to Notice is approved by the Office of requirements for U.S. fishermen who take this opportunity to comment on Management and Budget (OMB) under fish in the IATTC’s area of management proposed and/or information OMB Control Number 0570–0024. responsibility. These fishermen must collections, as required by the maintain a log of all operations Paperwork Reduction Act of 1995. Nondiscrimination Statement conducted from the fishing vessel, DATES: Written comments must be ‘‘The U.S. Department of Agriculture including the date, noon position, and submitted on or before April 15, 2011. (USDA) prohibits discrimination in all the tonnage of fish aboard the vessel, by ADDRESSES: Direct all written comments its programs and activities on the basis species. The logbook form provided by to Diana Hynek, Departmental of race, color, national origin, age, the IATTC is universally used by U.S. Paperwork Clearance Officer, disability, and where applicable, sex, fishermen to meet this recordkeeping Department of Commerce, Room 6616, marital status, familial status, parental requirement. The information in the 14th and Constitution Avenue, NW., status, religion, sexual orientation, logbooks includes areas and times of Washington, DC 20230 (or via the genetic information, political beliefs, operation, and catch and effort by area. Internet at [email protected]). reprisal, or because all or part of an Logbook data are used in stock FOR FURTHER INFORMATION CONTACT: individual’s income is derived from any assessments and other research Requests for additional information or public assistance program. (Not all concerning the fishery. If the data were copies of the information collection prohibited bases apply to all programs.) not collected or if erroneous data were instrument and instructions should be Persons with disabilities who require provided, the IATTC assessments would directed to David A. Ritchie, U.S. alternative means for communication of likely be incorrect and there would be Department of Commerce, Office of program information (Braille, large an increased risk of overfishing or Technology and Electronic Commerce, print, audiotape, etc.) should contact inadequate management of the fishery. Telephone: 202–482–4936; e-mail: USDA’s TARGET Center at (202) 720– Affected Public: Business or other for- [email protected]. 2600 (voice and TDD). profit organizations. To file a complaint of discrimination, Frequency: Daily. SUPPLEMENTARY INFORMATION: write to USDA, Director, Office of Respondent’s Obligation: Mandatory. I. Abstract Adjudication and Compliance, 1400 OMB Desk Officer: The Office of Technology and Independence Avenue, SW., [email protected]. Electronic Commerce in the Washington, DC 20250–9410, or call Copies of the above information Manufacturing and Services unit of the (800) 795–3272 (voice), or (202) 720– collection proposal can be obtained by International Trade Administration 6382 (TDD). USDA is an equal calling or writing Diana Hynek, (ITA) administers the U.S.-European opportunity provider, employer, and Departmental Paperwork Clearance Union (EU) and U.S.-Swiss Safe Harbor lender.’’ Officer, (202) 482–0266, Department of Commerce, Room 6616, 14th and Frameworks. These Frameworks allow Dated: February 1, 2011. Constitution Avenue, NW., Washington, U.S. companies to meet the Judith A. Canales, DC 20230 (or via the Internet at requirements of the European Union’s Administrator, Rural Business-Cooperative [email protected]). Data Protection Directive and the Swiss Service. Written comments and Federal Act on Data Protection, [FR Doc. 2011–3198 Filed 2–11–11; 8:45 am] recommendations for the proposed respectively. This is significant because BILLING CODE 3410–XY–P information collection should be sent the Frameworks ensure uninterrupted within 30 days of publication of this transfers of personal information worth notice to billions of dollars in trade between the DEPARTMENT OF COMMERCE [email protected]. United States and the EU and Switzerland. Dated: February 9, 2011. Submission for OMB Review; In line with the President’s National Gwellnar Banks, Comment Request Export Initiative, ITA is interested in Management Analyst, Office of the Chief gathering information from U.S. The Department of Commerce will Information Officer. companies that use the U.S.-EU and submit to the Office of Management and [FR Doc. 2011–3206 Filed 2–11–11; 8:45 am] U.S.-Swiss Safe Harbor Frameworks to Budget (OMB) for clearance the BILLING CODE 3510–22–P better evaluate the programs and how following proposal for collection of they support U.S. exports. The information under the provisions of the information will be obtained via a Paperwork Reduction Act (44 U.S.C. DEPARTMENT OF COMMERCE survey using the following questions: chapter 35). (1) Does your company’s participation Agency: National Oceanic and International Trade Administration in the U.S.-EU or U.S.-Swiss Safe Atmospheric Administration (NOAA). Proposed Information Collection; Harbor programs help your company Title: Pacific Tuna Fisheries Logbook. Comment Request; Survey of increase U.S. exports and support U.S. OMB Control Number: 0648–0148. Participating Companies in the U.S.- jobs? Please explain. Form Number(s): NA. European Union and U.S.-Swiss Safe (2) Please specify the approximate Type of Request: Regular submission Harbor Frameworks amount of exports in United States (extension of a current information Dollars (USD) facilitated by your collection). AGENCY: International Trade company’s participation in the U.S.-EU Number of Respondents: 15. Administration. or U.S.-Swiss Safe Harbor programs

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(please include any sales or contracts Dated: February 8, 2011. Certain Frozen Warmwater Shrimp that were won or retained as a result of Gwellnar Banks, From the Socialist Republic of Vietnam your participation in the programs). Management Analyst, Office of the Chief and the People’s Republic of China, 75 (3) How much of your annual sales/ Information Officer. FR 18154 (April 9, 2010) (‘‘Initiation’’). exports to Europe, Switzerland, or other [FR Doc. 2011–3173 Filed 2–11–11; 8:45 am] However, after accounting for duplicate parts of the world are dependent on self- BILLING CODE 3510–DR–P names and additional trade names certification to the U.S.-EU or U.S.- associated with certain exporters, the Swiss Safe Harbor programs? number of companies upon which we (4) Does your company currently have DEPARTMENT OF COMMERCE initiated was actually 88.1 a contract that is dependent on self- Between April 15, 2010, and April 27, certification to the U.S.-EU or U.S.- International Trade Administration 2010, the following companies 2 Swiss Safe Harbor programs? If so, what [A–570–893] submitted ‘‘no shipment certifications’’ : is the value of that contract(s)? Allied Pacific Food (Dalian) Co., Ltd., (5) What do the U.S.-EU and U.S.- Certain Frozen Warmwater Shrimp Allied Pacific Aquatic Products Swiss Safe Harbor programs mean to From the People’s Republic of China: (Zhanjiang) Co., Ltd., Zhanjiang Allied your company in terms of business Preliminary Results and Preliminary Pacific Aquaculture Co., Ltd., Allied opportunities in Europe? Partial Rescission of Fifth Pacific (H.K.) Co., Ltd., and King Royal 3 (6) Tell us what you think about the Antidumping Duty Administrative Investments Ltd.; Shantou Yelin U.S.-EU and U.S.-Swiss Safe Harbor Review Frozen Seafood Co., Ltd. (doing programs? business as (‘‘d.b.a.’’) Shantou Yelin AGENCY: Import Administration, Quick-Freeze Marine Products Co., II. Method of Collection International Trade Administration, Ltd.); Fuqing Yihua Aquatic Food Co., Department of Commerce. Ltd.; Fuqing Minhua Trade Co., Ltd.; The information will be collected via SUMMARY: The Department of Commerce an electronic form on the Safe Harbor and Yangjiang City Yelin Hoitat Quick (‘‘Department’’) is conducting an Frozen Seafood Co., Ltd. Web site (http://www.export.gov/ administrative review of the safeharbor). On July 6, 2010, Petitioner withdrew antidumping duty order on certain its request for an administrative review III. Data frozen warmwater shrimp (‘‘shrimp’’) of Allied Pacific Aquatic Products from the People’s Republic of China OMB Control Number: None. (Zhanjiang) Co., Ltd. and Allied Pacific (‘‘PRC’’), covering the period of review Food (Dalian) Co., Ltd. Petitioner was Form Number(s): None. (‘‘POR’’) of February 1, 2009, through the only party to request a review of Type of Review: Regular submission January 31, 2010. As discussed below, these companies. Accordingly, on July (new information collection). the Department preliminarily 20, 2010, the Department published a Affected Public: Business or other for- determines that the respondent in this partial rescission with respect to these profit organizations. review did not make sales in the United two companies. See Certain Frozen Estimated Number of Respondents: States at prices below normal value Warmwater Shrimp from the People’s 2,300. (‘‘NV’’) during the POR. Republic of China: Partial Rescission of Estimated Time per Response: 20 DATES: Effective Date: February 14, Antidumping Duty Administrative minutes. 2011. Review, 75 FR 42070 (July 20, 2010) Estimated Total Annual Burden FOR FURTHER INFORMATION CONTACT: (‘‘Partial Rescission’’). Hours: 767. Kabir Archuletta, AD/CVD Operations, Respondent Selection Estimated Total Annual Cost to Office 9, Import Administration, Public: $500. International Trade Administration, On May 17, 2010, in accordance with section 777A(c)(2) of the Tariff Act of IV. Request for Comments U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 1930, as amended (‘‘Act’’), the Comments are invited on: (a) Whether Washington, DC 20230; telephone (202) Department selected Hilltop the proposed collection of information 482–2593. International (‘‘Hilltop’’) for individual is necessary for the proper performance SUPPLEMENTARY INFORMATION: examination in this review, since it was of the functions of the agency, including the largest exporter by volume during whether the information will have Background the POR, based on U.S. Customs and practical utility; (b) the accuracy of the The Department received timely Border Protection (‘‘CBP’’) data of U.S. agency’s estimate of the burden requests from members of the Ad Hoc imports. See Memorandum to James (including hours and cost) of the Shrimp Trade Action Committee Doyle, Director, Office 9, from Kabir proposed collection of information; (c) (‘‘Petitioner’’) and the American Shrimp Archuletta, Case Analyst, Office 9, ways to enhance the quality, utility, and Processors Association and the ‘‘Antidumping Duty Administrative clarity of the information to be Louisiana Shrimp Association collected; and (d) ways to minimize the ‘‘ ’’ 1 The following companies were duplicated: (collectively, domestic parties ), in Fuqing Yihua Aquatic Food Co., Ltd. and/or Fuqing burden of the collection of information accordance with 19 CFR 351.213(b), Yihua Aquatic Products Co., Ltd., Regal Marine on respondents, including through the during the anniversary month of Resources Co., Ltd., Shantou Longsheng Aquatic use of automated collection techniques February, for administrative reviews of Product, and Zhanjiang Regal Integrated Marine or other forms of information the antidumping duty order on shrimp Resources. 2 Companies have the opportunity to submit technology. from the PRC. On April 9, 2010, the statements certifying that they did not ship the Comments submitted in response to Department initiated an administrative subject merchandise to the United States during the this notice will be summarized and/or review of 92 producers/exporters of POR. included in the request for OMB subject merchandise from the PRC. See 3 The Department did not initiate upon Zhanjiang Allied Pacific Aquaculture Co., Ltd., Allied Pacific approval of this information collection; Notice of Initiation of Administrative (H.K.) Co., Ltd., and King Royal Investments Ltd. they also will become a matter of public Reviews and Requests for Revocation in because no parties requested a review of them for record. Part of the Antidumping Duty Orders on this POR.

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Review of Certain Frozen Warmwater shrimp and prawns through freezing definition of dusting above, is coated Shrimp from the People’s Republic of and which are sold in any count size. with a wet viscous layer containing egg China: Selection of Respondents for The products described above may be and/or milk, and par-fried. Individual Review,’’ dated May 17, processed from any species of The products covered by the order are 2010. warmwater shrimp and prawns. currently classified under the following Warmwater shrimp and prawns are HTS subheadings: 0306.13.0003, Questionnaires generally classified in, but are not 0306.13.0006, 0306.13.0009, On May 18, 2010, the Department limited to, the Penaeidae family. Some 0306.13.0012, 0306.13.0015, issued its initial non-market economy examples of the farmed and wild-caught 0306.13.0018, 0306.13.0021, (‘‘NME’’) antidumping duty warmwater species include, but are not 0306.13.0024, 0306.13.0027, questionnaire to Hilltop, and issued limited to, white-leg shrimp (Penaeus 0306.13.0040, 1605.20.1010 and supplemental questionnaires to Hilltop vannemei), banana prawn (Penaeus 1605.20.1030. These HTS subheadings between July 2010 and November 2010. merguiensis), fleshy prawn (Penaeus are provided for convenience and for Hilltop responded to the Department’s chinensis), giant river prawn customs purposes only and are not initial and subsequent supplemental (Macrobrachium rosenbergii), giant tiger dispositive, but rather the written questionnaires between June 2010 and prawn (Penaeus monodon), redspotted description of the scope of the order is November 2010. shrimp (Penaeus brasiliensis), southern dispositive. brown shrimp (Penaeus subtilis), Affiliation/Single Entity Surrogate Country and Surrogate southern pink shrimp (Penaeus Values notialis), southern rough shrimp Based on the evidence on the record On July 20, 2010, the Department sent (Trachypenaeus curvirostris), southern in this administrative review, including interested parties a letter requesting white shrimp (Penaeus schmitti), blue information found in Hilltop’s comments on the surrogate country and shrimp (Penaeus stylirostris), western questionnaire responses, the information pertaining to the valuation white shrimp (Penaeus occidentalis), Department preliminarily finds of factors of production (‘‘FOPs’’). On and Indian white prawn (Penaeus affiliation between Hilltop and August 31, 2010, the Department indicus). Yangjiang City Yelin Hoitat Quick received comments from Hilltop and Frozen shrimp and prawns that are Frozen Seafood Co., Ltd. and Fuqing Petitioner regarding selection of a packed with marinade, spices or sauce Yihua Aquatic Food Co., Ltd., producers surrogate country. On September 10, are included in the scope of the order. of subject merchandise, pursuant to 2010, the Department received In addition, food preparations, which section 771(33)(F) of the Act. Further, comments from Hilltop, domestic are not ‘‘prepared meals,’’ that contain we preliminarily find Hilltop affiliated parties and Petitioner regarding more than 20 percent by weight of with Yelin Enterprise Co., Ltd., Ocean selection of surrogate country and shrimp or prawn are also included in Beauty Corporation, and Ever Hope valuation of FOPs. On September 20, the scope of the order. International Co., Ltd., Taiwanese 2010, the Department received rebuttal Excluded from the scope are: (1) resellers of subject merchandise, comments from Hilltop regarding Breaded shrimp and prawns (HTS pursuant to 771(33)(A) and (F) of the surrogate value submissions. subheading 1605.20.1020); (2) shrimp Act. Lastly, we preliminarily find and prawns generally classified in the affiliation between Hilltop and Ocean Case Schedule Pandalidae family and commonly Duke Corporation, a U.S. importer of On September 17, 2010, in accordance referred to as coldwater shrimp, in any subject merchandise, pursuant to with section 751(a)(3)(A) of the Act, we state of processing; (3) fresh shrimp and sections 771(33)(A) and (F) of the Act. extended the time period for issuing the prawns whether shell-on or peeled (HTS Based on the evidence presented in preliminary results by 120 days, until subheadings 0306.23.0020 and Hilltop’s questionnaire responses, we February 28, 2011. See Certain Frozen 0306.23.0040); (4) shrimp and prawns in preliminarily find that Hilltop, Yelin Warmwater Shrimp From the People’s prepared meals (HTS subheading Enterprise Co., Ltd., Ocean Beauty Republic of China: Extension of 1605.20.0510); (5) dried shrimp and Corporation, and Ever Hope Preliminary Results of Antidumping prawns; (6) Lee Kum Kee’s shrimp International Co., Ltd., should be treated Duty Administrative Review, 75 FR sauce; (7) canned warmwater shrimp as a single entity for the purposes of this 56988 (September 17, 2010). and prawns (HTS subheading administrative review. This finding is 1605.20.1040); (8) certain dusted based on our determination that Yelin Scope of the Order shrimp; and (9) certain battered shrimp. Enterprise Co., Ltd., Ocean Beauty The scope of the order includes Dusted shrimp is a shrimp-based Corporation, and Ever Hope certain frozen warmwater shrimp and product: (1) That is produced from fresh International Co., Ltd., are involved in prawns, whether wild-caught (ocean (or thawed-from-frozen) and peeled the export of subject merchandise sold harvested) or farm-raised (produced by shrimp; (2) to which a ‘‘dusting’’ layer of by Hilltop and that a significant aquaculture), head-on or head-off, shell- rice or wheat flour of at least 95 percent potential for manipulation of price or on or peeled, tail-on or tail-off,4 purity has been applied; (3) with the production exists between these deveined or not deveined, cooked or entire surface of the shrimp flesh entities.5 For a detailed discussion of raw, or otherwise processed in frozen thoroughly and evenly coated with the form. flour; (4) with the non-shrimp content of 5 While Yelin Enterprise Co., Ltd., Ocean Beauty The frozen warmwater shrimp and the end product constituting between Corporation, and Ever Hope International Co., Ltd., four and 10 percent of the product’s are not producers of subject merchandise, we note prawn products included in the scope of that where companies are affiliated, and there exists the order, regardless of definitions in total weight after being dusted, but prior a significant potential for manipulation of prices the Harmonized Tariff Schedule of the to being frozen; and (5) that is subjected and/or export decisions, the Department has found United States (‘‘HTS’’), are products to individually quick frozen (‘‘IQF’’) it appropriate to treat those companies as a single freezing immediately after application entity. The Court of International Trade upheld the which are processed from warmwater Department’s decision to include export decisions of the dusting layer. Battered shrimp is in its analysis of whether there was a significant 4 ‘‘Tails’’ in this context means the tail fan, which a shrimp-based product that, when potential for manipulation. See Hontex Enterprises, includes the telson and the uropods. dusted in accordance with the Continued

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this issue, see Memorandum to the File, submitted comments, we are Determination of Sales at Less Than through Catherine Bertrand, Program preliminarily rescinding the review Fair Value and Final Partial Affirmative Manager, Office 9, from Kabir with respect to Shantou Yelin Frozen Determination of Critical Archuletta, Case Analyst, Office 9, Seafood Co., Ltd. (d.b.a. Shantou Yelin Circumstances: Diamond Sawblades ‘‘Preliminary Determination of Quick-Freeze Marine Products Co., and Parts Thereof From the People’s Affiliation/Single Entity Treatment of Ltd.); Yangjiang City Yelin Hoitat Quick Republic of China, 71 FR 29303 (May Hilltop International, Yelin Enterprise Frozen Seafood Co., Ltd.; Fuqing Yihua 22, 2006). Co., Ltd., Ocean Beauty Corporation and Aquatic Food Co., Ltd.; and Fuqing In the Initiation, the Department Ever Hope International Co., Ltd.,’’ Minhua Trading Co., Ltd. See, e.g., notified parties of the application issued concurrently with this notice. Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of process by which exporters and Preliminary Partial Rescission of Preliminary Results and Partial producers may obtain separate rate Review Rescission of the Third Antidumping status in NME proceedings. See As discussed in the Background Duty Administrative Review, 72 FR Initiation. It is the Department’s policy section above, several companies filed 53527, 53530 (September 19, 2007), to assign all exporters of the no shipment certifications indicating unchanged in Certain Frozen Fish Fillets merchandise subject to review in NME that they did not export subject From the Socialist Republic of Vietnam: countries a single rate unless an merchandise to the United States during Final Results of Antidumping Duty exporter can affirmatively demonstrate the POR. The Department’s practice Administrative Review and Partial an absence of government control, both concerning ‘‘no-shipment’’ respondents Rescission, 73 FR 15479, 15480 (March in law (de jure) and in fact (de facto), has been to rescind the administrative 24, 2008). with respect to exports. To establish review if the respondent certifies that it NME Country Status whether a company is sufficiently had no shipments and the Department independent to be entitled to a separate, has confirmed through its examination In every case conducted by the company-specific rate, the Department of data from CBP that there were no Department involving the PRC, the PRC analyzes each exporting entity in an shipments of subject merchandise has been treated as an NME country. In NME country under the test established accordance with section 771(18)(C)(i) of during the POR. See Antidumping in Final Determination of Sales at Less the Act, any determination that a foreign Duties; Countervailing Duties, 62 FR Than Fair Value: Sparklers From the country is an NME country shall remain 27296, 27393 (May 19, 1997). People’s Republic of China, 56 FR 20588 in effect until revoked by the On May 11, 2010, the Department sent (May 6, 1991), as amplified by Notice of an inquiry to CBP to determine whether administering authority. See Brake Rotors From the People’s Republic of Final Determination of Sales at Less CBP entry data is consistent with the Than Fair Value: Silicon Carbide From statements of Allied Pacific Aquatic China: Final Results and Partial Rescission of the 2004/2005 the People’s Republic of China, 59 FR Products Zhanjiang Co. Ltd. and Allied 22585 (May 2, 1994). However, if the Pacific Food (Dalian) Co., Ltd. See Administrative Review and Notice of Rescission of 2004/2005 New Shipper Department determines that a company Memorandum to the File from Kabir is wholly foreign-owned or located in a Archuletta, Analyst, Office 9, regarding Review, 71 FR 66304 (November 14, market economy, then a separate rate ‘‘U.S. Customs and Border Protection 2006). None of the parties to this analysis is not necessary to determine Inquiries’’ dated December 15, 2010 proceeding has contested such whether it is independent from (‘‘Customs Inquiries’’). As stated above, treatment. Accordingly, we calculated government control. See, e.g., Final Petitioner withdrew its request for an NV in accordance with section 773(c) of Results of Antidumping Duty administrative review of Allied Pacific the Act, which applies to NME Aquatic Products (Zhanjiang) Co., Ltd. countries. Administrative Review: Petroleum Wax Candles From the People’s Republic of and Allied Pacific Food (Dalian) Co., Separate Rates Ltd., and on July 20, 2010, the China, 72 FR 52355, 52356 (September A designation of a country as an NME 13, 2007). Department published in the Federal remains in effect until it is revoked by In this administrative review, Register a partial rescission notice with the Department. See section 771(18)(C) Zhanjiang Regal (‘‘Regal’’) is the only respect to these two companies. See of the Act. Accordingly, there is a Partial Rescission. rebuttable presumption that all company that submitted a separate rate On May 17, 2010, the Department sent companies within the PRC are subject to certification. See Regal’s Separate Rate an inquiry to CBP to confirm the claims government control and, thus, should be Certification dated May 10, 2010. made by Yelin Frozen Seafood Co., Ltd. assessed a single antidumping duty rate. Additionally, the Department received (d.b.a. Shantou Yelin Quick-Freeze See Notice of Final Determination of completed responses to the Section A Marine Products Co., Ltd.); Yangjiang Sales at Less Than Fair Value, and portion of the NME antidumping City Yelin Hoitat Quick Frozen Seafood Affirmative Critical Circumstances, In questionnaire from Hilltop, which Co., Ltd.; Fuqing Yihua Aquatic Food Part: Certain Lined Paper Products From contained information pertaining to the Co., Ltd.; and Fuqing Minhua Trading the People’s Republic of China, 71 FR company’s eligibility for a separate rate. Co., Ltd. See Customs Inquiries. Because 53079 (September 8, 2006); Final See Hilltop’s Section A response dated CBP did not respond to the June 15, 2010. All other companies 6 Department’s inquiry and no party company in question. See Certain Hot-Rolled Flat- upon which the Department initiated an Rolled Carbon Quality Steel Flat Products From administrative review that have not Inc. v. United States, 248 F. Supp. 2d 1323, 1343 Brazil: Notice of Rescission of Antidumping Duty been rescinded did not submit either a (CIT 2003). In this case, not only are Yelin Administrative Review, 75 FR 65453, 65454 Enterprise Co., Ltd., Ocean Beauty Corporation, and (October 25, 2010); Certain Circular Welded Carbon separate rate application or certification. Ever Hope International Co., Ltd. exporters of Steel Pipes and Tubes From Taiwan: Notice of Therefore, we have determined it subject merchandise, but they are the sole Intent To Rescind Administrative Review, 74 FR appropriate to consider those companies intermediaries for all transactions of subject 3559, 3560 (January 21, 2009); and Certain In–Shell that did not demonstrate their eligibility merchandise between Hilltop and its U.S. affiliate. Raw Pistachios From Iran: Rescission of 6 CBP only responds to the Department’s inquiry Antidumping Duty Administrative Review, 73 FR for separate rate status as part of the when there are records of shipments from the 9292, 9293 (February 20, 2008). PRC-wide entity.

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Separate Rate Recipients determines that there were exports of remains subject to review as a merchandise under review from 80 PRC cooperative separate rate respondent. Wholly Foreign-Owned exporters that did not demonstrate their We note that the statute and the Hilltop has reported that it is a Hong eligibility for separate rate status.9 As a Department’s regulations do not directly Kong based exporter of subject result, the Department is treating these address the establishment of a rate to be merchandise. See Hilltop’s Section A 80 PRC exporters as part of the PRC- applied to individual companies not response dated June 15, 2010, at 1. In its wide entity, subject to the PRC-wide selected for examination where the separate rate submission, Regal, the sole rate. Department limited its examination in applicant for separate rate status in this an administrative review pursuant to administrative review, certified that it Rate for Non-Selected Companies section 777A(c)(2) of the Act. The was 100 percent owned by foreign In accordance with section Department’s practice in cases involving entity/entities located in Singapore and 777A(c)(2)(B) of the Act, the Department limited selection based on exporters Hong Kong. Therefore, there is no PRC employed a limited examination accounting for the largest volumes of ownership of Hilltop or Regal, and methodology, as it did not have the trade has been to look to section because the Department has no evidence resources to examine all companies for 735(c)(5) of the Act, which provides indicating that either of these which a review request was made. As instructions for calculating the all- companies are under the control of the stated above, the Department selected others rate in an investigation, for PRC, a separate rate analysis is not Hilltop as the mandatory respondent in guidance. Section 735(c)(5)(A) of the necessary to determine whether it is this review. In addition to the Act instructs that we are not to calculate independent from government control.7 mandatory respondent, only Regal an all-others rate using any zero or de Consequently, we preliminarily submitted timely information as minimis margins or any margins based determine that Hilltop and Regal have requested by the Department and entirely on facts available. Section met the criteria for a separate rate. 735(c)(5)(B) of the Act also provides In the Initiation, we instructed all 9 Those companies are: Asian Seafoods that, where all margins are zero rates, de companies requesting separate rate (Zhanjiang) Co., Ltd.; Beautiful Lighting Co., Ltd.; minimis rates, or rates based entirely on status in this administrative review to Beihai Qinguo Frozen Foods Co., Ltd.; Capital Prospect; Century Distribution Systems (Shenz); facts available, we may use ‘‘any submit, as appropriate, either a separate Dafu Foods Industry; Daishan Baofa Aquatic reasonable method’’ for assigning the rate status application or certification. Product Co.; Elaite Group Co., Ltd.; Everflow Ind. rate to non-selected respondents. In this See Initiation. As discussed above, the Supply; Flags Wins Trading Co., Ltd.; Fuchang instance, we have calculated a de Department initiated this administrative Aquatic Products; Fujian Haiding Global Foods; Fujian Provincial Meihua Aquat.; Fuqing Maowang minimis rate for the sole mandatory review with respect to 88 companies. Seafood Development; Fuqing Xuhu Aquatic Food respondent, Hilltop. On July 20, 2010, the Department Trdg.; Gallant Ocean (Nanhai), Ltd.; Geelong Sales; In exercising this discretion to published a partial rescission of this Guangdong Jiahuang Foods; Guangdong Jinhang determine a non-examined rate, the antidumping duty order with respect to Foods Co., Ltd.; Guangdong Wanya Foods Fty. Co., Ltd.; Hai Li Aquatic Co., Ltd.; Hainan Hailisheng Department considers relevant the fact Allied Pacific Aquatic Products Food Co., Ltd.; Hainan Seaberry Seafoods; Hainan that section 735(c)(5) of the Act: (a) Is Zhanjiang Co. Ltd. and Allied Pacific Siyuan Foods Co., Ltd.; Hainan Zhongyu Seafood explicitly applicable to the Food (Dalian) Co., Ltd. See Partial Co., Ltd.; Huasheng Aquatic Pro. Factory; Huian determination of an all-others rate in an Rescission. Additionally, we are County Import & Export and Trading Co.; Innovative Aluminum; Intecs Service; Jet Power investigation; and (b) articulates a preliminarily rescinding this review International Ltd.; JetStar Co.; Leizhou Yunyuan preference that the Department avoid with respect to four companies 8 Aquatic Products Co., Ltd.; Liang Hsin Lighting zero, de minimis rates or rates based because we have preliminarily Shenzhen; Maoming Changxing Foods; Maoming entirely on facts available when it determined that they had no shipments Jiahui Foods Co., Ltd.; New Peak Service; North Seafood Group Co.; Panasonic Mfg. Xiamen Co.; determines the all others rate. The of subject merchandise during the POR. Phoenix Intl.; Rizhao Smart Foods; Ruian Huasheng statute’s statement that averaging of Thus, including Hilltop and Regal, 82 Aquatic Products Fac.; Savvy Seafood Inc.; Sea zero/de minimis margins and margins companies remain subject to this Trade International Inc.; Second Aquatic Food; based entirely on facts available may be review. While Hilltop and Regal Shandong Huashijia Foods; Shanghai Apa International Trading; Shanghai Smiling Food Co., a reasonable method, and the Statement provided documentation supporting Ltd.; Shantou Jin Cheng Food Co.; Shantou Longfen of Administrative Action’s (‘‘SAA’’) their eligibility for a separate rate, the Foodstuff Co.; Shantou Longsheng Aquatic Product indication that such averaging may be remaining companies under active Foodstuff Co., Ltd.; Shantou Red Garden Foodstuff the expected method, should be read in review have not demonstrated their Co., Ltd. and/or Shantou Red Garden Food the context of an investigation. See SAA Processing Co., Ltd.; Shantou Wanya Foods Fty. eligibility for a separate rate. Therefore, Co., Ltd. (Branch Factory); Shantou Xinwanya accompanying the Uruguay Round the Department preliminarily Aquatic Product Ltd.; Shantou Yue Xiang Agreements Act, H.R. Doc. No. 103–316 Commercial Trading Co., Ltd.; Shenzhen Pingyue at 872 (1994), reprinted in 1994 7 See Brake Rotors From the People’s Republic of Trading Co., Ltd.; SLK Hardware; Sysgration; Thai U.S.C.C.A.N. 4040, 4200. First, if there Royal Frozen Food Zhanjiang Co., Ltd.; Tianjin China: Preliminary Results and Partial Rescission of are only zero or de minimis margins the Fourth New Shipper Review and Rescission of Dongjiang Food Co., Ltd.; Tongwei Hainan Aquatic the Third Antidumping Duty Administrative Products Co., Ltd.; Top One Intl.; Wenling Xingdi determined in the investigation (and Review, 66 FR 1303, 1306 (January 8, 2001), Aquatic Product; Yangcheng Seahorse Foods; there is no other entity to which a facts unchanged in Brake Rotors From the People’s Yangjiang Wanshida Seafood Co., Ltd.; Zhangjiang available margin has been applied), the Republic of China: Final Results and Partial Bo Bo Go Ocean; Zhanjiang Evergreen Aquatic Rescission of Fourth New Shipper Review and Products; Zhanjiang Fuchang Aquatic Product investigation would terminate and no Rescission of Third Antidumping Duty Freezing Plant; Zhanjiang Go-harvest Aquatic order would be issued. Thus, the Administrative Review, 66 FR 27063 (May 16, Products Co., Ltd.; Zhanjiang Haizhou Aquatic provision necessarily only applies to 2001); Notice of Final Determination of Sales at Product; Zhanjiang Huibaoye Trading Co., Ltd.; circumstances in which there are either Less Than Fair Value: Creatine Monohydrate From Zhanjiang Jebshin Seafood; Zhanjiang Jinguo the People’s Republic of China, 64 FR 71104 Marine Foods Company Limited; Zhanjiang both zero/de minimis and total facts (December 20, 1999). Longwei Aquatic Product; Zhejiang Daishan Baofa available margins, or only total facts 8 Those companies are: Shantou Yelin Frozen Aquatic Products Co., Ltd.; Zhejiang Industrial available margins. Second, when such Seafood Co., Ltd., d.b.a. Shantou Yelin Quick- Group Co., Ltd.; Zhj Jinguo Marine Foods; rates are the only rates determined in an Freeze Marine Products Co., Ltd.; Yangjiang City Zhoushan Corp. for Intl. Economic and Technical investigation, there is little information Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing Cooperation; Zhoushan Haohai Aquatic Products; Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Zhoushan Putuo Huafa Sea Products Co., Ltd.; and on which to rely to determine an Trading Co., Ltd. Zhoushan Qiangren Imp. & Exp. appropriate all-others rate. In this

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context, therefore, the SAA’s stated they are able to demonstrate an absence on the availability and reliability of data expected method is reasonable: The of government control with respect to from these countries. See Department zero/de minimis and facts available their export activities. Such companies Policy Bulletin No. 04.1: Non-Market margins may be the only or best data the are thus assigned a single antidumping Economy Surrogate Country Selection Department has available to apply to duty rate distinct from the separate Process, dated March 1, 2004. The non-selected companies. rate(s) determined for companies that Department finds India to be a reliable We note that the Department has are found to be independent of source for surrogate values because sought other reasonable means to assign government control with respect to their India is at a comparable level of separate-rate margins to non-reviewed export activities. We consider the economic development pursuant to companies in instances with calculated influence that the government has been 773(c)(4) of the Act, is a significant zero rates, de minimis rates, or rates found to have over the economy to producer of comparable merchandise, based entirely on facts available for the warrant determining a rate for the entity and has publicly available and reliable mandatory respondents. See Certain that is distinct from the rates found for data. Furthermore, the Department notes Frozen Warmwater Shrimp From the companies that have provided sufficient that India has been the primary Socialist Republic of Vietnam: Final evidence to establish that they operate surrogate country in past segments. As Results and Final Partial Rescission of freely with respect to their export noted above, Hilltop and domestic Antidumping Duty Administrative activities. See Notice of Final parties submitted surrogate value data Review, 74 FR 47191, 47194 (September Determination of Sales at Less Than for FOPs for India, and Petitioner 15, 2009) (‘‘Vietnam Shrimp AR3 Fair Value, and Affirmative Critical submitted surrogate value data for Final’’). Circumstances, In Part: Certain Lined certain FOPs for Thailand on September In Vietnam Shrimp AR3 Final, the Paper Products From the People’s 10, 2010. Given the above facts, the Department assigned to those separate Republic of China, 71 FR 53079, 53080 Department has selected India as the rate companies with no history of an (September 8, 2006). Therefore, we are primary surrogate country for this individually calculated rate the margin assigning as the entity’s current rate review. See Surrogate Value Memo. calculated for cooperative separate rate 112.81 percent, the only rate ever respondents in the underlying determined for the PRC-wide entity in U.S. Price investigation. However, for those this proceeding. Constructed Export Price separate rate respondents that had received a calculated rate in a prior Surrogate Country For Hilltop’s sales, we based U.S. segment, concurrent with or more recent When the Department investigates price on constructed export price than the calculated rate in the imports from an NME country, section (‘‘CEP’’) in accordance with section underlying investigation, the 773(c)(1) of the Act directs it to base NV, 772(b) of the Act, because sales were Department assigned that calculated rate in most circumstances, on the NME made on behalf of Hilltop by its U.S. as the company’s separate rate in the producer’s FOPs, valued in a surrogate affiliate to unaffiliated purchasers in the review at hand. market economy country or countries United States. For these sales, we based Thus, we find that a reasonable considered to be appropriate by the CEP on prices to the first unaffiliated method in the instant review is to assign Department. In accordance with section purchaser in the United States. Where to the non-reviewed company, Regal, its 773(c)(4) of the Act, in valuing the appropriate, we made deductions from most recent calculated rate. Pursuant to FOPs, the Department shall utilize, to the starting price (gross unit price) for this method, we are preliminarily the extent possible, the prices or costs foreign movement expenses, assigning a rate of zero to Regal, its of FOPs in one or more market economy international movement expenses, U.S. calculated rate in the previous countries that are at a level of economic movement expenses, and appropriate administrative review. See development comparable to that of the selling expenses, in accordance with Administrative Review of Certain Frozen NME country and significant producers section 772(c)(2)(A) of the Act. Warmwater Shrimp From the People’s of comparable merchandise. The In accordance with section 772(d)(1) Republic of China: Final Results and sources of the surrogate factor values are of the Act, we also deducted those Partial Rescission of Antidumping Duty discussed under the Normal Value selling expenses associated with Administrative Review, 75 FR 49460, section below and in the Memorandum economic activities occurring in the 49463 (August 13, 2010) (‘‘PRC Shrimp to the File through Catherine Bertrand, United States. We deducted, where AR4’’). In assigning this separate rate, Program Manager, Office 9, from Kabir appropriate, commissions, inventory the Department did not impute the Archuletta, Case Analyst, Office 9, carrying costs, credit expenses, and actions of any other companies to the ‘‘Fifth Administrative Review of Certain indirect selling expenses. Where foreign behavior of the non-individually Frozen Warmwater Shrimp From the movement expenses, international examined company, but based this People’s Republic of China: Surrogate movement expenses, or U.S. movement determination on record evidence that Factor Valuations for the Preliminary expenses were provided by Chinese may be deemed reasonably reflective of Results,’’ dated concurrently with this service providers or paid for in Chinese the potential dumping margin for the notice (‘‘Surrogate Value Memo’’). renminbi, we valued these services non-individually examined company, As discussed in the NME Country using surrogate values. See Surrogate Regal, in this administrative review. Status section, above, the Department Value Memo for details regarding the considers the PRC to be an NME surrogate values for movement PRC-Wide Entity country. The Department determined expenses. For those expenses that were We have preliminarily determined that India, Indonesia, the Philippines, provided by a market-economy provider that 80 companies did not demonstrate Thailand, Ukraine and Peru are and paid for in market-economy their eligibility for a separate rate and countries comparable to the PRC in currency, we used the reported expense. are properly considered part of the PRC- terms of economic development. See the Due to the proprietary nature of certain wide entity. As explained above in the Department’s letter to all interested adjustments to U.S. price, for a detailed Separate Rates section, all companies parties, dated July 20, 2010. Moreover, description of all adjustments made to within the PRC are considered to be it is the Department’s practice to select U.S. price for Hilltop, see Surrogate subject to government control unless an appropriate surrogate country based Value Memo.

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Normal Value Authority, an administrative body of the industries that produce merchandise Government of India, in its publication comparable to the subject merchandise. Methodology titled Electricity Tariff & Duty and Consequently, we averaged the ILO Section 773(c)(1)(B) of the Act Average Rates of Electricity Supply in industry-specific wage rate data or provides that the Department shall India, dated March 2008. These earnings data available from the determine the NV using an FOP electricity rates represent actual following countries found to be methodology if the merchandise is country-wide, publicly-available economically comparable to the PRC exported from an NME and the information on tax-exclusive electricity and significant producers of comparable information does not permit the rates charged to small, medium, and merchandise: Ecuador, Egypt, calculation of NV using home-market large industries in India. Because the Indonesia, Jordan, Peru, the Philippines, prices, third-country prices, or resulting value is not contemporaneous Thailand, and Ukraine. For further constructed value under section 773(a) with the POR, we inflated the rates information on the calculation of the of the Act. The Department bases NV on using the WPI. See Surrogate Value wage rate, see Surrogate Value Memo. the FOPs because the presence of Memo. To value water, the Department used government controls on various aspects On May 14, 2010, the Court of data from the Maharashtra Industrial of NMEs renders price comparisons and Appeals for the Federal Circuit Development Corporation (http:// the calculation of production costs (‘‘CAFC’’) in Dorbest Ltd. v. United www.midcindia.org) since it includes a invalid under the Department’s normal States, 604 F.3d 1363, 1372 (Fed. Cir. wide range of industrial water tariffs. { methodologies. 2010), found that the ‘‘ regression- This source provides industrial water } based method for calculating wage rates within the Maharashtra province Factor Valuations { rates as stipulated by 19 CFR for ‘‘inside industrial areas’’ and ‘‘outside In accordance with section 773(c) of } 351.408(c)(3) uses data not permitted industrial areas’’ from April 2009 the Act, we calculated NV based on FOP { by the statutory requirements laid out through December 2009. See Surrogate data reported by the respondents for the in section 773 of the Act (i.e., 19 U.S.C. Value Memo. POR. To calculate NV, we multiplied } ’’ § 1677b(c)) . The Department is We valued diesel using data from the the reported per-unit factor- continuing to evaluate options for consumption rates by publicly available International Energy Agency publication determining labor values in light of the Energy Prices & Taxes, Quarterly surrogate values (except as discussed recent CAFC decision. However, for below). Statistics (Fourth Quarter 2009), which these preliminary results, we have uses 2008 data that is tax and duty In selecting the surrogate values, we calculated an hourly wage rate to use in exclusive. See Surrogate Value Memo. considered the quality, specificity, and valuing the respondents’ reported labor To value truck freight expenses, we contemporaneity of the data. As input by averaging industry-specific used a per-unit average rate calculated appropriate, we adjusted input prices by earnings and/or wages in countries that from data on the Info Banc Web site: including freight costs to make them are economically comparable to the PRC http://www.infobanc.com/logistics/ delivered prices. We added to each and that are significant producers of Indian import surrogate value a comparable merchandise. logtruck.htm. The logistics section of surrogate freight cost calculated from For the preliminary results of this this Web site contains inland freight the shorter of the reported distance from administrative review, the Department truck rates between many large Indian the domestic supplier to the factory or is valuing labor using a simple average cities. the distance from the nearest seaport to industry-specific wage rate using We valued brokerage and handling the factory, where appropriate. See earnings or wage data reported under using a price list of export procedures Sigma Corp. v. United States, 117 F.3d Chapter 5B by the International Labor necessary to export a standardized cargo 1401, 1407–1408 (Fed. Cir. 1997). Organization (‘‘ILO’’). To achieve an of goods in India. The price list is Where we could not obtain publicly industry-specific labor value, we relied compiled based on a survey case study available information contemporaneous on industry-specific labor data from the of the procedural requirements for to the POR with which to value FOPs, countries we determined to be both trading a standard shipment of goods by we adjusted the surrogate values, where economically comparable to the PRC, ocean transport in India that is appropriate, using the Indian Wholesale and significant producers of comparable published in Doing Business 2010: Price Index (‘‘WPI’’) as published in the merchandise. A full description of the India, published by the World Bank. International Monetary Fund’s industry-specific wage rate calculation To value factory overhead, sales, International Financial Statistics. See methodology is provided in the general and administrative expenses, Surrogate Value Memo. Surrogate Value Memo. The Department and profit, we relied upon publicly The Department used Indian import calculated a simple average industry- available information in the 2008–2009 statistics from Global Trade Atlas to specific wage rate of $1.36 for these annual report of Falcon Marine Exports value the raw material and packing preliminary results. Specifically, for this Ltd., an integrated Indian producer of material inputs that Hilltop used to review, the Department has calculated subject merchandise. See Surrogate produce subject merchandise during the the wage rate using a simple average of Value Memo. POR, except where listed below. the data provided to the ILO under Sub- Where appropriate, we made currency To value shrimp larvae, the Classification 15 of the ISIC–Revision 3 conversions into U.S. dollars, in Department used the 2008–2009 annual standard by countries determined to be accordance with section 773A(a) of the report of Sharat Industries Ltd. We find both economically comparable to the Act, based on the exchange rates in this to be the best source on the record PRC and significant producers of effect on the dates of the U.S. sales as because it is contemporaneous with the comparable merchandise. The certified by the Federal Reserve Bank. POR and is based on actual market Department finds the two-digit Preliminary Results of the Review prices. See Surrogate Value Memo. description under ISIC–Revision 3 We valued electricity using the (‘‘Manufacture of Food Products and The Department has determined that updated electricity price data for small, Beverages’’) to be the best available wage the following preliminary dumping medium, and large industries, as rate surrogate value on the record margins exist for the period February 1, published by the Central Electricity because it is specific and derived from 2009, through January 31, 2010:

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Exporter Margin Results of Antidumping Duty rates are de minimis, in accordance with Administrative Review and Final the requirement set forth in 19 CFR Hilltop International 10 0.14% (de minimis) Rescission, in Part, 72 FR 58809 351.106(c)(2), we calculated importer Zhanjiang Regal Inte- 0.00% (zero) (October 17, 2007) and accompanying (or customer)-specific ad valorem ratios grated Marine Re- Issues and Decision Memorandum at based on the estimated entered value. sources Co., Ltd.. Comment 2. PRC-Wide Entity 11 ... 112.81% Where an importer (or customer)- Interested parties may submit case specific ad valorem rate is zero or de briefs and/or written comments no later As stated above in the Rate for Non- minimis, we will instruct CBP to than 30 days after the date of Selected Companies section of this liquidate appropriate entries without publication of these preliminary results notice, Regal qualified for a separate rate regard to antidumping duties. See 19 of review. See 19 CFR 351.309(c)(ii). in this review. Moreover, as stated CFR 351.106(c)(2). Rebuttal briefs and rebuttals to written above in the Respondent Selection comments, limited to issues raised in For the companies receiving a section of this notice, we limited this such briefs or comments may be filed no separate rate that were not selected for review by selecting the largest exporter later than five days after the deadline for individual review, we will assign an and did not select Regal as a mandatory filing case briefs. See 19 CFR assessment rate based on the cash respondent. Therefore, we have 351.309(d). The Department urges deposit rate calculated pursuant to preliminarily assigned to Regal a interested parties to provide an section 735(c)(5)(B) of the Act. Where dumping margin based on its most executive summary of each argument the weighted average ad valorem rate is recently calculated rate in PRC Shrimp contained within the case briefs and zero or de minimis, we will instruct CBP AR4 because the mandatory respondent rebuttal briefs. to liquidate appropriate entries without in this review received a de minimis The Department will issue the final regard to antidumping duties. See 19 rate and it is not the Department’s results of this administrative review, CFR 351.106(c)(2). practice to assign separate rates based which will include the results of its For those companies for which this on rates that are de minimis or zero, or analysis of issues raised in any such based entirely on facts available. review has been preliminarily comments, within 120 days of 12 The Department will disclose rescinded, the Department intends to publication of these preliminary results, calculations performed for these assess antidumping duties at rates equal pursuant to section 751(a)(3)(A) of the preliminary results to the parties within to the cash deposit of estimated Act. five days of the date of publication of antidumping duties required at the time this notice in accordance with 19 CFR Assessment Rates of entry, or withdrawal from warehouse, 351.224(b). for consumption, in accordance with 19 Upon issuance of the final results, the CFR 351.212(c)(2), if the review is In accordance with 19 CFR Department will determine, and CBP 351.301(c)(3)(ii), for the final results of rescinded for these companies in the shall assess, antidumping duties on all final results. this administrative review, interested appropriate entries covered by these parties may submit publicly available reviews. The Department intends to Cash Deposit Requirements information to value FOPs within 20 issue assessment instructions to CBP 15 days after the date of publication of days after the publication date of the The following cash-deposit these preliminary results. Interested final results of this review. In requirements will be effective upon parties must provide the Department accordance with 19 CFR 351.212(b)(1), publication of the final results for with supporting documentation for the for the mandatory respondent, we shipments of subject merchandise publicly available information to value calculated an exporter/importer (or entered, or withdrawn from warehouse, each FOP. Additionally, in accordance customer)-specific assessment rate for for consumption on or after the with 19 CFR 351.301(c)(1), for the final the merchandise subject to this review. publication date of the final results, as results of this administrative review, Where the respondent has reported provided by section 751(a)(2)(C) of the interested parties may submit factual reliable entered values, we calculated Act: (1) For the exporters listed above, information to rebut, clarify, or correct importer (or customer)-specific ad the cash deposit rate will be that factual information submitted by an valorem rates by aggregating the established in the final results of review interested party less than ten days dumping margins calculated for all U.S. (except, if the rate is zero or de minimis, before, on, or after, the applicable sales to each importer (or customer) and no cash deposit will be required); (2) for deadline for submission of such factual dividing this amount by the total all other PRC exporters of subject information. However, the Department entered value of the sales to each merchandise which have not been notes that 19 CFR 351.301(c)(1) permits importer (or customer). See 19 CFR found to be entitled to a separate rate new information only insofar as it 351.212(b)(1). Where an importer (or and, thus, are a part of the PRC-wide rebuts, clarifies, or corrects information customer)-specific ad valorem rate is entity, the cash-deposit rate will be the recently placed on the record. The PRC-wide rate established in the final Department generally cannot accept the greater than de minimis, we will apply the assessment rate to the entered value results of review; and (3) for all non- submission of additional, previously PRC exporters of subject merchandise, absent-from-the-record alternative of the importer’s/customer’s entries during the POR. See 19 CFR the cash-deposit rate will be the rate surrogate value information pursuant to applicable to the PRC supplier of that 19 CFR 351.301(c)(1). See Glycine From 351.212(b)(1). Where we do not have entered values exporter. These deposit requirements the People’s Republic of China: Final for all U.S. sales, we calculated a per- shall remain in effect until further unit assessment rate by aggregating the notice. 10 This rate shall also apply to the single entity consisting of Hilltop International, Yelin Enterprise antidumping duties due for all U.S. Co., Ltd., Ocean Beauty Corporation, and Ever Hope sales to each importer (or customer) and 12 These include Shantou Yelin Frozen Seafood International Co., Ltd. dividing this amount by the total Co., Ltd. (d.b.a. Shantou Yelin Quick-Freeze Marine 11 The PRC-wide entity includes the 80 quantity sold to that importer (or Products Co., Ltd.); Yangjiang City Yelin Hoitat companies under review that are referenced above Quick Frozen Seafood Co., Ltd.; Fuqing Yihua in footnote 9, as well as any company that does not customer). See 19 CFR 351.212(b)(1). To Aquatic Food Co., Ltd.; and Fuqing Minhua Trading have a separate rate. determine whether the duty assessment Co., Ltd.

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Notification of Interested Parties On page 7152, in the first column, in determination that the species is no This notice also serves as a the signature block, ‘‘Dated: January 31, longer threatened or endangered; (2) preliminary reminder to importers of 2010’’ should read ‘‘Dated: January 31, site-specific management actions their responsibility under 19 CFR 2011’’. necessary to achieve the plan’s goals; 351.402(f) to file a certificate regarding [FR Doc. C1–2011–2884 Filed 2–11–11; 8:45 am] and (3) estimates of the time required and costs to implement recovery the reimbursement of antidumping BILLING CODE 1505–01–D actions. NMFS is the agency responsible duties prior to liquidation of the for developing recovery plans for relevant entries during this POR. Failure salmon and steelhead, and we will use to comply with this requirement could DEPARTMENT OF COMMERCE the plans to guide efforts to restore result in the Secretary’s presumption National Oceanic and Atmospheric endangered and threatened Pacific that reimbursement of antidumping Administration salmon and steelhead to the point that duties occurred and the subsequent they are again self-sustaining in their assessment of double antidumping RIN 0648–XA130 ecosystems and no longer need the duties. Endangered and Threatened Species; protections of the ESA. This administrative review and this In the Columbia River basin, the notice are in accordance with sections Recovery Plan Module for Columbia River Estuary Salmon and Steelhead following salmon evolutionarily 751(a)(1) and 777(i) of the Act, and 19 significant units (ESUs) and steelhead CFR 351.213 and 351.221(b)(4). AGENCY: National Marine Fisheries distinct population segments (DPSs) are Dated: February 7, 2011. Service (NMFS), National Oceanic and listed as threatened or endangered Ronald K. Lorentzen, Atmospheric Administration (NOAA), under the ESA: Snake River Sockeye Deputy Assistant Secretary for Import Commerce. salmon, Snake River spring/summer Administration. ACTION: Notice of availability; recovery Chinook salmon, Snake River fall [FR Doc. 2011–3246 Filed 2–11–11; 8:45 am] plan module for Columbia River estuary Chinook salmon, Snake River steelhead, BILLING CODE 3510–DS–P salmon and steelhead. Upper Columbia River spring Chinook salmon, Upper Columbia River SUMMARY: NMFS announces the steelhead, Middle Columbia River DEPARTMENT OF COMMERCE adoption of the Columbia River Estuary steelhead, Lower Columbia River Endangered Species Act (ESA) Recovery Chinook salmon, Lower Columbia River International Trade Administration Plan Module for Salmon and Steelhead coho salmon, Columbia River chum (Estuary Module). The Estuary Module salmon, Lower Columbia River [A–570–836] addresses the estuary recovery needs of steelhead, Upper Willamette River Notice of Final Results of Expedited all ESA-listed salmon and steelhead in spring Chinook salmon, and Upper Sunset Review of the Antidumping the Columbia River Basin. All Columbia Willamette River steelhead. Recovery Duty Order: Glycine From the People’s Basin salmon and steelhead ESA plans are either complete or in Republic of China recovery plans will incorporate the development for these 13 salmon ESUs Estuary Module by reference. and steelhead DPSs. Because we believe that local support Correction ADDRESSES: For additional information for recovery plans is essential, we have In notice document 2011–2883 on about the Estuary Module, contact Patty approached recovery planning page 7150 in the issue of Wednesday, Dornbusch, NMFS, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR collaboratively, with strong reliance on February 9, 2011, make the following existing state, regional, and tribal 97232. Electronic copies of the Estuary correction: planning processes. For instance, in the Module and a response to public On page 7150, in the third column, in Columbia Basin, recovery plans have ‘‘ comments on the Proposed Estuary the signature block, Dated: January 31, been or are being developed by regional ’’ ‘‘ Module are available online at http:// 2010 should read Dated: January 31, recovery boards convened by www.nwr.noaa.gov/Salmon-Recovery- 2011’’. Washington State, by the State of Planning/ESA–Recovery-Plans/Estuary- [FR Doc. C1–2011–2883 Filed 2–11–11; 8:45 am] Oregon in conjunction with stakeholder Module.cfm. For a CD–ROM of these BILLING CODE 1504–01–D teams, and by NMFS in Idaho with the documents, call Joanna Donnor at (503) participation of local agencies. We 736–4721 or e-mail a request to review locally developed recovery [email protected] with the DEPARTMENT OF COMMERCE plans, ensure that they satisfy ESA ‘‘ subject line CD–ROM Request for Final requirements, and make them available ’’ International Trade Administration Estuary Recovery Plan Module. for public review and comment before [A–351–602, A–588–602, A–583–605, A–549– FOR FURTHER INFORMATION CONTACT: formally adopting them as ESA recovery 807, A–570–814] Patty Dornbusch, (503) 230–5430. plans. SUPPLEMENTARY INFORMATION: Recovery plans must consider the Certain Carbon Steel Butt-Weld Pipe factors affecting species survival Fittings From Brazil, Japan, Taiwan, Background throughout the entire life cycle. The Thailand, and the People’s Republic of The Endangered Species Act of 1973 salmonid life cycle includes spawning China: Final Results of the Expedited (ESA), as amended (16 U.S.C. et seq.) and rearing in the tributaries, migrating Sunset Reviews of the Antidumping requires that a recovery plan be through the mainstem Columbia River Duty Orders developed and implemented for species and estuary to the ocean, and returning listed as endangered or threatened to the natal stream. In the estuary, Correction under the statute, unless such a plan juvenile and adult salmon and steelhead In notice document 2011–2884 would not promote the recovery of the undergo physiological changes needed appearing on pages 7151–7152 in the species. Recovery plans must contain (1) to make the transition to and from issue of Wednesday, February 9, 2011, objective, measurable criteria which, saltwater. They use the varying sub- make the following correction: when met, would result in a habitats of the estuary—the shallows,

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side channels, deeper channels, and soliciting public comments on the module first identifies and prioritizes plume of freshwater extending Proposed Estuary Module was limiting factors by summarizing the offshore—at varying times of the year. published in the Federal Register on changes that have occurred in the While local recovery planners January 8, 2008 (73 FR 161). We estuary since European settlement and appropriately focus on the tributary conducted public meetings at the evaluating the potential of current conditions within their jurisdictions following locations, dates, and times: physical, biological, or chemical and domains, NMFS recognized the • Astoria, OR, January 29, 2008, at the conditions to affect salmon and need for consistent treatment of the Columbia River Maritime Museum, steelhead. The module next describes factors in the estuary that affect all of 6:30–8:30 p.m. the underlying causes of these limiting the listed salmon and steelhead in the • Vancouver, WA, January 31, 2008, factors. These causes are referred to as Columbia Basin. The Estuary Module at the Water Resources Education threats and can be either human or addresses limiting factors, threats, and Center, 6:30–8:30 p.m. environmental in origin. For example, needed actions in the Columbia River We received nine comment letters by the limiting factor of flow-related estuary for the 13 ESUs and DPSs of mail, fax, or e-mail on the proposed estuary habitat changes is caused by a salmon and steelhead listed in the recovery plan module from a variety of combination of threats including water basin. Each locally developed recovery sources, including local, state, and withdrawals, flow regulation, natural plan will incorporate by reference the Federal Government entities, nonprofit climate cycles, and human Estuary Module as its estuary organizations, and interested contributions to global climate change. component. individuals. A summary of the The module prioritizes the threats based This approach will ensure consistent comments, responses, and changes on the significance of the limiting factor treatment across locally developed made in the Estuary Module is available to which they contribute and the recovery plans of the effects of the online at http://www.nwr.noaa.gov/ relative contribution of each threat to Columbia River estuary as well as a Salmon-Recovery-Planning/ESA– one or more limiting factors. Finally, the system-wide approach to evaluating and Recovery-Plans/Estuary-Module.cfm. module identifies management actions implementing estuary recovery actions. The final Estuary Module is also intended to reduce the threats and The planning area of the Estuary available online at http://www increase the survival of salmon and Module overlaps to some extent with nwr.noaa.gov/Salmon-Recovery- steelhead during estuarine rearing and the planning areas for locally developed Planning/ESA–Recovery-Plans/Estuary- migration. Costs are included for each of plans for lower Columbia River Module.cfm. This final version the actions. tributaries. This overlap occurs in the constitutes the Columbia River Estuary The Estuary Module synthesizes tidally influenced portions of the Endangered Species Act (ESA) Recovery diverse scientific sources and tributaries, and in such instances the Plan Module for Salmon and Steelhead. information provided by scientists who local plans will reflect the Estuary We are committed to implementing were consulted by the author. Three key Module but may specify actions at a the actions in the Estuary Module for documents informed the Estuary higher level of detail. which we have the authority, to working Module: Mainstem Lower Columbia The Estuary Module was developed cooperatively on implementation of River and Columbia River Estuary for NMFS by the Lower Columbia River other actions, and to encouraging other Subbasin Plan and Supplement Estuary Partnership (Estuary Federal agencies to implement Estuary (Northwest Power and Conservation Partnership), contractor, and PC Trask & Module actions for which they have Council, 2004); Salmon at River’s End: Associates, Inc., sub-contractor. The responsibility and authority. We will The Role of the Estuary in Decline and Estuary Partnership was established in also encourage the states of Washington Recovery of Columbia River Salmon 1995 as part of the Environmental and Oregon to seek similar (Bottom et al., 2005); and Role of the Protection Agency’s National Estuary implementation commitments from Estuary in the Recovery of Columbia Program. The Estuary Partnership’s state agencies and local governments. River Basin Salmon and Steelhead major roles are to convene common We expect the Estuary Module to help (Fresh et al., 2005). Other sources, interests, help integrate conservation us and other Federal agencies take a including staff from the NMFS efforts, increase public awareness and more consistent approach to future Northwest Fisheries Science Center and involvement, and promote information- section 7 consultations and other ESA Northwest Regional Office, Estuary based problem solving. The Estuary decisions. For example, the Estuary Partnership, and the Washington Lower Partnership is one of the primary Module will provide greater biological Columbia Fish Recovery Board, organizations focused on conserving context for the effects that a proposed supplemented these key documents. and improving the environment of the action may have on a listed ESU or DPS. Additionally, interactions with the Columbia River estuary. The Science summarized in the Estuary Northwest Power and Conservation Partnership’s expertise in assessment, Module will become a component of the Council, the Mid-Columbia Sounding planning, and stakeholder connections ‘‘best available information’’ for section Board, the Upper Willamette made it uniquely suited to develop this 7 consultations as well as for section 10 Stakeholder Team, and the Oregon Estuary Module. PC Trask & Associates, habitat conservation plans and other Lower Columbia River Stakeholder Inc., is an environmental planning and ESA decisions. Team influenced the module. project management firm with a focus on projects related to the Columbia The Estuary Module Planning Area and ESUs and DPSs River estuary. The firm also works with The purpose of the Estuary Module is Addressed Federal, state, and local project sponsors to identify and prioritize management For the purposes of the Estuary to identify and implement ecosystem- actions that, if implemented, would Module, the estuary includes the entire related restoration projects in the reduce the impacts of limiting factors, continuum where tidal forces and river estuary. meaning the physical, biological, or flows interact, regardless of the extent of NMFS made the draft Estuary Module chemical conditions that impede saltwater intrusion (Fresh et al., 2005; available for public review as a salmon and steelhead survival during Northwest Power and Conservation Proposed Estuary Recovery Plan their migration through and rearing in Council, 2004). The upstream boundary Module. A notice of availability the estuary and plume ecosystems. The of the planning area is Bonneville Dam,

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and the downstream boundary includes industrial, commercial, and residential increased mortality (for example by the Columbia River plume. uses. Flows entering the estuary also suppressing the fishes’ immune system). During their life cycles, all listed have changed dramatically: spring Food Web and Species Interactions: salmon and steelhead in the Columbia freshets have decreased and other Limiting factors related to the food web River basin rely for some period on the aspects of the historical hydrograph and species interactions result from Columbia River estuary. The Estuary have been altered. These changes are the many of the threats to salmon and Module is therefore intended to address result of flow regulation by the steelhead in the estuary. Examples all eight listed ESUs and all five listed hydropower system, water withdrawal include relatively recent increases in DPSs. for irrigation and water supplies, and Caspian tern and pinniped predation on Recovery Goals, Objectives, and climate fluctuations. salmonids, due at least in part to human Criteria Flow alterations and diking and alterations of the ecosystem, as well as filling practices have affected salmon the more complex and less understood Because the Estuary Module and steelhead in several ways. Access to shift from macrodetritus-based primary addresses only a portion of the species’ and use of floodplain habitats by ocean- plant production to phytoplankton life cycles and will be incorporated into type ESUs (salmonids that typically rear production. The introduction of exotic locally developed recovery plans that for a shorter time in tributaries and a species is another ecosystem alteration NMFS will adopt as ESA recovery longer time in the estuary) have been whose impacts are not clearly plans, it does not contain recovery goals severely compromised through understood. and objectives or de-listing criteria. The domain-specific recovery plans into alterations in the presence and Other Threats: The estuary also is which this Estuary Module is availability of these important habitats. influenced by thousands of over-water incorporated will contain those Shifts in timing, magnitude, and and instream structures, such as jetties, elements. duration of flows have also changed pilings, pile dikes, rafts, docks, erosion and accretion processes, breakwaters, bulkheads, revetments, Causes for Decline and Current Threats resulting in changes to in-channel groins, and ramps. These structures alter The estuary and plume are habitat availability and connectivity. river circulation patterns, sediment considerably degraded from their Elevated temperatures of water deposition, and light penetration, and historical condition. The Estuary entering the estuary are also a threat to they form microhabitats that often Module identifies these changes, salmon and steelhead. Degradation of benefit predators. In some cases, evaluates their potential effects on tributary riparian habitat by land-use structures reduce juvenile access to low- salmon and steelhead, and discusses practices, in addition to reservoir velocity habitats. Ship wake stranding is their underlying causes (referred to as heating, has caused these increased an example of another threat to salmon threats). The threats that have caused temperatures. Toxic contaminants in the and steelhead in the estuary whose full changes in the estuary can be broadly estuary and plume have also degraded impact is not well understood. water quality. Contaminants found in classified as habitat-related threats, Recovery Strategies and Actions threats related to the food web and the estuary and plume include species interactions, and other threats. agricultural pesticides, fertilizers, and The Estuary Module identifies 23 Habitat: The estuary is about 20 industrial chemicals. Contaminants can management actions to improve the percent smaller than it was historically kill salmon and steelhead immediately, survival of salmon and steelhead (Northwest Power and Conservation can alter their behavior in ways that migrating through and rearing in the Council, 2004). This reduction is due increase their mortality (such as making estuary and plume environments. Table mostly to diking and filling used to them more susceptible to predation), 1 identifies these management actions convert the floodplain to agricultural, and can accumulate over time and cause and shows their relationship to threats.

TABLE 1—MANAGEMENT ACTIONS TO ADDRESS THREATS

Threat Management action

Flow-related threats...... Climate cycles and global climate CRE1–1: Protect intact riparian areas in the estuary and restore ri- change 2. parian areas that are degraded.2 CRE–2: Operate the hydrosystem to reduce the effects of res- ervoir surface heating, or conduct mitigation measures.2 CRE–3: Protect and/or enhance estuary instream flows influenced by Columbia River tributary/mainstem water withdrawals and other water management actions in tributaries.2 Water withdrawal ...... CRE–3: Protect and/or enhance estuary instream flows influenced by Columbia River tributary/mainstem water withdrawals and other water management actions in tributaries. Flow regulation...... CRE–4: Adjust the timing, magnitude, and frequency of hydrosystem flows (especially spring freshets) entering the estu- ary and plume to better reflect the natural hydrologic cycle, im- prove access to habitats, and provide better transport of coarse sediments and nutrients in the estuary and plume. CRE–3: Protect and/or enhance estuary instream flows influenced by Columbia River tributary/mainstem water withdrawals and other water management actions in tributaries. Sediment-related threats...... Entrapment of fine sediment in res- CRE–5: Study and mitigate the effects of entrapment of fine sedi- ervoirs. ment in reservoirs, to improve nourishment of the estuary and plume.

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TABLE 1—MANAGEMENT ACTIONS TO ADDRESS THREATS—Continued

Threat Management action

Impaired transport of coarse sediment .. CRE–6: Reduce the export of sand and gravels via dredge oper- ations by using dredged materials beneficially. CRE–8: Remove or modify pilings and pile dikes with low eco- nomic value when removal or modification would benefit juvenile salmonids and improve ecosystem health. CRE–4: Adjust the timing, magnitude, and frequency of hydrosystem flows (especially spring freshets) entering the estu- ary and plume to better reflect the natural hydrologic cycle, im- prove access to habitats, and provide better transport of coarse sediments and nutrients in the estuary and plume. Dredging ...... CRE–7: Reduce entrainment and habitat effects resulting from main- and side-channel dredge activities and ship ballast intake in the estuary. Structural threats ...... Pilings and pile dike structures ...... CRE–8: Remove or modify pilings and pile dikes with low eco- nomic value when removal or modification would benefit juvenile salmonids and improve ecosystem health. Dikes and filling...... CRE–9: Protect remaining high-quality off-channel habitat from degradation and restore degraded areas with high intrinsic po- tential for high-quality habitat. CRE–10: Breach, lower, or relocate dikes and levees to establish or improve access to off-channel habitats. Reservoir-related temperature changes CRE–2: Operate the hydrosystem to reduce the effects of res- ervoir surface heating, or conduct mitigation measures. Over-water structures ...... CRE–11: Reduce the square footage of over-water structures in the estuary. Increased phytoplankton production ...... CRE–10: Breach, lower, or relocate dikes and levees to establish or improve access to off-channel habitats. Food web-related threats ...... Altered predator/prey relationships ...... CRE–13: Manage pikeminnow and other piscivorous fish, including introduced species, to reduce predation on salmonids. CRE–14: Identify and implement actions to reduce salmonid pre- dation by pinnipeds. CRE–15: Implement education and monitoring projects and en- force existing laws to reduce the introduction and spread of invasive plants. CRE–16: Implement projects to redistribute part of the Caspian tern colony currently nesting on East Sand Island. CRE–17: Implement projects to reduce double-crested cormorant habitats and encourage dispersal to other locations. CRE–18: Reduce the abundance of shad in the estuary. CRE–8: Remove or modify pilings and pile dikes with low eco- nomic value when removal or modification would benefit juvenile salmonids and improve ecosystem health. Ship ballast practices ...... CRE–19: Prevent new introductions of aquatic invertebrates and reduce the effects of existing infestations. CRE–7: Reduce entrainment and habitat effects resulting from main- and side-channel dredge activities and ship ballast intake in the estuary. Water quality-related threats...... Agricultural practices...... CRE–20: Implement pesticide and fertilizer best management practices to reduce estuarine and upstream sources of nutrients and toxic contaminants entering the estuary.3 CRE–1: Protect intact riparian areas in the estuary and restore ri- parian areas that are degraded. CRE–9: Protect remaining high-quality off-channel habitat from degradation and restore degraded areas with high intrinsic po- tential for high-quality habitat. Urban and industrial practices ...... CRE–21: Identify and reduce terrestrially and marine-based indus- trial, commercial, and public sources of pollutants. CRE–22: Restore or mitigate contaminated sites. CRE–23: Implement stormwater best management practices in cit- ies and towns.3 CRE–1: Protect intact riparian areas in the estuary and restore ri- parian areas that are degraded. CRE–9: Protect remaining high-quality off-channel habitat from degradation and restore degraded areas with high intrinsic po- tential for high-quality habitat. Other threats ...... Riparian practices ...... CRE–1: Protect intact riparian areas in the estuary and restore ri- parian areas that are degraded. Ship wakes ...... CRE–12: Reduce the effects of vessel wake stranding in the estu- ary. 1 CRE = Columbia River estuary.

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2 Study of the impacts of global climate change is an evolving field, and additional research is needed to understand the phenomenon’s likely effects on estuarine habitats and processes with specificity. At this time, the Independent Scientific Advisory Board of the Northwest Power and Conservation Council expects that the regional effects of global climate change in the next century will include more precipitation falling as rain rather than snow, reduced snow pack, and late-summer/early-fall stream flows, and associated rises in stream temperature (Independent Sci- entific Advisory Board 2007). The climate-related management actions in Table 1 reflect these expected impacts. Although the management ac- tions clearly would not change the threat of global climate change itself, they have the potential to lessen its impact on salmonids in the estuary. Even if climate cycles and global climate change have effects different from those assumed in this document, the management actions that Table 1 associates with climate would provide benefits to salmonids by addressing other threats, such as water withdrawal, urban and industrial practices, and reservoir heating. All three of the management actions associated with climate in Table 1 are associated with other threats listed in Table 1. 3 Unless otherwise noted, the term best management practices is used in the Estuary Module to indicate general methods or techniques found to be most effective in achieving an objective. NMFS envisions that in implementation, specific best management practices would be developed or recommended. Note: Italics indicate an action’s second occurrence in the table, in connection with a different threat.

Identifying management actions that Time and Cost Estimates will incorporate the Estuary Module by could reduce threats to salmon and Each action in the Estuary Module is reference into all Columbia Basin steelhead as they rear in or migrate broken down into a number of specific salmon and steelhead recovery plans. through the estuary is an important step projects or units, and per-unit costs for We conclude that the Estuary Module toward improving conditions for each project are identified. The costs provides information that helps to meet salmonids during a critical stage in their reflect assumptions about the the requirements for recovery plans life cycles. However, actual constraints to implementation and the under ESA section 4(f), and adopt it as implementation of management actions degree to which it is possible to reduce a component of Columbia Basin ESA is constrained by a variety of factors, those constraints. recovery plans. such as technical, economic, and private Given those constraints, the Estuary References property considerations. In some cases, Module estimates that the cost of A complete list of all references cited it will be impossible to realize an implementing all 23 actions and herein is available upon request (see FOR action’s full potential because its associated research and monitoring over FURTHER INFORMATION CONTACT section). implementation is constrained by past a 25-year time period is $592.15 million. societal decisions that are functionally Costs of tributary actions and the total Authority: 16 U.S.C. 1531 et seq. irreversible. An important assumption estimated time and cost of recovery for Dated: February 9, 2011. of the Estuary Module is that the each affected ESU or DPS will be Therese Conant, implementation of each of the 23 provided in ESU- and DPS-level Acting Chief, Endangered Species Division, management actions is constrained in recovery plans. Office of Protected Resources, National some manner. Monitoring and Adaptive Management Marine Fisheries Service. The Estuary Module makes another [FR Doc. 2011–3243 Filed 2–11–11; 8:45 am] Research, monitoring, and evaluation BILLING CODE 3510–22–P important assumption about (RME) within an adaptive management implementation: although framework is a critical element of implementation of actions is recovery planning for ESA-listed DEPARTMENT OF DEFENSE constrained, even constrained species. Monitoring for the Estuary implementation can make important Module will build on ongoing efforts. In Office of the Secretary contributions to the survival of particular, the Federal Columbia River salmonids in the estuary and plume. Estuary Research, Monitoring, and [Docket ID DoD–2011–OS–0016] Evaluation Program (Johnson et al., Within the context of these two Proposed Collection; Comment 2008) is an appropriate monitoring plan fundamental assumptions, the Estuary Request Module evaluates the costs and on which to base RME for the Estuary potential benefits of recovery actions. Module, particularly because it links AGENCY: Office of the Assistant Estuary Module RME to RME for the Secretary of Defense for Health Affairs, Potential Survival Benefits 2008 Federal Columbia River Power DoD. System Biological Opinion and its 2010 To help characterize potential ACTION: Notice. Supplement (NMFS, 2008 and 2010). survival improvements, the Estuary The Estuary Module also identifies SUMMARY: In compliance with Section Module uses a planning exercise that other applicable monitoring plans and 3506(c)(2)(A) of the Paperwork involves distributing a plausible guidance documents as well as Reduction Act of 1995, the Office of the survival improvement target of 20 additional monitoring needs, Assistant Secretary of Defense for percent across the actions to particularly in the area of action Health Affairs announces a proposed hypothesize the portion of that total effectiveness monitoring. new public information collection and survival improvement target that might seeks public comment on the provisions result from each action. The primary Conclusion thereof. Comments are invited on: (a) purpose of the survival improvement The Estuary Module contributes to all Whether the proposed collection of target is to help compare the relative the Columbia Basin salmon and information is necessary for the proper potential benefits of different steelhead recovery plans by analyzing performance of the functions of the management actions. The survival limiting factors and threats related to agency, including whether the improvement target does not account for survival of listed salmon and steelhead information shall have practical utility; variation at the ESU, population, and in the Columbia River estuary, (b) the accuracy of the agency’s estimate subpopulation scales, and is not identifying site-specific management of the burden of the proposed intended for use in life cycle modeling, actions related to those limiting factors information collection; (c) ways to except as a starting point in the absence and threats, and estimating the cost and enhance the quality, utility, and clarity of more rigorous data. time to implement those actions. NMFS of the information to be collected; and

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(d) ways to minimize the burden of the of personal or sensitive information in EBMS is a n-tier enterprise solution. information collection on respondents, accordance with the Privacy Act of The solution will use COTS products, including through the use of automated 1974. The application will account for installed at a Central Server location. collection techniques or other forms of everyone that donates blood and EBMS which is delineated in several information technology. receives blood transfusions in the DoD issuances, including DoD Directive DATES: Consideration will be given to all MHS—Active Duty, Reserves, National 6000.12, DoD Instruction 6480.4, and comments received by April 15, 2011. Guard, government civilian, contractors AR10–64, has applicability at the ADDRESSES: You may submit comments, and volunteers assigned or borrowed— headquarters level allowing Armed identified by docket number and title, this also includes non-appropriated Services Blood Program (ASBP) and by any of the following methods: fund employees and foreign nationals. Service Blood Program Office (SBPO) to • Federal eRulemaking Portal: http:// Affected Public: Contractors, civilians, use this product to conduct its own day- www.regulations.gov. Follow the and foreign nationals donating to the to-day blood inventory management. instructions for submitting comments. Military Health Systems. This comprehensive tool provides the • Mail: Federal Docket Management Annual Burden Hours: 766. capability to manage inventory, monitor System Office, 1160 Defense Pentagon, Number of Respondents: 4,600. adverse trends, review lookback case, Washington, DC 20301–1160. Responses per Respondent: 1. manage donor deferrals and develop Instructions: All submissions received Average Burden per Response: 10 standard operation procedure. Deciding must include the agency name, docket minutes. to implement EBMS within MHS, number and title for this Federal Frequency: On occasion. provides an enterprise solution for Register document. The general policy SUPPLEMENTARY INFORMATION: transfusion and donor processing that for comments and other submissions can be applied to enterprise-wide blood from members of the public is to make Summary of Information Collection inventory, and traceability through out these submissions available for public In order to attain standardization, patient and donor life. viewing on the Internet at http:// ensure a safe blood product, and comply The information in EBMS is personal www.regulations.gov as they are with Federal law, all Military blood or sensitive; therefore, it contains built- received without change, including any facilities are licensed and/or registered in safeguards to limit access and personal identifiers or contact by the Food and Drug Administration visibility of this information. EBMS uses information. (FDA) and must operate according to role-based security so a user sees only the information for which permission FOR FURTHER INFORMATION CONTACT: To Title 21, Code of Federal Regulations, request more information on this Part 211, Current Good Manufacturing has been granted. It uses state-of-the- proposed information collection or to Practices for Finished Pharmaceuticals, market 128-bit encryption security for obtain a copy of the proposal and Part 610 series, Biologics, and Part 820 our transactions. It is DITSCAP certified associated collection instruments, series, Medical Devices. having been subjected to and passed please write to Defense Health EBMS is a commercial-off-the-shelf thorough security testing and evaluation Information Management System (COTS) FDA 510K cleared Medical by independent parties. It meets (DHIMS), Attn: COL DaCosta Barrow, Device automated information system safeguards specified by the Privacy Act 5109 Leesburg Pike, Skyline 6, Suite (AIS) software application that provides of 1974 in that it maintains a published 100, Falls Church, VA 22041, or call the Military Health System (MHS) with DoD Privacy Impact Assessment and DHIMS at 703–998–6900. a comprehensive enterprise wide Blood System of Record covering Active Duty Title; Associated Form; and OMB Donor Management System (DBMS) and Military, Reserve, National Guard, and Number: Enterprise Blood Management Blood Transfusion Management System government civilian employees, to System (EBMS); OMB Control Number (BTMS) with capabilities to manage include non-appropriated fund 0720–TBD. blood donors (both in-house and at employees and foreign nationals, DoD Needs and Uses: EBMS is a mobile collection sites), including contractors, and volunteers. EBMS is commercial-off-the-shelf (COTS) Theater and VA; manage blood products hosted in a secure facility managed by automated information system (AIS) both fresh and frozen throughout the the Defense Information Systems software application that provides the collection, processing, testing, storing, Agency. Military Health System (MHS) with a and shipping procedures; interface with Morgan F. Park, comprehensive enterprise wide Blood testing instrumentation for enterprise Alternate OSD Federal Register Liaison Donor Management System (DBMS) and (Global) results management; shipping Officer, Department of Defense. Blood Transfusion Management System blood with in-transit visibility and [FR Doc. 2011–3208 Filed 2–11–11; 8:45 am] (BTMS) with capabilities to manage shipping data transmit and receive; BILLING CODE 5001–06–P blood donors (both in-house and at automate, enterprise-wide ‘‘lookback’’ mobile collection sites), including for donors, patients, and products; Theater and VA; manage blood products automated, blood order issue, and DEPARTMENT OF DEFENSE both fresh and frozen throughout the transfusion records; manage enterprise collection, processing, testing, storing, inventory (Global). It has built-in Office of the Secretary and shipping procedures; interface with safeguards to limit access and visibility testing instrumentation for enterprise of personal or sensitive information in Notice of Federal Advisory Committee (Global) results management; shipping accordance with the Privacy Act of Meeting blood with in-transit visibility and 1974. The application will account for AGENCY: Department of Defense. shipping data transmit and receive; everyone that donates blood and ACTION: Notice. automate, enterprise-wide ‘‘lookback’’ receives blood transfusions in the for donors, patients, and products; MHS—Active Duty, Reserves, National SUMMARY: Under the provision of the automated, blood order issue, and Guard, government civilian, contractors Federal Advisory Committee Act of transfusion records; manage enterprise and volunteers assigned or borrowed— 1972 (5 U.S.C., appendix as amended), inventory (Global). It has built-in this also includes non-appropriated the Government in the Sunshine Act of safeguards to limit access and visibility fund employees and foreign nationals. 1976 (5 U.S.C. 552b as amended), and

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41 CFR 102–3.150, the Department of Board Approval of Proposed FY 2012 SUMMARY: Pursuant to Section 10(a), Defense announces that the following Military Retirement Fund Public Law 92–463, as amended, notice federal advisory committee meeting of Unfunded Liability Amortization is hereby given of a forthcoming the DoD Board of Actuaries will take Payment (September 30, 2010 meeting of the Defense Department place: Valuation of the Military Advisory Committee on Women in the DATES: July 14–15, 2011, from 1 p.m.– Retirement System) Services (DACOWITS). The meeting is 5 p.m. on July 14, 2011, and 10 a.m.– Board Approval of Proposed Economic open to the public, subject to the 1 p.m. on July 15, 2011. and Non-Economic Methods and availability of space. Assumptions for September 30, DATES: ADDRESSES: 4040 N. Fairfax Drive, Suite March 4, 2011, from 8 a.m.–4 2011 Valuation of the Military 250, Arlington, VA 22203. p.m. Retirement System (FY 2013 FOR FURTHER INFORMATION CONTACT: ADDRESSES: Residence Inn Marriott, 550 Normal Cost Percentages) Army Navy Dr, Arlington, VA 22202. Inger Pettygrove at the DoD Office of the Board Approval of Proposed Economic FOR FURTHER INFORMATION CONTACT: Actuary, 4040 N. Fairfax Drive, Suite and Non-Economic Methods and 308, Arlington, VA 22203. Assumptions for December 31, 2010 MSgt Robert Bowling, USAF, or SUPPLEMENTARY INFORMATION: Purpose of Valuation of the Voluntary DACOWITS, 4000 Defense Pentagon, the meeting: The purpose of the meeting Separation Incentive (VSI) Fund Room 2C548A, Washington, DC 20301– is to review actuarial methods and (FY 2013 Amortization Payment) 4000, E-mail: [email protected], assumptions to be used in the Briefing on Investment Experience telephone (703) 697–2122, fax (703) valuations of the Education Benefits Recent and Proposed Legislation 614–6233. Fund, the Military Retirement Fund, September 30, 2010 Valuation of the SUPPLEMENTARY INFORMATION: and the Voluntary Separation Incentive Military Retirement System (MRS) Purpose of Meeting: The purpose of Fund, in accordance with the provisions and FY 2012 Unfunded Liability the meeting is for the Committee to of Section 183, Section 2006, Chapter 74 Amortization Payment approve and finalize the 2010 report. (10 U.S.C. 1464 et seq.), and Section Presentation The Committee will review and discuss 1175 of Title 10. Board Decision 2011 study topics, protocols, and Agenda: Education Benefits Fund September 30, 2011 Valuation of the installation visits. The Committee will (July 14, 1 p.m.–5 p.m.) MRS (FY 2013 Normal Cost also receive a briefing from Health Meeting Objective for Today Percentages) Affairs on Reserve and National Guard Board Approval of Proposed Economic Presentation wellness. Additionally the Army and Assumptions for September 30, Board Decision Air Force will give an update on their 2010 Valuations December 31, 2010 Valuation of the VSI sexual assault prevention programs. Board Approval of Proposed Methods Fund (FY 2013 Amortization Meeting Agenda: Friday, March 4, 2011, 8 a.m.–4 p.m. and Assumptions for September 30, Payment) 2010 Valuation of Reserve Programs Presentation —Welcome, introductions, and (FY 2013 Per Capita Amounts and Board Decision announcements. Amortization Payments) Public’s accessibility to the meeting: —Finalize the 2010 report. —Receive briefing from Health Affairs. Board Approval of Proposed Methods Pursuant to 5 U.S.C. 552b and 41 CFR —Finalize 2011 study topics, protocols, and Assumptions for September 30, 102–3.140 through 102–3.165, and the 2010 Valuation of Active Duty and installation visits. availability of space, this meeting is —Receive briefings from Army & Air Programs (FY 2013 Per Capita open to the public. Seating is on a first Force on sexual assault prevention Amounts and Amortization come basis. programs. Payments) Committee’s Designated Federal —Public Forum. Board Approval of Proposed FY 2012 Officer or Point of Contact: Persons Post-Funding Amounts for Written Statements: Interested desiring to attend the DoD Board of persons may submit a written statement Voluntary and Involuntary Actuaries meeting or make an oral Separatees for consideration by the Defense presentation or submit a written Department Advisory Committee on Briefing on Investment Experience statement for consideration at the Developments in Education Benefits Women in the Services. Individuals meeting must notify Inger Pettygrove at submitting a written statement must September 30, 2010 Valuation— 703–696–7413 by June 9, 2011. Economic Assumptions submit their statement to the Point of Presentation Dated: February 8, 2011. Contact listed above at the address Board Decision Morgan F. Park, detailed above NLT 5 p.m., Wednesday, September 30, 2010 Valuation—Reserve Alternate OSD Federal Register Liaison March 2, 2011. If a written statement is Programs Officer, Department of Defense. not received by Wednesday, March 2, Presentation [FR Doc. 2011–3201 Filed 2–11–11; 8:45 am] 2011, prior to the meeting, which is the Board Decision BILLING CODE 5001–06–P subject of this notice, then it may not be September 30, 2010 Valuation—Active provided to or considered by the Duty Programs Defense Advisory Committee on Women Presentation DEPARTMENT OF DEFENSE in the Services until its next open Board Decision meeting. The Designated Federal Officer FY 2012 Post-Funding Amounts for Office of the Secretary will review all timely submissions with Voluntary and Involuntary the Defense Advisory Committee on Meeting of the Defense Department Separatees Women in the Services Chairperson and Advisory Committee on Women in the Presentation ensure they are provided to the Board Decision Services (DACOWITS) members of the Defense Advisory Agenda: Military Retirement Fund AGENCY: Department of Defense. Committee on Women in the Services. (July 15, 10 a.m.–1 p.m.) Oral Statements: If members of the ACTION: Notice. Meeting Objective for Today public are interested in making an oral

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statement, a written statement must be guarantee that the data will be held in September 30, 2009 Valuation Results submitted as above. After reviewing the confidence. September 30, 2010 Valuation written comments, the Chairperson and However, members of the public who Presentation the Designated Federal Officer will may wish to do so are invited to submit Board Decisions determine who of the requesting material in writing to the chairman Public’s Accessibility to the Meeting: persons will be able to make an oral concerning matters believed to be Pursuant to 5 U.S.C. 552b and 41 CFR presentation of their issue during an deserving of the Committee’s attention. 102–3.140 through 102–3.165 and the open portion of this meeting or at a Dated: February 8, 2011. availability of space, this meeting is open to the public. Seating is on a first- future meeting. Determination of who Morgan F. Park, will be making an oral presentation will come basis. Alternate OSD Federal Register Liaison Committee’s Designated Federal depend on time available and if the Officer, Department of Defense. topics are relevant to the Committee’s Officer or Point of Contact: Persons [FR Doc. 2011–3203 Filed 2–11–11; 8:45 am] activities. Two minutes will be allotted desiring to attend the DoD Medicare- to persons desiring to make an oral BILLING CODE 5001–06–P Eligible Retiree Health Care Board of presentation. Oral presentations by Actuaries meeting or make an oral presentation or submit a written members of the public will be permitted DEPARTMENT OF DEFENSE only on Friday March 4, 2011 from 3 statement for consideration at the p.m. to 4 p.m. before the full Committee. Office of the Secretary meeting, must notify Margot Kaplan at Number of oral presentations to be made 703–696–7404 by June 24, 2011. will depend on the number of requests Meeting of a Federal Advisory Dated: February 8, 2011. received from members of the public. Committee Morgan F. Park, Dated: February 8, 2011. AGENCY: Department of Defense. Alternate OSD Federal Register Liaison Morgan F. Park, Officer, Department of Defense. ACTION: Notice. Alternate OSD Federal Register Liaison [FR Doc. 2011–3205 Filed 2–11–11; 8:45 am] Officer, Department of Defense. SUMMARY: Under the provisions of the BILLING CODE 5001–06–P [FR Doc. 2011–3202 Filed 2–11–11; 8:45 am] Federal Advisory Committee Act of BILLING CODE 5001–06–P 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of DEPARTMENT OF DEFENSE 1976 (5 U.S.C. 552b, as amended), and Office of the Secretary DEPARTMENT OF DEFENSE 41 CFR 102–3.150, the Department of Defense announces that the following [Docket ID DOD–2011–OS–0012] Office of the Secretary federal advisory committee meeting of the DoD Medicare-Eligible Retiree Privacy Act of 1974; System of Closed Meetings of the Department of Health Care Board of Actuaries will take Records Defense Wage Committee place: AGENCY: Defense Information Systems AGENCY: Department of Defense. DATES: Friday, July 29, 2011, from 1 Agency, DoD. ACTION: Notice of closed meetings. p.m.–5 p.m. ACTION: Notice to delete three systems of ADDRESSES: 4040 N. Fairfax Drive, Suite records. SUMMARY: Pursuant to the provisions of 250, Arlington, VA 22203. section 10 of Public Law 92–463, the SUMMARY: The Defense Information Federal Advisory Committee Act, notice FOR FURTHER INFORMATION CONTACT: Margot Kaplan at the DoD Office of the Systems Agency is deleting three is hereby given that closed meetings of systems of records notices in its existing the Department of Defense Wage Actuary, 4040 N. Fairfax Drive, Suite 308, Arlington, VA 22203. inventory of record systems subject to Committee will be held on Tuesday, the Privacy Act of 1974, (5 U.S.C. 552a), SUPPLEMENTARY INFORMATION: Purpose of March 8, 2011, and Tuesday, March 22, as amended. 2011. the Meeting: The purpose of the meeting is to execute the provisions of Chapter DATES: This proposed action will be DATES: Tuesday, March 8, 2011, and effective without further notice on Tuesday, March 22, 2011, at 10 a.m. 56, Title 10, United States Code (10 U.S.C. 1114 et seq.). The Board shall March 16, 2011 unless comments are ADDRESSES: 1400 Key Boulevard, Level review DoD actuarial methods and received which result in a contrary A, Room A101, Rosslyn, Virginia 22209. assumptions to be used in the valuation determination. FOR FURTHER INFORMATION CONTACT: of benefits under DoD retiree health care ADDRESSES: You may submit comments, Additional information concerning the programs for Medicare-eligible identified by dock number and/RIN meetings may be obtained by writing to beneficiaries. number and title, by any of the the Chairman, Department of Defense Agenda: following methods: Wage Committee, 4000 Defense Meeting Objective • Federal Rulemaking Portal: http:// Pentagon, Washington, DC 20301–4000. Board Approval of Proposed Methods www.regulations.gov Follow the SUPPLEMENTARY INFORMATION: Under the and Assumptions for September 30, instructions for submitting comments. provisions of section 10(d) of Public 2010 Valuation, For Calculating: • Mail: Federal Docket Management Law 92–463, the Department of Defense FY 2013 Per Capita Full-Time and System Office, Room 3C843, 1160 has determined that the meetings meet Part-Time Normal Cost Amounts Defense Pentagon, Washington, DC the criteria to close meetings to the September 30, 2010 Unfunded 20301–1160. public because the matters to be Liability (UFL) Instructions: All submissions received considered are related to internal rules October 2011 (FY 2012) Treasury UFL must include the agency name and and practices of the Department of Amortization Payment docket number or Regulatory Defense and the detailed wage data to be Briefing on Investment Experience Information Number (RIN) for this considered were obtained from officials Medicare-Eligible Retiree Health Care Federal Register document. The general of private establishments with a Fund Update policy for comments and other

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submissions from members of the public some identifying number, symbol, or Date/Time: 28 April 11/8 a.m.–5 p.m. is to make these submissions available other identifying particular assigned to DIAL–IN INFO and LOCATION: for public viewing on the Internet at the individual such as SSN, date of Phone Number: 1–800–366–7242 http://www.regulations.gov as they are birth, symbol, etc.). Code: 1745510. received without change, including any Address: SAIC Facility*, 300 N. K240.07 personal identifiers or contact Sepulveda Blvd, El Segundo, CA 90245, information. Vehicle and Parking Registration Card 2nd Floor, CR–2060, * Identification (February 22, 1993, 58 FR 10562). will be required at the entrance of the FOR FURTHER INFORMATION CONTACT: Ms. SAIC facility (Passport, State ID or Jeanette M. Weathers-Jenkins at (703) REASON: Federal ID). SAIC facility phone 681–2103, or Defense Information The vehicle and parking registration number: 1–310–416–8300. Systems Agency, 5600 Columbia Pike, card function is now managed by FOR FURTHER INFORMATION CONTACT: Room 933–I, Falls Church, VA 22041– Department of Army, Fort Meade. [email protected] 1– 2705. [FR Doc. 2011–3204 Filed 2–11–11; 8:45 am] 310–416–8375 or Captain Walter Miller SUPPLEMENTARY INFORMATION: The BILLING CODE 5001–06–P [email protected] 1–310– Defense Information Systems Agency 653–3524 systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as DEPARTMENT OF DEFENSE Bao-Anh Trinh, amended, have been published in the Air Force Federal Register Liaison Officer. Federal Register and are available from Department of the Air Force [FR Doc. 2011–3264 Filed 2–11–11; 8:45 am] the FOR FURTHER INFORMATION CONTACT BILLING CODE 5001–10–P address above. Positioning Systems Directorate Will The Defense Information Systems Be Hosting an Interface Control Agency proposes to delete three systems Working Group (ICWG) Meeting for DEPARTMENT OF DEFENSE Document ICD–GPS–870 of records notices from its inventory of Department of the Army, Corps of record systems subject to the Privacy AGENCY: Interface Control Working Act of 1974 (5 U.S.C. 552a), as amended. Group (ICWG) meeting for document Engineers The proposed deletion is not within the ICD–GPS–870. Notice of Information for Additional purview of subsection (r) of the Privacy ACTION: Meeting Notice. NEPA Public Scoping Meetings for the Act of 1974, (5 U.S.C. 552a), as Great Lakes and Mississippi River amended, which requires the SUMMARY: This notice informs the public Interbasin Study (‘‘GLMRIS’’) submission of a new or altered system that the Global Positioning Systems report. Directorate will be hosting an Interface AGENCY: Department of the Army, U.S. Control Working Group (ICWG) meeting Dated: February 8, 2011. Army Corps of Engineers, DoD. for document ICD–GPS–870, Navstar ACTION: Notice. Morgan F. Park, Next Generation GPS Operational Alternate OSD Federal Register Liaison Control Segment (OCX) to User Support SUMMARY: In a November 16, 2010, Officer, Department of Defense. Community Interfaces. This document Federal Register Notice (75 FR 69983), Deletions: captures the same interface as ICD– the U.S. Army Corps of Engineers K240.01 GPS–240 (Navstar GPS Control Segment (USACE), Chicago District announced in Personnel Security Investigative to User Support Community Interfaces), a notice of intent that it will prepare a but for the OCX era. Therefore, the Dossier File (PSIDF) (August 23, 1995, feasibility report and an environmental meeting will only address the OCX data 60 FR 43777). impact statement (EIS) for GLMRIS, and formats definition and the OCX it will host a public scoping meeting in REASON: information assurance requirements for Chicago, Illinois, on December 15, 2010. The personnel security investigative data integrity. The ICWG is open to the In a December 8, 2010, Federal Register Dossier (PSIDF) files are not stored at general public. For those who would Notice (75 FR 76447), USACE DISA. PSIDF are stored at military like to attend and participate in this announced the metropolitan locations central adjudication facilities, U.S. ICWG meeting, you are requested to where USACE would be hosting nine (9) Office of Personnel Management, register to attend the meeting no later additional public scoping meetings for Defense Intelligence Agency, than 26 March 2011. Please send the GLMRIS but did not include specific Washington headquarters adjudication registration to meeting details. In a January 4, 2010, facility, Defense Security Service, and [email protected] and Federal Register Notice (76 FR 336), Defense Industrial Security Clearance provide your name, organization, USACE announced the meeting details Office. telephone number, address, and country for the nine (9) additional public of citizenship. More information, scoping meetings. The January 4, 2010 K240.04 including Comments Resolution Matrix notice also announced USACE’s intent Identification Badge System (February (CRM) form, Was/Is Matrix and to host two (2) additional public scoping 22, 1993, 58 FR 10562). Redlined ICD, will be posted at: http:// meetings in Milwaukee, WI and New www.gps.gov/technical/ICWG/& http:// Orleans, LA, but it did not include REASON: www.navcen.uscg.gov/ (under the News meeting details. This notice announces The identification badge system does and Notices section) If you have any the meeting details for these locations. not contain Personally Identifiable comments, please provide them in the This notice also announces the Information that is directly solicited, CRM form and limit your comments to rescheduled meeting date and location collected, and under the control of a the Was/Is Matrix and the redlined areas for the Ann Arbor, MI public scoping Federal agency or component from of the ICDs which key on changes to the meeting. which there is specific retrieval of OCX data formats and IA requirements USACE, in consultation with other information using a personal identifier only. Submit your CRM comments to federal agencies, Native American (i.e., the name of the individual or by Jaime Valdivia by 26 March 2011. tribes, state agencies, local governments

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and non-governmental organizations, is impacted waterway uses and current Ann Arbor, MI and (ii) the public conducting a feasibility study of the significant natural resources. scoping meetings scheduled in options and technologies that could be USACE will conduct GLMRIS in Milwaukee, WI and New Orleans, LA. applied to prevent aquatic nuisance accordance with NEPA and with the USACE will host NEPA public scoping species (ANS) transfer between the Economic and Environmental Principles meetings from 2 p.m. to 8 p.m. at the Great Lakes and Mississippi River and Guidelines for Water and Related following locations: basins through aquatic pathways. Land Resource Implementation Studies, 1. Tuesday, February 15, 2011: The DATES: USACE will be accepting public Water Resources Council, March 10, Miller Room of the O’Donnell Park comments on the scope of GLMRIS until 1983. Complex, 910 E. Michigan St., March 31, 2011. Please refer to the 2. Scoping and Public Involvement. Milwaukee, WI. ‘‘Scoping and Public Involvement’’ USACE will accept comments related to 2. Thursday, February 17, 2011: Port section below for instructions on how to GLMRIS until March 31, 2011. Note, of New Orleans Administration submit public comments, the dates of USACE will only consider comments Building, Auditorium, 1350 Port of New the Milwaukee, WI, New Orleans, LA that disclose the first name, last name Orleans Place, New Orleans, LA. and rescheduled Ann Arbor, MI public and zip code of the commenter. 3. Tuesday, March 8, 2011: Ann Arbor scoping meetings and other meeting All forms of comments received Marriott Ypsilanti at Eagle Crest 1275 S. information. during the scoping period will be Huron St., Ypsilanti, MI. weighted equally. Using input obtained FOR FURTHER INFORMATION CONTACT: For Please see the GLMRIS project Web during the scoping period, USACE will further information and/or questions site at http://www.glmris.anl.gov if you refine the scope of GLMRIS to focus on about GLMRIS, please contact USACE, wish to register to make an oral significant issues, as well as eliminate Chicago District, Project Manager, Mr. comment at one of these meetings, and issues that are not significant from David Wethington, by mail: USACE, for more information regarding the further detailed study. meeting including a meeting agenda. Chicago District, 111 N. Canal, Suite Comments may be submitted in the Comments received during the 600, Chicago, IL 60606, or by e-mail: following ways: scoping period will be posted on the [email protected]. • GLMRIS project Web site: Use the For media inquiries, please contact GLMRIS project website and will web comment function found at http:// the USACE, Chicago District, Public become a part of the EIS. You may www.glmris.anl.gov; Affairs Officer, Ms. Lynne Whelan, by • NEPA Scoping Meeting: USACE is indicate that you do not wish to have mail: USACE, Chicago District, 111 N. hosting scoping meetings and asks those your name or other personal Canal, Suite 600, Chicago, IL 60606, by who want to make oral comments to information made available on the phone: (312)846–5330 or by e-mail: register on the GLMRIS project Web site website. However, USACE cannot [email protected]. at http://www.glmris.anl.gov. Those guarantee that information withheld SUPPLEMENTARY INFORMATION: registering to make oral comments from the website will be maintained as 1. Background. USACE, in through the project website may be confidential. Requests for disclosure of consultation with other federal agencies, given a preference over those that collected information will be handled Native American tribes, state agencies, register to make oral comments at the through the Freedom of Information local governments and non- meeting. The on-line registration for Act. Comments and information, governmental organizations, is each individual meeting will close one including the identity of the submitter, conducting GLMRIS. For GLMRIS, (1) day prior to that meeting date. Each may be disclosed, reproduced, and USACE will explore options and individual wishing to make oral distributed. Submissions should not technologies, collectively known as comments shall be given three (3) include any information that the ANS controls, that could be applied to minutes, and a stenographer will submitter seeks to preserve as prevent ANS transfer between the document oral comments; confidential. basins through aquatic pathways. • Mail: Mail written comments to If you require assistance under the Potential ANS controls may include, but GLMRIS Scoping, 111 N. Canal, Suite Americans with Disabilities Act, please are not limited to, hydrologic separation 600, Chicago, IL 60606. Comments must contact Ms. Lynne Whelan via e-mail at of the basins, waterway modifications, be postmarked by March 31, 2011; and [email protected] or selective barriers, etc. • Hand Delivery: Comments may be phone at (312) 846–5330 at least seven USACE will conduct a comprehensive hand delivered to the Chicago District, (7) working days prior to the meeting to analysis of ANS controls and will USACE office located at 111 N. Canal request arrangements. analyze the effects an ANS control or St., Suite 600, Chicago, IL 60606 3. Significant Issues. Issues associated combination of ANS controls may have between 8 a.m. and 4:30 p.m. Comments with the proposed study are likely to on current uses of: (1) The Chicago Area must be received by March 31, 2011. include, but will not be limited to: Waterway System (CAWS), the only At the scoping meetings, USACE will Significant natural resources such as known continuous aquatic pathway provide informational materials about ecosystems and threatened and between the Great Lakes and the study’s authorities and USACE endangered species, commercial and Mississippi River basins; and (2) other study process. The meetings will begin recreational fisheries; current aquatic pathways between these basins. with a presentation regarding the study recreational uses of the lakes and For the CAWS, current waterway uses followed by an oral comment period. waterways; ANS effects on water users; include, but are not limited to: flood During each meeting, USACE will also effects of potential ANS controls on risk management; commercial and collect written comments on comment current waterway uses such as flood risk recreational navigation; recreation; cards and computer terminals. management, commercial and water supply; hydropower; and Due to weather conditions, USACE recreational navigation, recreation, conveyance of effluent from wastewater rescheduled the February 3, 2011 public water supply, hydropower and treatment plants and other industries. scoping meeting in Ann Arbor, MI. The conveyance of effluent from wastewater Additionally, this study will identify purpose of this notice is to announce treatment plants and other industries; mitigation measures or alternative the meeting information for (i) the and statutory and legal responsibilities facilities necessary to offset and address rescheduled public scoping meeting in relative to the lakes and waterways.

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4. Availability of the Draft SUPPLEMENTARY INFORMATION: Section SW., LBJ, Washington, DC 20202–4537. Environmental Impact Statement. The 3506 of the Paperwork Reduction Act of Requests may also be electronically date that the draft EIS will be made 1995 (44 U.S.C. Chapter 35) requires mailed to [email protected] or faxed available is contingent upon sufficient that Federal agencies provide interested to 202–401–0920. Please specify the allocation of funding for the study. Draft parties an early opportunity to comment complete title of the information EIS availability will be announced to on information collection requests. The collection and OMB Control Number the public in the Federal Register in Director, Information Collection when making your request. compliance with 40 CFR 1506.9 and Clearance Division, Regulatory Individuals who use a 1506.10. Information Management Services, telecommunications device for the deaf 5. Authority. This action is being Office of Management, publishes this (TDD) may call the Federal Information undertaken pursuant to the Water notice containing proposed information Relay Service (FIRS) at 1–800–877– Resources and Development Act of collection requests at the beginning of 8339. 2007, Section 3061, Pub. L. 110–114, the Departmental review of the [FR Doc. 2011–3227 Filed 2–11–11; 8:45 am] 121 STAT. 1121, and the National information collection. The Department BILLING CODE 4000–01–P Environmental Policy Act of 1969, 42 of Education is especially interested in U.S.C. 4321, et seq., as amended. public comment addressing the DEPARTMENT OF EDUCATION Dated: February 4, 2011. following issues: (1) Is this collection Susanne J. Davis, necessary to the proper functions of the Department; (2) will this information be Notice of Proposed Information Chief Planning Branch Chicago District, Corps Collection Requests of Engineers. processed and used in a timely manner; (3) is the estimate of burden accurate; [FR Doc. 2011–3221 Filed 2–11–11; 8:45 am] AGENCY: Department of Education. (4) how might the Department enhance ACTION: Comment request. BILLING CODE 3720–58–P the quality, utility, and clarity of the information to be collected; and (5) how SUMMARY: The Department of Education might the Department minimize the (the Department), in accordance with the Paperwork Reduction Act of 1995 DEPARTMENT OF EDUCATION burden of this collection on the respondents, including through the use (PRA) (44 U.S.C. 3506(c)(2)(A)), Notice of Proposed Information of information technology. provides the general public and Federal Collection Requests Dated: February 8, 2011. agencies with an opportunity to comment on proposed and continuing Darrin A. King, AGENCY: Department of Education. collections of information. This helps Director, Information Collection Clearance ACTION: Comment request. the Department assess the impact of its Division, Regulatory Information information collection requirements and Management Services, Office of Management. SUMMARY: The Department of Education minimize the reporting burden on the (the Department), in accordance with Federal Student Aid public and helps the public understand the Paperwork Reduction Act of 1995 Type of Review: Revision. the Department’s information collection (PRA) (44 U.S.C. 3506(c)(2)(A)), Title of Collection: Federal Family requirements and provide the requested provides the general public and Federal Education Loan Program and William D. data in the desired format. The Director, agencies with an opportunity to Ford Federal Direct Loan Program Information Collection Clearance comment on proposed and continuing Unpaid Refund Loan Discharge Division, Regulatory Information collections of information. This helps Application. Management Services, Office of the Department assess the impact of its OMB Control Number: 1845–0058. Management, invites comments on the information collection requirements and Agency Form Number(s): N/A. proposed information collection minimize the reporting burden on the Frequency of Responses: On occasion. requests as required by the Paperwork public and helps the public understand Affected Public: Individuals or Reduction Act of 1995. the Department’s information collection households. DATES: Interested persons are invited to requirements and provide the requested Total Estimated Number of Annual submit comments on or before April 15, data in the desired format. The Director, Responses: 400. 2011. Information Collection Clearance Total Estimated Number of Annual ADDRESSES: Comments regarding burden Division, Regulatory Information Burden Hours: 200. and/or the collection activity Management Services, Office of Abstract: This form serves as the requirements should be electronically Management, invites comments on the means by which eligible borrowers in mailed to [email protected] or proposed information collection the Federal Family Education Loan mailed to U.S. Department of Education, requests as required by the Paperwork Program and William D. Ford Federal 400 Maryland Avenue, SW., LBJ, Reduction Act of 1995. Direct Loan Program apply for discharge Washington, DC 20202–4537. Please DATES: Interested persons are invited to of the portion of a loan that a school note that written comments received in submit comments on or before April 15, failed to return to the loan holder in response to this notice will be 2011. accordance with federal regulations. considered public records. ADDRESSES: Comments regarding burden Copies of the proposed information SUPPLEMENTARY INFORMATION: Section and/or the collection activity collection request may be accessed from 3506 of the Paperwork Reduction Act of requirements should be electronically http://edicsweb.ed.gov, by selecting the 1995 (44 U.S.C. Chapter 35) requires mailed to [email protected] or ‘‘Browse Pending Collections’’ link and that Federal agencies provide interested mailed to U.S. Department of Education, by clicking on link number 4517. When parties an early opportunity to comment 400 Maryland Avenue, SW., LBJ, you access the information collection, on information collection requests. The Washington, DC 20202–4537. Please click on ‘‘Download Attachments’’ to Director, Information Collection note that written comments received in view. Written requests for information Clearance Division, Regulatory response to this notice will be should be addressed to U.S. Department Information Management Services, considered public records. of Education, 400 Maryland Avenue, Office of Management, publishes this

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notice containing proposed information public through the College Navigator ADDRESSES: Comments regarding burden collection requests at the beginning of and IPEDS Data Center Web sites. This and/or the collection activity the Departmental review of the clearance package seeks authorization requirements should be electronically information collection. The Department from OMB to continue IPEDS data mailed to [email protected] or of Education is especially interested in collection through 2014, describes mailed to U.S. Department of Education, public comment addressing the revisions to the currently approved 400 Maryland Avenue, SW., LBJ, following issues: (1) Is this collection (2010–11) IPEDS burden estimates, and Washington, DC 20202–4537. Please necessary to the proper functions of the includes a number of proposed changes note that written comments received in Department; (2) will this information be to the data collection. response to this notice will be processed and used in a timely manner; Copies of the proposed information considered public records. (3) is the estimate of burden accurate; collection request may be accessed from SUPPLEMENTARY INFORMATION: Section (4) how might the Department enhance http://edicsweb.ed.gov, by selecting the 3506 of the Paperwork Reduction Act of the quality, utility, and clarity of the ‘‘Browse Pending Collections’’ link and 1995 (44 U.S.C. Chapter 35) requires information to be collected; and (5) how by clicking on link number 4507. When that Federal agencies provide interested might the Department minimize the you access the information collection, parties an early opportunity to comment burden of this collection on the click on ‘‘Download Attachments’’ to on information collection requests. The respondents, including through the use view. Written requests for information Director, Information Collection of information technology. should be addressed to U.S. Department Clearance Division, Regulatory Dated: February 8, 2011. of Education, 400 Maryland Avenue, Information Management Services, Darrin A. King, SW., LBJ, Washington, DC 20202–4537. Office of Management, publishes this Director, Information Collection Clearance Requests may also be electronically notice containing proposed information Division, Regulatory Information mailed to [email protected] or faxed collection requests at the beginning of Management Services, Office of Management. to 202–401–0920. Please specify the the Departmental review of the complete title of the information information collection. The Department Institute of Education Sciences collection and OMB Control Number of Education is especially interested in Type of Review: Revision. when making your request. public comment addressing the Title of Collection: Integrated Individuals who use a following issues: (1) Is this collection Postsecondary Education Data System telecommunications device for the deaf necessary to the proper functions of the (IPEDS) Web-based Data Collection (TDD) may call the Federal Information Department; (2) will this information be 2011–12 through 2013–14. Relay Service (FIRS) at 1–800–877– processed and used in a timely manner; OMB Control Number: 1850–0582. 8339. (3) is the estimate of burden accurate; Agency Form Number(s): N/A. [FR Doc. 2011–3233 Filed 2–11–11; 8:45 am] (4) how might the Department enhance Frequency of Responses: Annually. BILLING CODE 4000–01–P the quality, utility, and clarity of the Affected Public: Businesses or other information to be collected; and (5) how for-profit; not-for-profit institutions; might the Department minimize the State, Local, or Tribal Government, State DEPARTMENT OF EDUCATION burden of this collection on the Educational Agencies or Local respondents, including through the use Educational Agencies. Notice of Proposed Information of information technology. Total Estimated Number of Annual Collection Requests Dated: February 8, 2011. Responses: 64,800. Darrin A. King, Total Estimated Number of Annual AGENCY: Department of Education. Director, Information Collection Clearance ACTION: Comment request. Burden Hours: 819,932. Division, Regulatory Information Abstract: Integrated Postsecondary Management Services, Office of Management. Education Data System (IPEDS) is a SUMMARY: The Department of Education system of surveys designed to collect (the Department), in accordance with Institute of Education Sciences basic data from approximately 7,000 the Paperwork Reduction Act of 1995 Type of Review: New. Title IV postsecondary institutions in (PRA) (44 U.S.C. 3506(c)(2)(A)), Title of Collection: U.S. Department of the United States and other provides the general public and Federal Education, Institute of Education jurisdictions. The IPEDS provides agencies with an opportunity to Sciences Research Performance Progress information on numbers of students comment on proposed and continuing Report (RPPR). enrolled, degrees completed, other collections of information. This helps OMB Control Number: Pending. awards earned, dollars expended, staff the Department assess the impact of its Agency Form Number(s): N/A. employed at postsecondary institutions, information collection requirements and Frequency of Responses: Annually. and cost and pricing information. The minimize the reporting burden on the Affected Public: Businesses or other amendments to the Higher Education public and helps the public understand for-profit; not-for-profit institutions; Act of 1998, Part C, Sec. 131, specify the the Department’s information collection State, Local, or Tribal Government, State need for the ‘‘redesign of relevant data requirements and provide the requested Educational Agencies or Local systems to improve the usefulness and data in the desired format. The Director, Educational Agencies. timeliness of the data collected by such Information Collection Clearance Total Estimated Number of Annual systems.’’ As a consequence, in 2000 Division, Regulatory Information Responses: 766. IPEDS began to collect data through a Management Services, Office of Total Estimated Number of Annual web-based data collection system. The Management, invites comments on the Burden Hours: 16. data collection is now entirely web- proposed information collection Abstract: The Research Performance based, and is required for those requests as required by the Paperwork Progress Report (RPPR) format and institutions participating in Title IV Reduction Act of 1995. instructions are used in order for federal student aid programs; other DATES: Interested persons are invited to Institute of Education Sciences’ (IES) institutions participate on a voluntary submit comments on or before April 15, grantees to meet the established due basis. IPEDS data are available to the 2011. dates for submission of performance

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reports for IES discretionary grant DEPARTMENT OF EDUCATION respondents, including through the use programs. Recipients of multi-year of information technology. Notice of Proposed Information discretionary grants must submit an Dated: February 8, 2011. Collection Requests annual performance report for each year Darrin A. King, funding has been approved in order to AGENCY: Department of Education. Director, Information Collection Clearance receive a continuation award. The ACTION: Comment request. Division, Regulatory Information annual performance report should Management Services, Office of Management. demonstrate whether substantial SUMMARY: The Department of Education Federal Student Aid progress has been made toward meeting (the Department), in accordance with the approved goals and objectives of the the Paperwork Reduction Act of 1995 Type of Review: Revision. project. The Institute also requires (PRA) (44 U.S.C. 3506(c)(2)(A)), Title of Collection: Federal Direct recipients of ‘‘forward funded’’ grants provides the general public and Federal PLUS Loan Request for Supplemental that are awarded funds for their entire agencies with an opportunity to Information. multi-year project up-front in a single comment on proposed and continuing OMB Control Number: 1845–0103. collections of information. This helps Agency Form Number(s): N/A. grant award to submit the RPPR on an the Department assess the impact of its Frequency of Responses: On occasion. annual basis. In addition, the Institute information collection requirements and Affected Public: Individuals or will require recipients to use the ED minimize the reporting burden on the households. 524B to submit their final performance public and helps the public understand Total Estimated Number of Annual reports to demonstrate project success, the Department’s information collection Responses: 1,230,000. impact and outcomes. In both the requirements and provide the requested Total Estimated Number of Annual annual and final performance reports, data in the desired format. The Director, Burden Hours: 615,000. grantees are required to provide data on Information Collection Clearance Abstract: The Federal Direct PLUS established performance measures for Division, Regulatory Information Loan Request for Supplemental the grant program (e.g., Government Management Services, Office of Information serves as the means by Performance and Results Act measures) Management, invites comments on the which a Direct PLUS Loan applicant and on project performance measures proposed information collection (parent or graduate/professional that were included in the grantee’s requests as required by the Paperwork student) may provide certain approved grant application. The RPPR Reduction Act of 1995. information to a school that will assist will contain research and related (total DATES: Interested persons are invited to the school in originating the borrower’s federal and non-federal) budgetary submit comments on or before April 15, Direct PLUS Loan award, and as an forms that will be used to collect 2011. alternative to providing this information budgetary data from the recipient ADDRESSES: Comments regarding burden to the school by other means established organization. The information submitted and/or the collection activity by the school. Copies of the proposed information will be used to conduct periodic requirements should be electronically collection request may be accessed from administrative/budgetary reviews. mailed to [email protected] or mailed to U.S. Department of Education, http://edicsweb.ed.gov, by selecting the Performance reporting requirements are ‘‘Browse Pending Collections’’ link and found in 34 CFR 74.51, 75.118, 75.253, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202–4537. Please by clicking on link number 4512. When 75.590 and 80.40 of the Education you access the information collection, Department General Administrative note that written comments received in response to this notice will be click on ‘‘Download Attachments’’ to Regulations. considered public records. view. Written requests for information Copies of the proposed information SUPPLEMENTARY INFORMATION: Section should be addressed to U.S. Department collection request may be accessed from 3506 of the Paperwork Reduction Act of of Education, 400 Maryland Avenue, http://edicsweb.ed.gov, by selecting the 1995 (44 U.S.C. Chapter 35) requires SW., LBJ, Washington, DC 20202–4537. ‘‘Browse Pending Collections’’ link and that Federal agencies provide interested Requests may also be electronically by clicking on link number 4514. When parties an early opportunity to comment mailed to [email protected] or faxed you access the information collection, on information collection requests. The to 202–401–0920. Please specify the click on ‘‘Download Attachments’’ to Director, Information Collection complete title of the information view. Written requests for information Clearance Division, Regulatory collection and OMB Control Number should be addressed to U.S. Department Information Management Services, when making your request. Individuals who use a of Education, 400 Maryland Avenue, Office of Management, publishes this telecommunications device for the deaf SW., LBJ, Washington, DC 20202–4537. notice containing proposed information (TDD) may call the Federal Information Requests may also be electronically collection requests at the beginning of the Departmental review of the Relay Service (FIRS) at 1–800–877– mailed to [email protected] or faxed 8339. to 202–401–0920. Please specify the information collection. The Department complete title of the information of Education is especially interested in [FR Doc. 2011–3230 Filed 2–11–11; 8:45 am] collection and OMB Control Number public comment addressing the BILLING CODE 4000–01–P when making your request. following issues: (1) Is this collection necessary to the proper functions of the Individuals who use a Department; (2) will this information be DEPARTMENT OF ENERGY telecommunications device for the deaf processed and used in a timely manner; (TDD) may call the Federal Information (3) is the estimate of burden accurate; Biological and Environmental Relay Service (FIRS) at 1–800–877– (4) how might the Department enhance Research Advisory Committee 8339. the quality, utility, and clarity of the AGENCY: Department of Energy; Office of [FR Doc. 2011–3232 Filed 2–11–11; 8:45 am] information to be collected; and (5) how Science. might the Department minimize the BILLING CODE 4000–01–P ACTION: Notice of open meeting. burden of this collection on the

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SUMMARY: This notice announces a facilitate the orderly conduct of Committee, you may do so either before meeting of the Biological and business. Public comment will follow or after the meeting. If you would like Environmental Research Advisory the 10-minute rule. to make oral statements regarding any of Committee (BERAC). The Federal Minutes: The minutes of this meeting these items on the agenda, you should Advisory Committee Act (Pub. L. 92– will be available for public review and contact John Kogut at (301) 903–1298 or 463, 86 Stat. 770) requires that public copying within 45 days at the BERAC by e-mail at notice of these meetings be announced Web site: http://www.science.doe.gov/ [email protected]. You must in the Federal Register. ober/berac/Minutes.html. make your request for an oral statement DATES: Wednesday, March 9, 2011, 9 Issued at Washington, DC on February 8, at least 5 business days before the a.m. to 5 p.m. and Thursday, March 10, 2011. meeting. Reasonable provision will be 2011, 9 a.m. to 12 p.m. LaTanya Butler, made to include the scheduled oral ADDRESSES: Omni Shoreham Hotel, Acting Deputy Committee Management statements on the agenda. The 2500 Calvert Street, NW., Washington, Officer. Chairperson of the Panel will conduct DC 20008. [FR Doc. 2011–3234 Filed 2–11–11; 8:45 am] the meeting to facilitate the orderly conduct of business. Public comment FOR FURTHER INFORMATION CONTACT: Dr. BILLING CODE 6450–01–P David Thomassen, Designated Federal will follow the 10-minute rule. Minutes: The minutes of the meeting Officer, U.S. Department of Energy, will be available on the U.S. Department Office of Biological and Environmental DEPARTMENT OF ENERGY of Energy’s Office of High Energy Research, SC–23/Germantown Building, Physics Web site at http:// 1000 Independence Avenue, SW., DOE/NSF High Energy Physics www.science.doe.gov/hep/panels/ Washington, DC 20585–1290; phone: Advisory Panel hepap.shtml. (301) 903–9817; fax (301) 903–5051 or e- AGENCY: Department of Energy, Office of mail: [email protected]. Science. LaTanya Butler, The most current information ACTION: Notice of open meeting. Acting Deputy Committee Management concerning this meeting can be found Officer. on the Web site: http:// SUMMARY: This notice announces a [FR Doc. 2011–3236 Filed 2–11–11; 8:45 am] www.science.doe.gov/ober/berac/ meeting of the DOE/NSF High Energy BILLING CODE 6450–01–P announce.html. Physics Advisory Panel (HEPAP). SUPPLEMENTARY INFORMATION: Federal Advisory Committee Act (Pub. Purpose of the Meeting: To provide L. 92–463, 86 Stat. 770) requires that DEPARTMENT OF ENERGY advice on the many complex scientific public notice of these meetings be and technical issues that arise in the announced in the Federal Register. Basic Energy Sciences Advisory Committee development and implementation of the DATES: Thursday, March 17, 2011, 10 Biological and Environmental Research a.m.–6 p.m., and Friday, March 18, AGENCY: Department of Energy, Office of Program. 2011, 8:30 a.m.–2 p.m. Science. Tentative Agenda Topics ADDRESSES: Hotel Palomar, 2121 P ACTION: Notice of open meeting. Street, NW., Washington, DC 20037. • Report from the Office of Biological FOR FURTHER INFORMATION CONTACT: John SUMMARY: This notice announces a and Environmental Research Kogut, Executive Secretary; High Energy meeting of the Basic Energy Sciences • News from the Biological Systems Physics Advisory Panel; U.S. Advisory Committee (BESAC). Federal Science and Climate and Environmental Department of Energy; SC–25/ Advisory Committee Act (Pub. L. 92– Sciences Divisions 463, 86 Stat. 770) requires that public • Discussions on the Climate and Germantown Building, 1000 Independence Avenue, SW., notice of these meetings be announced Environmental Sciences Division in the Federal Register. Committee of Visitors Response and the Washington, DC 20585–1290; DATES: Thursday, March 17, 2011; 10 Biological and Environmental Research Telephone: (301) 903–1298 or email: [email protected]. a.m.–5 p.m. and Friday, March 18, 2011; Long-Term Vision Response 9 a.m.–12 p.m. • Joint Genome Institute Update and SUPPLEMENTARY INFORMATION: ARM review outbrief Purpose of Meeting: To provide ADDRESS: Bethesda North Hotel and • 2012 Budget briefing advice and guidance on a continuing Conference Center, 5701 Marinelli Road, • New Business basis to the Department of Energy and Bethesda, Maryland 20852. • Public Comment the National Science Foundation on FOR FURTHER INFORMATION CONTACT: Public Participation: The meeting is scientific priorities within the field of Katie Perine; Office of Basic Energy open to the public. If you would like to high energy physics research. Sciences; U.S. Department of Energy; file a written statement with the Tentative Agenda: Agenda will Germantown Building, 1000 Committee, you may do so either before include discussions of the following: Independence Avenue, SW., or after the meeting. If you would like • Discussion of Department of Energy Washington, DC 20585; Telephone: to make oral statements regarding any of High Energy Physics Program (301) 903–6529. the items on the agenda, you should • Discussion of National Science SUPPLEMENTARY INFORMATION: contact David Thomassen at the address Foundation Elementary Particle Physics Purpose of the Meeting: The purpose or telephone number listed above. You Program of this meeting is to provide advice and must make your request for an oral • Reports on and Discussions of guidance with respect to the basic statement at least five business days Topics of General Interest in High energy sciences research program. before the meeting. Reasonable Energy Physics Tentative Agenda: Agenda will provision will be made to include the • Public Comment (10-minute rule) include discussions of the following: scheduled oral statements on the Public Participation: The meeting is • News from Office of Science/DOE. agenda. The Chairperson of the open to the public. If you would like to • News from the Office of Basic Committee will conduct the meeting to file a written statement with the Energy Sciences.

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• Discussion on the FY 2012 Budget. areas of environmental restoration, FOR FURTHER INFORMATION CONTACT: • New charge to BESAC—Mesoscale waste management and related Brenda L. May, U.S. Department of Science. activities. Energy; SC–26/Germantown Building, • Follow-up on the Science for 1000 Independence Avenue, SW., Tentative Agenda Energy Technologies Report. Washington, DC 20585–1290; telephone: Public Participation: The meeting is • Call to Order, Introductions, Review (301) 903–0536 or e-mail: open to the public. If you would like to of Agenda. [email protected]. file a written statement with the • Approval of January Minutes. • Deputy Designated Federal Officer’s SUPPLEMENTARY INFORMATION: Committee, you may do so either before Purpose of Meeting: To provide or after the meeting. If you would like Comments. • Federal Coordinator’s Comments. advice and guidance on a continuing to make oral statements regarding any of • basis to the Department of Energy and the items on the agenda, you should Liaisons’ Comments. • Plant Tour Safety Procedures. the National Science Foundation on contact Katie Perine at 301–903–6594 • Administrative Issues: scientific priorities within the field of (fax) or [email protected] (e- Æ Subcommittee Updates. basic nuclear science research. mail). Reasonable provision will be Æ Discussion on Top 3 Issues, Tentative Agenda: Agenda will made to include the scheduled oral Accomplishments, and Major Board include discussions of the following: statements on the agenda. The Activity. Chairperson of the Committee will Æ Discussion on Nevada Site-Specific Wednesday, March 2, 2011 conduct the meeting to facilitate the Advisory Board Recommendation: • Perspectives from Department of orderly conduct of business. Public Using Rail Transport for Moving Waste. Energy and National Science comment will follow the 10-minute • Public Comments. Foundation. rule. • Final Comments. • Update from the Department of Minutes: The minutes of this meeting • Adjourn. Energy and National Science will be available on the Basic Energy Public Participation: The meeting is Foundation’s Nuclear Physics Office. Science Advisory Committee’s Web site open to the public. The EM SSAB, • Status of the Isotopes Program. at http://www.science.doe.gov/bes/ Portsmouth, welcomes the attendance of • Update on the Activities of the BESAC/meetings.html. the public at its advisory committee Neutron Charge Subcommittee. meetings and will make every effort to • Issued at Washington, DC on February 8, Public Comment (10-minute rule). 2011. accommodate persons with physical Public Participation: The meeting is disabilities or special needs. If you LaTanya Butler, open to the public. If you would like to require special accommodations due to file a written statement with the Acting Deputy Committee Management a disability, please contact Joel Officer. Committee, you may do so either before Bradburne in advance of the meeting at or after the meeting. If you would like [FR Doc. 2011–3287 Filed 2–11–11; 8:45 am] the phone number listed above. The to make oral statements regarding any of BILLING CODE 6450–01–P Deputy Designated Federal Officer is these items on the agenda, you should empowered to conduct the meeting in a contact Brenda L. May at (301) 903– DEPARTMENT OF ENERGY fashion that will facilitate the orderly 0536 or [email protected] (e- conduct of business. mail). You must make your request for Environmental Management Site- Issued at Washington, DC on February 8, an oral statement at least 5 business Specific Advisory Board, Portsmouth 2011. days before the meeting. Reasonable LaTanya Butler, provision will be made to include the AGENCY: Department of Energy (DOE). Acting Deputy Committee Management scheduled oral statements on the ACTION: Notice of open meeting. Officer. agenda. The Chairperson of the Committee will conduct the meeting to SUMMARY: This notice announces a [FR Doc. 2011–3237 Filed 2–11–11; 8:45 am] BILLING CODE 6450–01–P facilitate the orderly conduct of meeting of the Environmental business. Public comment will follow Management Site-Specific Advisory the 10-minute rule. Board (EM SSAB), Portsmouth. The DEPARTMENT OF ENERGY Minutes: The minutes of the meeting Federal Advisory Committee Act (Pub. will be available on the U.S. Department L. 92–463, 86 Stat. 770) requires that DOE/NSF Nuclear Science Advisory of Energy’s Office of Nuclear Physics public notice of this meeting be Committee Web site for viewing at: http:// announced in the Federal Register. www.sc.doe.gov/np/nsac/index.shtml. DATES: Thursday, March 3, 2011, 6 AGENCY: Department of Energy, Office of Science. Issued at Washington, DC on February 8, p.m.–8 p.m. 2011. ACTION: Notice of open meeting. ADDRESSES: Ohio State University, LaTanya Butler, Endeavor Center, 1862 Shyville Road, SUMMARY: This notice announces a Acting Deputy Committee Management Piketon, Ohio 45661. meeting of the DOE/NSF Nuclear Officer. FOR FURTHER INFORMATION CONTACT: Joel Science Advisory Committee (NSAC). [FR Doc. 2011–3235 Filed 2–11–11; 8:45 am] Bradburne, Deputy Designated Federal Federal Advisory Committee Act (Pub. BILLING CODE 6450–01–P Officer, Department of Energy, L. 92–463, 86 Stat. 770) requires that Portsmouth/Paducah Project Office, Post public notice of this meeting be Office Box 700, Piketon, Ohio 45661, announced in the Federal Register. DEPARTMENT OF ENERGY (740) 897–3822; e-mail: DATES: Wednesday, March 2, 2011, 9 [email protected]. a.m.–5 p.m. Western Area Power Administration SUPPLEMENTARY INFORMATION: ADDRESSES: Hilton Washington DC/ Boulder Canyon Project Purpose of the Board: The purpose of Rockville Hotel & Executive Meeting the Board is to make recommendations Center, 1750 Rockville Pike, Rockville, AGENCY: Western Area Power to DOE–EM and site management in the Maryland 20852, (301) 468–1100. Administration, DOE.

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ACTION: Notice of proposed base charge located at 615 South 43rd Avenue, revenue from water sales, visitor center, and rates. Phoenix, Arizona, on the dates cited water pumping energy sales, facilities above. Written comments should be sent use charges, regulation, reactive supply, SUMMARY: The Western Area Power to Darrick Moe, Regional Manager, spinning reserve services, miscellaneous Administration (Western) is proposing Desert Southwest Customer Service leases, and late fees. The annual an adjustment to the Boulder Canyon Region, Western Area Power revenue requirement is the base charge Project (BCP) electric service base Administration, P.O. Box 6457, for electric service and is divided charge and rates. The current base Phoenix, AZ 85005–6457, e-mail equally between capacity dollars and charge and rates expire September 30, [email protected]. Written comments may energy dollars. Annual energy dollars 2011, under Rate Schedule BCP–F8. The also be faxed to (602) 605–2490, are divided by annual energy sales, and current base charge is not sufficient to Attention: Jack Murray. Western will annual capacity dollars are divided by cover all annual costs including post information about the rate annual capacity sales to determine the operation, maintenance, replacements, processes on its Web site at http:// proposed energy rate and the proposed and interest expense, and to repay www.wapa.gov/dsw/pwrmkt/BCP/ capacity rate. investment obligations within the RateAdjust.htm. Western will post Rate Schedule BCP–F8, Rate Order required period. The proposed base official comments received via letter, charge will provide sufficient revenue to No. WAPA–150, was approved on an fax, and e-mail to its Web site. Western interim basis by the Deputy Secretary of cover all annual costs and to repay must receive written comments by the Energy on September 23, 2010 for a five- investment obligations within the end of the consultation and comment year period beginning on October 1, allowable period. A detailed rate period to ensure they are considered in 2010, ending September 30, 2015,1 and package that identifies the reasons for Western’s decision process. the base charge and rates adjustment As access to Western facilities is received final approval from the Federal Energy Regulatory Commission on will be available in March 2011. The controlled, any U.S. citizen wishing to 2 proposed base charge and rates are attend any meeting held at Western December 9, 2010. Western’s existing scheduled to become effective on must present an official form of picture rate formula for electric service requires October 1, 2011, and will remain in identification, such as a U.S. driver’s recalculation of the base charge and rate effect through September 30, 2012. This license, U.S. passport, U.S. Government annually based on updated financial Federal Register notice initiates the ID, or U.S. Military ID, at the time of the and hydrology data. The proposed base formal process for the proposed base meeting. Foreign nationals should charge for fiscal year (FY) 2012 under charge and rates. contact Western 30 days in advance of Rate Schedule BCP–F8 is $82,308,519, the forecasted energy rate is 11.08 mills DATES: The consultation and comment the meeting to obtain the necessary form for admittance to Western. per kilowatthour (mills/kWh), the period will begin today and will end forecasted capacity rate is $2.00 per FOR FURTHER INFORMATION CONTACT: Mr. May 16, 2011. Western will present a kilowattmonth (kWmonth), and the Jack Murray, Rates Manager, Desert detailed explanation of the proposed proposed composite rate is 22.16 mills/ Southwest Customer Service Region, base charge and rates at a public kWh. information forum on April 6, 2011, Western Area Power Administration, beginning at 10:30 a.m. MST, in P.O. Box 6457, Phoenix, AZ 85005– The proposed rates for BCP electric Phoenix, Arizona. Western will accept 6457, (602) 605–2442, e-mail service will result in an overall oral and written comments at a public [email protected]. composite rate increase of approximately 12 percent. The comment forum on April 27, 2011, SUPPLEMENTARY INFORMATION: The following Table 1 compares the existing beginning at 10:30 a.m. MST, at the proposed base charge and rates for BCP and proposed base charge and rates. The same location. Western will accept electric service are designed to recover Proposed Base Charge and Rates written comments any time during the an annual revenue requirement that effective October 1, 2011, are consultation and comment period. includes the investment repayment, preliminary and are subject to change ADDRESSES: The public information interest, operation and maintenance, upon publication of final formula rates. forum and public comment forum will replacements, payments to states, visitor be held at the Desert Southwest services, and uprating payments. The Comparison of Existing and Proposed Customer Service Regional Office, total costs are offset by the projected Base Charge and Rates

Existing Proposed October 1, October 1, 2010 through 2011 through Percent September 30, September 30, change 2011 2012

Base Charge ($) ...... 75,182,522 82,308,519 9 Composite Rate (mills/kWh) ...... 19.73 22.16 12 Energy Rate (mills/kWh) ...... 9.86 11.08 12 Capacity Rate ($/kWmonth) ...... 1.90 2.00 5

The increase in the proposed base uprating program principal payments. FY 2012. Another factor contributing to charge and rates is due to increases in Since there is no projected year-end the increase in the energy rate is the the annual operation and maintenance carryover from FY 2011, the result is an decrease in energy sales associated with costs, visitor center costs, and the overall increase in the base charge for continued poor hydrology in the region

1 75 FR 57912. 2 133 FERC ¶ 62,229.

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resulting in lower than normal Lake 1969 (42 U.S.C. 4321–4347); Council on 725 17th Street, NW., Washington, DC Mead water elevations. Although the Environmental Quality Regulations (40 20503. capacity sales are projected to be CFR 1500–1508); and DOE NEPA FOR FURTHER INFORMATION CONTACT: slightly higher in FY 2012 than in FY Regulations (10 CFR 1021), Western has Karen Edwards, Water Security 2011, the increase in the base charge determined this action is categorically Division, Office of Ground Water and results in an increase in the capacity excluded from preparing an Drinking Water, Mailcode: 4608T, rate. environmental assessment or an Environmental Protection Agency, 1200 environmental impact statement. Legal Authority Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202–564– Since the proposed rates constitute a Determination Under Executive Order 12866 3797; fax number: 202–566–0055; e-mail major rate adjustment as defined by 10 address: [email protected]. CFR part 903, Western will hold both a Western has an exemption from public information forum and a public centralized regulatory review under SUPPLEMENTARY INFORMATION: EPA has comment forum. After review of public Executive Order 12866. Accordingly, no submitted the following ICR to OMB for comments, Western will take further clearance of this notice by the Office of review and approval according to the action on the Proposed Base Charge and Management and Budget is required. procedures prescribed in 5 CFR 1320.12. On August 25, 2010 (75 FR 52326), EPA Rates consistent with 10 CFR parts 903 Dated: February 3, 2011. and 904. sought comments on this ICR pursuant Timothy J. Meeks, to 5 CFR 1320.8(d). EPA received no Western is establishing an electric Administrator. service base charge and rates for BCP comments during the comment period. [FR Doc. 2011–3225 Filed 2–11–11; 8:45 am] under the Department of Energy Any additional comments on this ICR BILLING CODE 6450–01–P Organization Act (42 U.S.C. 7152); the should be submitted to EPA and OMB Reclamation Act of 1902 (ch. 1093, 32 within 30 days of this notice. Stat. 388), as amended and EPA has established a public docket ENVIRONMENTAL PROTECTION supplemented by subsequent laws, for this ICR under Docket ID No. EPA– AGENCY particularly section 9(c) of the HQ–OW–2003–0013, which is available Reclamation Project Act of 1939 (43 [EPA–HQ–OW–2003–0013; FRL–9266–3] for online viewing at http:// U.S.C. 485h(c)), and other acts that www.regulations.gov, or in person specifically apply to the project Agency Information Collection viewing at the Water Docket in the EPA involved. Activities; Submission to OMB for Docket Center (EPA/DC), EPA West, By Delegation Order No. 00–037.00, Review and Approval; Comment Room 3334, 1301 Constitution Ave., effective December 6, 2001, the Request; Comment Request: Title IV of NW., Washington, DC. The EPA/DC Secretary of Energy delegated: (1) The the Public Health Security and Public Reading Room is open from 8:30 authority to develop power and Bioterrorism Preparedness and a.m. to 4:30 p.m., Monday through transmission rates to Western’s Response Act of 2002: Drinking Water Friday, excluding legal holidays. The Administrator; (2) the authority to Security and Safety (Renewal) telephone number for the Reading Room confirm, approve, and place such rates is 202–566–1744, and the telephone AGENCY: Environmental Protection number for the Water Docket is 202– into effect on an interim basis to the Agency (EPA). Deputy Secretary of Energy; and (3) the 566–2426. ACTION: Notice. Use EPA’s electronic docket and authority to confirm, approve, and place comment system at http:// into effect on a final basis, to remand or SUMMARY: In compliance with the www.regulations.gov, to submit or view to disapprove such rates to FERC. Paperwork Reduction Act (PRA)(44 public comments, access the index Existing Department of Energy (DOE) U.S.C. 3501 et seq.), this document listing of the contents of the docket, and procedures for public participation in announces that an Information to access those documents in the docket power rate adjustments (10 CFR part Collection Request (ICR) has been that are available electronically. Once in 903) were published on September 18, forwarded to the Office of Management the system, select ‘‘docket search,’’ then 1985. and Budget (OMB) for review and key in the docket ID number identified approval. This is a request to renew an Availability of Information above. Please note that EPA’s policy is existing approved collection. The ICR, that public comments, whether All brochures, studies, comments, which is abstracted below, describes the submitted electronically or in paper, letters, memorandums, or other nature of the information collection and will be made available for public documents that Western initiates or uses its estimated burden and cost. to develop the proposed rates are viewing at http://www.regulations.gov DATES: Additional comments must be as EPA receives them and without available for inspection and copying at submitted on or before March 16, 2011. the Desert Southwest Customer Service change, unless the comment contains ADDRESSES: Submit your comments, copyrighted material, confidential Regional Office, Western Area Power referencing Docket ID No. EPA–HQ– Administration, 615 South 43rd business information (CBI), or other OW–2003–0013, to (1) EPA online using information whose public disclosure is Avenue, Phoenix, Arizona. Many of http://www.regulations.gov (our these documents and supporting restricted by statute. For further preferred method), by email to OW- information about the electronic docket, information are also available on [email protected], or by mail to: EPA Western’s Web site at http:// go to http://www.regulations.gov. Docket Center, EPA Water Docket, Title: Title IV of the Public Health www.wapa.gov/dsw/pwrmkt/BCP/ Environmental Protection Agency, RateAdjust.htm. Security and Bioterrorism Preparedness Mailcode: 28221T, 1200 Pennsylvania and Response Act of 2002: Drinking Ratemaking Procedure Requirements Ave., NW., Washington, DC 20460, and Water Security and Safety (Renewal). (2) OMB by mail to: Office of ICR numbers: EPA ICR No. 2103.04, Environmental Compliance Information and Regulatory Affairs, OMB Control No. 2040–0253. In compliance with the National Office of Management and Budget ICR Status: This ICR is scheduled to Environmental Policy Act (NEPA) of (OMB), Attention: Desk Officer for EPA, expire on February 28, 2011. Under

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OMB regulations, the Agency may Respondents/Affected Entities: Budget (OMB), Attention: Desk Officer continue to conduct or sponsor the Community Water Systems serving a for EPA, 725 17th Street, NW., collection of information while this population of more than 3,300 people. Washington, DC 20503. submission is pending at OMB. An Estimated Number of Respondents: FOR FURTHER INFORMATION CONTACT: Agency may not conduct or sponsor, 80. Learia Williams, Office of Compliance, and a person is not required to respond Frequency of Response: Once. Mail Code 2223A, Environmental to, a collection of information, unless it Estimated Total Annual Hour Burden: Protection Agency, 1200 Pennsylvania displays a currently valid OMB control 8,994. Avenue, NW., Washington, DC 20460; number. The OMB control numbers for Estimated Total Annual Cost: telephone number: (202) 564–4113; fax EPA’s regulations in title 40 of the CFR, $710,460, which includes $710,166 in number: (202) 564–0050; e-mail after appearing in the Federal Register labor and $294 in operation and address: [email protected]. maintenance costs. when approved, are listed in 40 CFR SUPPLEMENTARY INFORMATION: Changes in the Estimates: There is no EPA has part 9, and are displayed either by submitted the following ICR to OMB for publication in the Federal Register or change in the total estimated respondent burden compared with that identified in review and approval according to the by other appropriate means, such as on procedures prescribed in 5 CFR 1320.12. the related collection instrument or the OMB Inventory of Approved Burdens. On June 2, 2010 (75 FR 30813), EPA form, if applicable. The display of OMB sought comments on this ICR pursuant control numbers in certain EPA Dated: February 8, 2011. to 5 CFR 1320.8(d). EPA received no regulations is consolidated in 40 CFR John Moses, comments. Any additional comments on part 9. Director, Collection Strategies Division. this ICR should be submitted to EPA Abstract: The Bioterrorism Act [FR Doc. 2011–3274 Filed 2–11–11; 8:45 am] and OMB within 30 days of this notice. requires each community water system BILLING CODE 6560–50–P EPA has established a public docket serving a population of more than 3,300 for this ICR under docket ID number people to conduct a vulnerability EPA–HQ–OECA–2010–0352, which is assessment of its water system and to ENVIRONMENTAL PROTECTION available for public viewing online at prepare or revise an emergency response AGENCY http://www.regulations.gov, or in person plan that incorporates the results of the [EPA–HQ–OECA–2010–0352; FRL–9266–5] viewing at the Enforcement and vulnerability assessment. These Compliance Docket in the EPA Docket requirements are mandatory under the Agency Information Collection Center (EPA/DC), EPA West, Room statute. EPA will use the information Activities; Submission to OMB for 3334, 1301 Constitution Avenue, NW., collected under this ICR to determine Review and Approval; Comment Washington, DC. The EPA Docket whether community water systems have Request NESHAP for Clay Ceramics Center Public Reading Room is open conducted vulnerability assessments Manufacturing, Glass Manufacturing from 8:30 a.m. to 4:30 p.m., Monday and prepared or revised emergency and Secondary Nonferrous Metals through Friday, excluding legal response plans in compliance with that Processing Area Sources (Renewal) holidays. The telephone number for the Act. EPA is required to protect all Reading Room is (202) 566–1744, and AGENCY: Environmental Protection the telephone number for the vulnerability assessments and all Agency (EPA). information derived from them from Enforcement and Compliance Docket is ACTION: Notice. disclosure to unauthorized parties and (202) 566–1752. Use EPA’s electronic docket and has established an Information SUMMARY: In compliance with the Protection Protocol describing how that comment system at http:// Paperwork Reduction Act (44 U.S.C. www.regulations.gov, to submit or view will be accomplished. 3501 et seq.), this document announces public comments, access the index Burden Statement: The annual public that an Information Collection Request listing of the contents of the docket, and reporting and recordkeeping burden for (ICR) has been forwarded to the Office to access those documents in the docket this collection of information is of Management and Budget (OMB) for that are available electronically. Once in estimated to average 237 hours per review and approval. This is a request the system, select ‘‘docket search,’’ then response. Burden means the total time, to renew an existing approved key in the docket ID number identified effort, or financial resources expended collection. The ICR which is abstracted above. Please note that EPA’s policy is by persons to generate, maintain, retain, below describes the nature of the that public comments, whether or disclose or provide information to or collection and the estimated burden and submitted electronically or in paper, for a Federal agency. This includes the cost. will be made available for public time needed to review instructions; DATES: Additional comments may be viewing at http://www.regulations.gov, develop, acquire, install, and utilize submitted on or before March 16, 2011. as EPA receives them and without technology and systems for the purposes ADDRESSES: Submit your comments, change, unless the comment contains of collecting, validating, and verifying referencing docket ID number EPA–HQ– copyrighted material, Confidential information, processing and OECA–2010–0352 to (1) EPA online Business Information (CBI), or other maintaining information, and disclosing using http://www.regulations.gov (our information whose public disclosure is and providing information; adjust the preferred method), or by e-mail to restricted by statute. For further existing ways to comply with any [email protected], or by mail to: EPA information about the electronic docket, previously applicable instructions and Docket Center (EPA/DC), Environmental go to http://www.regulations.gov. requirements which have subsequently Protection Agency, Enforcement and Title: NESHAP for Clay Ceramics changed; train personnel to be able to Compliance Docket and Information Manufacturing, Glass Manufacturing respond to a collection of information; Center, mail code 28221T, 1200 and Secondary Nonferrous Metals search data sources; complete and Pennsylvania Avenue, NW., Processing Area Sources (Renewal). review the collection of information; Washington, DC 20460, and (2) OMB at: ICR Numbers: EPA ICR Number and transmit or otherwise disclose the Office of Information and Regulatory 2274.03, OMB Control Number 2060– information. Affairs, Office of Management and 0606.

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ICR Status: This ICR is scheduled to and secondary nonferrous metals for review and approval, EPA is expire on March 31, 2011. Under OMB processing area sources. soliciting comments on specific aspects regulations, the Agency may continue to Estimated Number of Respondents: of the proposed information collection conduct or sponsor the collection of 82. as described below. information while this submission is Frequency of Response: Initially, on- DATES: Comments must be submitted on pending at OMB. An agency may not occasion and annually. or before April 15, 2011. conduct or sponsor, and a person is not Estimated Total Annual Hour Burden: ADDRESSES: Submit your comments, required to respond to, a collection of 1,763. identified by Docket ID No. EPA–HQ– information unless it displays a Estimated Total Annual Cost: SFUND–2004–0006, by one of the currently valid OMB control number. $178,380, which includes $165,416 in following methods: The OMB control numbers for EPA’s labor costs, no capital/startup costs, and • www.regulations.gov: Follow the regulations in title 40 of the CFR, after $12,964 in operation and maintenance on-line instructions for submitting appearing in the Federal Register when (O&M) costs. comments. approved, are listed in 40 CFR Part 9, Changes in the Estimates: There is an • E-mail: [email protected]. and displayed either by publication in adjustment increase in the total • Fax: 202–566–0224. the Federal Register or by other estimated labor hour burden as • Mail: Superfund Docket, appropriate means, such as on the currently identified in the OMB Environmental Protection Agency, related collection instrument or form, if Inventory of Approved ICR Burdens Mailcode: 2822T, 1200 Pennsylvania applicable. The display of OMB control because the rule is now fully Ave., NW., Washington, DC 20460. • numbers in certain EPA regulations is implemented. This increase is not due Hand Delivery: EPA Docket Center, consolidated in 40 CFR Part 9. to any program changes. EPA West Building, 1301 Constitution Abstract: The affected entities are The previous ICR covered the initial Avenue, NW., Washington, DC. Such subject to the General Provisions of the phase of standard implementation deliveries are only accepted during the NESHAP at 40 CFR part 63, subpart A, which occurred over a three-year Docket’s normal hours of operation, and and any changes, or additions to the period. Hence, the average number of special arrangements should be made Provisions specified at 40 CFR part 63, respondents during the initial phase is for deliveries of boxed information. Instructions: Direct your comments to subparts RRRRRR, SSSSSS, and less than the number of respondents Docket ID No. EPA–HQ–SFUND–2004– TTTTTT. Owners or operators of the when the standard is fully 0006. EPA’s policy is that all comments affected facilities must submit a one- implemented. This ICR shows the labor received will be included in the public time-only report of any physical or hour and cost burden after full docket without change and may be operational changes, initial performance implementation. made available online at http:// tests, and periodic reports and results. The increase in cost to Respondents and the Agency is due to full www.regulations.gov, including any Owners or operators are also required to personal information provided, unless maintain records of the occurrence and implementation of the rule and use of current labor rates. the comment includes information duration of any startup, shutdown, or claimed to be Confidential Business malfunction in the operation of an Dated: February 7, 2011. Information (CBI) or other information affected facility, or any period during John Moses, whose disclosure is restricted by statute. which the monitoring system is Director, Collection Strategies Division. Do not submit information that you inoperative. Reports, at a minimum, are [FR Doc. 2011–3224 Filed 2–11–11; 8:45 am] consider to be CBI or otherwise required semiannually. BILLING CODE 6560–50–P protected through www.regulations.gov Burden Statement: The annual public or e-mail. The www.regulations.gov Web reporting and recordkeeping burden for site is an ‘‘anonymous access’’ system, this collection of information is ENVIRONMENTAL PROTECTION which means EPA will not know your estimated to average 126 hours per AGENCY identity or contact information unless response. Burden means the total time, you provide it in the body of your [EPA–HQ–SFUND–2004–0006; FRL–9266–1] effort, or financial resources expended comment. If you send an e-mail by persons to generate, maintain, retain, Agency Information Collection comment directly to EPA without going or disclose or provide information to or Activities; Proposed Collection; through www.regulations.gov your e- for a Federal agency. This includes the Comment Request; Community Right- mail address will be automatically time needed to review instructions; to-Know Reporting Requirements captured and included as part of the develop, acquire, install, and utilize Under Sections 311 and 312 of the comment that is placed in the public technology and systems for the purposes Emergency Planning and Community docket and made available on the of collecting, validating, and verifying Right-to-Know Act Internet. If you submit an electronic information, processing and comment, EPA recommends that you maintaining information, and disclosing AGENCY: Environmental Protection include your name and other contact and providing information; adjust the Agency. information in the body of your existing ways to comply with any ACTION: Notice. comment and with any disk or CD–ROM previously applicable instructions and you submit. If EPA cannot read your requirements which have subsequently SUMMARY: In compliance with the comment due to technical difficulties changed; train personnel to be able to Paperwork Reduction Act (PRA) (44 and cannot contact you for clarification, respond to a collection of information; U.S.C. 3501 et seq.), this document EPA may not be able to consider your search data sources; complete and announces that EPA is planning to comment. Electronic files should avoid review the collection of information; submit a request to renew an existing the use of special characters, any form and transmit or otherwise disclose the approved Information Collection of encryption, and be free of any defects information. Request (ICR) to the Office of or viruses. For additional information Respondents/Affected Entities: Management and Budget (OMB). This about EPA’s public docket visit the EPA Owners or operators of clay ceramics ICR is scheduled to expire on July 31, Docket Center homepage at http:// manufacturing, glass manufacturing, 2011. Before submitting the ICR to OMB www.epa.gov/epahome/dockets.htm.

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FOR FURTHER INFORMATION CONTACT: Sicy employ less than 25) on examples of EPCRA Section 311 requires owners and Jacob, Office of Emergency specific additional efforts that EPA operators of facilities subject to OSHA Management, 5104A, Environmental could make to reduce the paperwork Hazard Communication Standard to Protection Agency, 1200 Pennsylvania burden for very small businesses submit a list of chemicals or MSDSs (for Ave., NW., Washington, DC 20460; affected by this collection. those chemicals that exceed thresholds, telephone number: (202) 564–8019; fax specified in 40 CFR Part 370) to the number: (202) 564–2625; e-mail address: What should I consider when I prepare State Emergency Response Commission [email protected]. my comments for EPA? (SERC), Local Emergency Planning SUPPLEMENTARY INFORMATION: You may find the following Committee (LEPC) and the local fire suggestions helpful for preparing your department (LFD) with jurisdiction over How can I access the docket and/or comments: their facility. This is a one-time submit comments? 1. Explain your views as clearly as requirement unless a new facility EPA has established a public docket possible and provide specific examples. becomes subject to the regulations or for this ICR under Docket ID No. EPA– 2. Describe any assumptions that you updating the information by facilities HQ–2004–0006, which is available for used. that are already covered by the online viewing at http:// 3. Provide copies of any technical regulations. EPCRA Section 312 requires www.regulations.gov, or in person information and/or data you used that owners and operators of facilities viewing at the Superfund Docket in the support your views. subject to OSHA HCS to submit an EPA Docket Center (EPA/DC), EPA 4. If you estimate potential burden or inventory form (for those chemicals that West, Room 3334, 1301 Constitution costs, explain how you arrived at the exceed the thresholds, specified in 40 Ave., NW., Washington, DC. The EPA/ estimate that you provide. CFR Part 370) to the SERC, LEPC, and DC Public Reading Room is open from 5. Offer alternative ways to improve LFD with jurisdiction over their facility. 8 a.m. to 4:30 p.m., Monday through the collection activity. This form is to be submitted on March Friday, excluding legal holidays. The 6. Make sure to submit your 1 of each year, on the inventory of telephone number for the Reading Room comments by the deadline identified chemicals in the previous calendar year. is 202–566–1744, and the telephone under DATES. Burden Statement: The average number for the Superfund Docket is 7. To ensure proper receipt by EPA, burden for MSDS reporting under 40 202–566–0276. be sure to identify the docket ID number CFR 370.21 is estimated at 1.6 hours for Use http://www.regulations.gov to assigned to this action in the subject new and newly regulated facilities. For obtain a copy of the draft collection of line on the first page of your response. existing facilities, the average burden is information, submit or view public You may also provide the name, date, 0.6 hours for submitting new or revised comments, access the index listing of and Federal Register citation. MSDSs to SERC, LEPC and the local fire the contents of the docket, and to access What information collection activity or department. For new and newly those documents in the public docket ICR does this apply to? regulated facilities, this burden includes that are available electronically. Once in the time required to read and the system, select ‘‘search,’’ then key in Docket ID No. EPA–HQ–2004–0006. understand the regulations, to the docket ID number identified in this Affected entities: Entities potentially determine which chemicals meet or document. affected by this action are manufacturers exceed reporting thresholds, and to and non-manufacturers. submit MSDSs or lists of chemicals to What information is EPA particularly Title: Community Right-to-Know SERC, LEPCs, and local fire interested in? Reporting Requirements under Sections departments. For existing facilities, this Pursuant to section 3506(c)(2)(A) of 311 and 312 of the Emergency Planning burden includes the time required to the PRA, EPA specifically solicits and Community Right-to-Know Act submit revised MSDSs and new MSDSs comments and information to enable it (EPCRA). to these entities. The average reporting to: ICR number: EPA ICR No. 1352.12, burden for facilities to submit Tier I or (i) Evaluate whether the proposed OMB Control No. 2050–0072. Tier II inventory report under 40 CFR collection of information is necessary ICR status: This ICR is currently 370.25 is estimated to be approximately for the proper performance of the scheduled to expire on July 31, 2011. 3.1 hours per facility. There are no functions of the Agency, including An Agency may not conduct or sponsor, recordkeeping requirements for facilities whether the information will have and a person is not required to respond under EPCRA sections 311 and 312. practical utility; to, a collection of information, unless it The average burden for state and local (ii) evaluate the accuracy of the displays a currently valid OMB control governments to respond to requests for Agency’s estimate of the burden of the number. The OMB control numbers for MSDSs or Tier II information under 40 proposed collection of information, EPA’s regulations in title 40 of the CFR, CFR 370.30 is estimated to be 0.17 hours including the validity of the after appearing in the Federal Register per request. The average burden for state methodology and assumptions used; when approved, are listed in 40 CFR and local governments for managing and (iii) enhance the quality, utility, and part 9, are displayed either by maintaining the reports is estimated to clarity of the information to be publication in the Federal Register or be 32.25 hours. The burden hours collected; and by other appropriate means, such as on indicated here are from the current (iv) minimize the burden of the the related collection instrument or approved ICR. EPA may revise the collection of information on those who form, if applicable. The display of OMB burden before submitting this ICR are to respond, including through the control numbers in certain EPA package to OMB. use of appropriate automated electronic, regulations is consolidated in 40 CFR Burden means the total time, effort, or mechanical, or other technological part 9. financial resources expended by persons collection techniques or other forms of Abstract: The authority for these to generate, maintain, retain, or disclose information technology, e.g., permitting requirements is sections 311 and 312 of or provide information to or for a electronic submission of responses. In the Emergency Planning and Federal agency. This includes the time particular, EPA is requesting comments Community Right-to-Know Act needed to review instructions; develop, from very small businesses (those that (EPCRA), 1986 (42 U.S.C. 11011, 11012). acquire, install, and utilize technology

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and systems for the purposes of ENVIRONMENTAL PROTECTION http://www.regulations.gov, or in person collecting, validating, and verifying AGENCY viewing at the Enforcement and Compliance Docket in the EPA Docket information, processing and [EPA–HQ–OECA–2010–0357, FRL–9266–4] maintaining information, and disclosing Center (EPA/DC), EPA West, Room and providing information; adjust the Agency Information Collection 3334, 1301 Constitution Avenue, NW., existing ways to comply with any Activities; Submission to OMB for Washington, DC. The EPA Docket previously applicable instructions and Review and Approval; Comment Center Public Reading Room is open requirements which have subsequently Request; NSPS for Equipment Leaks of from 8:30 a.m. to 4:30 p.m., Monday changed; train personnel to be able to VOC in Petroleum Refineries (Renewal) through Friday, excluding legal holidays. The telephone number for the respond to a collection of information; AGENCY: Environmental Protection Reading Room is (202) 566–1744, and search data sources; complete and Agency (EPA). the telephone number for the review the collection of information; ACTION: Notice. Enforcement and Compliance Docket is and transmit or otherwise disclose the (202) 566–1752. information. SUMMARY: In compliance with the Use EPA’s electronic docket and The ICR provides a detailed Paperwork Reduction Act (44 U.S.C. comment system at http:// explanation of the Agency’s estimate, 3501 et seq.), this document announces www.regulations.gov, to submit or view which is only briefly summarized here: that an Information Collection Request public comments, access the index (ICR) has been forwarded to the Office listing of the contents of the docket, and Estimated total number of potential of Management and Budget (OMB) for to access those documents in the docket respondents: 564,132. review and approval. This is a request that are available electronically. Once in Frequency of response: Annual. to renew an existing approved the system, select ‘‘docket search,’’ then Estimated total average number of collection. The ICR which is abstracted key in the docket ID number identified responses for each respondent: 1. below describes the nature of the above. Please note that EPA’s policy is collection and the estimated burden and that public comments, whether Estimated total annual burden hours: cost. submitted electronically or in paper, 2,031,859. DATES: Additional comments may be will be made available for public Estimated total annual costs: $96 submitted on or before March 16, 2011. viewing at http://www.regulations.gov, million. ADDRESSES: Submit your comments, as EPA receives them and without referencing docket ID number EPA–HQ– change, unless the comment contains This includes capital investment or copyrighted material, Confidential maintenance and operational costs. OECA–2010–0357, to (1) EPA online using www.regulations.gov (our Business Information (CBI), or other As stated earlier in this document, preferred method), or by e-mail to information whose public disclosure is EPA may revise the burden based on [email protected], or by mail to: EPA restricted by statute. For further current information on the number of Docket Center (EPA/DC), Environmental information about the electronic docket, respondents before submitting the ICR Protection Agency, Enforcement and go to http://www.regulations.gov. Title: NSPS for Equipment Leaks of package to OMB for approval. The cost Compliance Docket and Information VOC in Petroleum Refineries (Renewal). will be adjusted based on current wage Center, mail code 28221T, 1200 ICR Numbers: EPA ICR Number rates. Pennsylvania Avenue, NW., 0983.12, OMB Control Number 2060– Washington, DC 20460, and (2) OMB at: 0067. What is the next step in the process for Office of Information and Regulatory this ICR? ICR Status: This ICR is scheduled to Affairs, Office of Management and expire on March 31, 2011. Under OMB EPA will consider the comments Budget (OMB), Attention: Desk Officer regulations, the Agency may continue to received and amend the ICR as for EPA, 725 17th Street, NW., conduct or sponsor the collection of Washington, DC 20503. appropriate. The final ICR package will information while this submission is then be submitted to OMB for review FOR FURTHER INFORMATION CONTACT: pending at OMB. An agency may not and approval pursuant to 5 CFR Learia Williams, Office of Compliance, conduct or sponsor, and a person is not 1320.12. At that time, EPA will issue Mail Code 2223A, Environmental required to respond to, a collection of Protection Agency, 1200 Pennsylvania another Federal Register notice pursuant information unless it displays a Avenue, NW., Washington, DC 20460; to 5 CFR 1320.5(a)(1)(iv) to announce currently valid OMB control number. telephone number: (202) 564–4113; fax The OMB control numbers for EPA’s the submission of the ICR to OMB and number: (202) 564–0050, e-mail address: the opportunity to submit additional regulations in title 40 of the CFR, after [email protected]. appearing in the Federal Register when comments to OMB. If you have any SUPPLEMENTARY INFORMATION: EPA has approved, are listed in 40 CFR part 9, questions about this ICR or the approval submitted the following ICR to OMB for and displayed either by publication in process, please contact the technical review and approval according to the the Federal Register or by other FOR FURTHER person listed under procedures prescribed in 5 CFR 1320.12. appropriate means, such as on the INFORMATION CONTACT. On June 2, 2010 EPA published a notice related collection instrument or form, if Dated: February 7, 2011. in the Federal Register (75 FR 30813) applicable. The display of OMB control Maryann Petrole, seeking comments on this ICR pursuant numbers in certain EPA regulations is Acting Director, Office of Emergency to 5 CFR 1320.8(d). EPA received no consolidated in 40 CFR part 9. Management. comments. Any additional comments on Abstract: This ICR is for the New this ICR should be submitted to EPA Source Performance Standards (NSPS) [FR Doc. 2011–3284 Filed 2–11–11; 8:45 am] and OMB within 30 days of this notice. for Equipment Leaks of VOC (Volatile BILLING CODE 6560–50–P EPA has established a public docket Organic Compounds) in Petroleum for this ICR under docket ID number Refineries in 40 CFR part 60, subparts EPA–HQ–OECA–2010–0357, which is GGG and GGGa. The NSPS in subpart available for public viewing online at GGG were proposed on January 4, 1983,

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and promulgated on May 30, 1984. time needed to review instructions; ACTION: Notice. These standards apply to the following develop, acquire, install, and utilize facilities in petroleum refineries: technology and systems for the purposes SUMMARY: The EPA Science Advisory compressors and the group of all of collecting, validating, and verifying Board (SAB) Staff Office is requesting equipment (e.g., valves, pumps, flanges, information, processing and public nominations of experts to serve etc.) within a process unit in VOC maintaining information, and disclosing on the SAB Environmental Justice service, commencing construction, and providing information; adjust the Technical (EJT) Panel. modification or reconstruction after the existing ways to comply with any DATES: Nominations should be date of proposal. Amendments that previously applicable instructions and submitted by March 7, 2011 per would have added new standards and requirements which have subsequently instructions below. compliance requirements to subpart changed; train personnel to be able to FOR FURTHER INFORMATION CONTACT: Any GGG were proposed on November 7, respond to a collection of information; member of the public wishing further 2006. In response to public comments, search data sources; complete and information regarding this Notice and all new requirements are being review the collection of information; Request for Nominations may contact incorporated in a new subpart GGGa and transmit or otherwise disclose the Dr. Suhair Shallal, Designated Federal that applies to sources that commence information. Officer (DFO), SAB Staff Office, by construction, reconstruction, or Respondents/Affected Entities: telephone/voice mail at (202) 564–2057; modification after November 7, 2006. Petroleum refineries. by fax at (202) 565–2098 or via e-mail The final amendments to subpart GGG Estimated Number of Respondents: at [email protected] General involve only clarifications and 160. information concerning the EPA Science additional compliance options. Frequency of Response: 2 times per Advisory Board can be found at the EPA Owners or operators of the affected year. SAB Web site at http://www.epa.gov/ facilities described must make one-time- Estimated Total Annual Hour Burden: sab. only notifications. Owners or operators 24,525. SUPPLEMENTARY INFORMATION: are also required to maintain records of Estimated Total Annual Cost: the occurrence and duration of any Background: The SAB was $2,319,816, which includes $2,319,816 established pursuant to the startup, shutdown, or malfunction in exclusively in labor costs, with neither the operation of an affected facility, or Environmental Research, Development, capital/startup costs nor operation and and Demonstration Authorization Act any period during which the monitoring maintenance (O&M) costs. system is inoperative. Monitoring (ERDAA), codified at 42 U.S.C. 4365, to Changes in the Estimates: There is an provide independent scientific and requirements specific to Equipment overall decrease in the number of Leaks of VOC in Petroleum Refineries technical advice to the Administrator. burden labor hours and an increase in The SAB is a Federal Advisory provide information on which the labor hour cost. The burden hours components are leaking VOCs. NSPS Committee chartered under the Federal have decreased because we anticipate Advisory Committee Act (FACA), 5 Subpart GGG references the compliance that no new refineries will be built in requirements of NSPS subpart VV; and U.S.C., App. 2. The SAB will comply the in the United States over the next with the provisions of FACA and all NSPS subpart GGGa references the three years. This results in a decrease in compliance requirements of NSPS appropriate SAB Staff Office procedural the number of labor burden hours. We policies. subpart VVa. Periodically, owners or also refined our estimate of the number operators are required to record In July 2010, the Environmental of major refineries, which reduced the Protection Agency (EPA) released the information identifying leaking number of affected facilities. equipment, repair methods used to stop Interim Guidance on Considering The increase in labor hour cost is due Environmental Justice During the the leaks, and dates of repair. The time to a recalculation of burden using period for this recordkeeping varies and Development of an Action. This current labor rates and the correction of guidance provides agency analysts and depends on equipment type and leak a mathematical error. history. Semiannual reports are required decision-makers with information on There are no annual capital and O&M when to consider environmental justice to measure compliance with the costs to the regulated entities. Capital standards of NSPS Subparts VV and in rule making. As a complement to this and O&M costs are not applicable document, EPA is currently developing VVa, as referenced by NSPS subparts because this is a leak detection and GGG and GGGa. These notifications, the Technical Guidance for repair program with no continuous Incorporating Environmental Justice reports, and records are essential in monitoring equipment. determining compliance and in general, into Rulemaking Activities are required of all sources subject to Dated: February 7, 2011. (Environmental Justice Technical NSPS. Any owner or operator subject to John Moses, Guidance or EJTG). This document will the provisions of this part shall Director, Collection Strategies Division. provide Agency staff with guidance on maintain a file of these measurements, [FR Doc. 2011–3275 Filed 2–11–11; 8:45 am] how to assess disproportionate and retain the file for at least two years BILLING CODE 6560–50–P environmental and public health following the date of such impacts of proposed rules and actions measurements, maintenance reports, on minority, low income and and records. ENVIRONMENTAL PROTECTION indigenous populations in a variety of Burden Statement: The annual public AGENCY regulatory contexts. EPA is seeking a reporting and recordkeeping burden for SAB review of the draft EJTG document this collection of information is [FRL- 9266–6] to assess the appropriateness and estimated to average 77 hours per Science Advisory Board Staff Office; scientific soundness of the technical response. Burden means the total time, Request for Nominations; SAB guidance. effort, or financial resources expended Environmental Justice Technical Panel Request for Nominations: The SAB by persons to generate, maintain, retain, Staff Office is seeking nominations of or disclose or provide information to or AGENCY: Environmental Protection nationally and internationally for a Federal agency. This includes the Agency (EPA). recognized experts with experience and

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expertise in the following disciplines, The EPA SAB Staff Office will Panel Formation Process at the especially as they relate to minorities, acknowledge receipt of nominations. Environmental Protection Agency low-income, and other The names and biosketches of qualified Science Advisory Board (EPA–SAB–EC– disproportionately affected populations: nominees identified by respondents to 02–010), which is posted on the SAB environmental exposure, fate and this Federal Register notice, and Web site at http://www.epa.gov/sab/pdf/ transport, human health risk additional experts identified by the SAB ec02010.pdf. assessment, toxicology, epidemiology, Staff, will be posted in a List of Dated: February 7, 2011. public health, biostatistics, economics, Candidates on the SAB Web site at Anthony F. Maciorowski, social and behavioral sciences, and risk http://www.epa.gov/sab. Public communication. We are specifically comments on this List of Candidates Deputy Director, EPA Science Advisory Board Staff Office. seeking experts with expertise and will be accepted for 21 calendar days. experience in assessing cumulative and The public will be requested to provide [FR Doc. 2011–3278 Filed 2–11–11; 8:45 am] comparative risk, public health benefits relevant information or other BILLING CODE 6560–50–P and impacts, equity and disparity documentation on nominees that the impacts, social impacts, and regulatory SAB Staff Office should consider in impacts. evaluating candidates. FEDERAL ELECTION COMMISSION Availability of the review materials: For the EPA SAB Staff Office, a The review materials will be made balanced subcommittee or review panel Sunshine Act Notice available on the SAB Web site. For includes candidates who possess the AGENCY: Federal Election Commission. questions concerning the review necessary domains of knowledge, the DATE AND TIME: Wednesday, February 16, materials, please contact Kelly Maguire relevant scientific perspectives (which, 2011, at 10 a.m. at (202) 566–2273 or among other factors, can be influenced PLACE: [email protected]. by work history and affiliation), and the 999 E Street, NW., Washington, Process and Deadline for Submitting collective breadth of experience to DC. Nominations: Any interested person or adequately address the charge. In the STATUS: This meeting will be closed to organization may nominate qualified SAB EJT Panel, the SAB Staff Office will the public. individuals in the areas of expertise consider public comments on the List of ITEMS TO BE DISCUSSED: described above for possible service on candidates, information provided by the Compliance matters pursuant to 2 this expert ad hoc Panel. Nominations candidates themselves, and background U.S.C. 437g. should be submitted in electronic information independently gathered by Audits conducted pursuant to 2 format (which is preferred over hard the SAB Staff Office. Selection criteria U.S.C. 437g, 438(b), and Title 26, U.S.C. copy) following the instructions for to be used for Panel membership Matters concerning participation in ‘‘Nominating Experts to Advisory Panels include: (a) Scientific and/or technical civil actions or proceedings or and Ad Hoc Committees Being Formed’’ expertise, knowledge, and experience arbitration. provided on the SAB Web site. The (primary factors); (b) availability and Internal personnel rules and instructions can be accessed through the willingness to serve; (c) absence of procedures or matters affecting a ‘‘Nomination of Experts’’ link on the financial conflicts of interest; (d) particular employee. blue navigational bar on the SAB Web absence of an appearance of a lack of * * * * * site at http://www.epa.gov/sab. To impartiality; and (e) skills working in PERSON TO CONTACT FOR INFORMATION: receive full consideration, nominations committees, subcommittees and Judith Ingram, Press Officer, Telephone: should include all of the information advisory panels; and, for the Panel as a (202) 694–1220. requested. whole, (f) diversity of expertise and EPA’s SAB Staff Office requests: viewpoints. Shawn Woodhead Werth, contact information about the person The SAB Staff Office’s evaluation of Secretary and Clerk of the Commission. making the nomination; contact an absence of financial conflicts of [FR Doc. 2011–3269 Filed 2–10–11; 11:15 am] information about the nominee; the interest will include a review of the BILLING CODE 6715–01–P disciplinary and specific areas of ‘‘Confidential Financial Disclosure Form expertise of the nominee; the nominee’s for Special Government Employees curriculum vita; sources of recent grant Serving on Federal Advisory FEDERAL ELECTION COMMISSION and/or contract support; and a Committees at the U.S. Environmental biographical sketch of the nominee Protection Agency’’ (EPA Form 3110– Sunshine Act Notice indicating current position, educational 48). This confidential form allows AGENCY: Federal Election Commission. background, research activities, and Government officials to determine recent service on other national whether there is a statutory conflict DATE AND TIME: Thursday, February 17, advisory committees or national between that person’s public 2011 at 10 a.m. professional organizations. responsibilities (which includes PLACE: 999 E Street, NW., Washington, Persons having questions about the membership on an EPA Federal DC (Ninth Floor). nomination procedures, or who are advisory committee) and private STATUS: This meeting will be open to the unable to submit nominations through interests and activities, or the public. the SAB Web site, should contact Dr. appearance of a lack of impartiality, as ITEMS TO BE DISCUSSED: Suhair Shallal, DFO, as indicated above defined by Federal regulation. The form Correction and Approval of the in this notice. Nominations should be may be viewed and downloaded from Minutes for the Meeting of February 3, submitted in time to arrive no later than the following URL address at http:// 2011 March 7, 2011. EPA values and www.epa.gov/sab/pdf/epaform3110- Draft AO 2011–01: Robin Carnahan welcomes diversity. In an effort to 48.pdf. for Senate by Mark Elias, Jonathan S. obtain nominations of diverse The approved policy under which the Berkon, and Ezra W. Reese candidates, EPA encourages EPA SAB Office selects subcommittees Draft AO 2011–02: Senator Scott nominations of women and men of all and review panels is described in the Brown and Brown for U.S. Senate racial and ethnic groups. following document: Overview of the Committee by Daniel Winslow

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Kucinich for President, Inc.— E Street, NW., Washington, DC 20463; Delegate or Resident Commissioner.3 Statement of Reasons—Repayment (202) 694–1100 or (800) 424–9530. The formula used to calculate the Determination upon Administrative SUPPLEMENTARY INFORMATION: Under the expenditure limit in such states Review Federal Election Campaign Act of 1971, multiplies the base figure of $10,000 by Audit Division Recommendation 2 U.S.C. 431 et seq., as amended by the the difference in the price index Memorandum on the Kansas Republican Bipartisan Campaign Reform Act of (4.42246), rounding to the nearest $100. Party 2002 1 and the Honest Leadership and See 2 U.S.C. 441a(c)(1)(B) and Management and Administrative Open Government Act of 2007,2 441a(d)(3)(B); 11 CFR 109.32(b) and Matters. 110.17. Based upon this formula, the Individuals who plan to attend and coordinated party expenditure limits (2 require special assistance, such as sign U.S.C. 441a(d)(2) and (3)(A) and (B)), coordinated expenditure limit for 2011 language interpretation or other certain contribution limits (2 U.S.C. general elections for House candidates reasonable accommodations, should 441a(a)(1)(A) and (B), (a)(3) and (h)), in these states is $44,200. contact Shawn Woodhead Werth, and the disclosure threshold for 2. Coordinated Expenditure Limit for Commission Secretary and Clerk, at contributions bundled by lobbyists (2 Senate and for House of Representatives U.S.C. 434(i)(3)(A)) are adjusted (202) 694–1040, at least 72 hours prior in States With Only One Congressional periodically to reflect changes in the to the hearing date. District. consumer price index. See 2 U.S.C. PERSON TO CONTACT FOR INFORMATION: 434(i)(3) and 441a(c)(1); 11 CFR 109.32 Both the national and state party Judith Ingram, Press Officer. Telephone: and 110.17(a) and (f). The Commission committees have a coordinated (202) 694–1220. is publishing this notice to announce expenditure limit for a general election Shawn Woodhead Werth, the adjusted limits and disclosure held to fill a seat in the Senate or in the Secretary and Clerk of the Commission. threshold. House of Representatives in states with only one congressional district. The [FR Doc. 2011–3374 Filed 2–11–11; 4:15 pm] Coordinated Party Expenditure Limits formula used to calculate this BILLING CODE 6715–01–P for 2011 expenditure limit considers not only the Under 2 U.S.C. 441a(c), the price index but also the voting age FEDERAL ELECTION COMMISSION Commission must adjust the population (‘‘VAP’’) of the state. The expenditure limits established by 2 [Notice 2011–01] VAP of each state is published annually U.S.C. 441a(d) (the limitations on in the Federal Register by the Price Index Adjustments for expenditures by national party Department of Commerce. 11 CFR Contribution and Expenditure Limits committees, state party committees, or 110.18. The general election and Lobbyist Bundling Disclosure their subordinate committees in expenditure limit is the greater of: The Threshold connection with the general election base figure ($20,000) multiplied by the campaign of candidates for Federal difference in the price index, 4.42246 AGENCY: Federal Election Commission. office) annually to account for inflation. (which totals $88,400); or $0.02 ACTION: Notice of adjustments to This expenditure limit is increased by multiplied by the VAP of the state, contribution and expenditure limits and the percent difference between the price multiplied by 4.42246. Amounts are lobbyist bundling disclosure threshold. index, as certified to the Commission by rounded to the nearest $100. See 2 the Secretary of Labor, for the 12 SUMMARY: As mandated by provisions of U.S.C. 441a(c)(1)(B) and 441a(d)(3)(A); months preceding the beginning of the the Federal Election Campaign Act of 11 CFR 109.32(b) and 110.17. The chart calendar year and the price index for the 1971, as amended (‘‘FECA’’ or ‘‘the Act’’), below provides the state-by-state base period (calendar year 1974). the Federal Election Commission (‘‘FEC’’ breakdown of the 2011 general election or ‘‘the Commission’’) is adjusting 1. Coordinated Expenditure Limit for coordinated expenditure limit for certain contribution and expenditure House of Representatives in States With Senate elections. The coordinated limits and the lobbyist bundling More Than One Congressional District. expenditure limit for 2011 House disclosure threshold set forth in the Act, Both the national and state party elections in states with only one to index the amounts for inflation. committees have a coordinated congressional district 4 is $88,400. Additional details appear in the expenditure limit for each general election held to fill a seat in the House supplemental information that follows. 3 Currently, these states are the District of of Representatives in states with more DATES: Effective Date: The effective date Columbia, the Commonwealth of Puerto Rico, and than one congressional district. This for the limit at 2 U.S.C. 441a(a)(1)(A) is the territories of American Samoa, Guam, the limit also applies to those states that United States Virgin Islands and the Northern November 3, 2010. The effective date for elect individuals to the office of Mariana Islands. See http://www.house.gov/house/ the limits at 2 U.S.C. 434(i)(3)(A), MemberWWW_by_State.shtml and http:// 441a(a)(1)(B), 441a(a)(3), 441a(d), and about.dc.gov/statehood.asp. 1 441a(h) is January 1, 2011. Public Law 107–155, 116 Stat. 81 (Mar. 27, 4 Currently, these states are: Alaska, Delaware, 2002). Montana, North Dakota, South Dakota, Vermont and FOR FURTHER INFORMATION CONTACT: Mr. 2 Public Law 110–81, 121 Stat. 735 (Sept. 14, Wyoming. See http://www.house.gov/house/ Greg J. Scott, Information Division, 999 2007). MemberWWW_by_State.shtml.

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SENATE GENERAL ELECTION COORDINATED EXPENDITURE LIMITS—2011 ELECTIONS

Senate expenditure Voting age VAP × .02 × the limit (the State population price index greater of the (VAP) (4.42246) amount in column 3 or $88,400)

Alabama ...... 3,599,303 $318,400 $318,400 Alaska ...... 527,205 46,600 88,400 Arizona ...... 4,940,296 437,000 437,000 Arkansas ...... 2,195,465 194,200 194,200 California ...... 27,795,779 2,458,500 2,458,500 Colorado ...... 3,865,036 341,900 341,900 Connecticut ...... 2,727,907 241,300 241,300 Delaware ...... 685,978 60,700 88,400 Florida ...... 14,616,271 1,292,800 1,292,800 Georgia ...... 7,324,792 647,900 647,900 Hawaii ...... 1,006,338 89,000 89,000 Idaho ...... 1,143,651 101,200 101,200 Illinois ...... 9,777,437 864,800 864,800 Indiana ...... 4,861,307 430,000 430,000 Iowa ...... 2,313,538 204,600 204,600 Kansas ...... 2,133,356 188,700 188,700 Kentucky ...... 3,323,606 294,000 294,000 Louisiana ...... 3,397,965 300,600 300,600 Maine ...... 1,048,523 92,700 92,700 Maryland ...... 4,385,947 387,900 387,900 Massachusetts ...... 5,203,385 460,200 460,200 Michigan ...... 7,623,767 674,300 674,300 Minnesota ...... 4,038,685 357,200 357,200 Mississippi ...... 2,194,892 194,100 194,100 Missouri ...... 4,589,980 406,000 406,000 Montana ...... 764,058 67,600 88,400 Nebraska ...... 1,359,656 120,300 120,300 Nevada ...... 1,977,693 174,900 174,900 New Hampshire ...... 1,043,155 92,300 92,300 New Jersey ...... 6,691,782 591,900 591,900 New Mexico ...... 1,514,872 134,000 134,000 New York ...... 15,167,513 1,341,600 1,341,600 North Carolina ...... 7,188,327 635,800 635,800 North Dakota ...... 511,050 45,200 88,400 Ohio ...... 8,840,340 781,900 781,900 Oklahoma ...... 2,796,489 247,300 247,300 Oregon ...... 2,986,164 264,100 264,100 Pennsylvania ...... 9,880,374 873,900 873,900 Rhode Island ...... 833,168 73,700 88,400 South Carolina ...... 3,515,754 311,000 311,000 South Dakota ...... 620,912 54,900 88,400 Tennessee ...... 4,847,129 428,700 428,700 Texas ...... 18,210,592 1,610,700 1,610,700 Utah ...... 1,951,049 172,600 172,600 Vermont ...... 500,054 44,200 88,400 Virginia ...... 6,103,947 539,900 539,900 Washington ...... 5,170,543 457,300 457,300 West Virginia ...... 1,439,342 127,300 127,300 Wisconsin ...... 4,372,515 386,700 386,700 Wyoming ...... 417,319 36,900 88,400

Limitations on Contributions by candidates) and 441a(a)(1)(B) contribution amount by 1.23152, the Individuals, Non-Multicandidate (contributions to national party percent difference between the price Committees and Certain Political Party committees); (2) the biennial aggregate index, as certified to the Commission by Committees Giving to U.S. Senate contribution limits applicable to the Secretary of Labor, for the 12 Candidates for the 2011–2012 Election individuals under 2 U.S.C. 441a(a)(3); months preceding the beginning of the Cycle and (3) the limitation on contributions calendar year and the price index for the made to U.S. Senate candidates by base period (calendar year 2001). The BCRA amended the Act to extend certain political party committees at 2 resulting amount is rounded to the inflation indexing to: (1) The limitations U.S.C. 441a(h). See 2 U.S.C. 441a(c). nearest multiple of $100. See 2 U.S.C. on contributions made by persons under These contribution limits are increased 441a(c); 11 CFR 110.17(b). Contribution 2 U.S.C. 441a(a)(1)(A) (contributions to by multiplying the respective statutory limits shall be adjusted accordingly:

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Statutory provision Statutory amount 2011–2012 Limit

2 U.S.C. 441a(a)(1)(A) ...... $2,000 ...... $2,500. 2 U.S.C. 441a(a)(1)(B) ...... $25,000 ...... $30,800. 2 U.S.C. 441a(a)(3)(A) ...... $37,500 ...... $46,200. 2 U.S.C. 441a(a)(3)(B) ...... $57,500 (of which no more than $37,500 may be at- $70,800 (of which no more than $46,200 may be at- tributable to contributions to political committees tributable to contributions to political committees that are not political committees of national political that are not political committees of national political parties). parties). The overall biennial limit for 2011–12 is $117,000. 2 U.S.C. 441a(h) ...... $35,000 ...... $43,100.

The increased limit at 2 U.S.C. FEDERAL RESERVE SYSTEM collection regulations (45 CFR part 30) 441a(a)(1)(A) is to be in effect for the provides that the Secretary shall charge two-year period beginning on the first Change in Bank Control Notices; an annual rate of interest, which is day following the date of the general Acquisitions of Shares of a Bank or determined and fixed by the Secretary election in the preceding year and Bank Holding Company of the Treasury after considering private ending on the date of the next regularly The notificants listed below have consumer rates of interest on the date scheduled election. Thus, the $2,500 applied under the Change in Bank that the Department of Health and figure above is in effect from November Control Act (12 U.S.C. 1817(j)) and Human Services becomes entitled to 3, 2010, to November 6, 2012. The limits § 225.41 of the Board’s Regulation Y (12 recovery. The rate cannot be lower than under 2 U.S.C. 441a(a)(1)(B), CFR 225.41) to acquire shares of a bank the Department of Treasury’s current 441a(a)(3)(A) and (B), and 441a(h), shall or bank holding company. The factors value of funds rate or the applicable rate be in effect beginning January 1st of the that are considered in acting on the determined from the ‘‘Schedule of odd-numbered year and ending on notices are set forth in paragraph 7 of Certified Interest Rates with Range of December 31st of the next even- the Act (12 U.S.C. 1817(j)(7)). Maturities’’ unless the Secretary waives numbered year. Thus the new The notices are available for interest in whole or part, or a different contribution limits under 2 U.S.C. immediate inspection at the Federal rate is prescribed by statute, contract, or 441a(a)(1)(B), 441a(a)(3)(A) and (B), and Reserve Bank indicated. The notices repayment agreement. The Secretary of 441a(h) are in effect from January 1, also will be available for inspection at the Treasury may revise this rate 2011, to December 31, 2012. See 11 CFR the offices of the Board of Governors. quarterly. The Department of Health and 110.17(b)(1). Interested persons may express their Human Services publishes this rate in the Federal Register. Lobbyist Bundling Disclosure views in writing to the Reserve Bank The current rate of 11%, as fixed by Threshold for 2011 indicated for that notice or to the offices of the Board of Governors. Comments the Secretary of the Treasury, is certified The Act, as amended by HLOGA, must be received not later than March for the quarter ended December 31, requires certain political committees to 2, 2011. 2010. This interest rate is effective until disclose contributions bundled by A. Federal Reserve Bank of Kansas the Secretary of the Treasury notifies the lobbyists/registrants and lobbyist/ City (Dennis Denney, Assistant Vice Department of Health and Human registrant political action committees President) 1 Memorial Drive, Kansas Services of any change. once the contributions exceed a City, Missouri 64198–0001: Dated: February 2, 2011. specified threshold amount. The 1. D. Vaughn Gangwish, Albuquerque, Commission must adjust this threshold Molly P. Dawson, New Mexico and Karin Walsh, Shelton, Director, Office of Financial Policy and amount annually to account for Nebraska, in an individual capacity; and inflation. The disclosure threshold is Reporting, (202) 690–6201. Lois Gangwish, Shelton, Nebraska, as a [FR Doc. 2011–3212 Filed 2–11–11; 8:45 am] increased by multiplying the $15,000 member of the family group acting in BILLING CODE 4150–04–P statutory disclosure threshold by concert, to retain and acquire shares of 1.08163, the difference between the Shelton Enterprises, Inc., parent of First price index, as certified to the State Bank of Shelton, both in Shelton, DEPARTMENT OF HEALTH AND Commission by the Secretary of Labor, Nebraska. for the 12 months preceding the HUMAN SERVICES beginning of the calendar year and the Board of Governors of the Federal Reserve System, February 9, 2011. National Toxicology Program (NTP); price index for the base period (calendar Office of Liaison, Policy and Review; year 2006). The resulting amount is Robert deV. Frierson, Deputy Secretary of the Board. Meeting of the NTP Board of Scientific rounded to the nearest multiple of $100. Counselors See 2 U.S.C. 434(i)(3)(A) and (B) and [FR Doc. 2011–3213 Filed 2–11–11; 8:45 am] 441a(c)(1)(B); 11 CFR 104.22(g). Based BILLING CODE 6210–01–P AGENCY: National Institute of upon this formula ($15,000 × 1.08163), Environmental Health Sciences the lobbyist bundling disclosure (NIEHS), National Institutes of Health. threshold for calendar year 2011 is DEPARTMENT OF HEALTH AND ACTION: Meeting announcement and $16,200. HUMAN SERVICES request for comments. Dated: February 9, 2011. Office of the Secretary SUMMARY: On behalf of the Commission. Pursuant to Public Law 92– 463, notice is hereby given of a meeting Cynthia L. Bauerly, Notice of Interest Rate on Overdue Debts of the NTP Board of Scientific Chair, Federal Election Commission. Counselors (BSC). The BSC is a [FR Doc. 2011–3231 Filed 2–11–11; 8:45 am] Section 30.18 of the Department of federally chartered, external advisory BILLING CODE 6715–01–P Health and Human Services’ claims group composed of scientists from the

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public and private sectors that provides (see ADDRESSES above). Following the on both meeting days, although time primary scientific oversight to the NTP meeting, summary minutes will be allowed for presentation by these Director and evaluates the scientific prepared and made available on the BSC registrants may be less than that for pre- merit of the NTP’s intramural and meeting Web site. registered speakers and will be collaborative programs. determined by the number of persons Attendance and Registration DATES: The BSC meeting will be held on who register at the meeting. April 13, 2011. The deadline for The meeting is scheduled for April Persons registering to make oral submission of written comments is 13, 2011, beginning at 8 a.m. (Eastern comments are asked to send a copy of March 30, 2011, and for pre-registration Standard Time) and continuing to their statement or PowerPoint slides to to attend the meeting, including adjournment. This meeting is open to the Designated Federal Officer for the registering to present oral comments, is the public with attendance limited only BSC (see ADDRESSES above) by April 6, April 6, 2011. Persons needing by the space available. Individuals who 2011. Written statements can interpreting services in order to attend plan to attend are encouraged to register supplement and may expand the oral should contact 301–402–8180 (voice) or online at the BSC meeting Web site presentation. If registering on-site and (http://ntp.niehs.nih.gov/go/165) by 301–435–1908 (TTY). For other reading from written text, please bring April 6, 2011, to facilitate planning for accommodations while on the NIEHS 40 copies of the statement for the meeting. Registered attendees are campus, contact 919–541–2475 or distribution to the BSC and NTP staff encouraged to access the meeting e-mail [email protected]. and to supplement the record. website to stay abreast of the most Requests should be made at least 7 current information regarding the Background Information on the NTP business days in advance of the event. meeting. The NTP is making plans to Board of Scientific Counselors ADDRESSES: The BSC meeting will be videocast the meeting through the The BSC is a technical advisory body held in the Rodbell Auditorium, Rall Internet at http://www.niehs.nih.gov/ comprised of scientists from the public Building at the NIEHS, 111 T.W. news/video/live. and private sectors that provides Alexander Drive, Research Triangle Request for Comments primary scientific oversight to the NTP. Park, NC 27709. Public comments on all Specifically, the BSC advises the NTP agenda topics and any other Written comments submitted in on matters of scientific program content, correspondence should be submitted to response to this notice should be both present and future, and conducts Dr. Lori White, Designated Federal received by March 30, 2011. Comments periodic review of the program for the Officer for the BSC, NTP Office of will be posted on the BSC meeting Web purpose of determining and advising on Liaison, Policy and Review, NIEHS, P.O. site and persons submitting them will the scientific merit of its activities and Box 12233, K2–03, Research Triangle be identified by their name and their overall scientific quality. Its Park, NC 27709; telephone: 919–541– affiliation and/or sponsoring members are selected from recognized 9834; fax: 919–541–0295; organization, if applicable. Persons authorities knowledgeable in fields such [email protected]. Courier address: submitting written comments should as toxicology, pharmacology, pathology, NIEHS, 530 Davis Drive, Room K2136, include their name, affiliation (if biochemistry, epidemiology, risk Morrisville, NC 27560. applicable), phone, email, and assessment, carcinogenesis, FOR FURTHER INFORMATION CONTACT: Dr. sponsoring organization (if any) with mutagenesis, molecular biology, Lori White (telephone: 919–541–9834 or the document. behavioral toxicology, neurotoxicology, Time will be allotted during the [email protected]). immunotoxicology, reproductive meeting for the public to present oral SUPPLEMENTARY INFORMATION: toxicology or teratology, and comments to the BSC on the agenda biostatistics. Members serve overlapping Preliminary Agenda Topics and topics. In addition to in-person oral terms of up to four years. The BSC Availability of Meeting Materials comments at the meeting at the NIEHS, usually meets biannually. • Report of the NIEHS/NTP Director public comments can be presented by • Report of the NTP Associate Director teleconference line. There will be 50 Dated: February 2, 2011. • Contract Concept: Potential for lines for this call; availability will be on John R. Bucher, Environmental and Therapeutic a first-come, first-served basis. The Associate Director, National Toxicology Agents to Induce Immunotoxicity available lines will be open from 8 AM Program. • NTP’s Modified One-Generation until adjournment, although public [FR Doc. 2011–3273 Filed 2–11–11; 8:45 am] Reproduction Study Design comments will be received only during BILLING CODE 4140–01–P • Statistical Methods used in NTP the formal public comment periods, Technical Reports which are indicated on the preliminary • Research Concept: Nanomaterials agenda. Each organization is allowed DEPARTMENT OF HEALTH AND Exposure Assessment one time slot per agenda topic. At least HUMAN SERVICES • NTP Initiative—Strategies to Support 7 minutes will be allotted to each Exposure Assessments speaker, and if time permits, may be National Institutes of Health • Center for the Evaluation of Risks to extended to 10 minutes at the discretion Notice Correction; Generic Submission Human Reproduction Concept: Folic of the BSC chair. Persons wishing to of Technology Transfer Center (TTC) Acid Workshop present oral comments are encouraged • External Customer Satisfaction Weight of Evidence Criteria to pre-register on the NTP meeting Surveys (NCI) The updated agenda, roster of BSC website, indicate whether they will members, background materials, public present comments in-person or via the The Federal Register notice published comments, and any additional teleconference line, and list the topic(s) on December 23, 2010 (75 FR 80830) information, when available, will be on which they plan to comment. The announcing the submission to OMB of posted on the BSC meeting website access number for the teleconference the project titled, ‘‘Technology Transfer (http://ntp.niehs.nih.gov/go/165) or may line will be provided to registrants by Center (TTC) External Customer be requested in hardcopy from the email prior to the meeting. Registration Satisfaction Survey (NCI)’’ was Designated Federal Officer for the BSC for oral comments will also be available submitted with errors. The submission

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is now being presented as a generic 93.865, Research for Mothers and Children; DEPARTMENT OF HEALTH AND submission which will include multiple 93.929, Center for Medical Rehabilitation HUMAN SERVICES customer satisfaction surveys over the Research; 93.209, Contraception and course of three years. At this time, only Infertility Loan Repayment Program, National National Institutes of Health Institutes of Health, HHS) the initial survey has been developed and the subsequent surveys have yet to Dated: February 8, 2011. Eunice Kennedy Shriver National be envisioned. Once subsequent surveys Jennifer S. Spaeth, Institute of Child Health & Human and populations have been identified Director, Office of Federal Advisory Development; Notice of Closed and finalized, NCI will submit generic Committee Policy. Meeting information collections (Gen ICs) to [FR Doc. 2011–3240 Filed 2–11–11; 8:45 am] Pursuant to section 10(d) of the OMB for review and approval. The BILLING CODE 4140–01–P Federal Advisory Committee Act, as original burden total presented in the amended (5 U.S.C. App.), notice is 60-day Federal Register Notice is hereby given of the following meeting. correct however it will be used over the DEPARTMENT OF HEALTH AND The meeting will be closed to the period of three years. HUMAN SERVICES public in accordance with the provisions set forth in sections Dated: February 7, 2011. National Institutes of Health Vivian Horovitch-Kelley, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., NCI Project Clearance Liaison, National Eunice Kennedy Shriver National as amended. The contract proposals and Institutes of Health. Institute of Child Health & Human the discussions could disclose confidential trade secrets or commercial [FR Doc. 2011–3242 Filed 2–11–11; 8:45 am] Development; Notice of Closed property such as patentable material, BILLING CODE 4140–01–P Meeting and personal information concerning Pursuant to section 10(d) of the individuals associated with the contract DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as proposals, the disclosure of which HUMAN SERVICES amended (5 U.S.C. App.), notice is would constitute a clearly unwarranted hereby given of the following meeting. invasion of personal privacy. National Institutes of Health The meeting will be closed to the Name of Committee: National Institute of public in accordance with the Child Health and Human Development Eunice Kennedy Shriver National provisions set forth in sections Special Emphasis Panel, National Children’s Institute of Child Health & Human 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Study—Vanguard Center. Development; Notice of Closed as amended. The grant applications and Date: March 16, 2011. Meeting Time: 1 p.m. to 4 p.m. the discussions could disclose Agenda: To review and evaluate contract Pursuant to section 10(d) of the confidential trade secrets or commercial proposals. Federal Advisory Committee Act, as property such as patentable material, Place: National Institutes of Health, 6100 amended (5 U.S.C. App.), notice is and personal information concerning Executive Boulevard, Room 2A01, Rockville, hereby given of the following meeting. individuals associated with the grant MD 20852, 301–435–0862 (Telephone The meeting will be closed to the applications, the disclosure of which Conference Call). Contact Person: Sathasiva B. Kandasamy, public in accordance with the would constitute a clearly unwarranted invasion of personal privacy. PhD, Scientific Review Officer, Division of provisions set forth in sections Scientific Review, Eunice Kennedy Shriver 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of National Institute of Child Health and as amended. The grant applications and Child Health and Human Development Human Development, NIH, 6100 Executive the discussions could disclose Special Emphasis Panel, ‘‘VULVODYNIA’’. Blvd., Room 5B01, Bethesda, MD 20892, confidential trade secrets or commercial Date: March 14, 2011. 301–435–6680, [email protected]. property such as patentable material, Time: 8 a.m. to 5 p.m. (Catalogue of Federal Domestic Assistance and personal information concerning Agenda: To review and evaluate grant Program Nos. 93.864, Population Research; applications. individuals associated with the grant 93.865, Research for Mothers and Children; Place: Embassy Suites at the Chevy Chase 93.929, Center for Medical Rehabilitation applications, the disclosure of which Pavilion, 4300 Military Road, NW., would constitute a clearly unwarranted Research; 93.209, Contraception and Washington, DC 20015. Infertility Loan Repayment Program, National invasion of personal privacy. Contact Person: Dennis E. Leszczynski, Institutes of Health, HHS) PhD, Scientific Review Officer, Division of Name of Committee: National Institute of Dated: February 8, 2011. Child Health and Human Development Scientific Review, Eunice Kennedy Shriver Special Emphasis Panel; Risk Genes and National Institute of Child Health and Jennifer S. Spaeth, Environment Interactions in NTDs. Human Development, NIH, 6100 Executive Director, Office of Federal Advisory Date: March 14, 2011. Blvd., Room 5B01, Bethesda, MD 20892, Committee Policy. Time: 2 p.m. to 5 p.m. 301–435–6884, [email protected]. [FR Doc. 2011–3241 Filed 2–11–11; 8:45 am] Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–P applications. Program Nos. 93.864, Population Research; Place: National Institutes of Health, 6100 93.865, Research for Mothers and Children; Executive Boulevard, Rockville, MD 20852 93.929, Center for Medical Rehabilitation (Telephone Conference Call). Research; 93.209, Contraception and DEPARTMENT OF HOMELAND Contact Person: Neelakanta Ravindranath, Infertility Loan Repayment Program, National SECURITY Ph.D., Scientific Review Officer, Division of Institutes of Health, HHS) Coast Guard Scientific Review, Eunice Kennedy Shriver Dated: February 8, 2011. National Institute of Child Health and [Docket No. USCG–2011–0070] Human Development, NIH, 6100 Executive Jennifer S. Spaeth, Blvd., Room 5B01, Bethesda, MD 20892, Director, Office of Federal Advisory Committee Policy. Commercial Fishing Safety Advisory 301–435–6889, [email protected]. Committee; Meeting (Catalogue of Federal Domestic Assistance [FR Doc. 2011–3239 Filed 2–11–11; 8:45 am] Program Nos. 93.864, Population Research; BILLING CODE 4140–01–P AGENCY: Coast Guard, DHS.

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ACTION: Notice of meeting. Advisory Committee Act, 5 U.S.C. App. Dated: February 9, 2011. (Pub. L. 92–463). The CFSAC is J. G. Lantz, SUMMARY: The Commercial Fishing authorized by 46 U.S.C. 4508 and the Director of Commercial Regulations and Safety Advisory Committee (CFSAC) Committee’s purpose is to provide Standards. will meet in Portsmouth, Virginia to advice and recommendations to the U.S. [FR Doc. 2011–3338 Filed 2–10–11; 11:15 am] discuss various issues relating to safety Coast Guard and the Department of BILLING CODE 9110–04–P in the commercial fishing industry. This Homeland Security on matters relating meeting will be open to the public. to the safety of commercial fishing DATES: The Committee will meet on industry vessels. DEPARTMENT OF HOMELAND March 1–3, 2011, from 8 a.m. to 5 p.m. SECURITY This meeting may close early if all Agenda of Meeting business is finished. Written material The agenda for the CFSAC meeting is United States Immigration and and requests to make oral presentations as follows: Customs Enforcement should reach the Coast Guard on or (1) Review of Fishing Vessel Safety before February 23, 2011. Agency Information Collection Requirements changes from the Coast Activities: Revision of an Existing ADDRESSES: The Committee will meet at Guard Authorization Act of 2010. the Renaissance Portsmouth Hotel and Information Collection; Comment (2) Status of Commercial Fishing Request Waterfront Conference Center, 425 Vessel Safety Rulemaking. Water Street, Portsmouth, Virginia (3) Commercial Fishing Vessel Safety ACTION: 30-Day Notice of Information 23705. District Coordinators updates. Collection for Review; Student and Please send written material, (4) Industry Representatives updates. Exchange Visitor Information System comments, and requests to make oral (SEVIS); OMB Control No. 1653–0038, presentations to Mr. Jack Kemerer, (5) Presentation on research and safety related projects by the National Assistant to the Designated Federal * * * * * Official (DFO) of CFSAC, by one of the Institute for Occupational Safety and Health. The Department of Homeland submission methods described below. Security, U.S. Immigration and Customs (6) Presentation on safety standards All materials, comments, and requests Enforcement (ICE), will be submitting by the National Oceanic and must be identified by docket number the following information collection Atmospheric Administration, National [USCG–2011–0070]. request for review and clearance in Marine Fisheries Service. Submission Methods: Please use only accordance with the Paperwork one of the following methods: (7) Subcommittee sessions on: Reduction Act of 1995. The information • Federal eRulemaking Portal: http:// Communications and outreach; risk collection is published to obtain www.regulations.gov. Follow the management; operator training; vessel comments from the public and affected instructions for submitting comments. construction and standards; safety and • agencies. Notice of this information E-mail: [email protected]. survival equipment; safety collection was previously published in Include the docket number in the examinations; and safety program the Federal Register on November 10, subject line of the message. strategies, future plans, and long range • 2010 Vol. 75 No. 217, 69095, allowing Fax: (202) 372–1917. goals. for a 60 day public comment period. No • Mail: Mr. Jack Kemerer, COMDT (8) Opportunity for public to comments were received during this (CG–54221), 2100 2nd Street, SW., Stop comment will be provided each day. period. 7581, Washington, DC 20593. The purpose of this notice is to allow Instructions: All submissions received Procedural an additional 30 days for public must include the words ‘‘U.S. Coast This meeting is open to the public. comments. Comments are encouraged Guard’’ and docket number [USCG– Please note that the meeting may close and will be accepted for thirty days 2011–0070]. All submissions received early if all business is finished. until April 15, 2011. will be posted without alteration at Members of the public may make oral Written comments and suggestions www.regulations.gov, including any presentations during the meeting. If you from the public and affected agencies personal information provided. Anyone would like to make an oral presentation regarding items contained in this notice, can search the electronic form of at the meeting, please notify the and especially with regard to the comments received into any of our Designated Federal Officer no later than estimated public burden and associated dockets by the name of the individual February 23, 2011. Written material for response time should be directed to the submitting the comment (or signing the distribution at the meeting should reach Office of Information and Regulatory comment, if submitted on behalf of an the Coast Guard no later than February Affairs, Office of Management and association, business, labor union, etc.) 18, 2011. Copies of all material that is Budget. Comments should be addressed You may review a Privacy Act notice received will be distributed to each to OMB Desk Officer, for United States regarding our public dockets in the member of the committee in advance of Immigration and Customs Enforcement, January 17, 2008 issue of the Federal the meeting. Please submit a copy to the Department of Homeland Security, and Register (73 FR 3316). DFO for distribution to committee Docket: For access to the docket to sent via electronic mail to members no later than February 23, _ read background documents or oira [email protected] or faxed 2011. submissions received by the CFSAC, go to (202) 395–5806. Written comments and suggestions to http://www.regulations.gov. Information on Services for Individuals from the public and affected agencies With Disabilities FOR FURTHER INFORMATION CONTACT: Mr. concerning the proposed collection of Jack Kemerer, Assistant to DFO of For information on facilities or information should address one or more CFSAC, by telephone at 202–372–1249, services for individuals with disabilities of the following four points: fax 202–372–1917, email: or to request special assistance at a (1) Evaluate whether the proposed [email protected]. meeting, contact the Designated Federal collection of information is necessary SUPPLEMENTARY INFORMATION: Notice of Officer as soon as possible, but no later for the proper performance of the this meeting is given under the Federal than February 23, 2011. functions of the agency, including

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whether the information will have technological collection techniques or Department of Homeland Security practical utility; other forms of information technology, sponsoring the collection: Forms I–17 (2) Evaluate the accuracy of the e.g., permitting electronic submission of and I–20; U.S. Immigration and Customs agencies estimate of the burden of the responses. Enforcement. proposed collection of information, including the validity of the Overview of This Information (4) Affected public who will be asked methodology and assumptions used; Collection or required to respond, as well as a brief (3) Enhance the quality, utility, and (1) Type of Information Collection: abstract: Primary: Not-for-profit clarity of the information to be Revision of a currently approved institutions and individuals or collected; and information collection. households. (4) Minimize the burden of the (2) Title of the Form/Collection: (5) An estimate of the total number of collection of information on those who Student and Exchange Visitor respondents and the amount of time are to respond, including through the Information System (SEVIS) estimated for an average respondent to use of appropriate automated, (3) Agency form number, if any, and respond: electronic, mechanical, or other the applicable component of the

Avg. burden No. of respondents Form name/form number per response (in hours)

280,000 ...... Certificate of Eligibility for Nonimmigrant (F–1) Student Sta- 0.5 tus—For Academic and Language Students/ICE Form I–20 (Students). 90,000 ...... Certificate of Eligibility for Nonimmigrant (M–1) Student Sta- 0.5 tus—For Academic and Language Students/ICE Form I–20 (Spouse/Dependents). 280,000 ...... Optional Practical Training 12 Month Request/No Form ...... 0.083 12,000 ...... Optional Practical Training 17 Month Extension Request/No 0.083 Form. 5,525 ...... Maintenance of SEVP Certification/ICE Form I–17 ...... 4

(6) An estimate of the total public SUMMARY: We announce our receipt of Information Act (5 U.S.C. 552), by any burden (in hours) associated with the applications to conduct certain party who submits a request for a copy collection: 557,816 annual burden activities pertaining to enhancement of of such documents within 30 days of the hours. survival of endangered species. The date of publication of this notice to Kris Requests for a copy of the proposed Endangered Species Act requires that Olsen, by mail (see ADDRESSES) or by information collection instrument, with we invite public comment on these telephone at 303–236–4256. All instructions; or inquiries for additional permit applications. comments we receive from individuals information should be directed to: DATES: Written comments on this become part of the official public Office of the Chief Financial Officer/ request for a permit must be received by record. OAA/Records Branch, U.S. Immigration March 16, 2011. and Customs Enforcement, 500 12th ADDRESSES: Submit written data or Applications Street SW., STOP 5705 Washington, DC comments to the Assistant Regional The following applicant has requested 20536–5705. Director-Ecological Services, U.S. Fish an issuance of enhancement of survival and Wildlife Service, P.O. Box 25486, Dated: February 2, 2011. permit to conduct certain activities with Denver Federal Center, Denver, CO John Ramsay, endangered species pursuant to section 80225–0486; facsimile 303–236–0027. Forms Program Manager, Office of Asset 10(a)(1)(A) of the Endangered Species SUPPLEMENTARY INFORMATION: Administration, U.S. Immigration and Act of 1973, as amended (16 U.S.C. 1531 Customs Enforcement, Department of Homeland Security. Public Availability of Comments et seq.): [FR Doc. 2011–3238 Filed 2–11–11; 8:45 am] Before including your address, phone Applicant: Scott Gangle, North Dakota BILLING CODE 9111–28–P number, e-mail address, or other Game and Fish Department, Bismarck, personal indentifying information in North Dakota, TE–34128A. The your comment, you should be aware applicant requests a permit to take that your entire comment—including pallid sturgeon (Scaphirhynchus albus) DEPARTMENT OF THE INTERIOR your personal identifying information— in conjunction with recovery activities may be made publicly available at any Fish and Wildlife Service throughout the species’ range for the time. While you can ask us in your purpose of enhancing its survival and comment to withhold your personal recovery. [FWS–R6–ES–2011–N021; 60120–1113– identifying information from public 0000–D2] review, we cannot guarantee that we Dated:January 28, 2011. Noreen E. Walsh, Endangered and Threatened Wildlife will be able to do so. and Plants; Permits Document Availability Deputy Regional Director, Denver, Colorado. [FR Doc. 2011–3286 Filed 2–11–11; 8:45 am] AGENCY Documents and other information : Fish and Wildlife Service, BILLING CODE 4310–55–P Interior. submitted with these applications are available for review, subject to the ACTION: Notice of receipt of applications requirements of the Privacy Act (5 for permits. U.S.C. 552a) and Freedom of

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DEPARTMENT OF THE INTERIOR Secs. 1 to 18, inclusive; DEPARTMENT OF THE INTERIOR Secs. 19 to 24, inclusive, those lands lying Bureau of Indian Affairs north of the highway right-of-way. Bureau of Land Management Containing approximately 14,143 acres. Indian Gaming [LLAZ956000.L14200000.BJ0000.241A] T. 12 N., R. 7 E., AGENCY: Bureau of Indian Affairs, Secs. 5 to 8, inclusive; Notice of Filing of Plats of Survey; Interior. Secs. 15 to 22, inclusive; Arizona Secs. 27 to 36, inclusive. ACTION: Notice of Approved Tribal-State AGENCY: Bureau of Land Management, Class III Gaming Compact. Containing approximately 13,846 acres. Interior. T. 12 N., R. 8 E., SUMMARY: This notice publishes an ACTION: Notice of filing of plats of Secs. 19, 30, 31, and 32. extension of the Gaming Compact survey; Arizona. between the Oglala Sioux Tribe and the Containing approximately 2,452 acres. SUMMARY: The plats of survey of the State of South Dakota. Aggregating approximately 30,441 acres. described lands were officially filed in DATES: Effective Date: February 14, Notice of the decision will also be the Arizona State Office, Bureau of Land 2011. published four times in the Anchorage Management, Phoenix, Arizona, on FOR FURTHER INFORMATION CONTACT: Daily News. dates indicated. Paula L. Hart, Director, Office of Indian DATES: SUPPLEMENTARY INFORMATION: Gaming, Office of the Deputy Assistant Any party claiming a property Secretary—Policy and Economic interest in the lands affected by the The Gila and Salt River Meridian, Development, Washington, DC 20240, decision may appeal the decision within Arizona: (202) 219–4066. the following time limits: The plat representing the SUPPLEMENTARY INFORMATION: Under 1. Unknown parties, parties unable to establishment of the southwest and section 11 of the Indian Gaming be located after reasonable efforts have northwest township corners, Township Regulatory Act of 1988 (IGRA), Public been expended to locate, parties who 30 North, Range 6 East, accepted Law 100–497, 25 U.S.C. 2710, the fail or refuse to sign their return receipt, September 9, 2010, and officially filed Secretary of the Interior shall publish in and parties who receive a copy of the September 15, 2010, for Group 1059, the Federal Register notice of approved decision by regular mail which is not Arizona. Tribal-State compacts for the purpose of certified, return receipt requested, shall This plat was prepared at the request engaging in Class III gaming activities have until March 16, 2011 to file an of the Bureau of Indian Affairs, Navajo on Indian lands. This amendment appeal. Regional Office. allows for the extension of the current The plat representing the 2. Parties receiving service of the Tribal-State Compact until June 30, establishment of the corner of sections 2011. decision by certified mail shall have 30 1, 2, 35 and 36, and the corner of days from the date of receipt to file an Dated: February 1, 2011. sections 5, 6, 31 and 32, on the appeal. boundary between Townships. 31 and George Skibine, 3. Notices of appeal transmitted by 32 North, Range 6 East and an electronic Deputy Assistant Secretary—Indian Affairs. electronic means, such as facsimile or e- control monument, Township 31 North, [FR Doc. 2011–3179 Filed 2–11–11; 8:45 am] mail, will not be accepted as timely Range 6 East, accepted September 9, BILLING CODE 4310–4N–P filed. 2010, and officially filed September 15, 2010, for Group 1059, Arizona. Parties who do not file an appeal in This plat was prepared at the request DEPARTMENT OF THE INTERIOR accordance with the requirements of 43 of the Bureau of Indian Affairs, Navajo CFR part 4, subpart E, shall be deemed Bureau of Land Management Regional Office. to have waived their rights. The plat of Township 32 North, Range [AA–12467, AA–8104–02; LLAK962000– ADDRESSES: A copy of the decision may 6 East, representing the establishment of L14100000–KC0000–P] be obtained from: Bureau of Land the corner of sections 1, 6, 7 and 12, on the boundary between Townships 32 Alaska Native Claims Selection Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, North, Ranges 5 and 6 East, accepted AGENCY: Bureau of Land Management, Alaska 99513–7504. September 9, 2010, and officially filed Interior. September 15, 2010, for Group 1059, FOR FURTHER INFORMATION CONTACT: ACTION: Notice of decision approving The Arizona. lands for conveyance. BLM by phone at 907–271–5960, by e- This plat was prepared at the request mail at [email protected], or of the Bureau of Indian Affairs, Navajo SUMMARY: As required by 43 CFR by telecommunication device (TTD) Regional Office. 2650.7(d), notice is hereby given that an through the Federal Information Relay The plat representing the appealable decision will be issued by Service (FIRS) at 1–800–877–8339, 24 establishment of the northwest the Bureau of Land Management (BLM) hours a day, 7 days a week. township corner, Township 32 1⁄2 to Ahtna, Incorporated. The decision North, Range 6 East, accepted October approves conveyance of the surface and Dina L. Torres, 29, 2010, and officially filed November subsurface estates in the lands described Land Transfer Resolution Specialist, Land 24, 2010, for Group 1059, Arizona. below pursuant to the Alaska Native Transfer Adjudication II Branch. This plat was prepared at the request Claims Settlement Act. The lands are in [FR Doc. 2011–3197 Filed 2–11–11; 8:45 am] of the Bureau of Indian Affairs, Navajo the vicinity of Mentasta Lake, Alaska, BILLING CODE 4310–JA–P Regional Office. and are located in: The plat of Township 33 North, Range 6 East, representing the establishment of Copper River Meridian, Alaska the northwest township corner and an T. 11 N., R. 7 E., electronic control monument, and the

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corner of sections 19, 24, 25 and 30, on and metes-and-bounds surveys in The plat representing the the boundary between Townships 33 sections 7 and 18, Township 39 North, establishment of the northeast township North, Ranges 5 and 6 East, accepted Range 7 East, accepted August 19, 2010, corner, Township 33 1⁄2 North, Range 9 October 29, 2010, and officially filed and officially filed August 24, 2010, for East, accepted October 29, 2010, and November 24, 2010, for Group 1059, Group 1052, Arizona. officially filed November 24, 2010, for Arizona. This plat was prepared at the request Group 1059, Arizona. This plat was prepared at the request of the Bureau of Land Management. This plat was prepared at the request of the Bureau of Indian Affairs, Navajo The plat representing the of the Bureau of Indian Affairs, Navajo Regional Office. establishment of the southwest and Regional Office. The plat representing the northwest township corners and an The plat representing the establishment of the northeast and electronic control monument, Township establishment of the northwest northwest township corners and an 30 North, Range 8 East, accepted township corner and an electronic electronic control monument, Township September 9, 2010, and officially filed control monument, Township 34 North, 30 North, Range 7 East, accepted September 15, 2010, for Group 1059, Range 9 East, accepted January 24, 2011, September 9, 2010, and officially filed Arizona. and officially filed January 27, 2011, for September 15, 2010, for Group 1059, This plat was prepared at the request Group 1059, Arizona. Arizona. of the Bureau of Indian Affairs, Navajo This plat was prepared at the request This plat was prepared at the request Regional Office. of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo The plat representing the Regional Office. Regional Office. establishment of the northwest The plat of Township 31 North, Range The plat representing the township corner and an electronic establishment of the northwest 7 East, representing the establishment of control monument, Township 31 North, the northeast township corner and an township corner and an electronic Range 8 East, accepted September 9, control monument, Township 35 North, electronic control monument, and the 2010, and officially filed September 15, corner of sections 5, 6, 31 and 32, on the Range 9 East, accepted January 24, 2011, 2010, for Group 1059, Arizona. and officially filed January 27, 2011, for boundary between Townships 31 and 32 This plat was prepared at the request North, Range 7 East, accepted Group 1059, Arizona. of the Bureau of Indian Affairs, Navajo This plat was prepared at the request September 9, 2010, and officially filed Regional Office. September 15, 2010, for Group 1059, of the Bureau of Indian Affairs, Navajo The plat representing the Regional Office. Arizona. establishment of the northwest This plat was prepared at the request The plat representing the township corner and an electronic of the Bureau of Indian Affairs, Navajo establishment of the northwest control monument, Township 32 North, Regional Office. township corner and an electronic Range 8 East, accepted September 9, The plat representing the control monument, Township 36 North, 2010, and officially filed September 15, establishment of the northeast and Range 9 East, accepted January 24, 2011, 2010, for Group 1059, Arizona. northwest township corners and an and officially filed January 27, 2011, for This plat was prepared at the request electronic control monument, Township Group 1059, Arizona. 32 North, Range 7 East, accepted of the Bureau of Indian Affairs, Navajo Regional Office. This plat was prepared at the request September 9, 2010, and officially filed of the Bureau of Indian Affairs, Navajo September 15, 2010, for Group 1059, The plat representing the establishment of the northwest Regional Office. Arizona. 1 The plat representing the This plat was prepared at the request township corner, Township 32 ⁄2 North, Range 8 East, accepted October establishment of the northeast township of the Bureau of Indian Affairs, Navajo 1 29, 2010, and officially filed November corner, Township 33 ⁄2 North, Range 10 Regional Office. East, accepted January 3, 2011, and The plat representing the 24, 2010, for Group 1059, Arizona. This plat was prepared at the request officially filed January 7, 2011, for establishment of the northwest Group 1059, Arizona. township corner, Township 32 1⁄2 of the Bureau of Indian Affairs, Navajo This plat was prepared at the request North, Range 7 East, accepted October Regional Office. of the Bureau of Indian Affairs, Navajo 29, 2010, and officially filed November The plat representing the Regional Office. 24, 2010, for Group 1059, Arizona. establishment of the southeast, This plat was prepared at the request southwest, northeast and northwest The plat representing the of the Bureau of Indian Affairs, Navajo township corners and an electronic establishment of the northeast and Regional Office. control monument, Township 33 North, northwest township corners and an The plat representing the Range 8 East, accepted September 9, electronic control monument, Township establishment of the southwest and 2010, and officially filed September 15, 34 North, Range 10 East, accepted northwest township corners and an 2010, for Group 1059, Arizona. January 3, 2011, and officially filed electronic control monument, Township This plat was prepared at the request January 7, 2011, for Group 1059, 33 North, Range 7 East, accepted of the Bureau of Indian Affairs, Navajo Arizona. October 29, 2010, and officially filed Regional Office. This plat was prepared at the request November 24, 2010, for Group 1059, The plat representing the of the Bureau of Indian Affairs, Navajo Arizona. establishment of the northwest Regional Office. This plat was prepared at the request township corner and an electronic The plat representing the of the Bureau of Indian Affairs, Navajo control monument, Township 33 North, establishment of the northeast and Regional Office. Range 9 East, accepted October 29, northwest township corners and an The plat representing the dependent 2010, and officially filed November 24, electronic control monument, Township resurvey of a portion of the west 2010, for Group 1059, Arizona. 35 North, Range 10 East, accepted boundary, a portion of the subdivisional This plat was prepared at the request January 3, 2011, and officially filed lines and a portion of the subdivision of of the Bureau of Indian Affairs, Navajo January 7, 2011, for Group 1059, section 7, the subdivision of section 18 Regional Office. Arizona.

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This plat was prepared at the request This plat was prepared at the request officially filed January 7, 2011, for of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo Group 1059, Arizona. Regional Office. Regional Office. This plat was prepared at the request The plat representing the The plat representing the of the Bureau of Indian Affairs, Navajo establishment of the northeast and establishment of the northeast and Regional Office. northwest township corners and an northwest township corners, Township The plat representing the electronic control monument, Township 331⁄2 North, Range 12 East, accepted establishment of the northeast township 36 North, Range 10 East, accepted November 29, 2010, and officially filed corner, Township 35 North, Range 121⁄2 January 3, 2011, and officially filed December 1, 2010, for Group 1059, East, accepted January 3, 2011, and January 7, 2011, for Group 1059, Arizona. officially filed January 7, 2011, for Arizona. This plat was prepared at the request Group 1059, Arizona. This plat was prepared at the request of the Bureau of Indian Affairs, Navajo This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office. of the Bureau of Indian Affairs, Navajo Regional Office. The plat representing the Regional Office. establishment of the northeast and The plat representing the geographic The plat representing the northwest township corners and an positions of the township corners, establishment of an electronic control electronic control monument, Township Township 36 North, Range 12 1⁄2 East, monument, Township 33 North, Range 34 North, Range 12 East, accepted accepted January 3, 2011, and officially 11 East, accepted January 24, 2011, and November 29, 2010, and officially filed filed January 7, 2011, for Group 1059, officially filed January 27, 2011, for December 1, 2010, for Group 1059, Arizona. Group 1059, Arizona. Arizona. This plat was prepared at the request This plat was prepared at the request This plat was prepared at the request of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo Regional Office. Regional Office. Regional Office. The plat representing the dependent The plat representing the geographic The plat representing the resurvey of the south and east positions of township corners, establishment of the northeast and boundaries and a portion of the Township 331⁄2 North, Range 11 East, northwest township corners and an subdivisional lines and the subdivision accepted January 24, 2011, and officially electronic control monument, Township of sections 1 through 3 and 5 through filed January 27, 2011, for Group 1059, 35 North, Range 12 East, accepted 36, Township 22 North, Range 21 East, Arizona. November 29, 2010, and officially filed accepted June 8, 2010, and officially This plat was prepared at the request December 1, 2010, for Group 1059, filed June 11, 2010, for Group 1064, of the Bureau of Indian Affairs, Navajo Arizona. Arizona. Regional Office. This plat was prepared at the request This plat was prepared at the request The plat representing the of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo establishment of an electronic control Regional Office. Regional Office. monument, Township 34 North, Range The plat representing the The plat representing the dependent 11 East, accepted January 24, 2011, and establishment of the northeast and resurvey of the Ninth Standard Parallel officially filed January 27, 2011, for northwest township corners and an North (south boundary) and the east, Group 1059, Arizona. electronic control monument, Township west and north boundaries and the This plat was prepared at the request 36 North, Range 12 East, accepted survey of the subdivisional lines, of the Bureau of Indian Affairs, Navajo November 29, 2010, and officially filed Township 37 North, Range 30 East, Regional Office. December 1, 2010, for Group 1059, accepted July 20, 2010, and officially The plat representing the Arizona. filed July 23, 2010, for Group 1062, establishment of an electronic control This plat was prepared at the request Arizona. This plat was prepared at the request monument, Township 35 North, Range of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo 11 East, accepted January 24, 2011, and Regional Office. Regional Office. officially filed January 27, 2011, for The plat representing the The plat (in 2 sheets) representing the Group 1059, Arizona. establishment of the southeast and northeast township corners, Township dependent resurvey of the Ninth This plat was prepared at the request 33 North, Range 121⁄2 East, accepted Standard Parallel North (south of the Bureau of Indian Affairs, Navajo November 29, 2010, and officially filed boundary) and the north boundary and Regional Office. December 1, 2010, for Group 1059, the survey of the subdivisional lines and The plat representing the Arizona. the subdivision of section 19 and a establishment of an electronic control This plat was prepared at the request metes-and-bounds survey, Township 37 monument, Township 36 North, Range of the Bureau of Indian Affairs, Navajo North, Range 31 East, accepted July 20, 11 East, accepted January 24, 2011, and Regional Office. 2010, and officially filed July 23, 2010, officially filed January 27, 2011, for The plat representing the for Group 1062, Arizona. Group 1059, Arizona. establishment of the northeast township This plat was prepared at the request This plat was prepared at the request corner, Township 331⁄2 North, Range of the Bureau of Indian Affairs, Navajo of the Bureau of Indian Affairs, Navajo 121⁄2 East, accepted January 3, 2011, and Regional Office. Regional Office. officially filed January 7, 2011, for The plat (in 4 sheets) representing the The plat representing the Group 1059, Arizona. dependent resurvey of a portion of the establishment of the northeast and This plat was prepared at the request Gila and Salt River Principal Meridian northwest township corners and an of the Bureau of Indian Affairs, Navajo (the east boundary), a portion of the electronic control monument, Township Regional Office. south boundary, portions of General 33 North, Range 12 East, accepted The plat representing the Survey Nos. 12 (Lot 39), 187 (Lot 50), November 29, 2010, and officially filed establishment of the northeast township 267 (Lot 49), portions of Mineral Survey December 1, 2010, for Group 1059, corner, Township 34 North, Range 121⁄2 Nos. 853 (Lot 52), 1058 (Lot 55), 1111, Arizona. East, accepted January 3, 2011, and 1318, 1713, 1827, 1980, 2414, 2863,

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2908, 3032 and 3764, the survey of a Dated: February 7, 2011. announced on local radio stations prior portion of the subdivisional lines and a Stephen K. Hansen, to the meeting date. SRC meeting metes-and-bounds survey, Township 10 Chief Cadastral Surveyor of Arizona. location and dates may need to be North, Range 1 West, accepted August 5, [FR Doc. 2011–3263 Filed 2–11–11; 8:45 am] changed based on lack of quorum, 2010, and officially filed August 11, BILLING CODE 4310–32–P inclement weather or local 2010, for Group 1063, Arizona. circumstances. This plat was prepared at the request For Further Information On the Denali of the United States Forest Service. DEPARTMENT OF THE INTERIOR National Park SRC Meeting Contact: The plat representing the dependent Philip Hooge, Assistant Superintendent National Park Service resurvey of a portion of the and Amy Craver, Subsistence Manager, subdivisional lines, Township 41 North, [NPS–AKR–DENA] [9924–PYS] (907) 683–2231, Denali National Park Range 15 West, accepted January 4, and Preserve, P.O. Box 9, Denali Park, 2011, and officially filed January 20, National Park Service Alaska Region’s Alaska 99755, or Clarence Summers, 2011, for Group 1088, Arizona. Subsistence Resource Commission Subsistence Manager, NPS Alaska (SRC) Program Regional Office, at (907) 644–3603. This plat was prepared at the request of the Bureau of Land Management. AGENCY: National Park Service, Interior. Proposed SRC Meeting Agenda The plat representing the dependent ACTION: Notice of public meeting for the The proposed meeting agenda resurvey of the Base Line and a portion National Park Service Alaska Region’s includes the following: of the subdivisional lines and the survey Subsistence Resource Commission 1. Call to order of a metes-and-bounds survey in section (SRC) program. 2. SRC Roll Call and Confirmation of 36, Township 1 North, Range 24 West, Quorum SUMMARY: The Denali National Park SRC accepted November 15, 2010, and 3. Welcome and Introductions will meet to develop and continue work officially filed November 17, 2010, for 4. Approval of Minutes on National Park Service (NPS) Group 1084, Arizona. 5. Administrative Announcements subsistence hunting program This plat was prepared at the request 6. Approve Agenda recommendations and other related of the Bureau of Land Management. 7. Review SRC Purpose and Status of subsistence management issues. The Membership The plat representing the dependent NPS SRC program is authorized under 8. SRC Member Reports resurvey of a portion of the northeast Title VIII, Section 808 of the Alaska 9. Public and Other Agency Comments boundary of the Gila River Indian National Interest Lands Conservation 10. Federal Subsistence Board Update Reservation, a portion of the Act, Public Law 96–487, to operate in 11. Alaska Board of Game Update subdivisional lines, a portion of the accordance with the provisions of the 12. Old Business subdivision of section 1 and Tract 37, Federal Advisory Committee Act. and the subdivision of section 1, Public Availability of Comments: This a. Subsistence Uses of Horns, Antlers, Township 1 South, Range 1 East, meeting is open to the public and will Bones and Plants EA Update accepted December 2, 2010, and have time allocated for public b. SRC Chair’s Workshop 2010 officially filed December 7, 2010, for testimony. The public is welcome to 13. New Business Group 1072, Arizona. present written or oral comments to the a. Subsistence Manager Report This plat was prepared at the request SRC. This meeting will be recorded and b. Ranger Report of the Bureau of Indian Affairs, Western meeting minutes will be available upon c. Resource Management Program Regional Office. request from the park superintendent for Update 14. Public and other Agency The plat representing the dependent public inspection approximately six Comments resurvey of a portion of the weeks after each meeting. Before 15. SRC Work Session subdivisional lines, Township 4 South, including your address, telephone 16. Set Time and Place for next SRC Range 12 East, accepted August 3, 2010, number, e-mail address, or other Meeting and officially filed August 6, 2010, for personal identifying information in your 17. Adjournment Group 1040, Arizona. comment, you should be aware that This plat was prepared at the request your entire comment-including your Victor W. Knox, of the Bureau of Land Management. personal identifying information—may Deputy Regional Director, Alaska. A person or party who wishes to be made publicly available at any time. [FR Doc. 2011–3258 Filed 2–11–11; 8:45 am] While you can ask us in your comment protest against any of these surveys BILLING CODE 4310–PF–P must file a written protest with the to withhold your personal identifying Arizona State Director, Bureau of Land information from public review, we Management, stating that they wish to cannot guarantee that we will be able to DEPARTMENT OF THE INTERIOR protest. do so. Denali National Park SRC Meeting National Park Service A statement of reasons for a protest Date and Location: The Denali National may be filed with the notice of protest Park SRC will meet at the Cantwell [2280–665] to the State Director, or the statement of Community Center (Phone: 907–768– National Register of Historic Places; reasons must be filed with the State 2591) in Cantwell, Alaska on Saturday, Director within thirty (30) days after the Notification of Pending Nominations February 26, 2011, from 9 a.m. to 5 p.m. and Related Actions protest is filed. The meeting maybe rescheduled to FOR FURTHER INFORMATION CONTACT: occur on Tuesday, February 22, 2011, at Nominations for the following These plats will be available for the same time and location should a properties being considered for listing inspection in the Arizona State Office, quorum not be available on Saturday, or related actions in the National Bureau of Land Management, One North February 26, 2011. If the meeting date Register were received by the National Central Avenue, Suite 800, Phoenix, and location are changed, a notice will Park Service before January 8, 2011. Arizona 85004–4427. be published in local newspapers and Pursuant to §§ 60.13 or 60.15 of 36 CFR

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part 60, written comments are being MISSOURI MICHIGAN accepted concerning the significance of Jackson County Washtenaw County the nominated properties under the Burnette—Berry House, 1030 W 65th St, Chelsea Commercial Historic District, Main National Register criteria for evaluation. Kansas City, 11000023 St and adjacent sections of Middle, Park, Comments may be forwarded by United Jackson, East, and Orchard Sts, Chelsea, Johnson County States Postal Service, to the National 11000046 Register of Historic Places, National Jones Brothers Mule Barn, 101 N College [FR Doc. 2011–3193 Filed 2–11–11; 8:45 am] Park Service, 1849 C St., NW., MS 2280, Ave, Warrensburg, 11000045 BILLING CODE 4312–51–P Washington, DC 20240; by all other St. Louis Independent City carriers, National Register of Historic Castle Ballroom, 2839–2845 Olive St, St. Places, National Park Service,1201 Eye Louis (Independent City), 11000024 St., NW., 8th floor, Washington DC DEPARTMENT OF JUSTICE 20005; or by fax, 202–371–6447. Written NEW MEXICO or faxed comments should be submitted Bernalillo County Federal Bureau of Investigation by March 1, 2011. Immanuel Presbyterian Church, (Buildings Before including your address, phone Meeting of the CJIS Advisory Policy Designed by John Gaw Meem MPS) 114 Board number, e-mail address, or other Carlisle Boulevard SE, Albuquerque, personal identifying information in your 11000032 AGENCY: Federal Bureau of Investigation comment, you should be aware that NEW YORK (FBI), Justice. your entire comment—including your ACTION: Meeting notice. personal identifying information—may Rensselaer County be made publicly available at any time. Chapel and Cultural Center, 2125 Burdett SUMMARY: The purpose of this notice is While you can ask us in your comment Ave, Troy, 11000041 to announce the meeting of the Criminal to withhold your personal identifying Tompkins County Justice Information Services (CJIS) information from public review, we Advisory Policy Board (APB). The CJIS cannot guarantee that we will be able to Telluride House, 217 West Ave, Ithaca, 11000042 APB is a federal advisory committee do so. established pursuant to the Federal Westchester County Alexandra Lord, Advisory Committee Act (FACA). This Booth, Evangeline, House, 101 N Central meeting announcement is being Acting Chief, National Register of Historic Ave, Hartsdale, 11000040 Places/National Historic Landmarks Program. published as required by Section 10 of Witthoefft House, 11 Tallwood Rd, Armonk, the FACA. 11000039 ARIZONA The CJIS APB is responsible for Maricopa County PENNSYLVANIA reviewing policy issues and appropriate Temple Beth Israel, 122 E Culver St, Phoenix, Bucks County technical and operational issues related 11000043 Shelly School, (Educational Resources of to the programs administered by the Pima County Pennsylvania MPS) 130 Richlandtown Pike FBI’s CJIS Division, and thereafter, (SR 212), Richland Township, 11000037 making appropriate recommendations to Vail Post Office, Old, 13105 E Colossal Cave the FBI Director. The programs Rd, Vail, 11000044 VIRGINIA administered by the CJIS Division are ARKANSAS Arlington County the Integrated Automated Fingerprint Chicot County Winslow, Earle Micajah, House, (Streamline Identification System, Interstate Lake Village Commercial Historic District, Modern Houses in Arlington County, Va Identification Index, Law Enforcement Roughly bounded by Lakeshore Dr, Jackson 1936–1945 MPS) 2333 N Vernon St, Online, National Crime Information St, Chicot St, and Church St, Lake Village, Arlington, 11000028 Center, National Instant Criminal 11000025 Loudoun County Background Check System, National DELAWARE Crednal, 34500 Welbourne Rd, Middleburg, Incident-Based Reporting System, Law 11000034 Enforcement National Data Exchange, New Castle County Virts, William, House, 38670 Old Wheatland and Uniform Crime Reporting. Johnson—Morris House, 41 Upper Pike Creek Rd, Waterford, 11000027 The meeting will be open to the Rd, Newark, 11000036 public on a first-come, first-seated basis. Lynchburg Independent City ILLINOIS Any member of the public wishing to Diamond Hill Baptist Church, 1415 Grace St, file a written statement concerning the Coles County Lynchburg (Independent City), 11000026 CJIS Division’s programs or wishing to Virginia University of Lynchburg, 2058 Roytek, Richard, House, 3420 Richmond Ave, address this session should notify the Mattoon, 11000030 Garfield Ave, Lynchburg (Independent City), 11000035 CJIS Designated Federal Officer, R. Scott Cook County Trent at (304) 625–5263 at least 24 Washington County Brown, Roger, Home and Studio, 1926 N hours prior to the start of the session. Halsted St, Chicago, 11000029 Baker—St. John House, 18254 Providence Rd The notification should contain the Schurz, Carl, High School, 3601 N (Route 611), Abingdon, 11000033 requestor’s name, corporate designation, Milwaukee Ave, Chicago, 11000031 WISCONSIN and consumer affiliation or government designation along with a short statement MASSACHUSETTS Fond Du Lac County describing the topic to be addressed and Worcester County Tygert Street Historic District, Tygert St and the time needed for the presentation. A Athol High School, 494 School St, Athol, Spaulding Ave, generally bounded by Scott St and E Lane St, Ripon, 11000020 requestor will ordinarily be allowed no 11000022 more than 15 minutes to present a topic. South Union School, 21 Highland St, OTHER ACTIONS: In the interest of Southborough, 11000021 preservation, the comment period for the DATES AND TIMES: The APB will meet in Thule—Plummer Buildings, 180 and 184 following resource has been shortened to open session from 8:30 a.m. until 5 Main St, Worcester, 11000019 (3) three days. p.m., on June 2–3, 2011.

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ADDRESSES: The meeting will take place Investment Act (WIA) [29 U.S.C. NATIONAL AERONAUTICS AND at The Hyatt Regency Crown Center, 2911(h)(4)], notice is hereby given of the SPACE ADMINISTRATION 2345 McGhee Street, Kansas City, next meeting of the Native American [Notice: (11–114)] Missouri 64108, telephone (816) 421– Employment and Training Council 1234. (Council), as constituted under WIA. NASA Advisory Council; Science FOR FURTHER INFORMATION CONTACT: DATES: The meeting will begin at 1:30 Committee; Meeting Inquiries may be addressed to Ms. p.m. (Eastern Time) on Wednesday, AGENCY: National Aeronautics and Skeeter J. Murray; Management and March 2, 2011, and continue until 4:30 Space Administration. Program Assistant; Training and p.m. that day. The meeting will Systems Education Unit, Resources reconvene at 9 a.m. on Thursday, March ACTION: Notice of meeting. Management Section; FBI CJIS Division, 3, 2011, and adjourn at 4:30 p.m. that SUMMARY: In accordance with the Module C3, 1000 Custer Hollow Road, day. The period from 2:30 p.m. to 4:30 Federal Advisory Committee Act, Public Clarksburg, West Virginia 26306–0149; p.m. on March 2, 2011, will be reserved Law 92–463, as amended, the National telephone (304) 625–3518, facsimile for participation and presentations by Aeronautics and Space Administration (304) 625–5090. members of the public. (NASA) announces a meeting of the Dated: January 31, 2011. ADDRESSES: The meetings will be held at Science Committee of the NASA R. Scott Trent, the U.S. Bureau of Labor Statistics, Advisory Council (NAC). This CJIS Designated Federal Officer, Criminal Postal Square Building, 2 Massachusetts Committee reports to the NAC. The Justice Information Services Division, Federal Avenue, NE., Washington, DC 20212. Meeting will be held for the purpose of Bureau of Investigation. soliciting from the scientific community SUPPLEMENTARY INFORMATION: The [FR Doc. 2011–3103 Filed 2–11–11; 8:45 am] meeting will be open to the public. and other persons scientific and BILLING CODE 4410–02–M Members of the public not present may technical information relevant to submit a written statement on or before program planning. DATES: DATES: Thursday, March 3, DEPARTMENT OF JUSTICE March 1, 2011, to be included in the record of the meeting. Statements are to 2011, 8:30 a.m. to 5 p.m., and Friday, National Institute of Corrections be submitted to Mrs. Evangeline M. March 4, 2011, 8:30 a.m. to 2 p.m., Local Campbell, Designated Federal Official Time. Advisory Board Meeting (DFO), U.S. Department of Labor, 200 ADDRESSES: NASA Headquarters, 300 E Constitution Avenue, NW., Room S– Street, SW., Rooms 9H40 and 3H46 TIME AND DATE: 8 a.m. to 4:30 p.m. on 4209, Washington, DC 20210. Persons consecutively, Washington, DC 20546. Monday, March 7, 2011. who need special accommodations FOR FURTHER INFORMATION CONTACT: Ms. 8 a.m. to 4:30 p.m. on Tuesday, March should contact Mr. Craig Lewis at (202) Marian Norris, Science Mission 8, 2011. 693–3384, at least two business days Directorate, NASA Headquarters, PLACE: National Institute of Corrections, before the meeting. The formal agenda Washington, DC 20546, (202) 358–4452, 500 First Street, NW., Washington, DC will focus on the following topics: (1) fax (202) 358–4118, or 20534, 1 (800) 995–6423. U.S. Department of Labor, Employment [email protected]. STATUS: Open. and Training Program Year 2011 One SUPPLEMENTARY INFORMATION: The MATTERS TO BE CONSIDERED: Briefing on Year Training and Employment meeting will be open to the public up NIC Reports; Agency Reports; Quarterly Guidance Letter; (2) U.S. Department of to the capacity of the room. This Report by Office of Justice Programs. Labor Tribal Consultation Policy; (3) meeting is also available telephonically CONTACT PERSON FOR MORE INFORMATION: Native American Employment and and by WebEx. Any interested person Training Council Charter; (4) Transfer of Thomas Beauclair, Deputy Director, may call the USA toll free conference Grants Management Duties to the 202–307–3106, ext. 44254. call number 888–972–6406, pass code Regions Proposal; (5) Education Science Committee, to participate in Morris L. Thigpen, Measure Report and Recommendations; this meeting by telephone. The WebEx Director. (6) Election of Council Chair and Vice- link is https://nasa.webex.com/, [FR Doc. 2011–3097 Filed 2–11–11; 8:45 am] Chair; (7) New Council Member meeting number on March 3 is 992 389 BILLING CODE 4410–36–M Introduction and Briefing; (8) Council 193, and password $C2011Mar; the Update; (9) Council Workgroup Reports; meeting number on March 4 is 994 542 and (10) Council Recommendations. DEPARTMENT OF LABOR 061, and password $C2011Mar. The FOR FURTHER INFORMATION CONTACT: Mrs. agenda for the meeting includes the Employment and Training Campbell, DFO, Indian and Native following topics: Administration American Program, Employment and —Fiscal Year 2012 Budget Request Training Administration, U.S. —Launch Vehicle Costs Workforce Investment Act; Native Department of Labor, Room S–4209, 200 —Program and Subcommittee Updates Constitution Avenue, NW., Washington, American Employment and Training It is imperative that the meeting be DC 20210. Telephone number (202) Council held on these dates to accommodate the 693–3737 (VOICE) (this is not a toll-free scheduling priorities of the key AGENCY: Employment and Training number). Administration, U. S. Department of participants. Attendees will be Labor. Signed at Washington, DC, this 8th day of requested to sign a register and to February 2011. ACTION: Notice of meeting. comply with NASA security Jane Oates, requirements, including the SUMMARY: Pursuant to Section 10(a)(2) of Assistant Secretary, Employment and presentation of a valid picture ID, before the Federal Advisory Committee Act Training Administration. receiving an access badge. Foreign (FACA) (Pub. L. 92–463), as amended, [FR Doc. 2011–3189 Filed 2–11–11; 8:45 am] nationals attending this meeting will be and Section 166(h)(4) of the Workforce BILLING CODE 4510–FR–P required to provide a copy of their

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passport, visa, or resident alien card in or all of the following: Exemptions (5), February 23, 2011 8:30 a.m.–5 p.m. addition to providing the following (8), (9)(A)(ii) and 9(B). Closed Executive Session information no less than 10 working FOR FURTHER INFORMATION CONTACT: Reason for Late Notice: Due to days prior to the meeting: Full name; Mary Rupp, Secretary of the Board, administrative complications and the gender; date/place of birth; citizenship; Telephone: 703–518–6304. necessity to proceed with the review. visa/green card information (number, Mary Rupp, Reason for Closing: The work being type, expiration date); passport reviewed may include information of a Board Secretary. information (number, country, proprietary or confidential nature, expiration date); employer/affiliation [FR Doc. 2011–3381 Filed 2–10–11; 4:15 pm] including technical information; information (name of institution, BILLING CODE P financial data such as salaries; and address, country, telephone); title/ personal information concerning position of attendee. To expedite individuals associated with the center. admittance, attendees with U.S. NATIONAL SCIENCE FOUNDATION These matters are exempt under (4) and citizenship can provide identifying (6) of 5 U.S.C. 552b(c), of the Proposal Review for Physics; Notice of information 3 working days in advance Government in the Sunshine Act. by contacting Marian Norris via e-mail Meeting at [email protected] or by telephone at Dated: February 9, 2011. (202) 358–4452. In accordance with the Federal Suzanne H. Plimpton, Advisory Committee Act (Pub. L. 92– Reports Clearance Officer. Dated: February 7, 2011. 463, as amended), the National Science [FR Doc. 2011–3228 Filed 2–11–11; 8:45 am] P. Diane Rausch, Foundation announces the following Advisory Committee Management Officer, meeting: BILLING CODE 7555–01–P National Aeronautics and Space Name: Proposal Review for the Center Administration. for Magnetic Self-Organization in NATIONAL SCIENCE FOUNDATION [FR Doc. 2011–3180 Filed 2–11–11; 8:45 am] Laboratory and Astrophysical Plasmas BILLING CODE P (CMS0) Site Visit (1208). National Science Board; Sunshine Act Dates/Time: February 22, 2011, 8 Meetings; Impromptu Notice of Time & a.m.–6 p.m.; February 23, 2011, 8:30 Location Change NATIONAL CREDIT UNION a.m.–5 p.m. ADMINISTRATION Place: University of Wisconsin, The National Science Board’s Madison. Committee on Program and Plans, Sunshine Act Meeting Type of Meeting: Partially open. pursuant to NSF regulations (45 CFR Contact Person: Dr. C. Denise Part 614), the National Science TIME AND DATE: 10 a.m., Thursday, Caldwell, Deputy Division Director Foundation Act, as amended (42 U.S.C. February 17, 2011. (MPS/PHY), Rm. 1015, National Science 1862n–5), and the Government in the PLACE: Board Room, 7th Floor, Room Foundation, 4201 Wilson Blvd., Sunshine Act (5 U.S.C. 552b), hereby 7047. 1775 Duke Street (All visitors Arlington, VA 22230 (703) 292–7371. gives notice of an Impromptu Change in must use Diagonal Road Entrance) Purpose of Meeting: To provide regard to the scheduling of a meeting for Alexandria, VA 22314–3428. advice and recommendations the transaction of National Science STATUS: Open. concerning progress of the Center for Board business and other matters MATTERS TO BE CONSIDERED: Magnetic Self-Organization in specified, as follows: 1. Final Interpretive Ruling and Policy Laboratory and Astrophysical Plasmas ORIGINAL DATE AND TIME: Open Session, Statement 11–02, Corporate Federal (CMS0). Monday, February 14, at 1 p.m. to 3:30 Credit Union Chartering Guidelines. Agenda: p.m. Closed Session, Monday, February 2. Proposed Rule, Parts 741 and 751 14, at 3:30 p.m. to 4:15 p.m. of NCUA’s Rules and Regulations, Feb. 22, 2011 8 a.m.–2:45 p.m. Open NEW DATE AND TIME: Open Session, Incentive-Based Compensation Sessions Monday, February 14, at 12:15 p.m. to Arrangements. Refreshments & greetings (Pyle Center) 2:45 p.m. Closed Session, Monday, 3. Proposed Rule, Parts 703, 704, 709 Introduction (Ellen Zweibel, Denise February 14, at 5:15 p.m. to 6:15 p.m. and 742 of NCUA’s Rules and Caldwell) SUBJECT MATTER: No change. Regulations, Replacement or Removal of Overview of CMSO (Ellen Zweibel) References to Credit Ratings in NCUA Dynamos (Cary Forest/Fausto Cattaneo) STATUS: No change. Regulations. Momentum Transport (Hui Li/Mark ORIGINAL LOCATION: Room 1295 or 1235, 4. Interest Rate Ceiling Determination. Nornberg) National Science Foundation, 5. Insurance Fund Report. Reconnection (Amitava Bhattacharjee/ 4201Wilson Blvd., Arlington, VA 22230. RECESS: 11:15 a.m. Masaaki Yamada) NEW LOCATION: Room 1295. Public TIME AND DATE: 11:30 a.m., Thursday, Lunch with students & postdocs at Pyle overflow room for the open session will February 17, 2011. Center be located in room 130, National PLACE: Board Room, 7th Floor, Room Turbulence (Paul Terry, Leonid Science Foundation, 4201 Wilson Blvd., 7047, 1775 Duke Street, Alexandria, VA Malyshkin) Arlington, VA 22230. 22314–3428. MSO Outreach Programs (Ella Braden) VISITOR BADGE REQUIREMENTS: All STATUS: Closed. Feb. 22, 2011 2:45 p.m.–4 p.m. Closed visitors must report to the NSF visitor MATTERS TO BE CONSIDERED: Executive Session desk at the 9th and N. Stuart Streets 1. Creditor Claim and Insurance entrance to receive a visitor’s badge. Appeals (4). Closed pursuant to some or Feb. 22, 2011 2:45 p.m.–6 p.m. Open Public visitors must arrange for a all of the following: Exemptions (4) and Sessions visitor’s badge in advance. Call 703– (6). Poster Session (Home of Plasma 292–7000 or e-mail 2. Consideration of Supervisory Dynamo Experiment, Sterling Hall) [email protected] and leave Activities (2). Closed pursuant to some Tour of experiments (Chamberlin Hall) your name and place of business to

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request your badge, which will be ready in accordance with the requirements of Environmental Impacts of the Proposed for pick-up at the visitor’s desk on the Title 10, Code of Federal Regulations Action day of the meeting. (CFR), Part 51 (10 CFR Part 51). Based The historical review of licensed UPDATES AND POINT OF CONTACT: Please on the EA, the NRC has concluded that activities conducted at the Facility refer to the National Science Board a Finding of No Significant Impact shows that such activities involved use website http://www.nsf.gov/nsb for (FONSI) is appropriate with respect to of the following radionuclides with half- additional information and schedule the proposed action. The amendment lives greater than 120 days: natural updates (time, place, subject matter or will be issued to the Licensee following uranium and thorium mixtures. Prior to status of meeting) may be found at the publication of this FONSI and EA in performing the final status survey, the http://www.nsf.gov/nsb/notices/. Point the Federal Register. Licensee conducted decontamination of contact for this meeting is: Elizabeth II. Environmental Assessment activities, as necessary, in the areas of Strickland, National Science the Facility affected by these Foundation, 4201Wilson Blvd., Identification of Proposed Action radionuclides. Arlington, VA 22230. Telephone: (703) The proposed action would approve The Licensee conducted final status 292–7000. the Licensee’s February 24, 2009, surveys during October and November 2006; June, August, and September Daniel A. Lauretano, license amendment request, resulting in release of the Facility for unrestricted 2007; and February 2008. These surveys Counsel to the National Science Board. use. License No. STC–133 was issued on covered the affected areas of the facility. [FR Doc. 2011–3359 Filed 2–10–11; 4:15 pm] February 14, 1957, pursuant to 10 CFR The final status survey report was BILLING CODE 7555–01–P Part 40, and has been amended attached to the Licensee’s amendment periodically since that time. This request dated February 24, 2009. The license authorized the Licensee to have Licensee elected to demonstrate NUCLEAR REGULATORY unsealed source material for purposes of compliance with the radiological COMMISSION storage, sampling, repackaging, and criteria for unrestricted release as [Docket No. 04000341; NRC–2009–0539] transfer. specified in 10 CFR 20.1402 by The Facility is situated on 268 acres developing derived concentration Notice of Availability of Environmental and consists of warehouses and other guideline levels (DCGLs) for its Facility. Assessment and Finding of No office and support buildings. The The Licensee conducted site-specific Significant Impact For License Facility is located in a mixed rural and dose modeling using input parameters Amendment to Source Materials industrial area. Within the Facility, use specific to the Facility, which included License No. STC–133 for Unrestricted of licensed materials was confined to the soil’s site-specific physical Release of The Defense Logistics the locations as described in the properties. The Licensee thus Agency, DLA Strategic Materials Licensee’s Final Status Survey Report determined the maximum amount of Depot, in New Haven, IN dated January 2009. Locations included residual radioactivity on building outside storage areas covering 2300 surfaces, equipment, materials and soils AGENCY: Nuclear Regulatory square meters; warehouses 210–215 that will satisfy the NRC requirements Commission. covering 16,054 square meters; and in Subpart E of 10 CFR Part 20 for ACTION: Issuance of Environmental support buildings 136, 141, 145, and unrestricted release. The NRC Assessment and Finding of No 146. previously reviewed the Licensee’s Significant Impact for License On September 24, 2004, the Licensee methodology and proposed DCGLs, and Amendment. ceased licensed activities and initiated a concluded that the proposed DCGLs are survey and decontamination of the acceptable for use as release criteria at FOR FURTHER INFORMATION CONTACT: Facility. Based on the Licensee’s the Facility. The NRC’s approval of the Dennis Lawyer, Health Physicist, historical knowledge of the site and the Licensee’s proposed DCGLs was Commercial and R&D Branch, Division conditions of the Facility, the Licensee published in the Federal Register on of Nuclear Materials Safety, Region 1, determined that only routine December 8, 2009 (74 FR 64762). The 475 Allendale Road, King of Prussia, decontamination activities, in Licensee’s final status survey results Pennsylvania; telephone 610–337–5366; accordance with their NRC-approved, were below these DCGLs, and are thus fax number 610–337–5269 or by e-mail: operating radiation safety procedures, acceptable. [email protected]. were required. The Licensee was not The NRC staff had confirmatory SUPPLEMENTARY INFORMATION: required to submit a decommissioning surveys conducted during October 5–8, plan to the NRC because worker cleanup 2009. Some of the area results indicated I. Introduction activities and procedures were a need to perform further investigation The U.S. Nuclear Regulatory consistent with those approved for sampling. The Licensee completed Commission (NRC) is considering the routine operations (i.e., these additional sampling and mitigation and issuance of a license amendment to procedures could not increase the final surveys during July 2010. The NRC Source Materials License No. STC–133. potential health and safety impacts to staff conducted a follow up This license is held by Defense Logistics workers or the public). The Licensee confirmatory survey on July 22 and 23, Agency, DLA Strategic Materials (the conducted surveys of the Facility and 2010, and performed an inspection of Licensee), for its Depot located on State provided information to the NRC to the licensee’s sampling, mitigation, and Route 14 in New Haven, Indiana (the demonstrate that it meets the criteria in final status survey. None of the final Facility). Issuance of the amendment Subpart E of 10 CFR Part 20 for confirmatory sample results exceeded would authorize release of the Facility unrestricted release. the DCGLs established for the Facility. for unrestricted use. The Licensee Based on its review, the staff has requested this action in a letter dated Need for the Proposed Action determined that the affected February 24, 2009. The NRC has The Licensee has ceased conducting environment and any environmental prepared an Environmental Assessment licensed activities at the Facility, and impacts associated with the proposed (EA) in support of this proposed action seeks the unrestricted use of its Facility. action are bounded by the impacts

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evaluated by the ‘‘Generic specified in 10 CFR 20.1402 and that the Support of Rulemaking on Radiological Environmental Impact Statement in proposed action will not significantly Criteria for License Termination of Support of Rulemaking on Radiological impact the quality of the human NRC–Licensed Nuclear Facilities.’’ Criteria for License Termination of environment. 5. Defense Logistics Agency request NRC–Licensed Nuclear Facilities’’ letter dated February 24, 2009 Agencies and Persons Consulted (NUREG–1496) Volumes 1–3 [ML090630138] (ML042310492, ML042320379, and NRC provided a draft of this 6. Defense Logistics Agency ML042330385). Because the GEIS found Environmental Assessment to the deficiency response letter dated May 19, that there were no significant impacts Indiana State Department of Health for 2009 [ML091410397] for the facility that bounds the Facility, review on January 7, 2011. On January 7. Defense Logistics Agency the staff finds there were no significant 12, 2011, Indiana State Department of deficiency response letter dated July 27, environmental impacts from the use of Health, Radiological Health Program 2009 [ML092110028] radioactive material at the Facility. The responded by electronic mail. The State 8. Oak Ridge Institute for Science and NRC staff reviewed the docket file agreed with the conclusions of the EA Education Report dated February 2010 records and the final status survey and otherwise had no comments. [ML092800227] report to identify any non-radiological The NRC staff has determined that the 9. Defense Logistics Agency hazards that may have impacted the proposed action is of a procedural deficiency response letter dated April 8, environment surrounding the Facility. nature, and will not affect listed species 2010 [ML101030841] No such hazards or impacts to the or critical habitat. Therefore, no further 10. Defense Logistics Agency environment were identified. The NRC consultation is required under Section 7 additional information letter dated has identified no other radiological or of the Endangered Species Act. The October 21, 2010 [ML102950429] non-radiological activities in the area NRC staff has also determined that the 11. Defense Logistics Agency that could result in cumulative proposed action is not the type of additional information letter dated environmental impacts. activity that has the potential to cause November 10, 2010 [ML103200071] The NRC staff finds that the proposed effects on historic properties. Therefore, 12. Oak Ridge Institute for Science release of the Facility for unrestricted no further consultation is required and Education letter dated August 20, use and the termination of the NRC under Section 106 of the National 2010 [ML102430288] materials license is in compliance with Historic Preservation Act. If you do not have access to ADAMS, 10 CFR 20.1402. Based on its review, or if there are problems in accessing the the staff considered the impact of the III. Finding of No Significant Impact documents located in ADAMS, contact residual radioactivity at the Facility and The NRC staff has prepared this EA in the NRC Public Document Room (PDR) concluded that the proposed action will support of the proposed action. On the Reference staff at 1–800–397–4209, 301– not have a significant effect on the basis of this EA, the NRC finds that 415–4737, or by e-mail to quality of the human environment. there are no significant environmental [email protected]. These documents impacts from the proposed action, and may also be viewed electronically on Environmental Impacts of the that preparation of an environmental the public computers located at the Alternatives to the Proposed Action impact statement is not warranted. NRC’s PDR, O1 F21, One White Flint Due to the largely administrative Accordingly, the NRC has determined North, 11555 Rockville Pike, Rockville, nature of the proposed action, its that a Finding of No Significant Impact MD 20852. The PDR reproduction environmental impacts are small. is appropriate. contractor will copy documents for a Therefore, the only alternative the staff fee. IV. Further Information considered is the no-action alternative, Dated at Region 1, 475 Allendale Road, under which the staff would leave Documents related to this action, King of Prussia this 2nd day of February things as they are by simply denying the including the application for license 2011. amendment request. This no-action amendment and supporting For the Nuclear Regulatory Commission. alternative is not feasible because it documentation, are available James P. Dwyer, conflicts with 10 CFR 40.42, requiring electronically at the NRC’s Electronic Chief, Commercial and R&D Branch, Division that decommissioning of source material Reading Room at http://www.nrc.gov/ of Nuclear Materials Safety, Region 1. facilities be completed and approved by reading-rm/adams.html. From this site, [FR Doc. 2011–3226 Filed 2–11–11; 8:45 am] the NRC after licensed activities cease. you can access the NRC’s Agencywide BILLING CODE 7590–01–P The NRC’s analysis of the Licensee’s Document Access and Management final status survey data confirmed that System (ADAMS), which provides text the Facility meets the requirements of and image files of NRC’s public NUCLEAR REGULATORY 10 CFR 20.1402 for unrestricted release documents. The documents related to COMMISSION and the NRC has no reason not to this action are listed below, along with approve release of the Facility. their ADAMS accession numbers. [NRC–2011–0031] ‘‘ Additionally, denying the amendment 1. NUREG–1757, Consolidated Office of New Reactors; Interim Staff ’’ request would result in no change in NMSS Decommissioning Guidance; Guidance on Impacts of Construction 2. Title 10 Code of Federal current environmental impacts. The of New Nuclear Power Plants on Regulations, Part 20, Subpart E, environmental impacts of the proposed Operating Units at Multi-Unit Sites action and the no-action alternative are ‘‘Radiological Criteria for License therefore similar, and the no-action Termination;’’ AGENCY: Nuclear Regulatory alternative is accordingly not further 3. Title 10, Code of Federal Commission (NRC). considered. Regulations, Part 51, ‘‘Environmental ACTION: Solicitation of public comment. Protection Regulations for Domestic Conclusion Licensing and Related Regulatory SUMMARY: The NRC staff is soliciting The NRC staff has concluded that the Functions;’’ and public comment on its proposed Interim proposed action is consistent with the 4. NUREG–1496, ‘‘Generic Staff Guidance (ISG) COL–ISG–022 NRC’s unrestricted release criteria Environmental Impact Statement in entitled ‘‘Impacts of Construction of

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New Nuclear Power Plants on Operating comments to remove any identifying or RAILROAD RETIREMENT BOARD Units at Multi-Unit Sites’’ (Agencywide contact information, and therefore, they Documents Access and Management should not include any information in Proposed Collection; Comment System (ADAMS) Accession No. their comments that they do not want Request ML093440252). Through this ISG, the publicly disclosed. SUMMARY: In accordance with the NRC staff provides guidance for Federal Rulemaking Web site: Go to requirement of Section 3506(c)(2)(A) of assessing combined license (COL) http://www.regulations.gov and search the Paperwork Reduction Act of 1995 applicant compliance with the for documents filed under Docket ID: which provides opportunity for public requirements of Title 10 of the Code of NRC–2011–0031. Address questions comment on new or revised data Federal Regulations, Section about NRC dockets to Carol Gallagher at collections, the Railroad Retirement 52.79(a)(31) (10 CFR 52.79(a)(31)). This 301–492–3668; e-mail at Board (RRB) will publish periodic regulation requires applicants for a COL [email protected]. intending to construct and operate new summaries of proposed data collections. Comments are invited on: (a) Whether nuclear power plants (NPPs) on multi- Mail comments to: Cindy Bladey, the proposed information collection is unit sites to provide an evaluation of the Chief, Rules, Announcements and necessary for the proper performance of potential hazards to structures, systems, Directives Branch (RADB), Division of the functions of the agency, including and components (SSCs) important to Administrative Services, Office of whether the information has practical safety for the operating units resulting Administration, Mail Stop: TWB–05– utility; (b) the accuracy of the RRB’s from construction activities. The NRC 01M, U.S. Nuclear Regulatory estimate of the burden of the collection staff issues COL–ISGs to facilitate timely Commission, Washington, DC 20555– of the information; (c) ways to enhance implementation of current staff 0001, or by fax to RADB at 301–492– the quality, utility, and clarity of the guidance and to facilitate activities 3446. information to be collected; and (d) associated with review of applications The NRC ADAMS provides text and ways to minimize the burden related to for COLs by the Office of New Reactors image files of NRC’s public documents. the collection of information on (NRO). This ISG supplements the These documents may be accessed respondents, including the use of guidance contained in Regulatory Guide through the NRC’s Public Electronic automated collection techniques or (RG) 1.206, Revision 0, ‘‘Combined Reading Room on the Internet at http:// other forms of information technology. License Applications for Nuclear Power www.nrc.gov/reading-rm/adams.html. 1. Title and Purpose of information Plants (LWR Edition).’’ In addition, this Persons who do not have access to collection: Financial Disclosure ISG supplements the guidance provided ADAMS or who encounter problems in Statement: OMB 3220–0127. Under for NRC staff review of COL accessing the documents located in Section 10 of the Railroad Retirement applications contained in NUREG–0800, ADAMS should contact the NRC Public Act and Section 2(d) of the Railroad ‘‘Standard Review Plan for the Review of Document Room reference staff by Unemployment Insurance Act, the RRB Safety Analysis Reports for Nuclear telephone at 1–800–397–4209, 301– may recover overpayments of annuities, Power Plants (SRP),’’ Chapter 1.0, dated 415–4737, or by e-mail at pensions, death benefits, unemployment November 2007. The NRC staff intends [email protected]. benefits, and sickness benefits that were to incorporate the final approved COL– made erroneously. An overpayment may ISG–022 into the next revision of RG FOR FURTHER INFORMATION CONTACT: Mr. be waived if the beneficiary was not at 1.206 and NUREG–0800 SRP Chapter William F. Burton, Chief, Rulemaking fault in causing the overpayment and 1.0. and Guidance Development Branch, recovery would cause financial DATES: Comments must be filed no later Division of New Reactor Licensing, hardship. The regulations for the than 30 days from the date of Office of New Reactors, U.S. Nuclear recovery and waiver of erroneous publication of this notice in the Federal Regulatory Commission, Washington, payments are contained in 20 CFR part Register. Comments received after this DC 20555–0001; telephone at 301–415– 255 and CFR part 340. date will be considered, if it is practical 6332 or e-mail at The RRB utilizes Form DR–423, to do so, but the Commission is able to [email protected]. Financial Disclosure Statement, to ensure consideration only for comments obtain information about the overpaid SUPPLEMENTARY INFORMATION: The received on or before this date. beneficiary’s income, debts, and agency posts its issued staff guidance in ADDRESSES: You may submit comments expenses if that person indicates that the agency external web page (http:// by any one of the following methods. (s)he cannot make restitution for the www.nrc.gov/reading-rm/doc- Please include Docket ID: NRC–2011– overpayment. The information is used collections/isg/). 0031 in the subject line of your to determine if the overpayment should comments. Comments submitted in The NRC staff is issuing this notice to be waived as wholly or partially writing or in electronic form will be solicit public comments on the uncollectible. If waiver is denied, the posted on the NRC Web site and on the proposed COL–ISG–022. After the NRC information is used to determine the Federal rulemaking Web site at http:// staff considers any public comments, it size and frequency of installment www.regulations.gov. Because your will make a determination regarding the payments. The beneficiary is made comments will not be edited to remove proposed COL–ISG–022. aware of the overpayment by letter and any identifying or contact information, Dated at Rockville, Maryland, this 26th day is offered a variety of methods for the NRC cautions you against including of January 2011. recovery. One response is requested of any information in your submission that each respondent. Completion is For the Nuclear Regulatory Commission. you do not want to be publicly voluntary. However, failure to provide disclosed. William F. Burton, the requested information may result in The NRC requests that any party Chief, Rulemaking and Guidance a denial of the waiver request. soliciting or aggregating comments Development Branch, Division of New Reactor The RRB is proposing revisions to received from other persons for Licensing, Office of New Reactors. Form DR–423 for clarification purposes submission to the NRC inform those [FR Doc. 2011–3223 Filed 2–11–11; 8:45 am] that include the addition of items persons that the NRC will not edit their BILLING CODE 7590–01–P related to employment, income,

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monthly household expenses, and accurate view of each respondent’s impacting formatting and editorial summaries of debts and assets. The new financial circumstance. Non-burden changes are also proposed. items are intended to provide a more

THE ESTIMATED ANNUAL RESPONDENT BURDEN ISASFOLLOWS: ESTIMATE OF ANNUAL RESPONDENT BURDEN

Annual Time Burden Form No.(s) responses (min) (hrs)

DR–423 ...... 1,200 105 2,100

2 Title and Purpose of information whose entitlement is based upon having requirements are prescribed in 20 CFR collection: Statement Regarding a stepchild of the employee in care, or 222.50–57. Contributions and Support of Children: on an individual seeking a child’s In order to correctly determine if an OMB 3220–0195. annuity as a stepchild of an employee. applicant is entitled to a child’s annuity Section 2(d)(4) of the Railroad Therefore, depending on the employee based on actual dependency, the RRB Retirement Act (RRA), provides, in part, for at least one-half support is a uses Form G–139, Statement Regarding that a child is deemed dependent if the condition affecting eligibility for conditions set forth in Section increasing an employee or spouse Contributions and Support of Children, 202(d)(3),(4) and (9) of the Social annuity under the social security overall to obtain financial information needed Security Act are met. Section 202(d)(4) minimum provisions on the basis of the to make a comparison between the of the Social Security Act, as amended presence of a dependent child, the amount of support received from the by Public Law 104–121, requires as a employee’s natural child in limited railroad employee and the amount condition of dependency, that a child situations, adopted children, received from other sources. Completion receives one-half of his or her support stepchildren, grandchildren and step- is required to obtain a benefit. One from the stepparent. This dependency grandchildren and equitably adopted response is required of each respondent. impacts upon the entitlement of a children. The regulations outlining The RRB proposes no changes to Form spouse or survivor of an employee child support and dependency G–139.

THE ESTIMATED ANNUAL RESPONDENT BURDEN ISASFOLLOWS: ESTIMATE OF ANNUAL RESPONDENT BURDEN

Annual Time Burden Form No.(s) responses (min) (hrs)

G–139 ...... 500 60 500

Additional Information or Comments: SECURITIES AND EXCHANGE from the underwriter or dealer. The To request more information or to COMMISSION Rule 173 notice is not publicly obtain a copy of the information available. We estimate that it takes collection justification, forms, and/or Proposed Collection; Comment approximately 0.01 hour per response to supporting material, please call the RRB Request provide the information required under Clearance Officer at (312) 751–3363 or Upon Written Request; Copies Available Rule 173 and that the information is send an e-mail request to From: Securities and Exchange filed by approximately 5,338 [email protected]. Commission, Office of Investor respondents approximately 43,546 times a year for a total of 232,448,548 Comments regarding the information Education and Advocacy, Washington, DC 20549–0213. responses. We estimate that the total collection should be addressed to annual reporting burden for Rule 173 is Patricia A. Henaghan, Railroad Extension: Rule 173, OMB Control No. 3235– 2,324,485 hours (0.01 hours per Retirement Board, 844 North Rush 0618, SEC File No. 270–557. response × 232,448,548 responses). Street, Chicago, Illinois 60611–2092 or Notice is hereby given that, pursuant Written comments are invited on: (a) [email protected] and to the to the Paperwork Reduction Act of 1995 Whether this proposed collection of OMB Desk Officer for the RRB, at the (44 U.S.C. 3501 et seq.), the Securities information is necessary for the Office of Management and Budget, and Exchange Commission performance of the functions of the Room 10230, New Executive Office (‘‘Commission’’) is soliciting comments agency, including whether the Building, Washington, DC 20503. on the collection of information information will have practical utility; Charles Mierzwa, summarized below. The Commission (b) the accuracy of the agency’s estimate of the burden imposed by the Clearance Officer. plans to submit this existing collection of information to the Office of collections of information; (c) ways to [FR Doc. 2011–3289 Filed 2–11–11; 8:45 am] Management and Budget for approval. enhance the quality, utility, and clarity BILLING CODE 7905–01–P Securities Act Rule 173 (17 CFR of the information collected; and (d) 230.173) provides a notice of ways to minimize the burden of the registration to investors who purchased collection of information on securities in a registered offering under respondents, including through the use the Securities Act of 1933 (15 U.S.C. 77a of automated collection techniques or et seq.). A Rule 173 notice must be other forms of information technology. provided by underwriter or dealer to Consideration will be given to each investor who purchased securities comments and suggestions submitted in

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writing within 60 days of this information will have practical utility; amend the forms of letters contained in publication. (b) the accuracy of the agency’s estimate those rules to reflect the recent Please direct your written comment to of the burden imposed by the collection amendments to the Exchange’s broker Thomas Bayer, Chief Information of information; (c) ways to enhance the voting rules in relation to executive Officer, Securities and Exchange quality, utility, and clarity of the compensation proposals. The text of the Commission, C/O Remi Pavlik-Simon, information collected; and (d) ways to proposed rule change is available at the 6432 General Green Way, Alexandria, minimize the burden of the collection of Exchange, the Commission’s Public Virginia 22312; or send an e-mail to: information on respondents, including Reference Room, and http:// [email protected]. through the use of automated collection www.nyse.com. Dated: February 7, 2011. techniques or other forms of information II. Self-Regulatory Organization’s Cathy H. Ahn, technology. Consideration will be given Statement of the Purpose of, and Deputy Secretary. to comments and suggestions submitted Statutory Basis for, the Proposed Rule in writing within 60 days of this [FR Doc. 2011–3187 Filed 2–11–11; 8:45 am] Change publication. BILLING CODE 8011–01–P Please direct your written comment to In its filing with the Commission, the Thomas A. Bayer, Chief Information self-regulatory organization included Officer, Securities and Exchange statements concerning the purpose of, SECURITIES AND EXCHANGE and basis for, the proposed rule change COMMISSION Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, and discussed any comments it received Proposed Collection; Comment Virginia 22312; or send an e-mail to: on the proposed rule change. The text Request [email protected]. of those statements may be examined at the places specified in Item IV below. Upon Written Request; Copies Available Dated: February 7, 2011. The Exchange has prepared summaries, From: Securities and Exchange Cathy H. Ahn, set forth in sections A, B, and C below, Commission, Office of Investor Deputy Secretary. of the most significant parts of such Education and Advocacy, [FR Doc. 2011–3188 Filed 2–11–11; 8:45 am] statements. Washington, DC 20549–0213. BILLING CODE 8011–01–P Extension: A. Self-Regulatory Organization’s Rule 433, OMB Control No. 3235– Statement of the Purpose of, and Statutory Basis for, the Proposed Rule 0617, SEC File No. 270–558. SECURITIES AND EXCHANGE Change Notice is hereby given that, pursuant COMMISSION to the Paperwork Reduction Act of 1995 1. Purpose (44 U.S.C. 3501 et seq.), the Securities [Release No. 34–63855; File No. SR–NYSE– 2011–02] The Exchange recently amended and Exchange Commission Exchange Rule 452 and Section 402.08 (‘‘Commission’’) is soliciting comments Self-Regulatory Organizations; New of the Manual to provide that brokers on the collections of information York Stock Exchange LLC; Notice of which are record holders of shares held summarized below. The Commission Filing and Immediate Effectiveness of in client accounts will no longer be plans to submit this existing collection Proposed Rule Change Amending the permitted to vote those shares on of information to the Office of Forms of Broker Letters Set Forth in matters relating to executive Management and Budget for approval. Exchange Rule 451 and Sections compensation.3 This amendment was Rule 433 (17 CFR 230.433) governs 905.02 and 905.03 of the Exchange’s made in accordance with the the use and filing of free writing Listed Company Manual requirements of Section 957 of the prospectuses under the Securities Act of Dodd-Frank Wall Street Reform and 1933 (15 U.S.C. 77a et seq.). The February 7, 2011. Consumer Protection Act (the ‘‘Dodd- purpose of Rule 433 is to reduce the Pursuant to Section 19(b)(1) of the Frank Act’’). restrictions on communications that a Securities Exchange Act of 1934 Supplementary Material .20 to company can make to investors during (‘‘Act’’),1 and Rule 19b–4 2 thereunder, Exchange Rule 451 and Sections 905.01, a registered offering of its securities, notice is hereby given that on January 905.02 and 905.03 contain specimens of while maintaining a high level of 26, 2011, New York Stock Exchange letters containing the information and investor protection. A free writing LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with instructions required pursuant to the prospectus meeting the conditions of the Securities and Exchange proxy rules to be given by NYSE Rule 433(d)(1) must be filed with the Commission (the ‘‘Commission’’) the member organizations to clients where Commission and is publicly available. proposed rule change as described in the member organization is the record We estimate that it takes approximately Items I and II below, which Items have holder of shares beneficially owned by 1.3 burden hours per response to been prepared by the Exchange. The those clients in the circumstances where prepare a free writing prospectus and Commission is publishing this notice to a broker (i) may vote on all proposals that the information is filed by 2,906 solicit comments on the proposed rule without voting instructions (Section respondents approximately 1.25 times a change from interested persons. 905.01), (ii) may not vote on any year for a total of 3,633 responses. We I. Self-Regulatory Organization’s proposals without instructions (Section estimate that 25% of the 1.3 burden 905.02), and (iii) may vote on certain hours per response (0.32 hours) is Statement of the Terms of Substance of the Proposed Rule Change but not all proposals without prepared by the company for total instructions (Section 905.03). These annual reporting burden of 1,163 hours The Exchange proposes to amend × letters are shown as examples and not (0.32 hours 3,633 responses). Exchange Rule 451 and Sections 905.02 as prescribed forms. Member Written comments are invited on: and 905.03 of the Exchange’s Listed organizations are permitted to adapt the (a) Whether this proposed collection of Company Manual (the ‘‘Manual’’) to information is necessary for the 3 See Securities Exchange Act Release No. 62874 performance of the functions of the 1 15 U.S.C. 78s(b)(1). (September 9, 2011) 75 FR 56152 (September 15, agency, including whether the 2 17 CFR 240.19b–4. 2011) (SR–NYSE–2011–59).

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form of these letters for their own not designed to permit unfair Commission shall institute proceedings purposes provided all of the required discrimination between customers, to determine whether the proposed rule information and instructions are clearly issuers, brokers, or dealers. The change should be approved or enumerated in letters to clients. Exchange believes that the proposed disapproved. The Exchange is concerned that many amendments are consistent with the IV. Solicitation of Comments shareholders receiving proxy materials investor protection objectives of the Act from their brokers for meetings in that their sole purpose is to explain Interested persons are invited to scheduled after effectiveness of the to shareholders the implications of submit written data, views, and amendments to the NYSE broker voting failing to provide voting instructions to arguments concerning the foregoing, rules in relation to executive their brokers, thereby enabling them to including whether the proposed rule compensation proposals will not be make a more informed decision with change is consistent with the Act. aware of those amendments and may respect to the exercise of their voting Comments may be submitted by any of therefore assume that the broker as rights. the following methods: record holder will vote their shares on B. Self-Regulatory Organization’s Electronic Comments such proposals if they do not return Statement on Burden on Competition voting instructions to their broker. The • Use the Commission’s Internet NYSE believes it is important for as The Exchange does not believe that comment form (http://www.sec.gov/ many shares as possible to be voted on the proposed rule change will impose rules/sro.shtml); or such proposals and, therefore, believes any burden on competition that is not • Send an e-mail to rule- it is important to educate retail investors necessary or appropriate in furtherance [email protected]. Please include File with respect to the implications of their of the purposes of the Act. Number SR–NYSE–2011–02 on the subject line. failure to return voting instructions C. Self-Regulatory Organization’s under the amended rules. Consequently, Statement on Comments on the Paper Comments the Exchange proposes to amend the Proposed Rule Change Received From • Send paper comments in triplicate forms of letters provided for use in Members, Participants or Others connection with meetings where the to Elizabeth M. Murphy, Secretary, broker may vote on none of the No written comments were solicited Securities and Exchange Commission, proposals before the meeting and or received with respect to the proposed 100 F Street, NE., Washington, DC meetings where the broker may vote on rule change. 20549–1090. some but not all of the proposals before III. Date of Effectiveness of the All submissions should refer to File the meeting. The proposed amendments Proposed Rule Change and Timing for Number SR–NYSE–2011–02. This file will insert language in those forms to Commission Action number should be included on the alert beneficial holders that brokers will subject line if e-mail is used. To help the no longer be able to vote uninstructed Because the proposed rule change: Commission process and review your shares on executive compensation (i) Does not significantly affect the comments more efficiently, please use matters. To limit the length of the protection of investors or the public only one method. The Commission will letters, the Exchange proposes to modify interest; (ii) does not impose any post all comments on the Commission’s language previously added with respect significant burden on competition; and Internet Web site (http://www.sec.gov/ to the fact that brokers could no longer (iii) does not become operative for 30 rules/sro.shtml). Copies of the vote uninstructed shares on the election days after the date of the filing, or such submission, all subsequent of directors for meetings scheduled after shorter time as the Commission may amendments, all written statements January 1, 2010.4 References to the new designate if consistent with the with respect to the proposed rule treatment of executive compensation protection of investors and the public change that are filed with the proposals and director elections will be interest, provided that the self- Commission, and all written combined. regulatory organization has given the communications relating to the Commission written notice of its intent proposed rule change between the 2. Statutory Basis to file the proposed rule change at least Commission and any person, other than The Exchange believes that the five business days prior to the date of those that may be withheld from the proposed rule change is consistent with filing of the proposed rule change or public in accordance with the Section 6(b) 5 of the Act, in general, and such shorter time as designated by the provisions of 5 U.S.C. 552, will be 7 furthers the objectives of Section 6(b)(5) Commission, the proposed rule change available for Web site viewing and of the Act,6 in particular in that it is has become effective pursuant to printing in the Commission’s Public designed to promote just and equitable Section 19(b)(3)(A) of the Exchange Reference Room, 100 F Street, NE., 8 9 principles of trade, to foster cooperation Act and Rule 19b–4(f)(6) thereunder. Washington, DC 20549, on official and coordination with persons engaged At any time within 60 days of the business days between the hours of 10 in regulating, clearing, settling, filing of the proposed rule change, the a.m. and 3 p.m. Copies of the filing also processing information with respect to, Commission summarily may will be available for inspection and and facilitating transactions in temporarily suspend such rule change if copying at the principal office of the securities, to remove impediments to it appears to the Commission that such Exchange. All comments received will and perfect the mechanism of a free and action is necessary or appropriate in the be posted without change; the open market and a national market public interest, for the protection of Commission does not edit personal system, and, in general, to protect investors, or otherwise in furtherance of identifying information from investors and the public interest, and is the purposes of the Act. If the submissions. You should submit only Commission takes such action, the information that you wish to make 4 See Securities Exchange Act Release No. 61046 available publicly. All submissions (November 20, 2009), 74 FR 62849 (December 1, 7 The Commission notes that the Exchange has 2009) (SR–NYSE–2009–114). satisfied the five-day pre-filing requirement. should refer to File Number SR–NYSE– 5 15 U.S.C. 78f(b). 8 15 U.S.C. 78s(b)(3)(A). 2011–02 and should be submitted on or 6 15 U.S.C. 78f(b)(5). 9 17 CFR 240.19b–4(f)(6). before March 7, 2011.

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For the Commission, by the Division of distributor of Creation Units for the participation in, or are secured by and Trading and Markets, pursuant to delegated Fund on an agency basis. payable from, mortgage loans on real authority.10 The investment objective of the ETF property. Cathy H. Ahn, is maximum current income, consistent Additional information regarding the Deputy Secretary. with preservation of capital and daily Fund and the Shares, the investment [FR Doc. 2011–3177 Filed 2–11–11; 8:45 am] liquidity. Under normal circumstances, strategies, risks, creation and BILLING CODE 8011–01–P the ETF will invest primarily in short- redemption procedures, fees, portfolio term, investment grade fixed income holdings and disclosure policies, securities. Typically, the ETF will invest distributions and taxes, availability of SECURITIES AND EXCHANGE in money market securities and short- information, trading rules and halts, and COMMISSION term debt securities, including U.S. surveillance procedures, among other [Release No. 34–63856; File No. SR– treasuries and agencies, corporate and things, can be found in the Registration NYSEArca–2010–117] bank obligations, asset backed and Statement and in the Notice, as mortgage backed instruments, applicable.8 commercial paper and other highly Self-Regulatory Organizations; NYSE III. Discussion and Commission’s rated, short maturity securities. While Arca, Inc.; Order Approving a Findings Proposed Rule Change To List and the ETF may invest in securities of any Trade Shares of the Grail Western maturity, under normal circumstances, The Commission has carefully Asset Ultra Short Duration ETF the average duration of the portfolio is reviewed the proposed rule change and typically expected to be one year or less. finds that it is consistent with the February 7, 2011. Duration is a measure of the underlying requirements of Section 6 of the Act 9 I. Introduction portfolio’s price sensitivity to changes and the rules and regulations in interest rates. thereunder applicable to a national On December 13, 2010, NYSE Arca, The ETF invests primarily in securities exchange.10 In particular, the Inc. (‘‘Exchange’’) filed with the investment grade securities (Baa or Commission finds that the proposal is Securities and Exchange Commission higher by Moody’s; BBB or higher by consistent with Section 6(b)(5) of the (‘‘Commission’’), pursuant to Section Standard & Poor’s) that are rated by at Act,11 which requires, among other 19(b)(1) of the Securities Exchange Act least one nationally recognized things, that the Exchange’s rules be of 1934 (‘‘Act’’) 1 and Rule 19b–4 statistical rating organization rating that designed to promote just and equitable thereunder,2 a proposed rule change to security or, if unrated, determined by principles of trade, to remove list and trade shares (‘‘Shares’’) of the Western Asset to be of comparable impediments to and perfect the Grail Western Asset Ultra Short quality. The ETF may invest only in mechanism of a free and open market Duration ETF (‘‘ETF’’ or ‘‘Fund’’) under U.S. dollar-denominated securities. and a national market system, and, in NYSE Arca Equities Rule 8.600. The The ETF may invest in derivative general, to protect investors and the proposed rule change was published for instruments, such as futures and interest public interest. The Commission notes comment in the Federal Register on rate, total return and credit default that the Shares must comply with the December 28, 2010.3 The Commission swaps.5 The ETF will not invest in non- requirements of NYSE Arca Equities received no comments on the proposal. U.S. equity securities. Rule 8.600 to be listed and traded on the This order grants approval of the The ETF may not invest more than Exchange. proposed rule change. 15% of its net assets in: (1) Illiquid The Commission finds that the II. Description of the Proposal securities; 6 and (2) unregistered proposal to list and trade the Shares on securities, including Rule 144A the Exchange is consistent with Section The Exchange proposes to list and 12 trade the Shares of the Fund under securities (which include time deposits 11A(a)(1)(C)(iii) of the Act, which sets NYSE Arca Equities Rule 8.600. The and repurchase agreements that mature forth Congress’ finding that it is in the 7 ETF will be an actively managed in more than seven days). public interest and appropriate for the exchange traded fund and is a series of The ETF may invest in mortgage- or protection of investors and the Grail Advisors ETF Trust (‘‘Trust’’). The other asset-backed securities. Mortgage maintenance of fair and orderly markets Trust is registered with the Commission backed securities in which the Fund to assure the availability to brokers, as an investment company.4 Grail invests will be investment grade. dealers, and investors of information Advisors, LLC is the Fund’s investment Mortgage-related securities include with respect to quotations for and manager (‘‘Manager’’). Western Asset mortgage pass-through securities, transactions in securities. Quotation and Management Company is the sub- collateralized mortgage obligations last-sale information regarding the adviser (‘‘Western Asset’’ or ‘‘Sub- (‘‘CMOs’’), commercial mortgage-backed Shares will be disseminated through the Adviser’’) of the ETF. The Bank of New securities, mortgage dollar rolls, CMO facilities of the Consolidated Tape York Mellon Corporation is the residuals, stripped mortgage-backed Association. In addition, an estimated administrator, Fund accountant, transfer securities and other securities that value, defined in NYSE Arca Equities agent and custodian for the ETF. ALPS directly or indirectly represent a Rule 8.600 as the Portfolio Indicative Distributors, Inc. serves as the Value (‘‘PIV’’) that reflects an estimated 5 Investments in derivatives must be consistent intraday value of the ETF’s portfolio, with the ETF’s investment objective and may only will be updated and disseminated by 10 17 CFR 200.30–3(a)(12). be used to manage risk and not to enhance leverage. 1 15 U.S.C. 78s(b)(1). 6 For this purpose, ‘‘illiquid securities’’ are 8 2 17 CFR 240.19b–4. securities that the ETF may not sell or dispose of See Notice and Registration Statement, supra 3 See Securities Exchange Act Release No. 63581 within seven days in the ordinary course of notes 3 and 4. (December 20, 2010), 75 FR 81692 (‘‘Notice’’). business at approximately the amount at which the 9 15 U.S.C. 78f. 4 See Preliminary Prospectus on Form N–1A for ETF has valued the securities. 10 In approving this proposed rule change, the the Trust, dated August 31, 2010 (File Nos. 333– 7 See e-mail from Michael Cavalier, Chief Commission notes that it has considered the 148082 and 811–22154) (‘‘Registration Statement’’). Counsel, NYSE Euronext, to Christopher W. Chow, proposed rule’s impact on efficiency, competition, The descriptions of the ETF and the Shares Special Counsel, and Andrew Madar, Senior and capital formation. See 15 U.S.C. 78c(f). contained herein are based on information in the Special Counsel, Commission, dated February 2, 11 17 U.S.C. 78f(b)(5). Registration Statement. 2011. 12 15 U.S.C. 78k–1(a)(1)(C)(iii).

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one or more major market data vendors represents that the Manager and the ETP Holders deliver a prospectus to at least every 15 seconds during the Sub-Adviser each is affiliated with a investors purchasing newly issued NYSE Arca Core Trading Session of broker-dealer and has implemented a Shares prior to or concurrently with the 9:30 a.m. to 4 p.m. Eastern Time (‘‘ET’’). ‘‘fire wall’’ with respect to the affiliated confirmation of a transaction; and (f) On each business day, before broker-dealer regarding access to trading information. commencement of trading in Shares in information concerning the composition (5) For initial and/or continued the Core Trading Session on the and/or changes to the Fund’s portfolio. listing, the Shares must be in Exchange, the Trust will disclose on its Any additional Fund sub-advisers that compliance with Rule 10A–3 17 under Web site the identities and quantities of are affiliated with a broker-dealer will the Exchange Act, as provided by NYSE the portfolio of securities and other be required to implement a fire wall Arca Equities Rule 5.3. assets (‘‘Disclosed Portfolio’’) held by the with respect to such broker-dealer (6) The ETF will not invest in non- ETF that will form the basis for the regarding access to information U.S. equity securities. ETF’s calculation of the net asset value concerning the composition and/or (7) A minimum of 100,000 Shares of (‘‘NAV’’) at the end of the business changes to the portfolio. Further, the the Fund will be outstanding as of the day.13 The Web site and information Commission notes that the Reporting start of trading on the Exchange. will be publicly available at no charge. Authority that provides the Disclosed This approval order is based on the Information regarding market price and Portfolio must implement and maintain, Exchange’s representations. volume of the Shares is and will be or be subject to, procedures designed to For the foregoing reasons, the continually available on a real-time prevent the use and dissemination of Commission finds that the proposed basis throughout the day on brokers’ material non-public information rule change is consistent with Section computer screens and other electronic regarding the actual components of the 6(b)(5) of the Act 18 and the rules and services. The previous day’s closing portfolio.16 regulations thereunder applicable to a price and trading volume information The Exchange has represented that national securities exchange. will be published daily in the financial the Shares are deemed to be equity section of newspapers. securities subject to the Exchange’s IV. Conclusion The Commission further believes that existing rules governing the trading of It is therefore ordered, pursuant to the proposal to list and trade the Shares equity securities. In support of this Section 19(b)(2) of the Act,19 that the is reasonably designed to promote fair proposal, the Exchange has made proposed rule change (SR–NYSEArca– disclosure of information that may be representations, including: 2010–117), be, and it hereby is, necessary to price the Shares (1) The Fund will meet the initial and approved. continued listing requirements under appropriately and to prevent trading For the Commission, by the Division of when a reasonable degree of NYSE Arca Equities Rule 8.600(d). Trading and Markets, pursuant to delegated transparency cannot be assured. The (2) The Exchange has appropriate authority.20 rules to facilitate transactions in the Commission notes that the Exchange Cathy H. Ahn, Shares during all trading sessions. will obtain a representation from the Deputy Secretary. issuer of the Shares that the NAV per (3) The Exchange’s surveillance [FR Doc. 2011–3182 Filed 2–11–11; 8:45 am] Share will be calculated daily and that procedures are adequate to properly BILLING CODE 8011–01–P the NAV and the Disclosed Portfolio monitor Exchange trading of the Shares will be made available to all market in all trading sessions and to deter and detect violations of Exchange rules and participants at the same time. In SECURITIES AND EXCHANGE addition, if the Exchange becomes applicable Federal securities laws. (4) Prior to the commencement of COMMISSION aware that the NAV or the Disclosed trading, the Exchange will inform its Portfolio is not disseminated to all [Release No. 34–63858; File No. SR–EDGA– ETP Holders in an Information Bulletin market information as the NAV is 2011–04] of the special characteristics and risks available to all market participants.14 In associated with trading the Shares. Self-Regulatory Organizations; EDGA addition, if the PIV is not being Specifically, the Information Bulletin Exchange, Inc.; Notice of Filing and disseminated as required, the Exchange will discuss the following: (a) The Immediate Effectiveness of Proposed may halt trading during the day in procedures for purchases and Rule Change Relating to Amendments which an interruption to the redemptions of Shares in Creation Unit to the EDGA Exchange, Inc. Fee dissemination to the PIV occurs; if the aggregations (and that Shares are not Schedule interruption to the dissemination of the individually redeemable); (b) NYSE PIV persists past the trading day in Arca Equities Rule 9.2(a), which February 7, 2011. which it occurred, the Exchange will imposes a duty of due diligence on its Pursuant to Section 19(b)(1) of the halt trading no later than the beginning ETP Holders to learn the essential facts Securities Exchange Act of 1934 (the of the trading day following the ‘‘Act’’),1 and Rule 19b-4 thereunder,2 15 relating to every customer prior to interruption. Moreover, the Exchange trading the Shares; (c) the risks involved notice is hereby given that on February in trading the Shares during the 4, 2011, the EDGA Exchange, Inc. (the 13 On a daily basis, the ETF will disclose on the Opening and Late Trading Sessions ‘‘Exchange’’ or the ‘‘EDGA’’) filed with ETF’s Web site for each portfolio security or other the Securities and Exchange financial instrument of the ETF the following when an updated PIV will not be information: Ticker symbol (if applicable), name of calculated or publicly disseminated; (d) Commission (‘‘Commission’’) the security or financial instrument, number of shares how information regarding the PIV is proposed rule change as described in or dollar value of financial instruments held in the Items I, II, and III below, which items portfolio, and percentage weighting of the security disseminated; (e) the requirement that or financial instrument in the portfolio. 17 See 17 CFR 240.10A–3. 14 See NYSE Arca Equities Rule 8.600(d)(2)(D). comprising the Disclosed Portfolio and/or the 18 15 U.S.C. 78f(b)(5). 15 See id. Trading may also be halted because of financial instruments of the Fund; or (2) whether 19 market conditions or for reasons that, in the view other unusual conditions or circumstances 15 U.S.C. 78s(b)(2). of the Exchange, make trading in the Shares detrimental to the maintenance of a fair and orderly 20 17 CFR 200.30–3(a)(12). inadvisable. These may include: (1) The extent to market are present. 1 15 U.S.C. 78s(b)(1). which trading is not occurring in securities 16 See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii). 2 17 CFR 240.19b–4.

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have been prepared by the self- midpoint, the order is subsequently III. Date of Effectiveness of the regulatory organization. The cancelled. Proposed Rule Change and Timing for Commission is publishing this notice to The Exchange proposes to add the Commission Action solicit comments on the proposed rule ‘‘MT’’ flag to its fee schedule to be The foregoing rule change has become change from interested persons. yielded when an order is routed to effective pursuant to Section 19(b)(3) of I. Self-Regulatory Organization’s EDGX MPM using the IOCM routing the Act 8 and Rule 19b–4(f)(2) 9 Statement of the Terms of Substance of strategy. The Exchange also proposes to thereunder. At any time within 60 days the Proposed Rule Change assess a fee of $0.0010 per share to of the filing of such proposed rule reflect a pass through of the EDGX MPM change, the Commission summarily may The Exchange proposes to amend its fee. 3 temporarily suspend such rule change if fees and rebates applicable to Members EDGA Exchange proposes to of the Exchange pursuant to EDGA Rule it appears to the Commission that such implement this amendment to the 15.1(a) and (c). All of the changes action is necessary or appropriate in the Exchange fee schedule on February 4, described herein are applicable to EDGA public interest, for the protection of 2011. Members. The text of the proposed rule investors, or otherwise in furtherance of change is available on the Exchange’s 2. Statutory Basis the purposes of the Act. Internet Web site at http:// The Exchange believes that the IV. Solicitation of Comments www.directedge.com. proposed rule change is consistent with Interested persons are invited to II. Self-Regulatory Organization’s the objectives of Section 6 of the Act,6 submit written data, views, and Statement of the Purpose of, and in general, and furthers the objectives of arguments concerning the foregoing, Statutory Basis for, the Proposed Rule Section 6(b)(4),7 in particular, as it is including whether the proposed rule Change designed to provide for the equitable change is consistent with the Act. In its filing with the Commission, the allocation of reasonable dues, fees and Comments may be submitted by any of self-regulatory organization included other charges among its members and the following methods: other persons using its facilities. The fee statements concerning the purpose of, Electronic Comments and basis for, the proposed rule change of $0.0010 per share for the MT flag and discussed any comments it received represents a pass through of the EDGX • Use the Commission’s Internet on the proposed rule change. The text fee for removing liquidity from MPM, as comment form (http://www.sec.gov/ of these statements may be examined at indicated in the EDGX fee schedule for rules/sro.shtml); or the places specified in Item IV below. flag MT. • Send an e-mail to rule- The self-regulatory organization has The Exchange notes that it operates in [email protected]. Please include File prepared summaries, set forth in a highly competitive market in which Number SR–EDGA–2011–04 on the sections A, B and C below, of the most market participants can readily direct subject line. order flow to competing venues if they significant aspects of such statements. Paper Comments deem fee levels at a particular venue to A. Self-Regulatory Organization’s be excessive. The proposed rule change • Send paper comments in triplicate Statement of the Purpose of, and reflects a competitive pricing structure to Elizabeth M. Murphy, Secretary, Statutory Basis for, the Proposed Rule designed to incent market participants Securities and Exchange Commission, Change to direct their order flow to the 100 F Street, NE., Washington, DC 1. Purpose Exchange. The Exchange believes that 20549–1090. In SR–EDGA–2011–01,4 the Exchange the proposed rates are equitable in that All submissions should refer to File filed for immediate effectiveness a rule they apply uniformly to all Members. Number SR–EDGA–2011–04. This file filing to amend Rule 11.9 to add its The Exchange believes the fees and number should be included on the routing strategies, which were contained credits remain competitive with those subject line if e-mail is used. To help the in its fee schedule, to the rule and to charged by other venues and therefore Commission process and review your introduce additional routing strategies continue to be reasonable and equitably comments more efficiently, please use to the rule. One of the routing strategies allocated to Members. only one method. The Commission will that was added was the IOCM strategy B. Self-Regulatory Organization’s post all comments on the Commission’s in Rule 11.9(b)(3)(s). The Exchange Statement on Burden on Competition Internet Web site (http://www.sec.gov/ defined this as a routing strategy under rules/sro.shtml). Copies of the which an order checks the System for The proposed rule change does not submission,10 all subsequent available shares and then is sent to impose any burden on competition that amendments, all written statements EDGX Exchange, Inc. (‘‘EDGX’’) as an is not necessary or appropriate in with respect to the proposed rule immediate or cancel (IOC) Mid-Point furtherance of the purposes of the Act. change that are filed with the Match (‘‘MPM’’) order.5 If there is no C. Self-Regulatory Organization’s Commission, and all written liquidity at EDGX to execute at the Statement on Comments on the communications relating to the Proposed Rule Change Received From proposed rule change between the 3 A Member is any registered broker or dealer, or Members, Participants or Others Commission and any person, other than any person associated with a registered broker or those that may be withheld from the dealer, that has been admitted to membership in the The Exchange has not solicited, and public in accordance with the Exchange. does not intend to solicit, comments on 4 See SR–EDGA–2011–01 (January 21, 2011). provisions of 5 U.S.C. 552, will be 5 EDGX Rule 11.5(c)(7) defines a Mid-Point Match this proposed rule change. The (MPM) order as an order with an instruction to Exchange has not received any 8 15 U.S.C. 78s(b)(3)(A). execute it at the midpoint of the NBBO. A MPM unsolicited written comments from 9 17 CFR 19b–4(f)(2). order may be a Day Order, Fill-or-Kill Order, or IOC members or other interested parties. 10 The text of the proposed rule change is Order. The Exchange noted that members can send available on Exchange’s Web site at http:// in a MPM order directly to EDGX without routing www.directedge.com, on the Commission’s Web site through the EDGA platform as an IOCM routing 6 15 U.S.C. 78f. at http://www.sec.gov, at EDGA, and at the option. 7 15 U.S.C. 78f(b)(4). Commission’s Public Reference Room.

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available for Web site viewing and Execution Services, LLC (‘‘NES’’) routes also has been previously approved to printing in the Commission’s Public in its capacity as a facility of NASDAQ receive inbound routes of equities Reference Room, 100 F Street, NE., (with the attendant obligations and orders by NES in its capacity as an order Washington, DC 20549, on official conditions). routing facility of NASDAQ on a pilot business days between the hours of 10 basis.6 II. Self-Regulatory Organization’s On January 19, 2011, the a.m. and 3 p.m. Copies of the filing also Statement of the Purpose of, and Exchange filed a proposal to extend the will be available for inspection and Statutory Basis for, the Proposed Rule current pilot program until June 15, copying at the principal office of the Change 2011, with further understanding that Exchange. All comments received will the Exchange would file a separate be posted without change; the In its filing with the Commission, the proposal with the Commission seeking Commission does not edit personal Exchange included statements permanent approval of the BX and NES identifying information from concerning the purpose of and basis for routing relationship.7 The Exchange submissions. You should submit only the proposed rule change and discussed hereby seeks permanent approval to information that you wish to make any comments it received on the permit the Exchange to accept inbound available publicly. All submissions proposed rule change. The Exchange orders that NES routes in its capacity as should refer to File Number SR–EDGA– has prepared summaries, set forth in a facility of NASDAQ (with the 2011–04 and should be submitted on or sections A, B, and C below, of the most attendant obligations and conditions). before March 7, 2011. significant aspects of such statements. In the initial Order, the Commission For the Commission, by the Division of A. Self-Regulatory Organization’s granted the BX and NES inbound Trading and Markets, pursuant to delegated Statement of the Purpose of, and routing relationship on a pilot basis. authority.11 Statutory Basis for, the Proposed Rule During this pilot period, BX committed Cathy H. Ahn, Change to the following conditions: Deputy Secretary. 1. Purpose 1. The Exchange and FINRA will [FR Doc. 2011–3183 Filed 2–11–11; 8:45 am] enter into a regulatory services The purpose of the proposed rule BILLING CODE 8011–01–P agreement (‘‘Regulatory Contract’’), as change is to request permanent approval well as an agreement pursuant to Rule of the Exchange’s pilot program to 17d–2 under the Act (‘‘17d–2 SECURITIES AND EXCHANGE permit the Exchange to accept inbound Agreement’’).8 Pursuant to the COMMISSION orders that NES routes in its capacity as Regulatory Contract and the 17d–2 a facility of NASDAQ (with the Agreement, FINRA will be allocated [Release No. 63859; File No. SR–BX–2011– attendant obligations and conditions). 007] regulatory responsibilities to review Currently, NES is the approved NES’s compliance with certain Self-Regulatory Organizations; outbound routing facility of the Exchange rules.9 Pursuant to the NASDAQ OMX BX LLC; Notice of Filing NASDAQ Stock Market LLC Regulatory Contract, however, BX of Proposed Rule Change Relating to (‘‘NASDAQ’’) for cash equities, retains ultimate responsibility for providing outbound routing from enforcing its rules with respect to NES; Permanent Approval of the BX and 5 NES Inbound Routing Relationship NASDAQ to other market centers. BX 2. FINRA will monitor NES for compliance with the Exchange’s trading 5 February 7, 2011. See Securities Exchange Act Release Nos. 50311 rules, and will collect and maintain Pursuant to Section 19(b)(1) of the (September 3, 2004), 69 FR 54818 (September 10, 2004) (Order Granting Application for a Temporary certain related information; 10 Securities Exchange Act of 1934 Conditional Exemption Pursuant To Section 36(a) 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, of the Exchange Act by the National Association of 71 FR 45876 (August 10, 2006) (SR–NASDAQ– notice is hereby given that on January Securities Dealers, Inc. Relating to the Acquisition 2006–027); and 54155 (July 14, 2006), 71 FR 41291 28, 2011, NASDAQ OMX BX LLC (‘‘BX’’ of an ECN by The Nasdaq Stock Market, Inc.) and (July 20, 2006) (SR–NASDAQ–2006–001). 52902 (December 7, 2005), 70 FR 73810 (December or ‘‘Exchange’’) filed with the Securities 6 See Securities Exchange Act Release Nos. 59154 13, 2005) (SR–NASD–2005–128) (Order Approving (December 23, 2008), 73 FR 80468 (December 31, and Exchange Commission (‘‘SEC’’ or a Proposed Rule Change To Establish Rules 2008) (SR–BX–2008–048); 61271 (December 31, Governing the Operation of the INET System). See ‘‘Commission’’) the proposed rule 2009), 75 FR 1102 (January 8, 2010) (SR–BX–2009– also SR–NASDAQ–2011–004 (January 14, 2011); 085); 61782 (March 25, 2010), 75 FR 16534 (April change as described in Items I and II, Securities Exchange Act Release Nos. 63083 1, 2010) (SR–BX–2010–021); 62528 (July 19, 2010), below, which Items have been prepared (October 13, 2010), 75 FR 64370 (October 19, 2010) 75 FR 43210 (July 23, 2010) (SR–BX–2010–048). See (SR–NASDAQ–2010–127); 62736 (August 17, 2010), by the Exchange. The Commission is also Securities Exchange Act Release No. 63769 75 FR 51861 (August 23, 2010) (SR–NASDAQ– publishing this notice to solicit (January 26, 2011)(SR–BX–2011–003). 2010–100); 61682 (March 10, 2010), 75 FR 12592 7 comments on the proposed rule change (March 16, 2010) (SR–NASDAQ–2010–030); 61460 See Securities Exchange Act Release No. 63769 from interested persons. (February 1, 2010), 75 FR 6077 (February 5, 2010) (January 26, 2011)(SR–BX–2011–003). (SR–NASDAQ–2010–018); 60039 (June 3, 2009), 74 8 17 CFR 240.17d–2. I. Self-Regulatory Organization’s FR 27365 (June 9, 2009) (SR–NASDAQ–2009–050); 9 The Exchange also states that NES is subject to Statement of the Terms of Substance of 59875 (May 6, 2009), 74 FR 22794 (May 14, 2009) independent oversight by FINRA, its Designated the Proposed Rule Change (SR–NASDAQ–2009–043); 59807 (April 21, 2009), Examining Authority, for compliance with financial 74 FR 19251 (April 28, 2009) (SR–NASDAQ–2009– responsibility requirements. See Securities The Exchange, pursuant to Section 036); 59153 (December 23, 2008), 73 FR 80485 Exchange Act Release No. 58927 (November 10, 19(b)(1) of the Act 3 and Rule 19b–4 (December 31, 2008) (SR–NASDAQ–2008–098); 2008), 73 FR 69685, 69689 (November 19, 2008) thereunder,4 proposes request 58752 (October 8, 2008), 73 FR 61181 (October 15, (‘‘Notice’’). 2008) (SR–NASDAQ–2008–079); 58135 (July 10, 10 Pursuant to the Regulatory Contract, both permanent approval of the Exchange’s 2008), 73 FR 40898 (July 16, 2008) (SR–NASDAQ– FINRA and the Exchange will collect and maintain pilot program to permit the Exchange to 2008–061); 58069 (June 30, 2008), 73 FR 39360 (July all alerts, complaints, investigations and accept inbound orders that Nasdaq 9, 2008) (SR–NASDAQ–2008–054); 56708 (October enforcement actions in which NES (in its capacity 26, 2007), 72 FR 61925 (November 1, 2007) (SR– as a facility of Nasdaq routing orders to the NASDAQ–2007–078); 56867 (November 29, 2007), Exchange) is identified as a participant that has 11 17 CFR 200.30–3(a)(12). 72 FR 69263 (December 7, 2007) (SR–NASDAQ– potentially violated applicable Commission or 1 15 U.S.C. 78s(b)(1). 2007–065); 55335 (February 23, 2007), 72 FR 9369 Exchange rules. The Exchange and FINRA will 2 17 CFR 240.19b–4. (March 1, 2007) (SR–NASDAQ–2007–005); 54613 retain these records in an easily accessible manner 3 15 U.S.C. 78s(b)(1). (October 17, 2006), 71 FR 62325 (October 24, 2006) in order to facilitate any potential review conducted 4 17 CFR 240.19b–4. (SR–NASDAQ 2006–043); 54271 (August 3, 2006), Continued

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3. FINRA will provide a report to the the Act,15 in particular, in that the IV. Solicitation of Comments Exchange’s chief regulatory officer proposal is designed to prevent (‘‘CRO’’), on a quarterly basis, that: (i) fraudulent and manipulative acts and Interested persons are invited to Quantifies all alerts (of which FINRA is practices, to promote just and equitable submit written data, views, and aware) that identify NES as a participant principles of trade, to foster cooperation arguments concerning the foregoing, that has potentially violated and coordination with persons engaged including whether the proposed rule Commission or Exchange rules, and (ii) in regulating, clearing, settling, change is consistent with the Act. lists all investigations that identify NES processing information with respect to, Comments may be submitted by any of as a participant that has potentially and facilitating transactions in the following methods: violated Commission or Exchange securities, to remove impediments to Electronic Comments rules; 11 and perfect the mechanism of a free and 4. adopt Rule 2140(c), which requires open market and a national market • Use the Commission’s Internet NASDAQ OMX, as the holding system, and, in general, to protect comment form (http://www.sec.gov/ company owning both the Exchange and investors and the public interest. rules/sro.shtml); or NES, to establish and maintain Specifically, the proposed rule change • Send an e-mail to rule- procedures and internal controls will allow the Exchange to continue [email protected]. Please include File reasonably designed to ensure that NES receiving inbound routes of equities Number SR–BX–2011–007 on the does not develop or implement changes orders from NES, acting in its capacity to its system, based on non-public as a facility of NASDAQ, in a manner subject line. information obtained regarding planned consistent with prior approvals and changes to the Exchange’s systems as a Paper Comments established protections. The Exchange result of its affiliation with the believes that having met the • Send paper comments in triplicate Exchange, until such information is commitments established during the to Elizabeth M. Murphy, Secretary, available generally to similarly situated Securities and Exchange Commission, Exchange members, in connection with pilot program demonstrates that the 100 F Street, NE., Washington, DC the provision of inbound order routing Exchange has mechanisms that protect to the Exchange; 12 and the independence of the Exchange’s 20549–1090. regulatory responsibility with respect to 5. That the routing of orders from NES All submissions should refer to File NES, as well as demonstrate that NES to the Exchange, in NES’s capacity as a Number SR–BX–2011–007. This file cannot use any information advantage it facility of Nasdaq, be authorized for a number should be included on the 13 may have because of its affiliation with pilot period of twelve months. subject line if e-mail is used. To help the the Exchange. The Exchange has met all the above- Commission process and review your listed conditions. By meeting the above- B. Self-Regulatory Organization’s comments more efficiently, please use conditions, the Exchange has set up Statement on Burden on Competition only one method. The Commission will mechanisms that protect the independence of the Exchange’s post all comments on the Commission’s The Exchange does not believe that Internet Web site (http://www.sec.gov/ regulatory responsibility with respect to the proposed rule change will impose rules/sro.shtml). Copies of the NES, as well as demonstrate that NES any burden on competition not submission, all subsequent cannot use any information advantage it necessary or appropriate in furtherance amendments, all written statements may have because of its affiliation with of the purposes of the Act. the Exchange. Since the Exchange has with respect to the proposed rule met all the above-listed conditions, it C. Self-Regulatory Organization’s change that are filed with the now seeks permanent approval of the Statement on Comments on the Commission, and all written BX and NES inbound routing Proposed Rule Change Received From communications relating to the relationship. The Exchange will Members, Participants, or Others proposed rule change between the continue to comply with the conditions Commission and any person, other than No written comments were either 1–4 stated above. those that may be withheld from the solicited or received. 2. Statutory Basis public in accordance with the III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be The Exchange believes that the Proposed Rule Change and Timing for available for Web site viewing and proposed rule change is consistent with Commission Action printing in the Commission’s Public the provisions of Section 6 of the Act,14 Reference Room on official business in general, and with Section 6(b)(5) of Within 45 days of the date of days between the hours of 10 a.m. and publication of this notice in the Federal by the Commission’s Office of Compliance 3 p.m. Copies such filing also will be Register or within such longer period available for inspection and copying at Inspections and Examinations. Id. up to 90 days (i) as the Commission may 11 Id. the principal office of the Exchange. All designate if it finds such longer period 12 See Equity Rule 2140(c). See also Notice, supra comments received will be posted to be appropriate and publishes its note 7, 73 FR at 69689–69690. without change; the Commission does 13 See Amendment No. 2 to Notice, filed reasons for so finding or (ii) as to which December 23, 2008. In Amendment No. 2, the the Exchange consents, the Commission not edit personal identifying Exchange clarified that its proposal, as opposed to will: information from submissions. You Nasdaq’s corresponding proposal, be approved on should submit only information that a twelve-month pilot basis. See also Notice, supra (A) By order approve or disapprove you wish to make available publicly. All note 7, n.15 and accompanying text. the proposed rule change, or See e-mail from Arlinda J. Clark, Assistant submissions should refer to File General Counsel, NASDQ OMX BX, to Jennifer (B) Institute proceedings to determine Number SR–BX–2011–007 and should Dodd, Special Counsel, Office of Market whether the proposed rule change be submitted on or before March 7, Supervision, Division of Trading and Markets, Commission, dated February 3, 2011 (requesting should be disapproved. 2011. corrections to this footnote). 14 15 U.S.C. 78f. 15 15 U.S.C. 78f(b)(5).

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For the Commission, by the Division of Description of Respondents: business development by the Federal Trading and Markets, pursuant to delegated Secondary market participants. Government. authority.16 Responses: 12,400. Cathy H. Ahn, Annual Burden: 33,075. The Interagency Task Force on Deputy Secretary. Veterans Small Business Development Jacqueline White, [FR Doc. 2011–3186 Filed 2–11–11; 8:45 am] shall submit to the President, no later Chief, Administrative Information Branch. than one year after its first meeting, a BILLING CODE 8011–01–P [FR Doc. 2011–3185 Filed 2–11–11; 8:45 am] report on the performance of its BILLING CODE P functions and any proposals developed SMALL BUSINESS ADMINISTRATION pursuant to the ‘‘six focus areas’’ identified above. The purpose of the SMALL BUSINESS ADMINISTRATION Reporting and Recordkeeping meeting is scheduled as a full Task Requirements Under OMB Review Interagency Task Force on Veterans Force meeting. The agenda will include presentations and discussion from the AGENCY: Small Business Development Small Business Administration. Task Force Subcommittees on their ACTION: Notice of reporting requirements AGENCY: U.S. Small Business progress regarding the ‘‘six focus areas’’ submitted for OMB review. Administration. of the Task Force. In addition, the Task ACTION: Notice of open Federal SUMMARY: Under the provisions of the Force will allow time for obtaining Interagency Task Force meeting. Paperwork Reduction Act (44 U.S.C. public comment from individuals and representatives of organizations Chapter 35), agencies are required to SUMMARY: The SBA is issuing this notice regarding the areas of focus. submit proposed reporting and to announce the location, date, time, recordkeeping requirements to OMB for and agenda for the second public FOR FURTHER INFORMATION CONTACT: The review and approval, and to publish a meeting of the Interagency Task Force meeting is open to the public; however, notice in the Federal Register notifying on Veterans Small Business advance notice of attendance is the public that the agency has made Development. The meeting will be open requested. Anyone wishing to attend such a submission. to the public. and/or make a presentation to the Task DATES: Submit comments on or before DATES: Friday, February 25, 2011, from Force must contact Raymond B. Snyder, March 16, 2011. If you intend to 9 a.m. to 12 Noon in the Eisenhower by February 21, 2011, by e-mail in order comment but cannot prepare comments Conference Room, Side A & B, located to be placed on the agenda. Comments promptly, please advise the OMB on the 2nd floor. for the Record should be applicable to Reviewer and the Agency Clearance ADDRESSES: U.S. Small Business the ‘‘six focus areas’’ of the Task Force Officer before the deadline. Administration, 409 3rd Street, SW., and e-mailed prior to the meeting for Copies: Request for clearance (OMB Washington, DC 20416. inclusion in the public record; verbal 83–1), supporting statement, and other SUPPLEMENTARY INFORMATION: Pursuant documents submitted to OMB for presentations, however, will be limited to section 10(a)(2) of the Federal review may be obtained from the to five minutes in the interest of time Advisory Committee Act (5 U.S.C., Agency Clearance Officer. and to accommodate as many presenters Appendix 2), SBA announces the as possible. ADDRESSES: Address all comments meeting of the Interagency Task Force Written comments should be e-mailed concerning this notice to: Agency on Veterans Small Business to Raymond B. Snyder, Deputy Clearance Officer, Jacqueline White, Development. The Task Force is Small Business Administration, 409 3rd established pursuant to Executive Order Associate Administrator, Office of Street, SW., 5th Floor, Washington, DC 13540 and focused on coordinating the Veterans Business Development, U.S. 20416; and OMB Reviewer, Office of efforts of Federal agencies to improve Small Business Administration, 409 3rd Information and Regulatory Affairs, capital, business development Street, SW., Washington, DC 20416, at Office of Management and Budget, New opportunities and pre-established the e-mail address for the Task Force, Executive Office Building, Washington, Federal contracting goals for small [email protected]. DC 20503. business concerns owned and Additionally, if you need FOR FURTHER INFORMATION CONTACT: controlled by veterans (VOB’s) and accommodations because of a disability Jacqueline White, Agency Clearance service-disabled veterans (SDVOSB’S). or require additional information, please Officer, (202) 205–7044. Moreover, the Task Force shall contact Raymond B. Snyder, Designated SUPPLEMENTARY INFORMATION: coordinate administrative and Federal Official for the Task Force at Title: Form of detached assignment regulatory activities and develop (202) 205–6773; or by e-mail at: for U.S. Small Business Administration proposals relating to ‘‘six focus areas’’: [email protected], SBA, Office (Loan Pool or Guaranteed). (1) Access to capital (loans, surety of Veterans Business Development, 409 Frequency: On occasion. bonding and franchising); (2) Ensure 3rd Street, SW., Washington, DC 20416. achievement of pre-established SBA Form Number: 1088. For more information, please visit our contracting goals, including mentor Description of Respondents: Web site at http://www.sba.gov/vets. Secondary market participants. prote´ge´ and matching with contracting Responses: 6,500. opportunities; (3) Increase the integrity Dated: February 7, 2011. Annual Burden: 9,750. of certifications of status as a small Dan Jones, Title: Secondary market for Section business; (4) Reducing paperwork and SBA Committee Management Officer. 504 First Mortgage Loan Pool. administrative burdens in accessing [FR Doc. 2011–3181 Filed 2–11–11; 8:45 am] Frequency: On occasion. business development and BILLING CODE P SBA Form Numbers: 2401, 2402, entrepreneurship opportunities; (5) 2403, 2404. Increasing and improving training and counseling services; and (6) Making 16 17 CFR 200.30–3(a)(12). other improvements to support veteran’s

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SOCIAL SECURITY ADMINISTRATION date of this notice. To be sure we Event Form—0960–0784. Per the consider your comments, we must Medicare Modernization Act of 2003, Agency Information Collection receive them no later than April 15, reductions in the Federal subsidy for Activities: Proposed Request and 2011. Individuals can obtain copies of Medicare medical coverage (Medicare Comment Request the collection instruments by calling the Part B) result in selected Medicare Part SSA Reports Clearance Officer at 410– The Social Security Administration B recipients paying an income-related 965–8783 or by writing to the above e- (SSA) publishes a list of information monthly adjustment amount (IRMAA). mail address. collection packages requiring clearance The Internal Revenue Service transmits 1. Medicare Modernization Act by the Office of Management and income tax return data to SSA for SSA Outreach Mailer—20 CFR 418—0960– Budget (OMB) in compliance with to determine the IRMAA. SSA uses 0773. To promote awareness of the Public Law 104–13, the Paperwork Form SSA–44 to determine if a recipient Medicare Part D subsidy program and Reduction Act of 1995, effective October qualifies for a reduction in the IRMAA. encourage potentially eligible Medicare 1, 1995. This notice includes revisions If affected Medicare recipients believe beneficiaries to complete Form SSA– to and an extension of OMB-approved SSA should use more recent tax data 1020 (OMB No. 0960–0696, the information collections. because of a life-changing event that Application for Extra Help with SSA is soliciting comments on the significantly reduces their income, they Medicare Prescription Drug Plan Costs), accuracy of the agency’s burden can report these changes to SSA and ask SSA uses an outreach brochure that estimate; the need for the information; for a new initial determination of their includes a mailer. Pharmacies, doctors’ its practical utility; ways to enhance its IRMAA. offices, and medical clinics display and quality, utility, and clarity; and ways to In November 2010, we requested distribute copies of the brochure/mailer minimize burden on respondents, emergency OMB clearance for a new to encourage eligible Medicare including the use of automated SSA–44 to fulfill the provisions of the beneficiaries to request and complete collection techniques or other forms of Affordable Care Act (Pub. L. 111–148), Form SSA–1020. Using a recorded, information technology. Mail, e-mail, or which mandates reductions in the automated message telephone call that fax your comments and Federal Medicare Part D prescription will not require any conversation with recommendations on the information drug coverage subsidies, resulting in respondents, SSA follows up with collection(s) to the OMB Desk Officer higher premiums for those who have beneficiaries who use the mailer to and SSA Reports Clearance Officer at this coverage and who have income request an SSA–1020 but do not submit the following addresses or fax numbers. above a specific threshold. The it to the agency. The respondents are provisions of the law became effective (OMB), Office of Management and Medicare beneficiaries who are Budget, Attn: Desk Officer for SSA, January 1, 2011, and we obtained potentially eligible for Part D subsidy emergency clearance for this form on Fax: 202–395–6974, E-mail address: benefits and who request a copy of Form [email protected]; November 23, 2010. We are now seeking SSA–1020, using the SSA–1023 mailer. full OMB clearance for this form. The (SSA), Social Security Administration, Type of Request: Revision of an OMB- DCBFM, Attn: Reports Clearance respondents are Medicare Part B and approved information collection. prescription drug coverage recipients Officer, 1333 Annex Building, 6401 Number of Respondents: 75,000. and enrollees with modified adjusted Security Blvd., Baltimore, MD 21235, Frequency of Response: 1. Fax: 410–965–6400, E-mail address: Average Burden Per Response: 1 gross income over a high-income [email protected]. minute. threshold who experience one of the I. The information collections below Estimated Annual Burden: 1,250. eight significant life-changing events. are pending at SSA. SSA will submit 2. Medicare Income-Related Monthly Type of Request: Extension of an them to OMB within 60 days from the Adjustment Amount—Life-Changing OMB-approved information collection.

Average Number of Frequency of burden per Estimated Method of collection respondents response response annual burden (minutes) (hours)

Personal Interview (SSA field office) ...... 147,000 1 30 73,500 Paper Form (mailed) ...... 39,000 1 45 29,250

Totals ...... 186,000 ...... 102,750

II. SSA has submitted the information Clearance Officer at 410–965–8783 or by disability, wife’s, husband’s, or parent’s collection listed below to OMB for writing to the above e-mail address. benefits terminate when the beneficiary clearance. Your comments on the State Death Match Collections—20 dies. The States furnish death certificate information collection would be most CFR 404.301, 404.310–404.311, 404.316, information to SSA via the manual useful if OMB and SSA receive them 404.330–404–341, 404.350–404.352, registration process or the Electronic within 30 days from the date of this 404.371; 416.912—0960–0700. SSA uses Death Registration (EDR) process. Both publication. To be sure we consider the State Death Match Collections to death match processes are automated your comments, we must receive them ensure the accuracy of payment files by electronic transfers between the States no later than March 16, 2011. You can detecting unreported or inaccurate and SSA. The respondents are the obtain a copy of the OMB clearance deaths of beneficiaries. Under the Social States’ bureaus of vital statistics. package by calling the SSA Reports Security Act, entitlement to retirement,

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Frequency of Average cost Estimated Method of collection Number of responses per record annual cost respondents (per state) request burden

State Death Match—Manual Process ...... 23 50,000 .80 $920,000 State Death Match—EDR ...... 30 50,000 2.86 4,290,000

Totals ...... *5,210,000 * Please note that both data matching processes are fully electronic and there is no hourly burden for the respondent to provide this information.

Dated: February 8, 2011. January 23, 2003, 68 FR 4075 (2003), Director of the Office of Mexican Faye Lipsky, and Executive Order 13337 of April 30, Affairs, Edward Alexander Lee on Reports Clearance Officer, Center for Reports 2004, 69 FR 25299 (2004) and December 10, 2010. 75 FR 78336 Clearance, Social Security Administration. Department of State Delegation of (December 15, 2010). [FR Doc. 2011–3171 Filed 2–11–11; 8:45 am] Authority number 118–2 of January 26, This permit is subject to the following BILLING CODE 4191–02–P 2006; having considered the conditions: environmental effects of the proposed Article 1. The facilities herein action consistent with the National described, and all aspects of their DEPARTMENT OF STATE Environmental Policy Act of 1969, as operation, shall be subject to all the amended (83 Stat. 852, 42 U.S.C. 4321 conditions, provisions and requirements [Public Notice: 7334] et seq.) and other statutes relating to of this permit and any amendment environmental concerns; having thereof. This permit may be terminated Issuance of a Presidential Permit considered the proposed action upon a determination of the Executive Authorizing the Expansion, consistent with the National Historic Branch that the Nogales-Mariposa Renovation, Operation, and Preservation Act of 1966, as amended border crossing shall be closed. This Maintenance of the Commercial and (80 Stat. 917, 16 U.S.C. 470f et seq.); and permit may be amended by the Pedestrian Border Crossing Called having requested and received the views Secretary of State or the Secretary’s ‘‘Nogales-Mariposa’’ in the Vicinity of of various of the federal departments delegate in consultation with the Nogales, AZ, at the International and other interested persons; I hereby permittee and, as appropriate, other Boundary Between the United States grant permission, subject to the Executive Branch agencies; the and Mexico conditions herein set forth, to the permittee’s obligation to implement United States General Services SUMMARY: The Department of State such an amendment is subject to the issued a Presidential permit to the Administration (GSA) (hereinafter availability of funds. The permittee ‘‘ ’’ General Services Administration on referred to as the permittee ), to shall make no substantial change in the January 18, 2011, authorizing that expand, renovate, operate and maintain location of the facilities or in the agency to expand, renovate, operate, a commercial and pedestrian land operation authorized by this permit and maintain the commercial and border crossing (hereinafter referred to until such changes have been approved ‘‘ ’’ pedestrian border crossing called as Nogales-Mariposa ), in Nogales, AZ. by the Secretary of State or the ‘‘Nogales-Mariposa’’ in the vicinity of * * * * * Secretary’s delegate. Nogales, Arizona, at the International The term ‘‘facilities’’ as used in this Article 2. The permittee shall comply Boundary between the United States permit means the facilities to be with all applicable federal laws and and Mexico. In making this constructed at the Nogales-Mariposa regulations regarding the construction, determination, the Department border crossing near Nogales, Arizona, operation and maintenance of the complied with the procedures required consisting of the following facilities. Further, the permittee shall under Executive Order 11423, as improvements and structures: comply with nationally recognized • amended. Inspection and X-Ray Facilities codes to the extent required under 40 • Containment Areas and Docks U.S.C. 3312(b). The permittee shall FOR FURTHER INFORMATION CONTACT: • Commercial Inspection Building cooperate with state and local officials Stewart Tuttle, U.S.-Mexico Border with Import and Export Docks to the extent required under 40 U.S.C. Affairs Coordinator, via e-mail at WHA– • Export Inspection 3312(d). [email protected]; by phone at • Main Administrative Building Article 3. In the event that the 202–647–9894; or by mail at Office of • Entry and Exit Control Booths Nogales-Mariposa Port of Entry is Mexican Affairs—Room 3909, • Roadways and related permanently closed and is no longer Department of State, 2201 C St. NW., Infrastructure, Pathways, Parking Lots, used as an international crossing, this Washington, DC 20520. Information and related Lots permit shall terminate and the permittee about Presidential permits is available • Landscaping may manage, utilize, or dispose of the on the Internet at http://www.state.gov/ • Ancillary Support Facilities facilities in accordance with its p/wha/rt/permit/. • Commercial Cargo lanes statutory authorities. SUPPLEMENTARY INFORMATION: Following • Non-commercial Inspection Article 4. The permittee is a federal is the text of the issued permit: By facilities and lanes agency that is responsible for managing virtue of the authority vested in me as • Pedestrian Crossing and operating the Nogales-Mariposa Under Secretary of State for Economic, • Pedestrian inspection facilities Port of Entry, as authorized by Energy, and Agricultural Affairs under • Related Improvements and applicable federal laws and regulations. Executive Order 11423, 33 FR 11741 Infrastructure This permit shall continue in full force (1963), as amended by Executive Order These facilities are the subject of a and effect for only so long as the 12847 of May 17, 1993, 58 FR 29511 Finding Of No Significant Impact permittee shall continue the operations (1993), Executive Order 13284 of approved by the State Department hereby authorized.

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Article 5. This Article applies to regarding authorization of construction. and maintenance of pipeline facilities at transfer of the facilities or any part The permittee shall provide written the border of the U.S. and Canada for thereof as an operating land border notice to the Department of State at such the transport of crude oil across the crossing. The permittee shall time as the construction authorized by U.S.-Canada international boundary. immediately notify the United States this permit is begun, and again at such The Secretary of State is designated and Department of State of any decision to time as construction is completed, empowered to receive all applications transfer custody and control of the interrupted for more than ninety days or for Presidential permits, under facilities or any part thereof to any other discontinued. Executive Order 13337, as amended, for any agency or department of the United Article 11. This permit is not the construction, connection, operation, States Government. Said notice shall intended to, and does not, create any or maintenance, at the borders of the identify the transferee agency or right, benefit, or trust responsibility, United States, of facilities for the department and seek the approval of the substantive or procedural, enforceable at exportation or importation of petroleum, United States Department of State for law or in equity, by any party against petroleum products, coal, or other fuels the transfer of the permit. In the event the United States, its departments, to or from a foreign country. of approval by the Department of State agencies, instrumentalities or entities, of such transfer of custody and control its officers or employees, in their TransCanada has requested to another agency or department of the individual or official capacities, or any authorization to construct and operate United States Government, the permit other person. border crossing facilities at the U.S.- shall remain in force and effect, and the In Witness Whereof, I, Robert D. Canadian border in Phillips County, facilities shall be subject to all the Hormats, Under Secretary of State for near Morgan, Montana, in connection conditions, permissions and Economic, Energy, and Agricultural with its proposed international pipeline requirements of this permit and any Affairs of the United States, have project (the Keystone XL Pipeline amendments thereof. The permittee may hereunto set my hand this day of Project) that is designed to transport transfer ownership or control of the January 3, 2011, in the City of Canadian crude oil production from the facilities to a non-federal entity or Washington, District of Columbia. Western Canadian Sedimentary Basin individual only upon the prior express End Permit text. (WCSB) to destinations in the south approval of such transfer by the United Dated: February 8, 2011. central United States, including to an States Department of State, which Alex Lee, existing oil terminal in Cushing, approval may include such conditions, Oklahoma, and to existing delivery permissions and requirements that the Director, Office of Mexican Affairs, Department of State. points in the Port Arthur and East Department of State, in its discretion, Houston areas of Texas. determines are appropriate and [FR Doc. 2011–3253 Filed 2–11–11; 8:45 am] necessary for inclusion in the permit, to BILLING CODE 4710–29–P On April 20, 2010, the State be effective on the date of transfer. Department published a draft Article 6. (1) The permittee or its Environmental Impact Statement (EIS) agent shall acquire such right-of-way DEPARTMENT OF STATE and provided for public comment on grants or easements and permits as may [Public Notice: 7335] that draft EIS until July 2, 2010. The become necessary and appropriate. State Department is currently reviewing (2) The permittee shall maintain the Notice of Availability of Report the comments received in response to facilities and every part thereof. Commissioned by Department of that notice and will not make a decision Article 7. (1) The permittee shall take Energy Entitled ‘‘Keystone XL related to the Keystone XL pipeline or cause to be taken all appropriate Assessment’’ Regarding the Proposed until it has completed that review. A measures to prevent or mitigate adverse TransCanada Keystone XL Project final decision on whether the environmental impacts or disruption of Department will approve or not approve significant archeological resources in Notice is hereby given that the the Keystone XL pipeline will only be connection with the construction, Department of State received on January made after the Department has operation and maintenance of the 31, 2011, a report commissioned by the completed all of its review processes. facilities, including those mitigation Department of Energy entitled measures adopted by the permittee in ‘‘Keystone XL Assessment.’’ The report DATES: The Department of State will be connection with issuance of the FONSI. examines the possible effect of the requesting public comment on this (2) Before issuing the notice to proposed Keystone XL Pipeline on U.S. report at an appropriate time. proceed for construction, the permittee and global oil markets. We will consider shall obtain the concurrence of the U.S. this report, as well as contributions from FOR FURTHER INFORMATION CONTACT: For Section of the International Boundary the public and other interested agencies, information regarding environmental and Water Commission. in our decision-making process on concerns and permitting, contact Article 8. The permittee shall comply TransCanada Keystone Pipeline, LP’s Alexander Yuan at (202) 647–4284; or with all agreed actions and obligations (TransCanada) application for a by email at [email protected]. Presidential permit for the Keystone XL set forth in the FONSI. Dated: February 3, 2011. Article 9. The permittee shall file any Project. We will be requesting public applicable statements and reports that comment on this report at an Willem H. Brakel, might be required by applicable federal appropriate time. The report is available Director, Office of Environmental Policy, law in connection with this project. under ‘‘Petroleum Market Impacts of the Bureau of Oceans and International Article 10. The permittee shall not Keystone XL Pipeline Project’’ on the Environmental and Scientific Affairs, issue a notice to proceed for ‘‘State Dept. Documents’’ page of our Department of State. construction work until the Department Web site at http:// [FR Doc. 2011–3251 Filed 2–11–11; 8:45 am] of State has provided notification to the www.keystonepipeline-xl.state.gov. BILLING CODE 4710–09–P permittee that the Department has On September 19, 2008, TransCanada completed its exchange of diplomatic filed an application for a Presidential notes with the Government of Mexico permit for the construction, operation,

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DEPARTMENT OF TRANSPORTATION Written comments on the scope of the number of high-speed passenger trains; EIS should be provided to IDOT by potential corridor route alternatives Federal Railroad Administration March 18, 2011 at the address below. between Chicago and Joliet, IL, through ADDRESSES: Written comments on the the City of Springfield, and for the Environmental Impact Statement for scope of this study should be sent to Mr. approach to St. Louis, MO; and the the Chicago, IL to St. Louis, MO High George Weber, Acting Deputy Director, associated transportation and Speed Rail Program Corridor Department of Intermodal and Public environmental impacts. Train speed AGENCY: Federal Railroad Transit, Illinois Department of increases above the 110 mph maximum Administration (FRA), U.S. Department Transportation, 100 West Randolph speed currently planned in the Corridor of Transportation (DOT). Street, Suite 6–600, Chicago, Illinois may be considered in the alternatives analysis. It is anticipated that the EIS ACTION: 60601, telephone (312) 793–4222. Notice of Intent to Prepare an will examine the viability of Chicago- Environmental Impact Statement. FOR FURTHER INFORMATION CONTACT: Ms. Wendy Messenger, Office of Railroad Joliet corridors utilizing the Canadian SUMMARY: FRA is issuing this notice to Development, Federal Railroad National (CN) and Metra Rock Island advise the public that FRA with the Administration, 1200 New Jersey District (RID), as well as other Illinois Department of Transportation Avenue, SE., (Mail Stop 20), reasonable corridors between Chicago (IDOT) will jointly prepare a Tier 1 Washington, DC 20590, telephone (202) and Joliet that could support high speed Environmental Impact Statement (EIS) 493–6396; or Mr. George Weber, rail passenger service. for the Chicago, IL to St. Louis, MO telephone (312) 793–4222 at the above IDOT and FRA propose to not High Speed Rail Corridor Program in address. Information and documents examine the Norfolk Southern-Canadian compliance with the National regarding the environmental review National alignment between Dwight and Environmental Policy Act of 1969 process will be made available through Chicago in the Tier 1 EIS. This (NEPA). This study will analyze a range the following Web site: http:// alignment was considered in the 2003 of reasonable corridor-level route www.idothsr.org. EIS for the Corridor to serve a proposed South Suburban Airport. IDOT and FRA alternatives between Chicago and Joliet, SUPPLEMENTARY INFORMATION: FRA, in propose to not examine this alignment and will examine additional cooperation with IDOT, will prepare a because it would divert intercity improvements between Joliet and St. Tier 1 EIS for the High Speed Rail passenger rail service from the larger Louis to support additional passenger program from Chicago, IL to St. Louis, populations currently served in the trains. The EIS will consider increasing MO. The objectives of the proposed Chicago-Joliet corridor, and the South the number of frequencies of high-speed Project are to meet current and future Suburban Airport area is served by an passenger rail service, as well as regional travel needs through significant existing commuter rail service to increasing the currently planned improvements to the level and quality of Chicago. Additionally, the Norfolk maximum speed of such service, in the passenger rail service along the Southern Railroad does not support the Chicago to St. Louis Corridor (Corridor). Corridor. Specifically, the EIS will introduction of high-speed passenger FRA is issuing this notice to solicit consider increasing the frequency of rail to its facilities because of limited public and agency input into the high-speed passenger trains between existing infrastructure and a limited development of the scope of the EIS and Chicago and St. Louis and will consider ability to expand capacity in the to advise the public that outreach increasing train speeds above the 110 corridor. The agencies have concluded activities conducted by FRA and IDOT mph maximum speed currently planned that it is not a reasonable alternative for will be considered in the preparation of in the Corridor. The proposed service meeting the Project purpose and need. the EIS. Alternatives under improvements examined in this EIS will Elimination of the Norfolk Southern- consideration include taking no action, build upon the approximately $1.1 Canadian National alignment will result as well as several build alternatives billion of improvements currently being in a single corridor to be studied between Chicago and Joliet, IL, through completed in the Corridor by IDOT and between Dwight and Joliet utilizing the the City of Springfield, and for the FRA pursuant to a grant/cooperative Union Pacific (UP) Railroad. approach to St. Louis, MO. agreement funded by the American The No-Build Alternative will DATES: Two agency scoping meetings Recovery and Reinvestment Act (ARRA) represent the no action alternative and and five public scoping meetings will be (this work is based upon a 2003 EIS for will be used as a baseline for held during March, 2011. Public the Corridor and a 2004 Record of comparison of all alternatives. The No- scoping meetings will be advertised Decision). Those improvements, which Build Alternative represents other locally and are scheduled for the include infrastructure improvements, transportation modes, such as auto, air following cities on the dates indicated communications and signaling travel, intercity bus, and existing rail, below from 4 p.m.–7 p.m. installation, stations improvements, and and the physical characteristics and • March 1, 2011: Joliet, IL rolling stock equipment procurement, capacities as they exist at the time of the • March 2, 2011: Bloomington- will increase passenger rail speeds from Tier 1 EIS, with planned and funded Normal, IL 79 mph to 110 mph for the existing improvements that will be in place at • March 3, 2011: Springfield, IL Corridor services. the time the Project would become • March 8, 2011: Carlinville, IL The proposed Tier 1 EIS described in operational. • March 9, 2011: Alton, IL this notice will examine a range of Environmental Review Process: The Agency scoping meetings will be held reasonable corridor-level alternative EIS will be developed in accordance March 1, 2011 in Joliet, IL and March 3, routes between Chicago and Joliet, and with Council on Environmental Quality 2011 in Springfield, IL at 10 a.m. will examine additional improvements (CEQ) regulations (40 CFR part 1500 et Detailed information on the meeting between Joliet and St. Louis to support seq.) implementing the National locations is available on the following additional passenger trains while Environmental Policy Act of 1969 Web site: http://www.idothsr.org. accommodating the anticipated growth (NEPA) (42 U.S.C. 4321 et seq.), and Persons interested in providing written in freight rail traffic. The EIS will assess: FRA’s Procedures for Considering comments on the scope of the EIS Changing the existing rail corridor from Environmental Impacts (64 FR 28545; should do so by March 18, 2011. one track to two tracks; increasing the May 26, 1999). The FRA and IDOT will

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use a tiered process, as provided for in • Evaluate and consider the potential Another build alternative will consider 40 CFR 1508.28 and in accordance with for environmental impacts associated moving the Third Street corridor trains, FRA guidance, in the completion of the with the reasonable alternatives. and possibly the Nineteenth Street environmental review of the Project. • Identify a preferred alternative for corridor trains, to the Tenth Street ‘‘Tiering’’ is a staged environmental corridor route alignment. corridor, where additional tracks would review process applied to • Address component projects for be built, which would consolidate environmental reviews for complex Tier 2 NEPA documentation as Springfield’s rail traffic into one projects. The Tier 1 EIS will address described below. corridor. Other reasonable alternatives broad corridor-level issues and Tier 2: The second tier assessment(s) will also be considered, such as alternatives. Subsequent phases or tiers will address component projects to be relocating rail traffic to other or new will analyze site-specific component implemented within the overall rail corridors. projects and alternatives based on the corridor improvement alternative Related Projects: There are three decisions made in Tier 1. selected in the Tier 1 EIS, and will ongoing rail improvement programs that Tier 1: The Tier 1 assessment will incorporate by reference the data and relate to the Project being studied in this evaluations included in the Tier 1 EIS. result in a NEPA document with the EIS and may be considered for indirect The Springfield Rail Corridor is the only appropriate level of detail for corridor- or cumulative impacts on the region. current activity presently identified as a level decisions and will address broad The Chicago Region Environmental Tier 2 level evaluation to be included in overall issues of concern, including but and Transportation Efficiency Program this Tier 1 EIS; it will be combined with not limited to: (CREATE) is a cooperative effort • the Tier 1 EIS but may be separately between the U.S. Department of Confirm the purpose and need for actionable to determine site-specific as Transportation, the State of Illinois, the the proposed action. well as corridor-level improvements • City of Chicago, the Metropolitan Rail Define the study area appropriate to within its study limits and is described Corporation (Metra), the National assess reasonable alternatives. below. Railroad Passenger Corporation • Identify a comprehensive set of Springfield Railroad Corridor: Freight (Amtrak), and six freight railroads to goals and objectives for the corridor in traffic through Springfield is expected to improve freight and passenger rail conjunction with Project stakeholders. increase significantly over the next efficiency and to reduce rail/highway These goals and objectives will be several years, and IDOT’s plans for traffic conflicts. There are six projects crafted to allow comprehensive increasing the number of frequencies of specifically identified by CREATE (P1, evaluation of all aspects of the Project high-speed passenger train service P2, P3, EW2, P5 and P6) that may necessary to achieve the goals, between Chicago and St. Louis as well involve and affect high speed rail including train operations, vehicles, and as the maximum speed of the passenger service within the Chicago-Joliet portion infrastructure. train service would also have an impact of the corridor, depending on the • Identify the range of reasonable on Springfield. This study will analyze corridor recommendations of this EIS alternatives to be considered, consistent alternatives for accommodating the study. More information is available at with the current and planned use of the growing freight and passenger rail traffic the CREATE Web site at http:// corridor and the existing services within through Springfield. www.createprogram.org/. and adjacent to the study area, There are currently three north-south The Chicago-St. Louis 220 mph High including changing the existing rail railroad corridors through Springfield. Speed Rail Express is a project concept corridor from one track to two tracks, Generally, these corridors exist along being pursued by IDOT. This service, at considering alternative corridors Third Street (Union Pacific), Tenth speeds up to 220 mph, may utilize between Chicago and Joliet and in the Street (primarily Norfolk Southern), and existing rail corridors, a new corridor, or St. Louis area, and considering a no Nineteenth Street (primarily Canadian a combination of both, and could serve action/no build alternative. National). There are 73 at-grade different travel markets. The 220 mph • Develop alternatives evaluation crossings along these three corridors in concept is intended as a complementary criteria to identify alternatives that meet the study area, which create traffic service to the Chicago-St. Louis high the purpose and need of the proposed congestion and safety issues when trains speed rail service that is being evaluated action and those that do not. traverse the city. The Union Pacific by this EIS. A feasibility study was • Identify the general alignment(s) of Railroad is constructing a new prepared in 2009 by the Midwest High the reasonable alternatives. intermodal rail yard near Joliet, Illinois, Speed Rail Association; this study which is anticipated to generate indicated that a completely grade- • Identify right-of-way requirements increased freight traffic on the Third separated route could be established by for the reasonable alternatives. • Street corridor. The combination of modifying existing rail corridors to Identify the infrastructure and increased passenger trains and connect Chicago, Champaign, Decatur equipment investment requirements for increased Union Pacific freight trains and Springfield, Illinois with St. Louis, the reasonable alternatives. Missouri, with a one-way terminal-to- • would likely require a second track on Identify the operational changes the Third Street corridor to terminal trip time of approximately two required for the reasonable alternatives. accommodate the greater number of hours, utilizing a maximum speed of • Describe the environmental impacts trains per day. 220 mph. Also in 2009, an Expression associated with the proposed changes in Build alternatives to accommodate of Interest was prepared by the French passenger rail train frequency, speed, this increase in rail traffic will be National Railways (SNCF) in response and on-time performance. studied. In addition, the No-Build to the FRA’s Request for Expression of • Characterize the environmental Alternative will represent the no action Interest dated December 11, 2008. The consequences of the reasonable alternative and will be used as a SNCF proposed a high-speed rail route alternatives. baseline for comparison of all to be located adjacent to existing rail • Establish the timing and sequencing alternatives. One build alternative corridors and sharing existing rail of independent actions to maintain a involves adding a second track on the corridors in urban approaches at lower state of good repair and to implement Third Street corridor to handle up to 40 speeds. IDOT intends to further study the proposed action. freight and passenger trains per day. the 220 mph project concept, including

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development of an investment-grade concern where there might be a announces that the Information business plan and the preparation of a potential for significant impacts. Public Collection Request (ICR) abstracted separate Tier 1 EIS. agencies with jurisdiction are requested below has been forwarded to the Office The Midwest Regional Rail Initiative to advise FRA and IDOT of the of Management and Budget (OMB) for (MWRRI) is an effort led by the applicable permit and environmental review and comment. The ICR describes Wisconsin Department of review requirements of each agency, the nature of the information collections Transportation and supported by eight and the scope and content of the and their expected burden. The Federal other Midwestern States to upgrade environmental information that is Register Notice with a 60-day comment Amtrak service in those States, with germane to the agency’s statutory period was published on September 2, maximum speeds of 79 to 110 mph responsibilities in connection with the 2010 (75 FR 54000). The agency depending on the level of improvements proposed Project. Public agencies are received no comments. made. A Chicago-St. Louis corridor is requested to advise FRA if they DATES: Comments must be submitted on included in MWRRI’s September 2004 anticipate taking a major action in or before March 16, 2011. Executive Report and November 2006 connection with the proposed Project ADDRESSES: Send comments, within 30 Benefit Cost and Economic Analysis. and if they wish to cooperate in the days, to the Office of Information and Additional corridors proposed by preparation of the EIS. Public scoping Regulatory Affairs, Office of MWRRI include: Chicago-Green Bay, meetings have been scheduled as an Management and Budget, 725–17th Wisconsin; Chicago-Minneapolis, important component of the scoping Street, NW., Washington, DC 20503, Minnesota; St. Louis-Kansas City, process for both the State and Federal Attention NHTSA Desk Officer. Missouri; Chicago-Cincinnati, Ohio; environmental review. The scoping Comments are invited on: Whether Chicago-Cleveland, Ohio; Chicago- meetings described in this Notice will the proposed collection of information Detroit, Michigan; Chicago-Port Huron, also be the subject of additional public is necessary for the proper performance Michigan; Chicago-Carbondale, Illinois; notification. of the functions of the Department, Chicago-Quincy, Illinois; and Chicago- FRA is seeking participation and including whether the information will Omaha, Nebraska. Several other feeder input of all interested Federal, State, have practical utility; the accuracy of corridors connecting smaller and local agencies, Native American the Department’s estimate of the burden municipalities to the primary corridors groups, and other concerned private of the proposed information collection; are also included. More information is organizations and individuals on the ways to enhance the quality, utility and available at http:// scope of the EIS. This Project is a federal clarity of the information to be www.dot.wisconsin.gov/projects/ undertaking with the potential to affect collected; and ways to minimize the rail.htm. historic properties. As such, it is subject burden of the collection of information Public Involvement: Letters describing to the requirements of section 106 of the the proposed action and soliciting on respondents, including the use of National Historic Preservation Act of automated collection techniques or comments will be sent to appropriate 1966 (NHPA) (16 U.S.C. 470(f)). In Federal, State, and local agencies, and to other forms of information technology. accordance with regulations issued by A comment to OMB is most effective if private organizations and citizens who the Advisory Council on Historic have previously expressed or are known OMB receives it within 30 days of Preservation, 36 CFR part 800, FRA publication. to have interest in this proposal. A intends to coordinate compliance with FOR FURTHER INFORMATION CONTACT: minimum of two public informational section 106 of the NHPA with the Ms. meetings will be held during the study. preparation of the EIS, beginning with Deborah Mazyck at the National In addition, a public hearing will be the identification of consulting parties Highway Traffic Safety Administration, held on the Draft EIS. Public notice will through the scoping process, in a Office of International Policy, Fuel be given of the time and place of the manner consistent with the standards Economy and Consumer Programs, 1200 meetings and of the hearing. The Draft set out in 36 CFR 800.8. New Jersey Avenue, SE., West Building, EIS will be available for public and Room W43–443, Washington, DC 20590. agency review and comment prior to the Issued in Washington, DC, on February 9, Ms. Mazyck’s telephone number is public hearing. 2011. (202–366–4139). To ensure that the full range of issues Mark E. Yachmetz, SUPPLEMENTARY INFORMATION: related to this proposed action are Associate Administrator for Railroad Policy addressed and that all significant issues and Development. National Highway Traffic Safety are identified, comments and [FR Doc. 2011–3248 Filed 2–11–11; 8:45 am] Administration suggestions are invited from all BILLING CODE 4910–06–P Title: 49 CFR Part 583—Automobile interested parties. Comments or Parts Content Labeling. questions concerning this proposed OMB Number: 2127–0573. action and the EIS should be directed to DEPARTMENT OF TRANSPORTATION Type of Request: Request for public IDOT or FRA at the addresses provided comment on a previously approved above. National Highway Traffic Safety collection of information. Scoping and Comments: FRA Administration Abstract: Part 583 establishes encourages broad participation in the requirements for the disclosure of EIS process during scoping and review Reports, Forms and Record Keeping information relating to the countries of of the resulting environmental Requirements; Agency Information origin of the equipment of new documents. Comments are invited from Collection Activity Under OMB Review passenger motor vehicles. This all interested agencies and the public to AGENCY: National Highway Traffic information will be used by NHTSA to ensure the full range of issues related to Safety Administration, DOT. determine whether manufacturers are the proposed action, and the reasonable ACTION: Notice. complying with the American alternatives, are addressed and all Automobile Labeling Act (49 U.S.C. significant issues are identified. In SUMMARY: In compliance with the 32304). The American Automobile particular, FRA is interested in Paperwork Reduction Act of 1995 (44 Labeling Act requires all new passenger identifying areas of environmental U.S.C. 3501 et seq.), this notice motor vehicles (including passenger

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cars, certain small buses, all light trucks OMB receives it within 30 days of standard equipment for the entire and multipurpose passenger vehicles publication. vehicle line. with a gross vehicle weight rating of Issued on: February 8, 2011. Under § 543.5(a), a manufacturer may petition NHTSA to grant an exemption 8,500 pounds or less), to bear labels Joseph S. Carra, providing information about domestic for one vehicle line per model year. In Acting Associate Administrator for its petition, Mitsubishi provided a and foreign content of their equipment. Rulemaking. With the affixed label on the new detailed description and diagram of the passenger motor vehicles, it serves as an [FR Doc. 2011–3194 Filed 2–11–11; 8:45 am] identity, design, and location of the aid to potential purchasers in the BILLING CODE 4910–59–P components of the antitheft device for selection of new passenger motor the Outlander Sport vehicle line. Mitsubishi will install a passive, vehicles by providing them with DEPARTMENT OF TRANSPORTATION information about the value of the U.S./ transponder-based, electronic engine Canadian and foreign parts of each National Highway Traffic Safety immobilizer device as standard vehicle, the countries of origin of the Administration equipment on its Outlander Sport engine and transmission, and the site of vehicle line beginning with MY 2012. the vehicle’s final assembly. Petition for Exemption From the Features of the antitheft device will NHTSA anticipates approximately 22 Vehicle Theft Prevention Standard; include a transponder key, electronic vehicle manufacturers will be affected Mitsubishi Motors control unit (ECU), and a passive by these reporting requirements. immobilizer. Mitsubishi will also NHTSA does not believe that any of AGENCY: National Highway Traffic incorporate an audible and visual alarm these 22 manufacturers are a small Safety Administration (NHTSA) system as standard equipment on all business (i.e., one that employs less than Department of Transportation (DOT). trimline vehicles. Mitsubishi’s 500 persons) since each manufacturer ACTION: Grant of petition for exemption. submission is considered a complete employs more than 500 persons. petition as required by 49 CFR 543.7, in SUMMARY: This document grants in full Manufacturers of new passenger motor that it meets the general requirements the Mitsubishi Motors R&D of America’s vehicles, including passenger cars, contained in 543.5 and the specific (Mitsubishi) petition for exemption of certain small buses, and light trucks content requirements of 543.6. the Outlander Sport vehicle line in with a gross vehicle weight rating of Mitsubishi stated that its entry models accordance with 49 CFR Part 543, for the Outlander Sport vehicle line will 8,500 pounds or less, must file a report Exemption from the Theft Prevention be equipped with a Wireless Control annually. Standard. This petition is granted Module (WCM). Mitsubishi stated that Affected Public: Vehicle because the agency has determined that this is a keyless entry system in which manufacturers. the antitheft device to be placed on the the transponder is located in a Estimated Total Annual Burden: line as standard equipment is likely to traditional key that must be inserted NHTSA estimates that the vehicle be as effective in reducing and deterring into the key cylinder in order to activate manufacturers will incur a total annual motor vehicle theft as compliance with the ignition. All other models of the reporting hour and cost burden of the parts-marking requirements of the Outlander Sport vehicle line are 52,962 hours and $2,355,150. The Theft Prevention Standard (49 CFR Part equipped with a One-touch Starting amount includes annual burden hours 541). Mitsubishi requested confidential System (OSS), which utilizes a keyless incurred by multi-stage manufacturers treatment for some of the information system that allows the driver to press a and motor vehicle equipment suppliers. and attachments it submitted in support button located on the instrument panel There is a decrease in the annual of its petition. The agency addressed to activate and deactivate the ignition reporting and recordkeeping hour Mitsubishi’s request for confidential (instead of using a traditional key in the burden from 55,484 to 52,962 because treatment by letter dated January 11, key cylinder) as long as the transponder the number of respondents decreased 2011. is located in close proximity to the from 22 to 21. There is a decrease in driver. Mitsubishi stated that the DATES: The exemption granted by this annual reporting and recordkeeping cost performance of the immobilizer will be notice is effective beginning with the burden from $2,467,300 to $2,355,150 the same in all models whether the 2012 model year. because there will be fewer responses. vehicle has a WCM or OSS entry The hour burden and cost burden FOR FURTHER INFORMATION CONTACT: Ms. system. Mitsubishi further stated that published in the Federal Register are Deborah Mazyck, Office of International the only difference between the two different due to errors in the Policy, Fuel Economy and Consumer keyless entry systems is the ‘‘key’’ and preliminary information provided. Programs, NHTSA, West Building, the method used to transmit the Comments are invited on: Whether W43–443, 1200 New Jersey Avenue, SE., information from the key to the the proposed collection of information Washington, DC 20590. Ms. Mazyck’s immobilizer. is necessary for the proper performance phone number is (202) 366–0846. Her Once the ignition switch is pushed to of the functions of the Department, fax number is (202) 493–2990. the ‘‘on’’ position, the transceiver including whether the information will SUPPLEMENTARY INFORMATION: In a module reads the specific ignition key have practical utility; the accuracy of petition dated November 30, 2010, code for the vehicle and transmits an the Department’s estimate of the burden Mitsubishi requested exemption from encrypted message containing the key of the proposed information collection; the parts-marking requirements of the code to the electronic control unit ways to enhance the quality, utility and Theft Prevention Standard (49 CFR Part (ECU). The immobilizer receives the key clarity of the information to be 541) for the Mitsubishi Outlander Sport code signal transmitted from either type collected; and ways to minimize the vehicle line, beginning with MY 2012. of key (WCM or OSS) and verifies that burden of the collection of information The petition requested an exemption the key code signal is correct. The on respondents, including the use of from parts-marking pursuant to 49 CFR immobilizer then sends a separate automated collection techniques or Part 543, Exemption from Vehicle Theft encrypted start-code signal to the engine other forms of information technology. Prevention Standard, based on the ECU to allow the driver to start the A comment to OMB is most effective if installation of an antitheft device as vehicle. The engine only will function

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if the key code matches the unique 3.1547 respectively. Therefore, law enforcement agencies of new identification key code previously Mitsubishi has concluded that the vehicle lines exempted from the parts- programmed into the ECU. If the codes antitheft device proposed for its vehicle marking requirements of the Theft do not match, the engine and fuel line is no less effective than those Prevention Standard. system will be disabled. devices in the lines for which NHTSA If Mitsubishi decides not to use the In addressing the specific content has already granted full exemption from exemption for this line, it must formally requirements of 543.6, Mitsubishi the parts-marking requirements. notify the agency. If such a decision is provided information on the reliability Based on the supporting evidence made, the line must be fully marked as and durability of its proposed device. submitted by Mitsubishi on the device, required by 49 CFR 541.5 and 541.6 To ensure reliability and durability of the agency believes that the antitheft (marking of major component parts and the device, Mitsubishi conducted tests device for the Outlander Sport vehicle replacement parts). based on its own specified standards. line is likely to be as effective in NHTSA notes that if Mitsubishi Mitsubishi provided a detailed list of reducing and deterring motor vehicle wishes in the future to modify the the tests conducted and believes that the theft as compliance with the parts- device on which this exemption is device is reliable and durable since the marking requirements of the Theft based, the company may have to submit device complied with its specific Prevention Standard (49 CFR Part 541). a petition to modify the exemption. Part requirements for each test. Mitsubishi The agency concludes that the device 543.7(d) states that a Part 543 exemption additionally stated that its immobilizer will provide the five types of applies only to vehicles that belong to system is further enhanced by several performance listed in § 543.6(a)(3): a line exempted under this part and factors making it very difficult to defeat. Promoting activation; attract attention to equipped with the antitheft device on Specifically, Mitsubishi stated that the efforts of an unauthorized person to which the line’s exemption is based. communication between the enter or move a vehicle by means other Further, § 543.9(c)(2) provides for the transponder and the ECU are encrypted. than a key; preventing defeat or submission of petitions ‘‘to modify an The WCM has over 4.2 billion and the circumvention of the device by exemption to permit the use of an OSS has over 2.4 million different unauthorized persons; preventing antitheft device similar to but differing possible key codes that make successful operation of the vehicle by from the one specified in that key code duplication virtually unauthorized entrants; and ensuring the exemption.’’ impossible. Mitsubishi also stated that reliability and durability of the device. The agency wishes to minimize the its immobilizer system and the ECU Pursuant to 49 U.S.C. 33106 and 49 administrative burden that § 543.9(c)(2) share security data during vehicle CFR 543.7(b), the agency grants a could place on exempted vehicle assembly that make them a matched set. petition for an exemption from the manufacturers and itself. The agency These matched modules will not parts-marking requirements of Part 541 did not intend Part 543 to require the function if taken out and reinstalled either in whole or in part, if it submission of a modification petition separately on other vehicles. Mitsubishi determines that, based upon substantial for every change to the components or also stated that it is impossible to evidence, the standard equipment design of an antitheft device. The mechanically override the system and antitheft device is likely to be as significance of many such changes start the vehicle because the vehicle will effective in reducing and deterring could be de minimis. Therefore, NHTSA not be able to start without the motor vehicle theft as compliance with suggests that if the manufacturer the parts-marking requirements of Part transmission of the specific code to the contemplates making any changes, the 541. The agency finds that Mitsubishi electronic control module. Lastly, effects of which might be characterized has provided adequate reasons for its Mitsubishi stated that the antitheft as de minimis, it should consult the belief that the antitheft device for the device is extremely reliable and durable agency before preparing and submitting Mitsubishi Outlander Sport vehicle line because there are no moving parts, nor a petition to modify. does the key require a separate battery. is likely to be as effective in reducing Mitsubishi informed the agency that and deterring motor vehicle theft as Authority: 49 U.S.C. 33106; delegation of the Outlander Sport vehicle line was compliance with the parts-marking authority at 49 CFR 1.50. first equipped with the proposed device requirements of the Theft Prevention Issued on: February 8, 2011. beginning with its MY 2011 vehicles. Standard (49 CFR Part 541). This Joseph S. Carra, Additionally, Mitsubishi informed the conclusion is based on the information Acting Associate Administrator for agency that its Eclipse vehicle line has Mitsubishi provided about its device. Rulemaking. been equipped with the device For the foregoing reasons, the agency [FR Doc. 2011–3195 Filed 2–11–11; 8:45 am] hereby grants in full Mitsubishi’s beginning with its MY 2000 vehicles. BILLING CODE 4910–59–P Mitsubishi stated that the theft rate for petition for exemption for the Outlander the MY 2000 Eclipse decreased by Sport vehicle line from the parts- almost 42% when compared with that marking requirements of 49 CFR Part DEPARTMENT OF TRANSPORTATION of its MY 1999 Mitsubishi Eclipse 541, beginning with the 2012 model (unequipped with an immobilizer year vehicles. The agency notes that 49 Pipeline and Hazardous Materials device). Mitsubishi also revealed that CFR Part 541, Appendix A–1, identifies Safety Administration the Galant, Endeavor, Outlander and those lines that are exempted from the [Docket: PHMSA–2010–0355] Lancer vehicle lines have been Theft Prevention Standard for a given equipped with a similar type of model year. 49 CFR Part 543.7(f) Pipeline Safety: Agency Information immobilizer device since January 2004, contains publication requirements Collection Activities: Notice of Request April 2004, September 2006 and March incident to the disposition of all Part for Extension of Currently Approved 2007 respectively. The Mitsubishi 543 petitions. Advanced listing, Information Collections Galant, Endeavor, Outlander and Lancer including the release of future product vehicle lines have all been granted nameplates, the beginning model year AGENCY: Pipeline and Hazardous parts-marking exemptions by the agency for which the petition is granted and a Materials Safety Administration and the average theft rates using 3 MY’s general description of the antitheft (PHMSA), U.S. Department of data are 4.8061, 2.5410, 0.9507 and device is necessary in order to notify Transportation (DOT).

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ACTION: Notice and request for Abstract: The Federal pipeline safety DEPARTMENT OF VETERANS comments. regulations (49 CFR parts 190–199) AFFAIRS require operators to conduct appropriate SUMMARY: In compliance with the underwater inspections in the Gulf of Public Availability of the Department of Paperwork Reduction Act of 1995 (44 Mexico. If an operator finds that its Veterans Affairs FY 2010 Service U.S.C. 3501 et seq.), this notice pipeline is exposed on the seabed floor Contract Inventory announces that the Information or constitutes a hazard to navigation, the Collection Request (ICR) abstracted operator must contact the National AGENCY: Department of Veterans Affairs. below is being forwarded to the Office Response Center by telephone within 24 of Management and Budget (OMB) for ACTION: Notice of public availability of hours of discovery to report the location FY 2010 service contract inventories. review and comments. A Federal of the exposed pipeline. Register Notice with a 60-day comment Affected Public: Operators of period soliciting comments on the underwater pipeline facilities. SUMMARY: In accordance with Section following information collection was Estimated number of responses: 82. 743 of Division C of the Consolidated published in the Federal Register on Estimated annual burden hours: 1,312 Appropriations Act of 2010 (Pub. L. December 7, 2010 (75 FR 76077) under hours. 111–117), Department of Veterans Docket No. PHMSA–2010–0355. No Frequency of collection: On occasion. Affairs (VA) is publishing this notice to comments were received. The purpose Comments are invited on: The need advise the public of the accessibility of of this notice is to allow the public an for the proposed collection of VA’s FY 2010 service contract inventory additional 30 days to submit comments information for the proper performance available at http://www1.va.gov/oamm/ to OMB on the information collection of the functions of the agency, including rlib/scainventory.cfm. This inventory described below. whether the information will have provides information on service contract practical utility; the accuracy of the actions over $25,000 that were made in ADDRESSES: Send comments regarding agency’s estimate of the burden of the FY 2010. The information is organized the burden estimate, including proposed collection of information, by function to show how contracted suggestions for reducing the burden, to including the validity of the resources are distributed throughout the the Office of Management and Budget, methodology and assumptions used; department. The inventory has been Office of Information and Regulatory ways to enhance the quality, utility, and developed in accordance with guidance Affairs, Attn: Desk Officer for DOT/ clarity of the information to be issued on November 5, 2010, by the PHMSA, 725 17th Street, NW., collected; and ways to minimize the Office of Management and Budget’s Washington, DC 20503. burden of the collection of information Office of Federal Procurement Policy DATES: Interested persons are invited to on those who are to respond, including (OFPP). OFPP’s guidance is available at submit comments on or before March the use of appropriate automated, http://www.whitehouse.gov/sites/ 16, 2011. electronic, mechanical, or other default/files/omb/procurement/memo/ FOR FURTHER INFORMATION CONTACT: technological collection techniques. A service-contract-inventories-guidance- Angela Dow by telephone at 202–366– comment to OMB is most effective if 11052010.pdf. 1246, by e-mail at [email protected], OMB receives it within 30 days of the FOR FURTHER INFORMATION CONTACT: or by mail at U.S. Department of date of publication in the Federal Transportation, Pipeline and Hazardous Register. Questions regarding the service contract inventory should be directed to Marilyn Materials Safety Administration, 1200 Authority: The Paperwork Reduction Act New Jersey Avenue, SE., PHP–30, Harris, Director of Acquisition Policy, of 1995; 44 U.S.C. Chapter 35, as amended; Office of Acquisition and Logistics Washington, DC 20590–0001. and 49 CFR part 1. (Policy 001AL–P2) at 202–461–6929 or SUPPLEMENTARY INFORMATION: Issued in Washington, DC, on February 8, [email protected]. Title: Pipeline Safety: Periodic 2011. Approved: February 7, 2010. Underwater Inspections. Linda Daugherty, OMB Control Number: 2137–0618. Deputy Associate Administrator for Policy John R. Gingrich, Type of Request: Renewal of a and Programs. Chief of Staff, Department of Veterans Affairs. currently approved information [FR Doc. 2011–3184 Filed 2–11–11; 8:45 am] [FR Doc. 2011–3220 Filed 2–11–11; 8:45 am] collection. BILLING CODE 4910–60–P BILLING CODE 8320–01–P

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Part II

Department of Agriculture

Rural Business-Cooperative Service Rural Utilities Service

7 CFR Parts 4279 and 4287 Biorefinery Assistance Guaranteed Loans; Final Rule

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DEPARTMENT OF AGRICULTURE and Budget. The EO defines a Environmental Impact Statement ‘‘significant regulatory action’’ as one This renewable energy program under Rural Business-Cooperative Service that is likely to result in a rule that may: Section 9003 of the Farm Security and (1) Have an annual effect on the Rural Investment Act of 2002 (FSRIA) Rural Utilities Service economy of $100 million or more or (as amended by Section 9001 of the adversely affect, in a material way, the Food, Conservation, and Energy Act of 7 CFR Parts 4279 and 4287 economy, a sector of the economy, 2008 (2008 Farm Bill)) has been RIN 0570–AA73 productivity, competition, jobs, the operating on an interim basis through environment, public health or safety, or the issuance of a Notice of Funds Biorefinery Assistance Guaranteed State, local, or tribal governments or Availability (NOFA). During this initial Loans communities; (2) Create a serious round of applications, the Agency inconsistency or otherwise interfere AGENCY: Rural Business-Cooperative conducted National Environmental with an action taken or planned by Policy Act (NEPA) reviews on each Service and Rural Utilities Service, another agency; (3) Materially alter the USDA. individual application for funding. No budgetary impact of entitlements, significant environmental impacts were ACTION: Interim rule with request for grants, user fees, or loan programs or the reported, and Findings of No Significant comments. rights and obligations of recipients Impact (FONSI) were issued for each thereof; or (4) Raise novel legal or policy SUMMARY: approved application. Taken This interim rule establishes issues arising out of legal mandates, the a guaranteed loan program for the collectively, the applications show no President’s priorities, or the principles potential for significant adverse development and construction of set forth in this EO. commercial-scale biorefineries and for cumulative effects. The Agency conducted a benefit-cost the retrofitting of existing facilities The Agency has prepared a analysis to fulfill the requirements of using eligible technology for the programmatic environmental Executive Order 12866. In this analysis, development of advanced biofuels. assessment (PEA), pursuant to 7 CFR the Agency identified potential benefits part 1940, subpart G, analyzing the DATES: This interim rule is effective and costs of the Biorefinery Assistance environmental effects to air, water, and March 16, 2011. Comments must be Guaranteed Loan Program to lenders, received on or before April 15, 2011. biotic resources; land use; historic and borrowers, and the Agency. The analysis cultural resources; and greenhouse gas ADDRESSES: You may submit comments contains both quantitative estimates and emissions affected by the Biorefinery to this rule by any of the following qualitative descriptions of the expected Assistance Guaranteed Loan Program methods: benefits and costs of the Biorefinery • proposed rule. The purpose of the PEA Federal eRulemaking Portal: http:// Assistance Guaranteed Loan Program. is to assess the overall environmental www.regulations.gov. Follow the The environmental and energy impacts impacts of the programs related to the instructions for submitting comments. associated with the Biorefinery Congressional goal of advancing • Mail: Submit written comments via Assistance Guaranteed Loan Program biofuels production for the purposes of the U.S. Postal Service to the Branch were qualitatively assessed. energy independence and greenhouse Chief, Regulations and Paperwork gas emission reductions. The impact Management Branch, U.S. Department Unfunded Mandates Reform Act analyses are national in scope, but draw of Agriculture, STOP 0742, 1400 Title II of the Unfunded Mandates upon site-by-site analysis for each Independence Avenue, SW., Reform Act 1995 (UMRA), Public Law application to the program. Site-specific Washington, DC 20250–0742. 104–4, establishes requirements for NEPA documents prepared for those • Hand Delivery/Courier: Submit Federal agencies to assess the effects of facilities funded under Sections 9003 written comments via Federal Express their regulatory actions on State, local, and 9004 of the FSRIA in FY 2008 and/ Mail or other courier service requiring a and tribal governments and the private or 2009 were utilized, as well, to street address to the Branch Chief, sector. Under section 202 of the UMRA, forecast likely impacts under the Regulations and Paperwork Rural Development generally must interim rule. The draft PEA was made Management Branch, U.S. Department prepare a written statement, including a available to the public for comment on of Agriculture, 300 7th Street, SW., 7th cost-benefit analysis, for proposed and the USDA Rural Business-Cooperative Floor, Washington, DC 20024. final rules with ‘‘Federal mandates’’ that Service’s Web site on May 3, 2010. No All written comments will be may result in expenditures to State, comments were received on the draft available for public inspection during local, or tribal governments, in the PEA, and the Agency is preparing to regular work hours at the 300 7th Street, aggregate, or to the private sector of publish a Finding of No Significant SW., 7th Floor address listed above. $100 million or more in any one year. Impact (FONSI) for the program. FOR FURTHER INFORMATION CONTACT: When such a statement is needed for a Kelley Oehler, Energy Branch, rule, section 205 of the UMRA generally Executive Order 12988, Civil Justice Biorefinery Assistance Program, U.S. requires Rural Development to identify Reform Department of Agriculture, 1400 and consider a reasonable number of This interim rule has been reviewed Independence Avenue, SW., Stop 3225, regulatory alternatives and adopt the under Executive Order 12988, Civil Washington, DC 20250–3201; telephone least costly, more cost-effective, or least Justice Reform. In accordance with this (202) 720–6819. E-mail: burdensome alternative that achieves rule: (1) All State and local laws and [email protected]. the objectives of the rule. regulations that are in conflict with this SUPPLEMENTARY INFORMATION: This interim rule contains no Federal rule will be preempted; (2) no mandates (under the regulatory retroactive effect will be given this rule; Executive Order 12866 provisions of Title II of the UMRA) for and (3) administrative proceedings in This interim rule has been reviewed State, local, and tribal governments or accordance with the regulations of the under Executive Order (EO) 12866 and the private sector. Thus, this rule is not Department of Agriculture’s National has been determined to be economically subject to the requirements of sections Appeals Division (7 CFR part 11) must significant by the Office of Management 202 and 205 of the UMRA. be exhausted before bringing suit in

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court challenging action taken under Executive Order 12372, contained in this interim rule. In the this rule unless those regulations Intergovernmental Review of Federal publication of the proposed rule on specifically allow bringing suit at an Programs April 16, 2010, the Agency solicited earlier time. Rural Development guaranteed loans comments on the estimated burden. The Agency received one comment in Executive Order 13132, Federalism are subject to the Provisions of Executive Order 12372, which require response to this solicitation. This information collection requirement will It has been determined, under intergovernmental consultation with not become effective until approved by Executive Order 13132, Federalism, that State and local officials. Rural Development will conduct OMB. Upon approval of this this interim rule does not have information collection, the Agency will sufficient federalism implications to intergovernmental consultation in the manner delineated in RD Instruction publish a rule in the Federal Register. warrant the preparation of a Federalism Title: Biorefinery Assistance Assessment. The provisions contained 1940–J, ‘‘Intergovernmental Review of Rural Development Programs and Guaranteed Loan Program. in the rule will not have a substantial OMB Number: 0570–NEW. Activities,’’ available in any Rural direct effect on States or their political Type of Request: New collection. Development office and on the Internet subdivisions or on the distribution of Abstract: The collection of at http://www.rurdev.usda.gov/regs, and information is vital for Rural power and responsibilities among the in 7 CFR part 3015, subpart V. various government levels. Development to make wise decisions Executive Order 13175 regarding the eligibility of projects and Regulatory Flexibility Act United States Department of borrowers in order to ensure compliance Agriculture (USDA) will undertake, with the regulations and to ensure that The Regulatory Flexibility Act (5 the funds obtained from the U.S.C. 601–612) (RFA) generally within 6 months after this rule becomes effective, a series of regulation Tribal Government are used appropriately (i.e., requires an agency to prepare a are used for the purposes for which the regulatory flexibility analysis of any rule consultation sessions to gain input by elected Tribal officials or their designees guaranteed loans were awarded). subject to notice and comment Persons seeking loan guarantees under rulemaking requirements under the concerning the impact of this rule on Tribal governments, communities, and this program will have to submit Administrative Procedure Act or any individuals. These sessions will applications that include specified other statute unless the agency certifies establish a baseline of consultation for information including, but not limited that the rule will not have an future actions, should any be necessary, to, the lender’s analysis and credit economically significant impact on a regarding this rule. Reports from these evaluation, financial statements on the substantial number of small entities. sessions for consultation will be made borrower, a feasibility study, a business Small entities include small businesses, part of the USDA annual reporting on plan, a technical assessment, an small organizations, and small Tribal Consultation and Collaboration. economic analysis, and a description of governmental jurisdictions. USDA will respond in a timely and the borrower’s bioenergy experience. In compliance with the RFA, Rural meaningful manner to all Tribal The information included in applications for loan guarantee will be Development has determined that this government requests for consultation used to determine applicant and project action will not have an economically concerning this rule and will provide eligibility and to ensure that funds are significant impact on a substantial additional venues, such as webinars and teleconferences, to periodically host used for projects that are likely to be number of small entities. The burden for financially sound. applying for a Biorefinery Assistance collaborative conversations with Tribal leaders and their representatives Once a project has been approved and Guaranteed Loan Program loan to any concerning ways to improve this rule in the loan has been guaranteed, lenders one borrower is estimated to be less Indian country. must submit certain reports. Some of than 0.1 percent of the estimated cost of The policies contained in this rule these reports are associated with the the average construction or would not have Tribal implications that performance of the lender’s loan reconstruction project funded under this preempt Tribal law. portfolio and include both periodic program. Further, this regulation only reports on the status of that portfolio impacts those who choose to participate Programs Affected and, when applicable, monthly default in the program. The Biorefinery Assistance reports. Other reports are associated Guaranteed Loan Program is listed in with individual projects and include Executive Order 13211, Actions the Catalog of Federal Domestic quarterly construction reports and, once Concerning Regulations That Assistance Program under Number a project has been completed, annual Significantly Affect Energy Supply, 10.865. reports through the life of the Distribution, or Use Paperwork Reduction Act guaranteed loan. In addition, lenders are required to conduct annual inspections The regulatory impact analysis The information collection conducted for this interim rule meets of each completed project. requirements contained in the Notice of The estimated information collection the requirements for Actions Funding Availability for the Section burden hours has not changed from the Concerning Regulations That 9003 Biorefinery Assistance Guaranteed proposed rule, remaining at 2,920 hours. Significantly Affect Energy Supply, Loan Program published on November Estimate of Burden: Public reporting Distribution, or Use, Executive Order 20, 2008, were approved by the Office burden for this collection of information No. 13211, which states that an agency of Management and Budget (OMB) is estimated to average 4.6 hours per undertaking regulatory actions related to under emergency clearance procedures response. energy supply, distribution, or use is to and assigned OMB Control Number Respondents: Individuals, entities, prepare a Statement of Energy Effects. 0570–0055. In accordance with the Indian tribes, units of State or local This analysis finds that this rule will Paperwork Reduction Act of 1995, the government, corporations, farm not have any adverse impacts on energy Agency is now seeking standard OMB cooperatives, farmer cooperative supply, distribution, or use. approval of the reporting requirements organizations, associations of

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agricultural producers, National (a) Any technology that is being B. Section Specific Changes Laboratories, institutions of higher adopted in a viable commercial-scale 1. Definitions education, rural electric cooperatives, operation of a biorefinery that produces public power entities, and consortia of an advanced biofuel, and A number of definitions were added, any of these entities. (b) any technology not described in revised, or removed. Estimated Number of Respondents: paragraph (a) above that has been The Agency added one definition: ‘‘Biobased product’’ was added in 23. demonstrated to have technical and order to further clarify the biorefinery Estimated Number of Responses per economic potential for commercial definition. Respondent: 27.4. application in a biorefinery that The Agency revised several Estimated Number of Responses: 630. produces an advanced biofuel. definitions as follows: Estimated Total Annual Burden on On April 16, 2010 [75 FR 20044], the • Business plan. The Agency clarified Respondents: 2,920. Agency published a proposed rule for the wording of this definition. E-Government Act Compliance the Biorefinery Assistance Guaranteed • Existing businesses. The Agency Loan Program. Comments were clarified the wording of this definition. Rural Development is committed to requested on the proposed rule, which • Farm cooperative. The Agency complying with the E-Government Act, are summarized in Section III of this revised the definition to be generally to promote the use of the Internet and preamble. Most of the proposed rule’s consistent with the definition being other information technologies to provisions have been carried forward used in the value-added producer grant provide increased opportunities for into 7 CFR part 4279, subpart C, and 7 program. citizen access to Government CFR part 4287, subpart D, although • Feasibility study. The Agency information and services, and for other there have been several significant replaced ‘‘capabilities’’ with ‘‘feasibility’’ purposes. changes. Changes to the proposed rule to clarify the definition. I. Background are summarized in Section II of this • Local owner. The Agency revised preamble. the rule to remove the reference to the Rural Development administers a feedstock supply area and now defines multitude of Federal programs for the Interim rule. USDA Rural Development is issuing this regulation local owner as ‘‘an individual who owns benefit of rural America, ranging from any portion of an eligible advanced housing and community facilities to as an interim rule, effective March 16, 2011. All provisions of this regulation biofuel biorefinery and whose primary infrastructure and business residence is located within a certain development. Its mission is to increase are adopted on an interim final basis, are subject to a 60-day comment period, distance from the biorefinery as economic opportunity and improve the specified by the Agency in a Notice quality of life in rural communities by and will remain in effect until the Agency adopts the final rule. published in the Federal Register.’’ providing the leadership, infrastructure, • Material adverse change. The venture capital, and technical support II. Summary of Changes to the Agency revised the definition by that enables rural communities to Proposed Rule replacing ‘‘might’’ with ‘‘would likely’’ prosper. To achieve its mission, Rural jeopardize loan performance. Development provides financial support This section presents changes from • the April 16, 2010, proposed rule. Most Project. The Agency corrected the (including direct loans, grants, and loan term ‘‘biobased byproduct’’ to ‘‘biobased guarantees) and technical assistance to of the changes were the result of the Agency’s consideration of public product.’’ help enhance the quality of life and • Technical and economic potential. provide the foundation for economic comments on the proposed rule. Some changes, however, are being made to The Agency added to the definition the development in rural areas. ‘‘ ’’ clarify proposed provisions. Unless phrase successfully completed when Section 9003 of the Farm Security and referring to the 12-month operating Rural Investment Act of 2002 (FSRIA) otherwise indicated, rule citations refer to those in the interim rule. cycle. (as amended by Section 9001 of the Lastly, the Agency revised several Food, Conservation, and Energy Act of A. Highlighted Changes definitions associated with capital ratios 2008 (2008 Farm Bill)) provides for to refer to the Federal Deposit Insurance financial assistance in the form of grants The following highlight significant Corporation regulations in general. and loan guarantees to assist in the changes to the rule: The Agency removed several development of new and emerging • Revised the maximum percent definitions—Agency, byproduct, future technologies for the development of guarantee provisions, including adding recovery, immediate family, regulated or advanced biofuels. At this time, provisions to allow for a 90 percent supervised lender, and surety. Congress has not appropriated any guarantee for loan amounts of $125 • The term ‘‘Agency’’ was removed discretionary funding, which would be million or less under certain conditions. from the definitions because it is necessary to fund program grants. • Added refinancing as an eligible defined in § 4279.2 and does not need Therefore, the interim rule only project purpose under certain to be repeated in the interim rule. addresses loan guarantees. If and when conditions. • The term ‘‘future recovery’’ was funds for grants are appropriated and removed because the term is not used in • Removed location in a rural area as received by the Agency, it will be the interim rule. a requirement for project eligibility; necessary for the Agency to promulgate • The term ‘‘immediate family’’ was however, it is included in a scoring a separate regulation for program grants. removed because the term was only criterion in order to receive points for The interim rule establishes the used for the citizenship requirement, that criterion. Biorefinery Assistance Guaranteed Loan which has been removed. Thus, the • Program to provide loan guarantees for Removed the citizenship term is no longer used in the rule. the development, construction, or requirement for borrowers. • The term ‘‘regulated or supervised retrofitting of commercial biorefineries • Revised the minimum retention lender’’ was removed because of the using eligible technology, where eligible requirement to 7.5 percent of total loan revision made to identify eligible technology is defined as: amount. lenders.

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• The specific definition for the term provided to the lender under the loan obtain legal authority prior to loan ‘‘surety’’ was removed; the rule now note guarantee. closing. refers to how the term is commonly 5. Sale or Assignment 10. Project Eligibility used in the industry. The Agency revised the sale or Changes made to project eligibility 2. Lender Eligibility Requirements assignment provisions to rely solely of include: The Agency modified § 4279.202(c)(1) the sale or assignment provisions of the • Replacing the requirement that the to make the definition of eligible lender Business and Industry Guaranteed Loan project must be located in a rural area similar, but not identical, to the program found at § 4279.75. with the requirement that the project definition of traditional lender in the 6. Minimum Retention must be located in a State. Note that the Business and Industry Guaranteed Loan project must be located in a rural area Program. The Agency notes that, under The Agency revised the minimum to receive points under the ‘‘potential for the interim rule, savings and loan retention provisions to rely on the rural economic development’’ scoring associations, mortgage lenders, and minimum retention provisions of the criterion. other lenders (those that are not Business and Industry Guaranteed Loan • Clarifying that the project must use regulated lenders) are not eligible to program found at § 4279.77, except that an eligible feedstock for the production participate in this program. the lender is required to hold 7.5 of advanced biofuels and biobased The Agency modified the rule to percent (rather than 5 percent) of the products (at proposal, only advanced require that the lender meet acceptable total loan amount in its own portfolio. biofuels was identified) to be consistent levels of capital at the time of 7. Ineligible Purposes with the authorizing legislation. application and at the time of issuance • Revising the proposed requirement As proposed, projects in excess of $1 of loan note guarantee, thereby that ‘‘more than 70 percent of the million that would likely result in the removing the requirement of revenue generated by the biorefinery transfer of jobs from one area to another maintaining acceptable capital levels at must be from the sale of advanced and increase direct employment by all times. biofuel’’ to now require that the majority more than 50 employees and projects in The Agency also clarified that, if the of the production generated by the excess of $1 million that would increase information to calculate these levels of biorefinery must be advanced biofuels. direct employment by more than 50 capital is not identified in the Call If the biorefinery produces biobased employees, if the project would result in Reports or Thrift Financial Reports, the products and, if applicable, an increase in the production of goods lender will be required to calculate byproduct(s) with an established BTU for which there is not sufficient these levels and provide them to the content, majority biofuel production demand, or if the availability of services Agency. will be based on BTU content of the Lastly, the Agency added a provision or facilities is insufficient to meet the advanced biofuel, the biobased product, addressing lenders that are under a needs of the business, would have been and byproduct. Alternatively, if there is cease and desist order from a Federal ineligible purposes, as they are in the no established BTU value for the agency. In such instances, the Agency Business and Industry Guaranteed Loan biobased product or the byproduct will evaluate the lender’s eligibility on program. The Agency has removed these produced, then majority biofuel a case-by-case basis given the risk of types of projects as ineligible; that is, production would be based on output loss posed by the cease and desist order. such projects would be eligible for a volume of the advanced biofuel, the guaranteed loan under this program. biobased product, and, if applicable, the 3. Independent Credit Risk Analysis The Agency has determined that to ‘‘ ’’ byproduct. The Agency revised $100,000 to continue excluding such projects is • ‘‘$125,000,000.’’ unnecessary for this program because Adding a provision that the advanced biofuel must be sold as a 4. Conditions of Guarantee the program’s primary focus is on the development of renewable energy biofuel unless otherwise approved by The Agency revised the rule to technologies and not on job creation. the Agency and determined to be in the indicate that both the guaranteed and best financial interests of the unguaranteed portions of the entire loan 8. Fees government. • must be secured by a first lien and that The Agency removed the cross- Revising the rule to include any the Agency may consider a subordinate reference to the Business and Industry organic matter that is available on a lien position on inventory and accounts Guaranteed Loan program and replaced renewable or recurring basis from non- receivable for working capital loans if it with provisions specific to this Federal land or eligible tribal land, certain conditions are met. program. The only substantive change is including municipal solid waste The Agency also clarified that the the elimination of reference to the consisting of renewable biomass, lender remains bound by all obligations option to lower the guarantee fee to 1 biosolids, treated sewage sludge, and under the loan note guarantee, Lender’s percent, which was never intended to be byproducts of the pulp and paper Agreement, and Agency program part of this program. industry, as eligible feedstock. regulations even if all or a portion of the The Agency has added provisions that • Clarifying that an advanced biofuel loan note guarantee has been sold to a allow it to adjust the guarantee fee and that is converted to another form of holder. the annual renewal fee through the energy for sale will still be considered Lastly, the Agency incorporated publication of a Federal Register notice. an advanced biofuel. provisions associated with rights and The Agency has added a 3 percent 11. Guaranteed Loan Funding liabilities specific to this program, guarantee fee for loans with a 90 percent rather than relying on the corresponding guarantee. The Agency has made several changes provisions in the Business and Industry in this section, including: Guaranteed Loan program found at 9. Borrower Eligibility • Clarifying that the borrower needs § 4279.72(b), to clarify that having a The Agency removed the citizenship to provide the remaining 20 percent holder purchase part of the loan note requirement. In addition, the Agency from other non-Federal sources to guarantee does not increase the coverage clarified that the borrower must have or complete the project.

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• Revising the loan guarantee In addition, the interest rates discounting. The value of intellectual amounts associated with the maximum provisions found in the Business and property may not exceed 30 percent of percent guarantees; Industry Guaranteed Loan program at the total value of all collateral. • Allowing a maximum guarantee of § 4287.112 also apply to this program. 90 percent for loan requests of $125 16. Guarantee Applications 14. Terms of Loan million or less and identifying the i. Application submittal, deadlines, conditions under which the Agency The maximum repayment period has been revised from ‘‘20 years or 85 and process. Reference to paper copies may issue a 90 percent guarantee. has been replaced with reference to the • Adding a provision that loans made percent of the useful life of the project, use of the annual Federal Register notice with the proceeds of any obligation the as determined by the Agency, to identify the applicable method(s) of interest on which is excludable from whichever is less’’ to ‘‘20 years or the application submittal. income under the Internal Revenue useful life of the project, as determined Code are ineligible. by the lender and confirmed by the ii. Lender’s analysis and credit Agency, whichever is less.’’ analysis. The Agency added a provision 12. Subordination of Lien Position The Agency also removed the cross- requiring the lender to identify whether The Agency moved this provision to reference to § 4279.126(d) and inserted the loan note guarantee is requested the servicing section and corrected the corresponding text specific to this prior to construction or after completion cross-reference (from § 4279.123 to program (see § 4279.232(d)). of the construction of the project; § 4287.123). 15. Credit Evaluation revised the requirement that the 13. Interest Rates required personal credit report be from The Agency made several changes to an ‘‘acceptable’’ credit reporting In addition to removing the proposed the provisions for demonstrating the company to an ‘‘Agency-approved’’ provisions associated with blended rates borrower’s equity. One change allows credit reporting company; added a and the 1 percent interest rate cap from equipment and qualified intellectual requirement that personal credit reports the interim rule, the Agency has project (in addition to real property as are required from key employees of the was proposed) to be used to meet the significantly revised this section to now borrower; added a provision to allow equity requirement, but clarifying that rely on the interest provisions found in the Agency to obtain personal credit this provision applies to only existing the Business and Industry Guaranteed reports when the borrower is a biorefineries and not to new Loan program at § 4279.125, with corporation listed on a major stock biorefineries. In addition, the Agency several exceptions: exchange; and deleted the provision that • The rate on the unguaranteed clarified that equity cannot include stated credit reports are not required for portion of the loan cannot exceed the other direct Federal funding. elected and appointed officials when rate on the guaranteed portion of the The Agency clarified that the project the borrower is a public body or non- loan by more than 500 basis points; equity must be demonstrated at the time • Variable rate loans will not provide the loan is closed. profit corporation. for negative amortization nor will they With regard to collateral, the Agency iii. Feasibility study. Several changes give the borrower the ability to choose added provisions that it may consider, were made to the contents of the its payment among various options; and for both existing and new biorefineries, feasibility study as summarized in the • Both the guaranteed and the value of qualified intellectual following table. Note that only elements unguaranteed portions of the loan must property, arrived at in accordance with that were changed are shown in the be amortized over the same term. GAAP standards and subject to table.

Feasibility area Change(s)

Economic ...... • Added feedstock risks. • Revised documentation of woody biomass feedstock to apply only to woody biomass feedstock sourced from National Forest system lands or public lands. • Added ‘‘or sold to’’ when referring to biobased by-products and producer associations and coopera- tives. Market ...... • Redefined risks to address competitive threats and advantages and specific market risks. Technical ...... • Removed ‘‘any constraints or limitations in the financial projections and any other facility or design- related factors that might affect the success of the enterprise.’’ • Under Risk Related to: added ‘‘Design-related factors that may affect project success.’’ Financial ...... • Added reference to ‘‘uses of project capital.’’ • Revised the provision of project balance sheets, income and expense statement, and cash flow statements from 3 years to over the useful life of the project. Management ...... • Added biofuel production, acquisition of feedstock, and marketing and sale of off-take to the list of areas to be covered when describing the borrower and management’s previous experience. • Added risks related to management strengths and weaknesses. Note: No changes were made to: Executive Summary and Qualifications.

iv. Economic analysis. The elements V. Scoring information. The Agency 17. Lender Certification of the economic analysis have been added a paragraph requiring that the incorporated in the economic feasibility application must contain information in The lender is now required to certify and financial feasibility sections of the a format that is responsive to the scoring that ‘‘the lender concludes that the feasibility study and proposed criteria. project has technical merit’’ rather than § 4279.261(i) has been removed from the certify that ‘‘the project is able to rule as a separate provision. demonstrate technical merit.’’

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18. Scoring Criteria fiscal year in which the application is score applications. These changes are The Agency revised the date it will received. summarized in the following table. Note score each completed application it The Agency also made numerous that only criteria that were changed are receives from June 1 to May 1 in the changes to the criteria it will use to shown in the table.

Criterion Change(s)

Borrower has established a market ...... • Added requirement for the advanced biofuel to meet an applicable renewable fuel standard in order to be awarded points. • Reduced the percent commitment from 60 to 50 percent. • Increased points from 5 to 10. Location of biorefinery relative other • Revised to read ‘‘any other similar advanced biofuel facilities.’’ similar biorefineries. Use of feedstock not previously used in • No changes were made to this criterion. the production of advanced biofuels. Working with producer associations and • Corrected example. cooperatives. • Instituted a two-tier system that begins awarding points at a 30 percent threshold. • To be awarded points, must meet one of the three provisions, not all three as proposed. • Replaced ‘‘advanced biobased byproducts’’ with ‘‘biobased products’’. Level of financial participation by the • Reduced points from 20 to 15. borrower. Impacts on resource conservation, pub- • Increased maximum points from 5 to 10 and redistributed the points. lic health, and environment. • Added examples to each of the three impact areas. • Added provision to deduct 5 points if feedstock can be used for human or animal consumption. Significant negative impacts on existing • Increased points from 5 to 10. facilities. • Added provision that if the feedstock is wood pellets, no points would be awarded under this cri- terion. Rural economic development potential ... • Added provision that the project be located in a rural area to be awarded points under this criterion. • Removed reference to the median household wage in the State such that only the County median household wage is used in awarding points. • Increased points from 5 to 10. Level of local ownership ...... • Decreased points from 15 to 5. Project replication ...... • Increased points from 5 to 10. Use of feedstock for human or animal • Removed as a separate criterion and incorporated provision for deducting points under the ‘‘Impact consumption deduction. on resource conservation, public health, and environment’’ criterion. Use of technology, system, or process • Decreased points from 15 to 5. not in operation in the fiscal year. Applications that promote partnerships • Added provision to award Administrator bonus points. and other activities that further the purpose of the program as stated in the authorizing legislation.

19. Ranking of Applications the project identified in the conditional of lien position to this section (see commitment. § 4287.307(g)). The Agency modified when it will The Agency revised the transfer and rank applications and when 21. Requirements After Project assumption provisions to cross- applications are due for each of the two Construction reference this rule rather than the rankings. The Agency also modified The Agency added a requirement to Business and Industry Guaranteed Loan slightly the process that will be used to report on the actual amount of biobased rule. rank applications, which includes product and, if applicable, byproducts The Agency revised the default by allowing an application to be competed produced. borrower provisions by removing the cross-reference to the corresponding in two consecutive competitions. This 22. Servicing has the effect of allowing applications Business and Industry Guaranteed Loan submitted during the second application The Agency is allowing the financial program provisions and inserting text period of a fiscal year to be carried over statements to be submitted within 180 specific to this program. This change to the next fiscal year. Conforming days rather than the 120 days required was made to correct an incorrect cross- changes were made in the section under § 4287.107(d). reference. addressing ranked applications not The Agency made a conforming The Agency revised the liquidation change in § 4287.307(d) that, for funded. provisions to correct an incorrect cross- working capital loans, the Agency may reference in § 4287.157(d)(13) 20. Conditions Precedent to Issuance of consider a subordinate lien provided it concerning appraisals. Loan Note Guarantee is consistent with the conditional 23. Fiscal Year 2009 and Fiscal Year provisions specified in § 4279.202(i)(1). The Agency added to the introductory The Agency determined that the 2010 Loan Guarantees text that the lender can request the interest rate adjustment provisions of Prior to this interim rule, applications guarantee prior to construction, but § 4287.112(a)(2) should not apply to this were processed and guaranteed loans must still certify to all conditions in this program and has revised the rule to were serviced according to the section. The Agency also added a new exclude those provisions. provisions in the November 20, 2008 (73 requirement that the lender certify that As noted earlier, the Agency moved FR 70544), March 12, 2010 (75 FR the borrower has provided the equity in the provisions concerning subordination 11840), or the May 6, 2010 (75 FR

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25076) Federal Register notice, as required by any prudent commercial likelihood as evidenced by an invitation applicable. Because of the changes the loan committee reviewing the loan to submit a Phase II application), may Agency has made to the servicing of itself. The commenter believes a choose not to apply and instead allocate loans guaranteed under the Biorefinery preapplication process for the program limited personnel resources to other Assistance Guaranteed Loan Program, will only be of benefit to lenders and tasks. there may be entities that would prefer borrowers if it includes a sign-off by the Response: The Agency has decided to have a guaranteed loan serviced Agency as to completeness of the not to implement a preapplication under the provisions of the interim rule application. The commenter believes it requirement. Because the information rather than under the provisions in the would be a waste of time to review a that would be required in the three Federal Register notices pursuant project for acceptability and then review preapplication would be similar to that to which their guaranteed loans were it again for guarantee issuance; the in a formal application, a preapplication made. The Agency has determined that review of a partial and then complete would be duplicative and add further such entities should be afforded the application would only serve to slow burden to the lender and Agency. The opportunity to access the servicing down a process that we are seeking to Agency can meet with the lender/ provisions of the interim rule. expedite. potential borrower prior to application Therefore, the Agency has added a new One commenter believes that a submission to discuss the scoring provision to this effect in the interim preapplication process would only add criteria and informally review the rule. another step in the program and would proposal and application material not further the intent and effectiveness completed to date. III. Summary of Comments and of the program. Similarly, another Comment: One commenter suggests Responses commenter states that a preapplication that a qualification form be written and The proposed rule was published in should not be required as it increases posted on the Agency Web site that the Federal Register on April 16, 2010 the burden of required paperwork. would be accessible to all. The (75 FR 20044) with a 60-day comment One commenter recommends that, commenter recommends that such a period that ended June 15, 2010. rather than preapplications, specialists form would contain, at a minimum, Comments were received from 42 be available to assist in evaluating how scoring criteria; equity requirements and commenters yielding 352 individual a given project application would likely detailed examples of allowable equity; comments on the proposed rule, which score against the program criteria. eligible borrowers; eligible technologies; have been grouped into categories based One commenter encourages the eligible uses of loan proceeds; and on similarity. Commenters included Agency to consider a pre-application approval timelines. The commenter also biorefinery owner/operators, process similar to the two-phase process suggests that a blog page be community development groups, employed by the Department of Energy implemented to make available industry and trade associations, in its current solicitation (DE–FOA– questions and answers, new investment banking institutions, Rural 0000140) for Title XVII loan guarantees, information, comments, and suggestions Development personnel, and the lack of which the commenter on an interactive basis. individuals. As a result of some of the identifies as an obstacle for applying for Response: The rule provides comments, the Agency made changes in assistance. This process would be applicable eligibility criteria and so no the rule. The Agency sincerely beneficial to the extent the changes were made to the rule based on appreciates the time and effort of all ‘‘preapplication process’’ is similar to this comment. The Agency is currently commenters. Responses to the the two-phase process that the U.S. revising the USDA Web site and will comments on the proposed rule are Department of Energy (DOE) is using in consider the suggestions offered by the discussed below. its current solicitation for Title XVII commenter. The Agency will also loan guarantees. Requiring less than a consider preparing an application guide. Requested Comments— ‘‘full-blown’’ application in Phase I so Comment: One commenter a. Preapplications that the Agency can determine recommends implementing a pre- Comment: Two commenters state that eligibility and ‘‘invite’’ those applicants application process that does not a preapplication process that serves as with a reasonable likelihood of success require a lender-of-record. The first a screening process could be very to apply in Phase II would relieve some hurdle for participation in the section helpful to all parties. One of the burdens from applicants. Phase I could 9003 program is convincing a lender to commenters states that considerable include a basic application, a letter commit resources to a project for due effort is required to develop an commitment from the borrower to diligence, feasibility studies, term sheet application package that may ultimately pursue Phase II if invited to apply and development, and filing of an not score high enough to meet eligibility the applicant (lender) to lend a specified application. The program requirements requirements. In addition, lenders have amount to the project if the Agency are not conducive to lenders, to commit to the application process agrees to guarantee the loan (subject to particularly in light of the inherent risks with no reference as to how the Agency other customary conditions precedent), associated with first-of-kind commercial will view the project. One option would along with an overview of the project advanced biofuel projects. Applications be to move the feasibility study reflective of the scoring criteria. This from several companies are being held (§ 4279.261) and the evaluation scoring would reduce the level of diligence that back simply because a lender-of-record (§ 4279.265) into a preapplication lenders would have to conduct for could not be found to begin the process. process. Screening and filtering out Phase I and shift this diligence to Phase The structure that the Agency has ineligible or otherwise low scoring II when the success of an application is created is counter to how private debt projects would streamline the overall more likely. This may entice additional transactions are generally arranged. process and improve program qualified lenders to participate and Typically, an investment bank efficiencies. result in the Agency receiving more represents the company/project and One commenter states that the Phase I applications. A phased approaches lenders to underwrite the application requirements, which appear application process would also reduce loans. Then, the lender will conduct to be rather lengthy and burdensome, the burden on the borrower, who, prior extensive due diligence on the project contain elements that should be to issuance of the loan (or a greater and decide whether or not to lend and

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on what terms. The proposed structure, ‘‘Lender of Record,’’ as defined to mean program because the purpose of this however, requires the lender to be the holder of a portion of the program is the creation of advanced identified from the beginning, without unguaranteed debt, to conduct all of that biofuel biorefineries and limiting any indication from the Agency as to due diligence up front is both feedstock eligibility would not further whether or not there will be a guarantee unnecessary and unfeasible in this the program’s purposes. from the Agency. market. To protect the Agency from One commenter recommends The commenter recommends phasing outstanding conditional commitments, allowing byproducts from pulp and in applications in two parts as follows: without the ability to close on the paper if they can be upgraded to higher Part I (Pre-application)—The guarantee, a 6-month time limit could value products compared to power investment bank representing the be placed on submitting a Part II generation, and scoring them equally to project submits an application (similar application. other feedstock. Another commenter to the current application) along with Response: With regard to a pre- also recommends that byproducts from the project company. The Part I application process, for the reasons the paper and pulp industry be eligible, application contains the level of due noted in an earlier response, the Agency if the byproducts meet the criteria of not diligence required by the Agency and is not implementing a pre-application being consumed in a higher value use. gives the Agency comfort that an process. Response: The program allows for a accredited, U.S. Securities and As a matter of practice, the Agency is variety of feedstock. The feedstock must Exchange Commission (SEC)-regulated available to meet with potential be renewable biomass, other than corn entity is representing the project and borrowers and/or lenders prior to the kernel starch, as defined in the statute. attesting to the project’s attributes and submittal of an application for a specific The statute requires that the materials, risks. The Agency reviews that project. pre-commercial thinnings, or invasive application and makes a determination, The Agency further requires that a species from National Forest System based on its review, whether a project formal application be submitted from an land or public lands cannot be used for should receive a ‘‘Letter of Intent’’ to eligible lender. From the formal higher value products. This ‘‘higher proceed to Part II. application forward, the eligible lender value’’ criterion does not apply to Part II—Once a Letter of Intent is will be the primary point of contact for byproducts of the paper and pulp issued, the project then seeks a lender the project with the Agency. industry. for the guaranteed portion of the debt Comment: Six commenters note that and a lender/investor for the Requested Comments—b. Feedstock the proposed rule limits the types of unguaranteed portion of the debt. The Comment: One commenter feedstock that can be used to produce latter is going to be the key participant recommends removing the restriction, biofuels under the program. The House and the one who will conduct a ‘‘no corn feedstock,’’ from tandem USDA Conference Report for the 2008 Farm significant amount of due diligence to and DOE programs in the instance of Bill—House Report 110–627, p. 1048, decide whether or not to take the risk biobased chemicals, products, and lines 3–8—specifically provides that: on investing/lending for the materials only. The commenter states ‘‘Examples of lignocellulosic or unguaranteed portion of the debt. The that corn has long given the U.S. a hemicellulosic matter that is available result of that due diligence and a competitive advantage in the biofuel on a renewable or recurring basis decision to invest should then be industry and that it may be our include dedicated energy crops and submitted to the Agency as a Part II country’s only advantage in the clean trees, wood and wood residues, plants, ‘‘application,’’ which is really more of a energy sector. The Agency should not grasses, agricultural residues, fibers, collection of due diligence findings. The eliminate the advantage of a highly animal wastes and other waste company and the original investment efficient industrial product, engineered materials, and municipal solid wastes.’’ bank could even certify as to its specifically for use in industry and not The commenters believe that the accurateness and then the Agency can for food consumption. The Agency Conference Managers undoubtedly review that final deliverable prior to should, instead, advocate for any intended that municipal solid waste can issuing a guarantee and closing the advantage in reaching our country’s be used as a feedstock and state that the transaction. goals to achieve both renewable fuel Agency has chosen to ignore this letter. The commenter recognizes that a standards and U.S. government Instead, the Agency notes in the potential Agency concern is that the biobased product procurement program proposed rule: ‘‘The Agency believes appropriate level of due diligence goals. that the statute clearly defines eligible would not be conducted unless a lender One commenter believes that feedstock and no further clarification is is on the hook for some portion of the feedstock currently used for the needed in the proposed rule.’’ unguaranteed portion of the loan. production of food, other on-site energy The commenters believe that the However, the fact that there is an production, and in other industries public interest is not served by limiting unguaranteed note means that an should not be diverted to new energy the number and types of technologies investor or lender will do a tremendous production, and that the current that can be used to build biorefineries, amount of due diligence prior to proposal to exclude cellulosic feedstock or in limiting the types of feedstock that agreeing to lend/invest in the and ‘‘corn kernel starch’’ is sound and are available for use and can provide an unguaranteed portion, which is a reasonable, and fits within the Agency’s economic benefit to rural America. The condition precedent for the Agency to guidelines, purpose, and intent. commenters urge the Agency to modify issue a final loan guarantee and close a Response: The Agency notes that the the proposed rule to specifically state deal. If the Agency’s concern is that exclusion of corn kernel starch is a that municipal solid waste can be used proper due diligence is being done, the statutory requirement and cannot be as a feedstock, in conformity with the Agency should be confident that it will changed by this regulation. However, express intent of the House Conference be done prior to the closing of the cellulosic feedstock is eligible under Report for the 2008 Farm Bill. transaction and the issuance of a loan this program. One commenter also recommends guarantee, because there is an Comment: One commenter believes stating that municipal solid waste can unguaranteed portion of the debt that that all biorefineries using any eligible be used as a feedstock and treating has to be placed. But by requiring the feedstock should be eligible for the municipal solid waste materials as a

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homogeneous feedstock eligible to be manner, it is imperative that waste included, but that these lists should not used in biofuels production, consistent materials be used to produce other be construed as limiting these with standard recycling practices. advanced products and be utilized in definitions to those feedstock listed, but One commenter recommends the greatest way to achieve energy rather as examples of the term being including biosolids, or treated sewage production and reduce greenhouse gases defined. sludge and its byproducts, as an eligible (GHG). The commenter asserts that any fuel feedstock, and that facilities producing Response: The Agency partially agrees derived from algae, whether blue-green, advanced biofuels, solid and liquid, with the commenters. The Agency has cyanobacteria, or seaweeds, meets the from biosolids be allowed to apply for revised the rule to clarify that municipal definition of ‘‘advanced biofuel’’ in all program funds. solid waste is an eligible feedstock, but respects, perhaps limited only by One commenter recommends only to the extent that it meets the Section 9001(12)(B). Algae are not corn including all biodegradable solid wastes statutory definition of renewable starch, and it is explicitly included as to further expand the types of feedstock biomass. It is unlikely that an example of ‘‘renewable biomass.’’ The that can be utilized. homogeneous, unsegregated municipal commenter would object to any efforts One commenter recommends solid waste would meet this definition. by the Agency or other stakeholders to expanding the traditional definition of The Agency has also revised the rule to exclude algae by administrative biomass to take advantage of new include as eligible feedstock any organic discretion. This would be contrary to technologies that convert additional matter that is available on a renewable clear Congressional support for the organic matters into energy—such as or recurring basis from non-Federal land inclusion of algae as ‘‘renewable biosolids. Such an expanded definition or eligible tribal land, including biomass’’ and, therefore, an eligible of ‘‘renewable biomass’’ would take biosolids, treated sewage sludge, and feedstock. The commenter believes the account of population growth in our byproducts of the pulp and paper Agency views algae as an important rural communities and the industry. The Agency notes that ‘‘black feedstock to meeting the mandates environmental impacts of the traditional liquor,’’ a byproduct of the pulp and imposed by the Renewable Fuel methods of biosolids disposal on such paper industry, is not an eligible Standard (RFS) as evidenced by the loan rural communities. Additionally, the feedstock, because it includes inorganic guarantee issued to Sapphire Energy in Agency would be encouraging the material and, therefore, does not meet 2009. The commenter applauds the recycling and reuse of a substantial the definition of renewable biomass. Agency for taking the leading role in renewable organic feedstock—biosolids, Comment: One commenter states that supporting the development of the algae further expanding our nation’s sources their technology is complementary to industry as a vital sector of the broader of energy. Specifically, the commenter recycling and will not use paper that is agricultural industry poised to play an proposes that the definition of commonly recycled. However, if paper important role in securing America’s ‘‘renewable biomass’’ be expanded as is mixed with municipal solid waste energy independence and rural job follows to include: ‘‘(iii) Renewable instead of being collected separately, it growth. In sum, the commenter suggests waste materials and byproducts cannot be recycled and should, thus, be that the Agency resist excluding resulting from the treatment of sewage, considered a waste material for the feedstock as being ‘‘eligible’’ if such including biosolids, fats, oils, and grease production of biofuels. Therefore, the feedstock would qualify under section and other byproducts.’’ commenter urges the Agency to broadly 9003. Similarly, one commenter define waste material, consistent with Response: The Agency agrees and recommends expanding the definition common recycling practices. Further, considers the list provided by statute to of ‘‘Advanced biofuel’’ as follows to the commenter requests that the Agency be illustrative, but not exclusive. No include: ‘‘(iii) Biofuel (solid or liquid) not establish separate compliance change was made to the rule in response derived from waste material, including obligations for various component parts to this comment. crop residue, other vegetative waste of the waste stream, such as paper. The Comment: Two commenters urge the material, animal waste, food waste, yard commenter, instead, recommends that Agency to exercise caution when waste, and treated sewage waste, the Agency provide additional guidance considering limitations on feedstock for residues and byproducts.’’ According to on the eligibility of paper, so that soiled use in biorefineries. The commenters the commenter, specifically including paper, which is not recyclable, be encourage the Agency to support biosolids in the definition of ‘‘renewable included in the definition of waste feedstock that increase the overall biomass’’ as an eligible feedstock, and material. potential of the biomass industry qualifying the definition of ‘‘advanced Response: The Agency considers through widespread applicability, biofuels’’ to include treated human soiled paper mixed with other organic creation of jobs, and a positive impact sewage waste materials, will encourage municipal solid waste to be eligible on national security, while excluding the wide-spread adoption of sewage-to- renewable biomass. In § 4279.228(c), the support for feedstock that compete with energy technologies and further efforts phrase ‘‘consisting of renewable food or harm the environment. Outside by Congress and the Administration to biomass’’ was added after the term of these specific areas, however, the develop all sources of renewable energy ‘‘municipal solid waste’’ in the commenters encourage the Agency to and create jobs in green technologies. description of eligible feedstocks. remain as feedstock neutral as possible One commenter states there should be Comment: One commenter in order to allow both the feedstock and no restriction on feedstock used and encourages the Agency to refrain from biofuels industry to innovate freely. In that the definition of feedstock needs to limiting feedstock eligibility for the the notice of proposed rulemaking be expanded to include municipal program unless a particular feedstock is (NPRM), the Agency notes: ‘‘At this sludge as an acceptable feedstock. The prohibited by Section 9003. The stage in the development of the biofuels commenter states that, with the current commenter agrees that ‘‘the statute industry, it is impossible to know what need and demand for biofuels, it is clearly defines eligible feedstock and no technologies will become the most imperative that there should not be a further clarification is required.’’ The effective.’’ The same is true of feedstock. restriction on the type of feedstock used. commenter states that both Section Another commenter also encourages In addition to producing advanced 9001(3) and 9001(12) of the 2008 Farm the Agency to remain as feedstock- biofuels in a sustainable, efficient Bill contain lists of feedstock that are neutral as possible in order to allow the

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feedstock and biofuels industry to for the production of advanced biofuels that Congress intended that the Agency innovate freely. The commenter believes and green power. grant some level of preference to rural the Federal government has a dubious Response: The Agency disagrees with development, it does not support an track record when it attempts to pick the recommendation to exclude any interpretation that would preclude the winners and losers in the energy space, feedstock based solely on the basis of issuance of loans to facilities in non- and the advanced biofuels sector should GHG life-cycle emissions of the rural areas. The commenter states that, be no exception. The commenter warns resulting advanced biofuel. The as with citizenship requirements, if against excessive limitations on feedstock must be renewable biomass, Congress intended that rural feedstock for use in biorefineries. other than corn kernel starch, as defined development be a prerequisite, it would Concerns over competition with food or in the statute. However, to help address have explicitly stated so. harm to the environment are legitimate such environmental considerations as One commenter states that the rural and should be addressed; however, the GHG life-cycle emissions, the Agency location requirement will unfairly Agency should also take into account has revised the scoring criteria such that exclude biorefineries that make quality the overall potential of the biomass an advanced biofuel must meet an fuels, utilize domestic feedstock, and industry through widespread applicable renewable fuel standard as benefit American farmers and their applicability, creation of jobs, and a identified by the U.S. Environmental communities. The commenter believes positive impact on national security. Protection Agency (EPA) in order to that any biorefinery constructed in the A third commenter states that the receive points under the first scoring U.S. that provides jobs for U.S. workers regulations need to provide sufficient criterion. and utilizes domestic agricultural flexibility so that the refinery can The Agency is currently considering feedstock produced by American minimize the cost of its biofeedstock. To various models related to life-cycle farmers should be eligible for a loan accomplish this, it is essential that the analysis and has not identified an guarantee under the program. The rules be feedstock-neutral. The appropriate model at this time. Should commenter believes that this was the commenter understands that there are as a model be selected by the Agency, the intent of Congress, and is consistent many as 3,200 potential biofeedstock rule will be amended accordingly. with the national renewable energy and and that the economic viability of a Requested Comments—c. Rural Area energy security goals. The commenter given feedstock is likely to vary Requirement recommends removing the proposed significantly by region. The commenter rural location requirement in the final Comment: Four commenters rule for biomass grant, loan, and loan believes it is inappropriate at this stage recommend not restricting a biorefinery to single out one or more specific guarantee programs. to a rural area. Restricting the location One commenter states that, given that feedstock or those with specific of a biorefinery to a rural area is, in feedstock availability and reliability is characteristics that would disqualify theory, a logical extension of an already paramount to success, any location that their use in a biorefinery supported by established value-added agriculture can support a successful project should the section 9003 program. That decision industry. At first blush, it serves the be allowed, especially if the site was should be made in concert with the purpose of the 2008 Farm Bill to boost chosen in order to achieve feedstock Agency when an application is being the rural economy. However, as the availability and reliability. The same evaluated based on all relevant economic crisis continues, more could be said for off-take agreements if sustainability issues. The commenter flexibility of site selection, not less, the chosen feedstock can be brought to also believes that it will be necessary to should be installed in these programs. the proposed site easily, yet the off-take provide the ability to utilize alternative The commenters believe that restricting requirements necessitate a non-rural feedstock on an opportunistic basis in these vital programs to rural areas is not location. For example, for a project with the event that they are economically only impractical and illogical, but Fisher-Tropsch output to make advantageous to use. fundamentally unfair to urban economic sense, the biorefinery would Response: The Agency agrees with the communities in desperate need of need to be co-located with an existing commenters and is not trying to exclude economic revitalization and job fossil fuel refinery, which may not be in any eligible feedstock. The Agency creation. The Agency, therefore, should a rural area. As another example, in notes, however, that it wants to enable biorefineries to develop order to have access to the largest encourage all advanced biofuels, except wherever there is market potential possible geography for off-take, if a in very limited specific instances (e.g., regardless of whether that area is rural. project must be located in a port facility feedstock that can be used for human or One commenter further states that the that is in a non-rural area, this should animal consumption) and that, beyond siting of biofuel facilities will be be equally allowed. such instances, it does not want to limit dependent on available feedstock, The commenter also states that the specific feedstock from participation in infrastructure, logistics, and other program will only succeed in the event the program. factors. Undoubtedly, many advanced that proposed projects can minimize Comment: One commenter states that biofuel facilities will be located in rural overall risk as much as possible. Project any exclusion to the definition of areas due to feedstock availability. location can have a huge impact on this feedstock should be based solely upon However, to the extent that qualifying issue. Rather than citing ‘‘consistency GHG life-cycle emissions. For example, renewable biomass is located in other with other programs’’ as a justification if a specific feedstock is estimated to areas, the Agency should not discourage for a proposed rule, the criteria should produce fuel that causes no significant utilization of these resources by be tailored to the needs of this specific reduction in life-cycle GHGs compared excluding non-rural facilities from program. In this case, any location that to conventional fuels, or causes more eligibility for the payments program. makes it easier to achieve project emissions than conventional fuels, the Additionally, the scoring criteria in financing should be allowed without Agency should consider excluding such Section 9003(e)(1)(C) also demonstrate exception. There should be no feedstock from the list on that basis. that ‘‘the potential for rural economic restrictions on location for this program. One commenter states that conversion development’’ is merely one of ten It could make sense for a different technologies, on a life-cycle basis, are factors that the Agency is directed to program targeted at the scale-up of among the cleanest methods available consider. While this scheme indicates commercially proven technologies, but

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in this context adds unnecessary areas denies the supporting rural Awarding points to projects based on additional burdens to achieving already community significant opportunity. their level of economic impact to a rural challenging lender financing criteria. One commenter states that winter community is consistent with the One commenter opposes the rural barley from the rural community is key Agency’s mission and allows maximum area requirement, stating that to the success of their project. opportunity for the commercialization biorefineries located in nonrural areas According to the commenter, an of domestic advanced biofuels in the should be eligible. Nowhere in the independent economic analysis U.S. Dedicated energy crops, such as authorizing legislation for this proposed determined that their project will create carnelian, are grown in rural areas. rule did Congress even suggest that the an additional $100 million in revenue to Thus, the commenter encourages Rural section 9003 program be limited to rural rural farmers and create 450 farm jobs, Development to consider a project’s areas. For the Agency to go outside the clearly demonstrating that the location in a rural area or its feedstock’s statute and make such a biorefinery does not need to be in a rural origins as plus factors in the recommendation is puzzling at the very rural area to fulfill program goals. In evaluation criteria. Many non-rural least, given the difficulty companies some circumstances, the decision of advanced biofuel refining projects can already face in opening biorefineries. where to site a facility will be based on yield substantial economic benefits for The commenter states that the Agency infrastructure often not available in rural America, in addition to increasing should encourage biorefineries to rural areas (power, natural gas, energy independence, decreasing develop wherever there is market transportation modes). Excluding greenhouse gas emissions, and potential, regardless of whether that facilities that are not within a strict diversifying agricultural markets. Thus, area is rural, in order to meet the definition of a rural area denies the a more inclusive approach would Agency’s goal for an overall Federal supporting rural community significant maximize the impact of the section 9003 renewable energy strategy designed to opportunity. program. foster the development of a strong, One commenter states that their One commenter believes that, while expanding, and sustainable group of research indicates that biofuel refinery the definition of a rural area should be business plans will produce biofuels renewable energy industries in the U.S. included, the definition proposed is too that cost substantially more than JetA to supply an increasing share of the broad. The commenter requests deleting and diesel. The commenter believes it is country’s energy needs. the wording ‘‘and the contiguous and vital to minimize biofuel costs where adjacent urbanized area’’ through the One commenter, while recognizing airlines are supporting development of remainder of the paragraph ending with the importance for the Agency to biofuel refineries by long-term cost plus the words ‘‘otherwise considered not in increase economic opportunity and purchase contracts. The commenter a rural area under this definition.’’ The improve the quality of life in rural states that early research suggests that use of ‘‘not more than 2 census blocks,’’ communities, cautions against defining biofuel costs would be reduced by using and ‘‘contiguous and adjacent urbanized ‘‘rural area’’ with too much restriction, as much existing infrastructure as area’’ appears intended to make the potentially disqualifying ideal sites for possible throughout the entire supply definition of rural as broad as possible, biorefineries that would, in fact, meet chain (this includes delivery pipelines, which is unwarranted and the program goals and increase refinery facilities, and agricultural inappropriate. The Agency’s scarce economic opportunity in rural infrastructure) and that requiring a funding dollars should focus on truly communities, but may be located in biorefinery to be located in a rural area rural areas particularly those further areas that do not fit the program is likely to make it impossible to use away from larger cities and more definition. Offering eligibility to some existing infrastructure, most densely populated areas. The benefits of facilities in non-rural communities is particularly at refineries. The job creation should go to actual rural critical to the success of the program commenter recognizes that the purpose areas, not simply those areas that are goals and the advanced biofuels of the program is to support business adjacent to rural areas. industry. Restricting the location of development in rural areas, and One commenter states that, while the these facilities is not necessary to proposes that biorefineries that are not proposed rule states that projects that maintain the spirit of enhancing rural located in rural areas, but obtain more are located in areas determined to be development and the geographic than 75 percent of the dollar value of ‘‘rural in character’’ will be eligible, it diversity of advanced biofuels their raw materials from rural America, does not explain how this nebulous production. More flexibility of site should qualify for the program. determination will be made except to selection, not less, should be installed One commenter states that, to say in the same manner as in the in these programs. maximize the rural economic benefits of business and industry (B&I) guaranteed The commenter further states that the section 9003 program in furtherance loan program. The commenter believes having a consistent, cost-competitive of the Agency mission, a project’s that this terminology is far too broad regional supply of feedstock is key to location in a ‘‘rural area’’ be removed as and should not be allowed for the success of any project. Non-rural a threshold eligibility requirement and, determining rural areas. B&I guaranteed plants that use agricultural feedstock instead, that a project’s rural economic loans are much smaller than those will most certainly rely on the benefits be added as an evaluation envisioned in this program and the surrounding rural communities to criterion to proposed § 4279.265(d). commenter believes the program should produce, harvest, store, and handle Rural Development’s mission to truly serve rural areas. Allowing rural feedstock needs. With feedstock cost enhance the quality of life and areas to be defined in the manner stated representing the largest operational cost economic foundation of rural is completely arbitrary and could open of a biorefinery this, in turn, means that communities would be furthered by a the program to abuse and unnecessary most of what the plant spends goes to more comprehensive evaluation of a criticism. the rural community in paying for that project’s potential rural economic One commenter states that the rural feedstock. This should demonstrate that benefits. A project’s rural economic area requirement needs to be amended the biorefinery does not need to be in impact is not only determined by the because many of these facilities have to a rural area to fulfill program goals. location of the biorefinery, but by the be located where there are essential Excluding plants that are not in rural origin of the feedstock as well. infrastructure, land available and

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specialized jobs, which is usually in the of eligible and ineligible areas for the that they need government grants, loans, larger communities. Facilities should be purpose of including companies that are and loan guarantees to attract investors allowed to be located in communities located in cities. The commenter states who understand green investment. The larger than 50,000 if they are proposing that they would be eliminated solely investors who understand green to obtain a certain percentage (like due to the Agency’s classification of investment are often foreign, where the greater than 25 percent) of their location population. Presently, the clean tech investment framework is feedstock from rural areas. This will Agency defines a City to be greater than readily understood. Yet, the U.S. loan help farmers, rural businesses and rural 50,000 persons. The City of Erie holds guarantees put a 49 percent limitation cities find markets for their feedstock approximately 102,036 persons and the on foreign investment. In the age of a (solid waste, grease, crops, etc). By Borough of Wesleyville holds global economy, this citizenship allowing them to be located in urban approximately 3,617 persons. Therefore, requirement is impractical and areas, it will increase the number of according to the Agency eligibility map, ineffective. It inhibits the purpose of the sites available to locate these facilities both the City of Erie and the Borough of program to incentivize private equity but at the same time increase feedstock Wesleyville are deemed ineligible areas. investment in the sector and may lead markets for rural residents. Until these The commenter requests expanding to job outsourcing. An increase in types of energy projects are well the boundaries that define the location private equity in this sector is the key developed and mature, the commenter population to define a city as a populace to multiple goals of current U.S. believes that all barriers that they may of over 500,000 to 1,000,000 persons domestic policy. Green job creation, be encountering should be mitigated. versus 50,000 persons. reduced dependence on foreign oil and One commenter believes that, for new Due to the present classification by reaching climate change reduction goals projects, implementing the rural area the Agency, the commenter is not all benefit the country and taxpayers requirement will help the Agency fulfill qualified to apply for any Agency irrespective of funding sources. its mission to improve economic funding programs (grants or loans) As a regulatory matter, a 51 percent conditions of rural America. However, because the commenter is located in an determination of domestic investors is with regard to retrofitting of existing area that encompasses the City of Erie untenable. An investor’s domicile often biodiesel facilities, this requirement and its outlying areas, even though they cannot be discerned as foreign or may not be practical as many existing have low population. domestic. A successful, ready to scale facilities are no longer in production The commenter states that their plant biochemical company is usually funded and are not all located in rural areas and has the versatility to run on various by a number of sources, both foreign an exception should be considered if the feedstock from non-vegetable oils to and domestic, often made up of venture viability of the project is otherwise animal fats to agricultural feedstock funds with investment from around the strong. such as soy. It is also located on Lake world, funds of funds, and independent One commenter supports the Erie where it has access to shipping, two investors alike. To discern whether or requirement that the program only be interconnected railroads (CSX and not the individual owners or investors used for biorefineries in rural areas. The Norfolk Southern), I–90 and I–79. Thus, of a fund, that owns a fund, that is commenter believes that the program it can easily bring in feedstock and ship invested in a particular portfolio should be targeted to rural economies. out finished biodiesel. The commenter company has 51 percent U.S. Response: In consideration of all of states that, if they could be deemed ownership, is not only impractical, it is the associated comments reflected above located in an applicable area, then they impossible. on rural area, the Agency has, as a could apply for Agency funding and Additionally, the citizenship matter of policy, reconsidered the build on relationships with local/ requirement is hurting rural America. proposed rural area requirement. The domestic farm institutions. The policy is delaying the beneficial impacts of the program will Response: As noted in the previous administration’s ability to reach its generally be in rural areas even if the response, the Agency has reconsidered economic goals for rural America and biorefinery is located in an area that the proposed rural area requirement and energy independence goals for the does not meet the proposed rural area has removed it from the rule as an country. The commenters hope that the definition, because biomass production eligibility criterion. Thus, the Agency will use all of the resources is expected to occur largely in rural applicant’s facility would be eligible for available to help the administration areas and, thus, rural economies will participation in this program. The reach its energy independence goals by benefit from the increased use of Agency notes that the definition of removing all citizenship requirements. biomass. The Agency is, therefore, ‘‘rural area’’ is broader than previously Rural Americans that benefit from the removing the proposed rural area used by the Agency and includes jobs created by these biorefineries do requirement from the rule as an provisions for allowing urbanized areas not care about the ownership of the eligibility criterion. to qualify for being ‘‘rural in character.’’ biorefineries. The jobs provide much The Agency notes, however, two needed economic stability for local provisions of the interim rule. First, the Requested Comments—d. Foreign economies. The commenters state that project must still be located in a State Ownership Congress did not include eligibility in order to participate in this program. Comment: Numerous commenters restrictions as part of the program and Therefore, the Agency has modified the recommend eliminating the 51 percent the Agency’s decision is a significant location requirement so the project must U.S. citizen ownership requirement in departure from Congressional intent. be located in a State, as defined in biomass grant, loan, and loan guarantee Rural Development regulations were § 4279.2. Second, the project must be programs. U.S. government grants, implemented when our rural economy located in a rural area in order to receive loans, and loan guarantees are a large looked significantly different from points under the potential for rural piece of incentivizing private financing today’s rural economy. The commenters economic development criterion (see for large-scale commercial projects. This believe that the creation of biorefineries § 4279.265(d)(8)). incentive is diminished by requiring at should be promoted in rural America, Comment: One commenter least 51 percent domestic ownership. It regardless of ownership. recommends redefining the definition of presents the green business world with One commenter further states that the ‘‘location population’’ classification a conundrum. The commenters note Congress specifically outlined the

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definition of ‘‘eligible entity’’ and chose or legally admitted for permanent commenter state that transparency is not to include any citizenship residence instead of 51 percent. It will needed from USDA and OMB in requirements. Had Congress intended to allow for additional investment from advance to know what the lending do so, it would have done so explicitly. non-U.S. investors that may have a authority is at the beginning of the fiscal Another commenter states that to higher comfort level in investing in year. Without that information, impose such a restriction without being these types of energy projects. These applicants do not want to apply, and mandated to do so by statute is types of energy projects are more lending institutions do not want to take counterproductive and will delay the advanced in other countries, so foreign the time to support the application if development of new technologies and investors are more familiar with the there is not adequate funding for the thwart achievement of the section 9003 technology and are willing to invest in programs. program’s purpose. To the extent the these projects. Banks in Europe are also Response: The Agency will provide, Agency considers citizenship of the more familiar with financing these types by Notice, the available program level borrower, it should be limited to the of projects, so they may feel more funding for a specific fiscal year. No requirements of section 9003 and comfortable to finance a project in the change was made to the rule in response consider it only as one of many factors U.S. if one of their existing customers in to this comment. in evaluating and scoring an Europe is investing and developing an Evaluation and Approval Process application. energy project in the U.S. Two commenters recommend One commenter believes that the Comment: One commenter believes considering foreign ownership in the foreign ownership requirement should that the evaluation and approval process context of all of the benefits of any given be strengthened to eliminate the may be an obstacle. The evaluation project and make decisions on a case- automatic presumption that companies process must be transparent and clearly by-case basis rather than establishing an traded on U.S. stock exchanges are 51 stated with established timelines for the inflexible limit on the percentage of percent owned by persons who are approval process. foreign investment. either citizens or legally admitted Several commenters state that the One commenter offers this provision: permanent residents residing in the U.S. evaluation process must be transparent, The proposed rulemaking requires that, One commenter states that the clearly stated, with established if the borrower is an entity other than proposed rule makes eligibility timelines for the approval process. an individual, it must be at least 51 parameters extremely broad as almost These commenters recommend holding percent owned or controlled by any U.S. citizen or corporation with a pre-application and post-application individuals who are either citizens or majority U.S. ownership is eligible. The meeting at the state office, at a legally admitted permanent residents commenter agrees with the citizenship minimum, to discuss the procedure and residing in the U.S. When an entity requirements as one way to partially the requirements with the applicant and owns an interest in the borrower, that limit the scope of those eligible for loan the lending facility. Large projects take entity’s citizenship will be determined funding. intense coordination, management, and by the citizenship of the individuals Response: The Agency has incur the up-front expense of who own an interest in the entity or any determined that it is in the best interests permitting, detailed engineering, and subentity based on their ownership of furthering the Administration’s goal other development costs. The financing interest. Similarly, if the borrower is a of increasing the production of program must be implemented within subsidiary, the parent entity or the advanced biofuels to broaden the the same schedule as the other tasks to entities that have an ownership interest Biorefinery Assistance Guaranteed Loan properly complete the project on time in that borrower must also be at least 51 Program applicability to include making and under budget. percent owned by individuals who are loans to eligible domestic or foreign- Response: With regard to establishing either citizens or nationals or legally owned advanced biofuel refineries. timelines for the approval process, the admitted permanent residents residing Agency disagrees that this is possible in the U.S. Requested Comments—e. Program because timing varies dependent on the One commenter recommends that Obstacles unique characteristics of applications non-U.S. ownership be permitted and The Agency received numerous submitted. With regard to transparency, that, if points are awarded for local comments on program obstacles and the Agency is satisfied that the ownership, the Agency consider ways to improve the program. Please evaluation and approval process is awarding points based on estimated job note that for those comments received transparent and, for those applications creation. On the whole, the commenter under this section that are the same or that are denied, the Agency advises the supports rational requirements for new similar to comments made on specific lenders accordingly and provides them technologies that will foster rural provisions within the rule, the Agency appeal rights. development as those industries have a has grouped such comments with those Lastly, with regard to the suggested chance to grow. comments made on the specific rule meetings, as noted in an earlier One commenter recommends that, as section rather than presenting them response, the Agency can meet with the long as the ownership of the project has below in this section. lender/potential borrower prior to at least 25 percent U.S. citizenship, the application submission to discuss the Total Loan Guarantee Amount project be equally eligible. Given the scoring criteria and informally review challenges to achieve funding sources to Comment: Several commenters the proposal and application material date, the program should be open to the recommend publishing the total loan completed to date. Further, Agency widest possible sources of funding. guarantee amount, not just the monetary personnel are always available to One commenter recommends fiscal appropriation. With all USDA answer questions. allowing borrowers that are entities that loan guarantee programs, there is a are other than individuals to be owned multiplier risk calculation that is set by Guarantee During Construction or controlled by less than 51 percent of OMB for each annual appropriation, Comment: Several commenters state either citizens or legally admitted for which allows the total of the loan that it is imperative that the section permanent residence. The percentage guarantees awarded to be greater than 9003 loan guarantee continue to cover could be 34 percent of U.S. ownership the actual cash appropriation. The the construction period. No other

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funding mechanism currently exists that budgets as proposed. Every major EPC which is provided for in the interim rule could fund during the construction contractor has software programs and (see § 4279.229(e)(7)). period without the loan guarantee in policies and procedures in place that Bond Financing place. would provide this kind of reporting One commenter states that, to be a and which has previously been used for Comment: One commenter advocates complete program, the loan guarantees government contracting projects. This the Bond Loan Model as the most must include the construction period. would also assist in organizing the efficient financing mechanism for One commenter states that one of the application to become a living renewable energy projects and states it greatest needs in renewable energy document that could then be utilized to can be executed in a more cost-effective financing is construction financing. The begin the construction process and used and timely manner than conventional commenter recommends setting up the throughout the life of the project, financing transactions utilizing the section 9003 program to provide its thereby saving time and resources. Conventional Loan Model, particularly guarantee at the outset of the project’s Response: The Agency does not object in light of the lack of commercial banks’ construction so that the guarantee to the incorporation of elements of a willingness to commit to loans of 15 to covers the construction risk. It appears project management plan in the 20 years. this may be the case based on the technical report. However, the Agency Three commenters recommend reference in § 4279.256(e), but this is neutral on the use or brand of project financing through the use of corporate should be made expressly clear that management software. bonds. One commenter states that they such coverage is to be available recently reviewed a proposed corporate Total Project Guarantee routinely. bond structure that would allow Response: The rule allows the Agency Comment: One commenter companies to issue 15 to 25 year non- to guarantee the project prior to recommends utilizing the program to amortizing bonds that would have the construction or after completion of the guarantee the full cost of a project, not Agency guarantee attached. This would construction. The Agency has revised just the biofuels portion. significantly reduce the cost of the rule in §§ 4279.261 and 4279.281 to Response: The authorizing legislation borrowing and provide a creative clarify this. does not allow the Agency to guarantee alternative to conventional commercial the full cost of a project. bank financing. The commenter believes Forms Comment: Several commenters using the loan guarantee program in Comment: Several commenters recommend utilizing the loan guarantee support of this type of structure would recommend that the Agency prepare to purchase, build, and operate all the provide a very viable financing source and provide fillable servicing reporting collateral necessary to develop the total for these projects and would help forms for lending institutions to provide project, not just the biofuels portion. achieve the overall objectives of creating the lender with a manageable, easy to Because of the nature of biomass-to- a biorefinery industry. use format for fulfilling the section 9003 biofuel production, there can be, and One commenter states that, because reporting requirements. One of the main usually is, a significant portion of waste they are recognized as a more freely concerns that lenders face is the fiber material that is best utilized by tradable instrument than loan possibility of losing the Agency gasifying, burning, or converted in some participations, the interest cost to guarantee through improper or form that is usually ultimately borrowers (bond issuers) is often lower misunderstood reporting requirements. manufactured into renewable electricity with bonds than with traditional loans. The Agency should provide actual or another power product. Alternatively, By not recognizing the predominant forms and a section 9003 program the waste material is utilized in the method for financing large commercial reporting guidance document to all production of animal feed or fertilizer. projects, the section 9003 program will lenders, as well as post the documents These products are also vitally likely not attract the larger producers of on the Agency Web site for full review. important in providing sustainable, advanced biofuels and, equally An Agency primary contact person long-term profitability and production important, will likely not attract the should also be provided to the lender for the project and can greatly enhance investment banking firms that are during the application process as well the production capabilities of the needed to facilitate these complex as throughout the loan servicing region. The loan guarantee should cover financings. The commenter suggested process. all of the expenses of the entire project. language for allowing the use of Response: The Agency will take this Other expenses that are not listed in this corporate bonds. comment into consideration as it rule but should be included are the cost Three commenters recommend develops the forms for the of buildings, engineering fees, utility allowing borrowers to issue notes or implementation of the regulation. interconnect studies and infrastructure, bonds directly to accredited investors by Applicants may always consult the vehicles, natural gas and electricity way of capital markets offerings for both Agency’s National Office Energy infrastructure costs, road upgrades or the guaranteed and unguaranteed Division with any questions they may construction, and bonding and portions. Two of the commenters point have during the application process and insurance costs. out that the proposed rule allows only loan servicing process. Response: The Agency disagrees with for the sale of indirect ‘‘participations’’ the recommendation to cover all of the in the unguaranteed portions, with the Technical Reports expenses of the entire project. The original lender retaining title to the Comment: Several commenters Agency anticipates an over-subscription notes, and does not contemplate the sale recommend modifying the technical of the program. Therefore, the Agency’s of notes or bonds in the capital markets report to include elements of a project intent is to focus the program’s limited (except with respect to the sale of the management plan that can be used by funding resources on core project costs, guaranteed portion to accredited the applicant, lender, EPC (engineering, which are identified in the interim rule investors). procurement, and construction) as eligible project costs (see The commenters state that banks are contractor, and the Agency to properly § 4279.229(e)). As the program matures, unwilling to fund the unguaranteed evaluate, benchmark, and complete the the Agency may consider whether to portion of the loans. The commenters project within the time frames and expand the list of eligible project costs, point out that, in the current market,

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only institutional investors are able, involvement with the transaction. quality loan servicing, as well as the through capital markets transactions, to Servicing is handled by a trustee who involvement of knowledgeable, assume the perceived level of risk on reports to and is controlled by the professional investors well-qualified to the unguaranteed portion of the loans. investors. The Agency considers that evaluate and manage risks. Efficient capital markets transactions, this is an investment instead of a loan Response: The Agency can only including the sale of bonds, will require and that its current authority is consider bond financing where the the direct sale by the borrower of notes insufficient to guarantee investments. lender purchases all bonds and sells or bonds to investors. As is market Recognizing the current difficulties in and/or participates thereafter. In all practice, a trustee would act on behalf securing funding, the Agency has been scenarios, the lender is responsible and of the bond investors as a class with the approving certain bond transactions. controls the servicing of the loan. In original lender performing the role of The Agency considers that, under the addition, the lender would be required Collateral, Inter-creditor and limitations contained in this regulation, to fully control any trustee related to the Administrative Agent on behalf of all guaranteeing these bonds is in keeping bond financing. lenders, investors and the Agency. In with its authority. In order to be more Regarding eligible lenders, the rule that role, the original lender will transparent of its willingness to reflects requirements that are similar to perform all of the servicing duties guarantee certain bond transactions, the the requirements for a traditional lender contemplated under the proposed rule. Agency has modified this regulation under the Business and Industry One commenter encourages the accordingly. guaranteed loan program. The Agency Agency to consider utilization of bond Specifically, the lender is required to has determined that its current authority financing mechanisms in order to provide the loan proceeds and service would not permit using an investment expand opportunities for debt finance the loan. The Agency will allow a bank bond model. Unlike the authority where traditional credit markets are trustee to provide limited servicing only given to the Department of Energy that tight as one way to reduce program if the trustee is fully under the control permits the guarantee of debt obstacles. The commenter believes that of the lender. Holders’ rights are limited obligations in addition to loans for the currently proposed requirements to receiving payments under the note or several of its programs, the authority for dramatically reduce the number of bond and if those payments are this program is limited to guaranteeing lenders that will be willing to work with delinquent making demand for payment loans. the program due to the current bank on the lender and the government as Comment: One commenter states that market and high-risk associated with provided in the regulation. In certain several banks have noted the limitation this new industry. The Agency can cases where the lender and borrower on the participation of noncommercial address this problem by expanding the desire to change the loan terms, the bank lenders. Given the size of the loan definition of eligible lender to enable holder is also required to consent to any required to construct a commercial utilization of the bond market in changes. Loans providing holders any cellulosic ethanol facility, addition to the bank market. The bond other rights are ineligible for guarantee noncommercial bank participants will market is favorable at this time because under this program. likely be critical to any effort in it is largely untapped in comparison Comment: Several commenters completing financing of a project. The with the bank market, it is more flexible recommend including the option to commenter states that they are aware of than traditional commercial lending, utilize bond financing. The section 9003 discussions to use the loan guarantee and it eliminates a substantial portion of program has already established a program to guarantee bonds sold to the risk for the lender. This can be precedent in funding a project through accredited investors. Given the apparent accomplished by permitting a corporate the use of bonds. The need for lender lack of appetite in the debt markets, trustee and investment bank to, participation through the section 9003 expanding the program to cover the collectively, function as an ‘‘eligible program can be met through use of an bond market will increase potential lender’’ for purposes of taxable corporate appropriately structured bond program financing options for cellulosic projects. bond transactions. to achieve effective financing in today’s One commenter states that they have One commenter states that the capital markets. contacted numerous banks and regulation needs to clearly state if bonds The commenters recommend insurance companies and have been are allowed, what type of bonds should expanding the section 9003 program to unable to locate a commercial lender to be allowed, who can issue the bonds, (1) permit treatment of large commercial finance the debt portion of a project who can purchase the bonds, and how banks or investment banks with despite the section 9003 program. they are to be serviced. substantial corporate trust practices as Although the financial market Response: The Agency is authorized ‘‘eligible lenders’’ when acting as a bond conditions of the past 18 months have to guarantee loans, which in certain trustee and (2) find that the ‘‘minimum contributed to some degree to this circumstances may include bonds as retention’’ requirements are met if the challenge, the lack of available lenders described below, under this program. bank, in its capacity as bond trustee, has less to do with the recent debt crisis The Agency considers that this requires holds 100 percent of the legal title to the and more to do with structural issues a lender to make the loan from its underlying corporation debt obligation with the program. The section 9003 resources and then service that loan and to related mortgage and security program today is modeled after the B&I itself. While the Agency will permit the interests, even if the beneficial interests guaranteed loan program and requires a lender to secure limited servicing are participated out and held by a commercial lender to apply for the responsibilities from third parties, the controlled number of sophisticated, guarantee. This model has worked fine lender must remain responsible for the institutional investors. for the B&I guaranteed loan program servicing. For purposes of the section 9003 because the typical loan size is The Agency considers this as distinct program, the commenters advocate the sufficiently small. There are hundreds, from the typical investment banking expansion of the lending criteria to if not thousands, of small rural banks scenario, where an investment bank include a structured bond financing that can fund small guaranteed loans. secures the financing from outside approach, which will assure the Agency The section 9003 program, targeted at investors. After the funding is secured, of safety and soundness in the lending much larger projects with debt the investment bank has no further activity it guaranties, including high components that start at $70 million and

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go up from there, quickly outstrips the the servicing of the loan. In addition, Dairy Industry and Department of capabilities of rural and even regional the lender would be required to fully Defense Set-Asides banks. The remaining lenders are ‘‘too control any trustee related to the bond Comment: Several commenters big to fail’’ sized banks that have little, financing. In addition to other recommend setting aside special funds if any, experience with USDA programs. provisions, the Agency has tried to for USDA partnership efforts with the The only way for Wells Fargo, and even make the program more attractive to dairy industry and the Department of Rabo Bank, to fund one of these loans commercial lenders by revising the rule Defense (DoD). In recent months, the requires a high level executive decision to allow either 20 years or useful life of Agency has entered into a memorandum to create a whole new line of business. the project (removing the ‘‘85 percent’’ of understanding (MOU) with the dairy So far that has not happened and provision associated with useful life), industry with the intent of developing expectations are that not much progress whichever is less, to allow more flexible anaerobic digester technology and will be made in this arena. terms for loans. providing a reduction of greenhouse gas As a result, the commenter states that emissions. This technology has not been they have been working with the Special Program fully implemented in dairies because of Agency, specifically Undersecretary the high cost and low profit margins Tonsager and his team, to determine Comment: Several commenters how best to adapt the program to the use recommend implementing a special from currently used technologies. of the commercial bond market which is section 9003 advanced biofuels However, advanced integrated biofuels a far better solution for the following guaranteed loan-bond program for the technologies have been developed that reasons: Gulf Coast and Eastern seaboard region dramatically increase efficiencies and 1. Bond investors provide ‘‘patient’’ to stimulate the economy ravaged by the provide profitable returns for investor- capital that provides term lengths that recent Gulf oil spill crisis. The Go-Zone owners. The Agency can assist in this match the project life better than a Bond funding and other business effort by supporting larger projects that commercial loan. stimulus programs were vitally are greater than the $25 million cap in 2. Bonds do not include ‘‘sweep’’ instrumental to getting these regions the Rural Energy for America Program. provisions whereby the commercial additional financial support that Utilizing a 90 percent loan guarantee for bank lender ‘‘sweeps’’ any excess cash stimulated business creation and the these projects, and low or no fees will generated to reduce the principal of the rebuilding of the region. For the also additionally incentivize the growth loan. When this happens, it reduces the advanced biofuels industry, the primary of these technologies in this market segment. returns to equity investors and thereby feedstock that is the most reliable to The Agency also recently entered into makes it much more difficult to attract date ‘‘woody biomass’’ is found in this a partnership agreement with the Navy equity capital. same region in greater volumes than to assist in developing advanced 3. The bond market is 10 times larger anywhere else in the country. than the commercial debt market. biofuels for fleets and vehicles. Five 4. Higher levels of due diligence are Response: The Agency understands energy targets have been adopted by the performed than is true with small the commenters’ concerns. However, the Navy to reduce conventional fuel use. lenders because a professional Agency wants to encourage the This will require an intense effort and investment bank performs the geographic distribution of projects coordination by the advanced biofuels underwriting and the bond investors throughout the U.S. and its territories industry just to supply the Navy this also does similar due diligence. and not tailor the program to specific type of fuel, notwithstanding the RFS 5. Loan servicing is performed by a events. The Agency notes that there are requirement and other industry needs. It trustee that has a higher level of other methods to address specific events is vitally important to our national professionalism and process technology described by the commenter (e.g., security that the Agency can provide to assure greater compliance and overall Presidentially-declared disaster areas). assistance to both the industry and the loan processing. In the worst case Navy in this effort through assisting in scenario of liquidation, these trustees Demonstration Funding for Pilot and the development, implementation and are far more capable of making debt Demonstration Scale Projects financing of these new biofuels projects holders whole than is a small lender. Comment: Several commenters that must be implemented to meet such The commenter proposes the bond recommend implementing the a demand. Response: The Agency is not market alternative because of the demonstration funding portion of the establishing the set asides referenced in challenges with loans of the size needed section 9003 program to include pilot the comment because the Agency has for section 9003 projects and the lack of and demonstration scale projects adopted a policy of wanting to have a availability of lenders willing to providing grants under the section 9003 participate. The additional minimum program that is technologically, program to assist in providing criteria in the proposed rule will make geographically, and feedstock neutral. additional financial support, because it even more difficult to find lenders Such a set aside would provide these types of projects typically do not willing to participate. The commenter preferences for specific feedstock and cash flow on a commercial scale. This believes that the bond market approach technologies inconsistent with this intermediate step is a vitally important not only meets the criteria of the policy. The Agency believes that one in developing these new program as provided by the statute, but feedstock, geographic, and technology technologies to the commercial stage, provides benefits in terms of lower risk neutrality are critical to meeting the and needs funding to allow deserving, to the Agency and better screening of purposes of the program, which is to sustainable technologies to move to projects. encourage broad-based advanced biofuel Response: For the reasons previously commercialization. production practices, technologies, and stated, the Agency can only consider Response: The statute only allows for feedstocks so that the best renewable bond financing where the lender demonstration scale projects to be energy options are supported. purchases all bonds and sells and/or funded with grant funding. At this time, However, the Agency has added a participates thereafter. In all scenarios, no funding has been appropriated to provision to the rule to allow the the lender is responsible and controls implement a grant program. Administrator to award bonus points to

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applications for partnerships and other (approximately 70 percent) to the full rather than the desired renewable activities that assist in the development commercial scale design. Also, a energy investments. While some of new and emerging technologies for quarter-scale facility provides little commercial lenders are comfortable the development of advanced biofuels valuable information in terms of operating in the current program so as to increase the energy scalability and therefore very little structure, the commenters believe that independence of the United States; increased confidence for the commercial the industry as a whole would benefit promote resource conservation, public scale-up. The reason is that the fluid from maximum competition and health, and the environment; diversify dynamics and chemistry within such a flexibility for lenders to negotiate markets for agricultural and forestry gasifier vary dramatically from one size business structures and terms that products and agriculture waste material; to another. Operation of a smaller unit provide incentives to finance and create jobs and enhance the does not predict the actual operation of biorefineries. economic development of the rural a larger unit. As a result, the design Response: The Agency has removed economy. The Agency will identify work and subsequent validation within the proposed blended interest rate these partnerships and other activities the pilot facility would only prove that requirement from the rule. The Agency in a Federal Register notice each fiscal the pilot functions properly. The details has revised the interest rate provisions year. Please note that the Agency is of the full scale commercial unit will to more closely match the requirements specifically seeking comment on this certainly be different and require its in §§ 4279.125 and 4287.112, while provision (see Section IV, Request for own separate validation. Given that the providing lenders with some flexibility Comments). risks are similar and equally low for a in establishing loan type and terms on quarter-scale versus commercial scale, it the unguaranteed portion. The Agency New Technology and is unwise to waste that much money on believes that this and other changes to Commercialization a useless facility. More importantly, the rule sufficiently address the Comment: One commenter states that investors are not willing to waste that commenter’s concerns. there appears to be some confusion as much investment on a pilot scale that Grants to how to determine whether a new provides little incremental value. technology is ready for Response: The Agency disagrees with Comment: One commenter commercialization. This shows up in the comment. The application must recommends including grants in the the requirement that pilot-scale or semi- include documentation that proves the program. According to the commenter, work facilities will have already been technology as proposed meets the grants could be used as matches for built and operated as a means to build definition of eligible technology. The other funding sources and would help confidence in commercial scale rollout. Agency has consulted with technical reduce the high startup costs associated For some technologies, this is an experts and has determined that the with the use of new technology, acceptable approach, but it is not for process needs to be demonstrated to particularly in rural communities. many others. As a result, the technology provide reasonable experimental data to Another commenter also encourages development leading up to the proposal, support engineering scale-up with the Agency to include grants for and whether that work provides acceptable technical risk. That developing and deploying new and sufficient confidence to move to documentation includes that the emerging technologies that, at a commercial scale, should be determined advanced biofuel technology has at least minimum, emanate from paradigms as appropriate, to the technology being a 12-month (four seasons) successful different from the one built into the proposed. Also, if the financing team operating history at semi-work scale, proposed rules, and preferably that and the due diligence performed by which demonstrates the ability to target transformative innovations in them and the third party Technical operate at a commercial scale. Semi- rural America. Reviewer finds the evidence sufficient, work scale is defined as ‘‘a Response: The Agency points out that that is a good proxy for acceptance. manufacturing plant operating on a grants for this program are authorized Instead, it can be a requirement of the limited commercial scale to provide by statute for the development and Technology Assessment to express final tests of a new product or process.’’ construction of demonstration-scale whether sufficient pre-work has been The Agency did not receive many biorefineries to demonstrate the performed to warrant a commercial comments concerning this issue and the commercial viability of one or more scale project. Or when a proposed commenter did not provide sufficient processes for converting renewable project for commercial scale operations reasons for a change in policy at this biomass to advanced biofuels, and are is of a size that could also be considered time. only funded under discretionary a pilot scale project, that such projects funding, which must be appropriated by are equally qualified and eligible. Interest Caps and Financing Structure Congress. At this time, no discretionary Although there are many technologies Comment: To achieve the Agency’s funding has been received by the that are well suited to testing with pilot goal of leveraging Federal government Agency for the program. Therefore, until scale facilities as a means to increase biorefinery assistance loan guarantees funds for grants are appropriated, the confidence in the technology (e.g. and private capital sources to facilitate Agency cannot address grants in the fermentation), oxygen gasification of financing of biorefineries in the U.S., program. Additionally, the authorizing biomass is not one of these. The two commenters recommend legislation for this program would not commenter’s commercial facility, with a considering factors not included in the authorize program grants being used as proposed budget of $140 million, is in NPRM that affect available financing of a match for another Federal grant fact at a scale that would normally be renewable energy—in this case program. considered ‘‘pilot scale.’’ The commenter biorefinery—projects. Specifically, Comment: One commenter states that states they considered developing a while Federal loan guarantees provide the language in the rules for the grants quarter-scale facility for this purpose. greater certainty for private lenders, if authorized under Section 9003 are Unfortunately, the challenges of either interest caps on loan guarantees are too limited to only development and generating or trucking sufficient oxygen low, commercial lenders are just as construction of demonstration-scale to a quarter-scale facility drives the cost likely to turn to other stable biorefineries or construction of of such a facility to be comparable investments, such as Treasury Bills, commercial scale facilities based on a

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traditional ‘‘bricks and mortar’’ comes from, the biorefineries deploying converted to C6 sugar for the yeast to paradigm. [‘‘Grants for the development multi-tasking yeast can use feedstock ferment. and construction of demonstration-scale other than grain feedstock (e.g. stover, d. Ethanol produced in the biorefinery biorefineries to demonstrate the sorghum, grasses, etc.) to produce would be sold through existing channels commercial availability of one or more advanced biofuels. Off-the-shelf at market prices as it is today, and the processes for converting renewable technology exists today to convert byproduct portion would be sold as a biomass to advanced biofuels.’’] This cellulose into C6 sugar-food for the molasses-type material or dried and sold language precludes the Agency from yeast to ferment into ethanol. The as a powder (market pricing for amino tapping into truly transformative problem heretofore has been doing so in acids is quite stable), which has enabled innovations. an economically sustainable way from computation of the $0.70/gallon of The commenter further states that the just the cellulose alone. However, the revenue. Agency needs to include in its rules the valuable co-products that multi-tasking e. With a proven sustainable business ability to fund transformative yeast produce enable economically model (by converting an existing technologies in the agriculture sector sustainable conversion of only the ethanol plant to an advanced biofuel that support and accelerate the cellulose portion of cellulosic feedstock, biorefinery), private capital will invest sustainable production of advanced allowing the hemi-cellulose and lignin in building many new biorefineries biofuels. to be used for heat and energy to run the (even without guaranteed loans) to The commenter states that ag- operation in a carbon neutral manner. expand the industry, and farmers will interested/savvy venture investors do (2) When the yeast element of the grow the cellulosic crops to meet the not truly exist in the agriculture sector. biofuel system changes, all the other new market for them. Thus, incremental agricultural elements of that system also change. The systemic changes also include: (1) No need for funding for new pilot improvements have tended to be the The most important change from plants to demonstrate viability of norm; paradigms producing switching to multi-tasking yeast is a unproven, complex and costly transformative innovations in this sector sustainable advanced biofuel business are few and far between. The DOE views technologies. model. The revenue in this new model (2) Existing designs for ethanol plants its mission in strictly narrow terms as is from the sale of ethanol and valuable only pertaining to the fuel, even though (substituting pulp mills at the front end co-products that are derived solely from for existing corn grinders) can be used by definition biofuel includes the C6 sugars converted from just the agriculture. Thus, it has been funding for new advanced biofuel biorefineries, cellulose portion. The hemicellulose interesting science ‘‘fuel only’’ focused expediting deployment of these and lignin used in CHP facilities efforts that will likely take many, many facilities at a lower cost, and provide the heat and power to run the years to deploy at commercial scale accelerating production of advanced operation and generate more revenue with competitively priced output. Our biofuel that can meet the RFS2 through sale of excess electricity to the urgent national imperative is for a production levels and timeline. grid. Private capital will invest in a domestic renewable source of liquid (3) Accelerated advanced biofuel sustainably profitable business model— fuels. Urgency requires transformational production (within 24 months post the key element that is missing from the innovation in the agricultural sector. funding) means accelerated construction biofuel funded efforts to date. Farmers The Agency is the only entity with and operating jobs in rural enough knowledge and experience in will grow cellulosic crops when a communities, which will enable the this sector, and with a mission to profitable market exists. Agency to dramatically demonstrate to revitalize rural America, to foster the The logical sequence of events, rural America and to Congress that it is kind of innovation that can enable therefore, will proceed as follows: the Agency that can make the transformation in the agricultural- a. The Agency should change the rule transformative difference to rural related advanced biofuel sector. pertaining to grants in Section 9003, America and to our domestic biofuels The commenter provided the allowing the Agency to make ‘‘grant(s) industry that the President, Congress following discussion to support their for the development of processes for and the American people voted for. position regarding grants for innovative converting renewable biomass to In conclusion, the commenter technology: [sustainable] advanced biofuels.’’ advocates rules that allow an Agency- (1) The new paradigm is born of a b. The revised rule would allow the funded transformational innovation to different way of thinking about how to commenter, for example, to apply for a be developed wherever the resources solve our urgent near-term need for a grant under Section 9003 to complete within the United States most readily thriving domestic biofuels industry. The the optimization of its multi-tasking exist in order to expedite development new paradigm recognizes that it is really yeast in order to produce commercially and deployment, but the resulting the yeast that produces the biofuel and viable levels of co-products in advanced technology must be deployed in rural thus is at the center of the ethanol biofuel biorefineries, furthering the America. If the statutory language ecosystem, and that the current yeast fundamental intent of the rules ‘‘to assist requirement in the 2008 Farm Bill will only produces one product—ethanol. in the development of new and not allow for inclusion of funding for The facilities the existing yeast is emerging technologies for the development of agricultural-biofuels deployed in, as a consequence are development of advanced biofuels.’’ It related transformative innovations like known as ‘‘ethanol plants.’’ The would also enable the Agency to the one discussed above, then provision commenter utilized off-the-shelf successfully advance its agenda to for such should be made clear under biotechnology to modify the single- revitalize rural America by creating § 4279.202(b). product yeast so it would multi-task. thousands of new green jobs, and do so Response: The language in the statute When multi-tasking yeast are deployed, at an accelerated pace. (see section 9003(c)(1) of the FSRIA) producing ethanol and valuable co- c. The commenter would then deploy states: ‘‘grants to assist in paying the products simultaneously, ethanol plants multi-tasking yeast first in existing costs of the development and automatically become biorefineries by ethanol plants, where just the cellulose construction of demonstration-scale definition. Furthermore, since yeast do from cellulosic feedstock (initially biorefineries to demonstrate the not care where their C6 sugar-food stover because it is already grown) is commercial viability of 1 or more

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processes for converting renewable ‘‘one size fits all.’’ Banks adjust loan practices dictate that the Agency use a biomass to advanced biofuels.’’ This terms based on conditions specific to discount factor, which may vary language precludes the Agency from the investment the loan supports. The depending on condition and type of implementing what the commenter is Agency should consider adjustments collateral offered. Because of the requesting. Further, to the extent when the potential investment offers variability associated with the commenter is requesting the Agency to compelling reasons to do so. technologies participating in this do otherwise, the Agency cannot. It is Response: The Agency is addressing program, discounting needs to be up to Congress to modify the statutory these concerns by allowing the performed on a case-by-case basis and a language in order for the Agency to subordination its lien on accounts standard, fixed discounting rate would consider the commenter’s suggestions. receivable and inventory for working be inappropriate. Where there is an capital loans under certain conditions existing market for intellectual property, Simple Applications and guaranteeing up to 90 percent of the discounting will be performed in Comment: One commenter loan for guaranteed loans of $125 accordance with the lender’s standard recommends developing a simple million or less, also under certain discounting practice. Where there is not application for small biorefineries that conditions. As noted in an earlier a market for intellectual property, the produce less than 1,500 gallons of response, the rule outlines the criteria value of the intellectual property will be biofuels per day. the project must meet to obtain a 90 no greater than 25 percent, as Response: Because the program deals percent guarantee. determined by the Agency. with new and emerging technologies, Comment: One commenter suggests Requested Comments—f. Processing the Agency needs the same detailed calculating highly skilled labor as a Technology Owned by Borrower information on the technology and business expense on the income process regardless of the size of the Comment: One commenter believes statement and not including it in the biorefinery. Therefore, a simplified that the majority of biorefineries will be equity calculation. application is not appropriate for the built by entities that are not owners of Response: The Agency agrees that program. the processing technology that will be highly skilled labor will not be included used in the biorefineries. Thus, the in equity calculation. However, labor is Small, Mobile Biorefinery Units commenter believes that the processing an eligible business expense, which Comment: One commenter technology should not be counted as could be financed with working capital. recommends giving preference to small collateral or equity in the project. In the Comment: One commenter stated that and particularly mobile biorefinery instance where the process technology a broad interpretation of ‘‘eligible project units that may be better able to serve owner is the borrower, the market value costs’’ will facilitate lending and small rural communities on a multi- of the technology should not be counted achievement of the purposes of the county regional basis. The commenter in the project cost. This will lower the program. Because upfront transaction states this will help provide economic equity requirement of the borrower costs on these projects are significant, security to those communities through because the project cost will be lower. borrowers should receive credit for their job creation and dependable sources of Thus, the commenter recommends contributions of real and personal local energy and provide greater setting the market value of the property, including, without limitation, feedstock security by having the sources technology at zero, and not entering it laboratory equipment, intellectual located in many different locations into the calculation of the equity property, and reasonable fees paid to throughout a multi-county area instead requirement, if its market value cannot critical service providers. These fees can of being concentrated near one be determined because it is a novel be substantial, up-front costs that are centralized biorefinery. technology and unproven in the often a barrier to completing a Response: Please note the previous production of advanced biofuels. significant application as is required for response where the Agency stated its Response: With regard to process this program. If there is the opportunity position to remain technologically, technology, the Agency agrees with the to wrap these into the loan or apply geographically, and feedstock neutral. commenter that it should not be them towards the borrower’s equity While there is no preference given for counted as collateral or equity in the contributions, additional companies small biorefinery units, they are not project. with promising technology may choose excluded from the program. A mobile The Agency agrees that the market to avail of the program as a financing system is eligible. value of the technology should not be mechanism. counted in the project cost, because it is Response: It is the Agency’s intent to Unsecured Debt the Agency’s intent to focus the focus the program’s limited funding Comment: One commenter believes program’s limited funding resources on resources on primary project costs and, that the primary obstacle to this implementing the technology rather therefore, the Agency disagrees with the program is the unsecured debt than developing technology. However, suggestion for wrapping these fees into requirement. According to the the Agency notes that technology may the loan because the Agency does not commenter, lenders are not willing to be considered as part of the collateral consider these fees to be primary project take risk in the alternative fuels industry based on the value identified on the costs. For existing biorefineries only, given the current state of financial borrower’s audited financial statement qualified intellectual property, markets. The Agency must be willing to prepared in accordance with Generally equipment, and real property may be relax this rule. Options include allowing Accepted Accounting Principles considered in meeting the equity subordinate risk, such as a state or other (GAAP) and subject to appropriate requirement, as described in credible entity, or offering a 100 percent discounting as provided for in the rule. § 4279.234(c)(1). The Agency notes that guarantee under conditions when a high Comment: One commenter suggests a loan guaranteed under the program ratio of equity investment is secured, using the standard discount rate of 20 may only finance 80 percent of the where technology risk is limited, and percent that is used in the B&I loan eligible project costs. The borrower where there is a demonstrated ability to guarantee calculation. needs to provide the remaining 20 accelerate return on investment. Loan Response: The Agency disagrees with percent from other non-Federal sources guarantees, like loans, should not be a the commenter. Prudent lending to complete the project.

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Comment: Two commenters state that consider the value of such technologies, biochemical companies that have ready- processing technology owned by the with certain restrictions, in addressing to-scale technology. borrower should be included as an the program’s collateral and equity Under the section 9003 program, a eligible project cost. Allowing for a requirements. chemical production facility included as means to recoup the processing Comment: One commenter states that part of a biorefinery can have no more technology development costs will eligible costs should include all costs than 30 percent of the revenue speed the creation of biorefineries. It that make up a sound project including generated at the biorefinery, yet the will maximize commercial flexibility of production of byproducts, co-products, revenue generation of chemicals technology owners and project and electricity co-generation. If a facility compared to fuels is traditionally developers to negotiate deals that create generates excess heat or other forms of disproportionately higher. This revenue incentives for innovation (on the part of energy that can be harnessed to co- restriction inhibits the creation of joint the technology owner) and generate power, it should be encouraged ventures by putting a cap on the future commercialization (on the part of the to do so because this activity is in revenue of the potential biorefinery developer). If it is not an eligible cost, keeping with the energy goals of the partner, limits the growth potential due the developer will have to compensate Agency and the program. Also, as long to market demand or other external the technology owner outside of the as there are investment tax credits factors that affect the partners, and project finance structure, which reduces available for power co-generation, these limits the ability of biofuel companies to the capital that could be applied to ‘‘funds’’ can have a profound positive enter into a revenue generating joint biorefinery deployment/retrofitting. impact on the financability of the venture in efforts to become This may significantly reduce the project. Hence, these should all be economically viable and self-sufficient commercialization of advanced biofuels included in eligible costs so that the in the long-term. The most powerful aspect of the refining technologies necessary to meet best possible financing package may be biorefinery as a business model is the the RFS as well as diversifying the brought to bear. If professional service ability to produce multiple products, so country’s transportation fuel portfolio. fees include the legal fees and other fees that the plant can weather prices drops, Another commenter, however, states are required to complete the financing, fluctuations in demand and volatile that, while physical laboratory and including the fees to the bank or feedstock prices by arbitraging between equipment costs should be considered investment bank, these should be the various products produced and eligible project costs if they are listed as allowed if they are to be incurred after privileging those that are the most assets of the borrower, there is no the guarantee application has been legitimate value to intellectual property profitable at any given time. If this cap submitted. These are bona fide costs of until the industry has emerged into exists and biofuels are not economically the project and should therefore be commercial-scale production, and, at viable or require large subsidies to be included. that point, commercial values will be viable, then limiting the amount of changing to meet new supplies and Response: The Agency agrees with the higher value-added products that can be demands. If there is the opportunity to commenter to the extent that the costs produced will condemn the biorefinery apply a portion of what the borrower associated with byproducts, co- to failure. perceives as the value of its intellectual products, and electricity generation are In addition, as a practical matter, the property towards the required equity eligible project costs as provided in Agency will be required to regulate the contributions, additional companies § 4279.229(e). The items listed in 70 percent revenue generation with promising technologies may be paragraphs (e)(1) through (e)(7) of requirement on an ongoing basis. From eligible for assistance under the section § 4279.229 are eligible project costs as the bioproduct and biochemical 9003 program. Because the long as they are integral and necessary perspective, this is a revenue limitation documentation required by the Agency parts of the total project. With regard to of 30 percent. Limiting revenue is no different than what a prudent professional fees, the Agency anticipates generation of one component of a lender should require, eligible project an over-subscription of the program, so business within a free enterprise is costs should not include any item that the Agency’s intent is to focus the questionable policy. The Agency does is not considered a project cost in the program’s limited funding resources on not have a rational basis for this borrower/lender transaction being core project costs, which are identified limitation grounded in sound guaranteed. in the interim rule as eligible project economics, nor does it serve the broader One commenter explains that, as a costs (see § 4279.229(e)). policy purposes of the program. Biofuels startup company with first-of-kind Requested Comments—g. Percent and bioproduct companies should not technology, they have and will incur Revenue From Sale of Advanced Biofuel be limited in revenue for any reason. significant cost securing intellectual The U.S. economy and its taxpayers will property, financing arrangements, R&D Comment: Two commenters believe only reap the benefits of biorefineries if expenditures, and developing new that the mandate that 70 percent of the they are profitable ventures. They forms of renewable biomass. The revenue generated by a biorefinery must should be free to innovate new business commenter believes these costs should be from the sale of advanced biofuel models in order to achieve sustainable be allowed as eligible project costs and will create a disincentive and turn success. should be applied to the cash equity companies away from the program One commenter agrees that the intent requirements. goals. An integrated biorefinery, as of the program is to create biorefineries Response: The Agency will not described by the DOE, is similar to a that produce advanced biofuels, but consider processing technology as an petrochemical refinery where crude oil believes that the 70 percent requirement eligible project cost, because, as noted is processed into a variety of fuels and is too high. The commenter believes that in a previous response, it is the chemicals. To achieve this integrated as long as 35 percent or more of the Agency’s intent to focus the program’s biorefinery model, biofuel companies revenue is from the sale of advanced limited funding resources on core will have to go into production of biofuels, then the project should be project costs. However, the Agency biochemicals themselves (incurring eligible for the program. acknowledges that the processing enormous capital expenditure costs), or One commenter states that the technology has collateral value and can enter into a joint venture with existing advanced biofuels industry is an

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emerging market and, as such, many Two commenters state that, while the commenter believes basing the configurations for profitability and risk Agency has proposed to require a percentage requirement on revenue, and mitigation include the sale of certain percentage of biofuels be not volume, significantly inhibits a byproducts and renewable electricity as produced at the facility receiving an company from pursuing its maximum major components of the profit and Agency loan guarantee, other product economic potential as the prices of product streams. There should be no set streams from the same feedstock can many byproducts are greater than fuels. standards for the production of the enhance the economic viability of The commenter believes that changing advanced biofuels, and to require that biofuel projects. Market forces will this requirement to 70 percent of 70 percent of the revenues are from the affect revenues based on ever-shifting volume will still enable the Agency to sale of advanced biofuels adds a further price points. Thus, a requirement for a pursue its goal of promoting advanced artificial barrier on sound, sustainable percentage of revenue would make biofuels without unduly restricting projects. The requirement should be financial and operational planning very companies from pursuing the most lowered to 50 percent and be a difficult for a biorefinery that receives a economically advantageous means of combination of all forms of energy, loan guarantee. An energy content or supporting their facilities. including renewable electricity. biomass usage metric is more effective, Private financing entities will judge One commenter states that it is allowing developers to plan their whether ‘‘facilities are worth financing’’ important that new fuel production facility/project at the outset to ensure solely based on the economic potential methods pass through the financing that a certain percentage of the energy of that facility to earn sufficient profits ‘‘Valley of Death’’ so that they can be or biomass is used for biofuels. The to be able to pay back the loan to the replicated in the market without commenters recommend basing any financing entity as well as pay returns government financial assistance. Hence, required percentage related to biofuel to its equity holders. Therefore, any whether a first of a kind project under production on energy content or regulations should be structured such section 9003 sells much, if any, biomass usage, not revenue. The that they will facilitate the advanced biofuel should be irrelevant as commenters also urge the Agency to manufacturing plant achieving long as the proposed business plan is promulgate flexible guidelines to maximum profits and enhancing its financeable and there is sufficient implement this approach at this stage of economic viability. The Agency itself evidence that there is a market (or development and uncertainty in the recognizes the value of multiple revenue emerging market) for the proposed fuel. biofuels market. streams that exist in a biorefinery Thus, more new technologies will be Response: The Agency agrees with operation. For example, the Agency financed and more new advanced commenters’ suggestion to remove the states that ‘‘byproducts are an important biofuels will ultimately come to market. 70 percent revenue threshold. The rule revenue source for many biorefineries.’’ Because even the small number of has been modified to require that a To provide an example: The section 9003 eventual winners will have majority of the biorefinery production is commenter’s process inherently a negligible total impact on U.S. fuel an advanced biofuel. When the biobased produces byproducts at a certain level. consumption, it is more important to set product and any byproduct produced Monetizing these byproducts the stage for future growth rather than have an established BTU content from a significantly enhances the financial saddle these early stage projects with recognized Federal source, majority viability of a biorefinery facility. As an excessive hurdles to overcome to create biofuel production will be based on example, one of the byproducts is an a successful business plan for a first BTU content of the advanced biofuel, organic acid that sells for more than commercial project. As long as the the biobased product, and any $2,000/ton, significantly more than the borrower can explain cogently how byproduct. When the biobased product value of ethanol. Under a revenue-based future plants will produce and deliver or any byproduct produced does not eligibility requirement, the commenter advanced biofuels and bioproducts that have an established BTU content, then states they would be significantly mitigate imported fuel or energy majority biofuel production will be restricted from monetizing this intensive products, these should be based on output volume, using byproduct, which is currently made equally rewarded in this program. parameters announced by the Agency in exclusively from fossil fuels. Since this One commenter agrees that the periodic Notices in the Federal Register, acid sells for more than 3 times the program should be focused on projects of the advanced biofuel, the biobased value of ethanol, the commenter states that primarily produce advanced product, and any byproduct. they would only be able to sell very biofuels, and encouraged the Agency to The Agency has determined that small amounts in a revenue-based make a determination of the nature of measuring the output is a better metric scenario, losing not only the revenue the project on a site-specific basis and than the energy content of the biomass and societal benefit of replacing a fossil not promulgate a bright-line threshold. input in determining project eligibility, fuel derived material, but also incurring BTL (benzene, toluene, and xylenes) because the energy value of biomass a cost to dispose of the material. In a facilities can be configured to produce input is not necessarily equivalent to volume-based scenario, the commenter various combinations of fuels, co- the energy product outputs. The states they would still focus on products, and electricity. Thus, it may primary purpose of the program is for producing advanced biofuels as the be that an optimized plant on an the development of advanced biofuels. primary purpose of the facility, but also efficiency basis would be configured for For these reasons, the Agency is would be able to enhance the economics something marginally less than 70 focusing on production of advanced of the facility by realizing the value percent revenue from advanced biofuel. biofuels rather than consumption of inherent in its processes’ byproducts. While a plant could be configured to feedstock. Response: As noted in the response to meet a 70 percent requirement, the Comment: One commenter the previous comment, the Agency is commenter asks that the Agency recommends changing the facility’s replacing revenue as the standard of provide flexibility to allow for the most percentage of ‘‘revenue’’ that must come measurement and instead will efficient plant configurations, which from advanced biofuels to a percentage determine the majority biofuel would be consistent with the proposal of ‘‘volume’’ in order to enable a production based on BTU content of the to consider life-cycle GHG emissions company to maximize the economic advanced biofuel, biobased product, and and other performance criteria. viability of its operations. The any byproduct. However, if the biobased

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product or any byproduct does not have commercially unreasonable or at any given time during the loan term. an established BTU value, the Agency imprudent way by producing products This is not in the lender’s best interest, will determine majority biofuel that fail to provide sufficient revenue to it is not in the borrower’s best interest, production based on output volume of meet debt service. and it is not in the taxpayer’s best the advanced biofuel, the biobased Second, and related to the first, it is interest when the borrower defaults. product, and any byproduct. much more difficult to control price for The commenter recommends Comment: One commenter states that a product (unless long-term off-take considering the merits of (most the 70 percent requirement is not contracts are in place) than volume desirable to least desirable): contained in Section 9003 and may produced. Price fluctuations may (i) Completely eliminating this cause significant problems, both in inadvertently cause a breach of any loan requirement for project eligibility in terms of deterring companies from using agreement or security document. favor of a certification by the borrower the section 9003 program and then Third, there is a significant pricing that the primary purpose of the project increasing the chance of default if a loan differential for feed, nutraceuticals, over the term of the loan is the guarantee is issued. The commenter bioplastics, and biochemicals compared production of advanced biofuels; recognizes that the primary purpose of to fuel. This pricing differential could (ii) imposing a volumetric requirement Title IX is ‘‘Energy’’; however, Title IX distort financial models and disqualify rather than a revenue requirement with also recognizes that, like petroleum, co- early algae projects that will rely on co- the volumetric requirement being a products provide essential revenue product sales to make the fuels portion ‘‘majority’’ rather than 70 percent; streams. Liquid transportation fuel has of the project ‘‘pencil out.’’ Borrowers (iii) reducing the 70 percent revenue been the ‘‘holy grail’’ of the algae should not be penalized for capitalizing threshold to a ‘‘majority’’; (iv) providing industry since its inception, but many on multiple value streams. If any limit a waiver process to avoid default; and companies are shifting their business on product mix is imposed, this should (v) permitting the carry-forward and plans away from a fuel-dominant be volumetric rather than revenue- carry-backward of surpluses and deficits approach in the short term and based. so that the 70 percent revenue dedicating more efforts to developing Fourth, Section 9003 imposes no such requirement is imposed over multiple higher-value co-products such as specific threshold for purposes of a years. chemicals, agricultural soil remediation biorefinery’s eligibility for the section In any event, the commenter and fertilization, and plastics. This has 9003 program. Section 9003 provides encourages the Agency to clarify its been driven primarily by high that ‘‘eligible technology’’ for purposes intent here and the ramifications for production costs for lipids and having of qualifying for a loan guarantee is failing to meet such a requirement, and to compete with low-cost crude oil. One ‘‘technology that is being adopted in a recommends either discarding the 70 of the primary reasons for the high viable commercial-scale operation of a percent revenue-from-fuels requirement production costs of algal-based fuels is biorefinery that produces an advanced or completely restructuring this the lack of commercial-scale (and even biofuel’’ as well as ‘‘technology * * * requirement. demonstration-scale) projects that that has been demonstrated to have Response: For program integrity the provide opportunities to optimize and technical and economic potential for Agency cannot rely just on de-risk technologies and reduce costs commercial application in a biorefinery certifications. As has been noted in the with scale. The algae industry views the that produces an advanced biofuel.’’ responses to the two previous section 9003 program as a much-needed Nothing in this sentence requires comments, the Agency is replacing financing tool to develop projects and anything more than a biorefinery to revenue as the standard of measurement bring down costs and risks. As the produce some quantity of advanced and instead will determine the majority Agency notes, ‘‘byproducts are an biofuel, and it certainly doesn’t base a biofuel production based on BTU important revenue source for many requirement on a percentage of revenue. content of the advanced biofuel, biorefineries.’’ They will be even more Further, a ‘‘biorefinery’’ is defined as a biobased product, and any byproduct. important for the long-term success of ‘‘facility (including equipment and However, if the biobased product or any the algae industry and the ability of the processes) that ‘‘(A) converts renewable byproduct does not have an established industry and its technologies to mature biomass into biofuels and biobased BTU value, majority biofuel production to the point where algal-based liquid products; and (B) may produce will be determined based on output transportation fuels are price electricity’’. On the face of the statute, volume of the advanced biofuel, competitive with petroleum gasoline, Congress did not require a project’s biobased product, and any byproduct. diesel or jet fuel. eligibility to be based on production and The Agency has also removed the 70 For this reason, the commenter sale of a specific product mix or revenue percent threshold and replaced it with strongly encourages the Agency to mix, and biobased products and a majority threshold. Based on the interpret the purposes of Section 9003 electricity are specifically anticipated to changes, the Agency has determined broadly and in a way that will most be key attributes of any biorefinery. The that a waiver process and the carry of likely accelerate the ultimate Agency’s exercise of administrative revenue surpluses and deficits are not development and production of discretion on this issue goes too far and required. The Agency reserves the right advanced biofuels. Imposing a 70 jeopardizes the success of a much- to take any legal action to address percent revenue requirement defeats needed program. default when the borrower is not this purpose. This limit on the revenue mix from operating as originally proposed. First, it is unclear what the products produced by the project is Comment: One commenter believes ramifications would be to the applicant counterproductive to the purpose of the that biobased chemicals and biobased if, in practice, this 70 percent threshold section 9003 program. Imposing an products must be included in grant, was violated. Would this constitute a arbitrary limit on the product and loan, and loan guarantee programs default under the credit facility or revenue mix unsupported by Section under the section 9003 program to security agreement? If so, this injects an 9003 will negatively affect borrower’s enable stand-alone commercial scale artificial limit into the operation of ability to make prudent business facilities. Currently, most, if not all, projects that may, at points, obligate the choices and maximize revenues based large funding advantages in the DOE applicant to run the project in a on market demand for certain products and USDA biomass program are

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available to biofuels production projects The commenter recognizes the cooperatives. The Agency has modified only (with one exception). Expanding requirements in Section 9003(e)(1)(C) this criterion to award points if the funding programs to include production and the critical importance of producer project can document working with of biobased chemicals and products will associations to the development of the cooperative and producer associations enable shovel ready projects that are the agriculture industry in the U.S.; under one of the three criteria rather cornerstones of new biobased industries however, the commenter urges the than all three. In addition, this scoring to immediately take hold. The 2008 Agency to avoid imposing existing criterion has been revised by Farm Bill states clear objectives for our models on new industries. incorporating a two-tiered system that nation yet these programs exclude Disproportionate benefits should not be begins awarding points at a 30 percent loans, loan guarantees and grants for afforded to certain business structures threshold. that may be inapplicable to certain biochemical and biobased material Algae Exception production that would immediately sectors of the bioenergy industry. The enable these goals. The commenter commenter states that the Agency One commenter states that they believes the U.S. cannot afford to miss should minimize such benefits. reviewed several proposals from an economic and environmental One commenter states that, because potential algae producers to build out 10 opportunity for ready to scale green most producer associations and coops to 100 acre algae production facilities technology that falls well within the are not yet involved with nor have a that could provide a minimum of parameters of 2008 Farm Bill concerns. track record in feedstock procurement approximately 10,000 gallons (235 and supply, a lender will generally barrels) per acre/year, and over a Response: The Agency disagrees with consider such contracts to be unreliable million gallons of biomass per acre/year commenter. The purpose of the and likely unfinancable. This proposed on a totally renewable basis without program, as provided in the statute, is criterion should be dropped in its having to address growing seasons, to assist in the development of new and entirety so as to allow projects to rainfall and other factors that crop emerging technologies for the procure reliable feedstock wherever farmers must consider. Due to these development of advanced biofuels. possible so that pre-commercial considerations and the land use Pursuant to the statute, all biorefineries technologies can be built and validated. requirements of other feedstock, this financed under the program must Do not add this level of complexity. It would be practical, but due to the de produce advanced biofuels. will almost certainly render most minimus land requirement for algae Requested Comments—h. Value of projects ineligible and would be a production, the commenter does not Feedstock Supplied by Producer travesty for the program. believe that this is a practical restriction Association and Coops Three commenters state that the and requests that an exception be Agency should not place limits on granted for algae production. 60 Percent Threshold feedstock suppliers in order to qualify Response: The Agency disagrees. The Agency has adopted a policy to have a Comment: One commenter strongly for this program. Feedstock availability program that is technologically, opposes the proposed 60 percent and price basically determine the geographically, and feedstock neutral. threshold. The advanced biofuel success of the plant and maximum As noted in the response to the previous feedstock markets, particularly for algae flexibility should be awarded in order to maximize the opportunity for success. comment, the Agency points out that and cellulosic ethanol, are immature Several commenters state that a 60 the rule has been revised to award and have not developed to date using percent threshold is unrealistic and, at points if the project can document the agricultural cooperative model. this time, presents an artificial working with cooperative and producer Given transportation costs and other restriction for good, bankable projects. associations under one of the three logistical issues, algal feedstock will The commenters state that woody criteria rather than all three. In addition, likely be grown by the same companies biomass is currently the lowest cost, this scoring criterion has been revised that harvest the lipids/triaclglycerides most dependable, and most accessible by incorporating a two-tiered system and convert the same to advanced feedstock for large-scale commercial that begins awarding points at a 30 biofuels or other biobased products at advanced biorefineries, and is not percent threshold. the same or an adjacent site. traditionally owned, managed, or While the commenter encourages and harvested by producer associations Requested Comments—i. Measuring supports the premise that ‘‘algae is and/or cooperatives. The commenters Potential for Rural Economic agriculture,’’ the commenter urges the support the activities of producer Development Agency to avoid making the same associations and cooperatives in Comment: One commenter believes mistakes that Congress and other developing advanced biofuels facilities that the scoring system is flawed in agencies have made in the past when and/or supplying biomass to these regard to rural economic development. crafting legislation or policy with facilities, but state that the current costs In large states, such as Texas, the traditional agricultural food crops in and lack of infrastructure to requirement that the average wage mind. The Agency should not impose economically and sustainably supply created by the project be above the an existing model on a new industry at the facility with crops, such as county and state median household this point in its development, despite miscanthus or energy cane, at a price wage will greatly affect project scoring the fact that cooperatives and producer comparable to woody biomass restricts compared to a small state since the associations have served the terrestrial the project from providing the necessary Texas median state wage may be agricultural industry well. To do so in base level of feedstock pricing support significantly higher than the county terms of awarding points when scoring that makes this type of business model median wage. If a project’s average wage applications would severely bankable in the near term. is above the median household wage in disadvantage biorefineries seeking to Response: The Agency appreciates the the county and contiguous rural use algal feedstock (and other feedstock) commenters’ concerns. However, the counties, then the project should receive vis-a`-vis other projects that would, for statute requires the Agency to consider the points for this criterion. Rural example, use corn stover, cobs, straw, whether the borrower is proposing to counties would be defined in this sugar, or other cellulosic feedstock. work with producer associations or instance to be all nonmetropolitan

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counties, as defined by ERS, with a Requested Comments—j. Measuring With respect to the commenter’s rural-urban continuum code of 4 Positive Impacts concern about GHGs, the Agency through 9. The commenter believes, Comment: One commenter believes encourages applicants to provide any however, that this criterion should be that the production of advanced biofuels and all information that supports a worth 15 points and not the 5 points in will have positive impacts on resource positive effect on resource conservation, the proposed rule. conservation, public health, and the public health, and the environment. The Response: The Agency has considered environment. The commenter believes Agency considers a reduction in life- the comment and revised the criterion the Agency should rely on the definition cycle GHGs to be a positive effect on the to reflect the location of the project of advanced biofuels as defined in the environment. Thus, if the borrower (must be in a rural area in order to be 2008 Farm Bill and believes EPA is demonstrates a reduction in life-cycle GHGs, the borrower will receive points awarded points) and County median using unproven combinations of models under § 4279.265(d)(6). However, a household wage only. The Agency to calculate the GHG reduction for borrower will also receive points under agrees that the points for this criterion biofuels. Also, EPA’s delay in qualifying this criterion if they demonstrate a should be increased, and has increased existing and new feedstock and process positive effect on resource conservation, the points from 5 to 10, which the pathways will not allow for quick public health, or the environment in Agency has determined is appropriate implementation of the program. There another manner. Finally, to help address relative to the other scoring criteria. could be instances where a feedstock GHG life-cycle emissions, the Agency Comment: One commenter states that could be under review until 2012 by has revised, as noted above, the scoring EPA—the expiration of the current standard economic impact analysis criterion such that an advanced biofuel software is easily obtained through Agency program. must meet an applicable renewable fuel Dependence by the Agency on the several private organizations and standard as identified by the EPA in RFS2 definitions and delineations is universities, and has often been used to order to receive points under the first premature. Once the science behind judge the economic impact of a new scoring criterion. business in a community. The key GHG emissions is more fully understood Comment: One commenter states that components that can be compared are and defined, then the Agency may want eligible projects should provide a number of direct and indirect jobs to look at including some tiered system reduction in GHG reductions, as verified created, the area multiplier effect, and to determine the environmental positive through a GREET Analysis or other the impact of purchases of local goods impact. The commenter suggests that university or private, third party and services, including feedstock. this could be a much more appropriate analysis. The project should also meet One commenter states that when discussion as the 2012 Farm Bill takes or exceed the EPA standards for measuring the potential impacts on shape. permitting. Extra points should be given rural economic development, the easiest The commenter states that a tiered for projects that provide additional things to measure are: scoring system based on GHG clean, potable water for human use and/ reductions would not further the intent or irrigation. 1. Construction Phase of the program and not help rural Response: Applications will be a. Amount of construction funds that economies through the creation of accepted for biorefineries that produce will be spent in the local area and advanced biorefineries. However, the an advanced biofuel. The Agency is immediate region for equipment, commenter believes that a project considering the impacts of the EPA supplies, labor and other support should show a reduction in GHG requirements on the program and has services. emissions as verified through a life- not made a final determination to date. cycle analysis in the published b. Downstream effects of construction As noted in the response to previous literature or completed by a university job spending on the local economy, comments, to help address GHG life- or a private third party that specializes which is generally a multiple of the cycle emissions, the Agency has revised in such analysis. primary spending (velocity of money). the first scoring criterion such that an Response: The Agency agrees with the advanced biofuel must meet an 2. Operations Phase commenter, and requires that the project applicable renewable fuel standard as produce an advanced biofuel as defined identified by the EPA in order to receive a. Number of new jobs and salaries to in the statute. The Agency has decided points under the first scoring criterion. be paid plus the downstream effects that not to require compliance with the With regard to the comment on these employees will have on spending Renewable Fuel Standard, because to do potable water, the Agency encourages in the local economy. so would narrow the range of feedstocks applicants to provide any and all b. Feedstock purchases. Determine eligible under this Program. information that supports a positive who gets paid and how much in the Furthermore, the renewable fuel effect on resource conservation, public feedstock supply chain in the local area. standards only apply to liquid health, and the environment. The In some cases these will be estimates, transportation fuels, while this Program Agency may consider potable water but given that the feedstock supply applies to a broader range of advanced under this criterion, for example chain must be fairly transparent to meet biofuels. However, the Agency has resource conservation. Thus, if the lender requirements, these estimates can modified the scoring criteria such that borrower demonstrates positive impact be quite accurate. in order to receive points under the first GHGs or potable water, the borrower Response: The Agency does not agree scoring criterion an advanced biofuel may receive points under with changing the economic impact must meet an applicable renewable fuel § 4279.265(d)(6) and, as noted above, analysis at this time. The Agency has standard as identified by the EPA and the advanced biofuel must meet an not identified the appropriate models to clarified the scoring criterion associated applicable renewable fuel standard as determine the economic impact in the with demonstrating positive effects that identified by the EPA to receive points manner suggested by the commenter. If compliance with the renewable fuel under the first scoring criterion. the Agency identifies an appropriate standard is one way that a positive However, the Agency has chosen to model, it will amend the regulation effect on the environment can be provide applicants more options in accordingly and notify the public. demonstrated. demonstrating a positive effect on

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resource conservation, public health, or low-carbon fuel standards being emissions of a fuel as compared to a the environment. developed by California and the baseline represented by the fuel it Comment: One commenter agrees that Northeastern states encourage maximum replaces. For water quantity, fuels could biofuels and bioproducts that reductions by fully crediting the be scored on water use in production significantly reduce greenhouse gas reductions achieved. Under such an per BTU of energy produced. Fuels emissions are more desirable than those approach, a facility producing a fuel could be scored on the basis of the that do not. Such criteria also ensure with a 90 percent GHG reduction benefit fertilizer use and runoff related to their that the net energy balance of the would score comparatively higher than feedstock. proposed fuels or products is higher, a facility producing a fuel that merely Despite requesting comment on many which in turn reduces imported energy meets RFS2 thresholds. The commenter performance criteria, the Agency has products to a higher degree. Hence, such encourages the Agency to adopt a proposed to reduce the points allocated a measurement is consistent with the similar approach that would best help to these criteria in its ranking scheme. overarching goals of the program. Fuels the Agency achieve incremental GHG Rather than reducing the points, the and products that can be produced with reductions and support the commenter believes it would be low overall water consumption should Administration’s goal of reducing GHGs. appropriate for the Agency to also score higher. Given that most fossil One commenter states it is important substantially tailor the scoring system fuels require water for production and to remember that the industry must around such criteria. to date most biofuels require fulfill the advanced biofuel requirement Response: The Agency agrees that the dramatically higher uses of water, of the RFS. The commenter believes metrics identified by the commenter can which is unsustainable, low water that, if the Agency decides to award be used to demonstrate the impacts of consumption should be considered to be points towards an overall score that will a biorefinery. However, the Agency one of the highest and most important then be used to evaluate and compare disagrees that it is necessary to identify criteria. applications for facilities that produce these metrics specifically in the rule. One commenter recommends biofuels that significantly reduce life- This criterion is written broadly to structuring the loan guarantee program cycle GHG emissions compared to allow applicants to provide whatever to promote the best-performing biofuels conventional fuels, the regulations information the applicant believes will to the maximum extent possible and should be kept simple to encourage demonstrate the positive impacts of ‘‘pay for performance.’’ As one of the streamlined administration of the their proposed projects. Thus, the purposes of the program is to ‘‘promote program. While the commenter does not Agency encourages applicants to resource conservation, public health believe that the indirect land use change provide any and all information that and the environment,’’ the commenter calculations included in the RFS supports a positive effect on resource encourages the Agency to link the loan regulation are mature or have been conservation, public health, and the guarantee application scoring criteria to adequately vetted in the scientific environment. The applicant can the entire performance profile of the community, if the Agency does include consider a recognized and published advanced biofuel proposed to be life-cycle GHG emission reduction source of information to document the produced. benchmarks as a way to reward lower impacts noted above. As noted in the The commenter believes that, while emitting fuels with additional points, response to the previous comment, the the assessment of the GHG performance the commenter recommends: (1) Relying Agency has increased the amount of of fuels, as well performance relating to on already established regulations points under this scoring criterion and air quality, water quality, and water instead of creating a new set of added provisions to deduct points if the quantity are all important aspects of the regulations for those calculations (i.e., feedstock can be used for human or performance profile of a fuel, the EPA RFS), and (2) Not complicating the animal consumption. Agency should assess other important program with multiple threshold levels Comment: Two commenters factors, such as the compatibility of that the Agency will need to create and encourage the Agency to coordinate fuels with existing infrastructure and monitor, but simply create one value (5 with the DoD to ensure that any equipment and the total thermal points) for advanced biofuels that meet requirement regarding the reduction of efficiency of the facility, among other the RFS life-cycle GHG emission life-cycle GHGs does not inhibit DoD’s relevant factors. Linking payments to reduction requirements. goal of increasing the amount of the achievement of GHG reduction Response: In addition to the reasons domestically-produced jet fuel. The thresholds under EPA’s RFS2 program, already provided, the Agency also notes Agency should ensure that facilities that as suggested in the proposal, would that it agrees with simple could provide such fuel are not certainly help to achieve the goal of implementation of this scoring criterion ineligible for the program based on how reducing GHG emissions. and encourages applicants to provide GHGs are calculated on a life-cycle While supporting consideration of information that supports a positive basis. The commenters support program life-cycle GHG reductions, the effect on resource conservation, public incentives that reduce life-cycle GHGs commenter encourages the Agency to health, and the environment. The as technologies advance, but fill existing policy gaps and maximize applicant can consider a recognized and recommends that national security GHG reductions from biofuels by published source of information to benefits be considered for the eligibility scoring proposed projects on the full document the impacts noted above. The of biofuel programs. life-cycle reductions actually Agency has increased the amount of Response: Although the statute does anticipated based on a site specific life- points under this scoring criterion and not require the Agency to consider cycle analysis, not merely on the basis added provisions to deduct points if the national security as an eligibility of achieving minimum thresholds. The feedstock can be used for human or requirement, the Agency recognizes the existing RFS2 program only requires animal consumption. importance of biofuels to national that biofuels meet specific thresholds Comment: Regarding suggested security and has signed a MOU with the (such as a 60 percent reduction for metrics for the other proposed Navy. The MOU encourages the cellulosic biofuels), but the program performance criteria, in assessing air development of advanced biofuels in offers no incentives for producers to quality, one commenter recommends order to secure the strategic energy exceed those thresholds. Conversely, looking at conventional pollutant future of the United States and will be

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supported by the Agency to the extent section 9003 program is a means to bioenergy industry and not others and possible. Further, as noted in a response achieve the ends required by the RFS actually serves as a way for producer to a previous comment, the Agency has Program, then requirements imposed on associations to get ‘‘double points’’ for included in the rule a provision, for borrowers as producers of renewable the same thing. Owners of companies which it is seeking comment, to allow fuel for sale to obligated parties should developing large-scale algae growth and the Administrator to award bonus be synchronous. cultivation biorefineries, unlike their points to applications that promote Response: The purpose of the counterparts using corn stover or wheat partnerships and other activities that program, as provided in the statute, is straw, will likely be located far from assist in the development of new and to assist in the development of new and these production facilities due to the emerging technologies for the emerging technologies for the fact that these facilities are best located development of advanced biofuels that development of advanced biofuels. The in areas where terrestrial agriculture further the purpose of this Program, as Agency is currently considering various activities requiring fresh water would be stated in the authorizing legislation. The models related to life-cycle analysis and impossible. Agency will identify these partnerships has not identified a model at this time. To reduce possible double benefits for and other activities in a Federal When the Agency determines the producer associations in the scoring Register notice each fiscal year. appropriate model, it will amend the criteria and to more realistically account Therefore, the Agency has determined rule accordingly. As stated above, the for project finance-type investment by that it is unnecessary to add the Agency encourages applicants to funds with urban domiciles into these suggested scoring criterion to the rule. provide any and all information that $100+ million facilities, the commenter Comment: One commenter urges the supports a positive effect on resource recommends basing ‘‘local ownership’’ Agency to ensure that the program is conservation, public health, and the on owners living either within the state flexible so that a producer can reapply environment and, to help address such in which the project is located or 200 in order to meet the higher criteria for environmental considerations as GHG miles. the same project as it evolves. Liquid life-cycle emissions, the Agency has One commenter states that the 20 mile biofuels are the only advanced biofuels revised the scoring criteria such that an limitation for local ownership is too that currently have a regulatory advanced biofuel must meet an restrictive. Many of these facilities will framework in place for measuring GHG applicable renewable fuel standard as have to be located in larger communities emission reductions compared to their identified by the EPA in order to receive that have essential infrastructure to counterparts. If the definition of points under the first scoring criterion. service them, which could easily be advanced biofuels in the final rule more than 20 miles from the source of applies to solid, liquid, or gaseous fuels, Requested Comments—k. Definition of the feedstock. Also, many of these the Agency would need to determine Agricultural Producer facilities will be utilizing specialized how they will quantify gaseous and Comment: Two commenters feedstock that may have to be obtained solid advanced biofuels emission recommend keeping the definition of from further distances. The commenter reductions when compared to their agricultural producer as proposed. recommends that 100 miles be used to counterparts. In addition, it should be According to the commenters, there is determine local ownership. assumed that producers of advanced no advantage increasing this guideline, Response: In the definition of local liquid biofuels would not produce fuels which will put another artificial barrier ownership, the Agency has replaced the feedstock supply area provision with that do not meet the RFS qualifications, or restriction in place to qualifying the distance an owner’s primary therefore, including life-cycle GHG producers. The definition should be residence is from the location of the emission reduction requirements in this consistent across all areas of Agency biorefinery, with the distance to be program for liquid transportation fuels funding programs. specified by the Agency in a Federal would be redundant and the commenter Response: The Agency thanks the Register notice. The Agency is seeking cautions against adding any commenter for their comments and the comment on this provision (see Section unnecessary regulations to this program Agency has decided not to change the IV, Request for Comments). It is the that could slow or complicate the definition. process of awarding guarantees and Agency’s intent to implement in the therefore retard commercialization and Requested Comments—l. Local final rule for this Program a specific production. Ownership criterion, or set of criteria, to establish One commenter supports the such distance or distances for defining Distance approach the Agency is considering that a local owner. The Agency plans on would award more points to facilities Comment: Two commenters using the input provided in response to that produce biofuels that significantly recommend increasing the mileage the requested comment in finalizing this reduce life-cycle GHGs compared to allowance to 200 miles. The project definition for the final rule. conventional fuels. Drafting language to must be economically and financially Comment: One commenter agrees incorporate the EPA’s renewable fuels sustainable, and could require feedstock with the local owner definition standard and ongoing biofuels life-cycle procured and obtained from a larger requiring a local residence in proximity analysis (in partner with the National area. The most economically to the feedstock area. The commenter, Academy of Sciences) would structure advantageous site may be located away however, recommends strengthening the the rules effectively. Given the need to from the owner’s business or home phrasing ‘‘an individual who owns any address climate change, awarding points location. This is another artificial barrier portion’’ to say an individual who owns is a practical step in fostering that must be removed from the process. a specific minimum dollar amount or development of emission-reducing Two commenters recommend that, if percentage. Otherwise, the provision feedstock production. the Agency insists on providing a could be open to abuse. One commenter supports basing benefit to locally owned companies, this Response: The Agency disagrees with scoring criteria on life-cycle assessments should be increased to 200 miles from the recommendation, and wants to and encourages the Agency to employ 20 miles. This required scoring criteria, clarify that local ownership will be established methods being utilized by like the producer association scoring determined based on the percentage of other agencies (e.g., the U.S. EPA). If the criteria, benefits certain sectors of the ownership of the biorefinery rather than

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on the number of owners. The Agency with the first commercial scale facilities. be considered under this score criterion, would like to be as inclusive as possible It was only after a track record had been local investors need to be identified in and consider all local ownership established that rural residents became the application. The Agency can interests instead of setting a minimum comfortable with these investments. consider local owners from more than dollar or percentage threshold. Requiring local investment is yet one state as long as the owners are another hurdle not needed for a pre- within a certain distance from the Scoring commercial support program. advanced biofuel biorefinery. The Comment: One commenter believes One commenter states that the Agency Agency notes that the scoring criteria there should not be more than 5 points should not require local ownership of a give preference; they do not determine allotted for local ownership. biorefinery to qualify for this program. eligibility. As to gaming the local Another commenter states that local Local ownership requirements place ownership provision, the Agency has ownership is important, but not as additional investment challenges on addressed this by clarifying that it will important as the jobs created in the rural projects that otherwise could have a examine the percentage of local economy where the biorefinery will be significant impact on rural ownership versus number of owners. placed. The commenter does not development. Lack of investment support the scoring system in regards to financing is the biggest impediment and Purpose and Scope (§ 4279.201) this criterion. The commenter proposes this requirement handicaps projects Comment: One commenter supports the following criterion with a maximum even further. the continued development of a loan of 10 points: Response: The Agency points out that guarantee program for biorefineries in 1. If more than 20 but less than or local ownership is not an eligibility order to encourage the development and equal to 50 percent of the biorefinery’s criterion, as the commenters seem to construction of commercial scale owners are local owners, 6 points will think, but is one of the criteria that the biorefineries and for the retrofitting of be awarded. Agency will use to score applications. existing facilities using eligible 2. If more than 50 percent of the Further, because the statute identifies technology for the development of biorefinery’s owners are local owners, local ownership as a scoring criterion, advanced biofuels. The commenter 10 points will be awarded. the Agency must include it in the rule. supports the goal of the program and 3. A biorefinery that has as its Scope believes that the Agency is being majority owner a publicly traded entity prudent by remaining open to all shall not be eligible for any points under Comment: One commenter states that feasible technologies at this stage in the this criterion. the aviation industry welcomes ‘‘local’’ development of the biofuels industry. In Two commenters suggest that the investors in an alternative aviation fuel addition, the commenter supports the Agency reconsider its proposal to award biorefinery, but believes that these Agency’s proposal to conduct the increased points to loan applicants that investors should be allowed to live program on a rolling application have a higher percentage of owners within the geographic region where the acceptance basis that allows the Agency whose primary residences are within 20 feedstock is grown. In addition, the to make decisions regarding proposed miles of the area supplying feedstock to commenter proposes that the deals in a relatively short period of time. the biorefinery. While it is reasonable to regulations allow refineries that invite Response: The Agency appreciates the expect that biomass production sites ‘‘local’’ investors into a project after it commenter’s support. will be near a biorefining facility, has been structured to score local requiring local ownership of the project ownership points. Definitions (§ 4279.202(a)) and establishing a strict 20-mile The commenter further states they Comment: One commenter proximity requirement for scoring is not have seen a number of aviation fuel recommends reviewing the definitions necessarily the only manner in which to biorefinery proposals for 100 million within the October 7, 2009 DOE achieve this goal. The commenters urge gallons per year refineries that plan to solicitation to determine if some of the Agency to be flexible in its scoring use camelina, one of the most promising these definitions can be utilized for this on this matter and to ensure that non-food feedstock. Each proposal regulation so there are some common comparable points are awarded for indicates that, until camelina becomes a definitions between the DOE and the projects that use other means to generally accepted crop by farmers, it is Agency loan guarantee programs. encourage nearness of feedstock to likely that a refinery would have to Response: While both Agencies have biorefinery. purchase camelina from farmers in similar terms, specific definitions have Response: The Agency disagrees with several states and, as a result, the to vary in response to different statutory the commenters in that this criterion is definition of ‘‘local’’ would need to be provisions and Departmental policies. not intended to encourage nearness of changed. Affiliate the feedstock to the biorefinery, but to Response: The Agency has revised the encourage local ownership of the rule to remove the reference to the Comment: One commenter biorefinery, which is a specified feedstock supply area and now defines recommends adding a definition of criterion in the statute. The Agency local owner as ‘‘an individual who owns ‘‘affiliate,’’ to read: ‘‘Affiliate. This term notes that it has revised the points any portion of an eligible advanced has the meaning set forth in Section 2(k) associated with this criterion, from 15 to biofuel biorefinery and whose primary of the Bank Holding Company Act (12 5. residence is located within a certain U.S.C. Section 1841(k)).’’ The distance from biorefinery as specified by commenter points out that commercial Delete the Criterion the Agency in a Notice published in the banks and thrifts administer their CDFI Comment: One commenter states that Federal Register.’’ As has been noted Fund approved New Markets Tax Credit the local ownership requirement should previously, the Agency is seeking Program (NMTC) Program through be removed to be in keeping with the comment on the most suitable controlled affiliates. This addition goals of financing pre-commercial mechanism for defining a local owner. would enable CDFI Fund approved projects. Although in the past we have The Agency disagrees with the comment NMTC Program lenders that are under seen much local ownership in ethanol on inviting ‘‘local investors into a the control of a bank or thrift to become and biodiesel plants, this was not true project after it has been structured.’’ To eligible for the section 9003 program

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and provide the benefits of the NMTC ensure that funds were spent as The Agency’s Commodity Credit Program to projects financed using proposed. Corporation made a similar statement guaranteed loans under the section 9003 regarding solid advanced biofuels in its Biofuel/Advanced Biofuel Program. Biomass Crop Assistance Program Similarly, another commenter states Comment: One commenter (BCAP) proposal, where it stated that a that they have discussed with many recommends expanding the definition biomass conversion facility includes a prospective biorefinery applicants the of biofuel to include heat and power facility that proposes to convert advantage of combining Federal NMTC derived from renewable biomass. The renewable biomass into heat, power, Program available to certain commercial commenter states that the production of biobased products, advanced biodiesel, banks with a loan guarantee under the renewable heat and power from or advanced biofuels, such as wood section 9003 program. The NMTC renewable biomass is just as pellets, grass pellets, wood chips, or Program is administered by the advantageous to national security and briquettes. Community Development Financial energy independence as transportation The commenter does not believe that Institution Fund (CDFI Fund) within the fuel. any solid fuel qualifies as an advanced Department of Treasury and provides Response: The Agency disagrees with biofuel under the 2008 Farm Bill. The tax credit equity to certain approved the recommendation. Per the Farm Bill definition closely tracks the lenders. The program has the effect of authorizing legislation, heat and power definition in the 2007 Energy ‘‘de-leveraging’’ a project by passing are not considered biofuel. The Independence and Security Act (EISA). through the tax credit equity to the applicant would first need to Like the definition in EISA, the 2008 borrower as an additional source of demonstrate they are producing an Farm Bill Section 9001 definition of funds for a project. The commenter advanced biofuel, which could then be advanced biofuel includes seven states that in order to accommodate the used for combined heat and power qualifying types of fuel. These fuels are use of the NMTC Program by affiliates systems. listed in the exact same order, except of commercial banks and thrifts who Comment: Regarding the definition of that the 2008 Farm Bill definition have been approved by the CDFI Fund advanced biofuel, one commenter states replaces references to ‘‘ethanol’’ with and the section 9003 program, that EPA now requires that diesel references to ‘‘biofuel.’’ Congress also § 4279.202(c)(2) must be revised to read engines used in transportation must replaced the reference to ‘‘biomass-based as follows: emit extremely low levels of nitrogen diesel’’ in EISA to ‘‘diesel equivalent ‘‘The lender must maintain at all times oxides (NOX). The most common way to fuel.’’ the minimum acceptable levels of mitigate NOX emissions is to use urea to The commenter states these changes capital specified in paragraphs (c)(2)(i) react with the fuel exhaust in a catalytic did not evidence an intent to broaden through (iii) of this section. If the converter. Given that it will soon be the definition to include solid fuels, but regulated or supervised lender is a illegal to drive a diesel vehicle without rather indicated Congress’ growing commercial bank or thrift, or an Affiliate such capabilities, that the engine understanding that there were of a commercial bank or thrift, these exhaust is an integral part of the fuel numerous kinds of advanced biofuels levels will be based upon those reflected system, and that such exhaust must be other than ethanol, including cellulosic in the Call Reports and Thrift Financial treated, it can be argued that any diesel (e.g., BTL). Thus, it is clear that Reports of that commercial bank or additive that reduces such emission is the 2008 Farm Bill definition builds and thrift.’’ part of the overall fuel system. When improves upon the EISA definition, but Response: The Agency disagrees with produced from renewable biomass, that in both cases Congress intended to commenters that a definition of affiliate these would be considered advanced include only liquid fuels and biogas. is needed as it relates to a lender. biofuels. Also, given that urea and all While the EISA definition specifically Lenders must independently qualify such other nitrogen products are being focuses on transportation fuels and the regardless of whether they are affiliated imported as foreign produced energy 2008 Farm Bill definition does not, with another eligible lender. intensive products, production of these there is no indication that Congress ever advanced biofuels in a biorefinery meet intended to include products such as Association of Agricultural Producers and achieve the overarching goals of the wood pellets, grass pellets, wood chips, Comment: One commenter urges the program and should qualify equally for or briquettes within the definition in Agency to ensure that state and national the program. either definition. Rather, under the 2008 trade associations are not included in Response: Applications will be Farm Bill, these types of products are this definition because it would be accepted for biorefineries that produce either a ‘‘biobased product’’ or simply improper for such groups to receive an advanced biofuel. At the present renewable biomass. The mere act of Agency loan funds. Because money is time, urea is not considered an chipping, pelletizing, or compressing fungible, it would be difficult for the advanced biofuel. However, urea is renewable biomass does not convert it Agency to track the actual usage of the considered a biobased product. The rule into an advanced biofuel. The funds. Funds should go for those has been modified to require that a commenter encourages the Agency to activities strictly associated with majority of the biorefinery production is clarify that advanced biofuels are liquid building and operating advanced advanced biofuels. The definition of fuels (and biogas) as defined in the 2008 biorefineries. biorefinery requires the production of Farm Bill. Response: The Agency disagrees with biobased products in addition to Response: The Agency disagrees and the commenter. The statutory language biofuel. is satisfied that the statute does not is broad enough to include these Comment: One commenter is provide an exclusive list of eligible entities. The Agency does not want to concerned that the Agency has advanced biofuels and does permit solid limit the pool of eligible applicants as misconstrued congressional intent with fuels. However, the Agency has added a suggested. However, it should be noted regard to the definition of ‘‘advanced provision to the scoring criterion that most associations would not have biofuel’’ when the Agency states in the addressing a proposed project’s impact the ability to own, operate, and incur preamble that it ‘‘understands the on existing manufacturing plants and debt for such a project. Further, the definition to apply to solid, liquid, or other facilities that use similar feedstock Agency would rely upon the lender to gaseous fuels that are final products.’’ that if the facility proposes to use wood

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pellets as its feedstock, no points would demonstrate that the majority of the priced ‘‘pilot project’’ pathway. Not all be awarded under this scoring criterion. production is advanced biofuels. technologies can, nor should be Comment: One commenter states that required to, follow one common Biorefinery the definition of advanced biofuels in pathway to commercialization. For the 2008 Farm Bill is ambiguous in Comment: One commenter states that example, oxygen gasification of biomass regards to the inclusion of biofuels the language ‘‘and may produce to produce syngas to then produce fuels derived from sugar and starch. The electricity’’ seems to be at odds with does not neatly fit into a reasonably commenter believes the Agency needs § 4279.228(d). The commenter asks if priced, pilot scale technology to clarify that advanced biofuels other this means a facility that produces development pathway. Specifically, the than ethanol, for example fuels with a electricity from an advanced biofuel is commenter states that their technology, different molecular structure such as not an eligible project, unless the when produced at commercial scale, biobutanol, or other hydrocarbons with revenue generated from the sale of will perform at a level that would 4 or more carbons, produced from a electricity is less than 30 percent of the normally be considered a pilot scale. corn starch feedstock, qualify for this total revenue generated by the Because of the type of technology program under the definition of biorefinery. The commenter believes involved, there are less expensive and advanced biofuel. The proposed rule for that a facility that makes an advanced better ways than a ‘‘pilot project’’ to this program states that ‘‘to be eligible biofuel and biobased products (such as design, optimize, and achieve high for payments, advanced biofuels must biogas) and then produces electricity confidence in a commercial scale be produced from renewable biomass, from the advanced biofuel or biobased design. For example, to produce a excluding corn kernel starch, in a products should be deemed to be both quarter-scale implementation, the cost biorefinery located in the United a ‘‘biorefinery’’ within the meaning of would be 70 percent of the commercial States.’’ The inclusions section of the § 4279.202(a) and an eligible project project and would not yield much advanced biofuel definition in the within the meaning of § 4279.228. In valuable data for predicting the success legislation specifically includes ‘‘(ii) any event, clarity is needed in these two at full scale. The physics and fluid biofuel derived from sugar and starch sections. dynamics differences between different (other than ethanol derived from corn Response: As long as the electricity is scales of the same gasifier technology ’’ ‘‘ kernel starch) and (vi) butanol or other derived from advanced biofuels means that data gathered in one scale alcohols produced through the produced in the facility, the Agency are only marginally useful in another conversion of organic matter from agrees and has included clarifying scale. As a result, different techniques ’’ renewable biomass. The commenter language in the project eligibility have been developed to design and scale believes that this legislative ambiguity section of the rule. such gasifiers. These techniques lead to requires the Agency to clarify in the Byproduct an equal level of confidence in the final rule that the only fuel produced proposed design and implementation as from corn kernel starch excluded from Comment: One commenter suggests is often garnered from other this program is ethanol, per the that the definition of byproduct include technologies that are better suited to legislation. the primary product being produced Response: The Agency disagrees with whenever the primary product has more pilot scale projects. Therefore, the the commenter. The statute defines than one marketable use beyond as an commenter maintains that requiring the advanced biofuels as fuels derived from advanced biofuel. For example, advanced biofuel technology ‘‘has at renewable biomass other than corn anhydrous ammonia is an excellent fuel least a 12-month (four seasons) kernel starch. Therefore, any advanced in its own right, is the best way to operating cycle at semi-work scale’’ is biofuel produced from corn kernel transport, store, and recover hydrogen, unwarranted and unacceptable. This starch is excluded. and can also be used as fertilizer. There criterion assumes that there are no Comment: Several commenters should be no penalties for a biorefinery alternative, less expensive, or even recommend broadening the definition of that sells all of its product to established better approaches to achieving advanced biofuels to include markets, whether as an advanced confidence that the new technology is bioproducts. There are many new biofuel or as a byproduct, as long as the ready for first-time commercial technologies that are being developed in project can be financed. deployment. In fact, there are such the pursuit of advanced biofuels that Response: As noted earlier, the alternative approaches for many can significantly contribute to rural Agency has removed the requirement technologies. The program evaluation economic development through the use that 70 percent of the revenue must be criteria must be flexible enough to of biobased feedstock and/or biobased from the sale of advanced biofuel. To be provide the acceptance of technologies products that are more environmentally eligible, the project needs to produce an that do not neatly fit into the ‘‘standard’’ desirable as well as more cost effective. advanced biofuel and biobased product scale-up model that appears to be Many of these new technologies also and the majority of the production is expected in this proposed rule. require plants to be built to an economy advanced biofuels. Response: The Agency disagrees with of scale that would require a loan the recommendations. Because of the guarantee in the $100 to $250 million Eligible Technology operational risks associated with these range. These projects can also provide Comment: One commenter states that, new and emerging technologies, it is needed jobs in rural areas and bring in conversations with Agency staff that necessary for the semi-work scale enhanced economic development to the oversees this program, there appears to facility to operate for a sufficiently long region. be an ‘‘institutional bias’’ in favor of period to determine if there is any Response: The definition of technologies that follow a specific seasonal variation in the production ‘‘advanced biofuel’’ is provided in the technology development pathway. process. To determine if there is any statute and, thus, cannot be changed by There appears to be an expectation that seasonal variation, at least 12 months of the Agency. The statute also defines all technologies should have completed operation is required. The technology ‘‘biorefinery’’ to include the production a ‘‘pilot facility’’ as a precursor to must demonstrate technical and of both biofuels and biobased products. commercial viability. However, not all commercial viability at semi-work scale However, the potential borrower must technologies neatly fit into a reasonably to qualify for the program. The technical

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assessment criterion is not specific to cooperatives incorporated in this the Participant and the borrower do not any one technology. manner. have privity of contract and thus have Comment: Two commenters state that The commenter recommends using no rights or obligations to one another. the definition of technical and economic the definition as put forth in the Response: The Agency has potential is inconsistent with prevailing recently published proposed rule determined that the definition of industry practice and requirements of regarding the VAPG Program, 7 CFR participation found in § 4279.2, which other Federal programs. Standard parts 1951 and 4284, RIN 0570–AA79. is incorporated by reference in this rule, industry practice is to operate a In the proposed rule, ‘‘farmer or rancher is sufficient. Thus, the Agency has not demonstration plant for a sufficient cooperative’’ is defined as: ‘‘A business included the definition of participation enough time to generate steady state owned and controlled by agricultural suggested by the commenter. operating data that validates key unit producers that is incorporated, or Regulated or Supervised Lender operations and the integrated otherwise identified by the state in Comment: One commenter states that, biorefinery process. For example, the which it operates, as a cooperatively in order for the implementation of their DOE requires six months of operation operated business.’’ recommended Bond Loan Model to be and 1,000 to 2,000 hours of operating This definition would include farmer successful, the definition of Lender data at the demonstration scale level. cooperatives that are incorporated under needs to be modified to add to the end The commenters recommend adopting a general business corporation statutes and yet operate in a cooperative manner thereof: 1,000 hour operating data requirement ‘‘* * * and may include a regulated ‘‘ and are recognized as farmer to define technical and economic or supervised lender, acting through its cooperatives for purposes of Federal and potential’’ instead of the 12-month corporate trust department, that state taxation and other statutes. requirement in the proposed rule. otherwise meets the lender eligibility One commenter agrees with the Another commenter states that, requirements in § 4279.202(c). A lender Agency’s definition as being a business although it is generous to add a that otherwise meets the lender incorporated as a cooperative that is provision for ‘‘semi-work scale,’’ it is eligibility requirements of § 4279.202(c), solely owned and controlled by restrictive to include the 12-month (four where the guaranteed and/or agricultural producers. However, season) operating history in all cases. To unguaranteed portions of the loan are to operational aspects should also be prove the viability of the technologies be funded through bonds, may join with included, consistent with the being used, the commenter suggests that a broker or dealer that is regulated by requirements of the Capper-Volstead the requirement be changed to require the Securities Industry and Financial that, with regard to algae projects, the Act. This will help prevent the abuse of Markets Association and is otherwise a growing, harvesting, and extraction the term farmer cooperative. registered broker or dealer within the systems be benchmarked by three Response: In considering these meaning of the Securities Exchange Act independent third parties rather than comments, the Agency has determined of 1934, in submitting the application requiring a specific length of operating that it is appropriate to revise the required by § 4279.260 and be a party to history without a ‘proven results’ definition in the rule to be generally such application for purposes of requirement. consistent with the definition being assisting the lender in assuring Response: The Agency disagrees with used in the value-added producer grant compliance with § 4279.261.’’ the recommendation. Because of the program. The revised definition requires Response: The Agency disagrees with operational risks associated with these the business to be ‘‘cooperatively the commenter’s suggested revision to new and emerging technologies, it is operated,’’ which addresses the one the definition of lender. The Agency is necessary for the demonstration plant to commenter’s request concerning authorized to guarantee loans, which in operate for a sufficiently long period to operational aspects. certain circumstances may include determine if there is any seasonal Participation bonds as described below, under this variation in the production process. To program. The Agency considers that this Comment: One commenter determine if there is any seasonal requires a lender to make the loan from recommends adding a definition for variation, at least 12 months of its resources and then service that loan ‘‘participation.’’ The commenter suggests operation is required. Thus, requiring itself. While the Agency will permit the the following: only 1,000 hours, as suggested, would lender to secure limited servicing not allow this determination of potential Loan Participations responsibilities from third parties, the seasonal variation. Therefore, the Structure: Generally, participations lender must remain responsible for the Agency has not revised the rule as are loans where the ‘‘lead lender’’ (Lead) servicing. The rule clarifies the requested. sells a participation in a loan to one or definition of eligible lenders, which is more participating lenders similar to that used in the Business and Farm Cooperative (Participant(s)). The sale may be Industry Guaranteed Loan Program. As Comment: One commenter believes expressed in terms of a dollar amount or noted earlier, savings and loan this definition would unintentionally a percentage of the loan. The Lead then associations, mortgage companies, and exclude long-standing cooperatives from continues to manage the loan on behalf other lenders (those that are not eligibility for the program. Cooperatives of itself and the Participants. The regulated) are not eligible to participate are not required to be formed under a relationship among the lenders is in this program. cooperative incorporation statute in typically formalized by a participation The Agency considers this as distinct order to qualify as a cooperative for agreement, which states in writing that from the typical investment banking purposes of the IRS Code or other the Participant receives an undivided scenario where an investment bank Federal statutes. A cooperative may be interest in the loan. The sale of the secures the financing from outside organized, instead, under a state’s participation generally occurs after the investors. After the funding is secured, general business corporation statute and Lead and the borrower have executed the investment bank has no further have its cooperative characteristics the loan documentation. The Participant involvement with the transaction. established in its articles and bylaws. is thus dependent upon the Lead for Servicing is handled by a trustee who The commenter is aware of many farmer protection of its interests in the loan— reports to and is controlled by the

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investors. The Agency considers that unguaranteed portion to 7.5 percent of then service that loan itself. While the this is an investment instead of a loan the total loan amount; Agency will permit the lender to secure and that its current authority is • Enabling the interest rate of the limited servicing responsibilities from insufficient to guarantee investments. unguaranteed portion of the loan to third parties, the lender must remain increase by 500 basis points rather than responsible for the servicing. Renewable Biomass 1 percent as proposed; and Comment: One commenter believes Comment: One commenter states that • Allowing loan guarantees up to 90 that allowing biorefinery applicants to they are aware of the numerous percent for guaranteed loans of $125 use the Federal Financing Bank as the definitions of biomass in Federal million or less. sponsor lender, similar to the DOE loan statutes and understand that the Agency Lender Eligibility Requirements guarantee program, would provide is compelled to administer the loan (§ 4279.202(c)) projects with another option to secure guarantee program based upon the debt financing. definition in Section 9001 of the 2008 Comment: One commenter states that Response: The Agency cannot Farm Bill. The commenter hopes that the early preamble comments to the consider the Federal Financing Bank as Congress will consider reconciling these regulation indicate that lender eligibility an eligible lender because it requires a definitions in the near future, and asks will be restricted to regulated, 100 percent guarantee, which the that the Agency, in coordination with supervised lenders. Given the highly Agency is prohibited from offering by the Biofuels Interagency Working specialized nature of biorefinery statute. Group, provide recommendations on a lending, the restriction on eligible Comment: One commenter definition of biomass that is consistent lenders should not be driven by recommends allowing a ‘‘lead lender/ with sustainability principles while also regulatory controls, but rather by arranger’’ to submit an application for a providing adequate supplies of biomass. experience and sophistication in loan guarantee by the NOFA deadline, The commenter believes that the 2008 financing biorefinery projects. The stating the level of their funding Farm Bill definition meets these criteria. parameters for eligible lender instead commitment along with a funding plan Response: The Agency acknowledges should be broader than those outlined on how the remaining portion of the the comment. in 4279–A and should include loan will be financed by other lenders. experienced investment bank The other lenders may not be identified Syndication of Loans consortiums with an emphasis on until after the ‘‘lead lender’’ receives the Comment: One commenter experience and capitalization. The Conditional Commitment, but will be recommends adding a definition of commenter states he did not actually identified and subject to the Conditional ‘‘syndication of loans.’’ The commenter find the lender eligibility criteria Commitment prior to issuance of the suggests the following: anywhere in the proposed rule. Loan Note Guarantee. Syndication Structure: A loan One commenter recommends Response: The comment presumes participation is similar to a loan expanding the definition of eligible that the rule would allow syndication. syndication in that a group of lenders lender to make it clear that lenders other However, for the reasons presented in provides funds to a borrower. In a than commercial banks are allowed. The response to an earlier comment, the syndication, however, each lender signs definition could be: ‘‘Any person or interim rule does not contain provisions the loan agreement with the borrower legal entity for the purpose of, or specific to syndication. Therefore, no and thus has a direct legal relationship engaged in the business of, lending changes have been made to the rule in with the borrower. One of the lenders money, including, but not limited to, response to this comment. will be designated as the agent-lender commercial banks, insurance Comment: One commenter (Agent) for the other syndicate companies, credit unions, mutual funds, recommends allowing the ‘‘lead lender/ members. The Agent is typically the factoring companies, investment banks, arranger’’ to perform the servicing lender owning the largest percentage of institutional investors, venture capital activities of the syndication, and deal the loan or the lender with enough investment companies, trusts, or other directly with the borrower instead of prestige to form a syndicate of lenders. entities designated as trustee or agents requiring all the lenders of the The Agent may also be the lender with acting on behalf of bondholders or other syndication perform duplicate routine an established relationship with the lenders.’’ servicing activities. Each original lender borrower. It is responsible for Another commenter is concerned that will hold its own promissory note and structuring the intended credit facility, allowing only commercial banks to the collateral is held by the arranger as pricing the loan, developing information participate in the loan guarantee agent for each of the members of the pertaining to the borrower, and program limits the pool of potential syndicate. As to any matters of negotiating and closing the transaction. investors and rules out investors such as significance, a vote or approval of 51 Thus, all formal communications among insurance companies, pension funds, percent of the lenders is required to take the lenders, as a group, and the mutual funds, and college endowments. any action (e.g., waive or modify borrower are conducted through the The commenter believes it makes sense covenants, release collateral, agree to Agent and all funds are disbursed to allow the borrower to fund debt from forbearance, declare default and through and received by the Agent. any accredited investor in order to liquidate collateral, etc.). Each of the Response: The Agency does not agree maximize the potential investor base original lenders in the syndication that the rule needs to include provisions and lower the overall cost of borrowing would be responsible for servicing, but directed at syndication. The Agency has for biofuel projects. there would only be one original lead made three significant changes to the Response: The Agency disagrees with lender performing most of the servicing rule that mitigate and minimize the the commenters regarding eligible activities. concerns expressed by this and other lenders, and the rule reflects Response: Absent syndication, the commenters for syndication in order to requirements that are similar to those Agency agrees with the concept of a mitigate lead lender risk. Specifically, for a traditional lender under the lead lender in the context of the three changes are: Business and Industry guaranteed loan participation. As noted in a previous • Revising the minimum retention program. The Agency requires a lender response, while the interim rule does requirement from 50 percent of the to make the loan from its resources and not contain provisions specific to

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syndication, the rule does provide other Comment: One commenter states that Response: Lenders other than ways lenders can manage risk, which the ‘‘supervised or regulated’’ lender commercial banks or thrifts must also address the concerns raised by the terms are unclear and further definition demonstrate that they meet the same commenter. or guidance needs to be provided so criteria identified in § 4279.202(c)(2). Comment: One commenter potential lenders know if they meet the Debarment/Suspension recommends allowing lenders to criteria prior to applying for a loan (§ 4279.202(c)(3)) ‘‘participate the loans,’’ which is guarantee. The commenter recommends different than ‘‘syndication of lenders’’ loosely defining the term ‘‘supervised or Comment: In pointing out that one of with other lenders by Participation regulated’’ in order to allow as many the lender eligibility requirements is Agreements. different types of lenders as possible to that the lender must not be otherwise Response: Participations are not qualify, but still have an adequate debarred or suspended by the Federal excluded under the rule. The Agency amount of oversight by a state or Federal government, one commenter states that has determined that the definition of agency. If a lender is not ‘‘supervised or he assumes this language does not participation found in § 4279.2, which regulated,’’ then provisions should be disallow lenders that may have a cease is incorporated by reference in this rule, stated as to what other criteria they can and desist order or other directive is sufficient for allowing participations. meet so they can become an eligible requesting corrective actions from FDIC from obtaining a loan guarantee. The Comment: One commenter lender. This could be patterned after the commenter recommends that lenders be recommends clearly allowing a ‘‘non-traditional’’ lender requirements able to obtain a loan guarantee even if ‘‘syndication of lenders’’ to finance a that the B&I guaranteed loan program they have a cease and desist or other single project. The process could be utilizes. directive from FDIC requesting structured similar to the Solicitation Response: The Agency agrees with the corrective actions. The B&I guaranteed Notice DE–FOA–0000166 issued by the commenter that the term ‘‘supervised loan program allows lenders to continue and regulated’’ was unclear and has DOE on October 7, 2009. This is the to obtain loan guarantees. traditional way large loans of this type modified the rule to define eligible Response: Because of the maximum are financed by lenders. lenders similar to the Business and program loan amount for this program Response: For the reasons previously Industry Guaranteed Loan Program. (i.e., $250 million) and the associated provided in response to other comments However, the Agency disagrees with the risk under this program, the Agency is on syndication, the interim rule does commenter to make the requirements concerned that allowing a lender with a not contain provisions specific to similar to the non-traditional lender cease-and-desist order to continue to syndication. As noted in a previous language under the Business and obtain a loan guarantee may not be in response, while the interim rule does Industry Guaranteed Loan program. Due the government’s best interests. not contain provisions specific to to the amount of risk associated with Therefore, the Agency will evaluate syndication, the rule does provide other these projects, the Agency has such instances on a case-by-case basis. ways lenders can manage risk, which determined, based on the its experience address the concern raised by the in managing lender risk in other Lender Experience (§ 4279.202(c)(5)) commenter. guaranteed loan programs, that Comment: One commenter states that traditional lenders offer stronger capital the Agency is contemplating approving Lender Eligibility Requirements base and loan and servicing experience. (§ 4279.202(c)(1)) loan guarantees only for lenders with Lender Eligibility Requirements adequate experience (as determined by Comment: One commenter (§ 4279.202(c)(2)) the Agency) with similar projects and recommends allowing SEC-regulated the expertise to make, secure, service, investment banks, as well as Comment: One commenter asks how and collect loans approved under the commercial banks, to act as the the requirement that the lender must section 9003 program. The Agency applicant ‘‘lender-of-record.’’ According maintain at all time the minimum believes this provision is necessary to to the commenter, commercial banks are acceptable levels of capital specified in further limit Agency risk, and the not the best equipped entities to § 4279.202(c)(2)(i) through (iii) will be Agency is proposing the issuance of perform due diligence and debt enforced. The commenter also asks: loan guarantees to regulated or structuring and placement on first-of- What is the purpose of this supervised lenders, which precludes kind biorefinery projects. Because a requirement? What happens if the bond financing monies from being ‘‘lender-of-record’’ serves as the lender fails to meet the requirements? guaranteed under this program. In a applicant for the program, this The commenter recommends that this better economy, other forms of restrictive definition of eligible ‘‘lenders- requirement be removed from the financing, such as bond financing, of-record’’ fundamentally restricts the proposed regulation. might become available. Although the potential applicant pool. Response: The Agency has modified underwriting requirements are not Response: The Agency’s current the rule to require that the lender must necessarily as stringent as bank loans, statutory authority does not permit meet acceptable levels of capital at the and given the results of the state investment banks to be eligible lenders. time of application and issuance of loan guarantees of debt for biorefineries, the The rule reflects requirements that are note guarantee, thereby removing the commenter suggests that, in order for similar to those for a traditional lender requirement of maintaining acceptable bond financing to qualify for Agency under the Business and Industry capital levels at all times, which guarantees, the same guidelines and guaranteed loan program. The Agency addresses the enforcement concern requirements be implemented as for requires a lender to make the loan from noted by the commenter. more traditional lenders. its resources and then service that loan Comment: One commenter requests The commenter proposes that the itself. While the Agency will permit the clarification as to whether there are any Agency, the lenders, and the borrowers lender to secure limited servicing minimum total risk based capital ratios all remember that the Agency is offering responsibilities from third parties, the or leverage capital ratio requirements if to issue loan guarantees, and that the lender must remain responsible for the the lender is not a commercial bank or guidelines not interfere with the servicing. thrift. traditional asset-based lending process,

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but supplement it by offering lenders burden for preparation on professional goods inventory, as well as proceeds inducements to make the loans consultants whose work is then subject thereof (in the form of account necessary to develop commercial-scale to agency review. This latter approach is receivable), including any insurance projects. appropriate given the complexities of proceeds. Response: The Agency is authorized biorefinery environmental impacts. The Response: The Agency is agreeable to to guarantee loans, which in certain commenter believes that Agency allowing working capital loans, not circumstances may include bonds as personnel will typically lack the guaranteed by the Agency, which are described below, under this program. expertise for a project of this nature. secured by the inventory and accounts The Agency considers that this requires Response: The Agency disagrees with receivable. The Agency may consider a a lender to make the loan from its the commenter. The program is subordinate lien position on inventory resources and then service that loan consistent with the Business and and accounts receivable for working itself. While the Agency will permit the Industry Guaranteed Loan Program, 7 capital loans under certain conditions lender to secure limited servicing CFR part 4279, subparts A and B, which (see § 4279.202(i)(1)). The Agency responsibilities from third parties, the references 7 CFR part 1940, subpart G. disagrees with the comment regarding lender must remain responsible for the The rule requires the applicant to inclusion of insurance proceeds. The servicing. complete Exhibit H of 7 CFR part 1940, borrower should be able to obtain a Recognizing the current difficulties in subpart G, which is an environmental working capital loan without the securing funding, the Agency has been report, similar to the Rural Utilities inclusion of insurance proceeds. approving certain bond transactions. Service 7 CFR part 1794 process. Comment: One commenter believes The Agency considers that, under the Neither this program nor the Business that the requirement of § 4279.202(i) for limitations contained in this regulation, and Industry Guaranteed Loan Program a first lien on all collateral is too guaranteeing these bonds is in keeping precludes third parties from performing inflexible. The commenter recommends with its authority. In order to be more the environmental analysis necessary that a section 9003 loan be fully transparent of its willingness to for the Agency to conduct its National secured, and any improvements or guarantee certain bond transactions, the Environmental Policy Act evaluation as property financed with section 9003 Agency has modified this regulation long as the submitted material is funds be pledged under a first lien. accordingly. sufficient for the Agency purposes. Beyond this, the collateral should be Specifically, the lender is required to Conditions of Guarantee (§ 4279.202(i)) negotiable. The commenter believes it provide the loan proceeds and service may be necessary to allow other lenders the loan. The Agency will allow a Comment: Several commenters state that, as proposed, the guarantee would to have a first lien on assets they trustee to provide limited servicing only finance, and this is certainly the case if the trustee is fully under the control protect only 60 percent of the bank’s position. The commenters recommend with any lender providing working of the lender. Holders’ rights are limited capital. to receiving payments under the note or that, if the Agency wants to insist on a first lien position, a guarantee of up to Response: The Agency partially agrees bond and if those payments are with the commenter. The Agency is delinquent making demand for payment the 90 percent level allowed by statute is certainly warranted for loans on first- agreeable to allowing working capital on the lender and the government as loans, not guaranteed by the Agency, provided in the regulation. In certain of-a-kind technologies. If the Agency does not increase the guarantee level to which are secured by the inventory and cases where the lender and borrower accounts receivable. The Agency may desire to change the loan terms, the 90 percent, some of the commenters recommend that the lien positions of the consider a subordinate lien position on holder is also required to consent to any inventory and accounts receivable for changes. Loans providing holders any Agency and the holders of unguaranteed debt have equal priority. working capital loans under certain other rights are ineligible for guarantee conditions. However, the Agency under this program. Response: The Agency is allowing a guarantee of 90 percent for guaranteed disagrees with rest of the comment due Independent Credit Risk Analysis loans of $125 million or less under to the risk to the government. (§ 4279.202(d)) certain conditions. To clarify for the Comment: Two commenters state that Comment: One commenter states that commenter, the Agency requires that the the proposed rule appears to conflict the requirement for an independent risk lender acquire the first lien position on with the 9003 NOFA in that it would analysis mentioned in § 4279.202(d) the collateral. The Agency does not file put the unguaranteed lenders in a junior refers to a $100,000 threshold, and a lien against the collateral. The Agency position to the Agency, whereas the recommends a threshold of $100 notes that the guaranteed and the 9003 NOFA states: ‘‘The entire loan will million. unguaranteed portions of the loan have be secured by the same security with Response: The Agency agrees that the the same lien priority. equal lien priority for the guaranteed $100,000 amount was in error. The error Comment: One commenter states that and unguaranteed portions of the loan.’’ has been corrected in the rule to $125 a working capital lender is vital to the Response: There is no conflict. Within million. success of any biorefinery, and that, the rule at § 4279.224, a cross reference under commercial lending practices for is made to the provisions found in Environmental Responsibilities project finance transactions, a working §§ 4279.107 through 4279.187, which (§ 4279.202(e)) capital lender will require a first lien on includes § 4279.131(e) stating ‘‘the entire Comment: One commenter raw goods, works in progress and loan will be secured by the same recommends basing the environmental finished goods inventory, as well as security with equal lien priority for the review requirements of § 4279.202(e) on proceeds thereof (in the form of guaranteed and unguaranteed portions 7 CFR part 1794 rather than 7 CFR part accounts receivable), including any of the loan.’’ As noted above for 1940, subpart G. The commenter points insurance proceeds. Therefore, the clarification purposes, the Agency out that 7 CFR part 1940, subpart G, commenter recommends modifying requires that the lender acquire the first relies heavily on agency personnel to § 4279.202(i) to provide that a working lien position on the collateral. The conduct the environmental analysis, capital lender may have a first lien on Agency does not file a lien against the whereas 7 CFR part 1794 places the raw goods, work in process and finished collateral.

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Comment: One commenter states that to comply with basic asset based equity. The non-guaranteed portion of the Agency should clarify that the lending guidelines and prudent the loan cannot be converted because guaranteed and unguaranteed lenders commercial lending guidelines, the the Agency wants the lender to maintain will rank pari passu with respect to the lender must have a first lien position on a lending interest in the loan. first lien on project collateral as all assets of the borrower. The Sale or Assignment of Guaranteed Loan specified in the 2008 Notice of Funding commenter further states that, because (§ 4279.202(j)) Announcement (NOFA). The the terms of the guarantee commenter believes the Agency added documentation will address when the Comment: Based upon the state of the the first lien requirement in the guarantee comes into play, which would commercial banking industry, one proposed rule due to the size of the be after an uncured event of default by commenter recommends applying the guaranteed loans under this program. the borrower under the lender’s loan language regarding the transferability of This requirement puts lenders in a documents, an assignment by the lender the loan to any accredited investor to secondary position behind the Federal to the Agency of its lien position, both the guaranteed and unguaranteed government. The lender’s position is should the lender pursue the guarantee, portions of the loan. protected by the loan guarantee—but is a standard and customary term. Response: To allow the transfer of the only up to the percentage amount of the Response: As noted above, the Agency unguaranteed portion of the loan guarantee. In case of default on a $125 requires that the lender acquire the first beyond the minimum retention to $250 million loan, the guarantee lien position on the collateral. The requirement would minimize the would protect only 60 percent of the Agency does not file a lien against the lender’s financial interest in the project. lender’s position, according to the collateral. As previously referenced, the Therefore the Agency disagrees with the proposed rule’s current structure. entire loan will be secured by the same recommendation. The Agency notes that The commenter recommends that, if security with equal lien priority for the the unguaranteed portion of the loan in the Agency includes the first lien guaranteed and unguaranteed portions excess of the minimum retention position as specified in the proposed of the loan. requirement may be sold to third party rulemaking in the final rule, a guarantee Comment: Several commenters state holders. of up to the 90 percent level, as allowed that the Agency should not hold the first Comment: One commenter states that by statute, be provided for loan lien on all collateral necessary to run the Agency should explain why it will guarantees on first-of-a-kind the project in the event of a borrower’s not guarantee a loan funded with the net technologies. default. Lenders would, therefore, be proceeds of a bond described in section Response: As noted above for subordinate to the government. In the 142(a) of the Internal Revenue Code of clarification purposes, the Agency event of default, the lender’s position is 1986. requires that the lender acquire the first only protected up to the percentage of Another commenter believes what the lien position on the collateral. The the B&I guaranteed. The commenters Agency intended to say in the second Agency does not file a lien against the also state that this also contradicts the part of § 4279.202(j) is that the collateral. As previously referenced, the current B&I guaranteed loan guaranteed portion of the loan may not entire loan will be secured by the same requirements, which have worked well be funded with the net proceeds of security with equal lien priority for the for the Agency in the past. bonds described in section 142(a) of the guaranteed and unguaranteed portions Response: As noted above, the Agency Internal Revenue Code of 1986, as a of the loan. requires that the lender acquire the first result of the prohibition thereof Comment: One commenter states that lien position on the collateral. The contained in Section 149(b). The the requirement for the guarantee to be Agency does not file a lien against the commenter suggests revising secured by a first lien on all collateral collateral. As previously referenced, the § 4279.202(j) to read as follows: to run the project in the event of a entire loan will be secured by the same ‘‘In addition to complying with the borrower’s default, along with a bank security with equal lien priority for the provisions of § 4279.75, and subject to lender being required to hold 50 percent guaranteed and unguaranteed portions the limitation imposed on the original of the unguaranteed portion, has the of the loan. lender by § 4279.202(k), the guaranteed effect of being an unguaranteed loan Comment: One commenter states that and unguaranteed portions of the loan equal to 10 percent of the project loan authorizing guarantees of a revolving shall be fully transferable to any for the bank. The commenter credit facility for future working capital accredited investor and the Agency may recommends some form of lien with and allowing the replacement of the not guarantee any portion of the loan pari passu repayment formula in order non-guaranteed portion of the loan with funded with the net proceeds of the to provide sufficient incentive for equity would provide cellulosic biofuel bond described in section 142(a) of the lenders to participate. companies necessary flexibility to better Internal Revenue Code of 1986. The Response: Within the rule at finance commercial projects. unguaranteed portion of the loan may be § 4279.224, a cross reference is made to Response: The Agency does not agree funded with the net proceeds of a bond the provisions found in §§ 4279.107 with authorizing guarantees of a described in section 142(a) of the through 4279.187, which includes revolving credit facility for future Internal Revenue Code of 1986.’’ § 4279.131(e) stating ‘‘the entire loan working capital. Working capital is an A third commenter states that will be secured by the same security eligible purpose for the guaranteed loan borrowers should be permitted to access with equal lien priority for the but, at this time, the Agency feels that the tax-exempt capital markets for the guaranteed and unguaranteed portions lenders can administer revolving credit unguaranteed portion of debt. Tax- of the loan.’’ Therefore, the guaranteed facilities more efficiently. Therefore, the exempt project debt appears permitted, and unguaranteed portions of the loan Agency is agreeable to allowing working but should be explicitly allowed for the enjoy the same lien position. capital loans, not guaranteed by the unguaranteed portion of the debt. Comment: One commenter states that Agency, which are secured by the Projects should be afforded every the proposal requiring that the inventory and accounts receivable. The opportunity to lower interest costs, guarantee be secured by a first lien on Agency also does not agree with especially by way of Federal, state and all collateral is unreasonable from a allowing the replacement of the non- local programs designed to meet commercial lending standpoint. In order guaranteed portion of the loan with regional and national priorities such as

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the Recovery Zone bond programs. The attentive to the servicing of a loan where notion that institutional bondholders commenter recommends that borrowers the potential loss to the lender in a working together with a corporate should be permitted in all cases to liquidation scenario would be trustee are somehow less accountable to access the tax exempt capital markets, $12,500,000 (assuming application of the Agency than an AgBank or other including when necessary through state the B&I Program’s 5 percent minimum lending institution is simply authority issuance vehicles. retention requirement) versus unfounded. As evidenced by the one Response: The Agency disagrees with $50,000,000 (assuming application of trillion dollar annual bond market, the request to modify proposed the section 9003 program’s 50 percent of which utilizes the Bond Loan Model, § 4279.202(j). To support consistency the unguaranteed portion minimum there is a demonstrated confidence in between this program and the B&I retention requirement). The commenter and success rate for project finance guaranteed loan program and to asserts that there is not a commercial utilizing the Bond Loan Model. eliminate any duplicative Federal bank in the U.S. that would devote less Consequently, the commenter requests assistance that would be provided by attention to a $12,500,000 potential loss that the Agency deem the minimum the subsidy for the loan note guarantee than a $50,000,000 potential loss, as retention requirement of the section and the tax exemption, the Agency has either loss is material; 9003 program to be satisfied by a trustee determined that it would be (3) the Agency did not do adequate acting on behalf of the bondholders inappropriate to distinguish between diligence in setting the minimum when a financing is accomplished guaranteed and unguaranteed portions retention requirement in the Section utilizing the Bond Loan Model. of the loan when applying this 9003 NOFA, because, if it had, it would Based on the above, the commenter provision. have understood that for a $250,000,000 recommends revising § 4279.202(k) to loan guarantee, there are likely less than Minimum Retention (§ 4279.202(k)) read as follows: ‘‘The provisions of 5 commercial banks in the U.S. that § 4279.77 apply to this subpart. Lenders Comment: Seven commenters state have the capacity to originate such a may syndicate and/or participate a that the proposed level of unguaranteed loan where they were required to retain portion of their risk position to other loan retention by the original lender is 50 percent of the unguaranteed portion eligible lenders or accredited investors not possible given today’s market thereof; and provided that at no time during the life conditions. The commenters state that (4) the Agency failed to do of the guarantee may the original lender banks remain extremely cautious to appropriate diligence when it issued the hold an amount of the loan less than the make loans to first-of-a-kind Section 9003 NOFA because there are amount required by § 4279.77. The technologies. One commenter states that no commercial banks in the U.S. that are requirements of this section and the risks associated with holding a large either willing or able to approve through § 4279.77 will always be deemed unguaranteed portion of a loan is akin their respective loan committees a satisfied by a trustee where bonds are to making an equity investment in the $50,000,000 unguaranteed loan for a used to fund a guaranteed loan.’’ enterprise being financed, something nonrecourse financing of a first-of-a- Response: The Agency recognizes the most lenders are unable to do because kind technology which loan cannot be concerns raised by the commenters of regulatory constraints, or are syndicated or participated. regarding the impact of a minimum The commenter suggests that the unwilling to do because of the high retention requirement. Based on the language should incorporate either degree of risk involved. These Agency’s lengthy experience, it believes ‘‘syndication’’ or ‘‘participation,’’ such commenters, therefore, recommend that it is necessary for participating that a lender can syndicate and/or eliminating this provision. lenders to always retain a portion of the Six commenters recommend using the participate a portion of the lender’s risk risk to ensure that the loans are properly same requirement for minimum position. The commenter also suggests serviced. The Agency also recognizes retention that is allowed for the that the language which provides that that the minimum retention requirement guaranteed Business and Industry loan lenders may syndicate a portion of its in the proposed rule did not strike a guarantee program where the lender is risk position to other eligible lenders be proper balance with respect to these to retain 5 percent of the loan amount. revised to provide syndication and/or concerns. As a result, the Agency has One commenter believes, for a participation to any accredited investor revised the minimum retention multitude of reasons, that this section of in order to make § 4297.202(k) requirement to be similar to that found the proposed rule is unworkable and consistent with § 4279.202(j). in the Business and Industry relies upon assumptions that are The commenter states that, in the Guaranteed Loan program. The Agency incorrect. The commenter disagrees context of the Bond Loan Model, a bond notes that, given the size and with the size of the minimum retention trustee holds title to and is the owner of complexity of projects under the requirement and the assumption on 100 percent of the Bond Loan Note and Biorefinery Assistance Program, the which it was based for the following the Collateral Documents securing the minimum retention was increased from reasons: guaranteed and unguaranteed portions (1) The Agency did not do adequate of the loan for the entire term of the 5 percent to 7.5 percent. diligence or inquiry of the commercial loan. Additionally, a corporate trustee is As previously stated, it is the banking industry when it proposed the the agent of and fiduciary for the Agency’s position that its current 50 percent minimum retention bondholders, and the commenter states authority does not permit a trustee, requirement in the Section 9003 NOFA that the minimum retention whether that trustee is an eligible lender as is evidenced by its recent outreach to requirements of § 4279.202(k) should be or not, to just hold a beneficial interest commercial banks to determine why deemed satisfied as a direct result of the for other lenders. they have been unwilling to act as a corporate trustee reporting to and being Guarantee Fee (§ 4279.226(a)) sponsor/lender of a section 9003 controlled by the underlying program guaranteed application; bondholders in a way which permits Fee Structure (2) the Agency incorrectly assumed and requires bondholders, subject to Comment: Several commenters that a commercial bank originating a Agency retained rights, to exercise their believe that the current Agency fee loan guarantee under the section 9003 rights as at-risk investors through the structure is onerous for larger projects, program would be less interested in or trustee. The commenter states that the and should be set at one flat fee as in

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the other Agency loan guarantee ‘‘citizens,’’ then a ‘‘borrower’’ for who are either citizens as identified programs. These fees need to be purposes of the section 9003 program above or legally admitted permanent affordable for these types of projects. seemingly can be owned by corporate or residents residing in the U.S.’’ The The Agency should not receive a fee other types of entity shareholders at the commenter noted that comparable based on the amount of equity that is first ownership level above the Department of Energy and Department contributed as long as the loan follows borrower, as corporations or other of the Treasury loan guarantee and/or the minimum guidelines. The fees entities incorporated, organized or grant programs do not contain similar should be capped at the same amount, otherwise established in the U.S. have citizenship restrictions. and because these are large projects, it traditionally been held by our laws and Response: As noted in a previous should be no more than 0.5 percent. courts to be U.S. citizens. This response, the Agency has reconsidered Having a fee in the 2 percent range adds interpretation would then require no the citizenship requirement and has tremendous pressure on debt financing further ‘‘look-up’’ the ownership chain, decided to eliminate this requirement that is already higher than usual as U.S. citizenship will have been from the final rule. Because we have because of the risk profile. Annual legally established at the first ownership removed this requirement, no action is renewal fees should also be capped at level above the borrower. However, the required to address the commenter’s 0.25 percent. commenter states that in the May 6, concern. Response: The Agency disagrees with 2010 NOFA the Agency unnecessarily Comment: One commenter states that commenter. The Agency has structured goes a step further (this further step is the proposed program does not include the fees to address the risk and cost to also contained in the proposed rule) by 501(c)(3) nonprofit organizations as an the government. adding a sentence stating: ‘‘When an eligible applicant for the program and Comment: One commenter entity owns an interest in the borrower, believes nonprofit organizations, recommends that the guarantee fee set its citizenship will be determined by the because of their role in communities as forth in § 4279.226 be left subject to citizenship of the individuals who own being there for the good of all, can help change in each Federal Register notice an interest in the entity or any sub- showcase the biorefinery technology, that announces the availability of funds. entity based on their ownership support small local businesses through The actual subsidy rate cost of running interest.’’ their purchasing power, and even this program may change as more According to the commenter, encourage the startup of privately information about the risks associated notwithstanding that the term ‘‘person’’ owned biorefineries. with it become clear, and because the includes a corporation that is a U.S. Response: Nonprofits can apply projects that will be submitted are citizen, the Agency will continue to provided they meet the eligibility already controlled by a NOFA process, look-up the chain of ownership to requirements. the Agency should retain the right to set determine the ultimate individual Revenue From Sale of Advanced Biofuel a new fee structure with each NOFA. owners of such entity and the total Requirement (§ 4279.228(d)) The commenter believes the Agency percentage U.S. citizenship among should not lock itself in to fees in the them, ignoring that the corporate entity Comment: One commenter states that regulation. is a U.S. citizen. The commenter states there are numerous scenarios whereby Another commenter believes the fee that the Agency seemingly went out of the only way to achieve financing for a structure is reasonable in terms of its way to complicate and confuse the new renewable fuel product is to make requiring lower fees for lower dollar otherwise clear meaning of the term it and sell it into an alternative market projects. The commenter suggested ‘‘person’’ to require that a further test of because this approach achieves the periodically reviewing whether the two U.S. ownership be undertaken by lower risk level required by the percent fee for larger projects is adding a seemingly endless upstream investors and lenders. The commenter warranted to ascertain its ownership analysis notwithstanding states that one example would be to appropriateness as projects are funded. that these entities may be legally convert biomass into methanol. Response: The Agency generally incorporated, organized or otherwise Methanol is a promising and emerging agrees with commenters. The intent of established entities of the U.S., which fuel for a large class of fuel cells than establishing a specific guarantee fee in are legitimate U.S. citizens under long- can be used for stationary electricity the rule is to provide a stated fee in the established laws. generation, or as a means of recharging rule. However, the Agency does The commenter states that this U.S. a battery in an electric car when a plug acknowledge there may be a time when ownership restriction has no bearing on is not easily accessible. Or, for electric a different guarantee fee may be the creditworthiness of any borrower delivery vehicles that stop regularly, required. Therefore, the Agency has under the section 9003 program. Rather, such fuel cells would be providing near- revised the rule to allow it the option of in the current adverse economic climate real-time battery recharge. This would adjusting the guarantee fee through the of diminishing numbers of available not be a typical gasoline replacement publication of a Federal Register notice. investors, and in light of President fuel scenario but achieves the same Obama’s expressly stated dual goals. While that market is emerging, Borrower Eligibility (§ 4279.227) intentions to (1) create 5 million new the production volume that would make Comment: One commenter states that jobs from the renewable energy the biorefinery sufficiently efficient and the distinction between the proposed industries and (2) double the percentage therefore economically viable could rule and the May 6, 2010 NOFA is the of renewable energy in each of the three likely exceed the near term need as fuel. addition of the term ‘‘persons’’ and the years between January 1, 2009 and In that case, the financing group could deletion of the term ‘‘individuals.’’ The January 1, 2012, these restrictions fly in require that the biorefinery sell the proposed rule does not define the term the face of the Administration’s clearly methanol to biodiesel plants or as a ‘‘persons’’; however, the Section 9003 stated goals. replacement denaturant for ethanol NOFA and the May 6, 2010 NOFA The commenter, therefore, production. Very few of these uses looks define ‘‘person’’ to mean ‘‘Any recommends that § 4279.227(a)(2) either like a standard ‘‘fuel’’ business yet in all individual, corporation, company.’’ be deleted or revised to read as follows: cases meets the intended overarching With the term ‘‘person’’ now defined to (ii) Entities other than individuals must goals of the program which is the include ‘‘corporations’’ that are be at least 51 percent owned by persons reduction of the imports of foreign

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energy (especially given that the U.S. definition of ‘biorefinery’ in the 2008 Comment: One commenter states that imports 100 percent of the methanol Farm Bill. the 20 percent proposed minimum cash used in the U.S.). The commenter states Response: The Agency disagrees with equity requirement is acceptable and that, as a result, this criterion should be the commenter to develop a separate appropriate. The commenter states that, dropped in its entirety and replaced threshold for algae producers. As noted given the size of the projects, there are with criteria that cover whether the above, the Agency has removed revenue no investors that are truly able to invest product proposed replaces an existing as the standard of measurement, and the in such projects with the expectation of fuel or energy intensive product and rule has been modified to require that a losing funds. Twenty percent of $100 whether the replacement substitutes for majority of the biorefinery production is million project ($20 million) is a real an equivalent imported energy product. advanced biofuels. When the biobased and meaningful commitment by an Examples of products where substitutes product and any byproduct have an investor or investor group. A higher would meet this requirement are: oil established BTU content from a amount of investment does not actually (and refined products like gasoline, jet recognized Federal source, majority achieve any higher level of commitment fuel, diesel), methanol, anhydrous biofuel production will be based on since the amount is already so high. ammonia (or other nitrogen derivatives BTU content of the advanced biofuel, These amounts are also too large for a such as urea), LPG/LNG. Any product biobased product, and any byproduct. venture investor given that the project that replaces any of these energy or When the biobased product or any returns do not meet their high return energy intensive products should be byproduct does not have an established requirements (usually 40 percent) and so these applications will only see equally allowed. BTU content, majority biofuel project equity investors whose $20 Response: The Agency allows the sale production will be based on output million represents a very real of biobased products and byproducts. volume, using parameters announced by commitment. Hence, by requiring only However, the project must demonstrate the Agency in periodic Notices in the 20 percent equity and not offering more that the majority of the production is Federal Register, of the advanced points for a larger percentage, the advanced biofuels, which corresponds biofuel, biobased product, and any Agency can rest assured that sufficient with the intent of the authorizing byproduct. legislation. Unless otherwise approved project due diligence will have been by the Agency, and determined to be in Cash Equity Requirement (§ 4279.228(e)) performed. When calculating total equity in the project, technology the best financial interest of the Equity Sources government, the advanced biofuel must contributions and in-kind services be sold as a biofuel. Comment: Several commenters should be counted for any amount Comment: One commenter states that, recommend allowing all sources of above the 20 percent minimum cash equity requirement. although the purpose and intent of this equity available to the project when Response: The Agency does score funding is for alternate fuel feedstock, calculating the equity percentage for the project. These projects have large equity projects based on the level of financial the nature of algae as a feedstock puts participation by the borrower. In producers in an unusual position: Algae requirements, and should be allowed to utilize advanced carbon credit sales, addition, the Agency will consider, for produces many different biomass co- existing biorefineries only, the value of products and biocrude oil, both of subordinated debt, preferred stock or loans from investor-owners, New intellectual property based on the value which have marketability, whereas most identified on its audited financial feedstock sources result in one or two Markets Tax Credits, sale of accelerated depreciation, and other means of statement, prepared in accordance with products. The commenter states that, GAAP. Given the potential size and while the 70 percent restriction is securing the large amount of capital that is needed to provide the equity complexity of these projects, the risks certainly appropriate for non-algae inherent in projects attempting to producers, it reduces the ability of algae component. There is currently a bill in Congress to provide the 30 percent grant commercialize new and emerging producers to develop additional technologies make in-kind contributions by Treasury for biofuels production in revenues from which it can pay down unsuitable for inclusion in the equity lieu of the ITC/PTC credits. As a part of its loan (and consequently reduce the calculation. amount of funds being guaranteed). The implementing that program, the Comment: One commenter states that, commenter proposes that algae requirements for application and as with cost-sharing in the grants producers be excluded from the approval of that program need to be context, consideration should be given requirement that 70 percent of its changed to allow Treasury to supply a to a borrower’s contributions of land, revenue must be from the sale of letter of pre-approval for the project that personal property, intellectual property, advanced biofuels. If that is not can be used as a financeable instrument and other assets. The Agency could use possible, a suitable compromise would in this process. Currently, this grant is the type of ‘‘equity’’ composing the 20 be that at least 50 percent of what algae applied for and paid 60 days after the percent (or the borrower’s contribution producers produce be dedicated to the project is commissioned. To be able to in general) as part of the scoring criteria, sale of advanced biofuels and that the properly use this incentive, it is but contributions of assets other than proceeds (gross vs. net could be imperative that the legislation and cash should not operate to disqualify a determined based on percentage) of the approval process be changed to provide project for failing to meet eligibility sale of all co-products must be used to a financeable instrument that can be criteria. pay down the debt being guaranteed. recognized as collateral by the financing Two other commenters recommend The loan covenants and business plans community at the beginning of the considering existing equipment, would have to address the pricing project. building, and land at appraisal value differentials and percentage ratios in Response: The Agency will consider a when calculating the equity entering into the required off-take wide variety of assets as equity. requirements of the borrower. contracts. However, in order to control risk, an Response: The Agency agrees with the The commenter believes that this asset used as equity, for the purpose of commenters to the extent that, for solution more specifically mirrors the this regulation, must be available at the existing biorefineries, qualified original intent, as stated in the time of closing. intellectual property, equipment, and

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real property can be considered in real property in meeting the equity the maximum funding (statutory and meeting the equity requirement, as requirement, as described in discretionary) in each fiscal year. described in § 4279.234(c)(1). The § 4279.234(c)(1). The Agency notes that, Response: The Agency points out that Agency will consider the value of by statute, a loan guaranteed under the it is Congress, not the Agency, who is qualified intellectual property based on program may only finance 80 percent of authorized by statute to provide the value identified on its audited the eligible project costs. The borrower discretionary program funds. It is the financial statement, prepared in needs to provide the remaining 20 Agency’s intent to maximize funding on accordance with GAAP. The Agency percent from other non-Federal sources this program based on Congress’s notes that a loan guaranteed under the to complete the project. appropriations. program may only finance 80 percent of Comment: One commenter Guaranteed Loan Funding (§ 4279.229) the eligible project costs. The borrower recommends that the Agency provide a needs to provide the remaining 20 Comment: One commenter Web page for the program that shows a percent from other non-Federal sources recommends that borrowers be running tally of funds expended and to complete the project. permitted in all cases to access the tax funds remaining available on any given Comment: Two commenters state that exempt capital markets, including when day. This should be represented as the the requirement for a 20 percent cash necessary through state authority actual dollars authorized (and infusion will impose a significant issuance vehicles. The commenter states remaining) and the total amount of loan burden that may render many otherwise that tax-exempt project debt appears guarantee these dollars represent as well-qualified projects unable to secure permitted, but should be explicitly authorized (and remaining) because financing. Any applicant that brings a allowed for both the guaranteed and these numbers are different. The project to the stage where it is able to unguaranteed portions. According to the available loan guarantee amount is the achieve financial closing will, by virtue commenter, projects should be afforded one that is of most relevance and of the selection criteria, have incurred every opportunity to lower interest interest for proposed project sponsors significant pre-closing costs that will costs, especially by way of Federal, state and lenders. not take the form of real property that and local programs designed to meet Response: Projects funded are can be collateralized. This is especially regional and national priorities such as announced by the Agency on its Web likely to be the case with projects that the Gulf Opportunity Zone bond site. At this time, the Agency does not make use of new technology or new programs. have the administrative resources to feedstock, endeavors that are especially Response: Tax-exempt debt cannot be assume the burden associated with likely to require up-front commitments part of the guaranteed loan, which maintaining and verifying the accuracy of capital. The commenters state that it includes the unguaranteed portion of associated with the suggested Web page. would be appropriate, in the scoring of the loan. To support consistency As this request would not require a rule applications, to grant extra points to between this program and the B&I change, none has been made. guaranteed loan program and to those applicants that commit to provide Guaranteed Loan Funding eliminate any duplicative Federal cash equity at closing, thereby (§ 4279.229(b)) enhancing the competitive position of assistance, the Agency has determined their proposals; however, the posting of that it would be inappropriate to Comment: Six commenters this equity commitment should not be distinguish between guaranteed and recommend offering guarantees of 90 an absolute threshold requirement for unguaranteed portions of the loan when percent of the total loan amount. Each participation, as this would have the applying this provision. commenter points to the authorizing effect of removing many otherwise- legislation, which authorizes the Guaranteed Loan Funding worthy projects from consideration. Agency to offer loan guarantees up to 90 The commenters recommend (§ 4279.229(a)) percent. Concerns identified by the eliminating the requirement for 20 Comment: One commenter commenters include: percent cash equity and allowing recommends not limiting the 1. The level of guarantees in the applicants to include preconstruction availability of funds as set forth in proposed rule may be appropriate for costs as contributed equity. § 4279.229(a). Once a NOFA is issued, existing, commercially available One commenter believes that the all funds should be available rather than technologies. But they do not provide requirement that the project must have have half of the funds reserved. If the sufficient risk reduction for new, cash equity of not less than 20 percent idea is to get viable advanced emerging technologies. That is why the of eligible project costs should be biorefinery projects financed, the authors of the statute specified in changed to allow for non-cash equity, commenter believes they should be Section 9003, paragraph (e)(2)(B)(iii) and that ‘‘eligible project costs’’ should financed as they are submitted rather that ‘‘The Secretary may guarantee up to not include goodwill or non-proven or than potentially be required to wait for 90 percent of the principal and interest non-benchmarked technologies. The a second funding period. due on a loan guaranteed under [this] commenter states that the latter could be Response: The authorizing legislation subsection.’’ included as a portion of the required states: ‘‘Of the funds made available for 2. Low guarantee amounts, such as equity, but that they believe that the loan guarantees for a fiscal year under those proposed by the Agency, limit the demise of the dotcom industry lay in the subsection (h), 50 percent of the funds number of lenders who will be willing fact that values were attributed to shall be reserved for obligation during to assume the risks associated with the unproven ideas and that they are not the second half of the fiscal year.’’ high capital costs of building and interested in allowing history to repeat Therefore, the Agency cannot operating a facility that employs a new, itself, especially with something as accommodate the commenter’s request. first-of-a-kind technology that has not important as energy security. Comment: One commenter points out been commercially proven. This makes Response: The Agency disagrees with that the program has statutory minimum capital harder to get, and means fewer removing the 20 percent cash equity funding requirements and an ability to projects will be funded. As a result, new requirement. The Agency may consider, add discretionary funds and, in order to technologies will be deployed much for existing biorefineries only, qualified maximize the benefits of the program, more slowly. The public interest is not intellectual property, equipment, and recommends that the Agency authorize served by this approach.

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3. Guarantee amounts less than 100 this recommendation based on their Loan Guarantee appropriation in the percent create an additional burden for experience seeking debt financing for ARRA (which had up to a 90 percent first-of-a-kind technology projects by their project. The commenter states that guarantee, and reduced or no fee requiring the nearly impossible task of they have been told by most lenders that structure) resulted in the program being placing unguaranteed debt in the 80 percent is insufficient, given that the totally subscribed ahead of the market. While commenters believe that lender must hold no less than 50 September 30, 2010 deadline for use of funding these unguaranteed portions of percent of the unguaranteed portion of these funds. This shows that the lending debt might be possible in the taxable the loan. At an 80 percent guarantee, community will utilize these types of and tax exempt bond markets, it is not that represents 10 percent of the total programs with this higher level of credit at all clear that the very tight credit loan. Unlike venture capital, banks are enhancement. market will in fact be receptive to in the business of lending without the Response: The Agency has revised the unproven technology risk. There is, expectation of a loss of capital. When rule to allow a guarantee of 90 percent therefore, a real risk that projects could combined with the Agency first lien for guaranteed loans of $125 million or succeed in obtaining an Agency loan proposal, the guarantee is not perceived less. The rule also outlines the criteria guarantee, yet end up failing to fund the as much of a guarantee by the bank the project must meet to obtain a 90 unguaranteed debt in any market and holding the unguaranteed portion. percent guarantee, as well as the fail to secure financing. Given the perceived technology risk, the guarantee fee for loans obtaining a 90 4. Without a 90 percent guarantee, it bank perceives that they are taking a 10 percent guarantee. In the Agency is unlikely that first-of-a-kind percent capital risk in such a deal. As experience there is greater loss exposure technology projects will secure a result, the program requirements are with larger loans; therefore, if the loan financing. not in alignment with the banking does not meet the requirement to issue 5. At a 90 percent level, the amount industry requirements for lending. In a 90 percent guarantee, the percent of of unguaranteed debt could be more addition, the maximum percentage guarantee will be based on loan size. In easily placed in the market and should should not decrease with the size of the addition, with regard to this comment, keep lenders with some ‘‘skin’’ in the loan. As it has been implemented in the the Agency continues to support deal. One commenter points out that the NOFAs, projects larger than a certain consistency between this program and Senate version of this program provided size, will only achieve a lower the Business and Industry guaranteed for a 100 percent guarantee. The percentage guarantee. Given the loan program. guarantee was reduced to 90 percent in conflicts noted above with standard conference committee due to pressure Guaranteed Loan Funding banking criteria, these larger projects (§ 4279.229(c)) from House negotiators who felt that not cannot be financed. Too much would be only project developers, but banks as at risk for the bank and hence they Comment: One commenter states that, well, should have ‘‘some skin in the cannot do the deal. At the same time, rather than define a maximum amount game.’’ equity investors cannot make up the of $250 million to a given borrower 6. The decision to limit the difference because doing so will under the program in any given fiscal guaranteed percentage to 60 to 80 increase the require IRR to a level that year, it should only be an initial percent with a maximum of 60 percent is not achievable. Hence, the guarantee threshold. In the event that there are for loans greater than $125 million percent should be 90 percent no matter budget funds remaining after all other leaves a significant amount of whether it is a $40 million loan or a eligible projects have been reviewed, unguaranteed debt that banks are not $250 million loan. and a borrower has already borrowed willing to accept. Response: The Agency has revised the $250 million, that borrower should be One commenter suggests as an rule to allow a guarantee of 90 percent allowed to borrow additional alternative, loan guarantee percentages for guaranteed loans of $125 million or guaranteed funds in that same fiscal could be adjusted higher depending less. The rule also outlines the criteria year. This flexibility will allow equal upon the specific circumstances of a the project must meet to obtain a 90 access to the program and yet allow the project. For example, a maximum percent guarantee, as well as the best borrowers who have more than one guarantee could be offered under guarantee fee for loans obtaining a 90 excellent project to participate at a conditions when a high ratio of equity percent guarantee. In the Agency higher level. This will also allow the investment is secured, where the use of experience there is greater loss exposure program to achieve its maximum proven technology removes technology with larger loans; therefore, if the loan potential in the shortest possible time. risk, and where there is a demonstrated does not meet the requirement to issue Under this same provision, the ability to accelerate return on a 90 percent guarantee, the percent of commenter recommends that more than investment. guarantee will be based on loan size. In one similar project be eligible for the Two commenters believe that with the addition, with regard to this comment, extended funds. The commenter states oil spill in the Gulf, prices at the pump the Agency continues to support that, for example, their core technology creeping up in preparation for the consistency between this program and is based on oxygen gasification of summer travel season, two wars in the the Business and Industry guaranteed biomass to produce syngas. There are Middle East, and a U.S. Department of loan program. three fuels that their analysis indicates Energy loan guarantee program that has Comment: Several commenters state are viable in the marketplace: to date proven unworkable for financing that the guarantee fees should be anhydrous ammonia, methanol and biorefineries, the U.S. can no longer consistent at 90 percent, as set by the dimethyl ether. Although they would delay efforts to commercialize 2008 Farm Bill. There is no provision each leverage the same core gasification promising technologies that can lessen for the lesser guarantees. To raise the 20 technology, they would each address our impact on the environment and percent or more equity that is required different fuel market opportunities and increase our energy security. and to find lending institutions to fund each should be allowed simultaneously One commenter recommends that the the remaining debt, it is imperative that under the program until they have been loan guarantee percentage be a the guarantee be raised to the 90 percent proven at commercial scale. maximum of 90 percent per the statute. level that was legislated by Congress. Response: During these early program The commenter states that they make Recent success with the additional B&I years, the Agency believes that it is

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prudent to diversify its risk, to allow House negotiators wanting project advanced biorefinery projects will be, it more entities to participate, to assist a developers and lenders to have some still affords a sizeable unguaranteed more diverse group of applicants, and to ‘‘skin in the game.’’ This is not exposure to lenders. This will ensure provide assistance to geographically objectionable, but the intent of Congress adequate risk sharing and, therefore, separate areas. To this end, the Agency was clear that the guarantee of a due diligence by private capital sources prefers to carry over funds, if available, significant amount of the loan is whether in the form of unguaranteed to the next fiscal year rather than to give necessary for lenders to finance new loans or equity participation. an already funded entity more money in technologies. One commenter states that the that fiscal year. Therefore, the Agency Two commenters state that percentage of the loan guarantee should has not revised the rule in response to insufficient or too low loan guarantee not be limited beyond what the statute this comment. amounts create a major hurdle for first- sets forth by amount or otherwise. of-kind technology projects by requiring Lowering the percentage for larger loans Guaranteed Loan Funding the placement of significant amounts of (§ 4279.229(d)) would unfairly penalize new technology unguaranteed debt in very challenging and feedstock that, by the nature of Comment: One commenter states that markets. The commenters believe that being new, require larger initial funding. the proposed rule limits the guaranteed funding unguaranteed portions might be In an already difficult lending percentage to 60 percent for loans possible in the taxable and tax exempt environment, the proposed limitations greater than $125 million, even though bond markets, but that it is not at all would have a deleterious effect on Congress authorized the Agency to clear that these volatile markets will in economic-growth oriented innovation. provide guarantees of up to 90 percent fact be receptive to unproven The rural credit crunch has made it for the entire loan amount. Given that technology project risk. There is, imperative for the Agency to guarantee commercial-scale cellulosic projects therefore, a very real risk that projects a very high percentage of project costs will exceed this $125 million threshold that succeed in obtaining a partial or offer significant grants in conjunction and because these are first-of-kind Agency loan guarantee nevertheless end with those guarantees. The construction projects, limiting the guaranteed up failing to fund the unguaranteed of large biofuels facilities should be percentage to 60 percent creates a higher portion in any market. Furthermore, the encouraged. level of risk for many lenders, and could tiered structure of the guarantee levels One commenter believes that the result in projects not being able to is based solely on the size of the loan purpose of the loan guarantee program secure the non-guaranteed portion from amount, without regard to overall should be to bring alternative energy the marketplace. This is compounded capital structure. This can create a technologies on line as quickly as by additional restrictions on lenders situation where the Agency guarantee is possible. Regrettably, current loan discussed elsewhere. The commenter, exposed to a disproportionate share of guarantee guidelines, while perhaps therefore, urges the Agency to project risk relative to private capital. appropriate for existing, commercially implement the program to the fullest For example, on a $200 million project, available technologies, do not provide extent authorized by law and allow a 90 with a capital structure of 75 percent percent guarantee on the full loan debt and 25 percent equity, the Agency sufficient risk reduction where they are amount regardless of size. guarantee covers 60 percent of the loan needed most—in the commercial One commenter states that section amount, or $90 million. This reflects demonstration of new advanced biofuel 9003 permits guarantees of up to 90 nearly double the investment of equity technologies. That is why the authors of percent of the principal and interest, but providers. However, if the guarantee the statute specified that the secretary noted that § 4279.229 provides for percentage were based on the capital may guarantee up to 90 percent of the guarantees of a lower amount. The level structure, with the guarantee percentage principal and interest due on the a loan of guarantees may be appropriate for growing to 80 percent on projects that guaranteed under this subsection (Sec. existing, commercially available have a minimum of 40 percent equity, 9003(e)(2)(B)). Therefore, the rule technologies; however, these levels fall the Agency’s exposure on the project is should be modified to allow for significantly short of providing the same, at $90 million, and yet less guarantees up to the maximum amount sufficient risk reduction for new, than the exposure of equity providers. allowed by statute: 90 percent of all emerging technologies, and will not The commenters recommend loans up to $250 million. If the Agency incentivize private institutions to lend. adhering to the statutory language to wishes to require a first lien position, Low guarantee amounts limit the provide maximum flexibility for project then a guarantee of up to the 90 percent number of lenders who will be willing finance and suggest adopting a tiered level is certainly warranted for loans to assume the risks of capital-intensive, guarantee coverage based on the overall intended to assist these emerging first-of-their-kind projects. As a result, capital structure, for example: technologies at the pilot or commercial entire fledgling industries may demonstration stage. One commenter questions whether disappear and technologies will be Minimum equity USDA guarantee deployed slowly and perhaps not at all. percentage level the guarantee amounts are too low based The commenter states that the rule (percent) on size of the project (e.g. 70 percent on should provide for the full 90 percent 50 90 loans over $80 million; 60 percent over guarantee for the principal and interest 40 80 $125 million). Because these may be up to $250 million and, at a minimum, 30 70 larger dollar projects, they may easily should provide for a 90 percent 20 60 top $125 million in project costs. A 60 guarantee of up to $125 million and 80 percent loan requirement seems too low percent guarantee of principal and This structure would allow the to attract private funding given the interest up to $250 million. The Agency to more fully employ its unproven aspects of commercializing commenter states that it is important to statutory ability to covering up to 90 the new technologies. The commenter note that the Senate version of the percent of a loan for strong projects with suggests that a portion of Agency funds program provided for a 100 percent a significant equity, where private should be reserved to provide a higher guarantee. The guarantee was reduced capital contributions are strong. For guarantee percentage on at least a to 90 percent in conference due to large projects, as most commercial scale couple of larger projects if projects

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cannot be funded with lower guarantee the application for the guaranteed loan § 4279.126(b), interest only payments amounts. under this subpart was approved prior are allowed for up to three years. One commenter states that the Agency to closing the interim loan for the Interest only payments for up to ten should consider applying the 20 percent construction of the facility. The second years substantially increases Agency non-guaranteed requirement across the situation is where refinancing is not risk in the event of default by not board, and not decrease the percentage more than 20 percent of the loan for reducing the principal balance and the guaranteed as the amount of the debt which the Agency is guaranteeing and commensurate decline in collateral increases, as currently proposed in the purpose of the refinance is to enable value. § 4279.229. By decreasing the amount the Agency to establish a first lien Interest Rates (§ 4279.231(a)(2)) guaranteed by the Agency as the position with respect to pre-existing principal amount of the loan increases collateral subject to a pre-existing lien Comment: Three commenters state (as currently proposed), borrowers will and the refinancing would be in the best that bank project financing is most be less likely to find an eligible lender financial interests of the Federal efficiently provided on a floating rate that is willing to retain the un- Government. basis during the construction period, guaranteed debt. At the maximum level given the difficulty of setting a fixed rate of $250,000,000 (resulting in a 60 Guaranteed Loan Funding on future loan disbursements over a percent guaranty), a lender would be (§ 4279.229(e)(6)) long construction period. Bond required to retain at least $50,000,000 of Comment: One commenter investors, however, typically require the loan (50 percent of the non- recommends including the section 9003 fixed rate issuance. The commenters guaranteed portion), assuming the guarantee fee as an eligible loan recommend allowing the interest rates lender is able to find participants for the purpose, contrary to what is stated in on the guaranteed and unguaranteed other 50 percent of the non-guaranteed § 4279.229(e)(6). The commenter portions to be fixed or floating without debt, and possibly the full $100,000,000 believes there is no reason to exclude requiring both portions to be on the if no participants are found. The this purpose, which is offered in the B&I same basis. An appropriate (and commenter states that the likelihood of program and other Agency guaranteed conventional) additional requirement to finding eligible lenders that are willing programs. minimize interest rate exposure for a to participate at these levels is Response: The Agency disagrees with given project would be to the extent the extremely unlikely. commenter. As noted in previous project company borrows on a floating Response: The Agency has revised the responses, the Agency is focusing the rate basis for all or a portion of the rule to allow a guarantee of 90 percent program’s limited funding resources on loans, it will enter into interest rate for guaranteed loans of $125 million or core project costs, such as construction management agreements that reduce less. The rule also outlines the criteria costs, in order to fund more projects. interest rate risk during the life of the the project must meet to obtain a 90 project. percent guarantee, as well as the Interest Rates (§ 4279.231) One commenter states that, under the guarantee fee for loans obtaining a 90 Comment: One commenter states that Commercial Loan Model, it is likely that percent guarantee. In the Agency the rules on interest rates in § 4279.231 any portion of a loan purchased or experience there is greater loss exposure are too elaborate and complex. The funded by a commercial bank will bear with larger loans; therefore, if the loan commenter asks why not simply stick interest at a variable rate such as the does not meet the requirement to issue with the proven, viable regulations Prime Rate or the LIBOR, while any a 90 percent guarantee, the percent of found in 7 CFR part 4279, subpart B? portion of the loan funded or purchased guarantee will be based on loan size. In According to the commenter, by an institutional investor will likely addition, with regard to this comment, consistency between guaranteed loan bear interest at a fixed rate. Accordingly, the Agency continues to support programs should be maintained for the commenter recommends amending consistency between this program and simplicity and consistency’s sake unless § 4279.231 to provide as follows: the Business and Industry guaranteed something about a program absolutely (2) The interest rate for both the loan program. requires deviation. The commenter guaranteed and unguaranteed portions of the loan must be the same type (i.e., Eligible Project Costs (§ 4279.229(e)) believes there is no reason to believe advanced biorefinery interest rate both fixed and variable). For this Comment: One commenter protocols are different than other purpose, a variable interest rate loan recommends expanding the eligible loan business loan pricing. may be converted to a fixed rate through purposes listed in § 4279.229(e) to allow Response: The Agency has revised the the use of an interest rate hedge or cap debt refinancing on existing advanced interest rate provisions to more closely so long as such hedge or cap is for biorefineries. Any assistance this match the requirements in §§ 4279.125 maturity of the obligation. program can bring to this emerging and 4287.112, while providing lenders Response: The Agency has revised the sector should be authorized, and debt with some flexibility in establishing interest rate provisions to more closely refinancing on existing projects that loan type and terms on the match the requirements in §§ 4279.125 may need workout assistance should not unguaranteed portion. and 4287.112, while providing lenders be excluded. with some flexibility in establishing Response: While the program is meant Interest Rates (§ 4279.231(a)(1)) loan type and terms on the for first-of-a-kind technology, the Comment: One commenter unguaranteed portion. The rule Agency agrees that there may be some recommends modifying the identifies a cap by requiring that the rate refinancing projects that may be suitable amortization requirements for on unguaranteed portion of the loan not for potential funding. Therefore, the commercial loans for first-of-kind exceed the rate on the guaranteed Agency will consider refinancing as an technology to allow a 5- to 10-year non- portion of the loan by more than 500 eligible project purpose under two amortizing period with annual basis points. situations (see § 4279.228(g)). The first amortization after the non-amortizing situation is where permanent financing period. Interest Rates (§ 4279.231(a)(3)) is used to refinance interim construction Response: The Agency disagrees with Comment: Several commenters financing of the proposed project only if the comment. In accordance with recommend allowing the guaranteed

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and unguaranteed portions of the loan interest rates are too far out of line. One commenter states that banks have to have different interest rates, Viable projects will have strong told them that the provisions limiting determined by the market and what is competition among lenders, which will the delta between the interest rate on currently available to the borrower and keep interest rates as low as possible to the guaranteed portion of the loan and the lender, not an arbitrary blended rate cover the lender’s costs and ensure the weighted average interest rate of the of 1 percent. There is tremendous risk adequate returns. full loan amount to 1 percent gives them associated with the unguaranteed Response: The Agency has revised the significant pause in moving forward. portion of the loan, and the borrower interest rate provisions to more closely Lenders would like to be able to set the must be allowed to work with the lender match the requirements in §§ 4279.125 interest rate for the non-guaranteed to provide an acceptable solution for all and 4287.112, while providing lenders portion at market rates. parties without artificial constraints by with some flexibility in establishing One commenter states that, because the section 9003 regulations, including loan type and terms on the the guaranteed portion is secured by the the ability to further enhance the unguaranteed portion. United States, it is unrealistic to expect unguaranteed portion by the use of Comment: One commenter states that market rates for the guaranteed and non- additional equity, letters of credit, market-based interest rate differentials guaranteed portions to be within 1 personal or corporate guarantees, on the guaranteed and unguaranteed percent of each other. warrants, or any and all other credit portions of debt will be significant, One commenter states market-based enhancements. especially for the first-of-a-kind projects interest rate differentials on the Another commenter also recommends this program seeks to promote (this guaranteed and unguaranteed portions allowing different rates for the differential reflecting the difference will be significant, reflecting the guaranteed versus unguaranteed between a AAA-rated, full faith and difference between a AAA-rated, full portions of the loan and allowing the credit guarantee of the United States on faith and credit guarantee of the United market to make the determination, given one hand and sub-investment grade- States on the one hand and sub- that the perceived risk for guaranteed rated technology project debt on the investment grade rated technology versus unguaranteed risk is a purely other). Any limitation on this spread project debt on the other. (Current market-based phenomenon, and changes will prevent the market from properly market differentials are estimated to be from time to time. In the Loan pricing the unguaranteed portion of the greater than 6.0 percent.) Guarantee Conditional Commitment debt and may make placement One commenter states that the agreement, a maximum percentage impossible. The commenter believes the blended rate method also gives a could be specified and tolerated, with Agency should eliminate the proposed 1 disadvantage for the larger loans; since that percentage being determined by the percent limitation on the interest rate maximum rate that still allows the the percentage of guarantee is less, the differential between the guaranteed debt project to be financially successful difference in the interest rates between and overall blended debt, since it fails based on the submitted pro formas. The guarantee and unguaranteed must be to reflect the wide difference in credit determination of this figure could be a less than for the smaller loans with a risk to the holders of the guaranteed and requirement of the application process higher percentage of guarantee. The unguaranteed portions. to be determined by the lender as part interest rate on the unguaranteed of the normal due diligence and One commenter notes that, over the portion will be influenced by many sensitivity analysis. 10-year period from May 2000 through factors; lenders will have to price it on Response: As noted in a previous May 2010, the spread between the AAA a case by case basis; and it could vary response, the Agency has removed the and B indices has been approximately substantially depending on the financial proposed blended interest rate 532 basis points and the spread between strength, type of technology, size of requirement from the rule. By changing the AAA and BB indices has been loan, type of lender, etc., so the the minimum retention requirement and approximately 335 basis points. The government should let the market by allowing for a 90 percent guarantee underlying credit rating of a biorefinery determine what that interest rate for guaranteed loans of $125 million or is reflective of the lack of investment difference should be on the less, the Agency has eliminated the grade off-takes or related purchase unguaranteed portion. need for the other credit enhancements contracts that might otherwise elevate Response: The Agency has revised the for the unguaranteed portion of the loan. the underlying credit level of the interest rate provisions to more closely Comment: One commenter notes that, biorefinery to investment grade (that is, match the requirements in §§ 4279.125 as proposed, interest rates charged must BBB or greater). Consequently, the and 4287.112, while providing lenders be in line with other similar guaranteed commenter suggests it would be a rare with some flexibility in establishing loans and blended rates on the entire occurrence that the blended rate on the loan type and terms on the guaranteed loan cannot exceed the rate entire guaranteed loan would not unguaranteed portion. The rule now on the guaranteed portion of the loan by exceed the rate on the guaranteed states that the rate on unguaranteed more than 1 percent. The commenter portion of the loan by more than 1 portion of the loan shall not exceed the questions these stipulations and percent. The commenter states that rate on the guaranteed portion of the believes the question of what rates to without over-collateralizing the loan by more than 500 basis points. charge should be left to the marketplace, unguaranteed portion of the loan, it is Terms of Loan (§ 4279.232(a)) particularly given the lower guarantee not likely that the spread differential on percentage envisioned of 60 percent for the guaranteed and unguaranteed Comment: One commenter larger loans, the high level of borrower portions of the loan will ever be within recommends that the maximum term be equity required of 20 percent and the 1 percent. Therefore, the commenter the useful life of the project, not 20 riskiness of commercializing unproven recommends deleting § 4279.231(a)(3). years or 85 percent of its life as set forth technologies. The Agency should Several other commenters recommend in § 4279.232(a). The 9003 program remove interest rate requirements eliminating the current proposed 1 should promote financing, and setting because the Agency will be able to percent rate differential between shorter terms does not do this. A lender review the interest rate levels and make guaranteed and non-guaranteed portions may elect to use a more conservative a determination down the road if certain of the debt. term, but the program should at least be

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willing and able to go to the limit of the different than that providing either are required for successful commercial project’s useful life. development or working capital funds, operations, rather than not allowing any Response: Due to the risk associated in that construction lenders restructuring of the loan and guarantee, with these new and emerging traditionally require a commitment for as long as a revised budget and financial technologies, the Agency disagrees with ‘‘take-out’’ or permanent financing upon plan meets the required criteria and using useful life solely. The Agency completion of the construction. The would have qualified for the loan and considers 20 years an appropriate commenter recommends amending the guarantee as adjusted if it were a new maximum term for loans under this requirements for construction projects application, such changes and program. However, the Agency has to require ‘‘take-out’’ financing restructuring should be allowed. revised the rule to allow either 20 years commitments for all construction Response: The Agency agrees with the or useful life of the project (removing projects. commenters that the proposed rule was the ‘‘85 percent’’ provision associated Response: The Agency agrees that a potentially too stringent. Therefore, the with useful life), whichever is less. requirement for take-out financing is Agency has revised the rule so that the needed, and has added a provision Agency may consider modifying the Credit Evaluation (Proposed § 4279.233) addressing permanent financing as current guaranteed loan or a subsequent Comment: Three commenters state described in the interim rule at guaranteed loan after all other financing that commodity projects, especially § 4279.228(g)(1) in the context of a options have been exhausted by the fuels facilities, are typically able to refinance of interim construction lender and borrower. obtain low cost, highly efficient working financing under certain conditions. Comment: One commenter states that capital loans from specialist lenders Therefore, the Agency has revised the Change or Cost Overruns should be secured by inventory and receivables. rule in response to this comment. handled by the lender pursuant to the Two of the commenters also note that, terms of traditional construction loan as proposed, a borrower is required to Onsite Inspectors (§ 4279.256(b)) documents and restricted per the receive a first priority pledge of Comment: One commenter guarantee and other agreements between collateral including, potentially, recommends that, instead of requiring the lender and the Agency. The working capital. These loan/debt lenders to provide an onsite project commenter states that all construction facilities are usually entered into just inspector, the borrower provide an agreements should be standard AIA prior to, or just after, commencement of onsite inspector, paid for if necessary Fixed Cost contracts, and that the lender operations. The proposed rule making from the loan proceeds with verification should be responsible for administration does not contemplate the use of that such a person is in place by the of draw requests. The Agency would, of traditional working capital loans lender. course, have the option to not guarantee separately secured by inventory or Response: The Agency disagrees with the loan if it does not believe that the receivables. The commenter the commenter’s recommendation. In construction documents provide recommends allowing collateral carve order to ensure proper oversight, the adequate protection, and the outs for inventory and receivables inspector needs to be a ‘‘disinterested’’ documentation supporting the loan pledged to working capital lenders. third party. Having the borrower guarantee should address situations Response: The Agency is agreeable to provide the onsite inspector does not such as this. allowing working capital loans, not ensure that an appropriate third party Response: The Agency does not agree guaranteed by the Agency, which are will be used to conduct onsite that this suggestion needs to be secured by the inventory and accounts inspections. Furthermore, the guarantee provided for in the rule, but rather will receivable. The Agency may consider a is affixed to the lender’s loan and consider such matters on a case-by-case subordinate lien position on inventory having the lender provide the onsite basis and, where appropriate, add to the and accounts receivable for working inspector is one way of managing Conditional Commitment. In other capital loans under certain conditions. project risk. Lastly, the Agency’s words, while this approach may be Comment: Two commenters relationship is with the lender and the useful in some cases, it does not need recommend making the maintenance of requirement for the lender to provide an to be universally applied to all adequate working capital levels a post- onsite inspector is one of the lender’s Biorefinery Assistance Guaranteed Loan completion requirement. In other words, servicing responsibilities. Therefore, the Program loans. Therefore, the Agency allow time during the construction lender needs to be responsible for has not revised the rule in response to period for complete analysis and providing the onsite inspector. this comment. funding of the project’s working capital Changes and Cost Overruns New Draw Certifications (§ 4279.256(d)) requirements, including negotiation of (§ 4279.256(c)) working capital loans from specialist Comment: One commenter questions lenders. Comment: One commenter states that why the lender is required to ‘‘certify’’ Response: The Agency disagrees with the requirement that no subsequent the borrower is complying with the making maintenance of adequate loans for cost overruns will be made, Davis-Bacon Act as this was not working capital levels a post-completion found in § 4279.256(c), is overly strict. required in Section 9003 NOFA and is requirement. To minimize risk, the The Agency should be open to such an added burden. This should be done Agency requires that all applicants are requests, while obviously retaining the by the Agency, not required of the adequately capitalized at the time of right to approve them or not. To simply lender. application. Subsequently, borrowers say this will not be done may create Response: The Agency disagrees with are free to seek additional working loan servicing problems if promising the commenter. While omitted from the capital sources post-application. projects do end up needing additional NOFA, this requirement has been financing. The commenter believes that placed in each Conditional Commitment Construction Planning and Performing prudence dictates the Agency never say under the NOFA and is required by the Development (§ 4279.256) never on this. authorizing legislation. Because our Comment: One commenter states that One commenter states that, in the relationship is with the lender and not the traditional commercial lending event that construction cost increases or the borrower and the lender has access process for construction projects is changes in the proposed project design to the requisite documentation, the

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Agency believes this requirement needs funds for each fiscal year. The with a consistent and known date as to to be completed by the lender. experience and ‘‘on-the-ground’’ support when to submit applications. Because of the Agency state offices should be unforeseen events may cause a different Surety (§ 4279.256(e)) used to administer the program to application date to be preferable, the Comment: One commenter states that provide a greater level of service. An rule allows the Agency to adjust the it may not be possible to achieve surety experienced regional staff should be application date through the publication from the construction contractor given appointed to assist the state offices in of a Federal Register notice. that no contractor will guarantee the administering this program and work Comment: One commenter performance of new technology unless intra-state to develop regional solutions recommends that, rather than requiring they own it (generally not the case). and approaches for advanced biofuels. a deadline for consideration within a However, it is standard practice that the Response: The Agency has an open given fiscal year, the Agency commit to contractor will guarantee that the work application cycle, but competes a short time response, such as two is performed according to specifications. applications twice per year. This weeks from the date of submittal. It It will generally be necessary to pay the competition is necessary in order to should not matter when the application contractor as work is completed and pick the best proposals. The Agency was submitted as long as it is submitted should be anticipated when the will assign adequate staff to review within the fiscal year to qualify for that guarantee is in place during applications and administer this year’s allocation of funds as long as construction. program. there are funds remaining in the budget. Response: The Agency believes that It would be acceptable to have a Application Submittal (§ 4279.260(a)) the commenter is misinterpreting response to an application delivered in surety. The intent of surety for Comment: One commenter the next fiscal year when such construction projects is to guarantee the recommends that applications be application was delivered near the end completion of the project as designed submitted electronically and that paper of the prior fiscal year. Also, rather than for the intended purpose. Surety cannot copies not be required at all. According having two competitions, applications guarantee performance or prevent to the commenter, it is an anachronistic should be considered and awarded as design failure. To avoid such burden and environmentally unsound to they are received. Because the Agency misinterpretation, the Agency has require paper copies. has discretionary authority to expand removed the definition of surety and Response: The Agency acknowledges the funding for the program beyond the will rely on the use of the term as it is the desirability of electronic statutory minimum, in such a case when commonly used by the industry. applications versus paper applications. the Agency were to receive many The proposed rule required paper qualified projects throughout the year, Guarantee Applications—General copies because, at this time, the Agency (4279.260) funding could be expanded to match the is not able to accept electronic copies. qualified projects. Hence, there is no Comment: One commenter agrees However, the Agency is working on need for a two phase competition. The with the position that financing having a system to accept electronic commenter further states that, unlike arrangements do not necessarily fit applications, although when such a with the NOFAs there should be no within prescribed application windows system will be in place is unknown. To specific windows. The program should and that the applications should be accommodate the future acceptability of be available at any time throughout the submitted upon individual completion. electronic applications, the Agency has fiscal year until no more funds are However, the commenter believes there revised the rule to remove reference to available, with applications accepted, are some references in the proposal to paper copies and insert reference to the evaluated and loan guarantees ‘‘application deadlines’’ which could be use of the annual Federal Register authorized on a rolling basis. The confusing or misleading. notice to identify the applicable method Agency needs to commit to respond, Response: The intent of the program of application submittal. and preferably complete its review is to accept applications year round. within two (2) weeks of receiving an Application Deadline (§ 4279.260(b)) The rule identifies two application application. deadlines. The applications received Comment: One commenter states that Response: The Agency does not have under each deadline will be competed the June 1 application deadline the authority to expand funding for the against each other to determine funding specified in § 4279.260(b) is too specific. program beyond the amount priority. While the rule is clear, to the The commenter believes it should be appropriated by Congress. Because the extent that confusion arises, the Agency left to the Federal Register process and amount of funding is limited, the will take other action to address the Agency administrative decisions and Agency may not be able to award funds confusion such as supplementing its processes to establish the NOFA date. to all eligible projects. Therefore, Web site. Response: The Agency disagrees with applications need to be competed in Comment: Several commenters the commenter. As discussed above, the order to award the available funds to the suggest that the section 9003 program Agency intends to accept applications highest scoring projects. If the Agency have an open year-round application year round, but plans to compete those were to award funds to projects on the process, similar in scope to the B&I applications on hand as of the two basis of when applications are received, guaranteed loan program. The specific dates stated in the rule (May 1 the best projects may not be funded. application process is arduous and time and November 1). Thus, May 1 would Thus, the Agency cannot make awards consuming, and cannot be completed in be considered an ‘‘application deadline’’ throughout the year as applications are 30 to 60 days. This will encourage only to the extent that applications received. If a lender wishes to know the applications year-round, and will also received after May 1 will be included in status of an application, the lender can ensure that applicants will not have to the evaluation cycle that begins on the contact the Agency at any time for wait a year or more to apply. It is following November 1 rather than being updates on application review. extremely important to not hinder the evaluated when received. The intent of With regard to the commenter’s growth of this industry at this time establishing a specific application suggestion that the Agency commit to through the use of short windows and deadline in the rule is to provide a responding to and completing its review year-long waits to release appropriated default date, which provides the public within 2 weeks of receiving an

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application, the Agency cannot make biomass feedstock cannot be used as a funds because matching funds are such a commitment because of the time higher value wood-based product, the already addressed in Section E of needed to conduct the technical review Agency disagrees, but instead has Table 1. (which is performed by parties outside revised the rule to clarify that the With regard to the recommendation to of the Agency) and such uncertainties as ‘‘higher value product’’ only applies to add a section on ‘‘borrower’s business the number of applications received at woody biomass feedstock from National strategy,’’ the Agency disagrees because any one time and the availability of Forest system lands or public lands. the borrower’s business strategy is Agency resources. With regard to the recommendation to sufficiently covered as part of the add a section on ‘‘feedstock risks,’’ the borrower’s business plan. Feasibility Study (§ 4279.261(f)) Agency agrees that these risks need to With regard to the recommendation to Comment: Several commenters state be addressed and has revised the redefine the risk section to include only that the feasibility study should be feasibility study accordingly. ‘‘baseline production outputs, borrower modified to include or re-arrange its 2. Market Feasibility (Section C of financing plan, tax issues, government elements as follows: Table 1). With regard to the regulations, and borrower as a Feasibility Study recommendation to redefine the risk company,’’ the Agency disagrees with section to specific market risks, the commenter. The Agency requires the Economic Feasibility—remove the including competitive threats and risk categories identified to assist with requirement to document that all woody advantages, the Agency agrees with the the evaluation of the feasibility of the biomass feedstock cannot be used as a comment and has revised the feasibility project and technology. higher value wood-based product. Add study accordingly. 5. Management Feasibility (Section F a section on ‘‘feedstock risks.’’ 3. Technical Feasibility (Section D of of Table 1). With regard to the Market Feasibility—redefine the risk Table 1). With regard to the recommendation to further define the section to specific market risks, recommendation to delete ‘‘any three levels of management, the Agency including competitive threats and constraints or limitations in the is satisfied that sufficient disclosure of advantages. financial projections’’ from this section management and ownership structures Technical Feasibility—Delete ‘‘any and move it to the Financial Feasibility is provided for in the feasibility study constraints or limitations in the section, the Agency agrees with the and the lender’s written credit analysis. financial projections’’ and move to the comment and has revised technical With regard to the recommendation to Financial Feasibility section. Add a feasibility accordingly. The Agency change the management risk category to category on ‘‘design-related risks.’’ Add notes that the remainder of this element include changes in management, a section on permits required and other (and any other facility or design-related strengths and weaknesses of the environmental or ecological constraints. factors that might affect the success of management team, changes in Financial Feasibility—add a section the enterprise) has been removed, but its ownership of the company, and on ‘‘sources and uses of funds’’ and intent is covered by the addition of conflicts of interest, the Agency will add ‘‘matching funds.’’ Add a section on design-related risks as discussed in the management’s strengths and weaknesses ‘‘borrower’s business strategy.’’ Redefine following paragraph. but disagrees with commenter’s other the risk section to include only With regard to the recommendation to suggestions. The Agency notes that ‘‘baseline production outputs, borrower add a category on ‘‘design-related risks,’’ ‘‘Conflicts of Interest’’ was already financing plan, tax issues, government the Agency agrees with the comment. included in the proposed rule and regulations, and borrower as a The Agency has revised technical remains in this interim final rule. company.’’ feasibility by adding ‘‘risks related to 6. Business Plan (proposed Management Feasibility—further design-related factors that may affect § 4279.261(g)). With regard to the define the three levels of management: project success’’ and moving the recommendation to eliminate the Ownership, management, and provide remaining segment of the fourth section Business Plan requirement as all an organizational chart showing all staff under Section (D) of Table 1 (‘‘Any elements are present in the Feasibility required to manage and operate the constraints or limitations in the Study, the Agency disagrees with the biorefinery with a spreadsheet showing financial projections’’) to the Financial commenter’s suggestion. The business annual wage rates for each employee Feasibility section. plan is prepared by the borrower, while category. Change the management risk With regard to the recommendation to the feasibility study is prepared by a category to include: Changes in add a section on permits required and third-party expert and is an evaluation management, strengths and weaknesses other environmental or ecological of the project and the company. The of the management team, changes in constraints, the Agency does not agree Agency notes that the rule allows a ownership of the company, conflicts of with commenter. The rule requires the business plan to omit any information interest. lender to submit Exhibit H of 7 CFR part that is included in the feasibility study. Business Plan—Eliminate the 1940, subpart G, to address 7. Economic Analysis (proposed Business Plan requirement as all environmental issues and permits. § 4279.261(i)). With regard to the elements are present in the Feasibility Section B of the feasibility study recommendation that this section be Study. requires the identification of project eliminated and all elements moved to Economic Analysis—This criterion impacts on the environment. the financial feasibility section of the should be eliminated, and all elements 4. Financial Feasibility (Section E of feasibility study, the Agency agrees with moved to the financial feasibility Table 1). With regard to the the commenter and has revised the rule section of the feasibility study. recommendation to add a section on to incorporate the economic analysis Response: The Agency agrees with ‘‘sources and uses of funds’’ and into the feasibility study. some of the commenters’ suggestions ‘‘matching funds,’’ the Agency agrees Comment: One commenter states that and disagrees with others as follows: with the suggestions to add reference to the Agency proposes to require that 1. Economic Feasibility (Section B of the ‘‘uses of project capital’’ and has applicants submit documentation in Table 1). With regard to the revised the rule accordingly. However, their feasibility study that all woody recommendation to remove the the Agency disagrees with the biomass feedstock proposed to be requirement to document that all woody suggestion to add a section on matching utilized could not be used as a higher

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value wood-based product. The Federal lands. The Agency has clarified illustrated their concerns by discussing commenter states that a similar the rule to reflect that the ‘‘higher-value specific scoring criteria. In such restriction in the BCAP proposal was product’’ documentation requirement instances, such discussions are included inconsistent with the Farm Bill only applies to wood sourced from in the specific scoring criteria. definition of ‘‘renewable biomass.’’ National Forest System lands or other Commenters also suggested numerous Under Section 9001 of the Farm Bill, an public lands, as specified in the additions to the scoring criteria. The advanced biofuel need only be derived authorizing statute. general comments and proposed from ‘‘renewable biomass other than additions are addressed first, followed corn kernel starch.’’ Thus, a fuel is an Technical Assessment (§ 4279.261(h)) by comments associated with the advanced biofuel so long as it is Comment: One commenter suggests specific scoring criteria. produced from materials meeting the that the Agency drop its technology Comment: Several commenters state definition of renewable biomass and it review from the application process. that the scoring criteria are unrealistic falls within one of the seven types of The commenter states that, given that in several areas and must be listed advanced biofuel categories. the Agency is open to all technologies, reconstructed to recognize the Looking to the definition of renewable an in-depth technical review will have economic, environmental, technical, biomass in the Farm Bill, the only already been completed by the investor managerial, and financial strength of the restriction relating to higher-value group and so the Agency will not need project as the first qualifying criteria. products can be found in Section to do so. The points in the current proposed rule 9001(12)(A)(ii), relating to Federal land. Response: The Agency disagrees with do not correlate to the risks and rewards There, Congress included the higher- commenter’s suggestion. The technology involved in the development and value product limitation with regard to review allows the Agency to determine successful implementation of a long- ‘‘materials, pre-commercial thinnings, or the commercial viability and technical term, sustainable project. The scoring invasive species from National Forest merit of the proposed project and criteria should be modified to properly System land and public lands * * *’’ provides verification that the project has define the risk and reward of a project, Section 9001(12)(B), governing the reached semi-work scale. Therefore, the including a review of the technology, definition of renewable biomass as it Agency has not revised the rule in the financial strength of the project relates to biomass derived from non- response to this comment. including equity contribution, the Federal land, contains no such value- strength of the management team, and added restriction. Indeed, this section Lender Certifications (§ 4279.261(k)) then include the required criteria with refers to ‘‘any organic matter that is Comment: One commenter states that a point value of no more than 30 percent available on a renewable or recurring the proposed rule requires lenders to of the total score. The funds must go to basis from non-Federal land.’’ However, ‘‘certify’’ that the project is able to the projects that have the best chance of the definition contains no such demonstrate technical merit but then sustainability and implementation in restriction as it relates to non-Federal states that the Agency will determine the long run. This will properly provide land, nor does it leave room for the project’s technical merit. Lenders a springboard for the industry for statutory interpretation. should not be required to determine the financing and long-term implementation The commenter does not believe that technical merit of these projects and success. the Agency has the statutory authority particularly since these projects may or Response: The statute identifies the to require that applicants document that will incorporate first-of-a-kind criteria the Secretary will consider their woody biomass could not have technology—technology never before when scoring a project and the Agency been used in a higher-value product. utilized. Such a requirement is incorporated the criteria into the rule. In The Farm Bill definition makes clear unnecessary given that the Agency will addition, in consideration of language that such a restriction could only apply actually make this determination. contained in the Managers Report, an to applicants seeking payment for Lenders should only be required to additional criterion was incorporated to advanced biofuels derived from woody verify that the borrower has provided a give preference to projects that are first- biomass sourced from Federal land. The technology assessment as part of the of-a-kind. As is true for all of the commenter urges the Agency not to application. comments to this rule regarding how finalize a provision so clearly contrary Response: The purpose of the many points the Agency assigned to the to express statutory language. certification required under this various scoring criteria, the points for Statutory authority aside, if the paragraph is neither to replace nor to each of these criteria were assigned in Agency chooses to finalize such a duplicate the Agency’s determination of a way that the Agency has determined best meets the goal of supporting the scheme, the commenter suggests that it technical merit. The purpose of this not categorically exclude biomass that advanced biofuel industry and certification is to ensure that the lender could be used in higher-value products. Congressional intent while minimizing performs its due diligence. To make this The commenter believes that there is the risk to public funds. clear, the Agency has recast the second some woody biomass that, while it Comment: One commenter states that sentence of this paragraph such that the could be used as a higher-value wood one obstacle that is difficult to overcome lender will now certify that, as a result based product, will not be for numerous is inherent ‘‘institutional biases’’ that of its due diligence, the lender reasons, including market access. The lead to specific emphases in point concludes that the project has technical rule should allow for loans for advanced scoring. For example, with respect to merit. biofuel facilities using renewable Financial Participation, the text states: biomass that could be used as inputs for Scoring Applications (§ 4279.265(d)) ‘‘Regarding the fifth criterion, level of higher-value products, but that have not financial participation, the proposed General been previously utilized on a facility- rule requires borrowers to provide at specific or regional basis. A number of commenters least 20 percent cash equity into the Response: The Agency agrees with characterized the scoring criteria as project. It is the Agency’s intent to score commenter’s interpretation of the unrealistic, presenting obstacles or applications higher that can statute with regard to higher-value being contrary to the program’s goals, demonstrate more than this 20 percent products from wood sources from etc. Some of these commenters minimum (30 percent or more).

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Borrowers who meet the minimum criteria matter and the support that such should not receive preference over other 20 percent cash equity are still eligible, projects need. feedstock when evaluating but will not receive points under this Response: The Agency recognizes the applications.’’ The commenter believes criterion. Further, of all the criteria used concern raised by the commenter. that biorefinery feedstock should be to score applications, the Agency However, the statute identifies this evaluated according to a comprehensive continues to believe that this criterion is criterion. Therefore, the Agency must life-cycle analysis that accounts for all the most important because it represents include this criterion. The Agency notes greenhouse gas emissions, including the best commitment of the borrower to that the scoring criteria give preference; those associated with indirect land use the project. Therefore, the Agency they do not determine eligibility. changes. Additionally, the commenter continues to assign the highest potential Comment: One commenter states that, believes that extra points should be points to this criterion.’’ to maximize the rural economic benefits given for projects that provide clean, The commenter disagrees that a of the Section 9003 Guaranteed Loan potable water for human use and/or higher equity percentage indicates a Program in furtherance of the Rural irrigation. higher and better commitment to the Development’s mission, a project’s rural Response: The scoring criterion in project. Given that the equity investors economic benefits be added as an § 4279.265(d)(6) addresses the positive in such projects do not invest with the evaluation criterion to proposed impact of the project on resource expectation to lose their investment, § 4279.265(d). Rural Development’s conservation, public health, and the since these are not venture investors, a mission to enhance the quality of life environment. This can include each of $100 million project that requires $20 and economic foundation of rural the elements identified by the million in cash equity for example, is a communities would be furthered by a commenter, including life-cycle major commitment. A $30 million more comprehensive evaluation of a analysis, water impacts, and irrigation. equity participation does not indicate project’s potential rural economic The Agency encourages applicants to any more commitment. However, it does benefits. A project’s rural economic submit data, analyses, etc. to support substantially increase the IRR impact is not only determined by the this criterion, including any life-cycle requirement from the cash investor and location of the biorefinery, but by the analyses. As noted in previous that can provide undue financial burden origin of the feedstock as well. responses, this scoring criterion now on the project and make it financially Awarding points to projects based on contains a deduction when the unfundable for no real benefit. A higher their level of economic impact to a rural feedstock can be used for human or percentage for a much smaller project community is consistent with the animal consumption. This provision could represent a more sincere Agency’s mission and allows maximum further advances the positive impact commitment, but that is not true in this opportunity for the commercialization under this scoring criterion. case. of domestic advanced biofuels in the Response: Cash equity is the metric U.S. Dedicated energy crops, such as Established Market Criterion used to show the commitment level. carnelian, are grown in rural areas. Comment: One commenter agrees that The 20 percent requirement is the Thus, the commenter encourages the it is appropriate to demonstrate that minimum level to be eligible and is Agency to consider a project’s location there is a market for the product from required by statute. The points awarded in a rural area or its feedstock’s rural the facility, but believes that the Agency are intended to reflect those who origins as plus factors in the evaluation should apply this requirement flexibly contribute more to the project, and not criteria. Many non-rural advanced in view of two facts. First, unlike to reflect whether one borrower is more biofuel refining projects can yield electricity which is typically contracted committed than another. substantial economic benefits for rural over a multi-year time horizon, liquid Comment: One commenter refers to America, in addition to increasing fuels are traded almost entirely through the proposed increase in the scoring for energy independence, decreasing short-term spot markets. Second, it was novel feedstock as another obstacle greenhouse gas emissions, and due in part to recognition of this basic presented by the scoring criteria. diversifying agricultural markets. Thus, structural feature of fuels markets that According to the commenter, the a more inclusive approach would Congress enacted, in 2005, and requirement in § 4279.265(d)(3) is in maximize the impact of the section 9003 expanded, in 2007, an RFS that codifies direct opposition to the needs of program. a purchase mandate in Federal law. The financing a pre-commercial technology. Response: The Agency agrees that RFS establishes targeted levels for Despite the Agency’s extensive potential rural economic development is purchases of cellulosic biofuel, as well experience with loan guarantee an important metric for evaluating as default pricing mechanisms for programs, it has yet to administer a applications. Consistent with one of the credits when available quantities of that program for such large projects or for commenter’s suggestions, the Agency fuel are insufficient to meet the needs of pre-commercial technologies. Although has added a rural location requirement an obligated party under the law. The some of the prior regulations and for the project to this criterion to existence of this mandate provides approaches can conveniently be accompany potential rural jobs to strong assurance that a market will exist adopted from B&I and REAP, the section measure this metric, as found in for cellulosic biofuels production, at a 9003 program is fundamentally different § 4279.265(d)(8). To include other price up to the cost that an obligated from these commercially proven aspects suggested by the commenter party under the RFS would incur to technology programs. There appears to would make the scoring overly purchase alternative supplies plus be a lack of awareness (possibly based complicated and burdensome with credits to fulfill its obligation. on a lack of experience) within the questionable benefit. Therefore, except To illustrate potential issues with the Agency to recognize the roadblocks that for adding the rural location rule as proposed, the biofuels industry some of the proposed rules and scoring requirement for the project, the Agency has experienced significant road blocks criteria create for good projects where has not otherwise revised the rule in when navigating the Department of pre-commercial technology is being response to this comment. Energy loan guarantee program deployed. The fact that we are engaging Comment: One commenter application process in this regard. in pre-commercial technologies is a encourages the Agency to revise the Therefore, the commenter is asking for game changer when it comes to what stipulation that ‘‘specific feedstock the following inclusion in The

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Innovative Technology Loan Guarantee conventional fuels, a market premium commenter proposes that newer types of Program (Title XVII of EPAct): would be justified. While non-fungible alcohol, such as butanol or propanol, ‘‘Loan guarantee applications for fuels such as ethanol that can only be meet the requirement of establishing a emerging technologies, such as blended up to certain levels with market with a signed off-take agreement. advanced biofuels, should not be conventional fuels have a demand The same is true of the biobased evaluated against more mature ceiling (absent dedicated infrastructure, byproducts from new processes. Due to technologies, such as wind or solar. The such as that needed for E–85), fungible changing farm economics as well as liquid fuels marketplace does not fuels such as BTL that are fully changes in farm policy, a feedstock operate within a framework that lends compatible with existing fuels and agreement of more than 3 years is very itself to long-term, fixed-price forward infrastructure will have access to difficult to obtain. The commenter contracting mechanisms; therefore, DOE existing fossil fuel markets. While the proposes the following criterion with a should not require these contracts as commenter recognizes that future fossil maximum of 5 points: evidence of ‘reasonable prospect of fuel prices alone may not sufficiently 1. If the application has a repayment’ for biofuels projects. The demonstrate the financial feasibility of a commitment for at least 40 percent of Committee recommends that this project, the commenter urges the the biofuel produced from the project; a program also be expanded to include Agency to recognize this market ‘‘floor’’ commitment for at least 40 percent of eligibility for renewable chemicals and in its scoring criteria for demonstrating the biobased byproduct produced from biobased products in addition to an established market for an advanced the project; and a commitment for at biofuels.’’ biofuel project. least 60 percent of the feedstock to be Another commenter encourages the Response: With regard to the used in the project, then the application Agency to consider the appropriateness commenter’s concern about spot market, will be awarded 5 points. of off-take agreements in the fuels the Agency points out that the rule does 2. All commitments must be for at market. The commenter states that their not specify a timeframe associated with least 3 years. experience has indicated that such the commitments. Therefore, this 3. Notwithstanding other requirements are much more concern should not be an issue. qualifications of this criterion, ethanol, challenging for renewable fuels than With regard to the comments made biodiesel, and distiller’s grains shall be with renewable electricity, which has concerning the Renewable Fuel exempt from any purchase commitment. been financed largely through long-term Standard program, the Agency Response: With regard to the power purchase agreements. The acknowledges that the Renewable Fuel recommendation for how points will be commenter urges the Agency to broaden Standard program may establish a awarded, the Agency is revising the rule the scope of what it considers a commodity market for renewable fuel to require a 50 percent commitment for demonstration of an established market standard biofuels as a whole. However, each and, as noted previously, requiring for a fuel. Off-take agreements are for the purposes of the Biorefinery the advanced biofuel to meet an clearly one way that such a market can Assistance Guaranteed Loan Program, applicable renewable fuel standard as be established. The commenter believes the Agency is looking at whether the identified by the EPA in order to receive that EPA’s large RFS2 mandates borrower has established a market for its points under this scoring criterion. The represent ‘‘legislated demand’’ that biofuel and byproducts; that is, the Agency is also increasing the points for should sufficiently demonstrate that a Agency is looking for the establishment this scoring criterion from 5 to 10. market exists. RFS2 relies upon a of an individual market for the The Agency disagrees with the fungible, liquid market for renewable borrower’s biofuel and byproducts. The recommendation for including a fuels that is fundamentally inconsistent commodity market created by the requirement that all commitments must with a requirement that obligated Renewable Fuel Standard program does be for at least three years, because it parties actually purchase the fuel and not ensure there will be revenue could discourage the introduction of take delivery. Rather, obligated parties generated for the specific project in the advanced biofuels produced from new demonstrate compliance through application. On the other hand, the feedstock. submission of ‘‘RIN’’ credits, which Agency seeks to further the renewable As noted in the previous response, the renewable fuel producers generate when fuel provisions of the Section 9003 borrower needs to demonstrate that the they produce qualifying fuels. Demand program by, as has been noted borrower has established a market for for these RIN credits functions in the previously, requiring the advanced the borrower’s advanced biofuel and same way as an off-take agreement, as biofuel to meet an applicable renewable byproducts produced. Furthermore, the both serve as a market outlet for the fuel standard as identified by the EPA selection criteria in the statute refer to fuel. Given forecasts on meeting RFS2 in order to receive points under this ‘‘the advanced biofuel and the targets through 2022, it does not appear scoring criterion. byproducts produced’’ without that advanced biofuel production will The Agency notes that it does not distinguishing between new and exceed mandates. Thus, every gallon of have the authority to modify the established biofuel. Therefore, the advanced biofuel produced up to the Department of Energy’s Innovative Agency disagrees with the commenter’s mandates will have a guaranteed market Technology Loan Guarantee Program as recommendation for providing an outlet. Even absent the RFS2 (as well as requested by one commenter. exemption from the purchase low carbon fuel standards in California Comment: One commenter believes commitments. and the northeastern states), the Agency that this is a misinterpretation in the Comment: One commenter states that should consider drop-in fungible fuels proposed rule of the intent of Congress requiring feedstock supply to have an established market in the 2008 Farm Bill. To ‘‘establish commitments in demonstrating (equivalent to a dedicated off-take markets’’ for the advanced biofuel and establishment of a market favors agreement) at no less than the value of byproducts would only apply for a new existing feedstock markets and, thus, the fossil-fuel which they replace. type of advanced biofuel. Ethanol and does not encourage new solutions/ Indeed, since synthetic hydrocarbons biodiesel are traded as commodities and feedstock usage/technologies. like BTL offer superior performance already have an ‘‘established market.’’ Response: All applicants must characteristics, including lower The same is true of distiller’s grain from establish a market for the advanced conventional pollutant emissions than current ethanol biorefineries. The biofuel and byproducts produced per

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the statute. While the Agency recognizes experience that borrowers can Response: As stated previously in that it may be easier for a borrower to reasonably obtain commitments in response to a similar comment, the obtain feedstock supply commitments advance. Further, the Agency notes that Agency recognizes the concern raised by in existing feedstock markets, the it has reduced the required percentage the commenter. However, the statute Agency has reduced the requirement of these commitments from 60 to 50 identifies this criterion. The Agency from 60 percent to 50 percent. Further, percent. notes that the scoring criteria give the Agency is not requiring a time preference; they do not determine Presence of Other Biorefineries Criterion commitment for these commitments. eligibility. Lastly, the scoring criteria at Comment: One commenter believes Comment: One commenter believes § 4279.265(d)(3) and (d)(11) are this criterion should be changed to 10 that the proposed rule weights this specifically designed to encourage new points maximum. The commenter also criterion too heavily. The intent of the feedstock usage and technologies. suggests that the language be changed, program is to increase the production of Comment: One commenter as follows, to clarify that it is based on advanced biofuels in rural America, recommends eliminating this scoring the exclusivity of a biorefinery using a which can be carried out by not limiting criterion for supply and off-take particular feedstock: the awarding of such a large number of agreements. The commenter states that 1. If the area that will supply the points to the first biorefinery to use a liquid fuels are a very fungible product feedstock to the proposed biorefinery particular feedstock. Many groups want and the industry practice is to not have does not have any other advanced to be the ‘‘second’’ biorefinery to learn long term off-take agreements. biofuel biorefineries using the same or from the mistakes of the ‘‘first.’’ The Response: As noted in the previous similar feedstock, award 10 points. proposed rule should not carry such a response, all applicants must establish a 2. If there are other advanced biofuel hefty penalty for not being first. The market for the advanced biofuel and biorefineries using the same or similar commenter proposes that this criterion byproducts produced per the statute. feedstock located within the area that be a maximum of 5 points. The Agency is satisfied that requiring will supply the feedstock to the Several commenters state that the demonstration of such agreements is proposed biorefinery, award 0 points. points awarded to this criterion should reasonable. Further, the Agency is not Response: The Agency is satisfied that be changed or given 3 to 5 points. requiring borrowers to demonstrate the weight provided for this criterion is Different technologies that utilize the long-term off-take agreements. reasonable. With regard to adding to the same biomass should not be excluded Comment: One commenter states that scoring criterion ‘‘using the same or because another applicant used it first. the proposed scoring system and the similar feedstock,’’ the Agency is Another commenter recommends manner in which points are awarded in clarifying the language to read ‘‘any revising the language to include some a number of categories seems to other similar advanced biofuel threshold level instead of simply a ‘‘first contradict the purposes of the program. biorefineries.’’ The similarity is intended mover’’ requirement. The intent is to As a result, there is a significant to refer to the facility and not to the establish multiple energy crops on a likelihood that the projects most likely feedstock. commercial scale and as written the first to succeed (and the best deal for the Feedstock Not Previously Used Criterion user of a new feedstock would qualify taxpaying public) will be outscored by regardless of the size of their biorefinery niche projects that will have limited Comment: One commenter states that and second user would not. The impact on rural development or of financiers seek to reduce risk as much commenter states that, in addition, you filling advanced biofuel voids. One as possible and, in general, wherever want to encourage the further expansion commenter disagrees with awarding possible, the scoring criteria to qualify on the feedstock, preferably with even zero points if 60 percent or less on for the program should be as flexible as new and better processes that make feedstock commitments or finished possible so as to allow proposed even more efficient use of the feedstock. product marketing agreements. The projects to reduce all non-technology Response: As noted in the response to commenter explains that a commercial risk as much as possible. For example, the previous comment, because this scale biorefinery is going to take two the scoring criterion that awards more criterion is identified in the statute, the years to construct and require points for ‘‘novel feedstock’’ is in direct Agency must include this criterion. significant volumes of feedstock. It is opposition to what is required to attract Comment: One commenter agrees that unrealistic to expect a company to be investors, both equity and debt. This no specific feedstock should be able to contract over two years in might be a reasonable hurdle for an preferred. The commenter states that advance for what could be millions of alternative program that seeks to help there should also be no additional dollars of feedstock. Forward pricing finance existing and commercially points awarded for novelty. The would be so speculative and price risk established technologies. For first-of-a- commenter states that, under the would make a supply contracts kind projects, requiring novelty in NOFAs and propose rule, more scoring unaffordable. Points will only go to feedstock supply will likely render most points are to be awarded for ‘‘novel small producers of niche products with proposed projects unfinancable because feedstock.’’ The commenter states that if feedstock sources that have no scalable lenders will not take that type of risk a prior project has been approved for the impact on the rural community. An even when the technology is proven. program with a type of feedstock, any alternative would be to score based on Despite the value of the loan guarantee, future applications would not achieve Ag Census statistics on the agricultural such a guarantee is insufficient in its maximum points because the proposed capacity to grow the feedstock within a own right to be able to mitigate feedstock would no longer be ‘‘novel.’’ specified radius of the project. sufficient risk for lender, especially The commenter believes this scoring Response: The Agency disagrees that given the requirement that the lender criterion is antithetical to the main goals this scoring criterion will provide a put itself at significant risk by holding of the program, which is to assist preference to smaller producers. First, 10 percent of the unguaranteed portion. commercially viable technologies to not all projects require a multi-year The loan guarantee will only help those pass through the ‘‘valley of death’’ in construction period. Second, even for projects that have reduced risk to the terms of financing and should be projects that require a multi-year greatest degree possible other than the removed as a scoring criterion, and to construction period, it is the Agency’s technology risk. the goals of the financiers and especially

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the lenders and therefore the program. other commenters express concern with one program when the financing The most important criterion for lenders this criterion, as follows: challenges are already very high. is the reliability of the availability of the One commenter is concerned that the One commenter believes this criterion feedstock and the reliability of the concept of providing points to projects unfairly limits the sale of biofuels and supplier(s). Lenders always look for a that purchase 60 percent or more of biofuel byproducts. The commenter track record and performance history. their feedstock from producer believes that both products should be Hence, any feedstock that can be associations or cooperatives and sell 60 able to be sold to individual farmers, procured to meet the needs of the percent or more of the products community residents, small local project financiers should be rewarded precludes benefits associated with businesses, power generation facilities, equally. The commenter states that it is purchasing feedstock from independent hospitals, educational institutions, unwise to increase the number of points producers, farmers, etc., who stand to municipalities, traditional oil refineries, for this criterion given that doing so benefit significantly from such etc. Selling the biofuel to a larger and makes projects less financeable and purchases. It is also not practical to more diversified number of users will more risky. require 60 percent of revenue generated help encourage faster acceptance and Response: As noted in the previous to be from selling products to producer adoption of biofuels by the public and response, the Agency must include this associations or cooperatives. Typical industry thereby increasing demand for criterion, because it is identified in the biorefinery products are sold to even more locally produced biofuels. statute. obligated parties to generate maximum This same commenter also states that Comment: One commenter states that revenue. In general, this criterion may the provision for 60 percent of the dollar the proposed manner in which points favor projects that do not bring as much value of the feedstock will be supplied are awarded in a number of categories benefit to local farmers and producers by producer associations and seems to contradict the purposes of the and may have higher risk through lower cooperatives unfairly and unnecessarily program. The commenter states that, as product revenue. limits it to mainly producer associations a result, there is a significant likelihood One commenter suggests that this and cooperatives. Small independent that the projects most likely to succeed scoring criterion for supply and off-take family farms and landowners should be (and the best deal for the taxpaying agreements through cooperatives be able to equally provide feedstock to a public) will be outscored by niche eliminated. Because of the capital biorefinery funded through this projects that will have limited impact intensity of the first commercial program. The number of small farms in on rural development or of filling projects, the entire entrepreneurial the United States, particularly in the advanced biofuel voids. The commenter community needs to be engaged. Also, East, is growing. Being able to sell states that awarding zero points for because these refineries utilize feedstock to the biorefinery would using a feedstock previously used in commodity inputs and are producing provide small farmers and landowners commercial production places the liquid fuel that fluctuates daily in price, an additional source of potential lowest risk projects at the biggest it is very difficult to get supply and off- income. It would also help keep land disadvantage. The commenter take agreements at fixed prices. actively farmed in some communities. recommends that the Agency remain One commenter states that, given the One commenter states that waste feedstock neutral and score projects challenges of achieving financing for material, as a feedstock, does not lend based on their outcomes (rural projects, it is unwise to limit scoring to itself to contracts with producer revitalization), not inputs (type of projects that are so heavily weighted to associations or cooperatives in the same feedstock). such transactions with producer way that biomass from crop or plant Response: Except to the extent the associations and cooperatives. It is more residues do. The commenter urges the scoring criteria required by the statute important to assist the Agency to adopt an alternative metric result in favoring one feedstock over commercialization of new technologies for feedstock that do not ordinarily have another, the Agency agrees with the and make the projects attractive to a nexus with producer associations and commenter in that the Agency wants to investors. In many cases, biomass cooperatives, so that the investment in encourage all advanced biofuels, except feedstock is not yet available by way of rural communities that the Agency in very limited specific instances (e.g., producer associations and cooperatives. seeks to encourage can come from the feedstock that can be used for human or Hence, such a procurement plan would broadest possible sources. animal consumption). Beyond such be considered unduly risky to Response: The statute requires the instances, the Agency does not want to financiers. At the same time, there is no Agency to consider whether the limit specific feedstock from guarantee that producer associations borrower is proposing to work with participation in the program. and cooperatives will provide the best producer associations or cooperatives outlet market for products to be sold. It and, therefore, the Agency must include Working With Cooperatives and is more important to make sure that this as one of the scoring criteria. In Producer Associations Criterion these projects have the best possible recognition of the concerns raised by the Comment: One commenter believes chance of succeeding financially so that commenters, the Agency has modified the calculations representing the 60 they can be financed. Having the most this criterion to award points if the percent level are incorrect and represent flexible sources of feedstock suppliers project can document working with a 50 percent commitment. and off-take partners is the smartest way cooperatives and producer associations Response: The Agency agrees that the to get projects off the ground. The under one of the three criteria rather example was incorrect, and the example proposed constraints might make sense than all three. In addition, the Agency has been corrected. for a different program designed to has revised this scoring criterion with a Comment: While one commenter support already commercialized two-tiered system that begins awarding agrees with the percentage requirements technologies where the quid pro quo for points at a 30 percent threshold. The of the dollar value of feedstock being Agency assistance would be to support Agency considers the revised scoring supplied by and byproducts being such supply and off-take entities. The methodology more workable, allowing produced and sold to local producers to commenter states that it is unwise to try greater participation by independent ensure strong local involvement, all to achieve too many Agency goals in producers, farmers, etc.

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Comment: While working with modify the scoring criteria to award sufficient to distinguish the priority of producer associations and cooperatives points if any one of the three criteria are the projects. As the program matures, is important, one commenter believes met. With regard to the suggestions that the Agency may revise this criterion that the requirements in the proposed this criterion should include electricity along the lines suggested by the rule are not workable, especially sold to a rural electric cooperative, the commenter in order to provide further regarding the purchase of the biofuel by Agency agrees. Sale of an advanced distinction between competing the producer association or cooperative. biofuel converted to electricity would applications. The commenter proposes modification qualify for points under Comment: One commenter states that as follows with a maximum of 10 points § 4279.265(d)(4)(i)(B) or (d)(4)(ii)(B). projects that have exceptional that can be awarded: The Agency does not agree with economics and that can withstand 1. Award 2 points for an application commenter to award points for higher percentages of debt should not be with at least two support letters from purchasing electricity from an electric penalized by an arbitrary bias in favor producer associations or cooperatives. cooperative. The Agency has of lower debt percentages. There should 2. Award 4 points for an application determined that to make the criteria be no points specifically associated with with at least 20 percent of the dollar meaningful, the Agency must limit the this issue. Either a project meets the value of the feedstock purchased from a points awarded under this criterion financing criteria or it does not. Not all producer association or cooperative. such that not all applicants score under projects can sustain low percent debt 3. Award 4 points for an application this criterion. levels. Each project should be evaluated with at least 20 percent of the dollar Financial Participation Criterion on its own merits, but percent of equity value of the biobased byproducts sold to versus debt should not be a competitive a producer association or cooperative. Comment: One commenter, while decision making criterion. It is a false 4. Notwithstanding other agreeing that this criterion should assumption that lower debt percent is qualifications of this criterion, if the remain the most important, generally preferable. Some products and applicant is a producer association or recommends increasing the maximum markets may require high debt percent cooperative, award 10 points. points to 25 points. The commenter levels in order to be competitive and Response: The Agency disagrees with supports the exclusion of other direct should not be penalized for it. Because the specific recommendation. However, Federal funding in calculating the the goal is to help projects prove as stated in the response to the previous borrower’s cash equity participation. commercial viability, projects that comment, the Agency has modified the However, the commenter does not propose a financing plan that matches criteria to award points if the project support the deduction of 10 points for the most likely replicable future can document working with cooperative the use of other Federal direct funding commercial financing scenario should and producer associations under one of in the project. The commenter proposes be favored. It will be these projects that the three criteria rather than all three. In the following: not only prove that the technology is addition, the Agency has revised this 1. If the borrower’s cash equity commercially viable, but that the means scoring criterion with a two-tiered injection plus other resources results in of finance is also commercially viable. system that begins awarding points at a a debt-to-tangible net worth ratio equal Response: The Agency disagrees with 30 percent threshold. The Agency to or less than 3.00 to 1, but greater than the commenter. The statute identifies considers the revised scoring 2.75 to 1, award 11 points. methodology more workable. 2. If the borrower’s cash equity financial participation of the borrower With regard to the request to award injection plus other resources results in as a scoring criterion. Therefore, the points based solely on the borrower a debt-to-tangible net worth ratio equal Agency has retained this scoring being a producer association or to or less than 2.75 to 1, but greater than criterion. The Agency notes that a loan cooperative, the Agency disagrees 2.50 to 1, award 18 points. guaranteed under the program may only because the change in the rule to allow 3. If the borrower’s cash equity finance 80 percent of the eligible project the borrower to meet one of the three injection plus other resources results in costs. In addition, the Agency’s default criteria allows such a borrower to be a debt-to-tangible net worth ratio equal and loss claim experience is that lower awarded points under this criterion by to or less than 2.50 to 1, award 25 debt percentage is generally preferable working with another producer points. because those projects tend to be more association or cooperative. Response: With regard to the successful. With regard to the suggestion to suggestion to increase points awarded Comment: One commenter states that increase the points awarded from 5 to under this criterion from 20 to 25, the this scoring criterion unfairly handicaps 10, the Agency considers the points Agency disagrees and has reduced the ‘‘advanced technology biorefineries’’ associated with this criterion points from 20 to 15, which the Agency because they have the highest capital appropriate relative to the other scoring considers appropriate relative to the funding requirements. While criteria and has not changed the points other scoring criteria and changes in understanding the need to get some awarded under this criterion. points made to other criteria. biorefineries in production, the Comment: Several commenters With regard to the suggestion to delete commenter believes the key is to recommend giving a total score of 5 the deduction of 10 points for the use advance future biorefinery technology points for projects that incorporate any of other Federal direct funding, the so that we have a large scale commercial contract or business relationship with Agency wants to encourage industry in the future. producer associations and cooperatives, participation from non-Federal sources Response: As stated in the response to whether it consists of feedstock and to diversify risk to Federal funds. the previous comment, the statute purchases or product and byproduct Therefore, the Agency disagrees with requires the Agency to consider the sales and should include any renewable the suggestion to delete this deduction. level of financial participation of the electricity sold to a rural electric With regard to adding an additional borrower as part of scoring applications, cooperative, or electricity purchased level (i.e., 2.5 to 2.75 to 1) for awarding and the Agency notes that a loan from a rural electric cooperative. points, the Agency disagrees this level guaranteed under the program may only Response: The Agency agrees with the of distinction is necessary at this time finance 80 percent of the eligible project commenters and has revised the rule to because the scoring gradations are costs.

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Comment: Two commenters No Significant Negative Economic 1. If a project’s average wage is above recommend, given the complexity and Impacts on Existing Facilities Criterion the median household wage in the variety of negotiation and business Comment: One commenter proposes county and contiguous rural counties, structures between the lender and no change to this criterion and would award 15 points. 2. If a project’s average wage is equal equity source, greater flexibility in the award a maximum 5 points. scoring requirement for projects that Response: The Agency disagrees, and, to or below the median household wage demonstrate more than 20 percent cash in the broader context of all the scoring in the county and contiguous rural equity in order to foster increased use of criteria, has revised the points awarded counties, award 0 points. Response: The Agency has the loan guarantee program. under this criterion from 5 to 10, which reconsidered the points associated with the Agency has determined is Response: To the extent that the this criterion and increased them from reasonable relative to the other criterion. commenter is requesting ‘‘more levels’’ 5 to 10, which is appropriate relative to Comment: One commenter for awarding points under this criterion, the other scoring criteria. Further, the recommends that, as for local the Agency disagrees that additional Agency has added the provision that the competition for feedstock, the local area levels of distinction are necessary at this project must be located in a rural area for procurement be considered to be not time. As the program matures, the in order to be awarded points under this more than 50 miles from the proposed Agency may revise this criterion to scoring criterion. As noted elsewhere in project site. Given that biomass is this preamble, this provision replaces provide further distinction between generally uneconomical to transport the proposed eligibility requirement for competing applications. more than 50 miles from source to site, a rural area location. Positive Effect on Resource using an area that is more than 50 miles With the respect to commenter’s Conservation, Public Health, and the will provide undue protection to some suggestion to use the median household Environment Criterion existing projects and limit the scope and wage in the county, the Agency agrees possibility of many good projects. The with the commenter that it is Comment: One commenter suggests commenter suggests that, alternatively, appropriate to look at the median increasing the points awarded for this total available supply of feedstock household wage for the county, and not criterion from 5 to 10 and modifying within the competitive area be to include the median household wage how points are awarded as follows: considered and whether there is for the state, because the county median 1. If the production of advanced sufficient availability for the household wage is more reflective of incumbents as well as the proposed biofuels from the approval of the local economic conditions. The Agency project. In general, by the time a project application would have a positive has revised the rule accordingly. has been proposed to the Agency, this impact in one of the three impact areas With respect to the commenter’s issue will have been reviewed to the suggestion to include contiguous rural (resource conservation, public health, satisfaction of the financers and will and environment), award 2 points. counties, the Agency disagrees with the never be an issue. As a result, this commenter because economic 2. If the production of advanced review item can probably be dropped in conditions in the contiguous counties biofuels from the approval of the its entirety, other than asking whether may differ significantly from the project application would have a positive such an analysis was performed. county. Thus, the Agency has not impact in two of the three impact areas, Response: The statute requires the revised the rule with respect to this award 6 points. Agency to consider whether the specific comment. proposed project will have any 3. If the production of advanced significant negative impacts on existing Local Ownership Criterion biofuels from the approval of the facilities. As such, the Agency must application would have a positive Comment: One commenter suggests include this criterion in the rule. In impact in all three of the impact areas, decreasing the points awarded for this order to determine if there will be any criterion from 15 to 10 and modifying award 10 points. significant negative impacts, the Agency how points are awarded as follows: Response: The Agency has modified needs sufficient evidence to make an 1. If more than 20 but less than or the rule to increase points and distribute evaluation—simply asking whether equal to 50 percent of the biorefinery’s the points as recommended, except that such an analysis was performed is owners are local owners, award 6 3 points will be awarded if there is a insufficient. Therefore, the Agency has points. positive impact on one of the three not revised the rule in response to this 2. If more than 50 percent of the impact areas. However, the Agency comment. biorefinery’s owners are local owners, disagrees with the proposed rewording However, the Agency has added a award 10 points. to use ‘‘production of advanced biofuels provision to this criterion that would 3. A biorefinery that has as its from the approval of the application’’ in result in no points being awarded if the majority owner a publicly traded entity place of ‘‘process adoption’’ because feedstock to be used is wood pellets. would be awarded no points. ‘‘process adoption’’ reflects the statutory While the Agency acknowledges the Response: Considering the points language of the ‘‘adoption of the process eligibility of wood pellets, the emphasis proposed for this criterion relative to the other criteria, the Agency agrees with proposed in the application.’’ of this program is new and emerging technologies. The Agency further notes the recommendation to reduce the In addition, the Agency has added a that wood pellets can be considered points for this criterion, but has reduced provision to deduct 5 points if the under other programs. them from 15 to 5, in part because of the feedstock for the proposed project can changes to the rural economic be used for human or animal Potential for Rural Economic development potential scoring criterion, consumption. The Agency is adding this Development Criterion which now incorporates a rural area provision because such feedstocks are Comment: One commenter suggests location requirement for the project to considered to have significant enough increasing the points awarded for this be awarded points and the increase in negative impacts that the Agency seeks criterion from 5 to 15 and modifying points under that criterion from 5 to 10. to discourage their use. how points are awarded as follows: However, the Agency does not

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specifically exclude majority ownership Project Replication Criterion points (15). However, the Agency is by publicly traded entities so long as the Comment: One commenter proposes concerned that many new technologies entity can demonstrate local ownership. no change in this criterion and would are also likely to use new feedstocks and The Agency has not made the award a maximum of 5 points. that the resulting 30 points was too high recommended change regarding Response: The Agency disagrees and relative to the other criteria the Agency publicly traded owners because it does has increased the points awarded under must consider for making awards under not want to discriminate against this criterion from 5 to 10. The Agency, this program. Therefore, the Agency applicants with publicly traded owners. in considering all of the scoring reduced the points under this criterion The Agency also notes that the criterion and the relative points to 5, which would still provide 20 calculations are based on ownership associated with each, has determined points for new technologies using new interest, not the number of owners. that the ability of a project to be feedstocks. replicated, especially first-of-a-kind Comment: One commenter believes Comment: Four commenters suggest technologies, is an important quality awarding points for unproven eliminating this scoring criterion. One that the Agency wishes to encourage. technologies is counter-intuitive to the commenter believes that local Thus, the Agency has increased the program mission. The commenter states ownership will be difficult to obtain for points associated with this criterion. that technology risk is viewed by these first-of-a-kind technologies that lenders and investors as one of the Technology Not Currently Operating in are perceived to be risky because of the biggest barriers to participating in a Advanced Biofuel Market Criterion general conservative nature of rural project. Loans and loan guarantees investors. This commenter believes that Comment: One commenter should reflect preference towards this criterion would be acceptable for recommends eliminating this criterion projects with a declining risk and points projects based on commercially proven because it is not explicitly stated in the should be awarded to projects that technology as a quid pro quo for Agency 2008 Farm Bill. As stated earlier, the overcome technology risk. financial assistance, but is incompatible commenter believes that the second Response: The purpose of the with early stage pre-commercial biorefinery is important as it learns from program, as provided in the statute, is technology projects. It is unwise to the first one. This criterion should not to assist in the development of new and increase the number of points for this be needed to encourage the production emerging technologies for the criterion as a result. of advanced biofuels. development of advanced biofuels. This Response: The purpose of the criterion gives priority to such One commenter states that, in many program, as provided in the statute, is cases, these projects require significant technologies. Therefore, the Agency is to assist in the development of new and retaining this criterion. capital to complete and eliminating emerging technologies for the good projects because they do not have Comment: One commenter believes development of advanced biofuels. This this scoring criterion provides many local ownership does not seem to criterion gives priority to such opportunities for unclear scoring. For support the objectives of creating a technologies. Therefore, the Agency is example, in the commenter’s case, there biorefinery industry. retaining this criterion. However, in may be other biomass gasification considering the points for this criterion One commenter states that these technologies being used, or under relative to the other criterion, the projects need to be able to take full construction, for the production of Agency has reduced the points from 15 advantage of the entire range of advanced biofuels. However, all investment opportunity. According to to 5. Comment: Several commenters state gasification systems are not alike and, in the commenter, this criterion places that points for a ‘‘first-of-a-kind the commenter’s case, the commenter is limitations on where supporting technology’’ should be changed to ‘‘first using oxygen vs. air plus a syngas yield investment comes from. As a result, the commercial application of the enhancement stage using a catalytic commenter believes that there is a applicant’s technology.’’ autothermal reformer vs. a cleanup significant likelihood that projects most Response: The Agency notes that the stage. This combination is considered a likely to succeed (and the best deal to commenters are referring to language different and unique technology within the taxpaying public) will be outscored (‘‘first-of-a-kind technology’’) that was the field. Hence, unless a proposed by niche projects that will have limited used in a notice of funding availability. project and its technology are impact on rural development or of The rule does not use that phrase, but substantially identical to other filling advanced biofuel voids. Such an instead refers to ‘‘a particular technologies in deployment, at the very outcome seems to contradict the technology, system, or process that is detailed level, the commenter suggests purposes of the program. not currently operating in the advanced that any proposed project should be eligible and achieve the maximum Response: The statute requires the biofuel market as of October 1 of the possible points. Agency to consider local ownership. As fiscal year for which funding is Response: The Agency recognizes the such, the Agency must include this available.’’ This is very similar to the concerns raised by the commenter. criterion in the rule. The Agency notes intent of the commenter’s suggested However, the Agency wants to continue that the scoring criteria give preference; ‘‘first commercial application of the to include this criterion in order to they do not determine eligibility. Thus, applicant’s technology,’’ and the Agency encourage the development of truly local ownership is not an eligibility has retained the phrasing used in the different and unique technologies. Thus, criterion. proposed rule for the interim rule. Comment: Two commenters state that the Agency encourages the borrower to With regard to reducing the number of the points available for ‘‘first of a kind submit detailed information to establish points awarded for this criterion, the technology’’ category should be at least that the technology is unique for the Agency has considered the points as high as ‘‘feedstock not previously Agency to consider when scoring the proposed for this criterion relative to the used’’ in order to continue to encourage project. As the program matures, the other criteria and, as discussed in the innovation. Agency may revisit this criterion to response to the previous comment, has Response: As proposed, both criteria determine if any changes should be reduced the points for this criterion. had the same maximum number of made.

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Feedstock That Can Be Used for Human Comment: One commenter high risk emerging technology and or Animal Consumption Criterion recommends that scoring should be niche application projects and that the Comment: One commenter weighted towards avoidance of Agency should measure projects based recommends eliminating this criterion environmental consequences, ability to upon the mission of revitalization of the because almost all feedstock ‘‘can’’ be offer the agricultural industry a rural economy and promote projects used for human or animal consumption compelling reason to produce (value- with the greatest chance of success. The under some circumstance. Further, this add to what is already being done), and commenter recommends a scoring criterion was not explicitly listed in the likelihood of leading to high capacity system based on the following: 2008 Farm Bill and will not further the volumes. The commenter states that 1. Ability to deploy unutilized crop intent of increasing advanced biofuel systems that integrate winter crops are options or create new energy crops that production in rural America. an excellent example of this. offer new opportunities for rural Response: While the Agency generally Response: With regard to the America. agrees with the commenter and has avoidance of environmental 2. Ability to be scaled and replicated removed this as a separate scoring consequences, the Agency is satisfied with limited technology risk. criterion from the rule, the Agency that this is sufficiently addressed in 3. Ability to provide environmental continues to believe that such feedstock § 4279.265(d)(6), especially with the benefits and avoid environmental and should not be encouraged. To that end, addition of the provision to deduct social consequences. the Agency, as noted elsewhere in this points if the feedstock can be used for 4. Ability to be accepted into the preamble, has incorporated a provision human or animal consumption. farming community and be easily With regard to the ability to offer the in the ‘‘impacts on resource integrated into current agricultural agricultural industry a compelling conservation, public health, and practices. reason to produce feedstock, the Agency environment’’ criterion a deduction of 5 5. Ability for the finished products to has determined that it is not appropriate points if the feedstock can be used for be fungible in the current marketplace, for this program to address this human or animal consumption. while also adding significant volumes to proposed criterion because USDA has Comment: One commenter believes the market. other programs that address this area. that the Agency should remain 6. Ability to attract high ratios of With regard to including a criterion equity or other investment. feedstock neutral and award points specific to the likelihood of leading to based on the feedstock’s ability to create 7. Ability to generate attractive high capacity volumes, the Agency is returns and to offer compelling reasons new food and fuel opportunities. satisfied that this is sufficiently According to the commenter, just for financing market participation. addressed in § 4279.265(d)(10). The Response: The Agency agrees that because feedstock could be used for ability of a project to be replicated will food does not mean they would be if potential rural economic development is increase the likelihood that future an important metric for evaluating they otherwise would not have been facilities will be able to have high grown. applications. In the rule, the Agency is capacity volume. using both the location of the project in Response: As explained in the Comment: One commenter states that a rural area and potential rural jobs to previous response, the Agency has rural development is the ultimate goal, measure this metric, as found in removed this as a separate scoring yet program rules, structure, and scoring § 4279.265(d)(8). To include the other criterion from the rule and incorporates system place considerable limits on the aspects suggested by the commenter it as a 5-point deduction under the opportunities. The commenter would make the scoring overly ‘‘impacts on resource conservation, recommends including the following complicated and burdensome. The public health, and environment’’ metrics: criterion. 1. Demand for new feedstock. To what scoring criteria identified in the rule are either statutory and or in the Managers Alternatives extent will the project drive the development of new agricultural-related Report on the authorizing legislation. Comment: One commenter energy crops? Statutory provisions cannot be recommends scoring feedstock based on 2. Revenue opportunity. What are the eliminated. Therefore, the Agency has their ability to be easily integrated into volume needs and expected value of not revised the rule in response to this current agricultural practices. those crops in the vicinity of the comment. Response: The Agency agrees that it project? Comment: One commenter agrees that would be desirable to use feedstock that 3. Job creation. How many additional there should be strong requirements and can be easily integrated into current rural jobs will result from the project? incentives for local ownership and local agricultural practices. However, the 4. Ease of adoption. How fungible are participation, but believes that rural job Agency has determined that it would be the new crops with respect to existing growth is not given adequate weight in difficult to measure such integration. agricultural practices (use of existing the proposed scoring. The commenter Furthermore, the Agency does not want equipment, storage and handling, recommends creating a scoring criterion to include in the rule specific feedstock planting and cultivating, nutrient and that would award 10 points if a certain criteria, except in very limited specific moisture requirements, etc.)? level of new job creation is projected. In instances (e.g., feedstock that can be 5. Sustainability. To what extent is addition, the commenter suggests that used for human or animal consumption) the plant and feedstock system a longer the Agency consider lowering the that could limit the Agency’s term proposition? This includes carbon annual or other fees if the projected job implementation of the program and is intensity, use of marginal lands/double creation level is exceeded by the project. concerned about establishing a lengthy crop systems/use of waste or residue, Response: As noted in a response to inflexible permanent list of specific and market outlook for products. a previous comment, the Agency scoring criteria not based directly on the The commenter also states that the reconsidered the points awarded for authorizing legislation. Therefore, for scoring system could be a program potential economic development and these reasons, the Agency has not obstacle and recommends a more basic increased them from 5 to 10, which the included the recommendation in the structure. The commenter states that Agency considers appropriate relative to rule. DOE seems content with promoting the the other scoring criteria.

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With respect to the comment on the development of new and emerging ‘‘level playing field,’’ and cellulosic fees, the Agency disagrees with the technologies for the development of ethanol has already received suggestion to lower annual or other fees advanced biofuels. Further, the Agency substantially greater government if projected job creation levels are is concerned about establishing a investment when compared to other exceeded. The fee structure is lengthy inflexible permanent list of advanced biofuels that could serve as independent of the number of jobs specific scoring criteria not based ‘‘drop-in’’ replacements for existing created and is based on the cost of directly on the authorizing legislation. petroleum fuels. implementing the program. Any change Instead, the Agency has included in the One commenter points out that in fees would have an impact on the rule a provision, for which it is seeking cellulosic biomass is the most subsidy rate for the program, which comment, to allow the Administrator to abundantly available renewable energy determines dollars available. Further, if award bonus points to applications that source in rural America and should be fees were tied to number of jobs created promote partnerships and other favored in the scoring system. exceeding projected jobs, applicants activities that assist in the development Response: The Agency has decided would have an incentive to project of new and emerging technologies for not to reinsert the cellulosic feedstock fewer jobs being created. the development of advanced biofuels criterion. The Agency wants to Comment: One commenter suggests that further the purpose of this Program, encourage all advanced biofuels, except awarding points to proposed biorefinery as stated in the authorizing legislation. in very limited specific instances (e.g., projects that intend to produce aviation The Agency will identify these feedstock that can be used for human or fuels. According to the commenter, partnerships and other activities in a animal consumption). Beyond such unlike automobiles, power plants, and Federal Register notice each fiscal year. instances, the Agency does not want to other energy users who can turn to Therefore, the Agency has determined limit specific feedstock from alternative energy sources for power, that it is unnecessary to add the participation in the program. aviation does not have alternatives to suggested scoring criterion to the rule. Selection of Applications for Funding petroleum-based fuels other than Comment: Two commenters (§ 4279.265(f)) biofuels. Thus, to lower its carbon recommend awarding points for footprint beyond efficiency measures, improved feedstock, where ‘‘improved’’ Comment: While a scoring model aviation must have access to a supply of is defined as having better per-acre such as the one proposed may be biofuels. Given these unique metrics, lower resource requirements, or helpful, one commenter questions technological circumstances, the otherwise great potential for being whether the model alone is an commenter believes that points should adopted on a sustainable and viable appropriate determiner of loan quality. be awarded for proposed biorefinery widespread basis on U.S. soil. The commenter suggests the Agency projects that intend to produce aviation Response: The Agency disagrees with consider additional flexibility in the fuels. The commenter believes that the comment, because it would be loan approval process based on the declining to do so is risky—should difficult to quantify across all current quality of the loan. aviation be unable to secure a and potential feedstocks. Further, if all Response: The Agency considers significant supply of biofuels, the of these metrics are improved, the factors other than the scoring criteria in industry and Federal government’s goal feedstock should prove more appealing determining loan quality, such as of carbon reduction will not be to the biorefineries that use the various technical, financial, and achievable. feedstock. environmental factors. Identification of Response: The Agency wants to Comment: One commenter weaknesses during the Agency’s review encourage all advanced biofuels rather encourages the Agency to retain the use of these additional factors may result in than giving preference to any one of cellulosic feedstock as a scoring a loan not being approved or they may biofuel. Therefore, no points have been criterion. The commenter notes that the be addressed in specific conditions in awarded for production for any one EISA requires that 21 billion gallons of the Conditional Commitment. area. It is expected that increased advanced biofuel (under the EISA Comment: One commenter, who production, in general, will increase the definition) be produced by 2022, and proposes a scoring system that allows supply for all areas. that 16 billion of those gallons must be for a maximum of 100 points, believes Comment: Two commenters suggest must be ‘‘cellulosic biofuel.’’ Thus, that a score of 55 should be necessary modifying the scoring system to award consistent with the President’s directive to move forward with an application. points to projects that benefit the that executive departments and agencies Response: The Agency notes that the national security needs of the U.S. For work together through the Biofuels maximum score is 100 points, and that example, a biorefinery producing jet Interagency Working Group to meet the a minimum score of 55 points is fuel used in military aircraft or aircraft Administration’s advanced biofuels required in order to be considered for used in homeland security-related goals, the commenter believes that it guarantee. missions achieves dual goals of would be appropriate for the Agency to Comment: One commenter developing the biorefinery industry in steer loan guarantee program funds to recommends that, given that 50 percent the United States and providing the facilities that will help to meet the large of the program budget must be reserved Departments of Defense and Homeland cellulosic biofuel mandate under EISA. for each half of the fiscal year, in the Security with a domestically-produced If the Agency is concerned that algae event that all budget for a given half has renewable critical resource. and other feedstock do not meet the been allocated, eligible applications that Response: The Agency recognizes the definition of cellulosic, the commenter are received in such a half be held over importance of biofuels to national suggests that the Agency utilize its to the other half and funded in the order security and has signed a MOU with the scoring discretion to include those received, and not in a new batch Navy. The MOU encourages the feedstock as well. competition. The commenter further development of advanced biofuels in On the other hand, one commenter recommends that any budget unused in order to secure the strategic energy agrees with the removal of cellulosic any given fiscal year should be re- future of the United States. However, feedstock as a scoring criterion. allocated in the following fiscal year the purpose of the program, as provided According to this commenter, all and applications already received in the statute, is to assist in the advanced biofuels should compete on a should be funded in the order they were

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received from the prior fiscal year. applications submitted during the Guaranty on any debt held by it that is According to the commenter, this will second application period of a fiscal so guaranteed. This will provide reduce the burden and risk of applying year to be carried over to the next fiscal assurance that the lender-of-record will for the program and will encourage the year. However, if an application is not meet its servicing responsibilities maximum number of qualified funded after its second competition, the throughout the collateral liquidation applications to be submitted as early as Agency will not consider the process. possible. application any further (the applicant Response: The Agency does not allow Response: As noted in the response to would have to submit a new separate collateral for the unguaranteed the following comment, the Agency application). The Agency has revised portion of the loan because the Agency intends to consider an application for the rule (see § 4279.265(e)(1) and (g)) to wants the lender to maintain a certain funding for two funding competitions, make this process clear. level of risk in connection with the which will result in some applications Comment: Several commenters project. This makes the lender more carrying over to the subsequent fiscal recommend that applicants not have to likely to service the loan properly and year. This is reflected in the rule in re-apply from one funding cycle to the take an active interest in the success of § 4279.265(e)(1). However, the Agency next, but, instead, that the program the project. The Agency has structured disagrees with the commenter’s operate in the same way as the B&I the program to ensure that project risk suggestion that applications that are guaranteed loan program in this regard. is being shared on a pro rata basis carried over should not be re-competed. Response: The Agency generally commensurate with the percentage of The Agency has determined that all agrees and will consider an application the loan that is guaranteed versus applications that are carried over will be for one additional funding cycle. If an unguaranteed. Therefore, the Agency re-competed in order to fund the highest application still has not been selected has not revised the rule as suggested by scoring/best qualified applications. To after a second funding cycle, the the commenter. the extent allowed, the Agency may application will not be considered Comment: One commenter states that carry over mandatory funding into the further by the Agency because the the timing of project equity funding next fiscal year. information in the application will no under the proposed rule is under- longer be current. Thus, the applicant addressed. The commenter recommends Ranked Application Not Funded would need to submit a new application pro rata funding of project equity with (§ 4279.265(g)) for the project. loan disbursements, provided the Comment: One commenter is underlying equity commitments are on concerned that there could be situations Conditions Precedent to Issuance of a firm basis from creditworthy entities where Agency budgetary authority for a Loan Note Guarantee (§ 4279.281(a)) (defined as investment grade or given fiscal year is insufficient to fully Comment: One commenter questions otherwise deemed creditworthy by the fund strong, highly ranked projects. why a lender needs to ‘‘certify’’ lender). If the equity commitments are Given the size of advanced biorefinery compliance with the Anti-Lobby Act not from creditworthy entities, then projects, it is possible that only one or because such information on these upfront equity funding from less than two projects could constitute the activities may not be available to the creditworthy sponsors shall be required entirety of the Agency’s budgetary lender. The commenter recommends as a condition of closing. authority in any given year. Such disclosing these activities in the Response: At closing, the lender must projects could be stronger than any application. demonstrate the equity is available. At future projects that are submitted in Response: The Agency disagrees. The project completion, the lender must applications in subsequent fiscal years lender is the applicant to the Agency, certify funds were disbursed in and should not be competitively and the Agency is requiring this from accordance with the Conditional disadvantaged versus subsequent the lender to ensure that the lender is Commitment. Between closing and submissions. sufficiently informed regarding the use completion, there are no rule The commenter, therefore, of project fund, which would be requirements regarding the order in recommends allowing ranked determined by the lender as part of its which equity funds and loan funds are applications that are not fully funded due diligence. disbursed. However, the Agency agrees due to budgetary authority limitations to Introduction (§ 4287.301(b)) with the commenter’s characterization roll over into subsequent fiscal year that the timing of project equity funding budget cycles, without requiring a Comment: One commenter is under-addressed in rule. Therefore, reapplication. Such applications could recommends modifying § 4287.301(b) to the Agency has clarified the rule (see be re-ranked against new applications to allow non-project related collateral to be § 4279.234(c)(1)) that the equity ensure they are still highly ranked, and pledged to secure the non-guaranteed requirement must be demonstrated at that the process remains competitive. portion of the debt. Such segregated the time the loan is closed. They should not, however, be collateral or security could be in the competitively disadvantaged and forced form of a letter of credit, a parent Exception Authority (§ 4287.303) to re-apply to subsequent application company collateralized guaranty, or Comment: One commenter periods. investment securities (or a recommends providing the Response: The Agency acknowledges combination). Restrictions could be Administrator with the widest possible that funding in certain years may not be placed on the ability to access such authority for every criterion except for sufficient to make awards to strong security so that it not be available unless those specifically limited in the statute. projects and that the proposed rule was and until payment is made on the USDA Response: The Agency disagrees that unnecessarily restrictive in limiting Guaranty to the holders of the the exception authority needs to be ‘‘the considerations of an application to the guaranteed debt. In addition, the lender- widest possible authority for every fiscal year in which it was submitted. of-record would not be allowed to criterion.’’ The exception authority Therefore, the Agency has revised the access the security until it has provided is adequate, and the Agency rule to allow an application to be completed the foreclosure process on only exercises this authority when it is competed in two consecutive the project and has met the not inconsistent with applicable law competitions, which would allow requirements to collect on the USDA and when not making an exception

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adversely affects the Federal Response: The statute authorizing this disbursement). Construction periods for Government’s interest. program does not provide the Agency capital intensive projects of the type with the authority to provide direct envisioned under the program are Other—Working Capital Loans funding. generally very long. Most project Comment: One commenter financings with long construction Other—Algae Related Projects recommends that a portion of the funds periods rely on bank lenders to disburse dedicated to loan guarantees be Comment: One commenter requests funds over a construction loan period converted to working capital and exemptions for algae-related projects and thereby avoid negative carry costs. equipment loans for startup businesses. involving off-take contracts covering a However, when bonds are one of the The commenter states that, although significant percentage of the biocrude funding sources, bond market several projects are prime for the with the two biggest users, the U.S. convention requires simultaneous commercialization of algae as an airlines and the U.S. military, because of closing and funding of bond proceeds. alternate fuel, traditional funding the urgent need to develop alternative In cases when bonds and bank loans are sources are non-existent in the current fuel sources and the lack of traditional used together for a project financing, economy. If lenders are not making lending sources. The governments of bonds are generally placed first with loans, there are no loans to guarantee. many other countries are beginning to proceeds held in a disbursement The basics of the lending could mirror invest in commercialization, following account pending construction draws. the guarantee program with certain the commenter’s belief that additional Once the bond proceeds have been exceptions: research will be needed after actual used, the bank lender then funds its Commercial lending in the U.S. is commercial-scale production has begun, share of the loans over the remainder of virtually non-existent due to the current and the funds need to be made available the construction period. economic conditions. The inability to for construction of commercial The commenters recommend allowing obtain working capital and construction production facilities. The commenter the guaranteed and unguaranteed funds has significantly slowed the states that sites could be built out for portions, whether capital markets progress of development of alternate production at an approximate cost of $1 offerings or bank loans, to be funded fuels. Funds have become available in million to $2 million per acre and that, disproportionally in order to reduce terms of grants for research and although the Agency is not a regulated construction period interest costs for the development (as opposed to the or supervised lender, it could oversee projects. To address the potential commercial applications), and the financing of loans structured with (a) mismatch in exposure based on current financing opportunities are first lien positions, (b) fixed-cost differing funding schedules, the based on grants with milestone contracts and take-out commitments, (c) payments but no repayment obligation required off-take contracts from either Intercreditor Agreement will require and has primarily supported the the U.S. military or U.S. airlines, (d) that upon a default the under-funded academic community and government interest and repayment terms, and (e) all lender (likely to be the guaranteed bank laboratories. The commenter states that: of the other components of traditional lender) fund its pro rata share of the (a) The technologies that have been short-term commercial loans. loans (or purchase pro rata created have no value until there is a Response: To the extent the participations from the over-funded viable market for them, and (b) commenter is asking for direct loan lender). As is typical for project laboratories and universities have not, financing, the statute authorizing this financings, a requirement that to date, shown the ability to program does not provide the Agency satisfactory debt and equity commercialize the algae industry. Their with the authority to provide direct commitments for the full funding of the purpose is restricted to research. The funding. To the extent the commenter is project budget are entered into at commenter believes that a portion of the seeking preferential treatment for algae- closing should also be added to the list funds allocated for loan guarantees related projects, the Agency has adopted of program requirements. should be converted to direct loans to a policy of wanting to have a program Response: The Agency is not adopting individuals and companies who plan to that is, in part, technologically neutral. this comment. The lender is required to build products in the U.S. and employ Such preferential treatment for algae- proportionally disburse the guaranteed U.S. workers. The guidelines for related projects would provide and unguaranteed funding to reduce required documentation have already preferences for technologies Agency risk and maintains the lender’s been stated; the only difference is that inconsistent with this policy. The financial stake in the project. the Agency would be taking on the role Agency believes that technology IV. Request for Comments of the lender, subject to servicing neutrality, along with feedstock and arrangements which would probably be geographic neutrality, is critical to The Agency is interested in receiving handled by a third party service meeting the purposes of the program, comments on all aspects of the interim provider on behalf of the Agency. The which is to encourage broad-based rule. The area in which the Agency is risk would be greater than with a loan advanced biofuel production practices, seeking specific comments is identified guarantee, but the rewards would technologies, and feedstock. below. All comments should be include the ability to negotiate loans submitted as indicated in the ADDRESSES with shorter terms, requiring the Other—Disbursement of Guaranteed and section of this preamble. borrowers to generate revenue and loan Unguaranteed Portions 1. Local owner definition. The Agency repayment history so that, when the Comment: Three commenters believe is seeking comments on the best economy strengthens, they are that requiring the simultaneous mechanism for defining a local owner. ‘bankable’ or investment-grade disbursement of the guaranteed and Should it reflect a uniform distance? If companies. The commenter believes unguaranteed portions will unduly not, should we define differently for that this program will further support burden projects using bonds with excess different regions? Should we reflect the concept that private companies and ‘‘negative carry’’ costs (the difference different distances based on the type of investors will be attracted to invest in between the interest rate on the loans technology? Are there any other factors these companies once they have proven and money market reinvestment rates the Agency should consider? Should themselves to be credit-worthy. earned while funds are held pending this be established by notice or by

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regulation? Please be sure to include 4279.279 Domestic lamb industry agricultural producers and whose your rationale for your suggestions. adjustments assistance program. mission includes working on behalf of 2. Administrator bonus points. The 4279.280 Changes in borrowers. such producers and the majority of Agency is seeking comment on whether 4279.281 Conditions precedent to issuance of loan note guarantee. whose membership and board of this is an appropriate use of 4279.282–4279.289 [Reserved] directors is comprised of agricultural Administrator bonus points. The 4279.290 Requirements after project producers. Agency is also seeking comment on construction. Biobased product. A product whether there is a mechanism more 4279.291–4279.300 [Reserved] determined by the Secretary to be a suitable than Administrator bonus commercial or industrial product (other points to adopt this program to the Subpart C—Biorefinery Assistance than food or feed) that is either: dynamic nature of the biorefinery Loans (i) Composed, in whole or in industry. Please be sure to include your § 4279.201 Purpose and scope. significant part, of biological products, rationale for your suggestions. The purpose and scope of this subpart including renewable domestic List of Subjects in 7 CFR Parts 4279 and is to provide financial assistance for the agricultural materials and forestry 4287 development and construction of materials; or (ii) An intermediate ingredient or Biorefinery assistance, Loan commercial-scale biorefineries or for the retrofitting of existing facilities using feedstock. programs—Business and industry, Rural Biofuel. A fuel derived from development assistance, Rural areas. eligible technology for the development of advanced biofuels. renewable biomass. For the reasons set forth in the Biorefinery. A facility (including preamble, title 7, chapter XLII of the § 4279.202 Compliance with §§ 4279.1 equipment and processes) that converts Code of Federal Regulations, is through 4279.84. renewable biomass into biofuels and amended as follows: Except as specified in paragraphs (a) biobased products and may produce CHAPTER XLII—RURAL BUSINESS– through (l) of this section, all loans electricity. COOPERATIVE SERVICE AND RURAL guaranteed under this subpart shall Borrower. Any party that borrows or UTILITIES SERVICE, DEPARTMENT OF comply with the provisions found in seeks to borrow money from the lender, AGRICULTURE §§ 4279.1 through 4279.84 of this title. including any party or parties liable for (a) Definitions. The terms used in this the guaranteed loan except guarantors. PART 4279—GUARANTEED subpart are defined in either § 4279.2 or Business plan. A comprehensive LOANMAKING in this paragraph. If a term is defined in document that includes a clear both § 4279.2 and this paragraph, it will ■ 1. The authority citation for part 4279 description of the borrower’s ownership have, for purposes of this subpart only, is amended to read as follows: structure and management experience, the meaning given in this section. including, if applicable, discussion of a Authority: 5 U.S.C. 301; and 7 U.S.C. 1989. Advanced biofuel. Fuel derived from parent, affiliates, and subsidiaries, and a ■ 2. Part 4279 is amended by adding a renewable biomass, other than corn discussion of how the borrower will new subpart C to read as follows: kernel starch, to include: operate the proposed project, including, (i) Biofuel derived from cellulose, Subpart C—Biorefinery Assistance Loans at a minimum, a description of the hemicellulose, or lignin; business and project; the products and Sec. (ii) Biofuel derived from sugar and services to be provided; the availability 4279.201 Purpose and scope. starch (other than ethanol derived from 4279.202 Compliance with §§ 4279.1 of the resources necessary to provide corn kernel starch); those products and services; and pro through 4279.84. (iii) Biofuel derived from waste 4279.203–4279.223 [Reserved] forma financial statements for a period material, including crop residue, other 4279.224 Loan processing. of 2 years, including balance sheet, vegetative waste material, animal waste, 4279.225 Ineligible loan purposes. income and expense, and cash flows. food waste, and yard waste; 4279.226 Fees. Byproduct. Any and all biobased (iv) Diesel-equivalent fuel derived 4279.227 Borrower eligibility. products generated under normal 4279.228 Project eligibility. from renewable biomass, including operations of the proposed project that 4279.229 Guaranteed loan funding. vegetable oil and animal fat; 4279.230 [Reserved] (v) Biogas (including landfill gas and can be reasonably measured and 4279.231 Interest rates. sewage waste treatment gas) produced monitored. Byproducts may or may not 4279.232 Terms of loan. through the conversion of organic have a readily identifiable commercial 4279.233 [Reserved] matter from renewable biomass; use or value. 4279.234 Credit evaluation. (vi) Butanol or other alcohols Default. The condition that exists 4279.235–4279.236 [Reserved] when a borrower is not in compliance 4279.237 Financial statements. produced through the conversion of organic matter from renewable biomass; with the promissory note, the loan 4279.238–4279.243 [Reserved] agreement, or other related documents 4279.244 Appraisals. and 4279.245–4279.249 [Reserved] (vii) Other fuel derived from evidencing the loan. 4279.250 Feasibility studies. cellulosic biomass. Eligible project costs. Those expenses 4279.251–4279.254 [Reserved] Agricultural producer. An individual approved by the Agency for the project. 4279.255 Loan priorities. or entity directly engaged in the Eligible technology. Eligible 4279.256 Construction planning and production of agricultural products, technology is defined as either: performing development. including crops (including farming); (i) A technology that is being adopted 4279.257–4279.258 [Reserved] livestock (including ranching); forestry in a viable commercial-scale operation 4279.259 Borrower responsibilities. of a biorefinery that produces an 4279.260 Guarantee applications—general. products; hydroponics; nursery stock; or 4279.261 Application for loan guarantee aquaculture, whereby 50 percent or advanced biofuel; or content. greater of their gross income is derived (ii) A technology not described in 4279.262–4279.264 [Reserved] from the operations. paragraph (i) of this definition that has 4279.265 Guarantee application evaluation. Association of agricultural producers. been demonstrated to have technical 4279.266–4279.278 [Reserved] An organization that represents and economic potential for commercial

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application in a biorefinery that product receiving funding under this (1) An area that is attached to the produces an advanced biofuel. subpart. urbanized area of a city or town with Existing business. A business that has Protective advances. Advances made more than 50,000 inhabitants by a been in operation for at least one full by the lender for the purpose of contiguous area of urbanized census year. Businesses that have undergone preserving and protecting the collateral blocks that is not more than 2 census mergers, changes in the business name, where the debtor has failed to, and will blocks wide. Applicants from such an changes in the legal type of entity, or not or cannot, meet its obligations to area should work with their Rural expansions of product lines are protect or preserve collateral. Development State Office to request a considered to be existing businesses as Renewable biomass. determination of whether their project is long as there is not a significant change (i) Materials, pre-commercial located in a rural area under this in operations. thinnings, or invasive species from provision. Farm cooperative. A business owned National Forest System land or public (2) For the purposes of this definition, and controlled by agricultural producers lands (as defined in section 103 of the cities and towns are incorporated that is incorporated, or otherwise Federal Land Policy and Management population centers with definite recognized by the state in which it Act of 1976 (43 U.S.C. 1702)) that: boundaries, local self government, and operates, as a cooperatively operated (A) Are byproducts of preventive legal powers set forth in a charter business. treatments that are removed to reduce granted by the State. Farmer Cooperative Organization. An hazardous fuels; to reduce or contain (3) For the Commonwealth of Puerto organization whose membership is disease or insect infestation; or to Rico, the island is considered rural and composed of farm cooperatives. restore ecosystem health; eligible for Business Programs Feasibility study. An analysis by an (B) Would not otherwise be used for assistance, except for the San Juan independent qualified consultant of the higher-value products; and Census Designated Place (CDP) and any economic, market, technical, financial, (C) Are harvested in accordance with other CDP with greater than 50,000 and management feasibility of a applicable law and land management inhabitants. CDPs with greater than proposed project or business in terms of plans and the requirements for old- 50,000 inhabitants, other than the San its expectation for success. growth maintenance, restoration, and Juan CDP, may be determined to be Indian tribe. This term has the management direction of paragraphs (2), eligible if they are ‘‘not urban in meaning as defined in 25 U.S.C. 450b. (3), and (4) of subsection (e) of section character.’’ Institution of higher education. This 102 of the Healthy Forests Restoration (4) For the State of Hawaii, all areas term has the meaning as defined in 20 Act of 2003 (16 U.S.C. 6512) and large- within the State are considered rural U.S.C. 1002(a). tree retention of subsection (f) of that and eligible for Business Programs Loan classification. The assigned section; or assistance, except for the Honolulu CDP score or metric reflecting the lender’s (ii) Any organic matter that is within the County of Honolulu. analysis of the degree of potential loss available on a renewable or recurring (5) For the purpose of defining a rural in the event of default. basis from non-Federal land or land area in the Republic of Palau, the Local owner. An individual who owns belonging to an Indian or Indian tribe Federated States of Micronesia, and the any portion of an eligible advanced that is held in trust by the United States Republic of the Marshall Islands, the biofuel biorefinery and whose primary or subject to a restriction against Agency shall determine what residence is located within in a certain alienation imposed by the United States, constitutes rural and rural area based on distance from the biorefinery as including: available population data. specified by the Agency in a Notice (A) Renewable plant material, (6) The determination that an area is published in the Federal Register. including feed grains; other agricultural ‘‘rural in character’’ will be made by the Market value. The amount for which commodities; other plants and trees; Under Secretary of Rural Development. a property will sell for its highest and and algae; and The process to request a determination best use at a voluntary sale in an arm’s (B) Waste material, including crop under this provision is outlined in length transaction. residue; other vegetative waste material paragraph (6)(ii) of this definition. Material adverse change. Any change (including wood waste and wood (i) The determination that an area is in the purpose of the loan, the financial residues); animal waste and byproducts ‘‘rural in character’’ under this definition condition of the borrower, or the (including fats, oils, greases, and will apply to areas that are within: collateral that would likely jeopardize manure); and food waste and yard (A) An urbanized area that has two loan performance. waste. points on its boundary that are at least Negligent loan origination. The failure Retrofitting. The modification of a 40 miles apart, which is not contiguous of a lender to perform those services building or equipment to incorporate or adjacent to a city or town that has a that a reasonably prudent lender would functions not included in the original population of greater than 150,000 perform in originating its own portfolio design that allow for the production of inhabitants or the urbanized area of of unguaranteed loans. The term advanced biofuels. such a city or town; or includes the concepts of failure to act, Rural or rural area. Any area of a (B) An urbanized area contiguous and not acting in a timely manner, or acting State not in a city or town that has a adjacent to a city or town of greater than in a manner contrary to the manner in population of more than 50,000 50,000 inhabitants that is within one- which a reasonably prudent lender inhabitants, according to the latest quarter mile of a rural area. would act. decennial census of the United States, (ii) Units of local government may Off-take agreement. The terms and or in the urbanized area contiguous and petition the Under Secretary of Rural conditions governing the sale and adjacent to a city or town that has a Development for a ‘‘rural in character’’ transportation of biofuels, biobased population of more than 50,000 designation by submitting a petition to products, and electricity produced by inhabitants, and any area that has been both the appropriate Rural Development the borrower to another party. determined to be ‘‘rural in character’’ by State Director and the Administrator on Project. The facility or portion of a the Under Secretary for Rural behalf of the Under Secretary. The facility producing eligible advanced Development, or as otherwise identified petition shall document how the area biofuels and any eligible biobased in this definition. meets the requirements of paragraph

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(6)(i)(A) or (B) above and discuss why (F) Financial and sensitivity review (v) It can be easily replicated and that the petitioner believes the area is ‘‘rural using a banking industry software replications can be sited at multiple in character,’’ including, but not limited analysis program with appropriate facilities across a wide geographic area to, the area’s population density, industry standards. based on the proposed deployment demographics, and topography and how (ii) The evaluation in paragraph (i) of plan; and the local economy is tied to a rural this definition is completed by an (vi) The advanced biofuel technology economic base. Upon receiving a independent third-party expert in a has at least a 12-month (four seasons) petition, the Under Secretary will feasibility study, technical report, or successful operating history at semi- consult with the applicable Governor or other analysis, which must be work scale, which demonstrates the leader in a similar position and request satisfactory to the Agency, that ability to operate at a commercial scale. comments to be submitted within 5 demonstrates the potential success of Working capital. Current assets business days, unless such comments the project. available to support a business’s were submitted with the petition. The (iii) The advanced biofuel technology operations and growth. Working capital Under Secretary will release to the has successfully completed at least a 12 is calculated as current assets less public a notice of a petition filed by a -month (four seasons) operating cycle at current liabilities. unit of local government not later than semi-work scale. (b) Exception authority. The 30 days after receipt of the petition by Tier 1 capital. This term has the exception authority provisions of this way of publication in a local newspaper meaning given it under applicable paragraph apply to this subpart instead of those in § 4279.15. The Administrator and posting on the Agency’s Web site, Federal Deposit Insurance Corporation may, with the concurrence of the and the Under Secretary will make a regulations. Secretary of Agriculture, make an determination not less than 15 days, but Tier 2 capital. This term has the exception, on a case-by-case basis, to no more than 60 days, after the release meaning given it under applicable any requirement or provision of this of the notice. Upon a negative Federal Deposit Insurance Corporation subpart that is not inconsistent with any determination, the Under Secretary will regulations. authorizing statute or applicable law, if provide to the petitioner an opportunity Tier 1 leverage capital ratio. This term the Administrator determines that to appeal a determination to the Under has the meaning given it under application of the requirement or Secretary, and the petitioner will have applicable Federal Deposit Insurance provision would adversely affect the 10 business days to appeal the Corporation regulations. Federal government’s interest. determination and provide further Tier 1 risk-based capital ratio. This (c) Lender eligibility requirements. information for consideration. term has the meaning given it under The requirements specified in § 4279.29 Semi-work scale. A manufacturing applicable Federal Deposit Insurance do not apply to this subpart. Instead, a plant operating on a limited commercial Corporation regulations. lender must meet the requirements scale to provide final tests of a new Total project costs. The sum of all specified in paragraphs (c)(1) through product or process. costs associated with a completed (c)(5) of this section in order to be Startup business. A business that has project. approved for participation in this been in operation for less than one full Total qualifying capital. This term has program. year. Startup businesses include newly the meaning given to it under applicable (1) An eligible lender is any Federal formed entities leasing space or Federal Deposit Insurance Corporation or State chartered bank, Farm Credit constructing facilities in a new market regulations. Bank, other Farm Credit System area, even if the owners of the startup Total risk-based capital ratio. This institution with direct lending business own affiliated businesses doing term has the meaning given it under authority, and Bank for Cooperatives. the same kind of business. Newly applicable Federal Deposit Insurance These entities must be subject to credit formed entities that are buying existing Corporation regulations. examination and supervision by either businesses or facilities will be Viable commercial-scale operation. an agency of the United States or a considered an existing business as long An operation is considered to be a State. Credit unions subject to credit as the business or facility being bought viable commercial-scale operation if it examination and supervision by either remains in operation and there is no demonstrates that: the National Credit Union significant change in operations. (i) Its revenue will be sufficient to Administration or a State agency, and Tangible net worth. Tangible assets recover the full cost of the project over insurance companies regulated by a minus liabilities. the term of the loan and result in an State or National insurance regulatory Technical and economic potential. A anticipated annual rate of return agency are also eligible lenders. The technology not described in paragraph sufficient to encourage investors or National Rural Utilities Cooperative (i) of the definition of ‘‘eligible lenders to provide funding for the Finance Corporation is also an eligible technology’’ is considered to have project; lender. Savings and loan associations, demonstrated ‘‘technical and economic (ii) It will be able to operate profitably mortgage companies, and other lenders potential’’ for commercial application in without public and private sector as identified in 7 CFR 4279.29(b) are not a biorefinery that produces an advanced subsidies upon completion of eligible. biofuel if each of the following construction (volumetric excise tax is (2) The lender must demonstrate the conditions is met: not included as a subsidy); minimum acceptable levels of capital (i) The advanced biofuel biorefinery’s (iii) Contracts for feedstocks are specified in paragraphs (c)(2)(i) through likely financial and production success adequate to address proposed off-take (c)(2)(iii) of this section at the time of is evidenced in a thorough evaluation from the biorefinery; application and at time of issuance of including, but not limited to: (iv) It has the ability to achieve market the loan note guarantee. This (A) Feedstocks; entry, suitable infrastructure to information may be identified in Call (B) Process engineering; transport the advanced biofuel to its Reports and Thrift Financial Reports. If (C) Siting; market is available, and the advanced the information is not identified in the (D) Technology; biofuel technology and related products Call Reports or Thrift Financial Reports, (E) Energy production; and are generally competitive in the market; the lender will be required to calculate

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its levels and provide them to the regulations, including the provision of Even if all or a portion of the loan note Agency. all required Federal, State, and local guarantee has been sold to a holder, the (i) Total Risk-Based Capital ratio of 10 permits; lender will remain bound by all percent or higher; (ii) Complied with any mitigation obligations under the loan note (ii) Tier 1 Risk-Based Capital ratio of measures required by the Agency; and guarantee, Lender’s Agreement, and 6 percent or higher; and (iii) Not taken any actions or incurred Agency program regulations. (iii) Tier 1 Leverage Capital ratio of 5 any obligations with respect to the (3) The lender must be shown as an percent or higher. proposed project that will either limit additional insured on insurance policies (3) The lender must not be debarred the range of alternatives to be (or other risk sharing instruments) that or suspended by the Federal considered during the Agency’s benefit the project and must be able to government. environmental review process or which assume any contracts that are material (4) If the lender is under a cease and will have an adverse effect on the to running the project, including any desist order from a Federal agency, the environment. feedstock or off-take agreements, as may lender must inform the Agency. The (f) Additional lender functions and be applicable. Agency will evaluate the lender’s responsibilities. In addition to the (4) If a lender does not satisfactorily eligibility on a case-by-case basis given requirements in § 4279.30, the comply with the provision found in the risk of loss posed by the cease and requirements specified in paragraphs § 4279.256(c) and such failure leads to desist order. (f)(1) through (f)(3) apply. losses, then such losses may not be (5) The Agency, in its sole (1) Any action or inaction on the part recoverable under the guarantee. determination, will approve of the Agency does not relieve the (5) When a guaranteed portion of a applications for loan guarantees only lender of its responsibilities to originate loan is sold to a holder, the holder shall from lenders with adequate experience and service the loan guaranteed under succeed to all rights of the lender under and expertise, from similar projects, to this subpart. the Loan Note Guarantee to the extent make, secure, service, and collect loans (2) The lender must compile a of the portion purchased. The lender approved under this subpart. complete application for each will remain bound to all obligations (d) Independent credit risk analysis. guaranteed loan and maintain such under the Loan Note Guarantee, The Agency will require an evaluation application in its files for at least 3 years Lender’s Agreement, and the Agency and credit rating of the total project’s after the final loss has been paid. program regulations. A guarantee and indebtedness, without consideration for (3) The lender must report to the right to require purchase will be directly a government guarantee, from a Agency all conflicts of interest and enforceable by a holder notwithstanding nationally-recognized rating agency for appearances of conflicts of interest. any fraud or misrepresentation by the loans of $125,000,000 or more. (g) Certified lender program. Section lender or any unenforceability of the (e) Environmental responsibilities. 4279.43 does not apply to this subpart. guarantee by the lender, except for fraud The provisions of this paragraph shall (h) Oversight and monitoring. In or misrepresentation of which the be used instead of the provisions addition to complying with holder had actual knowledge at the time specified in § 4279.30(c) for determining requirements specified in § 4279.44, the it became the holder or in which the a lender’s environmental lender will cooperate fully with Agency holder participates or condones. The responsibilities under this subpart. oversight and monitoring of all lenders lender will reimburse the Agency for Lenders have a responsibility to become involved in any manner with any any payments the Agency makes to a familiar with Federal environmental guarantee under the Biorefinery holder of lender’s guaranteed loan that, requirements; to consider at the earliest Assistance program to ensure under the Loan Note Guarantee, would planning stages, in consultation with compliance with this subpart. Such not have been paid to the lender had the the prospective borrower, the potential oversight and monitoring will include, lender retained the entire interest in the environmental impacts of their but is not limited to, reviewing lender guaranteed loan and not conveyed an proposals; and to develop proposals that records and meeting with lenders (in interest to a holder. accordance with § 4287.107(c)). minimize the potential to adversely (j) Sale or assignment of guaranteed (i) Conditions of guarantee. All loan impact the environment. loan. The provisions of § 4279.75 apply (1) Lenders must alert the Agency to guarantees under this subpart are to this subpart. any controversial environmental issues subject to the provisions of § 4279.72, (k) Minimum retention. The related to a proposed project or items except for § 4279.72(b), and the provisions of § 4279.77 apply to this that may require extensive provisions specified in paragraphs (i)(1) subpart, except that the lender is environmental review. through (i)(5) of this section. required to hold in its own portfolio a (2) Lenders must help the borrower (1) The entire loan, the guaranteed minimum of 7.5 percent of the total loan prepare Form RD 1940–20, ‘‘Request for and unguaranteed portions, must be amount. Environmental Information,’’ (when secured by a first lien on all collateral (l) Replacement of document. required by 7 CFR part 1940, subpart G, necessary to run the project. The Documents must be replaced in or successor regulations); assist in the Agency may consider a subordinate lien accordance with § 4279.84, except, in collection of additional data when the position on inventory and accounts § 4279.84(b)(1)(v), a full statement of the Agency needs such data to complete its receivable for working capital loans circumstances of any defacement or environmental review of the proposal; provided: The Agency determines the mutilation of the Loan Note Guarantee and assist in the resolution of working capital is necessary for the or Assignment Guarantee Agreement environmental problems. operation; with the subordination, the would also need to be provided. (3) Lenders must ensure that the Agency remains adequately secured; borrower has: and the subordination is in the best §§ 4279.203–4279.223 [Reserved] (i) Provided the necessary interests of the Government. environmental information to enable the (2) The holder of a guaranteed portion § 4279.224 Loan processing. Agency to undertake its environmental shall have all rights of payment, as Processing of Biorefinery Assistance review process in accordance with 7 defined in the loan note guarantee, to Guaranteed loans under this subpart CFR part 1940, subpart G, or successor the extent of the portion purchased. shall comply with the provisions found

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in §§ 4279.107 through 4279.187 of this § 4279.227 Borrower eligibility. (c) The project must use an eligible chapter, except as provided in the Borrower eligibility will be feedstock for the production of following sections. determined according to the provisions advanced biofuels and biobased of this section in lieu of § 4279.108. products. Eligible feedstocks include, § 4279.225 Ineligible loan purposes. (a) Eligible entities. To be eligible, a but are not limited to, renewable For the purposes of this subpart, the borrower must meet the requirements biomass, including municipal solid ineligible purposes identified in specified in paragraphs (a)(1) and (a)(2) waste consisting of renewable biomass, § 4279.114(b), (c), and (p) do not apply of this section, as applicable. biosolids, treated sewage sludge, and to this subpart. (1) Type of borrower. The borrower byproducts of the pulp and paper must be one of the following: industry. For the purposes of this § 4279.226 Fees. (i) An individual; subpart, recycled paper is not an eligible Fees will be determined according to (ii) An entity; feedstock. the provisions of this section in lieu of (iii) An Indian tribe; (d) The majority of the biorefinery § 4279.107. (iv) A unit of State or local production must be an advanced (a) Guarantee fee. The guarantee fee government; biofuel. Unless otherwise approved by (v) A corporation; will be paid to the Agency by the lender the Agency, and determined to be in the (vi) A farm cooperative; best financial interest of the and is nonrefundable. The fee may be (vii) A farmer cooperative passed on to the borrower. Issuance of government, the advanced biofuel must organization; be sold as a biofuel. The following will the Loan Note Guarantee is conditioned (viii) An association of agricultural on payment of the guarantee fee by be considered in determining what producers; constitutes the majority of production: closing. The guarantee fee will be the (ix) A National Laboratory; percentage specified in paragraphs (a)(1) (1) When the biorefinery produces a (x) An institution of higher education; biobased product and, if applicable, or (a)(2) of this section, as applicable, (xi) A rural electric cooperative; unless otherwise specified by the (xii) A public power entity; or byproduct that has an established BTU Agency in a notice published in the (xiii) A consortium of any of the content from a recognized Federal Federal Register, multiplied by the above entities. source, majority biofuel production will principal loan amount multiplied by the (2) Legal authority and responsibility. be based on BTU content of the percent of guarantee and will be paid Each borrower must have, or obtain advanced biofuel, the biobased product, one time only at the time the Loan Note before loan closing, the legal authority and, if applicable, the byproduct, or Guarantee is issued. necessary to construct, operate, and (2) When the biorefinery produces a biobased product or, if applicable, (1) For loans receiving a 90 percent maintain the proposed facility and services and to obtain, give security for, byproduct that does not have an guarantee, the guarantee fee is three established BTU content, then majority percent. and repay the proposed loan. (b) Ineligible entities. A borrower will biofuel production will be based on (2) For loans receiving less than a 90 output volume, using parameters percent guarantee, the guarantee fee is: be considered ineligible for a guarantee if the borrower, any owner with more announced by the Agency in periodic (i) Two percent for guarantees on than 20 percent ownership interest in Notices in the Federal Register, of the loans greater than 75 percent of total the borrower, or any owner with more advanced biofuel, the biobased product, project costs. than 3 percent ownership interest in the and, if applicable, the byproduct. (ii) One and one-half percent for borrower if there is no owner with more (e) An advanced biofuel that is guarantees on loans of greater than 65 than 20 percent ownership interest in converted to another form of energy for percent but less than or equal to 75 the borrower: sale will still be considered an advanced percent of total project costs. (1) Has an outstanding judgment biofuel. (iii) One percent for guarantees on obtained by the U.S. in a Federal Court (f) The project must provide funds loans of 65 percent or less of total (other than U.S. Tax Court), (e.g., cash, subordinate financing, non- project costs. (2) Is delinquent on the payment of federal grant) of not less than 20 percent (b) Annual renewal fee. The annual Federal income taxes, of eligible project costs. All projects renewal fee, which may be passed on to (3) Is delinquent on a Federal debt, or must meet the equity requirements the borrower, will be paid to the Agency (4) Is debarred or suspended from specified in § 4279.234(c)(1). (g) The Agency will consider for as long as the guaranteed loan is receiving Federal assistance. refinancing only under either of the two outstanding and is payable during the § 4279.228 Project eligibility. conditions specified in paragraphs (g)(1) construction period. Unless otherwise and (g)(2) of this section. specified by the Agency in a notice In lieu of the requirements specified (1) Permanent financing used to published in the Federal Register, the in § 4279.113, to be eligible for a refinance interim construction financing annual renewal fee shall be as follows: guaranteed loan under this subpart, at a minimum, a borrower and project, as of the proposed project only if the (1) One hundred basis points (1 applicable, must meet each of the application for the guaranteed loan percent) for guarantees on loans that requirements specified in paragraphs (a) under this subpart was approved prior were originally greater than 75 percent through (g) of this section. to closing the interim loan for the of total project costs. (a) The project must be located in a construction of the facility. (2) Seventy five basis points (0.75 State, as defined in § 4279.2. (2) Refinancing that is no more than percent) for guarantees on loans that (b) The project must be for either: 20 percent of the loan for which the were originally greater than 65 percent (1) The development and construction Agency is guaranteeing and the purpose but less than or equal to 75 percent of of commercial-scale biorefineries using of the refinance is to enable the Agency total project costs. eligible technology or to establish a first lien position with (3) Fifty basis points (0.50 percent) for (2) The retrofitting of existing respect to pre-existing collateral subject guarantees on loans that were originally facilities, including, but not limited to, to a pre-existing lien and the refinancing for 65 percent or less of total project wood products facilities and sugar would be in the best financial interests costs. mills, with eligible technology. of the Federal Government.

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§ 4279.229 Guaranteed loan funding. (1) If the loan amount is equal to or § 4279.230 [Reserved] Instead of the provisions found in less than $125 million, 80 percent for § 4279.231 Interest rates. § 4279.119, the provisions of this the entire loan amount unless all of the section apply to loans guaranteed under conditions specified in paragraphs The provisions found in § 4279.125 this subpart. (d)(1)(i) through (d)(1)(iii) of this section apply to loans guaranteed under this (a) In administering this program’s are met, in which case 90 percent for the subpart, except as provided in budgetary authority each fiscal year, the entire loan amount. paragraphs (a) through (c) of this Agency will allocate up to, but no more, section. Lenders are encouraged to pass (i) Equity of 40 percent, excluding interest-rate savings realized through than 50 percent of its budgetary qualified intellectual property; authority to fund applications received the secondary market on to the by the end of the first application (ii) Feedstock and off-take contracts of borrower. window, including those carried over at least 1 year in duration; and (a) The rate on the unguaranteed from the previous application period. (iii) Collateral coverage ratio, total portion of the loan shall not exceed the Any funds not obligated to support discounted collateral value divided by rate on the guaranteed portion of the applications submitted by the end of the total loan request, exceeding 1.5 to 1. loan by more than 500 basis points; first application window will be (2) If the loan amount is more than (b) Variable rate loans will not available to support applications $125 million and less than $150 million, provide for negative amortization nor received by the end of the second 80 percent for the entire loan amount. will they give the borrower the ability window, including those carried over to choose its payment among various (3) If the loan amount is equal to or options. from the previous application period. more than $150 million but less than The Agency, therefore, will have a (c) Both the guaranteed and $200 million, 70 percent on the entire unguaranteed portions of the loan must minimum of 50 percent of each fiscal loan amount. year’s budgetary authority for this be amortized over the same term, as program available to support (4) If the loan amount is $200 million provided in § 4279.232(a). up to and including $250 million, 60 applications received by the end of the § 4279.232 Terms of loan. second application window. percent on the entire loan amount. (b) The amount of a loan guaranteed (e) Eligible project costs are only those Instead of the provisions found in for a project under this subpart will not costs associated with the items listed in § 4279.126, the provisions of this exceed 80 percent of total eligible paragraphs (e)(1) through (e)(7) of this section apply to loans guaranteed under project costs. Total Federal participation section, as long as the items are an this subpart, except as provided in will not exceed 80 percent of total integral and necessary part of the total § 4279.232(e). eligible project costs. The borrower project, as determined by the Agency. (a) The repayment term for a loan under this subpart will be for a needs to provide the remaining 20 (1) Purchase and installation of percent from other non-Federal sources maximum period of 20 years or the equipment (new, refurbished, or useful life of the project, as determined to complete the project. Eligible project remanufactured), except agricultural costs are specified in paragraph (e) of by the lender and confirmed by the tillage equipment, used equipment, and Agency, whichever is less. The length of this section. vehicles. (c) The maximum principal amount of the loan term shall be the same for both (2) Construction or retrofitting. a loan guaranteed under this subpart is the guaranteed and unguaranteed $250 million to one borrower; there is (3) Permit and license fees. portions of the loan. no minimum amount. If an eligible (4) Working capital. (b) Guarantees shall be provided only after consideration is given to the borrower receives other direct Federal (5) Land acquisition. funding (i.e., direct loans and grants) for borrower’s overall credit quality and to (6) Cost of financing, excluding the terms and conditions of any a project, the amount of the loan that the guarantee and renewal fees. Agency will guarantee under this applicable subsidies, tax credits, and subpart must be reduced by the same (7) Any other item identified by the other such incentives. amount of the other direct Federal Agency in a notice published in the (c) All loans guaranteed under this funding that the eligible borrower Federal Register. subpart must be financially sound and received for the project. For example, an (f) Loans made with the proceeds of feasible, with reasonable assurance of eligible borrower is applying for a loan any obligation the interest on which is repayment. guarantee on a $1 million project. The excludable from income under the (d) A loan’s maturity will take into borrower provides the minimum Internal Revenue Code are ineligible. consideration the use of proceeds, the matching requirement of 20 percent, or Funds generated through the issuance of useful life of assets being financed, and $200,000. This leaves $800,000 in other tax-exempt obligations cannot be used the borrower’s ability to repay the loan. funding needed to implement the to purchase the guaranteed portion of (e) Repayment of the loan shall be in project. If the borrower receives no other any Agency guaranteed loan and an accordance with § 4279.125(a) and direct Federal funding for this project Agency guaranteed loan cannot serve as § 4279.126(b) and (c). and requests a guarantee for the collateral for a tax-exempt issue. The § 4279.233 [Reserved] $800,000, the Agency will consider a Agency may guarantee a loan with guarantee on the $800,000. However, if respect to a project at a facility that has § 4279.234 Credit evaluation. this borrower receives $100,000 in other received, or will receive, tax-exempt Instead of the provisions found in direct Federal funding for this project, financing only when the guaranteed § 4279.131, the provisions of this the Agency will only consider a loan funds are used to finance a project section apply to loans guaranteed under guarantee on $700,000. that is separate and distinct from the this subpart. For all applications for (d) The maximum guarantee on the activities at the facility that have been guarantee, the lender must prepare a principal and interest due on a loan or will be financed by the tax-exempt credit evaluation. An acceptable credit guaranteed under this subpart will be obligation, and the guaranteed loan has evaluation must: determined as specified in paragraphs at least a parity security position with (a) Use credit documentation (d)(1) through (d)(4) of this section. the tax-exempt obligation. procedures and an underwriting process

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that are consistent with generally accordance with Generally Accepted §§ 4279.245–4279.249 [Reserved] accepted commercial lending practices, Accounting Principles may be § 4279.250 Feasibility studies. and substituted in whole or in part to meet (b) Include an analysis of the credit the equity requirement. However, the The provisions of § 4279.150 do not factors associated with each guarantee appraisal completed to establish the fair apply to this subpart. Instead, feasibility application, including consideration of market value of the real property and studies must meet the requirements each of the following five elements. equipment must not be more than 1 year specified in § 4279.261(f). (1) Credit worthiness. Those financial old. The Agency may require the lender §§ 4279.251–4279.254 [Reserved] qualities that generally make the to provide a more recent appraisal in borrower more likely to meet its order to reflect current market § 4279.255 Loan priorities. obligations as demonstrated by its credit conditions. The appraisal used to history. The provisions of § 4279.155 do not establish fair market value of the real apply to this subpart. (2) Cash flow. A borrower’s ability to property and equipment must conform produce sufficient cash to repay the to the requirements of § 4279.244. § 4279.256 Construction planning and loan as agreed. Otherwise, equity must be in the form performing development. (3) Capital. The financial resources of cash and cannot include other direct that the borrower currently has and The lender must comply with Federal funding (i.e., loans and grants). § 4279.156(a) through (c), except as those it is likely to have when payments (2) The credit analysis must also are due. The borrower must be otherwise provided in paragraphs (a) include spreadsheets of the balance through (f) of this section. adequately capitalized. sheets and income statements of the (4) Collateral. The assets pledged by (a) Architectural and engineering borrower for the 3 previous years (for the borrower in support of the loan, practices. Under paragraph existing businesses), pro forma balance including processing technology owned § 4279.156(a), the lender must also sheets at startup, and projected yearend by the borrower and excluding assets ensure that all project facilities are balance sheets and income statements acquired with other Federal funds. designed utilizing accepted for a period of not less than 3 years of Collateral must have documented value architectural and engineering practices stabilized operation, with appropriate sufficient to protect the interest of the that conform to the requirements of this ratios and comparisons with industrial lender and the Agency, and the subpart. standards (such as Dun & Bradstreet or discounted collateral value must be at (b) Onsite inspector. The lender must Robert Morris Associates) to the extent least equal to the loan amount. Lenders provide an onsite project inspector. industrial standards are available. will discount collateral consistent with (c) Changes and cost overruns. The sound loan-to-value policy. The Agency (3) All data must be shown in total dollars and also in common size form, borrower shall be responsible for any may consider the value of qualified changes or cost overruns. If any such intellectual property, as defined in obtained by expressing all balance sheet items as a percentage of assets and all change or cost overrun occurs, then any § 4279.2, arrived at in accordance with change order must be expressly GAAP standards. The value of the income and expense items as a percentage of sales. approved by the Agency, which intellectual property may not exceed 30 approval shall not be unreasonably percent of the total value of all §§ 4279.235–4279.236 [Reserved] withheld, and neither the lender nor collateral. borrower will divert funds from (i) If there is an established market for § 4279.237 Financial statements. purposes identified in the guaranteed the intellectual property, the value of The provisions of § 4279.137 do not loan application approved by the the intellectual property will be valued apply to this subpart. Instead, the Agency to pay for any such change or according to the lender’s standard submittal of financial statements with cost overrun without the express written discounting practice for intellectual the loan guarantee application must approval of the Agency. In no event will property for determining adequacy of meet the requirements specified in the current loan be modified or a collateral. § 4279.261(c). subsequent guaranteed loan be (ii) If there is no established market approved to cover any such changes or §§ 4279.238–4279.243 [Reserved] for the intellectual property, the value of costs. In the event of any of the the intellectual property will be valued § 4279.244 Appraisals. aforementioned increases in cost or not greater than 25 percent, as expenses, the borrower must provide for All appraisals must be in accordance determined by the Agency, for such increases in a manner that does not with § 4279.144 and each appraisal determining adequacy of collateral. diminish the borrower’s operating must be a complete, self-contained (5) Conditions. The general business capital. Failure to comply with the appraisal. Lenders must complete at environment and status of the terms of this paragraph will be least a Transaction Screen borrower’s industry. considered a material adverse change in (c) When determining the credit Questionnaire for any undeveloped sites the borrower’s financial condition, and quality of the borrower, the lender must and a Phase I Environmental Site the lender must address this matter, in include the following in its analysis: Assessment on existing business sites in writing, to the Agency’s satisfaction. (1) The borrower shall demonstrate accordance with ASTM International that it will be able to provide equity in Standards, which should be provided to (d) New draw certifications. The the project of not less than 20 percent the appraiser for completion of the self- following three certifications are of eligible project costs at the time the contained appraisal. Specialized required for each new draw: loan is closed. For existing biorefineries, appraisers will be required to complete (1) Certification by the project the fair market value of project equity appraisals under this section. The engineer to the lender that the work (including the guaranteed loan being Agency may approve a waiver of this referred to in the draw has been applied for) in real property and requirement only if a specialized successfully completed; equipment and the value of qualified appraiser does not exist in a specific (2) Certification from the lender that intellectual property based on the industry or hiring one will cause an all debts have been paid and all audited financial statements in undue financial burden to the borrower. mechanics’ liens have been waived; and

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(3) Certification from the lender that any of the records of the borrower information specified in paragraphs (a) the borrower is complying with the pertaining to any Agency-guaranteed through (n) of this section, organized Davis-Bacon Act. loan. Such inspection and copying may pursuant to a table of contents in a (e) Surety. Surety, as the term is be made during regular office hours of chapter format, and in paragraph (o) of commonly used in the industry, will be the borrower or at any other time agreed this section as applicable. required in cases when the guarantee upon between the borrower and the (a) Project Summary. Provide a will be issued prior to completion of Agency. concise summary of the proposed construction unless the contractor will (e) Access to the project. The project and application information, receive a lump sum payment at the end borrower must allow the Agency access project purpose and need, and project of work. Surety will be made a part of to the project and its performance goals, including the following: the contract if the borrower requests it information until the loan is repaid in (1) Title. Provide a descriptive title of or if the contractor requests partial full and permit periodic inspections of the project. payments for construction work. In such the project by a representative of the (2) Borrower eligibility. Describe how cases where no surety is provided and Agency. the borrower meets the eligibility the project involves pre-commercial criteria identified in § 4279.227. technology, technology that is first of its § 4279.260 Guarantee applications— general. (3) Project eligibility. Describe how type in the U.S., or new designs without the project meets the eligibility criteria sufficient operating hours to prove their Unless otherwise noted, the identified in paragraph (c) of this merit, a latent defects bond may be provisions of § 4279.161 do not apply to section. Clearly state whether the required by the Agency to cover the this subpart. Instead, the application application is for the construction and work. provisions of this section and development of a biorefinery or for the (f) Reporting during construction. § 4279.261 apply to the preparation of retrofitting of an existing facility. During the construction of the project, Biorefinery Assistance Guaranteed loan Provide results from demonstration or lenders shall submit quarterly applications. pilot facilities that prove that the (a) Application submittal. For each construction progress reports to the technology proposed to be used meets guarantee request, the lender must Agency. These reports must contain, at the definition of eligible technology. submit to the Agency an application a minimum, planned and completed Additional project description that is in conformance with § 4279.261. construction milestones, loan advances, information will be needed later in the The methods of application submittal and personnel hiring, training, and application process. will be specified in the annual Federal retention. This requirement applies to (4) Matching funds. Submit a Register notice. both the development and construction spreadsheet identifying sources, (b) Application deadline. Unless of commercial-scale biorefineries and to amounts, and availability of matching otherwise specified by the Agency in a the retrofitting of existing facilities funds. The spreadsheet must also notice published in the Federal Register, using eligible technology for the include a directory of matching funds complete applications must be received development of advanced biofuels. The source contact information. Attach any by the Agency on or before May 1 of lender must expeditiously report any applications, correspondence, or other each year to be considered for funding problems in project development to the written communication between for that fiscal year. If the application Agency. borrower and matching fund source. deadline falls on a weekend or a (b) Lender’s analysis and credit §§ 4279.257–4279.258 [Reserved] Federally observed holiday, the evaluation. This analysis shall conform deadline will be the next Federal § 4279.259 Borrower responsibilities. to § 4279.232(b) and shall include: business day. (a) Federal, State, and local (c) Incomplete applications. (1) A summary of the technology to be regulations. Borrowers must comply Incomplete applications will be used in the project; with all Federal, State, and local laws rejected. Lenders will be informed of the (2) The viability of such technology and rules that are in existence and that elements that made the application for the particular project application; affect the project including, but not incomplete. If a resubmitted application (3) The development type (e.g., limited to: is received by the applicable application installation, construction, retrofit); (1) Land use zoning; deadline, the Agency will reconsider the (4) The credit reports of the borrower, (2) Health, safety, and sanitation application. its principals, and any parent, affiliate, standards as well as design and (d) Application withdrawal. During or subsidiary as follows: installation standards; and the period between the submission of an (i) A personal credit report from an (3) Protection of the environment and application and the execution of Agency-approved credit reporting consumer affairs. documents, the lender must notify the company for individuals who are key (b) Permits, agreements, and licenses. Agency, in writing, if the project is no employees of the borrower, as Borrowers must obtain all permits, longer viable or the borrower is no determined by the Agency, and for agreements, and licenses that are longer requesting financial assistance individuals owning 20 percent or more applicable to the project. for the project. When the lender so interest in the borrower or any owner (c) Insurance. The borrower is notifies the Agency, the selection will with more than 10 percent ownership responsible for maintaining all hazard, be rescinded or the application interest in the borrower if there is no flood, liability, worker compensation, withdrawn. owner with more than 20 percent and personal life insurance, when ownership interest in the borrower, required, on the project. § 4279.261 Application for loan guarantee except for when the borrower is a (d) Access to borrower’s records. content. corporation listed on a major stock Except as provided by law, upon request Approved lenders must submit an exchange unless otherwise determined by the Agency, the borrower will permit Agency-approved application form for by the Agency; and representatives of the Agency (or other each loan guarantee sought under this (ii) Commercial credit reports on the Federal agencies as authorized by the subpart. Loan guarantee applications borrower and any parent, affiliate, and Agency) to inspect and make copies of from approved lenders must contain the subsidiary firms;

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(5) The credit analysis specified in (ii) The most recent audited or (4) Depending on the complexity of § 4279.232(b); Agency-acceptable financial statements the project and the financial condition (6) For loans of $125 million or more, of the borrower if the guaranteed loan is of the borrower, the Agency may request an evaluation and credit rating of the less than $3 million. additional financial statements and total project’s indebtedness, without (2) For businesses that have been in additional related information. consideration for a government existence for less than one year, the (d) Environmental information. guarantee, from a nationally-recognized most recent Agency-authorized financial Environmental information required by rating agency; and the Agency to conduct its statements of the borrower regardless of (7) Whether the loan note guarantee is environmental reviews (as specified in the amount of the guaranteed loan requested prior to construction or after Exhibit H of 7 CFR part 1940, subpart request. completion of construction of the G). project. (3) For all businesses, a current (not (e) Appraisals. An appraisal (c) Financial statements. Financial more than 90 days old) balance sheet; a conducted as specified under statements as follows: pro forma balance sheet at startup; and § 4279.244. (1) For businesses that have been in projected balance sheets, income and (f) Feasibility study. Elements in an existence for one or more years, expense statements, and cash flow acceptable feasibility study include, but (i) The most recent audited financial statements for a period of not less than are not limited to, the elements outlined statements of the borrower if the 3 years of stabilized operation. in Table 1. In addition, as part of the guaranteed loan is $3 million or more, Projections should be supported by a feasibility study, a technical assessment unless alternative financial statements list of assumptions showing the basis for of the project is required, as specified in are authorized by the Agency; or the projections. paragraph (h) of this section.

TABLE 1—FEASIBILITY STUDY COMPONENTS

(A) Executive Summary: Introduction/Project Overview (Brief general overview of project location, size, etc.). Economic feasibility determination. Market feasibility determination. Technical feasibility determination. Financial feasibility determination. Management feasibility determination. Recommendations for implementation. (B) Economic Feasibility: Information regarding project site; Availability of trained or trainable labor; Availability of infrastructure, including utilities, and rail, air and road service to the site. Feedstock: Feedstock source management; Estimates of feedstock volumes and costs; Collection, Pre-Treatment, Transportation, and Storage; and Feedstock risks. Documentation that woody biomass feedstock from National Forest system lands or public lands cannot be used for a higher-value product. Impacts on existing manufacturing plants or other facilities that use similar feedstock if the borrower’s proposed biofuel production tech- nology is adopted. Projected impact on resource conservation, public health, and the environment. Detailed analysis of project costs including: Project management and professional services; Resource assessment; Project design and permitting; Land agreements and site preparation; Equipment requirements and system installation; Startup and shakedown; and Warranties, insurance, financing, and operation and maintenance costs. Overall economic impact of the project, including any additional markets created for agricultural and forestry products and agricultural waste material and the potential for rural economic development. Feasibility/plans of project to work with producer associations or cooperatives, including estimated amount of annual feedstock, biofuel, and byproduct purchased from or sold to producer associations and cooperatives. (C) Market Feasibility: Information on the sales organization and management; Nature and extent of market and market area; Marketing plans for sale of projected output—principal products and byproducts; Extent of competition, including other similar facilities in the market area; Commitments from customers or brokers—principal products and byproducts. Risks related to the Advanced Biofuel industry, including Industry status; Specific market risks; and Competitive threats and advantages. (D) Technical Feasibility: Suitability of the selected site for the intended use. Scale of development for which the process technology has been proven (i.e., lab or bench, pilot, demonstration, or semi-work scale). Specific volume of the process (expressed either as volume of feedstock processed [tons per unit of time] or as product [gallons per unit of time]). Identification and estimation of project operation and development costs. Specify the level of accuracy of these estimates and the assump- tions on which these estimates have been based.

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TABLE 1—FEASIBILITY STUDY COMPONENTS—Continued Ability of the proposed system to be commercially replicated. Risks related to: Construction of the Biorefinery; Advanced Biofuel production; Regulation and governmental action; and Design-related factors that may affect project success. (E) Financial Feasibility: Reliability of the financial projections and the assumptions on which the financial statements are based, including all sources and uses of project capital, private or public, such as Federal funds. Provide detailed analysis and description of projected balance sheets, income and expense statements, and cash flow statements over the useful life of the project. A detailed description of: Investment incentives; Productivity incentives; Loans and grants; and Other project authorities and subsidies that affect the project. Any constraints or limitations in the financial projections. Ability of the business to achieve the projected income and cash flow. Assessment of the cost accounting system. Availability of short-term credit or other means to meet seasonal business costs. Adequacy of raw materials and supplies. Sensitivity analysis, including feedstock and energy costs and product and byproduct prices. Risks related to: The project; Borrower financing plan; The operational units; and Tax issues. (F) Management Feasibility: Borrower and/or management’s previous experience concerning: Biofuel production; Acquisition of feedstock; Marketing and sale of off-take; and The receipt of Federal financial assistance, including amount of funding, date received, purpose, and outcome. Management plan for procurement of feedstock and labor, marketing of the off-take, and management succession. Risks related to: Borrower as a company (e.g., development-stage); Conflicts of interest; and Management strengths and weaknesses. (G) Qualifications: A resume or statement of qualifications of the author of the feasibility study, including prior experience, must be submitted.

(g) Business plan. The lender must (9) Projected balance sheets, income analysis so that a determination can be submit a business plan that includes the and expense statements, and cash flow made on the technical feasibility of information specified in paragraphs statements for a period of not less than achieving the levels of income or (g)(1) through (g)(10) of this section. 3 years of stabilized operation; and production that are projected in the Any or all of this information may be (10) A description of the proposed use financial statements. All technical omitted if it is included in the feasibility of funds. information provided must follow the study specified in paragraph (f) of this (h) Technical Assessment. As part of format specified in paragraphs (h)(1) section. the feasibility study required under through (h)(9) of this section. (1) The borrower’s experience; paragraph (f) of this section, a detailed Supporting information may be (2) The borrower’s succession technical assessment is required for submitted in other formats. Design planning, addressing both ownership each project. The technical assessment drawings and process flow charts are and management; must demonstrate that the design, required as exhibits. A discussion of a (3) The names and a description of the procurement, installation, startup, topic identified in paragraphs (h)(1) relationship of the borrower’s parent, operation and maintenance of the through (h)(9) of this section is not affiliates, and subsidiaries; project will permit it to operate or necessary if the topic is not applicable (4) The borrower’s business strategy; perform as specified over its useful life to the specific project. Questions (5) Possible vendors and models of in a reliable and a cost effective manner, identified in the Agency’s technical major system components; and must identify what the useful life of review of the project must be answered (6) The availability of the resources the project is. The technical assessment to the Agency’s satisfaction before the (e.g., labor, raw materials, supplies) must also identify all necessary project application will be approved. All necessary to provide the planned agreements, demonstrate that those projects require the services of an products and services; agreements will be in place at or before independent, third-party professional (7) Site location and its relation to the time of loan closing, and engineer. product distribution (e.g., rail lines or demonstrate that necessary project (1) Qualifications of project team. The highways) and any land use or other equipment and services will be project team will vary according to the permits necessary to operate the facility; available over the useful life of the complexity and scale of the project. The (8) The market for the product and its project. The technical assessment must project team must have demonstrated competition, including any and all be based upon verifiable data and expertise in similar advanced biofuel competitive threats and advantages; contain sufficient information and technology development, engineering,

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installation, and maintenance. those requirements and securing those (A) A description of the project site Authoritative evidence that project team permits. that addresses issues such as site access, service providers have the necessary (ii) Identify licenses where required foundations, and backup equipment professional credentials or relevant and the schedule for obtaining those when applicable; experience to perform the required licenses. (B) A completed Form RD 1940–20 services for the development, (iii) Identify land use agreements and an environmental assessment construction, and retrofitting, as required for the project, the schedule for prepared in accordance with Exhibit H applicable, of technology for producing securing those agreements, and the term of 7 CFR part 1940, subpart G; and advanced biofuels must be provided. In of those agreements. (C) Identification of any unique addition, authoritative evidence that (iv) Identify any permits or construction and installation issues. vendors of proprietary components can agreements required for solid, liquid, (iii) Sites must be controlled by the provide necessary equipment and spare and gaseous emissions or effluents and eligible borrower for at least the parts for the biorefinery to operate over the schedule for securing those permits financing term of the loan note its useful life must be provided. The and agreements. guarantee. application must: (v) Identify available component (5) Project development schedule. The application must describe each (i) Discuss the proposed project warranties for the specific project significant task, its beginning and end, delivery method. Such methods include location and size. (vi) Identify all environmental issues, and its relationship to the time needed a design-bid-build method, where a including environmental compliance to initiate and carry the project through separate engineering firm may design issues, associated with the project. startup and shakedown. Provide a the project and prepare a request for (3) Resource assessment. The detailed description of the project bids and the successful bidder application must provide adequate and timeline including resource assessment, constructs the project at the borrower’s appropriate evidence of the availability project and site design, permits and risk, and a design-build method, often of the feedstocks required for the agreements, equipment procurement, referred to as ‘‘turnkey,’’ where the advanced biofuels refinery to operate as and project construction from borrower establishes the specifications designed. Indicate the type and quantity excavation through startup and for the project and secures the services of the feedstock, and discuss storage of shakedown. of a developer who will design and the feedstock, where applicable, and (6) Equipment procurement. The build the project at the developer’s risk; competing uses for the feedstock. application must demonstrate that (ii) Discuss the manufacturers of Indicate shipping or receiving methods equipment required by the biorefinery is major components of advanced biofuels and required infrastructure for shipping, available and can be procured and technology equipment being considered and other appropriate transportation delivered within the proposed project in terms of the length of time in mechanisms. For proposed projects with development schedule. Biorefineries business and the number of units an established resource, provide a may be constructed of components installed at the capacity and scale being summary of the resource. manufactured in more than one considered; (4) Design and engineering. The location. Provide a description of any (iii) Discuss the project team application must provide authoritative unique equipment procurement issues members’ qualifications for engineering, evidence that the advanced biofuels such as scheduling and timing of designing, and installing advanced refinery will be designed and component manufacture and delivery, biofuels refineries, including any engineered so as to meet its intended ordering, warranties, shipping, relevant certifications by recognized purposes, will ensure public safety, and receiving, and on-site storage or organizations or bodies. Provide a list of will comply with applicable laws, inventory. the same or similar projects designed, regulations, agreements, permits, codes, (7) Equipment installation. The installed, or supplied and currently and standards. Projects shall be application must provide a full operating, with references if available; engineered by a qualified entity. Each description of the management of and and biorefinery must be engineered as a plan for site development and systems (iv) Describe the advanced biofuels complete, integrated facility. The installation, details regarding the refinery operator’s qualifications and engineering must be comprehensive, scheduling of major installation experience for servicing, operating, and including site selection, systems and equipment needed for project maintaining such equipment or projects. component selection, and systems construction, and a description of the Provide a list of the same or similar monitoring equipment. Biorefineries startup and shakedown specification projects designed, installed, or supplied must be constructed by a qualified and process and the conditions required and currently operating, with references entity. for startup and shakedown for each if available. (i) The application must include a equipment item individually and for the (2) Agreements and permits. The concise but complete description of the biorefinery as a whole. application must identify all necessary project, including location of the (8) Operations and maintenance. The agreements and permits required for the project; resource characteristics, application must provide the operations project and the status and schedule for including the kind and amount of and maintenance requirements of the securing those agreements and permits, feedstocks; biorefinery specifications; biorefinery necessary for the biorefinery including the items specified in kind, amount, and quality of the output; to operate as designed over its useful paragraphs (h)(2)(i) through (h)(2)(vi) of and monitoring equipment. Address life. The application must also include: this section. performance on a monthly and annual (i) Information regarding available (i) Advanced biofuels refineries must basis. Describe the uses of or the market biorefinery and component warranties be installed in accordance with for the advanced biofuels produced by and availability of spare parts; applicable local, State, and national the biorefinery. Discuss the impact of (ii) A description of the routine codes and applicable local, State, and reduced or interrupted feedstock operations and maintenance Federal regulations. Identify zoning and availability on the biorefinery’s requirements of the proposed code requirements and necessary operations. biorefinery, including maintenance permits and the schedule for meeting (ii) The application must include: schedules for the mechanical, piping,

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and electrical systems and system applications according to the provisions each of the following: feedstocks, monitoring and control requirements, as specified in paragraphs (a) through (h) marketing agreements for the advanced well as provision of information that of this section. biofuel, and the byproducts produced or supports expected useful life of the (a) Application processing. Upon if the project does not produce an biorefinery and timing of major receipt of a complete application, the advanced biofuel that meets an component replacement or rebuilds; Agency will conduct a review to applicable renewable fuel standard, 0 (iii) A discussion of the costs and determine if the borrower, lender, and points will be awarded. labor associated with operating and project are eligible; if the project has (ii) If the business has a greater than maintaining the biorefinery and plans technical merit as determined under 50 percent commitment for any one or for in-sourcing or outsourcing. A paragraph (b) of this section; and if the two of the following: feedstocks, description of the opportunities for minimum financial metric criteria under marketing agreements for the advanced technology transfer for long-term project paragraph (c) of this section are met. biofuel, and the byproducts produced operations and maintenance by a local (1) If the borrower, lender, or the and if the project produces an advanced entity or owner/operator; and project is determined to be ineligible for biofuel that meets an applicable (iv) Provision and discussion of the any reason, the Agency will inform the renewable fuel standard, 5 points will risk management plan for handling lender, in writing, of the reasons. No be awarded. large, unanticipated failures of major further evaluation of the application (iii) If the business has a greater than components. will occur. 50 percent commitment for each of the (9) Decommissioning. A description of (2) If the Agency determines it is following: Feedstocks, marketing the decommissioning process, when the unable to guarantee the loan, the lender agreements for the advanced biofuel, project must be uninstalled or removed. will be informed in writing. Such and the byproducts produced and if the A description of any issues, notification will include the reasons for project produces an advanced biofuel requirements, and costs for removal and denial of the guarantee. that meets an applicable renewable fuel disposal of the biorefinery. (b) Technical merit determination. standard, 10 points will be awarded. (i) Scoring information. The The Agency’s determination of a (2) Whether the area in which the application must contain information in project’s technical merit will be based borrower proposes to place the a format that is responsive to the scoring on the information in the application. biorefinery, defined as the area that will criteria specified in § 4279.265(d). Projects determined by the Agency to be supply the feedstock to the proposed (j) Loan Agreement. A proposed loan without technical merit will not be biorefinery, has any other similar agreement or a sample loan agreement selected for funding. advanced biofuel facilities. A maximum with an attached list of the proposed (c) Financial metric criteria. The of 5 points can be awarded. Points to be loan agreement provisions as specified borrower must meet the financial metric awarded will be determined as follows: criteria specified in paragraphs (c)(1) in § 4279.161(b)(11). (i) If the area that will supply the through (c)(3) of this section. These (k) Lender certifications. The lender feedstock to the proposed biorefinery financial metric criteria shall be must provide certification in accordance does not have any other similar calculated from the realistic information with § 4279.161(b)(16). In addition, the advanced biofuel biorefineries, 5 points in the pro forma statements or borrower lender must certify that the lender will be awarded. financial statements, submitted in concludes that the project has technical (ii) If there are other similar advanced accordance with § 4279.261(c), of a merit. biofuel biorefineries located within the typical operating year after the project is (l) Intergovernmental consultation. area that will supply the feedstock to completed and stabilized. Intergovernmental consultation the proposed biorefinery, 0 points will (1) A debt coverage ratio of 1.0 or comments in accordance with RD be awarded. Instruction 1940–J and 7 CFR part 3015, higher. (2) A debt-to-tangible net worth ratio (3) Whether the borrower is proposing subpart V. to use a feedstock not previously used (m) DUNS Number. For borrowers of 4:1 or lower for startup businesses and of 9:1 or lower for existing in the production of advanced biofuels. other than individuals, a Dun and A maximum of 15 points can be Bradstreet Universal Numbering System businesses. (3) A discounted loan-to-value ratio of awarded. Points to be awarded will be (DUNS) number, which can be obtained no more than 1.0. determined as follows: online at http://fedgov.dnb.com/ (d) Scoring applications. The Agency (i) If the borrower proposes to use a webform. will score each complete and eligible feedstock previously used in the (n) Bioenergy experience. Identify application it receives on or before May production of advanced biofuels in a borrower’s, including its principals’, 1 in the fiscal year in which it was commercial facility, 0 points will be prior experience in bioenergy projects received. The Agency will score each awarded. and the receipt of Federal financial eligible application that meets the (ii) If the borrower proposes to use a assistance, including the amount of minimum requirements for financial feedstock not previously used in funding, date received, purpose, and and technical feasibility using the production of advanced biofuels in a outcome, for such projects. evaluation criteria identified below. A commercial facility, 15 points will be (o) Other information. Any other maximum of 100 points is possible. awarded. information determined by the Agency (1) Whether the borrower has (4) Whether the borrower is proposing to be necessary to evaluate the established a market for the advanced to work with producer associations or application. biofuel and the byproducts produced cooperatives. A maximum of 5 points §§ 4279.262–4279.264 [Reserved] and whether the advanced biofuel meets can be awarded. Points to be awarded an applicable renewable fuel standard. will be determined as follows: § 4279.265 Guarantee application A maximum of 10 points can be (i) Five (5) points will be awarded if evaluation. awarded. Points to be awarded will be any one of the three conditions Instead of evaluating applications determined as follows: specified in paragraphs (d)(4)(i)(A) using the provisions of § 4279.165, the (i) If the business has less than or through (d)(4)(i)(C) of this section is Agency will evaluate and award equal to a 50 percent commitment for met.

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(A) At least 60 percent of the dollar net worth ratio equal to or less than 2.5 with an average wage that exceeds the value of feedstock to be used by the to 1, 15 points will be awarded. County median household wages where proposed biorefinery will be supplied (iii) If a project uses other Federal the biorefinery will be located, 10 points by producer associations and direct funding, 10 points will be will be awarded. cooperatives; deducted. (9) The level of local ownership of the (B) At least 60 percent of the dollar (6) Whether the borrower has biorefinery proposed in the application. value of the advanced biofuel to be established that the adoption of the A maximum of 5 points can be awarded. produced by the proposed biorefinery process proposed in the application will Points to be awarded will be determined will be sold to producer associations have a positive effect on three impact as follows: and cooperatives; or areas: resource conservation (e.g., water, (i) If local owners have an ownership (C) At least 60 percent of the dollar soil, forest), public health (e.g., potable interest in the biorefinery of more than value of the biobased products to be water, air quality), and the environment 20 percent but less than or equal to 50 produced by the proposed biorefinery (e.g., compliance with an applicable percent, 3 points will be awarded. will be sold to producer associations renewable fuel standard, greenhouse (ii) If local owners have an ownership and cooperatives. gases, emissions, particulate matter). A interest in the biorefinery of more than (ii) Three (3) points will be awarded maximum of 10 points can be awarded. 50 percent, 5 points will be awarded. if any one of the three conditions Based on what the borrower has (10) Whether the project can be specified in paragraphs (d)(4)(ii)(A) provided in either the application or the replicated. A maximum of 10 points can through (d)(4)(ii)(C) of this section is feasibility study, points to be awarded be awarded. Points to be awarded will met. will be determined as follows: be determined as follows: (A) At least 30 percent of the dollar (i) If process adoption will have a (i) If the project can be commercially value of feedstock to be used by the positive impact on any one of the three replicated regionally (e.g., Northeast, proposed biorefinery will be supplied impact areas (resource conservation, Southwest, etc.), 5 points will be by producer associations and public health, or the environment), 3 awarded. cooperatives; points will be awarded. (ii) If the project can be commercially (B) At least 30 percent of the dollar (ii) If process adoption will have a replicated nationally, 10 points will be value of the advanced biofuel, or an positive impact on two of the three awarded. advanced biofuel converted to impact areas, 6 points will be awarded. (11) If the project uses a particular electricity, to be produced by the (iii) If process adoption will have a technology, system, or process that is proposed biorefinery will be sold to positive impact on all three impact not currently operating in the advanced producer associations and cooperatives; areas, 10 points will be awarded. biofuel market as of October 1 of the or (iv) If the project proposes to use a fiscal year for which the funding is (C) At least 30 percent of the dollar feedstock that can be used for human or available, 5 points will be awarded. value of the biobased products to be animal consumption as a feedstock, 5 (12) The Administrator can award up produced by the proposed biorefinery points will be deducted from the score. to a maximum of 10 bonus points to will be sold to producer associations (7) Whether the borrower can applications that promote partnerships and cooperatives. establish that, if adopted, the biofuels and other activities that assist in the For example, consider a proposed production technology proposed in the development of new and emerging biorefinery that will purchase application will not have any technologies for the development of $1,000,000 of feedstock and produce economically significant negative advanced biofuels so as to increase the $5,000,000 worth of biofuel and impacts on existing manufacturing energy independence of the United $2,000,000 worth of biobased products. plants or other facilities that use similar States; promote resource conservation, In order to receive the 5 points under feedstocks. A maximum of 10 points can public health, and the environment; this criterion, at least $600,000 worth of be awarded. Points to be awarded will diversify markets for agricultural and feedstock purchases must be from be determined as follows: forestry products and agriculture waste producer associations or cooperatives, at (i) If the borrower has not established, material; and create jobs and enhance least $3,000,000 worth of biofuel must through an independent third party the economic development of the rural be sold to producer associations or feasibility study, that the biofuels economy. These partnerships and other cooperatives, or at least $1,200,000 production technology proposed in the activities will be identified in a Federal worth of biobased products must be sold application, if adopted, will not have Register notice each fiscal year. to producer associations or any economically significant negative However, the Administrator’s bonus cooperatives. impacts on existing manufacturing points may not raise an applicant’s (5) The level of financial participation plants or other facilities that use similar score to more than 100 points. by the borrower, including support from feedstocks, 0 points will be awarded. (e) Ranking of applications. The non-Federal government sources and (ii) If the borrower has established, Agency will rank all scored applications private sources. Other direct Federal through an independent third party to create a priority list of scored funding (i.e., direct loans and grants) feasibility study, that the biofuels applications for the program. Unless will not be considered as part of the production technology proposed in the otherwise specified in a notice borrower’s equity participation. A application, if adopted, will not have published in the Federal Register, the maximum of 15 points can be awarded. any economically significant negative Agency will rank applications by Points to be awarded will be determined impacts on existing manufacturing approximately January 31 for complete as follows: plants or other facilities that use similar and eligible applications received on or (i) If the borrower’s equity plus other feedstocks, 10 points will be awarded. before November 1 and by resources results in a debt-to-tangible (iii) If the feedstock is wood pellets, approximately July 31 for complete and net worth ratio equal to or less than 3 no points will be awarded under this eligible applications received on or to 1, but greater than 2.5 to 1, 8 points criterion. before May 1. will be awarded. (8) The potential for rural economic (1) All applications received on or (ii) If the borrower’s equity plus other development. If the project is located in before November 1 and May 1 will be resources results in a debt-to-tangible a rural area and the business creates jobs ranked by the Agency and will be

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competed against the other applications sources are available at the time of certification. The lender can request the received on or before such date. All selecting applications for funding or guarantee prior to construction, but applications that are ranked will be potential funding, the Agency may must still certify to all conditions in this considered for selection for funding for instead select the next highest scoring section. that application cycle. application for further processing ahead (a) For loans exceeding $150,000, the (2) When an application scored in of the higher scoring application. lender has certified its compliance with first set of applications is carried (g) Ranked applications not funded. A the Anti-Lobby Act (18 U.S.C. 1913). forward into the second set of ranked application that is not funded in Also, if any funds have been, or will be, applications, it will be competed against the application cycle in which it was paid to any person for influencing or all of the applications in the second set submitted will be carried forward one attempting to influence an officer or using its score from the first set of additional application cycle, which may employee of any agency, a Member of applications. be in the next fiscal year. The Agency Congress, an officer or employee of (f) Selection of applications for will notify the lender in writing. If an Congress, or an employee of a Member funding. Using the priority list created application has been selected for of Congress in connection with this under paragraph (e) of this section, the funding, but has not been funded commitment providing for the United Agency will select applications for because additional information is States to guarantee a loan, the lender funding based on the criteria specified needed, the Agency will notify the shall completely disclose such lobbying in paragraphs (f)(1) through (f)(3) of this lender of what information is needed, activities in accordance with 31 U.S.C. section. The Agency will notify, in including a timeframe for the lender to 1352. writing, lenders whose applications provide the information. If the lender (b) Where applicable, the lender must have been selected for funding. does not provide the information within certify that the borrower has obtained: (1) Ranking. The Agency will the specified timeframe, the Agency will (1) A legal opinion relative to the title consider the score an application has remove the application from further to rights-of-way and easements. Lenders received compared to the scores of other consideration and will so notify the are responsible for ensuring that applications in the priority list, with lender. borrowers have obtained valid, higher scoring applications receiving (h) Wage rates. As a condition of continuous, and adequate rights-of-way first consideration for funding. A receiving a loan guaranteed under this and easements needed for the minimum score of 55 points is required subpart, each borrower shall ensure that construction, operation and in order to be considered for a all laborers and mechanics employed by maintenance of a facility. guarantee. contractors or subcontractors in the (2) A title opinion or title insurance (2) Availability of budgetary authority. performance of construction work showing ownership of the land and all The Agency will consider the size of the financed in whole or in part with mortgages or other lien defects, request relative to the budgetary guaranteed loan funds under this restrictions, or encumbrances, if any. It authority that remains available to the subpart shall be paid wages at rates not is the responsibility of the lender to program during the fiscal year. less than those prevailing on similar ensure that the borrower has obtained (i) If there is insufficient budgetary construction in the locality as and recorded such releases, consents, or authority during a particular funding determined by the Secretary of Labor in subordinations to such property rights period to select a higher scoring accordance with sections 3141 through from holders of outstanding liens or application, the Agency may elect to 3144, 3146, and 3147 of title 40, U.S.C. other instruments as may be necessary select the next highest scoring Awards under this subpart are further for the construction, operation and application for further processing. subject to the relevant regulations maintenance of the facility and to Before this occurs, the Agency will contained in title 29 of the Code of provide the required security. For provide the borrower of the higher Federal Regulations. example, when a site is for major scoring application the opportunity to structures for utility-type facilities (such reduce the amount of its request to the §§ 4279.266–4279.278 [Reserved] as a gas distribution system) and the amount of budgetary authority available. lender and borrower are able to obtain § 4279.279 Domestic lamb industry If the borrower agrees to lower its adjustment assistance program. only a right-of-way or easement on such request, it must certify that the purposes site rather than a fee simple title, such The provisions of § 4279.175 do not of the project can be met, and the a title opinion must be provided. apply to this subpart. Agency must determine the project is (c) The minimum financial criteria, financially feasible at the lower amount. § 4279.280 Changes in borrowers. including those financial criteria (ii) If the amount of funding required All changes in borrowers must be in contained in the Conditional is greater than 25 percent of the accordance with § 4279.180, but the Commitment, have been maintained program’s outstanding budgetary eligibility requirements of this program through the issuance of the loan note authority, the Agency may elect to select apply. guarantee. Failure to maintain these the next highest scoring application for financial criteria shall result in an further processing, provided the higher § 4279.281 Conditions precedent to ineligible application. scoring borrower is notified of this issuance of loan note guarantee. (d) Each borrower shall certify to the action and given an opportunity to The loan note guarantee will not be lender that all laborers and mechanics revise their application and resubmit it issued until the lender certifies to the employed by contractors or for an amount less than or equal to 25 conditions identified in § 4279.181(a) subcontractors in the performance of percent of the program’s outstanding through (o) of subpart B of this part and construction work financed in whole or budgetary authority. paragraphs (a) through (h) of this in part with guaranteed loan funds (3) Availability of other funding section. If the lender is unable to under this subpart shall be paid wages sources. If other financial assistance is provide any of the certifications at rates not less than those prevailing on needed for the project, the Agency will required under this section, the lender similar construction in the locality as consider the availability of other must provide an explanation determined by the Secretary of Labor in funding sources. If the lender cannot satisfactory to the Agency as to why the accordance with sections 3141 through demonstrate that funds from these lender is unable to provide the 3144, 3146, and 3147 of title 40 U.S.C.

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Awards under this subpart are further (8) The results of the annual A of part 4279 of this chapter. The subject to the relevant regulations inspections conducted under paragraph Administrator may, with the contained in title 29 of the Code of (b) of this section; and concurrence of the Secretary of Federal Regulations. (b) For the life of the guaranteed loan, Agriculture, make an exception, on a (e) The lender certifies that it has conduct annual inspections. case-by-case basis, to any requirement reviewed all contract documents and or provision of this subpart that is not §§ 4279.291–4279.300 [Reserved] verified compliance with Sections 3141 inconsistent with any authorizing through 3144, 3146, and 3147 of title 40 PART 4287—SERVICING statute or applicable law, if the U.S.C., and title 29 of the Code of Administrator determines that Federal Regulations. The lender will ■ 3. The authority citation for part 4287 application of the requirement or certify that the same process will be continues to read as follows: provision would adversely affect the Federal government’s interest. completed for all future contracts and Authority: 5 U.S.C. 301; 7 U.S.C. 1989. any changes to existing contracts. §§ 4287.304–4287.305 [Reserved] (f) The lender certifies that the ■ 4. Part 4287 is amended by adding a proposed facility complies with all new subpart D to read as follows: § 4287.306 Appeals. Federal, State, and local laws and Subpart D—Servicing Biorefinery Section 4279.16 of subpart A of part regulatory rules that are in existence Assistance Guaranteed Loans 4279 of this chapter applies to this and that affect the project, the borrower, Sec. subpart. or lender activities. 4287.301 Introduction. § 4287.307 Servicing. (g) The lender will notify the Agency 4287.302 Definitions. in writing whenever there has been a 4287.303 Exception authority. Except as specified in paragraphs (a) change in the classification of a loan 4287.304–4287.305 [Reserved] through (m) of this section, all loans within 15 calendar days of such change. 4287.306 Appeals. guaranteed under this subpart shall comply with the provisions found in (h) The lender certifies that the 4287.307 Servicing. 4287.308 Fiscal Year 2009 and Fiscal Year §§ 4287.101 through 4287.180 of this borrower has provided the equity in the 2010 loan guarantees. chapter. If the Agency determines that project identified in the Conditional 4287.309–4287.400 [Reserved] the lender is not in compliance with its Commitment. Subpart D—Servicing Biorefinery servicing responsibilities, the Agency §§ 4279.282–4279.289 [Reserved] Assistance Guaranteed Loans reserves the right to take any action the Agency determines necessary to protect § 4279.290 Requirements after project § 4287.301 Introduction. the Agency’s interests with respect to construction. (a) This subpart supplements 7 CFR the loan. If the Agency exercises this Once the project has been part 4279, subparts A and C, by right, the lender must cooperate with constructed, the lender must: providing additional requirements and the Agency. Any cost to the Agency (a) Provide the Agency annual reports instructions for servicing and associated with such action will be from the borrower commencing the first liquidating all Biorefinery Assistance assessed against the lender. full calendar year following the year in Guaranteed Loans. (a) Periodic reports. Each lender shall which project construction was (b) The lender will be responsible for submit quarterly reports, unless more completed and continuing for the life of servicing the entire loan and will frequent ones are needed as determined the guaranteed loan. The borrower’s remain mortgagee and secured party of by the Agency to meet the financial reports will include, but not be limited record notwithstanding the fact that interests of the United States, regarding to, the information specified in the another party may hold a portion of the the condition of its Agency guaranteed following paragraphs, as applicable. loan. The entire loan will be secured by loan portfolio (including borrower (1) The actual amount of advanced the same security with equal lien status and loan classification) and any biofuels, biobased products, and, if priority for the guaranteed and material adverse change in the general applicable, byproducts produced in unguaranteed portions of the loan. The financial condition of the borrower order to assess whether project goals unguaranteed portion of a loan will since the last report was submitted. related to majority production are being neither be paid first nor given any (b) Default reports. Lenders shall met; preference or priority over the submit monthly default reports, (2) If applicable, documentation that guaranteed portion of the loan. including borrower payment history, for identified health and/or sanitation (c) Copies of all forms, regulations, each loan in monetary default using a problems have been solved; and Instructions referenced in this form approved by the Agency. (3) A summary of the cost of operating subpart are available in any Agency (c) Financial reports. The financial and maintaining the facility; office. Whenever a form is designated in report requirements specified in § 4287.107(d) apply except as follows: (4) A description of any maintenance this subpart, that designation includes predecessor and successor forms, if (1) The financial reports required or operational problems associated with under § 4287.107(d) may be specified in the facility; applicable, as specified by the field or National Office. either the loan agreement or the (5) Certification that the project is and Conditional Commitment; has been in compliance with all § 4287.302 Definitions. (2) The lender must submit to the applicable State and Federal The definitions and abbreviations Agency quarterly financial statements environmental laws and regulations; contained in § 4279.2 of subpart A and within 45 days of the end of each (6) The number of jobs created; in § 4279.202 of subpart C of part 4279 quarter; and (7) A description of the status of the of this chapter apply to this subpart. (3) The annual financial statements project’s feedstock including, but not required under § 4287.107(d) must be limited to, the feedstock being used, § 4287.303 Exception authority. audited financial statements and must outstanding feedstock contracts, The exception authority provisions of be submitted within 180 days. feedstock changes and interruptions, this paragraph apply to this subpart (d) Additional loans. Instead of and quality of the feedstock; instead of those in § 4279.15 of subpart complying with the additional

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expenditures provisions specified in (3) Lenders may not release collateral (2) Is able to service the loan in § 4287.107(e), the lender may make with a value of more than 10 percent of accordance with the original loan additional expenditures or new loans to the original loan amount at any one time documents; and a borrower with an outstanding loan and within any one calendar year (3) Acquires title to the unguaranteed guaranteed only with prior written without Agency concurrence. portion of the loan held by the original Agency approval. The Agency will only (4) Any release of collateral must not lender and assumes all original loan approve additional expenditures or new adversely affect the project’s operation requirements, including liabilities and loans where the expenditure or loan or financial condition. servicing responsibilities. will not violate one or more of the loan (g) Subordination of lien position. In (j) Default by borrower. The covenants of the borrower’s loan addition to complying with the provisions of § 4287.145 apply to this agreement. In all instances, the lender provisions found in § 4287.123, a subpart, except that: must notify the Agency when they make subordination must not extend the term (1) Instead of complying with any additional expenditures or new of the guaranteed loan. § 4287.145(b)(2), in the event a loans. Any additional expenditure or (h) Transfers and assumptions. deferment, rescheduling, loan made by the lender must be junior Transfers and assumptions shall comply reamortization, or moratorium is in priority to the loan guaranteed under with § 4287.134, except as specified in accomplished, it will be limited to the 7 CFR part 4279 except for working paragraphs (h)(1) through (h)(3) of this remaining life of the collateral or capital loans for which the Agency may section, and with paragraphs (h)(4) and remaining limits as contained in consider a subordinate lien provided it (h)(5) of this section. § 4279.232(a) of part 4279 of this is consistent with the conditional (1) In complying with § 4287.134(a), chapter; and provisions specified in § 4279.202(i)(1). eligible applicants shall be determined (2) If a loan goes into default, the (e) Interest rate adjustments. The in accordance with subpart C of part lender must provide the notification provisions of § 4287.112 apply, except 4279 of this chapter instead of subpart required under § 4287.145(a) to the for § 4287.112(a)(2). B of part 4279. Agency within 15 calendar days of (f) Collateral inspection and release. (2) Any new loan terms under when a borrower is 30 days past due on In lieu of complying with § 4287.113, § 4287.134(b) must be within the terms a payment or is otherwise in default of lenders must comply with the authorized by § 4279.232 of subpart C of the Loan Agreement. provisions of this paragraph. The lender part 4279 of this chapter instead of (k) Protective advances. All protective must inspect the collateral as often as § 4279.126 of subpart B of part 4279. advances made by the lender must necessary to properly service the loan. (3) Additional loans under comply with § 4287.156 and the The Agency must give prior approval for § 4287.134(e) will be considered as a provisions of paragraphs (k)(1) and the release of collateral, except as new loan application under subpart C of (k)(2) of this section. specified in paragraph (f)(1) of this part 4279 of this chapter instead of (1) Instead of the $5,000 specified in section or where the release of collateral subpart B of part 4279. § 4287.156(c), the Agency’s written is made under the abundance of (4) The Agency may charge the lender authorization is required when collateral provision of the applicable a nonrefundable transfer fee at the time cumulative protective advances exceed security agreement, subject to the of a transfer application. The Agency $100,000, unless otherwise specified by provisions of paragraph (f)(3) of this will set the amount of the transfer fee in the Agency at a lesser amount. section. Appraisals on the collateral an annual notice of funds availability (2) The lender must obtain written being released are required on all published in the Federal Register. Agency approval for any protective transactions exceeding $250,000 and (5) Assumption shall be deemed to advance that will singularly or will be at the expense of the borrower. occur in the event of a change in the cumulatively amount to more than The appraisal must meet the control of the borrower. For purposes of $100,000 or 10 percent of the requirements of § 4279.244. The sale or the loan, change of control means the guaranteed loan, whichever is less. release of collateral must be based on an merger of the borrower, sale of all or (l) Liquidation. Liquidations shall arm’s length transaction, unless substantially all of the assets of the comply with § 4287.157, except that, in otherwise approved by the Agency in borrower, or the sale of more than 25 complying with § 4287.157(d)(13), writing. percent of the stock or other equity lenders are to obtain an independent (1) Lenders may, over the life of the interest of either the borrower or its appraisal report meeting the guaranteed loan, release collateral with corporate parent. requirements of § 4279.244, instead of a cumulative value of up to 20 percent (6) The Agency will not approve any § 4279.144, when the outstanding of the original loan amount without change in terms that results in an balance of principal and accrued Agency concurrence (subject to the increase in the cost of the loan interest is $200,000 or more. provisions of paragraph (f)(3) of this guarantee, unless the Agency can secure (m) Determination of loss and section) if the proceeds generated are any additional budget authority that payment. In addition to complying with used to pay down secured debt in order would be required and the change § 4287.158, if a lender receives a final of lien priority or to buy replacement otherwise conforms with applicable loss payment, the lender must submit to collateral. regulations. the Agency an annual report on its (2) Release of collateral with a (i) Substitution of lender after collection activities for each unsatisfied cumulative value in excess of 20 percent issuance of the Loan Note Guarantee. account for 3 years following payment of the original loan or when the All substitutions of lenders must of the final loss claim. proceeds will not be used to pay down comply with § 4287.135 except that, secured debt in order of lien priority or instead of approving a new lender as a § 4287.308 Fiscal Year 2009 and Fiscal to buy replacement collateral, must be substitute lender using the provisions of Year 2010 loan guarantees. requested, in writing, by the lender and § 4287.135(a), the Agency may approve Any loan guarantee application that concurred by the Agency, in writing, in the substitution of a new lender if the has been submitted to the Agency under advance of the release. A written proposed substitute lender: this program prior to March 16, 2011 evaluation will be completed by the (1) Is an eligible lender in accordance may submit to the Agency a written lender to justify the release. with § 4279.202(b); request for an irrevocable election to

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have the guaranteed loan serviced in election must be made by October 1, §§ 4287.309–4287.400 [Reserved] accordance with this subpart. Such an 2011. Dated: January 31, 2011. Dallas Tonsager, Under Secretary, Rural Development. [FR Doc. 2011–2473 Filed 2–11–11; 8:45 am] BILLING CODE 3410–XY–P

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Part III

Department of Agriculture

Forest Service

36 CFR Part 219 National Forest System Land Management Planning; Proposed Rule

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DEPARTMENT OF AGRICULTURE compare with the proposed rule. The Staff, Forest Service, USDA, Mail Stop Agency will carefully consider all 1104, 1400 Independence Avenue, SW., Forest Service public comments in preparing the final Washington, DC 20250–1104. The final rule. rule and environmental impact 36 CFR Part 219 DATES: Comments must be received in statement, when completed, will also be RIN 0596–AC94 writing by May 16, 2011. The Agency available on the above Web site. will consider and place comments 2. Overview National Forest System Land received after this date in the record Management Planning only if practicable. Public meetings to A new Agency planning rule is discuss the proposed rule and draft proposed to guide land managers in AGENCY: Forest Service, USDA. environmental impact statement will be developing, amending, and revising ACTION: Notice of proposed rulemaking; held throughout the country during the land management plans for all units of request for comment. public comment period. A schedule of the National Forest System (NFS), meeting dates and further information is consisting of 155 national forests, 20 SUMMARY: The U.S. Department of grasslands and 1 prairie. The new Agriculture is proposing a new planning available on the planning rule Web site at http://www.fs.usda.gov/planningrule. planning rule must be responsive to the rule to guide land and resource challenges of climate change; the need management planning for all units of ADDRESSES: Submit comments through the public participation portal at http:// for forest restoration and conservation, the National Forest System (NFS) under watershed protection, and wildlife the National Forest Management Act of www.govcomments.com/. Alternatively, submit comments by addressing them to conservation; and the need for the 1976. The proposed rule sets forth sustainable provision of benefits, process and content requirements to Forest Service Planning DEIS, c/o Bear West Company, 132 E 500 S, Bountiful, services, resources, and uses of NFS guide the development, amendment, lands, including ecosystem services and and revision of land management plans UT 84010; or via facsimile to 801–397– 1605. Please identify your written sustainable recreation. It must provide a to maintain, protect, and restore NFS process for planning that is adaptive, lands while providing for sustainable comments by including ‘‘planning rule’’ on the cover sheet or the first page. science-based, and collaborative with multiple uses, including ecosystem ample opportunities for active and services, so that NFS lands continuously Alternatively, submit comments through the World Wide Web/Internet Web site effective public participation. The new provide ecosystem functions and planning rule must be clear, efficient, contribute to social and economic http://www.regulations.gov. All comments, including names and effective, and within the Agency’s sustainability. Planning under the capability to implement on all NFS proposed rule would be collaborative addresses, when provided, are placed in the record and are available for public units. It must meet requirements under and science-based with the responsible the National Forest Management Act inspection and copying. The public may official required to take the best (NFMA), as well as allow the Agency to inspect comments at http:// available scientific information into meet its obligations under the Multiple- contentanalysisgroup.com/fsrd/. account and provide opportunities for Use Sustained-Yield Act (MUSYA), the public participation throughout the FOR FURTHER INFORMATION CONTACT: Endangered Species Act, and the planning process. Ecosystem Management Coordination Wilderness Act, as well as other legal The proposed framework consists of a staff’s Assistant Director for Planning requirements. With stability in planning three-part learning and planning cycle: Ric Rine at 202–205–1022 or Planning regulations, national land management Assessment, development/revision/ Specialist Regis Terney at 202–205– planning can regain momentum, and amendment, and monitoring. The 1552. units would be able to complete timely phases of the framework are SUPPLEMENTARY INFORMATION: revisions that guide sustainable complementary and are intended to 1. Additional Documents Are Available management of NFS lands. create a feedback loop that allows the The vision for the proposed rule. Forest Service to adapt management to The following information is available The Forest Service mission is to changing conditions and to improve online at http://www.fs.usda.gov/ sustain the health, diversity, and plans based on new information and planningrule: (1) This proposed rule; productivity of the Nation’s forests and monitoring. This framework is intended (2) a draft environmental impact grasslands to meet the needs of present to move the Agency toward a more statement (DEIS) analyzing the effects of and future generations. The NFS responsive planning process that allows the proposed rule and alternatives to it; consists of 193 million acres of national the Agency to understand the (3) the Civil Rights Impact Analysis for forests and grasslands. Land landscape-scale context for this proposed rule; (4) the cost-benefit management plans provide a framework management, adapt management to analysis for this proposed rule; (5) for integrated resource management on changing conditions, improve summaries of the numerous roundtables NFS units, and guide project and management based on new information and public meetings held to date to activity decisionmaking on the unit. The and monitoring, and support an engage the public in the development of Forest Service planning rule serves as integrated and holistic approach to the proposed rule, and summaries of the the primary tool to ensure that land management that recognizes the input received thus far from comments management plans continuously interdependence of social, ecological, to the Notice of Intent and the public provide desired ecosystem functions, and economic systems. meetings; and (6) the Forest Service contribute to social and economic The Agency is requesting public directives on land management sustainability, are rooted in the best comment on the proposed rule and on planning developed for the 1982 available scientific information, and are the alternatives that are described and planning procedures, which may developed with public input and evaluated in the accompanying draft currently be used under the transition participation. environmental impact statement (DEIS). language of the 2000 rule. This The objective of this proposed rule is Readers are invited to comment on each information may also be obtained upon to guide the collaborative and science- section of the proposed rule and on how written request from the Director, based development, amendment, and provisions in the DEIS alternatives Ecosystem Management Coordination revision of land management plans that

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promote healthy, resilient, diverse, and The proposed rule would strengthen timber harvest, as required by the productive national forests and the role of public involvement in the NFMA. grasslands. The Agency’s goal is to planning process and provide numerous The proposed rule would create a create a planning framework that will opportunities for meaningful public two-tiered strategy for monitoring at the guide management of NFS lands so they participation and dialogue. The unit level and at a broader scale. are ecologically sustainable and proposed rule would require that the Monitoring would be a central part of contribute to social and economic best available scientific information be both content of plans and the planning sustainability, with resilient ecosystems taken into account and documented. process, allowing responsible officials to and watersheds, diverse plant and The planning process would take into test assumptions, track changing animal communities, and the capacity account other forms of knowledge, such conditions, measure management to provide people and communities as local information, national implementation and effectiveness in with a range of social, economic, and perspectives, and native knowledge. achieving desired outcomes, and feed ecological benefits now and for future Ideas, resources, and knowledge should new information back into the planning generations. This planning framework be shared with all interests, individuals, cycle so that plans and management can will help the Agency to provide clean and groups throughout the planning be changed as needed. water, habitat for diverse fish, wildlife, process. Finally, the proposed rule would and plant communities, and The planning process also builds an create a pre-decisional administrative opportunities for recreational, spiritual, understanding of the landscape-scale review process to provide individuals educational, and cultural sustenance. context for unit-level management. and groups with an opportunity to The rule proposes a framework for Assessments, in particular, are designed resolve issues before the approval of a adaptive management and planning and to create an understanding of plan, plan amendment, or plan revision. reflects key themes from the public, as conditions, trends, and stressors on-and- The History of Forest Planning and the well as experience gained through the off NFS lands in order to guide the Need for a New Planning Rule Agency’s 30-year history with land development of plans to manage management planning. The framework resources on the unit. The proposed rule The NFMA at 16 U.S.C. 1604 requires is intended to move the Agency toward has requirements in each phase for the Agency to have a planning rule a more adaptive system with more working with the public, partners, developed ‘‘under the principles of the frequent amendments that can keep landowners, other government agencies, Multiple-Use Sustained-Yield Act of plans current between revisions. Plans and Tribes and would require the 1960, that set[s] out the process for the will be revised at least every 15 years. responsible official to identify each development and revision of the land However, under the proposed rule, the unit’s unique roles and contributions to management plans, and the guidelines Agency expects plan amendments to be the local area, region, and Nation. and standards’’ (16 U.S.C. 1604 (g)). This done more frequently than they are The proposed rule would include requirement is fulfilled through a now. For example, as budgets and requirements for plan components. In planning rule, set out at Title 36, Code conditions on-the-ground change, the the face of changing environmental of Federal Regulations, Part 219 (36 CFR plan objectives may be amended every conditions such as climate change, Part 219), which sets requirements for 3 to 5 years. Alternatively, if new plans would include plan components land management planning and content information is learned about a to maintain or restore ecosystem and of plans. threatened and endangered species, watershed health and resilience; protect In 1979, the Department issued the plan standards and guidelines may be key ecosystem elements, including first regulations to comply with this updated more often. Some plans may water resources on the unit; and provide statutory requirement. The 1979 even be amended annually to reflect up- for plant and animal diversity. In doing regulations were superseded by the to-date information. so, responsible officials would take into 1982 planning rule, which has formed The proposed framework consists of a account the various stressors or impacts the basis for all existing Forest Service three-part learning and planning cycle: that could affect the presence of land management plans. (1) Assessment, (2) development/ ecological resources and their functions In 1989, the Agency initiated a revision/amendment, and (3) on the unit. comprehensive Critique of Land monitoring. The phases of the Plans would also include plan Management Planning, which identified framework are complementary and are components to contribute to social and a number of adjustments that were intended to create a feedback loop that economic sustainability. The proposed needed to the 1982 planning rule. The allows the Forest Service to adapt rule emphasizes integrated resource Critique found that the 1982 planning management to changing conditions and management so that all the relevant rule process was complex, had to improve plans based on new interdependent elements of significant costs, was lengthy, and was information and monitoring. sustainability are considered as a whole, cumbersome for the public to provide Throughout implementation of the instead of as separate resources or uses. input. The recommendations in the cycle, the Forest Service would: Planning would consider the full suite Critique and the Agency’s experiences (1) Assess conditions, stressors, and of multiple uses, including ecosystem with planning led to the Agency issuing opportunities on the NFS unit within services, energy, minerals, outdoor an advance notice of proposed the context of the broader landscape and recreation, range, timber, watershed, rulemaking for new regulations in 1991 identify any need for changes to a plan; wildlife and fish, and wilderness, to the and two proposed rules in 1995 and (2) Develop, Revise, or Amend land extent relevant to the plan area. Plan 1999. management plans based on the need components would be required to After working with a committee of for change in the plan; and provide for multiple uses, including scientists, the Department issued a final (3) Monitor to detect changes on the sustainable recreation and ecosystem rule in 2000 to revise the 1982 unit and across the broader landscape, services, and protect cultural and regulations. The 2000 revision of the to test assumptions underlying historic resources and specially planning rule described a new management decisions, and to measure designated areas (such as wilderness framework for NFS planning; made the effectiveness of management activity areas and wild and scenic rivers). Plans sustainability the foundation for NFS in achieving desired outcomes. would also guide the management of planning and management; required the

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consideration of the best available provisions to be in effect until a new need for a planning framework that scientific information during the planning rule is issued (74 FR 67062). allows the Agency to respond to new planning process; and set forth While the 2000 planning rule replaced challenges and management objectives requirements for implementation, the 1982 rule in the Code of Federal for NFS lands. The NFMA requires that monitoring, evaluation, amendment, Regulations, the transition section of the the Agency revise land management and revision of land management plans. 2000 rule allows units to use the 1982 plans ‘‘at least every 15 years.’’ The NFS However, a review in the spring of 2001 planning rule procedures for plan has 127 land management plans. found that the 2000 rule was costly, revisions and amendments until a new Currently, 68 plans are past due for plan complex, and procedurally burdensome. planning rule is issued. The Agency’s revision. Most plans were developed The results of the review led the expectation, based on experience, is that between 1983 and 1993 and should Department to issue a new planning rule those NFS units choosing to amend or have been revised between 1998 and in 2005 and a revised version again in revise plans during the development of 2008. The Agency must establish a 2008, but each of those rules was held this new rule will continue to use the stable planning rule that is consistent invalid by a Federal District Court on 1982 rule procedures until the new with the current science and creates a procedural grounds (Citizens for Better planning rule is issued. planning process that can incorporate Forestry v. USDA, 481 F. Supp.2d 1059 The 1982 planning rule procedures new knowledge as science continues to (N.D. Cal. 2007) (2005 rule); Citizens for have guided the development, evolve, allowing the Agency to protect, Better Forestry v. USDA, 632 F. Supp.2d amendment, and revision of all existing reconnect, and restore national forests 968 (N.D. Cal. 2009) (2008 rule)). Forest Service land management plans. and grasslands for the benefit of human Though committees of scientists were However, since 1982 much has changed communities and natural resources. created for the 1979 rule and 2000 rule, in our understanding of how to create a formal committee of scientists was not and implement effective land What the Agency Heard formed for this planning rule for several management plans. The body of science The Agency strongly believes that reasons. The Agency believes a that informs land management planning involving the public through a collaborative approach, involving as in areas such as conservation biology participatory, open, and meaningful many interests as possible, including and ecology has advanced considerably process is the best way to develop this the scientific community, is best for since 1982, as has our understanding of planning rule. This belief has, and developing the planning rule. Science is the values and benefits of NFS lands, continues to be, reflected in the one source of understanding and and the challenges and stressors that unprecedented participatory process knowledge that informs planning and may impact resources on the unit created to develop this proposed rule. decision-making. Much of planning also (including climate change). The Agency is working to make the involves consideration of public values Because planning under the 1982 rule process accessible through the use of in land management. This proposed rule is often time consuming and updated methods of involvement such is very much a science-based rule and cumbersome, it has been a challenge for as new media and has engaged in efforts establishes a strong requirement for units to keep plans current. Instead of to involve diverse groups and interests. consideration and use of best available updating plans as conditions on the The development of this proposed scientific information in planning. The ground change, units often wait and rule has been informed by the 26,000 proposed rule is based on some of the make changes all at once during the comments made on the Notice of Intent major recommendations from the 1999 required revision process every 15 (NOI); a Science Forum with panel Committee of Scientists report: years. This can result in a drawn-out, discussions from 21 scientists; regional Sustainability, public participation and difficult, and costly revision process. and national roundtables held in over collaboration, adaptive management, Plans in the interim lose much of their 35 locations and attended by over 3,000 monitoring and evaluation, the role of utility because they no longer reflect the people; national and regional tribal science, and the objection process; all reality on the ground. The focus of land roundtables; feedback from Forest concepts that were recommendations of management activity has also changed. Service employees; and over 300 that report. In addition, the Agency has Much of the 1982 rule focused on comments on the planning rule blog. reached out to the science community creating plans that would mitigate Summary reports of this input are in developing this proposed rule. An negative environmental impacts from available at: http://fs.usda.gov/ open, public meeting of invited resource extraction activities. The planningrule. A separate summary of scientists occurred in Washington, DC, protective measures in the 1982 rule the tribal consultation and participation March 29–30, 2010, to create a dialogue were important, but now the Agency and of how the proposed rule reflects about the latest science relevant to the needs plans that do more than mitigate tribal input is in a special section of this planning rule. Additionally, scientists harm. The Agency needs a planning preamble called ‘‘Consultation with have been involved in the development process that helps units identify their Indian tribal governments.’’ and review of the proposed rule from unique roles in the broader landscape The participatory process to develop the beginning and will continue to be and create land management plans to this proposed rule began with a new involved throughout the rule making guide proactive contributions of the unit approach to the NOI. While an NOI process. and of management to ecological, social, typically involves sending out a detailed Because it was the last promulgated and economic sustainability. proposed action for comment, the rule to take effect and not to have been The instability created by the history Agency wanted to involve the public in set aside by a court, the planning rule of the planning rule has had a crafting the proposed rule from its very issued in 2000 legally governs the significant negative impact on the beginning. The December 2009 NOI for development, amendment, or revision of Agency’s ability to manage the NFS and the proposed planning rule therefore plans until a new planning rule is on its relationship with the public. At asked for public feedback on a set of issued. On December 18, 2009, the the same time, the vastly different eight principles that could be used to Department reinstated the 2000 rule in context for management and improved guide future land management the Code of Federal Regulations as an understanding of science and planning. The notice resulted in a broad interim measure and made technical sustainability that has evolved over the discussion of what should be in a amendments to update transition past three decades creates an urgent proposed rule and led to a robust

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dialogue with the public over the course that contribute to social and economic and revising land management plans for of the national, tribal, regional, and opportunities. the NFS in a national planning rule. The Web-based public meetings. This While no rule can satisfy the entire NFMA requires the Agency to have a discussion has allowed the Agency to spectrum of opinion, the Forest Service planning rule developed under the craft a proposed rule that more fully has worked to find a balance between principles of the Multiple-Use responds to public comments and these different needs and perspectives Sustained-Yield Act of 1960 (MUSYA). concerns. and has developed a proposed rule that The planning rule sets requirements for While input from the public, Tribes, is practical, workable, based on science, land management planning and content and agency employees covered a broad and reflective of public and agency of plans and applies to all units in the range of opinion, there were areas of values and input. The Agency is now NFS. consistent shared support. Broad eager to receive public feedback. The proposed planning rule is support exists for a simple but effective Readers should carefully examine and designed to guide the collaborative and planning process; a planning rule consider the information in this science-based development, designed to persist through changing preamble and proposed rule, as well as amendment, and revision of land times; up-front collaboration in each of the alternatives that are management plans that would promote developing proposals for plan revisions; described and evaluated in the healthy, resilient, diverse, and creating plans that focus on NFS units, accompanying draft environmental productive national forests and but also reflect consideration of the impact statement (DEIS). In particular, grasslands. These plans would guide landscape beyond unit boundaries; and Alternatives D and E explore substitute management of NFS lands so that they a strong monitoring plan component or additional rule language that reflects are ecologically sustainable and that improves accountability and comments received by the Agency contribute to social and economic encourages a mutual learning process during the public engagement process sustainability. Plans would guide with cooperators and partners. and the comment period for the notice management to maintain and restore Additional themes that arose during of intent. Suggestions explored and resilient ecosystems and watersheds and public participation included the analyzed in these alternatives include diverse plant and animal communities. importance of public involvement and different approaches to rule text on Plans would also guide management to working with Tribes, the importance of management of water resources and provide people and communities with a working with State and local watersheds, collaboration, climate range of social, economic, and governments and other Federal agencies change adaption and mitigation, ecological benefits for the present and in land management planning; the monitoring, and planning for services into the future, including clean water; importance of providing for sustainable that connect people to the unit, like habitat for fish, wildlife, and plant recreation; the importance of creating a conservation education and volunteer communities; and opportunities for rule that meets the multiple use opportunities. Based on the public’s recreational, spiritual, educational, and mandate of MUSYA; and the need for an continued feedback, the Agency will cultural sustenance. The proposed rule is designed to efficient plan amendment and revision consider substituting or adding specific create a collaborative and science-based process that can keep pace with provisions on these subjects for planning process so that plans and their changing conditions. inclusion in the final rule. amendments reflect public values and There were also broad areas of The Agency invites comments on disagreement that emerged from the the best available scientific information. each section of the proposed rule and on collaborative process. One point of It is intended to ensure that managers how provisions in the DEIS alternatives tension was how to balance the need for understand the role and contribution of compare with the proposed rule. The national consistency with the need for their units and the context for Agency will carefully consider all local flexibility. Some people want a management within the broader public comments in preparing the final rule that is streamlined and only landscape. It is also designed to rule. includes direction on meeting the facilitate adaptation, creating a feedback minimum requirements of the NFMA, 3. Section-by-Section Explanation of the loop to allow responsible officials to so that local units have more flexibility Proposed Rule respond to new information and in how their plan is developed and in The following section-by-section changing conditions. Comments from and discussions with what it needs to contain. At the other descriptions are provided to explain the the public as part of this rule-making end of the spectrum, others want a rule approach taken in the proposed rule to that is highly prescriptive and includes effort revealed growing concern about a NFS land management planning. The detailed national standards and variety of risks and stressors impacting proposed rule would create an adaptive processes. resources, services, benefits, and uses framework based on science and public Another major area of disagreement on NFS lands. Issues included, for participation to guide unit-level land was how the planning process should example: Climate change; insects and management planning for the NFS with consider and balance the multiple uses disease; recreation, timber, and shifts in a focus on integrated management of all of the NFS, as well as local versus other local demands and national forest resources. The overarching national and regional interests. Many market trends; population growth and objective of this proposed rule is to people asked for a rule that emphasizes other demographic shifts; water supply move all NFS units toward social, one resource area over another or protection; and other ecosystem support economic, and ecological sustainability. prioritizes the needs of local services. Addressing these types of communities over the needs and desires Subpart A—National Forest System issues, risks, and contingencies requires of people who live further from NFS Land Management Planning a larger landscape perspective, lands. Others asked for a rule that information from a broader spectrum of Section 219.1 Purpose and requires plans to include direction for sources and users, and a framework that Applicability only restoration and preservation of can facilitate adaptation. ecological conditions, while others This section states that the purpose of Questions about multiple use and sought a rule that provides for and Subpart A is to set out the planning ecosystem services came up in the emphasizes a full array of multiple uses requirements for developing, amending, collaborative process for the rule.

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Multiple use management is well Section 219.2 Levels of Planning and several of them using watersheds to established in law, policy and the Responsible Official organize planning. The proposed rule Agency mission. ‘‘Ecosystem services’’ is would allow for this to occur, and in Levels of Planning a term that is used today to describe § 219.7, would require identification of many consumptive and non- Planning occurs at three levels— priority watersheds for restoration. consumptive uses, as well as traditional national strategic planning, NFS unit However, on some units, watershed and non-traditional uses, that people planning, and project or activity scale planning might not be appropriate associate with national forests. In the planning. Section 219.2 of the proposed or needed, such as on small NFS units proposed rule we use the phrase rule describes these levels of agency or on units with highly intermixed ‘‘multiple uses, including ecosystem planning and identifies specific ownerships. Some units that are services’’ in certain places to show an attributes and requirements for unit- influenced by disturbance regimes that association between the terms so both level planning. The first level is national are not defined by watershed are recognized in the rule and within strategic planning. At the second level boundaries may choose other ecological our statutory authority as part of land of planning, land management plans are units on which to organize planning. management planning. The management established for administrative units of This approach is intended to allow the of the multiple uses described by the the NFS (typically an individual forest, responsible official to determine how MUSYA of 1960 (outdoor recreation, grassland, or prairie although in some planning on the unit is best organized range, timber, watershed, and wildlife instances, a plan will cover more than based on the resources and desired and fish purposes) has broader one forest or grassland). Land conditions on the unit. application in today’s context. management plans (also called forest The new requirements in the plans, or grassland plans), establish Responsible Official proposed rule should increase agency requirements and constraints for on-the- The proposed rule identifies the unit and unit capacity for adapting ground management decisions; they do supervisor as the responsible official for management plans to new and evolving not authorize projects or activities and unit-level plans. This is a change from information about risks, stressors, do not commit the Forest Service to take the 1982 rule, which identified the changing conditions, and management any action. The proposed rule would regional forester as the responsible effectiveness. Agency intent is for provide guidance for this level of official. This change is intended to responsible officials to use the proposed planning. The third level of planning facilitate and encourage active public planning framework to keep plans and includes development of on-the-ground participation by ensuring that the management activity current, relevant, projects and activities, which must be person sitting at the table during the and effective. consistent with the unit’s land planning process is the decisionmaker. This section of the proposed rule also management plan. The environmental During public participation to would require the Chief of the Forest effects of decisions made at the unit and develop the proposed rule, the Agency Service to establish procedures for project levels are analyzed and there are heard from members of the public who planning in the Forest Service opportunities for public involvement at felt that empowering the supervisor Directives System that provide further both levels. with decisionmaking authority would explanation of the methods to Some members of the public strengthen the collaborative process, implement the requirements of the rule. suggested the Forest Service undertake while others preferred the current The Forest Service Directives System is two additional scales of planning, one at assignment of authority to the regional designed to contain implementation a regional scale between national and forester because of concerns that the requirements and protocols that are unit scales and another at a finer scale unit supervisor may be more inclined to more detailed than the rule and provide such as a ranger district or watershed. place too much of an emphasis on local guidance and direction on how to The 1982 rule required the preparation needs and concerns without being implement the rule. Directives can be of a regional guide and a planning sufficiently responsive to national needs updated as protocols and methods process for the development of that or issues of regional consistency. In the evolve and improve over time. guide. The proposed rule does not proposed rule, the Agency tried to Some people wanted to see very include a requirement for regional create a balance by ensuring that detailed requirements in the rule, such planning. After several years of planning would not happen in isolation. as monitoring methods and protocols, developing and using regional guides, There are a number of places in the while others emphasized the need to the Agency found that they added an proposed rule that call for coordination keep the rule simple so it would endure additional and time-consuming level of with other staff in the Agency, including and could be implemented across planning that often delayed progress of the appropriate research station different landscapes within the NFS. unit planning. Regional plans also director. The regional forester and This section would ensure that the tended to remain static and did not regional office planning and resource Agency would establish the needed change as new information or science specialists would continue to be detail in the Directives for effective became available. Furthermore, most involved by providing an additional implementation of the planning rule, major issues that emerged regionally, level of oversight, including reviewing while allowing rule language to remain such as issues regarding lynx or grizzly draft and final products developed strategic, relevant, and useful even as bears, were ultimately dealt with during the planning process and conditions change. directly in the individual unit plans, participating in the development of Finally, this section makes clear that usually through simultaneous those products. Regional office oversight the proposed rule would not affect amendment of multiple unit plans. would help to provide consistency in treaty rights or valid existing rights, and The proposed rule also does not interpretation and implementation of that plans must comply with all include a requirement for finer scale the planning rule and other agency applicable laws and regulations. It also planning (district or watershed scale) planning requirements on units within includes direction for how responsible below the unit plan level. In many the region. officials must treat certain information cases, units are building this kind of The proposed rule also specifically that is culturally sensitive to an Indian planning into the development of the would allow the option for a higher- Tribe or Tribes. management plan for the unit, with level official, such as a regional forester,

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to choose to serve as the responsible scientific method, which includes the best scientific information that is official. For example, a higher-level clearly stated questions, well designed already available. Thus, while an official could assume responsibility for investigations and logically analyzed assessment report or monitoring decisionmaking when planning issues results, documented clearly and evaluation report may identify gaps or apply to multiple units. subjected to peer review. However, in inconsistencies in data or scientific other circumstances the best available Section 219.3 Role of Science in knowledge, this rule would not impose scientific information for the matter Planning the affirmative duty that the CEQ under consideration may be information regulation applies to EISs, that is, to This section of the proposed rule from analyses of data obtained from a engage in new studies or develop new addresses the role of science in planning local area, or studies to address a information, or to document that the and would require that the responsible specific question in one area. In other costs of seeking new information are official take into account the best circumstances, the best available prohibitive. available scientific information. This scientific information could be the During the public participation requirement would apply throughout result of expert opinion, panel process to create this proposed rule, the planning process. The intent of this consensus, or observations, as long as questions were raised as to what, if requirement is to ensure that the the responsible official has a reasonable anything, the rule should say about the responsible official has access to and basis for relying on that information. role of science in decisionmaking. Some considers the best available scientific Regardless of the source of the suggested that science should inform information in order to make informed information, the Office of Management planning but not have a dominant or decisions when developing, revising, and Budget (OMB) Information Quality exclusive role in the decisions. Others and amending land management plans; Bulletin on Peer Review may apply. wanted more structure or national that social, economic, and ecological The proposed rule would require the standards. Many expressed the desire science would be appropriately responsible official to document how that the input of non-scientists be used interpreted and applied throughout the the best available scientific information to inform agency decisionmaking as planning process; and that the best was taken into account in the many of the issues and problems have available scientific information would assessment report, the plan decision social and economic aspects that cannot increase the understanding of risks and document, and the monitoring be resolved through scientific or uncertainties and improve assumptions evaluation reports. Through this technical solutions. There were differing made in the course of decisionmaking. requirement, the Agency seeks to ensure opinions on how science should be used This proposed rule emphasizes the science is considered throughout the to resolve differences in value use of science as an important source of planning process and decisions are judgments and how science and public information for decisionmaking with the well-thought-out and reasoned. This participation should be integrated and intent that the best available scientific requirement would also provide weighted in the decisionmaking information be used to inform, but not transparency and an explanation to the process. The Agency believes the dictate, decisions. The term ‘‘taking into public as to how science was used and proposed rule would strike the account’’ is used because this term how the responsible official arrived at appropriate balance for using science as expresses that science is just one source important decisions. an integral and foundational, but not the of information for the responsible It is important to note that the Agency sole, influence on planning. official and only one aspect of is already required to incorporate The Forest Service Directive System decisionmaking. Land management science into decisionmaking. The would contain further detail on how to planning is complex and decisonmakers Agency has a longstanding practice of document the consideration of science must consider such things as balancing considering relevant factors and including identifying the sources of data competing values or competing explaining the bases for its decisions. such as peer reviewed articles, scientific ecological concerns. There also may be Including this section in the proposed assessments, or other scientific competing scientific perspectives or rule, with its explicit requirements for information, and when applicable, the uncertainty in the science. While the determining and documenting the Forest Services’ information quality appropriate interpretation and consideration of the information most guidelines and OMB’s Information application of science provides the accurate, reliable, and relevant to Quality Bulletin on Peer Review. foundation for planning, the Agency making planning decisions, will help to Direction about science reviews may be recognizes that other forms of ensure a consistent approach across the found in Forest Service Handbook information, such as local and National Forest System. However, this 1909.12—Land Management Planning, indigenous knowledge, public input, section is not intended to impose a Chapter 40—Science and Sustainability. agency policies, results of monitoring higher standard for judicial review than and the experience of land managers the existing ‘‘arbitrary and capricious’’ Section 219.4 Requirements for Public must also be taken into account. standard. Participation This proposed rule imposes a duty on The requirements of this section of the responsible official to review the the proposed rule are also separate from Participation Opportunities available scientific information and those of NEPA (40 CFR 1502.22(b)), The proposed rule seeks to ensure determine which is the best, that is, the which requires the responsible official that the Forest Service provides most accurate, reliable, and relevant to seek out missing or incomplete meaningful opportunities for the public information for the particular matter scientific information needed for an to participate early and throughout the under consideration. The responsible environmental impact statement, unless planning process. This section lists the official does not have unfettered the costs of doing so are prohibitive. specific points during the planning discretion in making this determination, This section of the proposed rule does process when opportunities for public but must demonstrate and document not change that requirement. However, participation would be provided. In how the determination was made. the requirements proposed in section order to meet these requirements, the In some circumstances, the best 219.3 apply throughout the planning responsible official must be proactive available scientific information would process, and are focused on ensuring the considering who may be interested in be that which is developed using the responsible official takes into account the plan, who might be affected by a

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plan or change to a plan, and how to shared vision for the unit, as well as an obligations and responsibilities to encourage various constituents and understanding of how and why Indian Tribes and Alaska Native entities to engage. Additionally, the planning decisions are made. People Corporations in the planning process. proposed rule would require the expressed the desire to participate at a The proposed rule recognizes the responsible official to use collaborative number of points in the planning government-to-government relationship processes when possible, to take into process, including, but not limited to, that creates a unique role for federally account the various roles and crafting the proposed plan revision or recognized Tribes. As required by responsibilities of participants and the plan amendment and monitoring unit Executive Order 13175, government-to- responsibilities of the Forest Service progress toward meeting the plan government consultation would itself, and to create a process that is desired conditions, objectives, or other continue throughout the development of open and accessible. plan components. plans separately, and in addition to, the To develop the public participation The proposed rule specifically would process for public participation. The requirements of this proposed rule, the require the responsible official to Agency also seeks to involve Tribes and Forest Service used the Council on encourage participation by the public, Alaska Native Corporations throughout Environmental Quality (CEQ) Tribes, governments, scientists, and the planning process and the proposed publication: Collaboration in NEPA—A other individuals by sharing knowledge, rule would require the responsible Handbook for NEPA Practitioners at: ideas, and resources. It is also expected official to encourage their participation http://ceq.hss.doe.gov/ntf/ that the responsible official would rely in the public process. The responsible Collaboration_in_NEPA_Oct_2007.pdf, on proactive, contemporary tools, such official would work with Tribes and (the rule definition of collaboration, at as the Internet, to encourage widespread Alaska Native Corporations to seek out § 219.19, references the CEQ handbook). participation. native knowledge, including The CEQ handbook describes a Because the make-up and dynamics of information about land ethics, cultural spectrum of engagement, including the the communities surrounding each issues, and sacred and culturally categories of inform, consult, involve, planning area differ, and because the significant sites as an additional and collaborate. Each of these categories level of interest in decisionmaking may opportunity for information sharing and is associated with a set of tools, from vary, based on the scope and potential dialog that would augment the traditional activities such as notice and impact of the decision being consultation process. comment on the inform end of the contemplated, the responsible official Several Tribes and Alaska Native spectrum, to consensus building or a would need the flexibility to select the Corporations are concerned about Federal advisory committee on the public participation methods that would keeping information confidential to collaborative end of the spectrum. best meet the needs of interested people protect sites from vandalism. Because ‘‘collaboration’’ is often and communities. Some people wanted Responsible officials will protect associated with only those activities on a rule that contains thorough process confidentiality regarding information one end of the public engagement and method requirements detailing how given by Tribes in the planning process spectrum, the rule uses the term ‘‘public each unit would conduct public and may enter into agreements to do so. participation’’ to clarify the level of participation. Others wanted the Participation in a collaborative process public engagement that could be used in responsible official to have full would be voluntary and would the planning process. Every planning discretion for how public participation supplement, not replace consultation. process would involve traditional would be conducted. The Agency is The Agency heard from Tribes and scoping and public comment; in proposing a balanced approach that Alaska Native Corporations that the rule addition, the responsible official would would require the responsible official to should clearly state how the rights and determine the combination of additional engage a diverse array of people and interests of Tribes and Alaska Native public participation strategies that communities throughout the planning Corporations would be provided for in would best engage a diverse set of process but would allow flexibility in the planning process. The comments people and communities in the the methods. emphasized the obligations the Forest planning process. Many people discussed the need for Service has to honor the exercise of It is important to clarify that while the Forest Service to make a stronger treaty rights on NFS lands and the need this section of the rule commits the effort to engage groups and communities to fully recognize the government-to- Agency to public participation that traditionally have been government relationship that exists requirements and encourages underrepresented in land management between the Federal Government and collaboration, the Forest Service would planning. This is reflected in the federally recognized Indian Tribes. retain final decisionmaking authority requirement that responsible officials Requirements in this section of the and responsibility throughout the encourage the participation of youth, proposed rule, as well as § 219.1, seek planning process. low-income populations, and minority to respond to those comments. A successful planning process must populations in the planning process and Coordination With Other Public be socially inclusive in order to in the requirements to be proactive to Planning Efforts adequately reflect the range of values, use contemporary tools to reach out to needs, and preferences of society, and the public and consider the accessibility Some local governments also asked especially those who may be affected by of the process to interested groups and that the planning rule require land land management planning. The individuals. The Agency recognizes the management plans to strive for outcomes of public participation can need to engage a full range of interests consistency with local government include a greater understanding of and individuals in the planning process plans. The proposed rule would require interests underlying the issues, a shared and the responsibility to promote that during the plan development or understanding of the conditions on the environmental justice. plan revision process, the responsible unit and in the broader landscape that official would review the planning and provide the context for planning, the Tribal Participation in Land land use policies of federally recognized development of alternatives that could Management Planning Indian Tribes and of other Federal, accommodate a wide range of interests, The proposed rule also acknowledges State, and local governments and and the potential development of a the Federal Government’s unique document the results of the review in

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the draft EIS. The review would include Act (NEPA) procedures and would holistic approach to management assessments conducted by other Federal culminate in a plan decision. In the recognizing the interdependence among agencies, statewide forest resource monitoring phase, the responsible all parts of the ecosystem including the assessments, community wildfire official would implement a monitoring communities (biotic and human) and protection plans, or state wildlife action plan informed by the assessment and systems (functions and values) that are plans. The review would consider the developed as part of the plan, revision, part of each forest. objectives of federally recognized Indian or amendment. This phase would give Tribes, and of other Federal, State, and managers data to evaluate management Section 219.6 Assessments local governments, as expressed in their actions and measure effectiveness, test This section sets out both process and plans and policies, and would assess the assumptions, track changing conditions, content requirements for assessments. compatibility and interrelated impacts and make adjustments to both projects Assessments are intended to provide a of these plans and policies. The review and to the land management plan as solid base of information and context for would include a determination of how needed. plan decisionmaking. The responsible each Forest Service plan should address This framework would also guide official would have discretion to set the the impacts identified or how each plan land managers in working with the scale and scope of the assessment but might contribute to joint goals. public and partners before, during, and would engage the public early and Requiring land management plans to after plans are written, offering would encourage participation in the be consistent with local government participation opportunities to partners assessment process. The content of plans; however, would not allow the and interested parties throughout the assessments would be used to develop flexibility needed to address the diverse planning process. An open and new plans and plan revisions, to management needs on NFS lands and participatory approach for each phase of develop monitoring questions, and to could hamper the Agency’s ability to the framework is intended to ensure provide a feedback loop. The scope and address regional and national interests planning efforts are well understood; scale of an assessment could be on Federal lands. In the event of conflict informed by public knowledge and comprehensive, such as those for a with Forest Service planning objectives, opinion; and responsive to ecological, revision, or they could be narrow, such consideration of alternatives for social, and economic conditions that as those for an amendment focused on resolution within the context of may be impacted by management on the one issue. achieving NFS goals or objectives for the unit. Responsible officials would use unit would be explored. The approach described in the proposed framework responds to the assessments to determine the unique Section 219.5 Planning Framework public’s stated desire for participation roles and contributions of the unit This section provides an overview of throughout land management planning. within the context of the broader a proposed new framework for land The assessment phase would allow for landscape as well as the need to change management planning that would early public participation—well before a the plan. Assessments should provide require a three-part learning and proposed action—so that stakeholders useful information to the responsible planning cycle: assessment, could engage in joint fact-finding and official to develop plan components and development/revision/amendment, and develop a mutual understanding of the other content for a new or revised plan, monitoring. This new framework is interconnections among social, to identify gaps in needed information science-based and would provide a economic, and ecological communities that might be filled by a monitoring blueprint for the land management and systems. The development/ program, to identify changing process, creating a structure within revision/amendment element of the conditions that the Agency might need which land managers and partners framework responds to the public desire to track, or to identify assumptions that could work together to understand what to help develop and provide meaningful should be tested later. is happening on the land, revise input to proposals for land management Process Requirements management plans to respond to plans. The monitoring part of the existing and predicted conditions and framework responds to stakeholder’s This section of the proposed rule needs, and monitor changing conditions desires for a systematic, deliberate, would require an assessment prior to and the effectiveness of management monitoring approach that can inform, plan revision or development. The actions to provide a continuous and be informed, by other monitoring responsible official would reach out to feedback loop for adaptive management. efforts relevant to management on the the public, Tribes, Alaska Native In the assessment phase, the unit. Both stakeholders and the Agency Corporations, other Federal agencies, responsible official would conduct a recognize the potential efficiencies of a States, local governments, and scientists review of conditions on the ground and uniform monitoring approach and hope to start the assessment and help identify in the context of the broader landscape, to increase information sharing and the questions and issues to be using available ecological, social, and learning opportunities. considered. The responsible official economic data to the extent possible. The proposed framework embraces would also be required to coordinate The assessment phase would lead to the adaptive management in planning and with the regional forester, and agency identification of a potential need to reflects key themes heard from the staff from State and Private Forestry, change the unit’s plan. In the public, as well as experience gained Research and Development, as well as development, revision, or amendment through the Agency’s 30-year history other governmental and non- phase, the responsible official would with land management planning. The governmental partners to consolidate work with other government agencies, new proposed framework is intended to existing information and develop Tribes, and the public to use the establish a more responsive and agile strategies for satisfying any additional information gathered in the assessment process that would allow the Agency to information needs. Early engagement phase to shape a proposed action that adapt management to changing with a diverse set of interests is needed would respond to the need for change. conditions and improves management to create an accurate depiction of the This process would include scoping and based on new information and issues affecting the plan area and a solid public comment in accordance with monitoring. As proposed, the framework base of understanding for any changes agency National Environmental Policy would support a more integrated and needed to the plan.

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This section of the proposed rule be no need for an assessment. In other for consideration of alternatives during would require the responsible official to cases, the assessment would focus on an a public comment period. By crafting a document the assessment in a report or issue or question that only affects a proposed plan with public set of reports. To bring transparency and portion of the plan area. In such a case, participation, it is expected that accountability to the assessment the scope of the assessment would be meaningful alternatives would be process, the reports would be available narrow and scale would be small. In rapidly developed and evaluated in the to the public. The report, or set of other cases, particularly for complex EIS. The environmental analysis should reports, would be included in the issues that cross unit boundaries, the be focused and the responsible official planning record and document how the responsible official could conduct a should reach a decision in a timely relevant best available scientific more comprehensive assessment for an manner. information was taken into account. amendment. As part of the process for developing Within the report, the responsible a proposal, this section would require Section 219.7 Plan Development or official would identify how a new plan the responsible official to, at minimum, Plan Revision should be proposed or identify the review information from the assessment. potential need to change an existing This section sets out requirements for This includes consideration of plan based on the assessment. how to develop a new plan or revise an conditions, trends, and stressors that existing plan. This section has two affect plan components as well as the Content Requirements primary topics: (1) The process for identification of the presence and value At a minimum, the content of developing or revising plans and (2) the of resources on the unit. The assessments for revisions and new plans plan, which includes plan components responsible official would also assess would provide information to support and other content in the plan. Plans and potential wilderness areas, eligible wild development of plan components that plan revisions provide direction and and scenic rivers, suitability of areas for meet the substantive requirements of guidance and management for the unit resource management, and the quantity other rule provisions such as as a whole. Plan revisions are required of timber that can be removed in sustainability (§ 219.8), diversity every 15 years under the NFMA. Most accordance with NFMA requirements. (§ 219.9), multiple uses (§ 219.10), and plans would be revised in the 15-year The proposed plan would identify the timber requirements based on the period. However, the responsible questions for the monitoring plan and NFMA (§ 219.11). In order that planners official has the discretion to determine potential other content in the plan. have sufficient information to meet the at any time that conditions on a unit These requirements are designed to requirements set out in sections 219.8 have changed significantly such that a form a basis for developing plan through 219.11, assessments would plan must be revised. A plan revision components and content that would include information on existing before the 15-year requirement has been meet the requirements set forth in this conditions, trends, and stressors, both rare in the past, and is expected to be proposed rule. on and off the unit, which might impact rare in the future. Many people have asked that the rule resources or ecological, social, or A plan revision is considered an streamline planning; that it not include economic sustainability. entirely new plan even if it uses much detailed processes and methods that An assessment is expected to use of the same direction and guidance as may rapidly become outdated. By existing information and be conducted the previous version. conducting an assessment using a rapidly in order to respond to changing collaborative approach prior to starting conditions. Existing information may Process Requirements a new plan or plan revision and by come from sources inside or outside the The responsible official would begin working with the public to develop a Forest Service, such as assessments by notifying the public of the start of a proposal for a new plan or plan conducted by other Federal agencies, process to draft a proposed plan. That revision, the Agency expects that the statewide forest resource assessments, proposal would be informed by the actual preparation of a plan would be community wildfire protection plans, or assessment(s) that would identify the much less time consuming. These state wildlife action plans. Existing need to change the plan as well as process requirements incorporate the information would be gathered and information about the unique roles of best practices learned from the past 30 synthesized for relevant ecological, the unit in the context of the broader years of planning and the Agency economic, and social conditions and landscape. believes these practices should be trends within the context of the broader Drafting a proposed plan with public carried out in an efficient and effective landscape. However, nothing in this participation is a change from current manner. section would restrict the responsible planning processes. Typically, the Plan Components official from gathering new information responsible official appoints an to address the issues or questions for the interdisciplinary team to draft a This section sets out proposed assessment. proposed plan and then publishes it for requirements for plan components. public comment. Under the proposed Every plan would contain five plan Assessments for Plan Amendments rule, the public would have components: desired conditions, Because plan amendments vary in opportunities to shape the proposed objectives, standards, guidelines, and their complexity, this section provides a plan while it is being drafted, however, suitability of areas. Plans could also flexible approach to preparing an these opportunities are not intended to contain goals, an optional plan assessment for a plan amendment. Plan prejudge the outcome of the NEPA component. These plan components are amendments would be based on a process. This process change responds based on techniques widely accepted documented need for change but do not to the desire expressed during the and practiced by planners, both inside require an assessment. In some cases, collaborative process for this proposed and outside of government. Every plan the information from monitoring and rule that the public be involved early, would contain at least one of each of the evaluation would identify the need for before proposed plans are already required five plan components—these change, or the need may arise from an drafted. are the central parts of a plan. Projects unexpected proposed use such as a new The process would include the and activities would be required to be permit application. Thus, there would preparation of an EIS with opportunities consistent with plan components.

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Except to correct clerical errors, plan Desired condition: First would be a analysis consistent with NEPA components could only be changed description of the composition: The procedures and due consideration of through plan amendment or revision. composition is predominately longleaf relevant factors will always be needed Desired conditions identify an overall pine savanna, comprising before a specific use or activity can be vision for the unit. When developed approximately 75 percent of the area. authorized. during a collaborative process with the There are patches of mixed pine/ For example, a plan may identify an public, desired conditions would hardwood primarily along streams, but area as suitable for motorized recreation provide a way to identify a shared these patches comprise less than 25 trails on stable soils, but the plan also vision for a plan area. Other plan percent of the total composition. has a guideline limiting motorized components would provide the strategy Often a statement would follow recreation during the nesting season. and guidance needed to achieve that regarding the vegetation structure: The Before a new designated motorized trail vision. A desired condition is generally forest has two distinct layers: a pure can be opened in the management area, supported by objectives that identify longleaf pine open canopy approaching a site-specific analysis would need to intended, measureable progress toward 70 feet in height and a wiregrass determine which parts of the project reaching the desired condition. Taken as dominated herbaceous layer. area have stable soils and are thus a whole, objectives lead to the The functions or processes in this suitable for the motorized trail. development of a proactive program of ecological type would then be Consistent with the plan, a motorized work of passive or active management described: This savanna structure is trail may then be proposed within the designed to achieve the desired maintained by recurring fire on an management area on stable soils with a condition. average 3-year cycle. This ecological requirement that it be seasonally closed Standards, guidelines, and suitability type functions as primary nesting and during the month of the nesting season. (identifying lands within the planning foraging habitat for red-cockaded The site-specific analysis for the area as suitable or not suitable for woodpecker. proposal would have to document Objective: The objective statement various uses) are intended to create a consistency with the motorized trail would be written to show the change framework that would permit uses, suitability, the wildlife guideline, and from the existing condition to the projects, and activities that move the any other applicable plan components. desired condition: Restore longleaf pine A goal is an optional plan component unit toward the desired conditions, on approximately 1250 to 1500 acres while restricting uses, projects, or that conveys a broad statement of intent. per year over for the 10 years following Usually, goal statements are not activities that may be inconsistent with plan approval on longleaf pine achieving desired conditions. associated with on-the-ground landtypes currently dominated by conditions in contrast to desired Standards are mandatory constraints loblolly pine. Within 5 years of the conditions. Instead, goals express and do not allow for deviation. The restoration activity, the desired outcome intentions about how processes or Agency heard from the public that many is 150 to 250 seedlings per acre, free of interactions with the public would be people want the rule to include competition. conducted under the plan. Examples of ‘‘default’’ standards, and others want a Standard: A standard intended to goal statements in current plans are: way for responsible officials to ‘‘opt-out’’ protect all existing longleaf pine could of standards when they do not fit the be written as: Retain any longleaf pine Provide opportunities for the local populations to develop a unique situation at hand. The Agency during the restoration activity. recognizes that circumstances on the connection—a sense of place—to the national Guideline: A guideline to protect soil forest. ground differ from place-to-place. The and water with built in flexibility could Provide information about the natural and proposed rule would require guidelines be written as: To avoid unacceptable cultural environment to foster understanding that, like standards, are requirements. risks of erosion, mechanical fire lines of the uniqueness of the resources of the unit Guidelines are not intended to allow an should not occur on slopes greater than and to help develop ecological-based ‘‘opt-out,’’ but they would allow the 30 percent or on the highly erosive X, Y, tourism. responsible official some flexibility in and Z soil types. Goals are optional plan components how to meet the intent of the guideline, In the suitability plan component, the because some responsible officials find recognizing that different conditions plan would identify specific areas of the them useful while others do not. The may necessitate a different approach. planning unit as being suitable or not proposed rule would allow the Guidelines provide a means to protect suitable for certain types of uses or responsible officials flexibility to choose resources in different ways depending activities. The plans are not required to whether to include goals as a plan on those circumstances. have suitability identified for any component. Examples of a desired condition, specific type of use or activity, with the The set of plan components must objective, standard, and guideline for exception that areas not suitable for meet the substantive requirements for long leaf pine restoration are provided timber production must be identified as sustainability (§ 219.8), plant and below. required by the NFMA. Determining the animal diversity (§ 219.9), multiple uses These examples assume that during suitability of a specific land area for a (§ 219.10), and timber requirements the assessment it was determined that particular use or activity is usually based on the NFMA (§ 219.11) as well the native ecological condition for a based upon the desired condition for as other requirements laid out in the portion of the plan area on a coastal that area and the inherent capability of plan. While all plans must contain the plain forest should be a long leaf pine the land to support the use or activity. required five plan components (desired savanna. The existing condition has 45 If the plan identifies an area as not conditions, objectives, standards, percent of the area dominated by suitable for a type of use or activity, guidelines, suitability of areas, and may loblolly pine forest with closed canopy such a use or activity may not be contain goals), not every issue or and a sparse understory. The following permitted within that area. If the plan resource contained in a plan would statement would describe the desired identifies an area as suitable for a type require all five plan components. condition, usually in terms of of use or activity, authorization of such Through the planning process, the composition, structure, and function for a use or activity in that area may be responsible official would determine the ecological types. considered; however, site-specific content of plan components needed to

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address specific management issues or used to re-prioritize watersheds for It is important to note that plan resources. maintenance or restoration. components themselves could not compel agency action or guarantee Other Content in the Plan The proposed requirement that the plan describe the unit’s distinctive roles specific results. Instead, they provide In addition to the plan components, and contributions within the broader the vision, strategy, guidance, and this section would require other content landscape is designed to ground the constraints needed to move the unit in the plan for integrated resource development of plan components in a toward sustainability. This section must management. Other required content context of capability and opportunity. be read with these constraints in mind. differs from plan components in that an The identification of the unit’s roles and Ecological Sustainability amendment or revision would not be contributions directly supports required for changes to be made to development of desired conditions and A common theme brought up reflect new information or changed objectives. The requirement should lead throughout the public involvement conditions. to each unit developing a plan that process was the importance of This section sets out four reflects its unique characteristics while maintaining or restoring healthy, requirements for other required content: addressing issues of importance for the resilient ecosystems and the benefits The monitoring program, identification NFS and setting priorities for that such resilient systems provide. of watersheds that are a priority for management. Examples of such benefits include a maintenance or restoration, description reduced risk of catastrophic fire, clean Section 219.8 Sustainability of the unit’s distinctive roles and abundant water, connected habitats for contributions within the broader Sustainability is the fundamental wide ranging species, and economic landscape, and information reflecting principle that will guide land benefits. Those themes are reflected in proposed and possible actions that may management planning. The intent is for the requirements of this section in the occur on the unit during the life of the plans to guide management so that NFS proposed rule. plan. Other content could be included lands are ecologically sustainable and The proposed requirements for plan as needed. contribute to social and economic components in this section are based on The proposed monitoring program, sustainability, with resilient ecosystems sound ecological principles that the described in § 219.12, would be and watersheds, diverse plant and health of aquatic and terrestrial systems required in every plan. A monitoring animal communities, and the capacity is interdependent, and that they are program has been included as other to provide people and communities shaped by processes at the landscape required content, but not as a plan with a range of social, economic, and scale. When the Agency speaks of component, so the program can be ecological benefits for the present and ecological sustainability in this updated without a plan amendment. In future generations. document, the Agency means to the past, monitoring programs became The requirements of this section of maintain or restore ecosystem and outdated and ineffective because any the proposed rule are linked to the watershed structure, function, changes required a plan amendment, requirements in the assessment (§ 219.6) composition, and connectivity. which usually took a long time to and monitoring sections (§ 219.12). In The proposed rule, therefore, would complete. Since monitoring methods addition, this section provides a require the development of plan and protocols are constantly being foundation for the next three sections components that maintain or restore the refined, and since it may be important regarding diversity of plant and animal structure, function, composition, and to add or change a monitoring question communities (§ 219.9), multiple uses connectivity of these systems as a whole or indicator to be sure that the (§ 219.10), and timber requirements and that maintain, protect, or restore monitoring is effective and targeted to based on the NFMA (§ 219.11). Together key elements within each system. inform and improve management, it is these sections of the proposed rule Management to maintain, protect, and important to have processes where would guide the land management restore ecosystems would include both changes can be made rapidly. Reflecting planning process for maintaining or active and passive management and the importance that stakeholders place restoring ecological sustainability on require different levels of investment on monitoring, the proposed rule NFS lands and contributing to social based on the difference between the requires advanced public notice and economic sustainability of the local desired and existing conditions of the (§ 219.16) of any changes to be made in communities and regions and the system. the monitoring program, along with an Nation. In designing plan components to opportunity for the public to provide The proposed requirements of this maintain or restore ecosystems and comment on the proposed change. section are limited to what can be watersheds, the proposed rule would The proposed requirement that other accomplished within the Agency’s require the responsible official to take required content include the authority and the capability of the unit. into account the physical (including air identification of priority watersheds for This limitation arises from the fact that quality) and biological integration of the maintenance or restoration is designed some influences on sustainability are terrestrial and aquatic ecosystems to complement the water-based outside the Agency’s control, for within a landscape. Because fire is an sustainability requirements found in example, climate change, extreme important ecosystem driver, the § 219.8. The Agency realizes that areas disturbance events, and urbanization on proposed rule would require that the prioritized for potential restoration lands outside of or adjacent to NFS responsible official would also take activities could change quickly due to lands. Given those constraints, the wildland fire and opportunities to events such as wildfire, hurricanes, Agency realizes it cannot guarantee restore wildland fire ecosystems into drought, or the onslaught of invasive sustainability. However, it can establish account. During the planning process, species. Therefore, this requirement is planning processes and practices that other potential ecosystem drivers, included in this section as other provide the best opportunity for disturbance regimes, and environmental required content rather than in § 219.8 maintaining or restoring sustainable stressors, including climate change, for plan components thus allowing an ecological systems and contributing to would be identified, assessed, and administrative change (§ 219.13) to be social and economic sustainability. considered when developing plan

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components for ecological climate as well as by non-climate or flooding have been excluded or sustainability. related stressors. Changing conditions where past management has altered Paragraph (a)(2) would require that and stressors can include changing function. the responsible official develop plan water temperatures, variability in Public comment ranged between components to maintain, protect, or volume and timing of precipitation, and those who wanted very prescriptive restore certain ecosystem elements. The increased frequency and severity of national standards in the rule for such first two elements would require the floods. The requirements of this section things as road density or riparian area responsible official to develop plan recognize the importance of maintaining widths and those who wanted very few components for aquatic and terrestrial those watersheds and aquatic resources requirements and ultimate flexibility at areas, including lakes, streams, that are in good condition and restoring the unit level to determine the suite of wetlands, forest stands, meadows, and those that are not. plan components best suited to the other habitat types. These areas The proposed rule would require that unit’s unique situation. The proposed represent the individual elements that plans include plan components to rule reflects a balance by including form a foundation for maintaining the maintain, protect, and restore public requirements for plan components to health and resilience of the overall water supplies, groundwater, sole guide management of these resources ecosystem or watershed. The third source aquifers, and source water but not prescribing national standards element would require plan components protection areas where they occur on that may not be ecologically appropriate for rare aquatic and terrestrial plant and NFS lands. Source water protection or practical across all units. In this way, animal communities, which may have areas are areas delineated for public the Agency ensures that all plans will particular value as communities, water systems as part of the State or consistently include plan components consistent with the individual species tribal source water assessment and for these critical resources while and ecosystem diversity requirements in protection program and may include allowing the flexibility to design plan § 219.9. Finally, plan components ground water or surface water or both. components that are ecologically would be required to protect, maintain, Under section 1424(e) of the Safe Water appropriate to the unit. and restore clean, abundant water Drinking Act, sole source aquifers are Social and Economic Sustainability supplies (both surface and groundwater defined as underground water sources sources), and soils, and productivity that are designated by the During the public participation recognizing their importance as Environmental Protection Agency and process to develop this proposed rule, fundamental ecosystem resources and supply at least 50 percent of the there was a divergence of opinion on services. drinking water consumed in the area whether ecological sustainability should overlying the aquifer. take precedence over social and Water Riparian areas are important elements economic sustainability or if the One of the original purposes for of watersheds that provide critical ecological system, the social system, establishing the NFS was to protect our transition zones linking terrestrial and and the economic system are of equal Nation’s water resources. Of all land aquatic ecosystems. The proposed rule importance. The proposed rule uses, forested land provides the highest would highlight the importance of considers the ecological, social, and quality water. National Forest System maintaining, protecting, or restoring economic systems as interdependent lands contain 400,000 miles of streams, riparian areas and the values such areas systems, which cannot be ranked in 3 million acres of lakes, and many provide by requiring that plans include order of importance. aquifer systems that together serve as plan components to guide management However, there is an important the source of drinking water for more with riparian areas. The proposed rule difference in the wording between the residents of the United States than any also requires that plans establish a ecological and the social/economic other source. The Agency administers default width within which those plan sustainability requirements. The over 90,000 water rights in cooperation components apply. The width of such requirements for ecological with States; protects and improves zones is usually measured from the edge sustainability would require responsible habitat for more than 550 rare, of the water, extending outward to the officials to provide plan components to threatened, and endangered aquatic adjacent upland areas, and it could be maintain or restore elements of species; provides outdoor recreation to a standard width for all riparian areas or ecological sustainability. The more than 130 million visitors per year it could vary based on the type of requirements for social sustainability near streams, lakes, and other water waterbody. would require plan components to resources; and supports access and Additionally, riparian areas would be guide the unit’s contribution to social operations for more than 200 site-specifically verified over time, and economic sustainability. hydroelectric facilities. National forests either during watershed or landscape The distinction between these two alone provide 18 percent of the Nation’s assessments or when management sets of requirements recognizes the water and over half the water in the actions are proposed that might affect Agency has more influence over the West. The Organic Act, Weeks Act, riparian areas. The width of the actual factors that impact ecological MUSYA, and the NFMA all discuss the riparian area would be based on the sustainability on NFS lands (ecological protection of water and/or watersheds. characteristics of the site and could be diversity, forest health, road system Although forests are effective at wider or narrower than the default management, etc.) than it does for social maintaining hydrologic functions, there width(s). Many NFS units already have and economic sustainability are areas on national forests where actual riparian areas identified, while in (employment, income, community well- water resources are degraded. There are some areas, for example wilderness being, culture, etc.). National Forest serious environmental and economic areas, there may be no need to site- System lands can provide valuable costs of depleting or damaging water specifically delineate riparian areas. contributions to economic and social resources and unsustainable water and Restoration of riparian areas may be sustainability, but that contribution is land use practices pose risks to people accomplished through passive just one in a broad array of factors that and ecosystems. The quantity and management or may require active influence the sustainability of social and quality of America’s water and aquatic management, particularly in areas economic systems. Similar to the habitats are affected by our changing where natural disturbance such as fire requirements for ecological

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sustainability, the requirements for plant and animal communities based on native species. This serves as the social and economic sustainability the capability of the plan area. The ‘‘coarse-filter’’ aspect of the diversity reflect that NFS lands are integral parts Agency’s intent is to keep common standard. The premise behind the of the larger landscape. native species common, contribute to proposed coarse-filter approach is that Section 219.8(b) of the proposed rule the recovery of threatened and native species evolved and adapted would require plans to include plan endangered species, conserve candidate within the limits established by natural components to guide the unit’s species, and protect species of landforms, vegetation, and disturbance contribution to social and economic conservation concern. patterns prior to extensive human sustainability. In developing these plan This section of the proposed rule alteration. Maintaining or restoring the components, the responsible official addresses the diversity requirement by ecological conditions similar to those would be required to take into account focusing on factors within agency under which native species have through the collaborative planning control and using the best available evolved therefore offers the best process and the results of the scientific information to design a robust assurance against losses of biological assessment the social, cultural, and and achievable diversity standard. The diversity and maintains habitats for the economic conditions relevant to the area proposed rule adopts a complementary vast majority of species in an area, influenced by the plan; the distinctive ecosystem diversity and species subject to factors outside of the Agency roles and contributions of the unit conservation approach to provide for control, such as climate change. Climate within the broader landscape; the diversity of plant and animal change and related stressors could affect sustainable recreational opportunities communities in the plan area and the many species and may make it and uses; multiple uses, including long term persistence of native species. impossible to maintain current ecosystem services, that contribute to Known as a coarse-filter/fine-filter ecological conditions. local, regional, and national economies approach, this is a well-developed Ecosystems are described in terms of in a sustainable manner; and cultural concept in the scientific literature and their composition (vegetation types, rare and historic resources and uses. has broad support from the scientific communities, aquatic systems, riparian Several Tribes and Alaska Native community and many stakeholders. The systems); structure (vertical and Corporations requested the rule coarse-filter should provide ecological horizontal distribution of vegetation, recognize and provide a framework for conditions for the long-term persistence stream habitat complexity, and riparian sustaining cultural services and benefits of the vast majority of species within the habitat elements); function (processes from national forests and grasslands, plan area. The fine-filter would identify such as stream flows, nutrient cycling, including cultural traditions, ways of specific habitat needs of species with and disturbance regimes); and the life, and cherished spaces. Furthermore, known conservation concerns or whose connection of habitats (for breeding, several Tribes and Alaskan Native long-term persistence in the plan area is feeding, or movement of wildlife and Corporations requested that at risk, and for which the coarse-filter fish within species home ranges or sustainability be based on four equal protection is insufficient. migration areas). Healthy ecosystems are aspects: Ecological, economic, social, The wording in paragraph (a) for indicated by the degree of ecological and cultural sustainability. The Agency ecosystem diversity intentionally integrity related to the completeness or has defined sustainability as having mirrors that found in § 219.8(a)(1) for wholeness of their composition, three aspects since 1999: Ecological, ecological sustainability, as they are not structure, function, and connectivity. economic, and social. Instead of adding intended to be separate processes or Resilience refers to the capacity of the a new aspect to sustainability, the requirements. The requirements in system to absorb disturbance so as to Agency proposes that the planning rule § 219.8 (a)(1) for plan components to retain essentially the same function. By require responsible officials to take into maintain or restore structure, function, working toward the goals of diverse account cultural conditions when composition, and connectivity of native ecosystems with connected developing plan components for social healthy and resilient terrestrial and habitats that can absorb disturbance, it and economic sustainability. An aquatic ecosystems and watersheds is expected that over time, management alternative way of dealing with this would also meet the requirement of this would create ecological conditions, issue would be to require the section to retain or restore ecosystem through activities such as ecosystem responsible official to develop plan diversity on the unit. The requirements restoration treatments, which support components for cultural resilience (The are restated in both of these sections to the abundance, distribution, and long- ability of cultural knowledge and emphasize the link between term persistence of native species expression to adapt to social, economic, sustainability of terrestrial and aquatic within a plan area to provide for plant and ecological change in ways that systems and the diversity of plant and and animal diversity. continue the core meanings of that animal communities. The Fine-Filter Approach knowledge and expression). The Agency Specific agency policy direction for welcomes public comment on the issue ecosystem diversity and species Paragraph (b) of this section sets forth of cultural sustainability. conservation using the coarse-filter/fine- three species-specific requirements for Requirements for specific elements filter approach, as well as for identifying plan components that would provide that would contribute to social and species of conservation concern would the basis for the fine-filter approach to economic sustainability are found in be included in the Forest Service species conservation. The intent would § 219.10 and § 219.11. Directive System. be to provide plan components that identify specific habitat needs of Section 219.9 Diversity of Plant and The Coarse-Filter Approach species, when those needs are not met Animal Communities Paragraph (a) of this section of the through the coarse filter. These species The Agency is committed to the goals proposed rule would require plan are threatened and endangered (T&E) of the Endangered Species Act (ESA) components for maintaining or restoring species, candidate species, and species and the NFMA. This section of the structure, function, composition, and of conservation concern. proposed rule demonstrates agency connectivity of healthy and resilient The first species conservation commitment to meeting the NFMA terrestrial and aquatic ecosystems and requirement in this section of the requirement to provide for diversity of watersheds to maintain the diversity of proposed rule is to maintain or restore

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ecological conditions to contribute to population is defined in this proposed desired condition statement that the recovery of T&E species. These rule as a population of a species that describes the composition, structure, species are at risk of extinction and are continues to persist over the long-term and function of a longleaf pine protected under the ESA. The Agency with sufficient distribution to be ecosystem that will provide optimum proposes that its role is to provide resilient and adaptable to stressors and habitat conditions for red-cockaded ecological conditions in the plan area likely future environmental conditions. woodpeckers; an objective for acres of that would contribute to recovering The responsible official would identify, occupied prairie dog habitat to facilitate these species across their ranges, which where necessary, specific ecological the goal of reintroducing black-footed in many cases includes lands outside conditions needed by these species that ferrets; a standard that sets a maximum NFS boundaries where the Agency has are not provided by the coarse-filter. road density that will improve habitat no control. The responsible official may The identification of species of conditions for the Canada lynx or gray also contribute to other recovery conservation concern within the plan wolf; or a guideline that recommends a actions, such as species reintroductions area could be based on several criteria, ‘‘no disturbing activities’’ time period to increase species distribution. such as substantial scientific within a specified distance of a known The second species conservation information as to the overall status of bald eagle or goshawk nest site during requirement proposed in this section of the species, the quantity and quality of the critical breeding period. the proposed rule is to maintain or species habitat within the plan area, and Diversity of Trees and Other Plant restore ecological conditions to conserve the potential for management activities Species candidate species. These species are to affect the species habitat within the plants and animals for which the Fish plan area. Forest Service Directives The intent of the ‘‘diversity of trees and Wildlife Service has proposed would contain the criteria for selecting and other plant species’’ requirement in listing under the ESA, but for which a species of conservation concern. State this section of the proposed rule is to listing regulation has not yet occurred. lists of endangered, threatened, rare, address the specific requirements of the Under the ESA, candidate species do endemic, or other classifications of NFMA to preserve, where appropriate, not receive special legal protections, as species, such as those listed as and to the degree practicable, the do threatened and endangered species. threatened under State law; and other diversity of tree species similar to that However, the agency would like to be sources such as the Nature Serve existing in the region controlled by the proactive and take measures to ensure conservation status system may be used plan. The proposed rule would require animal and plant species do not require to inform the selection of species of plan components to preserve diversity protection under ESA. Candidate conservation concern. of native tree and other plant species. species are not the same as focal species The proposed rule’s requirement for Preserving the diversity of tree species (§ 219.12), but units may choose to use species of conservation concern would native to the unit will also preserve a candidate species as a focal species, as be to maintain or restore ecological other native plant species. Meeting the part of their monitoring program. The conditions to maintain viable requirements for ecosystem diversity Agency is proposing to use its policy populations of species of conservation and species conservation, as discussed discretion to take steps to reduce the concern within the plan area, within the above, would meet this provision as risks to candidate species from activities Agency’s authority and consistent with well. on NFS lands. These steps would the inherent capability of the plan area. Endangered Species include identifying specific ecological Where a viable population of a species conditions for NFS land that would of conservation concern already exists As part of the Forest Service mission, conserve candidate species and within the plan area, the appropriate the actions needed to recover T&E specifying plan components for the ecological conditions needed to species and maintain or restore critical maintenance or restoration of those maintain the long-term persistence of habitats are a high priority. Under the conditions. that species will continue to be ESA, the Forest Service is to carry out The proposed rule would represent a provided. ‘‘programs and activities for the higher level of protection for candidate At times, factors outside the control of conservation of endangered species and species than currently exists in the the Agency prevent the Agency from threatened species’’ (16 U.S.C. 1536 planning process while still recognizing being able to maintain a viable (a)(1)) and ‘‘insure that any action that candidate species may not have population of species of conservation authorized, funded or carried out by [it] viable populations. Protection concern within the plan area, such as is not likely to jeopardize the continued requirements for candidate species may when the range and current distribution existence of any endangered species or at times contradict the protection of a species extends beyond NFS threatened species or result in the requirements of other species or other boundaries. In such cases, the proposed destruction or adverse modification of management objectives. The Agency rule would require that the Agency [designated critical habitat]’’ (16 U.S.C. invites public comment on how it provide plan components to maintain or 1635 (a)(2)). should address these circumstances in restore ecological conditions within the Under the proposed rule, plans would this rule. plan area for that species, and by doing address conservation measures and The final species conservation so to contribute to the extent practicable actions identified in recovery plans requirement in this section of the to a viable population across its range. relevant to T&E species in the plan area. proposed rule addresses the needs of Additionally, the responsible official The Forest Service would continue to species of conservation concern. A would reach out beyond NFS collaborate with the U.S. Fish and species of conservation concern is a boundaries to land managers who have Wildlife Service (USFWS) and the species that is not threatened, authority where the species exists, to National Oceanic and Atmospheric endangered, or a candidate species, but coordinate management for the benefit Administration (NOAA) in the is one for which the responsible official of a species across its range. development and implementation of has determined there is evidence Some examples of plan components recovery plans for these species. The demonstrating significant concern about used for the fine-filter approach to Forest Service would also continue to its capability to persist over the long address species-specific ecological work with USFWS, NOAA, States, and term in the plan area. A viable conditions could be the following: a other partners to conserve and recover

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federally listed plant and animal species and their habitats, both on and economic opportunities or benefits species. The Agency would continue to off NFS lands; (3) failure of the species generated through sustainable recreation restore NFS ecosystems and habitats to occupy suitable habitat; and (4) and tourism, restoration activities, through a number of management climate change and related stressors, ecosystem services, and renewable activities, including monitoring, habitat which could impact many species and energy. National Forest System lands assessments, habitat improvements may make it impossible to maintain are also of immense social and cultural through vegetation treatments and current ecological conditions. importance, enhancing quality of life; structure installation, species Other stressors, such as invasive sustaining scenic, historic, and reintroductions, development of species, insects, disease, catastrophic culturally important landscapes; conservation strategies, research, and wildfire, floods, droughts, and changes sustaining traditional life ways; and conservation education. In addition, the in precipitation, among others, will also providing places to engage in outdoor Agency would continue to evaluate affect species and habitat in ways that recreation, improve physical and mental effects of proposed management actions the Agency cannot completely control health, and reconnect with the land. to T&E species or designated critical or mitigate for. habitat. Additionally, it is important to note The MUSYA has guided NFS The proposed rule would require the that the proposed rule is not limited to management since it was enacted in responsible official to explicitly ‘‘vertebrate’’ species as required under 1960. The MUSYA expanded upon the recognize the recovery of T&E species as the 1982 provisions. The proposed rule original purposes for which national an important part of land management would include native plants and native forests may be established and plans and provide plan components to invertebrates (fungi, aquatic administered, which were identified in maintain or restore ecological invertebrates, insects, plants, and the Organic Administration Act: ‘‘to composition, structure, function, and others) for which the Agency currently improve and protect the forest within connectivity. Additionally, the has very minimal biological information the boundaries, or for the purpose of requirements in this section are linked on their life histories, status, abundance, securing favorable conditions of water to the proposed requirements for public and distribution. However, maintaining flows, and to furnish a continuous participation, assessments, and or restoring ecosystem diversity within supply of timber for the use and monitoring (Sections 219.4, 219.6, and the plan area is the best opportunity to necessities of citizens of the United 219.12 respectively). Collectively these conserve these little-known species. States.’’ (Act of June 4, 1897 (16 U.S.C. requirements are intended to have the People suggested a broad range of 475)). responsible official work beyond the approaches, including reinstating the The MUSYA states that the Forest planning unit boundary to collaborate 1982 viability provision; protecting and Service is to ‘‘administer the renewable and cooperate with other landowners maintaining healthy habitats, with no and land managers in working toward species specific provisions; promoting surface resources of the national forests an all-lands approach to ecosystem and biodiversity and measuring it with a for multiple use and sustained yield of species diversity and conservation. biodiversity index; monitoring the several products and services landscape characteristics as proxies for obtained therefrom.’’ (16 U.S.C. 529). Providing for Diversity Within the FS a suite of species; and including both The MUSYA defines ‘‘multiple use’’ as Authority and the Capability of the Plan habitat- and species-level standards ‘‘the management of all the various Area. with specific population monitoring renewable surface resources of the This section fulfills the diversity requirements. In addition, some people national forests so that they are utilized requirement of the NFMA, which emphasized the need to coordinate and in the combination that will best meet directs the Forest Service to ‘‘provide for cooperate beyond NFS unit boundaries the needs of the American people; diversity of plant and animal for purposes of identifying and making the most judicious use of the communities based on the suitability protecting critical habitat, migration land for some or all of these resources and capability of the specific land area corridors, and other habitat elements. or related services (16 U.S.C. 531(a)). In in order to meet multiple-use objectives, The Agency believes that the proposed the MUSYA, Congress declared that the and within the multiple-use objectives rule requirements to provide for the national forests are established and shall of a land management plan adopted diversity of plant and animal be administered for outdoor recreation, pursuant to this section, provide, where communities are practical and meet the range, timber, watershed, and wildlife appropriate, to the degree practicable, intent of the NFMA. and fish purposes (16 U.S.C. 528). The for steps to be taken to preserve the MUSYA also explicitly recognizes that Section 219.10 Multiple Uses diversity of tree species similar to that ‘‘the establishment and maintenance of existing in the region controlled by the The intent of this section is to provide areas of wilderness are consistent with plan’’ (1604(g)(3)(B)). the requirements for developing plans the purposes and provisions of [this The 1982 planning rule required the that guide management for continued Act].’’ (16 U.S.C. 529). Forest Service to manage habitat to and sustainable multiple uses, including The Agency believes that MUSYA ‘‘maintain viable populations of native ecosystem services, through integrated and desired non-native vertebrate resource management, and in the anticipated changing conditions and species in the planning area’’ (47 FR context of the requirements of sections needs. In particular, the Agency’s 43048; September 30, 1982, section 219.7–11. understanding of what is meant by the 219.19). The 1982 viability standard at ‘‘several products and services obtained’’ times proved to be unattainable because Multiple Use Background from the national forests has changed of factors outside the control of the NFS lands provide economic, social, since 1960, and incorporates all values, Agency. Some factors outside the and cultural sustenance for local benefits, products, and services the control of the Agency include: (1) communities; for Tribes; and for people Agency now knows the NFS provides, Species ranging on and off NFS lands; across the Nation. Products and services and what are now more typically (2) activities outside the plan area (e.g., generated on NFS lands continue to identified as ecosystem services. Over increasing fragmentation of habitat, non- sustain traditional livelihoods, provide time, the Agency expects understanding and point source pollution) often impact for subsistence uses, and provide new will continue to evolve.

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Integrated Resource Management. identifies nine factors the responsible this provision the Agency recognizes the The responsible official would use official would be required to consider important role of NFS lands in information gathered during assessment when developing plan components to providing the habitat for these species and the opportunities for public provide for multiple uses, to the extent subject to the provisions of §§ 219.8 and participation to consider a wide range of that each factor is relevant to the plan 219.9. This provision is not intended to resources, potential stressors, area. This requirement builds on a require that units support the foreseeable risks, and opportunities to similar requirement in § 219.7(c)(2)(ii), population goals of State agencies. Paragraphs (a)(8) and (a)(9) would work with neighboring landowners and as well as consideration of the resources require that the responsible official take partners to develop plan components. on the unit during the assessment into account reasonably foreseeable The proposed rule would require the phase. First, the responsible official would risks to ecological, social, and economic development of a set of plan be required to consider the existence sustainability and the potential impacts components that provide for integrated and relative value of the resources on of climate and other system drivers, resource management. This is a different the unit. The list included in the stressors, and disturbance regimes, such approach than the 1982 rule, which proposed rule is intentionally long in as wildland fire, invasive species, and focused on individual resources and order to reflect stakeholder and agency human-induced stressors, on the unit’s provided detailed planning processes staff comments that all relevant resources. These requirements would and guidance based on the type of resources and stressors need to be build on the assessment and lead into resource. These requirements did not considered during the planning process. the monitoring phases of planning and necessarily translate into integrated plan There may be some uses or benefits not are intended to ensure that the components and often led to fragmented included in the list that could be responsible official has a science-based management of resources within the considered if they arise in connection understanding of the context for ecosystem with each resource with plan development or revision. The managing resources and providing for considered independently within the Agency invites public comment on the multiple uses. Paragraph (a) is not plan and within Agency management scope of this list in § 219.10(a)(1). In intended to require an exhaustive structures. In addition, the level of addition to the resources included on analysis; rather, the responsible official detail in the requirements was often not the list, and any others that are relevant, would consider existing information relevant or an appropriate fit for § 219.10(a)(2) and (3) would direct (§ 219.6), identify gaps and uncertainties circumstances on an individual unit, responsible officials to consider in the information, and move forward resulting in Forest Service employees renewable and nonrenewable energy with reasonable assumptions that could spending disproportionate time on and mineral resources on the unit in the be monitored over time (§ 219.12). processes that produced little value for context of the unit’s contributions Specific Requirements for Plan plan direction and subsequent within the broader landscape, along management. with the sustainable management of Components Many people expressed a desire for infrastructure on the unit, such as This section further describes specific very prescriptive national requirements recreational facilities and transportation requirements for plan components for established for various resources or and utility corridors. new plans or plan revisions. These program areas. Others expressed a The proposed rule would require requirements would be developed based desired for a more holistic approach to responsible officials to consider on the set of resources considered in management focusing on the system as opportunities to coordinate with paragraph (a) that contribute to the a whole. Still others wanted to see the neighboring landowners to link open unique role of the unit in the larger planning process become ‘‘simpler’’ and spaces and take into account joint landscape. ‘‘more elegant’’ without detailed management objectives where feasible Recreation procedures or national prescriptive and appropriate. The responsible standards that might become outdated official would also be required to The high value placed on recreation or might not work for all units. consider the landscape-scale context for has been a common theme throughout The Agency believes that an management as identified in the the public participation process leading interdisciplinary process is the best way assessment and the land ownership and to the proposed planning rule. Many to achieve integration of all resource access patterns relative to the plan area. people said that the NOI ignored concerns, recognizing that ecosystems These requirements reflect the ‘‘all- recreation as a stand-alone issue, and are complex communities of lands’’ approach the Agency is taking to wanted the rule to address it separately interconnected and interdependent resource management. from the other multiple uses. Others resources and systems that function as The responsible official would also be said that recreation should be a whole. To be effective, land required to consider habitat conditions, considered along with, and equal to, all management strategies must take into subject to the requirements of § 219.9, other multiple uses. account a wide range of resource for wildlife, fish, and plants commonly Americans make over 170 million conditions and values and strive to enjoyed and used by the public, such as visits to national forests and grasslands achieve multiple benefits while species that are hunted, fished, trapped, each year. These visits provide an managing the risk of adverse effects to gathered, observed, or needed for important contribution to the economic interconnected systems. subsistence. This requirement is vitality of rural communities as This section would require that in intended to respond to comments the spending by recreation visitors in areas meeting the requirements of § 219.8 and Agency received, particularly from surrounding national forests amounts to § 219.9, and within Forest Service Indian Tribes and State game and fish nearly 13 billion dollars annually. authority, the capability of the plan area departments, that certain species play a Recreation is also a critical part of social and the fiscal capability of the unit, the special role in contributing to social, sustainability, connecting people to plan would provide for multiple uses, cultural, and economic sustainability, nature, providing for outdoor activities including ecosystem services, outdoor and that plans should consider habitat that promote long-term physical and recreation, range, timber, watershed, for those species beyond what is mental health, enhancing the American wildlife, and fish. Paragraph (a) required to provide diversity. Through public’s understanding of their natural

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and cultural environments, and a preservation mandate; rather, where case of eligible or suitable wild and catalyzing their participation and actions might impair the resources or scenic rivers, that no modification to the stewardship of the natural world. use, the responsible official would seek free-flow, river-related values, or Providing for sustainable recreation is to avoid or minimize potential harm to classification would be allowed which one of the biggest challenges and the extent practicable. In some cases, would preclude future designation. opportunities facing the Forest Service, damage may occur if necessary to The Agency also manages other kinds and land management planning is a achieve a different multiple use of designated areas, including critical process in meeting this need. objective. experimental forests, national heritage The proposed rule recognizes the We also recognize that Tribes may areas, national monuments, national importance of recreation as a multiple have areas within the national forest recreational areas, national scenic trails, use, and integrates recreation concerns system that are of special importance to research natural areas, and scenic and provides for the unique needs of the them, and our intent is to ensure that byways. These are areas or features recreation resource throughout the the responsible official recognizes those within a planning unit with specific planning process, including in the areas and provides appropriate management direction normally assessment and monitoring phases. management. established through a process separate Section 219.8 would require the Section 219.8 would also require the from the land management planning responsible official to take sustainable responsible official to take cultural and process, including by statute or through recreation opportunities and uses into historic resources on the unit into a different administrative process. These account when developing plan account when developing plan areas can contribute in important ways components to contribute to social and components to contribute to social and to social and economic sustainability as economic sustainability. This section economic sustainability. Benefits of well as ecologic sustainability. This would go a step further, requiring that cultural and historic sites include section would require that plan plan components provide for expanded knowledge and components provide protection and sustainable recreation, considering understanding of history; cultural and appropriate management guidance for opportunities and access for a range of spiritual connections to our heritage; those areas, based on the purpose for uses. It also calls for plans to identify scientific data about past cultures or which the area is established. recreational settings and desired historical conditions and similar Section 219.11 Timber Requirements conditions for scenic landscape matters; and tourism that benefits rural Based on the NFMA character. The proposed rule defines economies. The Agency considers these sustainable recreation as ‘‘the set of resources very important for social Timber is one of the multiple uses of recreational opportunities, uses and sustainability as well as important the NFS, as recognized by the MUSYA access that, individually and combined, economic contributors. and the Act of 1897, also known as the are ecologically, economically, and Organic Administration Act. The Wilderness, Wild and Scenic Rivers, and National Forest Management Act of socially sustainable, allowing the Other Designated Areas responsible official to offer recreation 1976 at the time signaled a new opportunities now and into the future. This section would require that plan direction for the planning and Recreational opportunities could components provide for the protection management of NFS lands, especially include non-motorized, motorized, of designated wilderness areas and wild with regard to management of the developed, and dispersed recreation on and scenic rivers, and for the protection timber resource and impacts to other land, water, and in the air.’’ of recommended wilderness and eligible resources. Management and use of Together, these requirements and or suitable wild and scenic rivers in timber harvest on NFS lands continue to those in sections 219.6 and 219.12 order to protect the ecologic and social evolve. Today, harvest of timber on NFS reflect the Agency’s intent that the unit values and character for which they may lands occurs for many different reasons, would understand recreation roles, at some point be included in the including restoration of ecological demands, benefits, and impacts in the system(s). These requirements meet resilience, community protection in assessment phase; include a set of plan agency responsibilities under the wildland urban interfaces, habitat components to provide for sustainable Wilderness Act and the Wild and Scenic restoration, and protection of municipal recreational opportunities, uses, and Rivers Act and are consistent with the water supplies. Timber harvest also access in the plan, revision, or recognition in the MUSYA that supports economic sustainability amendment; and monitor visitor use wilderness protection is a valid multiple through the production of timber, pulp and progress toward meeting use. Wilderness areas provide important for paper, specialty woods for furniture, recreational objectives in the monitoring places for recreation, solitude, and and fuel for small-scale renewable phase. renewal; are refuges for species; and, energy projects. Timber harvesting, like cultural and historic sites, can whether for restoration or wood Cultural and Historic Resources attract tourism that benefits rural production objectives, also provides The Agency recognizes the social, economies. employment and tax revenue in many cultural, and economic importance of Some members of the public wanted counties throughout the country. cultural and historic resources and uses. the rule to include additional This section would meet the statutory This section would require that plans restrictions on uses within requirements of the NFMA related to would contain plan components recommended wilderness areas and for management of the timber resource. It designed to protect cultural and historic eligible or suitable wild and scenic includes provisions for identification of resources and uses. Our intent in using rivers. The Agency believes the lands as suitable or not suitable for the word ‘‘protection’’ is to ensure that requirement in the proposed rule meets timber production. It would allow for the responsible official takes into the Agency’s intent to ensure, in the timber harvest on lands unsuitable for account the effect a plan may have on case of recommended wilderness, that timber production for other reasons, cultural and historic values and the types and levels of use allowed such as for: achieving desired provides for these resources and uses, would maintain wilderness character conditions and objectives of the plan, within the context of managing for and would not preclude future multiple use purposes, sanitation, multiple uses. The intent is not to create designation as wilderness, and, in the salvage, or protection of public health

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and safety. The NFMA, along with the additional requirement that would the public comments on the notice of proposed requirements of this section, prohibit timber production where it is intent or in the collaborative round would provide for mitigation of the not compatible with the achievement of tables. The procedure for varying these effects of timber harvest on other desired conditions and objectives limits is an established process and has resources and multiple uses. Other established by the plan, including those worked effectively, providing a limit on sections of this proposed rule contain desired conditions and objectives opening size and public involvement provisions that would supplement the designed to meet requirements for plan with higher level approval for exceeding protections of this section. development or revision (§ 219.7); the limits. The specific factors proposed in this social, economic, and ecological The Agency believes that the rule for identifying lands not suitable sustainability (§ 219.8); plant and procedure for varying from these limits for timber production are based on the animal diversity (§ 219.9); multiple uses may be particularly justifiable in the NFMA requirements limiting timber (§ 219.10); and timber (§ 219.11). Some future for ecological restoration, species harvest (16 U.S.C. 1604(g)(3)(E)) and people requested that additional limits recovery, improvement of vegetation agency policy. Lands would be suitable be placed on the harvest of timber on diversity, mitigation of wildland fire for timber production unless they are lands not suitable for timber production. risk, or other reasons. For example, identified in the plan as not suitable, The Agency believes that the provisions some rare species are adapted to large and, as required by the NFMA, lands of this section would provide a balanced patch sizes with similar habitat not suitable for timber production must approach, allowing timber harvest on attributes for critical parts of their life be reviewed every 10 years to determine lands not suitable for timber production cycle. whether they are still not suitable. The if it serves as a tool for achieving or Many of the specific NFMA proposed rule clarifies that timber maintaining plan desired conditions or requirements related to timber harvest harvest on lands suitable for timber objectives. Timber harvest today is used are not reiterated in the text of the production can also occur for other often to achieve ecological conditions proposed rule, but are incorporated by reasons, including resource and other multiple use benefits for reference. Some requirements are not management, restoration, or community purposes other than timber production; repeated because they are addressed by protection. therefore we have included other regulations; for example, the Paragraph (a)(1)(iv) of this section is § 219.11(b)(2) in the proposed rule to NEPA regulations direct environmental a specific factor that would not allow clarify. analysis and the use of interdisciplinary lands to be identified as suitable for Paragraph (d) sets forth limits on teams. Other requirements are not timber production unless technology is timber harvest, regardless of the reason, repeated because they are addressed currently available for conducting on all NFS lands. All plans would, at a under separate sections of the proposed timber harvest without causing minimum, comply with the limitations rule. For example, the minimum harvest irreversible damage to soil, slope, or set forth by the NFMA (16 U.S.C. limitations are not repeated because other watershed conditions or 1604(g)(3)(E) and (F)). These § 219.8 incorporates and exceeds the substantial and permanent impairment requirements would limit harvest to requirements of the NFMA. of the productivity of the land. situations where the productivity of the Many of the NFMA provisions Available technology may vary from land could be sustained and harvesting referenced or included in this section place to place, and could be any of the prescriptions are appropriately applied. refer to project level activities. The following: Horse logging, ground based These requirements are referenced but proposed planning rule provides the skidding, aerial systems, or cable not repeated because the Agency proposed guidance for developing logging systems. This provision has believes they are incorporated and plans, not guidance for individual been in place since the 1979 rule, to enhanced by the requirements for projects, and it is important to recognize meet the NFMA obligation to consider resource protection and plan that any individual timber project or physical factors to determine the compatibility set forth in this section of activity could not provide for all aspects suitability of lands for timber the proposed rule. However, paragraph of social, economic, or ecological production. The factor has been (d) does reiterate that harvests must be sustainability. However, all projects and effective in protecting watershed carried out in a manner consistent with activities must be consistent with the conditions. the protection of soil, watershed, fish, plan components developed to meet the In addition, the proposed rule at wildlife, recreation, and aesthetic requirements of sustainability, diversity, paragraph (d) of this section would resources. and multiple uses (§§ 219.8 through require plan components to ensure that Paragraph (d) also includes 219.10), as required by § 219.15. timber will be harvested from NFS lands requirements that track the NFMA at 16 only where such harvest would not U.S.C. 1604(g)(3)(F) regarding even-aged Section 219.12 Monitoring violate the NFMA prohibition of timber timber harvest. These requirements: Monitoring is a critical part of the harvest that would irreversibly damage (1) Limit clearcutting to locations where proposed planning framework that soil, slope or other watershed it is determined to be the optimum provides a feedback loop for adaptive conditions (16 U.S.C. 1604(g)(3)(E)(i)). method for regenerating the site; management and is intended to test This prohibition applies whether the (2) require interdisciplinary review of assumptions underpinning management harvest is for timber production or other the harvest proposal; (3) require cutting decisions, track conditions relevant to purposes, and whether or not lands to be blended with the natural terrain; management of resources on the unit, were identified as suited for timber (4) establish maximum size limits of and measure management effectiveness production. areas that may be cut; and (5) require and progress toward achieving desired Some people requested the proposed that harvest is consistent with resource conditions and objectives. rule change or add to the NFMA criteria protections. These limits on the This section sets forth the proposed for defining lands not suitable for timber maximum opening sizes were requirements for the monitoring harvest. The Agency believes that the established in the 1979 planning rules program, including unit-level and NFMA provisions continue to provide a and have been in use under the 1982 broader-scale monitoring. The unit-level firm foundation for identifying these rule. There were no issues raised about monitoring program would be informed lands. The proposed rule includes an these default maximum size limits in by the assessment phase, developed

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during plan development, plan revision, back to the assessment and plan the ecological, social, and economic or amendment, and implemented after development or revision phases of the conditions of the local area, region, and plan approval. The regional forester planning framework and to the Nation are intended to help the would develop broader-scale monitoring substantive content requirements set responsible official understand how strategies while the responsible official forth in other sections of the proposed resources on the unit would contribute would develop the unit monitoring rule, thereby creating a feedback loop to sustainability both locally and in the program. Monitoring results and data for adaptive management. A range of context of the broader landscape. would be documented in biennial monitoring techniques may be used to Monitoring questions that focus on the monitoring evaluation reports, which meet the eight specific requirements. plan components of desired conditions would include an assessment of Every monitoring program would (the vision for future conditions) and whether or not the new information contain one or more questions or objectives (strategy to make progress suggests there is a need to change the indicators that address each of the toward achieving desired conditions) plan or the monitoring program, or do following: the status of select watershed are expected to be most useful for a new assessment. conditions; the status of select meeting this requirement. In developing the monitoring ecological conditions; the status of focal Monitoring to determine that program, the Agency intends for species; the status of visitor use and management systems are not responsible officials to coordinate with progress toward meeting recreational substantially or permanently impairing each other, with other parts of the objectives; measurable changes on the the productivity of the land is intended Agency, and with partners and the unit related to climate change and other to meet the NFMA requirements. public. The proposed rule also would stressors on the unit; the carbon stored Focal Species and Management require that the responsible official in above ground vegetation; the progress Indicator Species ensure that monitoring efforts are toward fulfilling the unit’s distinctive integrated with relevant broader-scale roles and contributions to ecological, The proposed requirement for monitoring strategies to ensure that social, and economic conditions of the monitoring questions that address the monitoring is complementary and local area, region, and Nation; and status of focal species is linked to the efficient, and that information is finally, the effects of management requirement of § 219.9 of the proposed gathered at scales appropriate to the systems to determine that they do not rule to provide for ecosystem diversity, monitoring questions. The Agency does substantially and permanently impair which describes the coarse filter not intend for the requirements in this the productivity of the land. approach for providing diversity of section to lead to an exhaustive or Monitoring for ecological and plant and animal communities. The research-based program; monitoring watershed conditions is intended to term ‘‘focal species’’ is defined in the must be targeted toward information support achievement of the rule as: a small number of species needed to inform management of sustainability and diversity selected for monitoring whose status is resources on each unit. requirements of §§ 219.8 and 219.9, and likely to be responsive to changes in The unit-level monitoring program the provisions of multiple uses ecological conditions and effects of could be changed either in a plan including ecosystem services in management. Monitoring the status of revision or amendment, or through an § 219.10. focal species is one of many ways to administrative change (§§ 219.6 and The proposed requirement that gauge progress toward achieving desired 219.13). monitoring questions address the status conditions in the plan. of visitor use and progress toward There are several categories of species Unit-Level Monitoring meeting recreational objectives is that could be used to inform the As proposed, the unit-level intended to support achievement of the selection of focal species for the unit. monitoring program would be part of sustainable recreation requirements of These include indicator species, required other content in the plan, § 219.8 and the multiple use keystone species, ecological engineers, developed by the responsible official, or requirements of § 219.10. umbrella species, link species, species two or more responsible officials, during Monitoring questions developed to of concern, and others. development of a new plan or plan measure changes on the unit related to Monitoring the status of selected focal revision, with input provided by the climate change and carbon stored in species over time is intended to provide public through opportunities for public above ground vegetation are intended to insight into the integrity of ecological participation throughout the planning help responsible officials understand systems on which those species depend process. The unit-monitoring program potential impacts to resources from and the effects of management on those sets out unit-monitoring questions and climate change, as well as contributions ecological conditions (i.e., the coarse associated indicators, which would be of the unit to carbon storage. Currently, filter aspect of the diversity designed to inform the management of the Agency tracks information about requirement). It is not expected that a resources on the unit. climate change influences and carbon focal species be selected for every The responsible official would have storage using the Forest Inventory and element of ecological conditions. The the discretion to determine the scope Analysis (FIA) through protocols of the proposed requirement for the and scale of the monitoring program Research and Development branch of responsible official to monitor a small that best meets the information needs the Forest Service. The FIA protocol has number of focal species is intended to identified through the planning process been an ongoing process for some time. allow discretion to choose the number as most critical for informed Although they are a required part of the needed to properly assess the relevant management of resources on the unit, unit monitoring program, it is likely that ecological conditions across the taking into account existing information these monitoring requirements would be planning area, within the financial and and the financial and technical capacity coordinated with other agency actions technical capabilities of the Agency. of the Agency. on climate change, and would be met The choice to have the proposed rule This section has eight specific using a broader-scale approach. require monitoring of focal species as requirements for every unit-monitoring Monitoring questions to measure well as select ecological and watershed program. This set of requirements is progress toward fulfilling the unit’s conditions is a shift from the 1982 rule’s designed to link the monitoring program distinctive roles and contributions to requirement to specifically monitor

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population trends of ‘‘management practicable, all units would change their monitoring programs that were indicator species,’’ or MIS. The theory of unit-monitoring program to comply developed under the provisions of a MIS has been discredited since the 1982 with the requirements of this section. prior planning regulation, the first rule. Essentially, monitoring the monitoring evaluation would have to be Biennial Evaluations population trend of one species should produced no later than 2 years from any not be extrapolated to form conclusions Many scientists, agency employees, change made to meet the requirements regarding the status and trends of other and the public emphasized the of this section. The proposed rule would species. In addition, population trends importance of using monitoring to require all units to change their for most species are extremely difficult measure the effectiveness of plans and monitoring programs to conform to this to determine within the 15-year life of regularly evaluate monitoring results to section of the rule within 4 years of the a plan, as it may take decades to change the plan or to change effective date of the rule, or as soon as establish accurate trend data, and data management activities. Others wanted practicable. may be needed for a broader area than to use pre-determined thresholds, called The public notice of the availability of an individual national forest or triggers, to initiate a change to the monitoring evaluation report may be grassland. Instead, the Agency expects management activities. These concerns made in any way the responsible official to take advantage of recent technological are addressed by the proposed deems appropriate (§ 219.16(c)(5)). The advancements in monitoring the status requirement that the responsible official responsible official may post on the of focal species, such as genetic conduct a biennial evaluation of the Forest Service Web site. The responsible sampling to estimate area occupied by monitoring information and determine official may postpone the monitoring species. whether there is a need for an evaluation for 1 year after providing administrative correction, a plan notice to the public in the case of Broader-Scale Monitoring Strategies amendment, or plan revision. The exigencies such as a natural disaster or The proposed rule would require the biennial evaluation of monitoring catastrophic fire. regional forester to develop a broader- information is intended to provide a scale monitoring strategy for those report on progress toward meeting Section 219.13 Plan Amendment and monitoring questions that could best be desired conditions and other plan Administrative Changes answered at a scale broader than one components to determine whether This section sets out the proposed unit; for example, detecting changes in additional actions are necessary. The process for changing plans through plan conditions related to wide-ranging or biennial monitoring evaluation does not amendments or administrative changes. migratory species or measuring stressors need to evaluate all questions or The requirements in this section are such as climate change. indicators on a biennial basis but must intended to facilitate rapid amendment The proposed broader-scale focus on new data and results that and adjustment of plans. The section monitoring strategy would be a new provide new information for would allow the responsible official to requirement for the Agency. Other management. use new information obtained from the options were considered, such as The Agency considered other monitoring program or other sources requiring only a unit-level monitoring timeframes for the evaluation, such as and react to changing conditions to program without any specific an annual evaluation or a 5-year amend or change the plan. monitoring requirements. However, the evaluation. The Agency experience is Public comments emphasized the Agency believes that having broader- that an annual evaluation is too frequent need for the Agency to have a scale monitoring strategies provides a to determine trends or to accumulate framework for adaptive management. way to distribute the monitoring meaningful information and the 5-year Under this proposed rule’s framework, workload most efficiently. Unit-level time frame is too long to wait in order the Agency anticipates the availability monitoring would be focused on to respond to changing conditions. of more complete information provided answering questions directly related to Therefore, the Agency proposes that the through the unit-monitoring program the management of an individual plan monitoring evaluation would occur at a and evaluation reports. The framework area, and that are within the capability 2-year interval. is also expected to facilitate more of the unit to measure. Broader-scale The Agency also considered requiring collaboration with the public and a monitoring would look at how plans fit pre-determined thresholds or triggers to more efficient amendment process. within the larger landscape, taking into initiate a change to management Comments about how to change the account drivers and stressors affecting activities. The Agency experience is that plan ranged from a desire for a flexible large ecosystems, multiple land pre-determined thresholds may be quite and rapid approach to plan changes, to ownerships, and information available difficult to develop and therefore may those who wanted more structure and from other branches of the Agency as take years to formulate when there is requirements for both the process of well as other governmental and uncertainty regarding scientific or other planning and actual content of the plan. nongovernmental partners. information. Instead, during the The Agency believes the approach taken biennial evaluation, the responsible in the proposed rule strikes an Coordinating Unit-Level and Broad- official would decide whether the appropriate balance with rule Scale Approaches monitoring data indicates that a change requirements commensurate with the The Agency recognizes that the timing to the plan or management activities is three methods of changing the plan of plan revisions and the development warranted. Changes to the monitoring described below. of broader-scale strategies needs to be program would also be considered Plan revisions as described in § 219.7 coordinated. In some cases, a plan based on the evaluation, to ensure that contain more comprehensive revision for a unit may not be scheduled monitoring remains effective and requirements, as the revision stage is the for 8 or 10 years, which would delay the relevant. appropriate time for a comprehensive development and implementation of an The first monitoring evaluation for a evaluation of the plan. As noted in effective broader-scale strategy. To plan or plan revision developed under § 219.7, plan revisions are required address this concern, the Agency this proposed rule would have to be every 15 years. However, the proposes that within 4 years of the produced no later than 2 years from the responsible official has the discretion to effective date of the rule, or as soon as time of plan approval. For plan determine at any time that conditions

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on a unit have changed significantly the plan clearly indicated by the amendment would be done to conform such that a plan must be revised. A plan monitoring report. plan components to a new statutory or revision before the 15-year requirement However, the responsible official regulatory requirement would depend has been rare in the past, and is could choose to conduct an assessment upon the requirement. A requirement expected to be rare in the future. and take additional time to develop a that would allow no discretion in Plan amendments incrementally proposal when the potential amendment management would call for simply an change the plan as need arises. Plan is broader or more complex or requires administrative change, as there would amendments could range from project an updated understanding of the be no decision for the responsible specific amendments, amendments of landscape-scale context for official to make, and no reason for one plan component, to the amendment management. For example, a monitoring public input. For example, an addition of multiple plan components. Finally, evaluation report may indicate that a of lands to an existing wilderness the proposed rule allows for new invasive species is affecting forest boundary would call for simply administrative changes, which would health on the unit. The responsible extending the wilderness plan allow for rapid correction of errors in official may want to conduct an components to the newly included the plan components and rapid assessment to synthesize new lands, as there would be no reason to adjustment of other content in the plan. information about the spread of that manage those lands differently from the species, how other units or land rest of the wilderness. In contrast, Plan Amendments management agencies are dealing with designation of an entirely new The proposed rule would provide that the threat, what stressors make a wilderness would require a plan the responsible official could amend resource more vulnerable to the species, amendment to ensure appropriate plans or change the plan at any time. how the species may be impacting public involvement in the development Plan amendments would be required social or economic values, or how of plan components for the new whenever a plan component would be neighboring landowners are wilderness area. materially altered (clerical errors could approaching removal of the species. The Other content in the plan that could be corrected by an administrative outcome of the assessment may identify be altered with an administrative change). Plan amendments may change a need to change the plan through an change, as identified in § 219.7(e), other content in the plan. The process amendment. The responsible official, includes the monitoring plan, the requirements for plan amendments and consistent with the requirements for identification of watersheds that are a administrative changes would be public participation in § 219.4, would priority for maintenance or restoration, simpler than those for new plan then collaboratively develop with the the unit’s distinctive roles and development or plan revisions in order public a proposal to amend several plan contributions, and information about to allow responsible officials to keep components to deal with the invasive proposed or possible actions that may occur on the unit during the life of the plans current and adapt to new species. For plan amendments done to make a plan. The plan may also include information or changed conditions. specific project or activity consistent additional items such as other content The proposed rule would require that with a plan, the project analysis alone in the plan, including management for new plans or plan revisions would likely suffice to document the approaches or strategies; partnership responsible officials conduct an need to change the plan. opportunities and coordination assessment and collaboratively develop All plan amendments must comply activities; or criteria for priority areas or the plan proposal prior to issuing a with Forest Service NEPA procedures. activities to achieve objectives of the proposed plan and environmental The proposed rule provides that plan. documents, entertaining objections to appropriate NEPA documentation for an An example of how the responsible the proposed plan, and approving the amendment could be an EIS, an official may conform the plan to a new plan or plan revision. Amendments may environmental assessment (EA), or a statutory requirement would be if a new include each of those steps, but the categorical exclusion (CE) depending wilderness bill becomes law and it adds proposed rule would allow the upon the scope and scale of the land to an existing wilderness area. To responsible official to rely on a amendment and its likely effects. comply with the law, the responsible documented need to change the plan to official may modify the management propose an amendment without doing Administrative Changes area map contained within the plan an assessment or including the separate Administrative changes would be through an administrative change. This process step of developing a proposal permitted to correct clerical errors to change would allow the existing plan before issuing a proposed amendment. plan components, to alter content in the components for the existing wilderness An amendment would be preceded by plan other than the plan components, or area to apply to the additional land. If a documented need to change the plan, to achieve conformance of the plan to the responsible official determines an set out in an assessment report, new statutory or regulatory administrative change is appropriate, monitoring evaluation report, or other requirements. A clerical error is an error the responsible official would post source. For example, a monitoring of the presentation of material in the notice of the administrative change on evaluation report may show that a plan plan such as phrasing, grammar, the planning unit’s Web site. standard is not sufficiently protecting typographic errors, or minor errors in The proposed rule would require the streambeds, indicating that a change to data or mapping that were appropriately responsible official to provide public that standard may be needed to achieve evaluated in the development of the notice before issuing an administrative the unit’s objective or desired condition plan, plan revision, or plan amendment. change. If the change would be to the for riparian areas. In that case, the An administrative change could not monitoring program, the responsible responsible official could choose to act otherwise be used to change plan official would provide public notice and quickly to propose an amendment to components or the location in the plan an opportunity for the public to change that particular plan component, area where plan components apply, comment on the intended change and without doing an additional assessment except to conform the plan to new consider public concerns and or developing a proposal that goes statutory or regulatory requirements. suggestions before making a change. further than the specific need to change Whether an administrative change or an Following this notification, the

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responsible official would adjust the amendment, these requirements would conditions. Objectives and desired plan. The Agency believes that allowing only need to be described for those plan conditions are long-term aspirations administrative changes to other content, components being changed by the plan whose achievement would depend on other than plan components, would amendment. For example, if a plan the cumulative effect of a number of help the responsible official adapt to amendment does not change plan agency actions, and often on factors changing conditions, while requiring components applicable to an outside the agency’s control. the responsible official to notify the experimental forest or range, there We continue to believe that the public. would be no need to document the consistency requirement cannot be research station director’s concurrence interpreted to require achievement of Section 219.14 Decision Documents with the amendment. For plan the aspirational components of a plan, and Planning Records development or revision, the decision but we believe that we can interpret the The proposed rule would require the document would also be accompanied consistency requirement, in a way that responsible official to record approval of by a final EIS. A plan amendment makes those components more a new plan, plan revision, or would be accompanied by appropriate meaningful in the day-to-day amendment in a decision document NEPA documentation. management of the unit. The proposed prepared according to Forest Service rule therefore would provide that each NEPA procedures. This section Planning Records project must be expected to either to describes requirements for decision This section also sets forth basic move the plan area toward desired documents and associated records for requirements for the responsible official conditions and objectives, or at least not approval of plans, plan amendments, or to maintain public documents related to to preclude the eventual achievement of plan revisions. the plan and monitoring program. It desired conditions or objectives. would require the responsible official to This interpretation would apply to Decision Document ensure that certain key documents are plans developed under this rule. Plans Many members of the public have readily accessible to the public online developed under prior rules were not expressed a desire for greater and through other means. The developed with this interpretation in transparency to help understand published planning documents mind, and therefore applying this decisionmaking in the development, associated with a plan, plan revision, or interpretation to projects governed by revision, and amendment of plans. The amendment are listed in paragraph such plans would not be feasible or proposed rule would require the (b)(1) of this section. These documents appropriate. decision document to describe the must be posted online. Other documents This section would provide that rationale for approval of a plan. It that support the analytical conclusions projects and activities authorized after further would require that the decision and alternatives of the planning process approval of a plan, plan revision, or document include an explanation of would be part of the planning record plan amendment developed pursuant to how plan components meet plan and must be available to the public this rule must be consistent with plan requirements for sustainability and although they would not be required to components as set forth in this section. diversity set forth in §§ 219.8 and 219.9. be online. The planning record for each Project approval documents would have This explanation would allow the plan, plan revision, or amendment to describe how the project or activity responsible official to say what the plan would be required to be maintained and is consistent in order for it to be components are designed to do given available to the public at the office that considered as such. The proposed rule the limits of Forest Service authority developed that plan, plan revision, or specifies criteria to evaluate consistency and the capability of the plan area. In amendment. with the plan for each plan component. addition the explanation would be The proposed rule states that a project required to describe how the plan Section 219.15 Project and Activity or activity must contribute to the applies to approved projects and Consistency With the Plan maintenance or attainment of one or activities (§ 219.15(a)), and how the best The NFMA requires that ‘‘resource more goals, desired conditions, or available scientific information was plans and permits, contracts and other objectives, or must not foreclose the taken into account and applied instruments for the use and occupancy opportunity to maintain or achieve any (§ 219.3). The decision documents must of National Forest System lands shall be goal, desired condition, or objective contain research station director consistent with the land management over the long term. Desired conditions, concurrence on experimental forests plans’’ (16 U.S.C. 1604(i)). However, no objectives, and/or goals are all expected and ranges (§ 219.2(b)(4)) to ensure previous planning rule provided to provide the purpose and need for proper coordination between the specific criteria to evaluate consistency most projects and activities; thus, most Research and NFS branches for the of projects or activities with the plan. projects or activities would usually be management of these areas. The Forest Service policy was that designed to meet one or more of these effective date of approval (§ 219.17) consistency could only be determined plan components. For example, if a plan would also be required to clarify the with respect to standards and has an objective to construct X number exact date the plan action takes effect. guidelines, or just standards. See the of trails for recreation over Y years, a These requirements would help 1991 Advanced Notice of Proposed project to build trails would be provide a clearer understanding of the Rulemaking 56 FR 6508, 6519–6520 consistent with that objective. approval, the reasons for approving the (Feb. 15, 1991) and the 1995 Proposed However, even when a project is plan, plan revision, or plan amendment Rule, at 60 FR 18886, 18902, 18909 proposed for a reason other than to meet and its immediate consequences in a (April 13, 1995). a desired condition, objective, or goal way that is clear to all participants in The Forest Service’s position has been (for example, an unexpected proposed the planning process. that a project’s consistency with a land use such as a new permit application), Meeting the proposed requirements management plan could only be the project would be consistent if and for a plan development or plan revision determined with respect to standards only if it does not foreclose the would require a comprehensive and guidelines, because an individual possibility of achieving any desired discussion of each of these requirements project by itself could almost never conditions, objectives, and goals of the with respect to the plan. For an achieve objectives and desired plan. As an example, a project is

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proposed to repair the effects of a project or activity is consistent with the entities, and governments to participate landslide, but the plan does not describe plan as amended. The responsible in the planning process. In this section, desired soil conditions, or objectives for official could also make a project- the proposed rule sets forth repairing landslides. If the repair project specific amendment contemporaneously requirements for public notification does not prevent achieving other goals, with the approval of the project or designed to ensure that information desired conditions, or objectives, the activity so that it is consistent with the about the process reaches the public in project would be consistent with these plan as amended. a timely and accessible manner. This plan components. Project specific amendments are section describes when public This paragraph of the proposed rule usually short-lived with the project, notification is required, how it must be also would require projects or activities very localized to the project area, and provided, and what must be included in to comply with applicable standards. have limited utility outside of the each notice. The requirements in this Projects or activities would also have to project activity. Project specific section respond to the consensus that be consistent with applicable amendments allow appropriate action or people want to be informed about the guidelines, but consistency may be a reasonable project to continue without various stages of the planning process, determined in one of two ways. The unnecessary delay for a larger with clear parameters for when and how project or activity either must comply permanent amendment process. This they could get involved. with the applicable guidelines or must provides a means to accommodate Public notification would be required be designed in a way that is as effective exceptions. to begin preparation of an assessment; in carrying out the intended The Agency has experienced begin the development of a plan contribution to the applicable goals, difficulties determining how new plan proposal; propose a plan, plan desired conditions, or objectives; components and content in a plan apply amendment, or plan revision and invite avoiding or mitigating undesirable to existing projects and activities when comments on the proposed plan, plan effects; or meeting applicable legal amending or revising plans. This section amendment, or plan revision and requirements. would require (with respect to projects accompanying environmental For example, a plan could contain a and activities approved before the documentation; begin the objection guideline designed to protect a riparian effective date of the plan, plan period for a plan, plan amendment, or area that recommends not allowing soil- amendment, or plan revision) that plan revision; and announce final disturbing activities within 300 feet either: (1) The plan approval document approval of a plan, plan revision, or from the edge of a perennial stream. The must expressly allow such projects to go plan amendment (§ 219.16(a)). Notice responsible official could propose to forward or continue, and thus deem would also be required if a responsible eliminate or control invasive species of them consistent, or (2) in the absence of official chose to use a new planning rule plants with prescribed burning, which such express provision, the authorizing to complete a plan, plan revision, or would require a mechanical fireline instrument (permit, contract, etc.) plan amendment initiated under the within 200 feet of the same stream and approving the use, occupancy, project, previous rule; and for administrative other streams and wetlands. After site- or activity must be adjusted as soon as changes, changes to the monitoring specific examination, an practicable to be consistent with the program, assessment reports, and interdisciplinary team might plan, plan amendment, or plan revision, monitoring evaluation reports. Notice recommend that the fireline be allowed subject to valid existing rights. and public involvement in the in that location, if sediment fences, Other types of plans may be assessment phase and development of a slash, logs across slopes, and straw bales developed for the lands or resources of plan proposal are especially significant are used to protect water quality in the the unit. These resource plans, such as additions to the requirements for public nearby stream from sediment (loose soil) travel management plans, wild and notice included in prior planning in stormwater runoff. A responsible scenic river plans, etc., provide further regulations. official may conclude that the project, as guidance for approval of projects or Discussions at several public meetings designed, is consistent with the activities; therefore, they would also be emphasized the importance of updating guideline since its mitigation measures required to be consistent with the the way we provide notice to the public are as effective as the 300 foot applicable land management plan. If to ensure that we successfully reach a recommendation in contributing to such plans are not consistent, diverse array of people and desired conditions for the stream modifications of the resource plan must communities and inform them about the system. be made or amendments to the land process and how they could participate. For the suitability plan component, management plan must be made to Many people said that using only one the project or activity would be resolve any inconsistencies. outreach method would not reach all consistent if it occurred in an area the needed communities. In response, plan has identified as suitable for that Section 219.16 Public Notifications § 219.16 directs responsible officials to type of project or activity, or in an area The proposed rule represents a use contemporary tools to provide for which the plan is silent with respect significant new investment in public notice to the public, and, at a minimum, to the suitability of that type of project engagement designed to involve the to post all notices on the relevant Forest or activity. public early and throughout the Service Web site. In addition, the This section of the proposed rule planning process. The Agency is making proposed rule continues to require would give the responsible official four this investment in the belief that public traditional forms of formal notice, options to resolve inconsistency, subject participation throughout the planning including the Federal Register or the to valid existing rights, when it is process would result in a more informed applicable newspaper of record, for determined that a proposed project or public, better plans, and plans that are assessments and approval of plans, plan activity would be inconsistent with the more broadly accepted by the public revisions, and plan amendments. For plan. The project or activity may be than in the past. This section is the administrative changes, changes to the modified so that it is consistent, or may companion to § 219.4, which sets forth monitoring plan, and publication of be rejected, or terminated. Alternately, direction for responsible officials to assessment or monitoring reports, the the responsible official could make a engage the public and provide responsible official must post the notice general amendment to the plan so the opportunities for interested individuals, online and has discretion in

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determining other means of providing new rule. After 3 years, all new plan directives/fsm/2000/id_2020-2010- notice. amendments would conform to the new 1.doc. If you are interested in Public notices required in this section rule. This transition period for new restoration, we hope you also review the of the proposed rule must clearly amendments would give the responsible proposed changes to FSM 2020 when describe the action subject to notice and official the option to facilitate rapid the proposed directive is issued for the nature and scope of the decisions to amendments to plans developed under public comment. be made; identify the responsible previous rules for a limited time, until The Forest Service Directive System official; describe when, where, and how full familiarity with the new rule consists of the Forest Service Manual the responsible official will provide develops. No transition period would be (FSM) and the Forest Service Handbook opportunities for the public to provided for new plans or plan (FSH), which contain the Agency’s participate in the planning process; and revisions. Plan revisions are policies, practices, and procedures and explain how to obtain additional comprehensive and the new regulations serve as the primary basis for the information about the action being taken should be applied as soon practicable. internal management and control of or about the planning process. These For plan activity (plan development, programs and administrative direction requirements respond to the public’s plan revision, or plan amendment) to Forest Service employees. The desire for clarity in communications to initiated before the new rule goes into directives for all Agency programs are ensure the process is understandable effect, the responsible official may set out on the World Wide Web/Internet and accessible. choose whether to complete the plan at http://www.fs.fed.us/im/directives. This section of the proposed rule using the 2000 rule, as it is in effect provides that ‘‘formal notifications may now, or conform to the requirements of Subpart B—Pre-Decisional be combined where appropriate.’’ This the new rule after providing notice to Administrative Review Process provision would allow flexibility for the public. This would allow the Introduction to This Subpart plan amendments to have a more responsible official to consider many The Forest Service has provided an streamlined, efficient process than new factors and determine what is best for administrative review process for plans or plan revisions, where the planning process on the unit. appropriate. This approach is in keeping After it goes into effect, the new rule decisions and proposals related to land with the public’s desire and the will supersede all previous planning management plans since they were first Agency’s need for a process that allows rules. Units with plans developed under produced in the 1980s, and an appeal units to quickly and efficiently adapt to the 1982 rule or rule procedures would process by which the public can new information and changing no longer be subject to the requirements challenge individual project and permit conditions. (See § 219.13 for further of the 1982 rule, but would continue to decisions made by Forest Service discussion.) be subject to any requirements included responsible officials since 1906. The The requirements as proposed in in their plan. Activities and projects on Forest Service has a long history of § 219.16, along with those in § 219.4, those units would have to meet the providing an administrative review should lead to a public participation requirements of the plan. This process that has allowed interested effort that provides broad access and paragraph in the proposed rule is individuals and organizations the attempts to engage and meet the unique needed for clarity so that all NFS units opportunity to have unresolved information needs of the public understand they are subject to the new concerns considered and responded to interested or affected by management on planning rule for plan development, by an independent agency official at a each unit. plan amendment, and plan revision, level above the deciding official. This while still requiring NFS units to follow process has also provided for additional Section 219.17 Effective Dates and internal review to ensure that Forest Transition the plan provisions of their current plans. Service proposals and decisions comply Section 219.17 of the proposed rule with applicable laws, regulations, and describes when approval of plans, plan Section 219.18 Severability agency policy. revisions, or plan amendments would If any part of this proposed rule is Prior to the 2000 rule, the take effect and when units must begin held invalid by a court, this section administrative review process for unit to use the new planning regulations. provides that the invalid part would be plan decisions provided an opportunity A plan, plan amendment, or plan severed from the other parts of the rule, for a post-decisional appeal. In other revision would take effect 30 days after which would remain valid. words, at the time the plan decision was plan approval is published. The NFMA issued, the plan was generally put into (16 U.S.C. 1604(j)) requires the 30-day Section 219.19 Definitions effect. This scenario has often been delay for plans and revisions. The This section sets out and defines the problematic because when reviewing proposed rule would also impose this special terms used in this proposed rule. appeals, if a reviewing officer finds fault delay upon amendments to be The Agency is about to ask for public with a plan already in effect, the remedy consistent with the process for plan comment on a proposed change to can be costly to both the Forest Service development and plan revision. The Forest Service Manual (FSM) 2020— and the public in terms of time and only exception is for project specific Ecological Restoration and Resilience, money. Such a situation can also amendments, which would take effect at which includes the definition of damage public trust in the planning the same time as the project(s) with restoration. FSM 2020 provides process. Interim direction is often put which they are associated. foundational policy for using ecological into place while the responsible official When the final rule goes into effect, restoration to manage National Forest prepares further analysis and other new plans and plan revisions must System lands in a sustainable manner. appropriate corrections. conform to the new planning The definition for restoration also With the promulgation of the 2000 requirements in Subpart A. There would appears in FSM 2020. The proposed planning regulations, and in subsequent be a 3-year transition window during rule definition is based on the definition regulations promulgated in 2005 and which amendments may be initiated in the current FSM 2020, but is not 2008, the Agency moved toward a pre- and completed using the 2000 rule or identical. The current directive may be decisional administrative review the amendments may conform to the found at http://www.fs.fed.us/im/ process called an objection process.

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This process allows interested Secretary of Agriculture or the Under procedural information, can find individuals to voice objections and Secretary for Natural Resources and underlying documents, and understand point out potential errors or violations Environment would not be subject to the process, timing, and requirements of law, regulations, or agency policy the objection process of this subpart for filing an objection. prior to approval of a decision. An because the Department’s position for Section 219.53 Who May File an objection prompts an independent all Forest Service administrative review Objection administrative review by an official at a processes has been that secretarial level above the deciding official and a decisions are not subject to This section of the rule identifies process for resolution of issues. This administrative review (the Agency eligibility requirements for filing an change was intended to provide for anticipates that plans, plan objection under this subpart. This better decisions and efficient resolution amendments, or plan revisions section is written in the context of of issues. The Forest Service has proposed by the Secretary or Under § 219.4 in Subpart A, which expresses successfully used a similar process Secretary would be rare occurrences); the Agency’s intent to involve the since 2004 for administrative review of and if another administrative review public early and throughout the hazardous fuel reduction projects process is used, the process in this planning process in keeping with the developed pursuant to the Healthy subpart would not apply. Section 219.59 collaborative nature of this proposed Forests Restoration Act; however, there identifies the limited circumstances in rule. has been limited application of the which a different administrative review Paragraph (a) provides that objection process to land management process may be used. individuals and organizations who have plan proposals due to legal challenges to submitted ‘‘formal comments’’ related to Section 219.52 Giving Notice of a Plan, the previous three planning regulations. a plan, plan amendment, or plan After a review of public comments Plan Amendment, or Plan Revision revision during public participation and consideration of agency history Subject to Objection Before Approval opportunities provided in planning regarding pre- or post-decision Section 219.52 provides additional process for that decision could file an administrative appeal in this proposed information for providing the public objection. ‘‘Formal comments’’ are rule, the objection process is proposed. notice, required by section 219.16 defined at § 219.63 as ‘‘written This proposal is based on two primary subpart A, that would begin the comments submitted to, or oral considerations. First, a pre-decisional objection filing period. This notice comments recorded by, the responsible objection is more consistent with the serves three particular purposes: (1) To official or his/her designee during an collaborative nature of this proposed notify parties eligible to file objections opportunity for public participation rule and encourages interested parties to that the objection filing period is provided during the planning process bring specific concerns forward early in commencing; (2) to notify parties and attributed to the individual or the planning process, allowing the eligible to file objections and others of organization providing them.’’ This Forest Service a chance to consider and the availability of planning documents requirement would allow those who respond to potential problems in a plan and how to obtain those documents; and have engaged in the process in a or decision before it is approved. (3) to establish a publicly and legally substantive way to object to the plan Second, pre-decisional objections lead verifiable start date for the objection decision. Since formal comments could to a more timely and efficient process filing period. be made at opportunities for public for developing plans, thus reducing Section 219.52 would require the participation provided at any point in waste of taxpayer and agency time and Forest Service to make a special effort the planning process, the Agency dollars spent implementing projects to ensure the public understands how believes it is not too high of a burden under plans subsequently found to be the objection process in this subpart for a potential objector. The definition flawed. would be used for each plan, plan specifically would allow oral comments Subpart B sets forth the requirements amendment, and plan revision. to be formally recorded in order to for the objection process in the Specifically, the responsible official accommodate individuals new to the proposed rule, explained in detail would be required to disclose the process or those who would prefer to below. objection procedures by stating so submit their comments orally. At the during scoping under the NEPA process same time, the requirement would Section 219.50 Purpose and Scope and in the appropriate NEPA include parameters for submitting This section states that the purpose of documents. Early disclosure would help formal comments to ensure the the subpart is to establish a process for assure that those parties who may want proposed rule would not inadvertently pre-decisional administrative review of to file objections are aware of the impose an unachievable burden on plans, plan amendments, and plan necessary steps to be eligible. Forest Service officials to record every revisions. The proposed rule also would require comment made, or written submission the responsible official to make the sent, outside of the offered participation Section 219.51 Plans, Plan public notice for beginning the objection opportunities. To honor the Amendments, or Plan Revisions Not filing period available to those who collaborative process and encourage Subject to Objection have requested the environmental participation in the numerous This section identifies those plans, documents or who are eligible to file an opportunities provided for public plan amendments, or plan revisions that objection. This is intended to ensure participation, this requirement would would not be subject to the pre- that the necessary information reaches bar individuals or organizations who decisional objection process under the those who have specifically requested it did not participate from using the proposed rule. Specifically, if no and those who could have a particular objection process. individual or organization would be interest in the start of the objection Paragraph (a) further would require eligible to file an objection based on the filing period by virtue of their eligibility that objections must be based on the requirements in § 219.53(a), then the to file an objection. substance of the objector’s formal plan proposal would not be subject to Paragraph (c) outlines the format and comments, unless the objection objection. Plans, plan amendments, or content of the public notice to ensure concerns an issue that arose after the plan revisions proposed by the potential objectors have necessary opportunities for formal comment.

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Furthermore, the burden would rest would provide for an objection to be official must also set aside from review with the objector to demonstrate filed with the reviewing officer in any issue within the objection that is compliance with the requirements for writing and would require all objections not based on previously submitted objection. This is to ensure that the be open to public inspection during the substantive formal comments and which Forest Service has the opportunity to objection process. did not arise after the opportunities for hear and respond to potential problems Paragraph (b) would provide that formal comment. The reviewing officer as early as possible in the process so incorporation of documents by reference must give written notice to the objector that new substantive problems are not not be allowed, with specific exceptions and the responsible official when an identified at the end of the planning listed. This provision would ensure the objection is set aside from review and process when they could have been contents and substance of an objection, must state the reasons for not reviewing previously addressed. including all attachments, are readily the objection. If the objection is set aside Paragraph (b) states that when an understandable and available to the from review for reasons of illegibility or organization submits comments, reviewing officer for timely completion lack of a means of contact, the reasons eligibility to submit an objection would of the objection process. Similarly, must be documented in the planning be conferred on that organization only, objectors must provide arguments and record. not on individual members of that supporting documentation, and cannot organization. The Agency believes an meet the requirements of this process by Section 219.56 Objection Time Periods organization is its own entity for attempting to incorporate by reference and Process purposes of submitting comments, and substantive materials and arguments. This section describes the timeframes that it is appropriate to accord an The Federal courts have taken a similar in the objection process, the reviewing organization eligibility to file objections view of such procedural maneuvers; see officer’s role and responsibilities, and as an organization after submitting Swanson v. U.S. Forest Service, 87 F.3d the means of providing public comments. However, the Agency does 339 (9th Cir. 1996). notification of the objections filed. The not believe it is appropriate to allow Paragraph (c) provides a detailed list provisions in this section are responsive individual members in that organization of information that must be included in to public concern that the review to file objections by virtue of an objection. The list is very similar to process be timely and efficient. membership in an organization that Department requirements in the The filing period for the objection submitted comments. Nothing in this objection regulations for hazardous fuel would be 30 days following publication section would prohibit an individual reduction projects authorized under the of the required public notice. The member of an organization from Healthy Forests Restoration Act (36 CFR objector would be responsible for filing submitting comments on his or her own Part 218), and the appeal regulations for the objection in a timely manner. The behalf. projects implementing land method to determine timeliness would Paragraph (c) clarifies that if an management plans (36 CFR Part 215). be based on indicators appropriate to objection is submitted on behalf of a The objection should set the stage for the method of submission. For example, number of named individuals or meaningful dialogue with the reviewing objections sent via the U.S. Postal organizations, each individual or officer and responsible official. Service must be postmarked on or organization listed must meet the Required information would be used to before the close of the last day of the eligibility requirements of paragraph (a) focus the administrative review and objection-filing period. Some members to be considered objectors. However, as written response of the reviewing of the public have raised the concern long as at least one individual or officer. For example, the objection must that this is not enough time to review organization listed meets the eligibility provide the basis for a potential remedy the planning documentation and requirements and the objection is not to the objection by including how the develop an objection. However, the otherwise flawed, the Forest Service proposed plan decision could be Agency believes that given the emphasis must accept the objection. Objections improved. An objector’s telephone this rule places on a collaborative rejected because they were not filed by number or e-mail address would be part planning process and the requirements an eligible individual or organization of the administrative record, considered outlined earlier for public notice, a 30- must be documented in the planning public information, and available under day filing period would be sufficient. record, but they would not receive a the Freedom of Information Act. Because the responsible official could response from the reviewing officer. not approve the plan, plan amendment, Section 219.55 Objections Set Aside or plan revision until after the objection Paragraph (d) states that Federal From Review agencies may not file an objection. process, it is important to ensure that Other avenues, including consultations This section sets out the proposed the submission, review, and resolution required by various environmental conditions under which the reviewing of, or response to, the objections occur protection laws, are available to Federal officer would not review an objection. in a timely manner. Additionally, by agencies for working through concerns The reviewing officer must set aside an requesting to meet with the reviewing regarding a proposed plan, plan objection without review or response on officer, objectors would have an amendment, or plan revision. It is the concerns raised when any of the opportunity to elaborate on those expected that Federal agencies will following apply: an objection is not filed concerns documented in their work cooperatively during the planning within the objection period; the objections. process. proposal is not subject to the objection Paragraph (e) describes the role and Paragraph (e) would allow Federal procedures of this section; the objector responsibilities of the reviewing officer. employees to file objections as did not meet the eligibility requirements The proposed rule would provide that individuals in a manner consistent with to object (§ 219.53); there is insufficient the reviewing officer be a line officer at Federal conflict of interest information to review and respond; the the next higher administrative level requirements. objector has withdrawn the objection in above the responsible official. A number writing; the objector’s identity cannot be of those who provided written comment Section 219.54 Filing an Objection determined and a reasonable means of expressed concern that agency This section provides information on contact has not been provided; or the reviewing officers could lack sufficient how to file an objection. Paragraph (a) objection is illegible. The reviewing objectivity to render a fair response to

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objections. Generally, these individuals discuss the objection and attempt in lieu of the objection process in advocated for the establishment and use resolution. To maintain as much of a certain circumstances. of some form of administrative review collaborative approach as possible Paragraph (a) would allow the use of board. However, we believe that the under the circumstances of an the administrative review procedure of Agency’s experience with review administrative review, this section another Federal agency when the plan, processes over the past century indicate would require the reviewing officer to plan amendment, or plan revision is that assigning the role of reviewing allow any other person who filed a part of a multi-Federal agency effort. officer to a line officer at the next higher request to participate in meetings to do This provision is proposed to minimize administrative level above the so. Requests to participate as an the confusion that could occur if responsible official does allow for a fair interested person would have to be filed multiple administrative review and impartial review of concerns raised with the reviewing officer within 10 processes are used for a single joint during the administrative review days of the publication of the notice of proposal. It also requires that the public processes. filed objections. The meetings would notice identify which administrative For plan amendment objections only, always be open to the public, but only review procedure is to be used. the next higher-level line officer could the objectors and interested persons Paragraph (b) provides that the delegate the reviewing officer authority who filed a request to participate in the objection process in this subpart of the and responsibility to a line officer under meeting could participate; others could proposed rule would not apply when a his or her chain of command at the same attend the meetings but only to observe. plan amendment decision is made at the administrative level as the responsible Paragraph (b) would provide for a same time as a project or activity official. In other words, if the written response to the objection. The decision, and is specifically limited to responsible official for a plan reviewing officer could issue a single that project or activity. Instead, the amendment is a forest supervisor, the response to multiple objections of the regulations for notice, comment, and regional forester or deputy regional same plan, plan amendment, or plan appeal of projects at 36 CFR Part 215, forester (agency directives assign deputy revision. Whether in individual or the regulations for objections to regional foresters line officer authority) responses or a consolidated response, hazardous fuel reduction projects could delegate the reviewing officer the reviewing officer’s response would authorized by the Healthy Forests responsibilities to another forest be limited to only those concerns Restoration Act, at 36 CFR Part 218, supervisor. The Agency believes the submitted in the objection(s). Paragraph would apply to the amendment as well option of making such a delegation (b) also states that the reviewing as the project. In this type of mixed could contribute to a more effective, and officer’s response would be the final decision, the project decision is the still impartial, review process; for decision of the Department of dominant part so the administrative example, in instances where a particular Agriculture on the objection. review process for projects is more line officer at the same administrative appropriate than the objection process level as the responsible official is more Section 219.58 Timing of a Plan, Plan contained in this subpart of the familiar with particular plan issues or is Amendment, or Plan Revision Decision proposed rule. more readily available to meet with This section describes when a However, paragraph (b) also would objectors. Responsibility for new plans responsible official could approve a provide that the objection process in or plan revisions could not be delegated. plan, plan amendment, or plan revision. this subpart be used for an amendment Paragraph (f) would require the Paragraph (a) would allow a that applies not just to one project or responsible official to publish a notice responsible official to approve a plan, activity, but to any future project or of all objections in the applicable plan revision, or plan amendment only activity for which it is relevant, even newspaper of record and online within after the reviewing officer has when the amendment is approved as a 10 days of the close of the objection- responded to all objections in writing, part of a mixed decision with a project filing period. This requirement would and § 219.57(b)(1) specifies the response or activity. Because the plan allow any person or entity that may need not be point-by-point. amendment would apply broadly, and have specific interest in the outcome of Paragraph (c) provides that when no not just to the project, it would be an objection to participate in the objection is filed on a plan, plan subject to the pre-decisional objection as an ‘‘interested person,’’ as amendment, or plan revision within the administrative review process of this provided in § 219.57. 30-day period for filing an objection, the subpart, while the project part of the Paragraph (g) would require the responsible official could approve the decision would be subject to the reviewing officer to issue a written plan, plan amendment, or plan revision. administrative review process of either response to the objector(s) within 90 Approval could occur on or after the 5th 36 CFR Part 215 or Part 218. days. The reviewing officer could business day following the end of the Corresponding provisions for extend the 90-day time frame in the objection filing period. The 5 business administrative reviews of the mixed event of a large number of objection day delay/buffer is to allow sufficient decisions described by these two filings or so that meaningful and time for any objections that may have scenarios already exist in 36 CFR Parts productive discussions to resolve issues been timely filed through the U.S. Postal 215 and 218. are not cut short. Service (i.e., postmarked before the end of the objection filing period) to be Section 219.60 Secretary’s Authority Section 219.57 Resolution of received by the reviewing officer. Paragraph (a) explains that no part of Objections Objections that are timely filed but not this proposed rule would restrict the This section describes the objection received by the fifth business day Secretary’s authority. resolution process. The objective of this following the end of the objection-filing Section 219.61 Information Collection administrative review process is to period would not be considered. resolve as many concerns as possible Requirements prior to approval of a plan, plan Section 219.59 Use of Other This section explains that the rule amendment, or plan revision. Paragraph Administrative Review Processes would contain information collection (a) would allow the reviewing officer or This section would allow for the use requirements as defined in 5 CFR Part the objector to request a meeting to of other administrative review processes 1320 and specifies the information that

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objectors would have to supply in an alternatives: (A) The proposed NFS for planning rules issued between 2000 objection. planning rule (proposed rule); (B) the and 2008 and recent historical data implementation of 1982 rule procedures (1996–2009) regarding regional and Section 219.62 Definitions under the 2000 rule (No Action); (C) the unit-level budget allocations and paid This section defines some of the minimum to meet the National Forest expenditures for planning and commonly used terms and phrases used Management Act (NFMA) and purpose monitoring activities related to in Subpart B of the proposed rule. and need; (D) a modified version of the planning. Agency costs are initially 4. Regulatory Certifications proposed rule with an alternative estimated for the 1982 rule procedures approach to species diversity and an and then used as a baseline from which Regulatory Planning and Review emphasis on watershed health; (E) a adjustments are made, based on explicit The Agency reviewed this proposed modified version of the proposed rule differences in planning procedures, to rule under U.S. Department of with emphasis on monitoring estimate costs for the proposed rule. Agriculture (Department) procedures performance and collaboration. Cost projections of the proposed rule are and Executive Order (E. O.) 12866 Procedural effects evaluated include speculative because there are challenges issued September 30, 1993. potential changes in agency costs and anticipating the process costs of revising The Agency has determined this changes in overall planning efficiency. and amending plans at this proposed rule is not an economically Alternative B is the no action alternative programmatic level of analysis. The significant rule. This proposed rule will and therefore the baseline for this Agency will not be able to determine not have an annual effect of $100 analysis. costs until the Department issues the The effects of the proposed rule are million or more on the economy nor final rule and the Agency implements it. evaluated within the context of a adversely affect productivity, Annual costs are estimated separately planning framework consisting of a competition, jobs, the environment, for years during which units (with three-part learning and planning cycle: public health or safety, nor State or local regional support) are engaged in plan Assessment, development/revision/ governments. This proposed rule will revision and the years units are engaged amendment, and monitoring. The cost- not interfere with an action taken or in plan maintenance/amendment. The benefit analysis focuses on key activities estimated costs are then aggregated to planned by another agency. Finally, this related to this three-part planning cycle proposed rule will not alter the estimate total planning costs. Over a for which agency costs can be estimated 15-year planning cycle, it is assumed budgetary impact of entitlements, under the 1982 rule procedures and the grants, user fees, or loan programs or the that management units will be engaged proposed rule. Differences in costs in plan revision for 3 years under the rights and obligations of recipients of across alternatives are estimated when such programs. However, because of the proposed rule and 5 years under the possible, but benefits are discussed 1982 rule procedures, implying annual extensive interest in NFS planning and qualitatively as potential changes in decisionmaking, this proposed rule has plan maintenance or more frequent but procedural or programmatic efficiency. shorter amendments will be occurring been designated as significant and, The key activities for which costs were therefore, is subject to Office of for the remaining 12 and 10 years analyzed include: (1) Assessments (e.g., respectively. Management and Budget review. An activities conducted to establish a need analysis was conducted to compare the to change the existing plan prior to Monitoring is assumed to occur every costs and benefits of implementing the initiating plan revisions or plan year, but monitoring differs slightly for proposed rule to the baseline, which amendments); (2) collaboration (e.g., plan revision years compared to assumes planning pursuant to the 1982 collaboration and public participation maintenance years. Shorter revision rule procedures, as allowed by the activities in addition to those required periods reflect the expectation that the transition provisions of the 2000 by the NFMA and NEPA); (3) process for revising plans will be more planning rule (36 CFR 219.35(b), 74 FR development and analysis of plan efficient because of procedural changes 67073 (December 18, 2009)). This revision and amendment decisions (i.e., described below (see ‘‘Efficiency and analysis is posted on the World Wide developing of alternatives to address the Cost Effectiveness Impacts’’). It is also Web at: http://www.fs.usda/ need to change the plan, analyzing and assumed that approximately 120 planningrule, along with other comparing the effects of alternatives, management units will initiate plan documents associated with this and finalizing and documenting plan revision over the next 15 years (i.e., proposed rule. revision and plan amendment 2012 through 2026). Total costs are The scope of this analysis is limited decisions); (4) science support (i.e., assumed to cover activities directly to programmatic or agency procedural activities for assuring consideration and related to planning (and monitoring for activities related to plan development, use of the best scientific information); planning purposes) at the unit and plan revision, and plan amendment (i.e., (5) monitoring (limited to those regional office levels, as well as indirect maintenance) of land management plans monitoring activities that support or overhead (i.e., cost pools) activity for for management units (e.g., national planning); (6) resolution of issues supporting planning activities, but do forests, grasslands, prairies) within the regarding plan revisions or plan not include project-level costs. Costs NFS. Agency, or private costs or benefits amendments through the administrative associated with planning at the national associated with on-the-ground or site- processes of appeals or objections; and office and research stations are assumed specific activities and projects are not (7) minimum maintenance (i.e. to remain relatively constant across characterized or projected. Potential minimum expenses to maintain a plan alternatives. Total costs (2009 dollars procedural effects evaluated in the during non-revision years, excluding ($)) are estimated for a 15-year planning analysis include potential changes in assessment, collaboration, and analysis/ cycle and then annualized assuming a agency costs and changes in overall decision costs associated specifically 3 percent and 7 percent discount rate. planning efficiency. This analysis with plan amendments). Annualized costs accrued over the identifies and compares the costs and Primary sources of data used to 15-year period reflect the annual flow of benefits associated with developing, estimate agency costs include recent costs that have been adjusted to maintaining, revising, and amending cost-benefit analyses, business acknowledge society’s time value of NFS land management plans under five evaluations, and budget justifications money.

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Due to the programmatic nature of the activities. It is likely the cost of training managing resources that meet public proposed action, the benefits derived will decrease gradually over time. demand in a sustainable fashion and from land management plans Therefore, during the first 15-year satisfy the goals of the MUSYA and the developed, revised, or amended under period, planning costs will be slightly NFMA. the different alternatives are not elevated and not significantly different Under the proposed rule, costs are quantified. Instead, the benefits of the from the no-action alternative as units projected to be redirected toward alternatives are assessed qualitatively adjust to the new planning process and collaboration, assessment, and for procedural or programmatic build collaborative capacity. In monitoring activities and away from efficiency. Efficiency is a function of subsequent 15-year periods, planning development and analysis of (1) the time and resources used (costs) costs are likely to decrease as the new alternatives compared to the 1982 rule to complete and maintain plans, and (2) process becomes more established. procedures. Costs are also redirected the degree to which those plans are Costs in subsequent planning cycles are more toward maintenance or plan capable of providing direction for expected to be lower than those amendments under the proposed rule, resource monitoring, management, and estimated in this analysis for the due in part to expectations that less time use/access that sustains multiple uses proposed rule. will be needed to complete plan (including ecosystem services) in The cost and benefit analysis assumed revisions. These effects are projected to perpetuity and maintains long-term eight management units will start plan occur, in part, because of broader health and productivity of the land for revision annually. Therefore, support and resolution of issues at the benefit of human communities and approximately 120 management units earlier stages of plan revision, achieved natural resources, giving due will at least initiate plan revision over through collaboration as well as other consideration to relative values of the next 15 years (i.e. 2012 through procedural changes. resources (i.e., meets the objectives of 2026). This analysis also assumed each The reallocation of efforts and costs the NFMA and other key guiding management unit would take 3 years to across different phases of planning, and legislation). revise a plan under the proposed rule across key planning activities under the and 5 years under the 1982 rule proposed rule is expected to improve Agency Cost Impacts procedures. Given these assumptions, overall planning efficiency. Shifts in Results of the cost analysis indicate over a 15 year period, there would be emphasis and resources under the agency costs increase for some key approximately 104 plan revisions proposed rule are projected to improve activities and decrease for others under completed under the proposed rule in the currency, reliability, and legitimacy the proposed rule and alternatives. contrast to an estimated 88 plans of plans to serve as a guide for: (1) However, total annual planning costs revised under the 1982 rule procedures, Reducing uncertainty by identifying and are not projected to be substantially a net increase of 16 plans revised under gathering new information about different between the proposed rule and the proposed rule. conditions, trends, risks, stressors, the 1982 rule procedures. Estimates of contingencies, vulnerabilities, values/ potential differences in planning costs Efficiency and Cost-Effectiveness needs, contributions, and management are complicated by the unknown effects Impacts constraints; (2) integrating and assessing of any future Forest Service directives The numerous public meetings, ecological, social, and economic that might be developed to support the forums, and roundtable discussions information to determine if outputs and proposed rule. revealed growing concern about a outcomes related to unit contributions The annual average undiscounted cost variety of risks and stressors (e.g., to ecological, social, and economic to the Agency for all planning-related climate change; insects and disease; conditions indicate a need to change the activities under the proposed rule recreation, timber, and shifts in other plan; and (3) responding to the need for ($102.5 million per year) is estimated to local demands and national market change in management activities, be $1.5 million per year lower compared trends; population growth, and other projects, or revisions and amendments to the 1982 rule procedures ($104 demographic shifts; water supply to plan components. Potential increases million per year). Assuming a 3 percent protection and other ecosystem support and/or reallocation of costs associated discount rate, the projected annual cost services). Addressing these types of with assessment, analysis, and for the proposed rule is estimated to be risks and contingencies requires a larger monitoring requirements for elements $102 million, while the projected landscape perspective, information from such as diversity and sustainability are annual cost for the 1982 rule procedures a broad spectrum of sources and users, expected to provide clearer direction for is $103 million, implying a projected and a framework that can facilitate subsequent project planning. It is annual cost difference of only $1 adaptation to new information. The new recognized project-level costs are not million. Assuming a 7 percent discount procedural requirements under the included in the analysis of land rate for the same timeframe, the proposed rule are designed to recognize management planning costs. Details projected annual cost estimate for the these needs. The requirements are about the potential effects of specific proposed rule is $80 million compared intended to increase agency capacity to procedural changes on agency costs and to $81 million under the 1982 rule adapt management plans in response to planning efficiency are described below, procedures. new and evolving information about by activity category. Based on the above quantitative risks, stressors, contingencies, and Assessment: Slight increases in comparison, annual average planning management constraints as described in assessment costs (compared to the cost costs to the Agency are projected to be the section above. It is anticipated under of doing an analysis of the management similar for the proposed rule and the the proposed rule that management situation under the 1982 rule 1982 procedures. If the Agency units will be better able to keep plans procedures) are anticipated under the implements the planning rule as updated and current with evolving proposed rule. This is due to an proposed, it is anticipated employee science and public concerns without increased emphasis on characterizing training will be needed, in large part substantial changes in planning costs factors such as unit roles and due to the proposed collaborative over a 15-year period. The Agency contributions within a broader process and reallocation of resources would be able to establish plans that are ecological and geographic context across different planning related efficient and legitimate frameworks for (landscapes), ecosystem and species

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diversity, climate change, as well as need to change the plan during meeting requirements for plant and other system drivers, risks, threats, and assessments; animal diversity; vulnerabilities, as well as the mitigating Reduced need for large numbers of A greater emphasis on ecosystem effects of other elements such as plan alternatives as well as time needed sustainability and resiliency in plan direction to rely on existing information to complete plan revisions as a components is expected to increase the and the removal of required prescriptive consequence of broader support and ability of management units to respond benchmark analysis. Changes in the resolution of issues achieved through efficiently to new information regarding assessment requirements and guidance collaboration during early phases of environmental, social, and economic are expected to increase planning proposed plan development; risks and stressors, including climate efficiency and effectiveness by Improved perceptions regarding the change and market trends, that might improving capacity to assimilate and legitimacy of plans and the planning threaten the long-term productivity and integrate new information for process, as well as reduced agency costs sustainability of forest resources and determining a need to change the plan. associated with resolving objections (or outputs; Assessments would be conducted at conflict) by increasing transparency, Refocusing the use of the term landscape levels and at a geographic developing awareness of the values and ‘‘restoration’’ to focus on recovery of scale based on ecological, economic, or expected behavior of others, and seeking resiliency and ecosystem functions social factors rather than a strict greater consensus about values, needs, (instead of historical reference points) adherence to administrative boundaries. tradeoffs, and outcomes during earlier offers greater flexibility to develop plan This broader approach would enhance stages of planning; and, components (e.g., desired conditions) capacity to incorporate information Improved expectations about building that provide more feasible and about conditions outside of NFS unit (and regional) capacity to overcome adaptable direction for addressing boundaries. existing barriers to collaboration (e.g., damaged ecosystems; Risks and vulnerabilities to ecosystem absence of social networks or capacity; Greater emphasis placed on elements and functions would be perceptions about pre-existing power identifying each unit’s role in providing considered in assessments thereby relationships) through training and ecosystem services within a broader encouraging consideration of the effects facilitation. landscape or region should facilitate the of long-term environmental or social/ Analysis and decisions (plan design of management responses that economic variability, events, and trends development, plan revision or recognize the marginal effects or on future outputs, ecosystem services, amendment): Costs associated with contributions of ecological, social, or and outcomes. analysis and decisions are estimated to economic conditions originating from Collaboration: Costs associated with decrease under the proposed rule due outside of the traditional unit study area public participation are projected to primarily to the effect of fewer boundaries; increase under the proposed rule due prescriptive requirements (relative to More frequent amendments expected primarily to requirements that 1982 rule procedures) regarding under the proposed rule leading to more opportunities for collaboration be probable (management) actions, timber current plans and more focused provided at all stages of planning. Gains program elements, number and types of descriptions of the need to change the in cost effectiveness may occur, in part, alternatives, evaluation of alternatives, plan to guide future subsequent plan by providing responsible officials with and minimum management revisions; discretion to design collaborative requirements. The forces affecting the Fewer ‘‘minimum management strategies that meet unit-specific needs cost include (1) increased emphasis on requirements,’’ with flexibility to adopt and constraints and recognize local consideration of resource attributes and plan components to provide similar collaborative capacity. Costs for some conditions such as sustainability, levels of protection afforded by units may be higher where potential watershed health, and water supply, minimum management requirements barriers to collaboration are present and (2) adaptation to new approaches under 1982 rule procedures; and, (e.g., pre-existing relationships may for addressing species viability and Less prescriptive descriptions of exacerbate perceived inequities; absence diversity in the short-term (with long- timber harvests, sale schedule, and of pre-existing social networks or term potential for gains in cost- management practices under the capacity). However, changes in effectiveness). proposed rule (compared to the 1982 guidance and requirements for The following elements associated rule procedures) may provide greater collaboration under the proposed rule with the proposed rule are expected to flexibility for units to develop more are expected to increase planning increase planning efficiency by adaptive plans capable of responding to efficiency because of the following: facilitating plan revisions and uncertain vegetation management and Improved analysis and amendments, expanding capacity for restoration needs. decisionmaking efficiency during latter adaptive management, and improving Science support: Slight cost increases stages of planning due to increases in guidance for responding to diverse for science support may occur under the collaborative efforts during early phases; determinations of a need to change the proposed rule due in part to more Improved capacity to reduce plan: prescriptive language to take into uncertainty by gathering, verifying, and The adoption of a coarse-filter/fine- account the best available scientific integrating information from a variety of filter approach for addressing species information when preparing assessment sources, including tribal or other forms viability and diversity within plan reports, plan decision documents, and of knowledge and land ethics, within components, combined with the monitoring evaluation reports. On the and beyond unit boundaries; recognition of land management and other hand, guidance and requirements Potential to offset or reduce agency resource limits which constrain levels of under the proposed rule for taking monitoring costs as a result of achievable viability and diversity, is science into account contribute to collaboration during monitoring plan expected to make management units planning efficiency by maximizing development and monitoring itself; better able to develop plans that provide coverage of scientific input from diverse Improved capacity for identifying and feasible or realistic direction for sources, integrating science throughout integrating ecological, social, and responding to species and ecosystem all stages of planning, and taking economic indicators for determining the sustainability and recovery needs while advantage of scientific knowledge from

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external partners and agency research for monitoring under the proposed rule including recreation/tourism and water stations, thereby strengthening the are expected to increase planning supply/watershed health as well as decisionmaking process. effectiveness by improving capacity to restoration based activities. Resolutions: The cost effect of a shift gather information and reduce Proper Consideration of Small Entities from a post-decisional appeals process uncertainty for a number of integrated (under the 1982 rule procedures) to a ecological, social, and economic The proposed rule has also been pre-decisional objection period under conditions, trends, risks, stressors, considered in light of E.O. 13272 the proposed rule is difficult to project; constraints, and values within and regarding proper consideration of small however, the anticipated success of beyond unit boundaries. The following entities and the Small Business collaboration in achieving greater is a list of the changes. Regulatory Enforcement Fairness Act of understanding about plan components Monitoring under the proposed rule 1996 (SBREFA), which amended the and perceptions of legitimacy and trust focuses to a greater extent on Regulatory Flexibility Act (5 U.S.C. 601 in the planning process is expected to ecosystems, habitat diversity, and small et seq.). The Forest Service has have a beneficial effect on resolution numbers of focal species, with the intent determined this action will not have a activity and corresponding costs. that tracking overall species diversity significant economic impact on a Procedural changes related to and habitat sustainability will be more substantial number of small entities as collaboration are expected to provide cost effective and reflective of unit- defined by the E.O. 13272 and SBREFA, opportunities for resolving potential specific capacities compared to the 1982 because the proposed rule imposes no objections or conflict at earlier stages of rule procedures involving management requirements or costs on small entities, planning, thereby reducing the need for, indicator species (MIS). nor does it impose requirements or costs and cost of, resolutions at latter stages. Two-level monitoring is intended to on specific types of industries or Monitoring: Relative increases in create a more systematic and unified communities. In addition, the proposed monitoring costs are anticipated as a monitoring approach to detect effects of rule provides more opportunities for consequence of a greater emphasis on management within unit boundaries as small entities to collaborate with the broader input and participation in the well as track risks, stressors, and Forest Service and become more design and implementation of conditions beyond unit boundaries that involved in all phases of planning, monitoring, adjustments to new affect, or are affected by, unit conditions thereby expanding capacity to identify requirements for characterizing and actions. and consider the needs and preferences diversity and resiliency, and two-level Emphasis on coordination between of small entities. Timelier planning and (unit and broad-scale) monitoring. unit- and broad-scale monitoring helps management decisions under the However, over time, the two-level ensure information is complementary, is proposed rule should increase approach to monitoring is expected to gathered at scales appropriate to opportunities for small entities to increase monitoring efficiencies and monitoring questions, reduces benefit from implementation of updated decrease the cost of other planning redundancy, and improves cost- land management plans. Additional related activities. Under the proposed effectiveness. emphasis on ecosystem resiliency to facilitate restoration activities and on rule, the two-level approach to Distributional Impacts monitoring is intended to inform the sustainable recreation opportunities unit’s management and make progress Due to the programmatic nature of should help sustain economic toward desired outcomes. In addition, this rule, it is not feasible to assess opportunities linked to local or rural the monitoring program will be closely distributional impacts (e.g., changes in communities, many of which are host to tied to the assessment phase of the jobs, income, or other measures for small entities. Therefore, a regulatory planning framework, so the new socio-economic conditions across flexibility analysis is not required for information that arises through demographics or economic sectors) in this proposed rule. monitoring drives assessments to detail. In general, the proposed rule is Energy Effects determine the need to change a plan. designed to facilitate engagement and Unit monitoring and broader-scale involvement throughout all phases of This proposed rule has been reviewed monitoring levels are related. The two- planning, thereby improving capacity to under Executive Order 13211 issued level monitoring framework would consider and incorporate values and May 18, 2001 (E.O. 13211), ‘‘Actions effectively standardize unit-level concerns for all economic sectors and Concerning Regulations That monitoring requirements. The proposed social segments affected by any given Significantly Affect Energy Supply, rule would mobilize multi-party plan, plan revision, or amendment. The Distribution, or Use.’’ It has been monitoring resources by working across proposed rule is also intended to determined that this proposed rule does all Forest Service branches and engage facilitate assimilation of new not constitute a significant energy action partners and other government agencies information about local or rural, as well as defined in E.O. 13211. This proposed in its monitoring efforts to help reduce as national, concerns and values rule would guide the development, the cost of added monitoring throughout the planning process (i.e., amendment, and revision of NFS land requirements. There is also potential continuous cycle of assessment, management plans. These plans provide that collaboration would result in more development/revision/amendment, and the guidance for making future project cooperative monitoring programs with monitoring). or activity resource management other agencies and the public. This The proposed rule is more decisions. As such, these plans would could help leverage resources to prescriptive about considering and address access requirements associated accomplish additional monitoring. facilitating restoration of damaged with energy exploration and Monitoring requirements, such as resources as well as improving resource development within the framework of coordination of broad-scale monitoring, capacity to withstand environmental multiple-use sustained-yield as well as monitoring of ‘‘focal species’’ risks and stressors (i.e., resiliency), management of the surface resources of and select ecological conditions as thereby providing greater capacity for the NFS lands as required by § 219.10. measures for diversity, are expected to sustaining local or rural economic These land management plans may contribute to overall cost efficiency. opportunities to benefit from forest identify major rights-of-way corridors Changes in guidance and requirements resources and ecosystem services, for utility transmission lines, pipelines,

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and water canals. While these plans does not require additional information National Association of State Foresters, may consider the need for such facilities be provided from the public. This rule the National Conference of State and may include standards and does instead give direction that is more Historic Preservation Officers and other guidelines that may constrain energy detailed to both the public and Forest State and local government associations exploration and development, they Service personnel on the timelines, to encourage them to attend the four would not authorize construction of requirements, and procedures of the national roundtables held during them; therefore, the proposed rule does objection process. development of the proposed regulation. not constitute a significant energy action Attendance at the national roundtables Federalism within the meaning of E.O. 13211. The included both State and county effects of the construction of such lines, The Agency has considered this government officials and representatives pipelines, and canals are, of necessity, proposed rule under the requirements of from national associations such as the considered on a case-by-case basis as Executive Order 13132 issued August 4, National Association of Counties and specific construction proposals. 1999 (E.O. 13132), ‘‘Federalism.’’ The the National Association of County Consistent with E.O. 13211, direction to Agency has made an assessment that the Planners. Agency officials also met with incorporate consideration of energy proposed rule conforms with the the Association of State Fish and supply, distribution, and use in the Federalism principles set out in this Wildlife Agencies on May 26, 2010, to planning process will be included in the Executive Order; would not impose any obtain further input on the planning Agency’s administrative directives for compliance costs on the States; and rule from the perspectives of State carrying out the proposed rule. would not have substantial direct effects agencies. on the States, on the relationship Based on the input received Environmental Impacts between the national government and throughout all these meetings, the This proposed rule establishes the the States, nor on the distribution of Agency determined that additional administrative procedures to guide power and responsibilities among the consultation was not needed with State development, amendment, and revision various levels of government. Therefore, and local governments for the of NFS land management plans. The the Agency concludes that this development of this proposed rule. State Agency has prepared a draft proposed rule does not have Federalism and local governments are encouraged programmatic environmental impact implications. Moreover, § 219.4(a)(6) of to continue to comment on this statement to analyze possible this proposed rule shows sensitivity to proposed rule, in the course of this environmental effects of the proposed Federalism concerns by requiring the rulemaking process. rule, present several alternatives to the responsible official provide proposed rule, and disclose the opportunities for the participation of Consultation With Indian Tribal potential environmental impacts of State and local governments and Indian Governments those alternatives. The draft Tribes in the planning process. In On September 23, 2010, the Deputy programmatic environmental impact addition, § 219.4(b) requires the Chief for the National Forest System statement is available on the Web at responsible official to coordinate sent letters inviting more than 600 http://www.fs.usda.gov/planningrule. planning with State and local federally recognized Tribes and Alaska The proposed rule would require plan governments and Indian Tribes. Native Corporations to begin development, amendment, or revision to In the spirit of E.O. 13132, the Agency consultation on the proposed planning follow NEPA procedures. The rule provided many opportunities for State rule. The Forest Service will continue to requires an EIS for plan development and local officials, including their conduct government-to-government and plan revisions. The rule also national representatives, to share their consultation on the planning rule until requires that plan amendments comply ideas and concerns in developing the the final rule is published. The Forest with Forest Service NEPA procedures. proposed regulation. The Forest Service Service considers tribal consultation as The appropriate NEPA documentation made the December 18, 2009, NOI for an ongoing, iterative process that for an amendment may be an EIS, an the proposed planning rule available for encompasses development of the EA, or a CE, depending upon the scope comment and asked the public, proposed rule through the issuance of and scale of the amendment and its including State and local officials, for the final rule. likely effects. feedback on a set of eight principles that The Agency held 16 consultation could guide future land management meetings across the country in Controlling Paperwork Burdens on the planning. In addition, Forest Service November and December 2010. During Public regional office staff invited State and these meetings, Forest Service leaders In accordance with the Paperwork local government officials to participate met with tribal and Alaska Native Reduction Act of 1995 (44 U.S.C. 3501 in regional public roundtable meetings Corporation leaders, or their designees, et seq.), the information collection or that occurred in 34 locations throughout to discuss the tribal consultation paper, reporting requirements for the objection the country, and nearly all of these which described how the proposed rule process were previously approved by meetings had representatives from addressed concerns Tribes had raised the Office of Management and Budget county, city, and/or State governments during the collaborative sessions held (OMB) and assigned control number present. At the request of State and earlier in the year. In addition, Forest 0596–0172 for the objection process county officials, the Rocky Mountain Service leaders have been meeting one- included in the CFR 218 objection Region held a meeting with Wyoming on-one with tribal leaders that request regulation. State and county officials on April 14, consultation in this manner. These The information required by subpart 2010, in Cheyenne, WY; the Pacific consultation meetings have B of this rule is needed for an objector Southwest Region held a meeting with strengthened the government-to- to explain the nature of the objection California County officials on April 30, government relationship with the Tribes being made to a proposed land 2010. as well as improved the proposed rule. management plan, plan amendment, or Agency representatives also contacted The Agency incorporated the input plan revision. This proposed rule the National Association of Counties, received through consultation into the retains the objection process established the U.S. Conference of Mayors, the development of this proposed rule. All in the CFR 218 objection regulation and Western Governors Association, the comments received up through

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December 13, 2010, were considered for in association with the regional environmental impact statement for the the proposed rule; comments received roundtable being held in those regions, plan. after December 13, 2010, will be however, no Tribes attended. Tribal leaders stated that they want to considered for the final rule. To date, the Agency has heard from see non-federally recognized Tribes and Since the NOI was issued in tribal leaders that the rule should groups included in the consultation or December 2009, the Agency has also clearly state how the special rights and planning process, as well as the engaged the Tribes in the planning rule interests of Tribes would be provided involvement of youth. Non-federally development process through for in the planning process and show recognized groups and Tribes would be collaborative efforts designed to how Tribes will be engaged early able to participate in the planning complement the government-to- throughout the planning process. They process under the public requirements government consultation process. The emphasize the obligation the Forest in § 219.4. Per § 219.4(a)(3), responsible Agency sent a letter to all federally Service has to Tribes to fulfill treaty officials shall encourage participation recognized Tribes on December 18, obligations and trust responsibilities, by youth, as well as low-income and 2009, encouraging them to submit protect and honor reserved rights, and minority populations. comments on the NOI and inviting them fully recognize the unique government- Tribes place great emphasis on to participate in national and regional to-government relationship that exists protection of water resources and want roundtable meetings to share with the between the federal government and to see the planning rule include Agency what they want in the planning Tribes. Tribal leaders also state that the stipulations for water protection. Water rule. The letter stated that consultation role of science in the planning process resources are addressed throughout this typically begins later in the rule must account for traditional tribal proposed rule, including specifically in development process, but also provided knowledge. In response to these § 219.7 New plan development or plan revision, § 219.8 Sustainability, § 219.9 the option for Tribes to begin concerns, the proposed rule states that Diversity of Plant and Animal consultation sooner if they desired. plans and the planning process would Communities, and § 219.10 Multiple While most Tribes elected to wait to not affect treaty rights or valid existing Uses. Tribes support a management consult until later in the rule rights, and that plans must comply with approach that moves away from development process, some Tribes all applicable laws and regulations; the monoculture management and promotes began consultation through the local responsible official must offer sustainable and diverse populations of responsible official prior to the opportunities for Tribes to participate in plants and animals. Section 219.9 of the September 23, 2010, letter. Many tribal collaborative plan development, along comments were also received as part of proposed rule requires land with government-to-government the public record on the NOI. The management plans to contain consultation; and the responsible Agency analyzed these comments components to maintain or restore the official shall request information from separately from the general public structure, function, composition, and Tribes about native knowledge, comments, published a report about the connectivity of healthy and resilient including information about land ethics, comments, and posted the report on the terrestrial and aquatic ecosystems in the cultural issues, and sacred and planning rule Web site. Additionally, plan area to maintain the diversity of culturally significant sites during the many Tribes submitted letters as part of native species. planning process. the collaborative process. The content of Many Tribes expressed concerns these letters have been considered and Language has also been added to the regarding the Agency’s definition of incorporated into the rule development proposed rule at § 219.4(a)(8) to native knowledge. To address these process. encourage federally recognized Tribes to concerns, the definition of native The Agency held two national tribal seek cooperating Agency status. This knowledge in § 219.19 has been roundtable conference calls to provide provides an additional opportunity for expanded based on the feedback that we additional opportunities for Tribes and Tribes to be engaged in the planning received during consultation. The new tribal associations to comment on the process and provides further avenues definition acknowledges that native development of the proposed planning for Tribes to provide input during the knowledge is a way of knowing or rule. More than 45 Tribes and tribal planning process. To address tribal understanding the world derived from associations participated in the First concerns regarding statutes that require multiple generations of indigenous National Tribal Roundtable on May 3, consultation with federally recognized peoples’ interactions, observations, and 2010, and more than 35 Tribes and Indian Tribes and Alaska Native experiences with their ecological tribal associations participated in the Corporations, language at § 219.4(a)(5) systems, and that it is also place-based Second National Tribal Roundtable on specifies that the responsible official and culture-based knowledge in which August 5, 2010. Transcripts and shall provide the opportunity to people learn to live in and adapt to their summaries of these meetings are undertake consultation with federally own environment through interactions, available on the planning rule Web site. recognized Indian Tribes and Alaska observations, and experiences with their Several Forest Service regional offices Native Corporations in accordance with ecological system. held specific in-person tribal Executive Order 13175 of November 6, The Agency also received comments roundtables to discuss the planning 2000. Alaska Native Corporations also from tribal leaders related to the rule. The Southwestern Region held commented that they wanted their protection of cultural resources. Under tribal roundtables in Pojoaque, NM; planning efforts to be included under § 219.10, the plan must contain plan Albuquerque, NM; Phoenix, AZ and requirements for coordination with components for a new plan or plan Flagstaff, AZ. The Pacific Southwest other planning efforts. At § 219.4(b)(2), revision that provides for protection of Region held tribal roundtables in for plan development or revision, the cultural and historic resources and Bayside and Clovis, CA. Transcripts and responsible official shall review the management of areas of tribal summaries of these meetings are planning and land use policies of importance. available on the planning rule Web site. federally recognized Indian Tribes, Many Tribes have a variety of The Eastern and Southern Regions of other Federal agencies, and State and concerns regarding social, economic, the National Forest System also invited local governments. The results of the and ecological sustainability, and Tribes to attend separate tribal meetings review would be displayed in the suggest that the Agency specifically

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address cultural sustainability within Pursuant to Executive Order 13175 of under section 202 of the Act is not the proposed rule. § 219.8 in the November 6, 2000, ‘‘Consultation and required. proposed rule addresses sustainability Coordination with Indian Tribal Environmental Justice and requires that land management Governments,’’ the Agency has assessed plans include plan components to guide the impact of this proposed rule on The United States Department of the unit’s contribution to social and Indian tribal governments and has Agriculture, Forest Service, considered economic sustainability. To address determined that the proposed rule does impacts of the proposed rule to civil concerns regarding cultural not significantly or uniquely affect rights and/or environmental justice sustainability, proposed rule language at communities of Indian tribal (pursuant to Executive Order 12898 (59 § 219.8 requires that these plan governments. The proposed rule deals FR 7629, February 16, 1994)). If components take into account social, with the administrative procedures to implemented as proposed, with cultural, and economic conditions guide the development, amendment, collaborative outreach, public relevant to the area influenced by the and revision of NFS land management engagement and using NEPA procedures plan and the distinctive roles and plans and, as such, has no direct effect to document effects, this analysis contributions within the broader on the occupancy and use of NFS land. concludes that no adverse civil rights or environmental justice impacts from the landscape. Plan components must also The Agency has also determined that proposed planning rule are anticipated take into account cultural and historic this proposed rule does not impose to the delivery of benefits or other resources and uses. substantial direct compliance costs on program outcomes on a national level During the consultation meetings, the Indian tribal governments. This for any under-represented population or Agency heard from tribal leaders that proposed rule does not mandate tribal to other U.S. populations or confidentiality is a big concern. In order participation in NFS planning. Rather, communities from the adoption of the to address these concerns and explicitly the proposed rule imposes an obligation proposed planning rule. address confidentiality, § 219.1(f) states on Forest Service officials to reach out While national level impacts are not that the responsible official shall early to provide Tribes an opportunity expected to be disproportionate, yet-to- comply with Section 8106 of the Food, to consult and to work cooperatively be-identified adverse impacts may be Conservation, and Energy Act of 2008, with them throughout the planning possible on a regional or local level at Executive Order 13007 of May 24, 1996, process. the unit planning level. Differences in Executive Order 13175 of November 6, Takings of Private Property national level effects and regional/local 2000, laws and other requirements with level effects are the result of uneven respect to disclosing or withholding This proposed rule has been analyzed distribution of minorities, low-income under the Freedom of Information Act in accordance with the principles and populations, and variations in regional, certain information regarding reburial criteria contained in Executive Order cultural, or traditional use, and sites or other information that is 12630 issued March 15, 1988, and it has differences in local access to resources. culturally sensitive to Indian Tribe or been determined that the proposed rule Impacts on the national forest level will Tribes. does not pose the risk of a taking of be further examined at the local level, The Agency has heard from tribal private property. including NEPA analysis for plan leaders that they want to see sacred sites Civil Justice Reform development, plan revision, or plan protected. The proposed rule requires amendment and site-specific projects. that responsible officials request This proposed rule has been reviewed The collaboration required by the information from Tribes about sacred under Executive Order 12988, ‘‘Civil proposed rule has significant potential sites, and provides for protection of Justice Reform.’’ The Agency has not to reach and involve diverse segments of cultural and historic resources and identified any State or local laws or the population that historically have not management of areas of tribal regulations that are in conflict with this played a large role in NFS planning and importance. In addition, a separate regulation or that would impede full management. Section 219.4(a) requires initiative by the USDA Office of Tribal implementation of this rule. that when developing opportunities for Relations and the Forest Service is Nevertheless, in the event that such public participation, the responsible conducting a policy review concerning conflicts were to be identified, the official shall take into account the sacred sites and is consulting with proposed rule, if implemented, would discrete and diverse roles, jurisdictions, Tribes during their effort. The Agency preempt the State or local laws or responsibilities, and skills of interested has informed Tribes of this separate regulations found to be in conflict. and affected parties as well as the initiative and how they can participate However, in that case, (1) no retroactive accessibility of the process, during the consultation meetings. effect would be given to this proposed opportunities, and information. The Information that the Agency received rule; and (2) the Department would not responsible official will be proactive during the proposed planning rule require the use of administrative and use contemporary tools, such as the consultation process regarding sacred proceedings before parties could file internet, to engage the public, and share sites has been shared with the USDA/ suit in court challenging its provisions. information in an open way with Forest Service initiative. Unfunded Mandates interested parties. The Forest Service received many The proposed rule includes other comments during the tribal Pursuant to Title II of the Unfunded provisions for filing an objection prior consultation meetings. A number of Mandates Reform Act of 1995 (2 U.S.C. to the final decision if the objector has these comments were regarding 1531–1538), the Agency has assessed filed a formal comment related to a new concerns that are outside of the scope of the effects of this proposed rule on plan, plan revision, or plan amendment. the national planning rule or that will State, local, and tribal governments and In the past, formal comments were be addressed at the local level during the private sector. This proposed rule required to be in writing and submitted the development of land management does not compel the expenditure of during the formal comment period plans. Tribes will receive responses to $100 million or more by any State, local, when developing land management these comments via separate or tribal governments or anyone in the plans. The proposed rule expands the documents. private sector. Therefore, a statement definition of a formal comment to

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include written or oral comments 219.17 Effective dates and transition. grasslands. Plans will guide submitted or recorded during an 219.18 Severability. management of NFS lands so that they opportunity for public participation 219.19 Definitions. are ecologically sustainable and provided during the local unit’s Subpart B—Pre-Decisional Administrative contribute to social and economic planning process (§§ 219.4 and Review Process sustainability, with resilient ecosystems 219.16). 219.50 Purpose and scope. and watersheds, diverse plant and If implemented as proposed, there are 219.51 Plans, plan amendments, or plan animal communities, and the capacity no anticipated adverse or revisions not subject to objection. to provide people and communities disproportionate impacts to 219.52 Giving notice of a plan, plan with a range of social, economic, and underserved, protected groups, low amendment, or plan revision subject to ecological benefits for the present and income, or socially disadvantaged objection before approval. into the future, including clean water; communities. The proposed rule, 219.53 Who may file objection. habitat for fish, wildlife, and plant 219.54 Filing objection. including outreach and collaboration, 219.55 Objections set aside from review. communities; and opportunities for and the requirement for NEPA analysis 219.56 Objection time periods and process. recreational, spiritual, educational, and are designed to avoid adverse or 219.57 Resolution of objections. cultural sustenance. disproportionate effects; therefore, 219.58 Timing of a plan, plan amendment, (d) The Chief of the Forest Service mitigating measures are not necessary or or plan revision decision. must establish planning procedures for appropriate for adopting or 219.59 Use of other administrative review this part on plan development, plan implementing the planning rule. processes. amendment, or plan revision in the Requirements of § 219.4 to consider 219.60 Secretary’s authority. Forest Service Directive System in accessibility, and encourage 219.61 Information collection requirements. Forest Service Manual 1920—Land 219.62 Definitions. participation by youth, low–income Management Planning and in Forest populations, and minority populations Authority: 5 U.S.C. 301; 16 U.S.C. 1604, Service Handbook 1909.12—Land may improve environmental justice 1613. Management Planning Handbook. outcomes. Local site-specific mitigation (e) This part does not affect treaty Subpart A—National Forest System may occur as NFS projects and activities rights or valid existing rights established Land Management Planning are planned and executed consistent by statute or legal instruments. with Forest Service and USDA policy. § 219.1 Purpose and applicability. (f) During the planning process, the responsible official shall comply with (a) This subpart sets out the planning List of Subjects in 36 CFR Part 219 Section 8106 of the Food, Conservation, requirements for developing, amending, and Energy Act of 2008 (25 U.S.C. Administrative practice and and revising land management plans 3056), Executive Order 13007 of May procedure, Environmental impact (also referred to as plans) for the 24, 1996, Executive Order 13175 of statements, Indians, Intergovernmental National Forest System (NFS), as November 6, 2000, laws, and other relations, National forests, Reporting required by the Forest and Rangeland requirements with respect to disclosing and recordkeeping requirements, Renewable Resources Planning Act of or withholding under the Freedom of Science and technology. 1974, as amended by the National Forest Information Act (5 U.S.C. 552) certain Therefore, for the reasons set forth in Management Act of 1976 (16 U.S.C. information regarding reburial sites or the preamble, the Forest Service 1600 et seq.) (NFMA). This subpart also other information that is culturally proposes to revise part 219 of Title 36 sets out the requirements for plan sensitive to an Indian Tribe or Tribes. of the Code of Federal Regulations to components and other content in land read as follows: (g) Plans must comply with all management plans. This part is applicable laws and regulations, applicable to all units of the NFS as PART 219—PLANNING including NFMA, MUSYA, the Clean defined by 16 U.S.C. 1609 or subsequent Air Act, the Clean Water Act, the Subpart A—National Forest System Land statute. Wilderness Act, and the Endangered Management Planning (b) Consistent with the Multiple-Use Species Act. Sec. Sustained-Yield Act of 1960 (16 U.S.C. 219.1 Purpose and applicability. 528–531) (MUSYA), the Forest Service § 219.2 Levels of planning and responsible 219.2 Levels of planning and responsible manages the NFS to sustain the multiple officials. officials. uses, including ecosystem services, of Forest Service planning occurs at 219.3 Role of science in planning. its renewable resources in perpetuity different organizational levels and 219.4 Requirements for public while maintaining the long-term health geographic scales. Planning occurs at participation. and productivity of the land. Resources three levels—national strategic 219.5 Planning framework. are managed through a combination of planning, NFS unit planning, and 219.6 Assessments. approaches and concepts for the benefit 219.7 New plan development or plan project or activity planning. revision. of human communities and natural (a) National strategic planning. The 219.8 Sustainability. resources. Land management plans Chief of the Forest Service is 219.9 Diversity of plant and animal guide sustainable, integrated resource responsible for national planning, such communities. management of the resources within the as preparation of the Forest Service 219.10 Multiple Uses. plan area in the context of the broader strategic plan required under the 219.11 Timber requirements based on the landscape, giving due consideration to Government Performance and Results NFMA. the relative values of the various Act of 1993 (5 U.S.C. 306; 31 U.S.C. 219.12 Monitoring. resources in particular areas. 1115–1119; 31 U.S.C. 9703–9704), 219.13 Plan amendment and administrative (c) The objective of this part is to which is integrated with the changes. 219.14 Decision documents and planning guide the collaborative and science- requirements of the Forest and records. based development, amendment, and Rangeland Renewable Resources 219.15 Project and activity consistency with revision of land management plans that Planning Act of 1974, as amended by the plan. promote healthy, resilient, diverse, and the NFMA. The strategic plan 219.16 Public notifications. productive national forests and establishes goals, objectives,

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performance measures, and strategies concurrence of the appropriate research responsible official should be proactive for management of the NFS, as well as station director. and use contemporary tools, such as the the other Forest Service mission areas: (c) Project and activity planning. The internet, to engage the public, and Research and Development, State and supervisor or district ranger is the should share information in an open Private Forestry, and International responsible official for project and way with interested parties. Programs. activity decisions, unless a higher-level (1) Scope, methods, and timing. The (b) National Forest System unit official acts as the responsible official. responsible official shall provide planning. (1) NFS unit planning results Requirements for project or activity opportunities for participating in the in the development, revision, or planning are established in the Forest assessment process; developing a plan amendment of a land management plan. Service Directive System. Except as proposal, including the monitoring A land management plan provides a provided in the plan consistency program; commenting on the proposal framework for integrated resource requirements in § 219.15, none of the and the disclosure of its environmental management and for guiding project and requirements of this part apply to impacts in accompanying NEPA activity decisionmaking on a national projects or activities. documents; and reviewing the results of forest, grassland, prairie, or other monitoring information. Subject to the § 219.3 Role of science in planning. administrative unit. A plan reflects the notification requirements in § 219.16, unit’s expected distinctive roles and The responsible official shall take into the responsible official has the contributions to the local area, region, account the best available scientific discretion to determine the scope, and Nation, and the roles for which the information throughout the planning methods, forum, and timing of those unit is best suited, considering the process identified in this subpart. In opportunities. Agency mission, unique capabilities, doing so, the responsible official shall (2) Participation opportunities for and the resources and management of determine what information is the most individual members of the public and other lands in the vicinity. Through the accurate, reliable, and relevant to a entities. The responsible official shall adaptive planning cycle set forth in this particular decision or action. The encourage participation by interested subpart, a plan can be changed to reflect responsible official shall document this individuals and entities, including those new information and changing consideration in every assessment interested at the local, regional, and national levels. conditions. report (§ 219.6), plan decision document (§ 219.14), and monitoring evaluation (3) Participation opportunities for (2) A plan does not authorize projects youth, low-income populations, and or activities or commit the Forest report (§ 219.12). Such documentation must: minority populations. The responsible Service to take action. However, a plan official shall encourage participation by may constrain the Agency from (a) Identify sources of data, peer reviewed articles, scientific youth, low-income populations, and authorizing or carrying out actions, and minority populations. projects and activities must be assessments, or other scientific information relevant to the issues being (4) Participation opportunities for consistent with the plan (§ 219.15). A private landowners. The responsible plan does not regulate uses by the considered; (b) Describe how the social, economic, official shall encourage participation by public, but a project or activity decision and ecological sciences were identified private landowners whose lands are in, that regulates a use by the public under and appropriately interpreted and adjacent to, or otherwise affected by, or Title 36, Code of Federal Regulations, applied; and whose actions may impact, future Part 261—Prohibitions, Subpart B— (c) For the plan decision document, management actions in the plan area. Prohibitions in Areas Designated by describe how scientific information was (5) Consultation with federally Order, may be made contemporaneously determined to be the most accurate, recognized Indian Tribes and Alaska with the approval of a plan, plan reliable, and relevant information Native Corporations. The Department amendment, or plan revision. Plans available and how scientific findings or recognizes the Federal Government’s should not repeat laws, regulations, or conclusions informed or were used to trust responsibility for federally program management policies, develop plan components and other recognized Indian Tribes. The practices, and procedures from the content in the plan. responsible official shall honor the Forest Service Directive System. government-to-government relationship (3) The supervisor of the national § 219.4 Requirements for public between federally recognized Indian forest, grassland, prairie, or other participation. Tribes and the Federal government. The comparable administrative unit is the (a) Providing opportunities for responsible official shall provide to responsible official for development and participation. The responsible official federally recognized Indian Tribes and approval of a plan, plan amendment, or shall engage the public—including Alaska Native Corporations the plan revision for lands under the Tribes and Alaska Native Corporations, opportunity to undertake consultation responsibility of the supervisor, unless other Federal agencies, State and local in accordance with Executive Order a regional forester, the Chief, the Under governments, individuals, and public 13175 of November 6, 2000 and 25 Secretary, or the Secretary acts as the and private organizations or entities— U.S.C. 450 note. responsible official. Two or more early and throughout the planning (6) Participation opportunities for responsible officials may undertake process as required by this part, using federally recognized Indian Tribes and joint planning over lands under their collaborative processes where feasible Alaska Native Corporations. The respective jurisdictions. and appropriate. When developing responsible official shall encourage (4) A plan for a unit that contains an opportunities for public participation, participation in the planning process by experimental area may not be approved the responsible official shall take into interested or affected federally without the concurrence of the account the discrete and diverse roles, recognized Indian Tribes or Alaska appropriate research station director jurisdictions, responsibilities, and skills Native Corporations. The responsible with respect to the direction applicable of interested and affected parties; the official may participate in planning to that area, and a plan amendment accessibility of the process, efforts of federally recognized Indian applicable to an experimental area may opportunities, and information; and the Tribes and Alaska Native Corporations, not be approved without the cost, time, and available staffing. The where practicable and appropriate.

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(7) Native knowledge, indigenous non-Forest Service objectives or proposal is approved, and, finally, ecological knowledge, and land ethics. policies. approving the plan amendment. The As part of tribal participation and appropriate NEPA documentation for an consultation as set forth in paragraphs § 219.5 Planning framework. amendment may be an environmental (a)(5) and (6) of this section, the (a) Planning for a national forest, impact statement (EIS), an responsible official shall request grassland, prairie, or other comparable environmental assessment (EA), or a information about native knowledge, administrative unit of the NFS is an categorical exclusion (CE), depending land ethics, cultural issues, and sacred iterative process that includes upon the scope and scale of the and culturally significant sites. assessment (§ 219.6); developing, amendment and its likely effects. (8) Participation opportunities for amending, or revising a plan (§§ 219.7 (3) Monitoring. Monitoring is other Federal agencies, federally and 219.13); and monitoring (§ 219.12). continuous and provides feedback for recognized Tribes, States, counties, and These three phases of the framework are the planning cycle by testing relevant complementary and may overlap. The local governments. The responsible assumptions, tracking relevant intent of this framework is to create a official shall provide opportunities for conditions over time, and measuring responsive and agile planning process other government agencies to participate management effectiveness (§ 219.12). that informs integrated resource in planning for NFS lands. Where The monitoring program includes unit- management and allows the Forest appropriate, the responsible official level and broader-scale monitoring. The Service to adapt to changing conditions, shall encourage federally recognized unit-level monitoring program is including climate change, and improve Tribes, States, counties, and other local informed by the assessment phase; management based on new information governments to seek cooperating agency developed during plan development, and monitoring. status in the NEPA process for a plan plan revision, or plan amendment; and development, amendment, or revision. (1) Assessment. An assessment is the gathering and integrating of information implemented after plan approval. The The responsible official may participate regional forester develops broader-scale in planning efforts of States, counties, relevant to the planning area from many sources and the analysis of that monitoring strategies. Biennial local governments, and other Federal monitoring evaluation reports document agencies, where practicable and information to identify a need to change a plan or to inform how a new plan whether a change to the plan or change appropriate. to the monitoring program is warranted (b) Coordination with other public should be proposed (§ 219.6). The responsible official shall consider and based on new information, whether a planning efforts. (1) The responsible new assessment may be needed, or official shall coordinate land evaluate existing and possible future conditions and trends of the plan area, whether there is no need for change at management planning with the that time. equivalent and related planning efforts and assess the sustainability of social, (b) Interdisciplinary team(s). The of federally recognized Indian Tribes, economic, and ecological systems responsible official shall establish an Alaska Native Corporations, other within the unit, in the context of the interdisciplinary team or teams to Federal agencies, and State and local broader landscape. Based on the results prepare assessments; new plans, plan governments, to the extent practicable of an assessment, the responsible amendments, and plan revisions; and and appropriate. official may identify a preliminary need unit monitoring programs. (2) For plan development or revision, to change a plan and begin a plan the responsible official shall review the amendment, plan revision, or new plan § 219.6 Assessments. planning and land use policies of development. (2) Plan development, plan revision, Assessments may range from narrow federally recognized Indian Tribes, in scope to comprehensive, depending Alaska Native Corporations, other or plan amendment. Plan revision (§ 219.7) or plan amendment (§ 219.13) on the issue or set of issues to be Federal agencies, and State and local evaluated, and should consider relevant governments, where relevant to the plan begins with the identification of a preliminary need to change the existing ecological, economic, and social area. The results of this review shall be conditions, trends, and sustainability displayed in the environmental impact plan. For newly created planning units, the need for planning arises with the within the context of the broader statement for the plan (40 CFR landscape. The responsible official has 1502.16(c), 1506.2). The review shall creation of the unit, unless otherwise provided by law. the discretion to determine the scope, include consideration of: scale, and timing of an assessment, (i) The objectives of federally (i) The process for developing or subject to the requirements of this recognized Indian Tribes, Alaska Native revising a plan includes: assessment, section. Corporations, other Federal agencies, developing a proposed plan, and State and local governments, as considering the environmental effects of (a) Process for plan development or expressed in their plans and policies; the proposal, providing an opportunity revision assessments. One or more (ii) The compatibility and interrelated to comment on the proposed plan, assessments must be conducted for the impacts of these plans and policies; providing an opportunity to object development of a new plan or for a plan (iii) Opportunities for the plan to before the proposal is approved, and, revision. The responsible official shall: address the impacts identified or finally, approving the plan or plan (1) Notify and encourage the public contribute to joint objectives; and revision. A new plan or plan revision and appropriate Federal agencies, (iv) Opportunities to resolve or reduce requires preparation of an States, local governments, other entities, conflicts, within the context of environmental impact statement. and scientists to participate in the achieving the Forest Service desired (ii) The process for amending a plan assessment process (§§ 219.4 and conditions or objectives. includes: identifying a need to change 219.16). (3) Nothing in this section should be the plan, developing a proposed (2) Notify and encourage potentially read to indicate that the responsible amendment, considering the interested or affected federally official will seek to direct or control environmental effects of the proposal, recognized Indian Tribes and Alaska management of lands outside of the providing an opportunity to comment Native Corporations to participate in the planning area, nor will the responsible on the proposed amendment, providing assessment process (§§ 219.4 and official conform management to meet an opportunity to object before the 219.16).

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(3) Coordinate with the regional (c) Plan amendment assessments. (1) requirements for plan components of forester, Agency staff from State and A plan amendment must be based on a §§ 219.8 through 219.11. Private Forestry and Research and documented need to change the plan. (iii) Consider conditions and trends Development, and other governmental This documentation may be a new and stressors, with respect to the and non-governmental partners to assessment; may be a monitoring report; requirements for plan components of consolidate existing information and or may be other documentation of new §§ 219.8 through 219.11. leverage resources for additional information, changed conditions, or (iv) Identify potential wilderness information needs. changed circumstances. Where the areas and consider whether to (4) Document the assessment in a responsible official determines that a recommend any such areas for report or set of reports available to the new assessment is needed to inform the wilderness designation. public. Document in the report(s) how need for an amendment, the responsible (v) Identify the eligibility of rivers for the relevant best available scientific official has the discretion to determine inclusion in the National Wild and information was taken into account the scope, scale, process, and content Scenic Rivers System, unless a (§ 219.3), and include the report(s) in for the assessment depending on the systematic inventory has been the planning record (§ 219.14). issue or issues to be addressed. previously completed and documented (5) Identify in the report how a new (2) When a plan amendment is made and there are no changed circumstances plan should be proposed, or identify a together with, and only applies to, a that warrant additional review. potential need to change an existing project or activity decision, the analysis (vi) Identify the suitability of areas for plan, based on the assessment. prepared for the project or activity may the appropriate integration of resource (b) Content of assessments for plan serve as the documented need to change management and uses, with respect to development or revision. In the the plan. the requirements for plan components assessment(s) for plan development or of §§ 219.8 through 219.11, including revision, the responsible official shall: § 219.7 New plan development or plan identifying lands which are not suitable (1) Identify and evaluate information revision. for timber production (§ 219.11). needed to understand and assess (a) Plan revisions. A plan revision (vii) Identify the quantity of timber existing and potential future conditions creates a new plan for the entire unit, that can be removed from the plan area and stressors in order to inform and whether the plan revision differs from (§ 219.11(d)(4)). develop required plan components and the prior plan to a small or large extent. (viii) Identify questions and indicators other content in the plan (§ 219.7), A plan must be revised at least every 15 for the unit monitoring program including plan components for years (16 U.S.C. 1604(f)(5)). However, (§ 219.12). sustainability (§ 219.8), diversity of the responsible official has the (ix) Identify potential other content in plant and animal communities (§ 219.9), discretion to determine at any time that the plan (paragraph (e) of this section). multiple uses (§ 219.10), and timber conditions on a unit have changed (d) Plan components. Plan requirements based on NFMA significantly such that a plan must be components guide future project and (§ 219.11). revised. The responsible official shall activity decisionmaking. The plan must (2) Identify and consider relevant base development of a proposal for plan indicate where in the plan area specific information contained in governmental revision on the preliminary need for plan components apply. Plan or non-governmental assessments, change identified through the components may apply to the entire plans, monitoring evaluation reports, assessment process required by § 219.6. plan area, to specific management or and studies, including relevant geographic areas, or to other areas as (b) New plan development. New plan neighboring land management plans. identified in the plan. Every project and development is required for new NFS Such documents may include State activity must be consistent with the units. The process for developing a new forest assessments and strategies, the applicable plan components (§ 219.15). plan is the same as the process for plan Resources Planning Act assessment, (1) Required plan components. Every revision. ecoregional assessments, non- plan must include the following plan governmental reports, State (c) Process for plan development or components: comprehensive outdoor recreation revision. (1) The process for developing (i) Desired conditions. A desired plans, community wildfire protection or revising a plan includes: public condition is a description of specific plans, and State wildlife action plans. notification and participation (§§ 219.4 social, economic, and/or ecological Relevant private information will be and 219.16), assessment (§ 219.6), characteristics of the plan area, or a considered if voluntarily provided. developing a proposed plan, portion of the plan area, toward which (3) Identify the distinctive roles and considering the environmental effects of management of the land and resources contributions of the unit within the the proposal, providing an opportunity should be directed. Desired conditions context of the broader landscape, to comment on the proposed plan, must be described in terms that are considering the roles of the unit in providing an opportunity to object specific enough to allow progress providing multiple uses, including before the proposal is approved (subpart toward their achievement to be ecosystem services, from the NFS lands B), and, finally, approving the plan or determined, but do not include to the local area, region, and Nation. plan revision. A new plan or plan completion dates. The unit’s distinctive roles and revision requires preparation of an (ii) Objectives. An objective is a contributions within the broader environmental impact statement. concise, measurable, and time-specific landscape are those for which the unit (2) In developing a proposed new statement of a desired rate of progress is best suited, considering the Agency plan or proposed plan revision, the toward a desired condition or mission, unique capabilities, and the responsible official shall: conditions. Objectives should be based resources and management of other (i) Review relevant information from on reasonably foreseeable budgets. lands in the vicinity. the assessment phase. (iii) Standards. A standard is a (4) Identify potential monitoring (ii) Identify the presence and consider mandatory constraint on project and questions or information needs to the importance of various physical, activity decisionmaking, established to inform the development or modification biological, social, and cultural resources help achieve or maintain the desired of the unit’s monitoring program. on the unit, with respect to the condition or conditions, to avoid or

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mitigate undesirable effects, or to meet approaches or strategies; partnership has been delineated based on best applicable legal requirements. opportunities or coordination activities; available scientific information. (iv) Guidelines. A guideline is a or criteria for priority areas or activities (b) Social and economic constraint on project and activity to achieve objectives of the plan. sustainability. The plan must include decisionmaking that allows for plan components to guide the unit’s departure from its terms, so long as the § 219.8 Sustainability. contribution to social and economic intent of the guideline is met. Within Forest Service authority and sustainability, taking into account: (§ 219.15(d)(3)). Guidelines are consistent with the inherent capability (1) Social, cultural, and economic established to help achieve a desired of the plan area, the plan must provide conditions relevant to the area condition or conditions, to avoid or for social, economic, and ecological influenced by the plan and the mitigate undesirable effects, or to meet sustainability, as follows: distinctive roles and contributions of applicable legal requirements. (a) Ecological sustainability. (1) the unit within the broader landscape; (v) Suitability of lands. Specific lands Ecosystem plan components. The plan (2) Sustainable recreational within a plan area may be identified as must include plan components to opportunities and uses; suitable for various multiple uses or maintain or restore the structure, (3) Multiple uses, including activities based on the desired function, composition, and connectivity ecosystem services, that contribute to conditions applicable to that area. The of healthy and resilient terrestrial and local, regional, and national economies plan may also identify lands within the aquatic ecosystems and watersheds in in a sustainable manner; and plan area as not suitable for uses that are the plan area, taking into account: (4) Cultural and historic resources and not compatible with desired conditions (i) Landscape-scale integration of uses. for those lands. Suitability does not terrestrial and aquatic ecosystems; (ii) Potential system drivers, stressors, § 219.9 Diversity of plant and animal need to be determined for every communities. multiple use or activity, but every plan and disturbance regimes, including must identify those lands not suitable climate change; how they might affect Within Forest Service authority and for timber production (§ 219.11). ecosystem and watershed health and consistent with the inherent capability (2) Optional plan component: goals. A resilience; and the ability of those of the plan area, the plan must include plan may include goals as plan systems on the unit to adapt to change; plan components to maintain the components. Goals are broad statements (iii) Air quality; and diversity of plant and animal of intent, other than desired conditions, (iv) Wildland fire and opportunities to communities, as follows: usually related to process or interaction restore fire adapted ecosystems. (a) Ecosystem Diversity. The plan with the public. Goals are expressed in (2) Ecosystem elements. The plan must include plan components to broad, general terms, and have no must include plan components to maintain or restore the structure, specific dates by which they are maintain, protect, or restore: function, composition, and connectivity completed. (i) Aquatic elements, such as lakes, of healthy and resilient terrestrial and (3) Requirements for the set of plan streams, wetlands, stream banks, and aquatic ecosystems and watersheds in components. The set of plan shorelines; the plan area, consistent with § 219.8(a), components must meet the (ii) Terrestrial elements, such as forest to maintain the diversity of native requirements set forth in this part for stands, grasslands, meadows, and other species. sustainability (§ 219.8); plant and habitat types; (b) Species Conservation. The plan animal diversity (§ 219.9), multiple uses (iii) Rare aquatic and terrestrial plant components must provide for the (§ 219.10), and timber (§ 219.11). and animal communities, consistent maintenance or restoration of ecological (e) Other content in the plan—(1) with § 219.9; conditions in the plan area to: Other required content in the plan. (iv) Public water supplies, sole source (1) Contribute to the recovery of Every plan must: aquifers, source water protection areas, threatened and endangered species; (i) Identify watershed(s) that are a groundwater, and other bodies of water (2) Conserve candidate species; and priority for maintenance or restoration; (including guidance to prevent or (3) Maintain viable populations of (ii) Describe the unit’s distinctive mitigate detrimental changes in species of conservation concern within roles and contributions within the quantity, quality, and availability, the plan area. Where it is beyond the broader landscape (§ 219.6(b)(3)); including temperature changes, authority of the Forest Service or the (iii) Include the monitoring program blockages of water courses, and deposits inherent capability of the plan area to required by § 219.12; and of sediments); and do so, the plan components must (iv) Contain information reflecting (v) Soils and soil productivity provide for the maintenance or proposed and possible actions that may (including guidance to reduce soil restoration of ecological conditions to occur on the unit during the life of the erosion and sedimentation). contribute to the extent practicable to plan including the planned timber sale (3) Riparian areas. The plan must maintaining a viable population of a program; the expected timber harvest include plan components to maintain, species within its range. When levels, as required by NFMA (16 U.S.C. protect, or restore riparian areas. Plans developing such plan components, the 1604(f)(2)); and the proportion of must establish a default width for responsible official shall coordinate to probable methods of forest vegetation riparian areas around all lakes, the extent practicable with other management practices expected to be perennial or intermittent streams, and Federal, State, tribal, and private land used. Such information is not a open water wetlands, within which managers having management authority commitment to take any action and is these plan components will apply. The over lands where the population exists. not a ‘‘proposal’’ as defined by the default may be a standard width for all (c) Diversity of tree and other plant Council on Environmental Quality lakes, perennial or intermittent streams, species. The plan must include plan regulations for implementing NEPA (40 and open water wetlands, or may vary components to preserve, where CFR 1508.23, 42 U.S.C. 4322(2)(C)). based on ecologic or geomorphic factors, appropriate, and to the degree (2) Optional content in the plan. A or the type of waterbody. The default practicable, the diversity of native tree plan may include additional items, width will apply unless the actual and other native plant species similar to including potential management riparian area for a waterbody or a site that existing in the plan area, as

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required by NFMA (16 U.S.C. recreational settings and desired soil, slope, or other watershed 1604(g)(3)(B)). conditions for scenic landscape conditions or substantial and permanent character. impairment of the productivity of the § 219.10 Multiple uses. (ii) Protection of cultural and historic land; In meeting the requirements of resources; (v) There is no reasonable assurance §§ 219.8 and 219.9, and within Forest (iii) Management of areas of tribal that such lands can be adequately Service authority, the capability of the importance; restocked within 5 years after final plan area and the fiscal capability of the (iv) Protection of wilderness areas as regeneration harvest; or unit, the plan must provide for multiple well as the protection of recommended (vi) The land is not forest land as uses, including ecosystem services, wilderness areas to protect the ecologic defined at § 219.19. outdoor recreation, range, timber, and social values and character for (2) Lands suitable for timber watershed, wildlife and fish, as follows: which they might be added to the production. All lands not identified in (a) Integrated resource management. National Wilderness System; the plan as not suitable for timber When developing plan components for (v) Protection of wild and scenic production are suited for timber integrated resource management, to the rivers as well as the protection of those production. Timber harvest on lands extent relevant to the plan area and the rivers eligible for inclusion in the suitable for timber production may be public participation process and the national wild and scenic river system to authorized for timber production or for requirements of §§ 219.7, 219.8, 219.9, protect the values for which they might other multiple use purposes. and 219.11, the responsible official shall be included in the system until their (3) Review of lands not suitable for consider: suitability is determined; and timber production. The responsible (1) Aesthetic values, air quality, (vi) Protection and appropriate official shall review lands identified in cultural and heritage resources, management of other designated or the plan as not suitable for timber ecosystem services, fish and wildlife recommended areas that exist in the production at least once every 10 years species, forage, geologic features, plan area, including research natural as required by NFMA (16 U.S.C. grazing and rangelands, habitat and areas. 1604(k)), or as otherwise prescribed by habitat connectivity, recreational values (2) Other plan components for law, to determine whether conditions and settings, riparian areas, scenery, integrated resource management to have changed so that they have become soil, surface and subsurface water provide for multiple uses that should be suitable for timber production. As a quality, timber, trails, vegetation, included as necessary. result of this 10-year review, the plan viewsheds, wilderness, and other § 219.11 Timber requirements based on may be amended to identify such lands relevant resources; as suitable for timber production if there (2) Renewable and nonrenewable the NFMA. has been a change in conditions. energy and mineral resources; In meeting the requirements of (3) Sustainable management of §§ 219.8 through 219.10 and within (b) Harvest of trees on land not infrastructure, such as recreational Forest Service authority, the capability suitable for timber production. facilities and transportation and utility of the plan area, and the fiscal capability (1) Where a plan identifies lands as not corridors; of the unit, the plan must provide for suitable for timber production, (4) Opportunities to coordinate with multiple uses and ecosystem services, harvesting of trees for the purpose of neighboring landowners to link open including timber, as follows: timber production is prohibited. spaces and take into account joint (a) Identification of lands as not (2) The identification in a plan of management objectives where feasible suitable and suitable for timber lands as not suitable for timber and appropriate; production. (1) Lands not suitable for production does not preclude the (5) Habitat conditions, subject to the timber production. The responsible harvest of trees on those lands for other requirements of § 219.9, for wildlife, official may determine, considering purposes (16 U.S.C. 1604(k)); in fish, and plants commonly enjoyed and physical, economic, and other pertinent particular, timber harvest may be used by the public, such as species that factors, that lands are not suitable for authorized as a tool to assist in are hunted, fished, trapped, gathered, timber production. On lands so achieving or maintaining one or more observed, or needed for subsistence; designated, timber harvest, other than applicable desired conditions or (6) The landscape-scale context for salvage sales or sales necessary to objectives of the plan. Examples of management as identified in the protect other multiple-use values, shall using timber harvest on lands not suited assessment; be prohibited for a period of 10 years. for timber production may include (7) Land ownership and access In addition, the plan must identify lands improving wildlife or fish habitat, patterns relative to the plan area; within the plan area as not suitable for thinning to reduce extreme fire risk, or (8) Reasonably foreseeable risks to timber production if any one of the restoring meadow or savanna ecological, social, and economic following factors applies: ecosystems where trees have invaded. sustainability; and (i) Statute, executive order, or (c) Harvest for salvage, sanitation, or (9) Potential impacts of climate and regulation prohibits timber production public health or safety. Timber harvest other system drivers, stressors and on the land; may be approved for salvage, sanitation, disturbance regimes, such as wildland (ii) The Secretary of Agriculture or the or public health or safety, where fire, invasive species, and human- Chief of the Forest Service has consistent with the plan. induced stressors, on the unit’s withdrawn the land from timber (d) Limits on timber harvest on resources (§ 219.8). production; suitable and non-suitable lands. A plan (b) Requirements for plan components (iii) Timber production would not be for a unit on which timber harvest may for a new plan or plan revision. (1) The compatible with the achievement of occur must have plan components to: plan components for a new plan or plan desired conditions and objectives (1) Ensure that timber will be revision must provide for: established by the plan for those lands; harvested from NFS lands only where (i) Sustainable recreation, considering (iv) The technology is not currently such harvest would comply with the opportunities and access for a range of available for conducting timber harvest minimum limits identified in the NFMA uses. The plan should identify without causing irreversible damage to (16 U.S.C. 1604(g)(3)(E) and (F)).

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(2) Ensure that harvest is carried out production is the primary purpose for (iii) Financial and technical in a manner consistent with the the harvest. Exceptions, set out in 16 capabilities of the Agency. protection of soil, watershed, fish, U.S.C. 1604(m), are permitted only if (5) Each unit monitoring program wildlife, recreation, and aesthetic consistent with the land management must contain one or more monitoring resources. plan. If such exceptions are anticipated, questions or indicators addressing each (3) Establish maximum size limits for the responsible official should include of the following: areas to be cut in one harvest operation those exceptions in the land (i) The status of select watershed for administrative units that use management plan as standards or conditions; clearcutting, seed tree cutting, guidelines. The Chief of the Forest (ii) The status of select ecological shelterwood cutting, or other cuts Service must include in the Forest conditions; designed to regenerate an even-aged Service Directive System, requirements (iii) The status of focal species; stand of timber. Plan components must for assuring that even-aged stands of (iv) The status of visitor use and include standards limiting the trees scheduled for final regeneration progress toward meeting recreational maximum size limits for areas to be cut harvest during the planning period have objectives; in one harvest operation, according to generally reached culmination of mean (v) Measurable changes on the unit geographic areas, forest types, or other annual increment of growth with related to climate change and other suitable classifications. This limit may exceptions as permitted by the NFMA stressors on the unit; be less than, but must not exceed, 60 (16 U.S.C. 1604(m)). (vi) The carbon stored in above acres for the Douglas-fir forest type of ground vegetation; California, Oregon, and Washington; 80 § 219.12 Monitoring. (vii) The progress toward fulfilling the acres for the southern yellow pine types (a) Unit monitoring program. (1) The unit’s distinctive roles and of Alabama, Arkansas, Georgia, Florida, responsible official shall develop a unit contributions to ecologic, social, and Louisiana, Mississippi, North Carolina, monitoring program for the plan area, economic conditions of the local area, South Carolina, Oklahoma, and Texas; and include it in the plan. The region, and Nation; and 100 acres for the hemlock-Sitka spruce development of the monitoring program (viii) The effects of management forest type of coastal Alaska; and 40 must be coordinated with the regional systems to determine that they do not acres for all other forest types except as forester and Agency staff from State and substantially and permanently impair provided in this paragraph. Private Forestry, and Research and the productivity of the land (16 U.S.C. (i) Cut openings larger than those Development. Responsible officials for 1604(g)(3)(C)). specified may be permitted where larger two or more administrative units may (6) A range of monitoring techniques units will produce a more desirable jointly develop their unit monitoring may be used to carry out the monitoring combination of benefits. Specifications programs. requirements in paragraph (a)(5) of this for exceptions shall include the (2) The unit monitoring program sets section. (7) This section does not apply to particular conditions under which the out the unit monitoring questions and projects or activities; project and larger size is permitted and must set a associated indicators. Monitoring activity monitoring may be used to maximum size permitted under those questions and associated indicators gather information, but monitoring is conditions. must be designed to inform the (ii) Size limits exceeding those not a prerequisite for carrying out a management of resources on the unit, established in paragraphs (d)(3) and project or activity. including by testing relevant (d)(3)(i) of this section are permitted on (b) Broader-scale monitoring assumptions, tracking relevant changes, an individual timber sale basis after 60 strategies. (1) The regional forester shall and measuring management days public notice and review by the develop a broader-scale monitoring effectiveness and progress toward regional forester. strategy for unit monitoring questions achieving or maintaining desired (iii) The plan maximum size openings that can best be answered at a conditions or objectives. Questions and shall not apply to the size of areas geographic scale broader than one unit. harvested as a result of natural indicators should be based on one or (2) When developing a monitoring catastrophic conditions such as fire, more desired conditions, objectives, or strategy, the regional forester shall insect and disease attack, or windstorm other plan component in the plan, but coordinate with the relevant responsible (16 U.S.C. 1604(g)(3)(F)(iv)). not every plan component needs to have officials, Agency staff from State and (4) Limit the quantity of timber that a corresponding monitoring question. Private Forestry and Research and can be removed annually in perpetuity (3) The unit monitoring program Development, partners, and the public. on a sustained-yield basis and provide should be coordinated and integrated Two or more regional foresters may for departure from this limit, as with relevant broader-scale monitoring jointly develop broader-scale provided by NFMA. The Chief of the strategies (paragraph (b) of this section) monitoring strategies. Forest Service must include in the to ensure that monitoring is (3) Each regional forester shall ensure Forest Service Directive System complementary and efficient, and that that the broader-scale monitoring procedures for estimating the quantity information is gathered at scales strategy is within the financial and of timber that can be removed annually appropriate to the monitoring questions. technical capabilities of the region and in perpetuity on a sustained-yield basis, (4) Subject to the requirements of complements other ongoing monitoring and exceptions, consistent with 16 paragraph (a)(5) of this section, the efforts. U.S.C. 1611. responsible official has the discretion to (4) Projects and activities may be (5) Limit the regeneration harvest of set the scope and scale of the unit carried out under plans developed, even-aged stands of trees to stands that monitoring program, after considering: amended, or revised under this part generally have reached the culmination (i) Information needs identified before the regional forester has of mean annual increment of growth. through the planning process as most developed a broad scale monitoring This requirement applies only to final critical for informed management of strategy. regeneration harvest of even-aged stands resources on the unit; (c) Timing and process for developing on lands identified as suitable for timber (ii) Existing best available scientific the unit monitoring program and production and where timber information; and broader-scale strategies. (1) In the

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assessment phase, the responsible completed no later than 2 years from the any part of the plan, including plan official shall work with the public to effective date of plan approval. components; changes to other content in identify potential monitoring needs (ii) Where the monitoring program the plan other than plan components; or relevant to inform effective management developed under the provisions of a conformance of the plan to new (§ 219.6). prior planning regulation has been statutory or regulatory requirements. (2) The responsible official shall changed to meet the requirements of (1) A change to the monitoring develop the unit monitoring program as paragraph (c)(2) of this section, the first program may be made as part of plan part of the planning process for a new monitoring evaluation must be revision or amendment, but also can be plan development or plan revision. completed no later than 2 years from the made as an administrative change Where a unit’s monitoring program has date the change takes effect. outside of the process for plan revision been developed under the provisions of (iii) The monitoring evaluation report or amendment. Any change to the a prior planning regulation and the unit must describe how best available monitoring program may be made only has not initiated plan revision, the scientific information was taken into after notice to the public (§ 219.16(c)(5)) responsible official shall change the unit account (§ 219.3). of the intended change and monitoring program within 4 years of (2) The monitoring evaluation report consideration of public concerns and the effective date of this part, or as soon may be incorporated into other planning suggestions. as practicable, to meet the requirements documents if the responsible official has (2) All other administrative changes of this section. initiated a plan revision or relevant may be made following notice (3) The regional forester shall develop amendment. (§ 219.16(c)(5)). a broader-scale monitoring strategy as (3) The monitoring evaluation report soon as is practicable. may be postponed for one year in case § 219.14 Decision documents and (4) The responsible official and of exigencies, but notice of the planning records. regional forester shall ensure that postponement must be provided to the (a) Decision document. The scientists are involved in the design and public prior to the date the report is due responsible official shall record evaluation of unit and broad scale for that year (§ 219.16(c)(5)). approval of a new plan, plan revision, monitoring. (4) The monitoring evaluation report or amendment in a decision document (5) To the extent practicable, is not a decision document representing prepared according to Forest Service appropriate, and relevant to the final agency action, and is not subject to NEPA procedures (36 CFR 220). The monitoring questions in the program, the objection provisions of subpart B. decision document must include: unit monitoring programs and broader- (1) The rationale for approval; scale strategies must be designed to take § 219.13 Plan amendment and (2) An explanation of how the plan into account: administrative changes. components meet the sustainability (i) Existing national and regional (a) Plan amendment. A plan may be requirements of § 219.8 and the inventory, monitoring, and research amended at any time. Plan amendments diversity requirements of § 219.9, taking programs of the Agency, including from may be broad or narrow, depending on into account the limits of Forest Service the NFS, State and Private Forestry, and the need for change, and should be used authority and the capability of the plan Research and Development, and of other to keep plans current and help units area; governmental and non-governmental adapt to new information or changing (3) A statement of how the plan, plan parties; conditions. The responsible official has revision or plan amendment applies to (ii) Opportunities to design and carry the discretion to determine whether and approved projects and activities out multi-party monitoring with other how to amend the plan. A plan (§ 219.15); Forest Service units, Federal, State or amendment is required for the addition, (4) A discussion of how the best local government agencies, scientists, modification, or removal of one or more available scientific information was partners, and members of the public; plan components or a change in how taken into account and applied in the and one or more plan components apply to planning process (§ 219.3); (iii) Opportunities to design and carry all or part of the plan area. (5) The concurrence by the out monitoring with federally (b) Amendment process. The appropriate research station director recognized Indian Tribes and Alaska responsible official shall: with any part of the plan applicable to Native Corporations. (1) Document the need to change the any designated experimental forests or (d) Biennial evaluation of the plan (§ 219.6(c)); experimental ranges (§ 219.2(b)(4)); and monitoring information. (1) The (2) Provide opportunities for public (6) The effective date of the approval. responsible official shall conduct a participation as required in § 219.4 and (b) Planning records. (1) The biennial evaluation of new information public notification as required in responsible official shall keep the gathered through the unit monitoring § 219.16. The responsible official may following documents readily accessible program and relevant information from combine processes and associated to the public by posting them online the broader-scale strategy, and shall public notifications where appropriate, and through other means: Assessment issue a written report of the evaluation considering the scope and scale of the reports (§ 219.6); plan decision and make it available to the public. The need to change the plan; and documents (§ 219.14); the proposed evaluation must indicate whether a (3) Amend plans consistent with plan, plan revision, or plan amendment; change to the plan, management Forest Service NEPA procedures. The public notices and environmental activities, or monitoring program may appropriate NEPA documentation for an documents associated with a plan; the be warranted based on the new amendment may be an EIS, an EA, or a monitoring program and monitoring information; whether a new assessment CE, depending upon the scope and scale evaluation reports (§ 219.12); and the should be conducted; or that no of the amendment and its likely effects. plan. amendment, revision, or administrative (c) Administrative changes. An (2) The planning record includes change is needed. administrative change is any change to documents that support analytical (i) The first monitoring evaluation for a plan that is not a plan amendment or conclusions made and alternatives a plan or plan revision developed in plan revision. Administrative changes considered throughout the planning accordance with this subpart must be include corrections of clerical errors to process. The responsible official shall

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make the planning record available at (i) Is designed to comply with part, when appropriate under the office where the plan, plan revision, applicable guidelines as set out in the § 219.17(b)(3). or amendment was developed. plan; or (b) When a plan amendment is (ii) Is designed in a way that is as approved in a decision document § 219.15 Project and activity consistency effective in carrying out the intent of the approving a project or activity and the with the plan. applicable guidelines in contributing to amendment applies only to the project (a) Application to existing the maintenance or attainment of or activity, the notification requirements authorizations and approved projects or relevant desired conditions and of 36 CFR part 215 or part 218, subpart activities. Every document approving a objectives, avoiding or mitigating A, applies instead of this section. plan, plan amendment, or plan revision undesirable effects, or meeting (c) How public notice is provided. The must state whether the plan, plan applicable legal requirements responsible official should use amendment, or plan revision allows any (§ 219.7(d)(1)(iv)). contemporary tools to provide notice to prior approval of occupancy and use. If (4) Suitability. A project or activity the public. At a minimum, all public a plan approval document does not would occur in an area: notifications required by this part must expressly allow such occupancy and (i) That the plan identifies as suitable be posted online, and: use, the permit, contract, and other for that type of project or activity; or (1) When the Chief, the Under authorizing instrument for the use and (ii) For which the plan is silent with Secretary, or the Secretary is the occupancy must be made consistent respect to its suitability for that type of responsible official, notice must be with the plan, plan amendment, or plan project or activity. published in the Federal Register; revision as soon as practicable, as (e) Consistency of resource plans (2) For a new plan or plan revision, provided in paragraph (d) of this within the planning unit with the land when an official other than the Chief, section, subject to valid existing rights. management plan. Any resource plans the Under Secretary, or the Secretary is (b) Application to projects or activities (e.g., travel management plans) the responsible official, notice must be authorized after plan approval. Projects developed by the Forest Service that published in the Federal Register and and activities authorized after approval apply to the resources or land areas the applicable newspaper(s) of record; of a plan, plan amendment, or plan within the planning unit must be (3) For a plan amendment when an revision must be consistent with the consistent with the plan components. official other than the Chief, the Under plan as provided in paragraph (d) of this Resource plans developed prior to plan Secretary, or the Secretary is the section. approval must be evaluated for responsible official, notices must be (c) Resolving inconsistency. When a consistency with the plan and amended published in the newspaper(s) of record. proposed project or activity would not if necessary. Notification in the Federal Register may be consistent with the applicable plan also be required by Forest Service NEPA § 219.16 Public notifications. components, the responsible official procedures; shall take one of the following steps, The following public notification (4) If a plan, plan revision or plan subject to valid existing rights: requirements apply to plan amendment applies to two or more (1) Modify the proposed project or development, amendment, or revision. units, notices must be published in the activity to make it consistent with the Formal notifications may be combined Federal Register and the newspaper(s) applicable plan components; where appropriate. of record for the applicable units; and (a) When formal public notification is (2) Reject the proposal or terminate (5) Public notice of administrative required. Public notification must be the project or activity; changes, changes to the monitoring provided at the following times: program, plan amendment assessments, (3) Amend the plan so that the project (1) To begin the preparation of an or other documented need for or activity will be consistent with the assessment for a plan or plan revision, amendment, monitoring evaluation plan as amended; or or, when appropriate, a plan reports, or other notices not listed in (4) Amend the plan amendment; paragraph (a) of this section, may be contemporaneously with the approval of (2) To initiate the development of a made in any way the responsible official the project or activity so that the project proposed plan or plan revision, or, deems appropriate. or activity will be consistent with the when appropriate, a plan amendment; (d) Content of public notices. Public plan as amended. This amendment may (3) To invite comments on a proposed notices required by this section must be limited to apply only to the project plan, plan revision, or plan amendment, clearly describe the action subject to or activity. and associated environmental analysis. notice and the nature and scope of the (d) Determining consistency. A project For a new plan, plan revision, or a plan decisions to be made; identify the or activity approval document must amendment for which a draft responsible official; describe when, describe how the project or activity is environmental impact statement is where, and how the responsible official consistent with applicable plan prepared, the comment period is at least will provide opportunities for the public components developed or revised in 90 days. For an amendment for which to participate in the planning process; conformance with this part by meeting a draft environmental impact statement and explain how to obtain additional the following criteria: is not prepared, the comment period is information. (1) Goals, desired conditions, and at least 30 days; objectives. The project or activity (4) To begin the objection period for § 219.17 Effective dates and transition. contributes to the maintenance or a plan, plan amendment, or plan (a) Effective dates. A plan, plan attainment of one or more goals, desired revision before approval (§ 219.52); amendment, or plan revision is effective conditions, or objectives or does not (5) To approve a final plan, plan 30 days after publication of notice of its foreclose the opportunity to maintain or amendment, or plan revision; or approval, except when a plan achieve any goals, desired conditions, or (6) To announce and describe how a amendment applies to only one project objectives, over the long term. plan, plan amendment, or plan revision or activity. In those instances the (2) Standards. The project or activity process initiated under the provisions of amendment and project are complies with applicable standards. a previous planning regulation will be implemented concurrently, in (3) Guidelines. The project or activity: conformed to meet the provisions of this accordance with administrative review

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regulations at 36 CFR part 215 and 36 management planning to determine capacity of ecological systems. CFR part 218. whether a change to the plan is needed. Examples of ecological conditions (b) Plan amendment and plan Assessments are not decisionmaking include the abundance and distribution revision transition. For the purposes of documents but provide current of aquatic and terrestrial habitats, this section, initiation means that the information on select issues. An connectivity, roads and other structural Agency has issued a notice of intent or assessment report on the need to change developments, human uses, and other notice announcing the beginning the plan may range from a many page invasive species. of the process to develop a proposed broad scale comprehensive report to a Ecological system. See ecosystem. plan, plan amendment, or plan revision. one-page report, depending on the scope Economic system. The system of (1) Initiating plan development and and scale of issues driving the need to production, distribution, and plan revisions. Plan development and change. consumption of goods and services plan revisions initiated after the Collaboration. A structured manner in including consideration of jobs and effective date of this part must conform which a collection of people with income. to the requirements of this part. diverse interests share knowledge, Ecosystem. A spatially explicit, (2) Initiating plan amendments. With ideas, and resources while working relatively homogeneous unit of the respect to plans approved or revised together in an inclusive and cooperative Earth that includes all interacting under a prior planning regulation, a 3- manner toward a common purpose. organisms and elements of the abiotic year transition period for plan Collaboration, in the context of this part, environment within its boundaries. An amendments begins on the effective date falls within the full spectrum of public ecosystem is commonly described in of this part. During the transition engagement described in the Council on terms of its: period, plan amendments may be Environmental Quality’s publication: (1) Composition. Major vegetation initiated under the provisions of the Collaboration in NEPA—A Handbook types, rare communities, aquatic prior planning regulation, or may for NEPA Practitioners. The Forest systems, and riparian systems. conform to the requirements of this part. Service retains decisionmaking (2) Structure. Vertical and horizontal Plan amendments initiated after the authority and responsibility for all distribution of vegetation, stream habitat transition period must conform to the decisions throughout the process. complexity, and riparian habitat requirements of this part. Connectivity. Pertaining to the extent elements. (3) Plan development, plan to which conditions exist or should be (3) Function. Ecological processes amendments, or plan revisions initiated provided between separate national such as stream flows, nutrient cycling, before this part. For plan development, forest or grassland areas to ensure and disturbance regimes. plan amendments, or plan revisions that habitat for breeding, feeding, or (4) Connectivity. Habitats that exist were initiated before the effective date movement of wildlife and fish within for breeding, feeding, or movement of of this part, the responsible official may their home range or migration areas. wildlife and fish within species home complete the plan, plan revision, or Conservation. The protection, ranges or migration areas. plan amendment in conformance with preservation, management, or Ecosystem diversity. The variety and the provisions of the prior planning restoration of natural environments and relative extent of ecosystem types, regulation, or may conform the plan, ecological communities. including their composition, structure, plan amendment, or plan revision to the Culmination of mean annual and processes. requirements of this part. When the increment of growth. See mean annual Ecosystem services. Benefits people responsible official chooses to conform increment of growth. obtain from ecosystems, including: an ongoing planning process to this Designated areas. Areas or features (1) Provisioning services, such as part, public notice must be made within a planning unit with specific clean air and fresh water, as well as (§ 219.16(a)(6)). management direction that are normally energy, fuel, forage, fiber, and minerals; (c) Plans developed, amended, or established through a process separate (2) Regulating services, such as long revised under a prior planning from the land management planning term storage of carbon; climate regulation. This part supersedes any process. Designations may be made by regulation; water filtration, purification, prior planning regulation. For units statute or by an administrative process and storage; soil stabilization; flood with plans developed, amended, or of the Federal executive branch. The control; and disease regulation; revised using the provisions of a prior Forest Service Directive System (3) Supporting services, such as planning regulation, no obligations contains policy for recognition and pollination, seed dispersal, soil remain from any prior planning establishment of designations. formation, and nutrient cycling; and regulation, except those that are Designated areas include experimental (4) Cultural services, such as specifically included in the plan. forests, national heritage areas, national educational, aesthetic, spiritual, and monuments, national recreational areas, cultural heritage values, as well as § 219.18 Severability. national scenic trails, research natural recreational experiences and tourism In the event that any specific areas, scenic byways, wild and scenic opportunities. provision of this part is deemed by a rivers, wilderness areas, and wilderness Environmental assessment (EA). See court to be invalid, the remaining study areas. definition in § 219.62. provisions shall remain in effect. Disturbance. Any relatively discrete Environmental document. Includes an event in time that disrupts ecosystem, environmental assessment, § 219.19 Definitions. watershed, community, or species environmental impact statement, Definitions of the special terms used population structure and/or function finding of no significant impact, in this subpart are set out as follows. and changes resources, substrate categorical exclusion, and notice of Alaska native corporation. One of the availability, or the physical intent to prepare an environmental regional, urban, and village native environment. impact statement. corporations formed under the Alaska Ecological conditions. The biological Environmental impact statement. See Native Claims Settlement Act of 1971. and physical environment that can definition in § 219.62. Assessment. A synthesis of affect diversity of plant and animal Even-aged stand. A stand of trees information in support of land communities and the productive composed of a single age class.

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Federally recognized Indian Tribe. An increment is expressed in cubic measure describe management direction for an Indian or Alaska Native Tribe, band, and is based on the expected growth of administrative unit of the NFS. nation, pueblo, village, or community stands, according to intensities and Plan area. The National Forest System that the Secretary of the Interior utilization guidelines in the plan. lands covered by a plan. acknowledges to exist as an Indian Tribe Monitoring. A systematic process of Plant and animal communities. A under the Federally Recognized Indian collecting information over time and naturally occurring assemblage of plant Tribe List Act of 1994, 25 U.S.C. 479a. space to evaluate effects of actions or and animal species living within a Focal species. A small number of changes in conditions or relationships. defined area or habitat. species selected for monitoring whose Multiple use. The management of all Potential wilderness areas. All areas status is likely to be responsive to the various renewable surface resources within the National Forest System lands changes in ecological conditions and of the NFS so they are used in the that satisfy the definition of wilderness effects of management. Monitoring the combination that will best meet the found in section 2(c) of the 1964 status of focal species is one of many needs of the American people: Making Wilderness Act. Inventory criteria are ways to gauge progress toward the most judicious use of the land for listed in Forest Service Handbook achieving desired conditions in the some or all of these resources or related 1909.12—Land Management Planning plan. services over areas large enough to Handbook, Chapter 70—Wilderness Forest land. Land at least 10 percent provide sufficient latitude for periodic Evaluation. occupied by forest trees of any size or adjustments in the use to conform to Productivity. The capacity of National formerly having had such tree cover and changing needs and conditions; Forest System lands and their ecological not currently developed for non-forest recognizing that some lands will be systems to provide the various uses. Lands developed for non-forest used for less than all of the resources; renewable resources in certain amounts use include areas for crops; improved and providing for harmonious and in perpetuity. For the purposes of this pasture; residential or administrative coordinated management of the various subpart, productivity is an ecological, areas; improved roads of any width and resources, each with the other, without not an economic, term. adjoining road clearing; and power line impairment of the productivity of the Project. An organized effort to achieve clearings of any width. land, with consideration being given to an outcome on NFS lands identified by Geographic area. A spatially the relative values of the various location, tasks, outputs, effects, times, contiguous land area identified within resources, and not necessarily the and responsibilities for execution. the planning unit. A geographic area combination of uses that will give the Recreational setting. The may overlap with a management area. greatest dollar return or the greatest unit Health(y). The degree of ecological surroundings or the environment for the output, consistent with the Multiple- recreational activities. The Forest integrity that is related to the Use Sustained-Yield Act of 1960 (16 completeness or wholeness of the Service uses the recreational U.S.C. 528–531). Ecosystem services are opportunity spectrum that defines six composition, structure, and function of included as part of all the various native ecosystems existing within the recreational opportunity classes that renewable surface resources of the NFS. provide different settings for inherent capability of the land. National Forest System. See definition Landscape. A spatial mosaic of recreational use: primitive, semi- in § 219.62. primitive nonmotorized, semi-primitive terrestrial and aquatic ecosystems, Native knowledge. A way of knowing motorized, roaded natural, rural, and landforms, and plant communities or understanding the world, including urban. across a defined area irrespective of traditional ecological and social Resilience. The capacity of a system to ownership or other artificial boundaries knowledge of the environment derived absorb disturbance and reorganize while and repeated in similar form from multiple generations of indigenous undergoing change so as to still retain throughout. peoples’ interactions, observations, and essentially the same function, structure, Landscape character. A combination experiences with their ecological identity, and feedbacks. of physical, biological, and cultural systems. Native knowledge is place- images that gives an area its visual and based and culture-based knowledge in Responsible official. See definition in cultural identity and helps to define a which people learn to live in and adapt § 219.62. ‘‘sense of place.’’ Landscape character to their own environment through Restoration. The process of assisting provides a frame of reference from interactions, observations, and the recovery of resilience and the which to determine scenic experiences with their ecological capacity of a system to adapt to change attractiveness and to measure scenic system. This knowledge is generally not if the environment where the system integrity. solely gained, developed by, or retained exists has been degraded, damaged, or Management area. A land area by individuals, but is rather destroyed. Ecological restoration focuses identified within the planning unit that accumulated over successive on reestablishing ecosystem functions has the same set of applicable plan generations and is expressed through by modifying or managing the components. A management area does oral traditions, ceremonies, stories, composition, structure, arrangement, not have to be spatially contiguous. dances, songs, art, and other means and processes necessary to make Mean annual increment of growth and within a cultural context. terrestrial and aquatic ecosystems culmination of mean annual increment Newspaper(s) of record. See definition sustainable, and resilient under current of growth. Mean annual increment of in § 219.62. and future conditions. growth is the total increment of increase Objection. See definition in § 219.62. Riparian Areas. Geographically of volume of a stand (standing crop plus Online. See definition in § 219.62. delineable areas with distinctive thinnings) up to a given age divided by Participation. Activities that include a resource values and characteristics that that age. Culmination of mean annual wide range of public involvement tools are comprised of the aquatic and increment of growth is the age in the and processes, such as collaboration, riparian ecosystems. growth cycle of an even-aged stand at public meetings, open houses, Risk. A combination of the likelihood which the average annual rate of workshops, and comment periods. that a negative outcome will occur and increase of volume is at a maximum. In Plan or land management plan. A the severity of the subsequent negative land management plans, mean annual document or set of documents that consequences.

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Sole source aquifer. A porous geologic Watershed. A region or land area § 219.52 Giving notice of a plan, plan formation, usually consisting of sand drained by a single stream, river, or amendment, or plan revision subject to and gravel, that holds ground water, and drainage network; a drainage basin. objection before approval. designated by the Environmental Watershed condition. The state of a (a) The responsible official shall Protection Agency because it supplies at watershed based on physical and disclose during the NEPA scoping least 50 percent of the drinking water biogeochemical characteristics and process and in the appropriate NEPA consumed in the area overlying the processes. documents that the proposed plan, plan aquifer, and where contamination Wild and scenic river. A river amendment, or plan revision is subject would present both a significant public designated by Congress as part of the to the objection procedures in this health hazard and an economic National Wild and Scenic Rivers System subpart. This disclosure is in addition to hardship in the high cost of replacing that was established in the Wild and the public notice that begins the the contaminated water. Scenic Rivers Act of 1968 (16 U.S.C. objection filing period, as required at Source water protection areas. The 1271 (note), 1271–1287). § 219.16. area delineated by a State or Tribe for (b) The responsible official shall make Wilderness. Any area of land available the public notice for beginning a public water system (PWS) or designated by Congress as part of the including numerous PWSs, whether the of the objection period for a plan, plan National Wilderness Preservation amendment, or plan revision source is ground water or surface water System that was established in the or both, as part of a State or tribal source (§ 219.16(a)(4)) to those who have Wilderness Act of 1964 (16 U.S.C. 1131– requested the environmental documents water assessment and protection 1136). program (SWAP) approved by or are eligible to file an objection Environmental Protection Agency under Subpart B—Pre-Decisional consistent with § 219.53. (c) The content of the public notice section 1453 of the Safe Drinking Water Administrative Review Process for beginning of the objection period for Act. § 219.50 Purpose and scope. a plan, plan amendment, or plan Species of conservation concern. revision before approval (§ 219.16(a)(4)) Species other than federally listed This subpart establishes a pre- decisional administrative review must: threatened or endangered species or (1) Inform the public of the (hereinafter referred to as objection) candidate species, for which the availability of the plan, plan process for plans, plan amendments, or responsible official has determined that amendment, or plan revision, the plan revisions. This process gives an there is evidence demonstrating appropriate final environmental individual or organization an significant concern about its capability documents, the draft plan decision opportunity for an independent Forest to persist over the long-term in the plan document, and any relevant assessment Service review and resolution of issues area. or monitoring evaluation report; the before the approval of a plan, plan Sustainability. Capability of meeting commencement of the 30-day objection amendment, or plan revision. This the needs of the present generation period under 36 CFR part 219 subpart subpart identifies who may file without compromising the ability of B; and the process for objecting. future generations to meet their needs. objections to a plan, plan amendment, (2) Include the name of the plan, plan or plan revision; the responsibilities of Sustainable recreation. The set of amendment, or plan revision and the the participants in an objection; and the recreational opportunities, uses and name and title of the responsible procedures that apply to the review of access that, individually and combined, official, and instructions on how to the objection. are ecologically, economically, and obtain a copy of the appropriate final socially sustainable, allowing the § 219.51 Plans, plan amendments, or plan environmental documents; the draft responsible official to offer recreation revisions not subject to objection. plan decision document; and the plan, opportunities now and into the future. (a) A plan, plan amendment, or plan plan amendment, or plan revision. (3) Include the name and address of Recreational opportunities can include revision is not subject to objection when the reviewing officer with whom an non-motorized, motorized, developed, the responsible official receives no objection is to be filed. The notice must and dispersed recreation on land, water, formal comments (§ 219.62) on that specify a street, postal, fax, and e-mail and air. proposal during the opportunities for address; the acceptable format(s) for System drivers. Natural or human- public comment (§ 219.53(a)). objections filed electronically; and the induced factors that directly or (b) Plans, plan amendments, or plan indirectly cause a change in an reviewing officer’s office business hours revisions proposed by the Secretary of for those filing hand-delivered ecosystem, such as climate change, Agriculture or the Under Secretary for habitat change, or non-native invasive objections. Natural Resources and Environment, are (4) Include a statement that objections species, human population change, not subject to the procedures set forth in economic activity, or technology. will be accepted only from those who this section. A decision by the Secretary have previously submitted formal Timber harvest. The removal of trees or Under Secretary constitutes the final comments specific to the proposed plan, for wood fiber use and other multiple- administrative determination of the plan amendment, or plan revision use purposes. Department of Agriculture. during any opportunity for public Timber production. The purposeful (c) A plan, plan amendment, or plan comment as provided in subpart A. growing, tending, harvesting, and revision is not subject to objection (5) Include a statement that the regeneration of regulated crops of trees under this subpart if another publication date of the public notice in to be cut into logs, bolts, or other round administrative review process is used the applicable newspaper of record (or sections for industrial or consumer use. consistent with § 219.59. the Federal Register, if the responsible Viable population. A population of a (d) When a plan, plan amendment, or official is the Chief or the Secretary) is species that continues to persist over the plan revision is not subject to objection the exclusive means for calculating the long term with sufficient distribution to under this subpart, the responsible time to file an objection (§ 219.56). be resilient and adaptable to stressors official shall include an explanation (6) Include a statement that an and likely future environments. with the signed decision document. objection, including attachments, must

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be filed with the appropriate reviewing such as Federal agency documents that § 219.55 Objections set aside from review. officer (§ 219.62) within 30 days of the are exempt from disclosure under the (a) The reviewing officer must set date of publication of the public notice Freedom of Information Act (5 U.S.C. aside and not review an objection when for the objection process. 552 (b)). one or more of the following applies: (7) Include a statement describing the (1) Objections are not filed in a timely minimum content requirements of an § 219.54 Filing an objection. manner (§ 219.56); objection (§ 219.54(c)). (a) Objections must be filed with the (2) The proposed plan, plan reviewing officer in writing. All amendment, or plan revision is not § 219.53 Who may file an objection. objections must be open to public subject to the objection procedures of (a) Individuals and organizations who inspection during the objection process. this subpart pursuant to §§ 219.51 and have submitted substantive formal (b) Including documents by reference 219.59; comments related to a plan, plan is not allowed, except for the following (3) The individual or organization did amendment, or plan revision during the list of items that may be referenced by not submit formal comments (§ 219.53) opportunities for public comment as including the name, date, page number during scoping or other opportunities provided in subpart A during the (where applicable), and relevant section for public comment on the proposed planning process for that decision may of the cited document. All other decision (§ 219.16); file an objection. Objections must be documents, web links to those (4) None of the issues included in the based on previously submitted documents, or both must be included objection is based on previously substantive formal comments unless the with the objection. submitted substantive formal comments objection concerns an issue that arose (1) All or any part of a Federal law or unless one or more of those issues arose after the opportunities for formal regulation. after the opportunities for formal comment. The burden is on the objector (2) Forest Service Directive System comment; to demonstrate compliance with documents and land management plans. (5) The objection does not provide requirements for objection. Objections (3) Documents referenced by the sufficient information as required by from individuals or organizations that Forest Service in the planning § 219.54(c); do not meet the requirements of this documentation related to the proposal (6) The objector withdraws the paragraph must not be accepted; subject to objection. objection in writing; however, objections not accepted must (4) Formal comments previously (7) The objector’s identity is not be documented in the planning record. provided to the Forest Service by the provided or cannot be determined from (b) Formal comments received from objector during the proposed plan, plan the signature (written or electronically an authorized representative(s) of an amendment, or plan revision comment scanned), and a reasonable means of organization are considered those of the period. contact is not provided (§ 219.54(c)); or organization only. Individual members (c) At a minimum, an objection must (8) The objection is illegible for any of that organization do not meet reason and a legible copy cannot easily objection eligibility requirements solely include the following: (1) The objector’s name and address be obtained. based on membership in an (b) When an objection includes an organization. A member or an (§ 219.62), along with a telephone number or e-mail address if available; issue that is not based on previously individual must submit formal submitted substantive formal comments comments independently to be eligible (2) Signature or other verification of authorship upon request (a scanned and did not arise after the opportunities to file an objection in an individual for formal comment, that issue will be capacity. signature for electronic mail may be filed with the objection); set aside and not reviewed. Other issues (c) When an objection lists multiple raised in the objection that meet the (3) Identification of the lead objector, individuals or organizations, each requirements of this subpart will be when multiple names are listed on an individual or organization must meet reviewed. objection (§ 219.62). Verification of the the requirements of paragraph (a) of this (c) The reviewing officer must give identity of the lead objector if requested; section. Individuals or organizations written notice to the objector and the (4) The name of the plan, plan listed on an objection that do not meet responsible official when an objection is amendment, or plan revision being eligibility requirements must not be set aside from review and must state the objected to, and the name and title of considered objectors, although an reasons for not reviewing the objection. the responsible official; objection must be accepted (if not If the objection is set aside from review otherwise set aside for review under (5) A statement of the issues and/or for reasons of illegibility or lack of a § 219.55) if at least one listed individual the parts of the plan, plan amendment, means of contact, the reasons must be or organization meets the eligibility or plan revision to which the objection documented in the planning record. requirements. applies; (d) Federal agencies may not file (6) A concise statement explaining the § 219.56 Objection time periods and objections. objection and suggesting how the process. (e) Federal employees who otherwise proposed plan decision may be (a) Time to file an objection. Written meet the requirements of this subpart improved. If applicable, the objector objections, including any attachments, for filing objections in a non-official should identify how the objector must be filed within 30 days following capacity must comply with Federal believes that the plan, plan amendment, the publication date of the public notice conflict of interest statutes at 18 U.S.C. or plan revision is inconsistent with for a plan, plan amendment, or plan 202–209 and with employee ethics law, regulation, or policy; and revision before approval (§§ 219.16 and requirements at 5 CFR part 2635. (7) A statement that demonstrates the 219.52). It is the responsibility of the Specifically, employees must not be on link between prior formal comments objector to ensure that the reviewing official duty nor use government attributed to the objector and the officer receives the objection in a timely property or equipment in the content of the objection, unless the manner. preparation or filing of an objection. objection concerns an issue that arose (b) Computation of time periods. Further, employees must not include after the opportunities for formal (1) All time periods are computed using information unavailable to the public, comment (§ 219.53(a)). calendar days, including Saturdays,

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Sundays, and Federal holidays in the (g) Response to objections. The plan, plan amendment, or plan revision time zone of the reviewing officer. reviewing officer must issue a written subject to the provisions of this subpart However, when the time period expires response to the objector(s) concerning until the reviewing officer has on a Saturday, Sunday, or Federal their objection(s) within 90 days of the responded in writing to all objections. holiday, the time is extended to the end end of the objection-filing period. The (b) A decision by the responsible of the next Federal working day (11:59 reviewing officer has the discretion to official approving a plan, plan p.m. for objections filed by electronic extend the time when it is determined amendment, or plan revision must be means such as e-mail or facsimile to be necessary to provide adequate consistent with the reviewing officer’s machine). response to objections or to participate response to objections. (2) The day after publication of the in discussions with the parties. The public notice for a plan, plan reviewing officer must notify all parties (c) When no objection is filed within amendment, or plan revision before (lead objectors and interested persons) the 30-day time period, the reviewing approval (§§ 219.16 and 219.52), is the in writing of any extensions. officer must notify the responsible first day of the objection filing period. official. The responsible official’s (3) The publication date of the public § 219.57 Resolution of objections. approval of the plan, plan amendment, notice for a plan, plan amendment, or (a) Meetings. Prior to the issuance of or plan revision in a plan decision plan revision before approval (§§ 219.16 the reviewing officer’s written response, document consistent with § 219.14, may and 219.52), is the exclusive means for either the reviewing officer or the occur on, but not before, the fifth calculating the time to file an objection. objector may request to meet to discuss business day following the end of the Objectors must not rely on dates or issues raised in the objection and objection-filing period. timeframe information provided by any potential resolution. The reviewing other source. officer must allow other interested § 219.59 Use of other administrative (c) Evidence of timely filing. The persons to participate in such meetings. review processes. objector is responsible for filing the An interested person must file a request (a) Where the Forest Service is a objection in a timely manner. to participate in an objection within 10 participant in a multi-Federal agency Timeliness must be determined by one days after publication of the notice of effort that would otherwise be subject to of the following indicators: objection by the responsible official objection under this subpart, the (1) The date of the U.S. Postal Service (§ 219.56(f)). The responsible official reviewing officer may waive the postmark for an objection received shall be a participant in all meetings objection procedures of this subpart and before the close of the fifth business day involving the reviewing officer, instead adopt the administrative review after the objection filing date; objectors, and interested persons. procedure of another participating (2) The electronically generated During meetings with objectors and Federal agency. As a condition of such delivery date and time for e-mail and interested persons, the reviewing officer a waiver, the responsible official for the facsimiles; may choose to use alternative dispute Forest Service must have agreement (3) The shipping date for delivery by resolution methods to resolve private carrier for an objection received objections. All meetings are open to with the responsible official of the other before the close of the fifth business day observation by the public. agency or agencies that a joint agency after the objection filing date; or (b) Response to objections. (1) The response will be provided to those who (4) The official agency date stamp reviewing officer must render a written file for administrative review of the showing receipt of hand delivery. response to the objection(s) within 90 multi-agency effort. When such an (d) Extensions. Time extensions for days of the close of the objection-filing agreement is reached, the responsible filing are not permitted except as period, unless the allowable time is official for the Forest Service shall provided at paragraph (b)(1) of this extended as provided at § 219.56(g). A ensure public notice required in section. written response must set forth the § 219.52 sets forth which administrative (e) Reviewing officer role and reasons for the response but need not be review procedure is to be used. responsibilities. The reviewing officer is a point-by-point response, and may (b) When a plan amendment is the United States Department of contain instructions to the responsible approved in a decision document Agriculture (USDA) or Forest Service official. In cases involving more than approving a project or activity and the official having the delegated authority one objection to a plan, plan amendment applies only to the project and responsibility to review an amendment, or plan revision, the objection filed under this subpart. The or activity, the administrative review reviewing officer may consolidate process of 36 CFR part 215 or part 218, reviewing officer is a line officer at the objections and issue one or more next higher administrative level above subpart A, applies instead of the responses. The response must be sent to objection process established in this the responsible official; except that for the objecting party(ies) by certified mail, a plan amendment, that next higher- subpart. When a plan amendment return receipt requested, and posted applies to all future projects or level line officer may delegate their online. reviewing officer authority and activities, the objection process (2) The reviewing officer’s review of established in this subpart applies only responsibility to a line officer at the and response to the objection(s) is same administrative level as the to the plan amendment decision; the limited to only those issues and review process of 36 CFR part 215 or responsible official. Any delegation of concerns submitted in the objection(s). reviewing officer responsibilities must part 218 would apply to the project or (3) The response of the reviewing activity part of the decision. be made prior to the public notification officer will be the final decision of the of an objection filing period (§ 219.52). Department of Agriculture on the § 219.60 Secretary’s authority. (f) Notice of objections filed. Within objection. 10 days after the close of the objection Nothing in this subpart restricts the period, the responsible official shall § 219.58 Timing of a plan, plan Secretary of Agriculture from exercising publish a notice of all objections in the amendment, or plan revision decision. any statutory authority regarding the applicable newspaper of record and post (a) The responsible official may not protection, management, or the notice online. issue a decision document concerning a administration of NFS lands.

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§ 219.61 Information collection statement when one is necessary (40 Objection. The written document filed requirements. CFR 1508.9; FSH 1909.15, Chapter 40). with a reviewing officer by an This subpart specifies the information Environmental impact statement individual or organization seeking pre- that objectors must give in an objection (EIS). A detailed written statement as decisional administrative review of a to a plan, plan amendment, or plan required by section 102(2)(C) of the plan, plan amendment, or plan revision. revision (§ 219.54(c)). As such, these National Environmental Policy Act Objection period. The 30-calendar- rules contain information collection (NEPA) of 1969 (40 CFR 1508.11; 36 day period following publication of a requirements as defined in 5 CFR part CFR part 220). public notice in the applicable 1320 and have been approved by Office Formal comments. Written comments newspaper of record (or the Federal of Management and Budget and submitted to, or oral comments recorded Register, if the responsible official is the assigned control number 0596–0158. by, the responsible official or his Chief or the Secretary) of the availability designee during an opportunity for of the appropriate environmental § 219.62 Definitions. public participation provided during the documents and draft decision Definitions of the special terms used planning process (§§ 219.4 and 219.16), document, including a plan, plan in this subpart are set out as follows. and attributed to the individual or amendment, or plan revision during Address. An individual’s or organization providing them. which an objection may be filed with Lead objector. For an objection organization’s current mailing address the reviewing officer. used for postal service or other delivery submitted with multiple individuals, multiple organizations, or combination Objection process. Those procedures services. An e-mail address is not established for pre-decisional sufficient. of individuals and organizations listed, the individual or organization identified administrative review of a plan, plan Decision memo. A concise written to represent all other objectors for the amendment, or plan revision. record of the responsible official’s purposes of communication, written or Objector. An individual or decision to implement an action that is otherwise, regarding the objection. organization who meets the categorically excluded from further Line officer. A Forest Service official requirements of § 219.53, and files an analysis and documentation in an who serves in a direct line of command objection that meets the requirements of environmental impact statement (EIS) or from the Chief. §§ 219.54 and 219.56. environmental assessment (EA), where Name. The first and last name of an Online. Refers to the appropriate the action is one of a category of actions individual or the name of an Forest Service Web site or future which do not individually or organization. An electronic username is electronic equivalent. cumulatively have a significant effect on insufficient for identification of an Responsible official. The official with the human environment, and does not individual or organization. the authority and responsibility to give rise to extraordinary circumstances National Forest System. The National oversee the planning process and to in which a normally excluded action Forest System includes national forests, approve a plan, plan amendment, and may have a significant environmental national grasslands, and the National plan revision. effect. Tall Grass Prairie. Reviewing officer. The USDA or Environmental assessment (EA). A Newspaper(s) of record. The Forest Service official having the public document that provides newspaper of record is the principal delegated authority and responsibility to sufficient evidence and analysis for newspapers of general circulation review an objection filed under this determining whether to prepare an annually identified and published in the subpart. environmental impact statement (EIS) or Federal Register by each regional a finding of no significant impact forester to be used for publishing Dated: February 7, 2011. (FONSI), aids an agency’s compliance notices as required by 36 CFR 215.5. Harris D. Sherman, with the National Environmental Policy The newspaper(s) of record for projects Under Secretary, NRE. Act (NEPA) when no EIS is necessary, in a plan area is (are) the newspaper(s) [FR Doc. 2011–2989 Filed 2–11–11; 8:45 am] and facilitates preparation of a of record for notices related to planning. BILLING CODE 3410–11–P

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Part IV

Department of Defense

Science and Technology Reinvention Laboratory (STRL) Personnel Management Demonstration Project, Department of the Navy (DON), Naval Air System Command (NAVAIR) Naval Air Warfare Center, Aircraft Division (NAWCAD), and Naval Air Warfare Center, Weapons Division (NAWCWD); Notice

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DEPARTMENT OF DEFENSE 1. Background 2010 and further provided notice of the Since 1966, many studies of intent of the Naval Air Warfare Center Office of the Secretary Department of Defense (DoD) (NAWC) to model and implement an laboratories have been conducted on STRL Personnel Management Science and Technology Reinvention Demonstration project based on the Laboratory (STRL) Personnel laboratory quality and personnel. Almost all of these studies have flexibilities in use by the other STRL Management Demonstration Project, laboratories and demonstration projects. Department of the Navy (DON), Naval recommended improvements in civilian personnel policy, organization, and Relative to NAWC’s intent to model and Air System Command (NAVAIR) Naval implement a new demonstration project, Air Warfare Center, Aircraft Division management. Pursuant to the authority provided in section 342(b) of Public DoD received comments from 14 people (NAWCAD), and Naval Air Warfare during the public comment period Center, Weapons Division (NAWCWD) Law 103–337, as amended, a number of DoD STRL personnel demonstration which ended on October 12, 2010. All comments were carefully considered. AGENCY: Office of the Deputy Under projects were approved. These projects The following summary addresses the Secretary of Defense (Civilian Personnel are ‘‘generally similar in nature’’ to the pertinent comments received, provides Policy), (DUSD (CPP)), DoD. Department of Navy’s ‘‘China Lake’’ Personnel Demonstration Project. The responses, and notes resultant changes ACTION: Notice. terminology, ‘‘generally similar in to the original NAWC project plan nature,’’ does not imply an emulation of published in 75 FR 55160, September 9, SUMMARY: Section 342(b) of the National various features, but rather implies a 2010. Several commenters addressed Defense Authorization Act (NDAA) for similar opportunity and authority to more than one topic and each topic was Fiscal Year (FY) 1995, Public Law (Pub. develop personnel flexibilities that counted separately. Thus, the total L.) 103–337 (10 U.S.C. 2358 note), as significantly increase the decision number of comments exceeds the amended by section 1109 of NDAA for authority of laboratory commanders number of individual commenters. FY 2000, Public Law 106–65, and and/or directors. The STRL Personnel A. General Issues section 1114 of NDAA for FY 2001, Management Demonstration Projects Public Law 106–398, authorizes the involve broad-banded pay systems and In reviewing the comment Secretary of Defense to conduct simplified classification; compensation submissions, several recurring themes personnel demonstration projects at linked to performance, including were discerned that spanned multiple DoD laboratories designated as Science contribution-based pay; recruitment and sections of the proposed regulation and and Technology Reinvention staffing changes; and enhanced training which were not necessarily aimed Laboratories (STRLs). The above-cited and development including critical directly at the substance of the proposed legislation authorizes DoD to conduct skills training, Voluntary Emeritus regulation. General issues identified demonstration projects to determine Corps, and sabbaticals. included: (1) Requests for a return to the whether a specified change in personnel This demonstration project involves: former demonstration project (officially management policies or procedures (1) Two appointment authorities identified as the Navy Personnel would result in improved Federal (permanent and modified term); (2) Management Demonstration Project but personnel management. Section 1105 of extended probationary period for newly generally recognized as the China Lake the NDAA for FY 2010, Public Law 111– hired employees; (3) pay banding; (4) Demo, which became a permanent 84, 123 Stat. 2486, October 28, 2009, streamlined delegated examining; (5) Alternative Personnel System); (2) the designates additional DoD laboratories modified reduction-in-force (RIF) perceived similarity of some aspects as STRLs for the purpose of designing procedures; (6) simplified job between this STRL and the National and implementing personnel classification; (7) a mission aligned Security Personnel System (NSPS) and management demonstration projects for objectives and compensation based the rescinding of NSPS; (3) transparency conversion of employees from the appraisal system; (8) market based and fairness; and (4) a request for the personnel system which applied on starting salaries; (9) academic degree comment period to be extended. October 28, 2009. The NAWCAD and and certificate training; (10) sabbaticals; the NAWCWD are listed in subsection and (11) a Voluntary Emeritus Corps. (1) Return to the Former Navy Personnel 1105(a) of NDAA for FY 2010 as two of Management Demonstration Project the newly designated STRLs. These two 2. Overview STRLs will be the participants in the The covered organizations Comments: Three comments were demonstration project proposal transitioned to the National Security received expressing the benefits and described in this Federal Register Personnel System (NSPS) late in 2008. value of the Navy Personnel Notice (FRN). Subsequently, section 1113 of NDAA for Management Demonstration Project and FY 2010, Public Law 111–84,123 Stat. its tried and tested positive outcomes. DATES: Implementation of this 2486, required all employees to exit Two of these also asked that it be demonstration project will begin no reinstated. earlier than March 1, 2011. NSPS by no later than January 1, 2012. Another section of NDAA for FY 2010, Response: While there is no question FOR FURTHER INFORMATION CONTACT: section 1105, identifies NAWCAD and about the value and benefits that were NAVAIR: Mr. Richard Cracraft, Naval NAWCWD as STRLs and requires them realized under the Navy Personnel Air Warfare Center, Weapons Division to convert to an STRL demonstration Management Demonstration Project, it is (NAWCWD), Code 730000D, 1 project within 18 months of enactment not possible to return to it. NDAA 2010 Administration Circle, Building 00464, of NDAA for FY 2010. DoD published specifically states that NAWCAD and China Lake, CA 93555–6100. notice in 75 FR 55160, September 9, NAWCWD were to exit NSPS and 2010, that Section 1105 of the NDAA for transition to a Science and Technology DoD: Ms. Betty A. Duffield, CPMS– FY 2010, Public Law 111–84, 123 Stat. Reinvention Laboratory Demonstration PSSC, Suite B–200, 1400 Key 2486, October 28, 2009, designated Project and that the organizations had Boulevard, Arlington, VA 22209–5144. NAWCAD and NAWCWD as new STRLs 18 months from signature of the NDAA SUPPLEMENTARY INFORMATION: in subsection 1105(a) of NDAA for FY to implement this decision.

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(2) Perceived Similarities Between STRL (FWS), Senior Executive Service (SES), intelligence, SES, FWS, and ST are and NSPS and Scientific and Professional (ST)) in excepted from conversion to the Comments: Ten commenters made the place across NAVAIR. Demonstration Project. The provisions comparison that this STRL Response: DoD actively monitors the of the STRL do not apply to any demonstration project is similar to or new STRLs which are also subject to bargaining unit employees within the same as NSPS and will thus not be periodic evaluations by DoD. Congress NAWCAD or NAWCWD until a mutual a success. maintains oversight through a agreement is reached between the STRL Response: The proposed STRL mandatory 5-year report and evaluation organization and the applicable provisions are based on concepts proven of each new STRL as well as a exclusive representative. The obligation over more than 25 years for the Navy mandatory annual report on to consult and/or negotiate with all Demonstration Project and more than 10 demonstration project activities. Any labor organizations is established by 5 U.S.C. 4703(f) and 7117, as applicable. years by the multiple STRLs in Army, major changes that are made to the Air Force and Navy who have operating approved regulations require C. Project Design notification to the appropriate demonstration projects. There are both Comments: Three comments were conceptual similarities and differences stakeholders and possible publication of a Federal Register Notice (FRN). received on this subject. One comment between the NAWC STRL, NSPS, the requested that the STRL provide for other existing STRL demonstration (4) Extension of the Comment Period every optional OPM benefit. The other projects, and the Navy Personnel Comments: Two commenters asked two comments request that the STRL Management Demonstration Project that for an extension to the comment period. provision include medical and legal covered Space and Naval Warfare Response: Unfortunately there is no support to employees in the STRL and Systems Command (SPAWAR) opportunity to extend the comment that medical testing should be organizations as well as NAWCWD for period as the NDAA 2010 requires that conducted to identify whether more than 25 years. For instance, the the STRL demonstration project be employees have disabilities that prevent NAWC STRL has a five-level implemented and conversion from them from performing successfully performance rating system, so did the NSPS occur no later than 18 months under the STRL. Navy Personnel Management after enactment of NDAA for FY 2010 or Response: STRL demonstration Demonstration Project and so does by 28 April 2011. projects are prohibited by law from NSPS. The STRL has five occupational making any changes in the areas of families: Scientific and Engineering B. Participating Organizations and employee benefits, employee leave, (S&E), S&E Technician, Technical Employees equal employment opportunity, Specialist, Business Professional & Three comments were received that political activity, merit system Program Management, and relate to the definition of the principles, or other prohibited Administrative Support as did the Navy organizations participating and the personnel practices. Personnel Management Demonstration coverage of the STRL. Project; NSPS has four: Standard Career D. Pay Banding Group, Scientific and Engineering (1) Definition of the Organizations There were six comments on the Career Group, Medical Career Group Participating proposed pay banding. Four identified and Investigative and Protective Comments: The section on the pay bands as being too broad and Services Career Group. The STRL will participating organizations, section D two addressed the use of a supervisory have hiring flexibilities that neither the should be corrected as it inaccurately and managerial pay band. Navy Personnel Management identifies each Warfare Center site as a (1) Pay Bands Are Too Broad Demonstration Project nor NSPS had ‘business unit.’ available. These flexibilities, such as the Response: This correction has been Comments: Four comments noted that proposed Direct Hire Authority for made. the proposed STRL pay bands are too Scientists and Engineers with Advanced broad and will have negative impacts on Degrees, Distinguished Scholastic (2) Coverage of the STRL financial systems and the ability to Achievement Appointment Authority Comments: One commenter appropriately recognize employees’ (DSAA) for Scientific and Engineering questioned the organizational coverage progression to higher levels of work and Positions, and Non-Citizen Hiring of the field sites by the STRL and that the provision for more promotion flexibilities are only available to another requested a provision that opportunities could be seen as a laboratories covered by STRL would allow employees to opt out of the positive by the workforce. Examples of demonstration projects. STRL. Another commenter suggested specific comments include: ‘‘Broad pay that STRL positions be filled by former bands, such as were designed in NSPS (3) Transparency and Fairness military who had successful military and seem to be continuing into STRL, Several comments were received that careers and that other civilian cause stabilized rate setting concerns addressed the topics of the transparency employees be excluded from coverage to and instability in our net operating and fairness of the STRL. avoid impacts on their productivity. results. When the salary range of the Comments: Four of the comments Response: The NDAA identified band fluctuates so wildly (salary ranges spoke to protecting the integrity of the NAWCAD and NAWCWD as the with a span of $50K or more) it is hard STRL and the need for credible organizations to be covered by an STRL. to set the rates to minimize the unbiased oversight and employee Each of these organizations includes stabilized rate variance to any degree of protections. Some expressed a concern more than one geographic location. All certainty. This presents a problem for the possibility that the STRL locations and civilian employees particularly in NWCF facilities where personnel system for the laboratories covered by NSPS are required by the workload can vary by millions between could be sub optimized due to efforts to Congressional mandate to convert to the those being charged at stabilized rates reconcile differences with the other STRL Demonstration Project. Employees versus accelerated labor. A change in personnel systems (General Schedule covered by other personnel systems the workforce shifting from assumptions (GS), Interim GS, Federal Wage System such as those in health care, medical, used when weighting the stabilized

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rates will cause net operating result supervisory work but also allows commented on the proposed pay pool gains or losses that have the potential to flexibility for the organizations to process. Five expressed thoughts on the impact future year rates, compounding compensate both types of positions performance pay outcomes. The final the problem.’’; ‘‘Thirdly, the STRL appropriately. one identified a concern with the paybands are still too broad. While the proposed request for reconsideration E. Classification attempt has been made to restructure regulation. the NSPS paybands, the lack of built in Four comments addressed the topic of checks and balances for salary control position classification. Three speak to (1) Annual Performance Cycle Begin remains unaddressed.’’ and ‘‘The last the position series used by the STRL and End Dates point revolves around employee morale. and the other focuses on the method of Comments: These comments Employees crave promotion recognition. actually creating and assigning pay identified concerns with the current Additional bands meet that need. * * * schedules and pay bands to positions. performance rating cycle and payout date. The timing of the end of the As it is in the current STRL pay band (1) Occupational Series proposal, promoting once takes them performance cycle to coincide with the from a GS 1–4 pay band to being Comments: These comments end of the financial fiscal year has a capable of moving all the way to a GS advocated the use of the established significant workload impact on 11 with only one promotion.’’ OPM series and one of the three also employees and the organization. At this Response: We concur with these suggested the establishment of a single time of year, the pay pools have to work recommendations and have modified multi-disciplinary series for all with estimated salary values for the the pay band levels by adding supervisory/managerial positions January increase since the official additional levels within each of the covered by the STRL. figures are not normally published until occupational families with the Response: The STRL has adopted the late November or December. exception of the Administrative Support use of Office of Personnel Management Furthermore, moving the cycle dates family. The number of pay levels within (OPM) standard series and titling and payout to a schedule that permitted the Supervision & Management pay practices. This STRL demonstration the payout to occur before the holiday schedule also remains the same. All project did not identify supervision and period could be desirable from the levels now have a base pay span of less management as a separate occupational employees’ perspective. than $50,000 and the additional levels family because all supervisory/ Response: The difficulties presented provide for more promotional managerial positions do not have by the timing of the current cycle are opportunities while still meeting the knowledge, skills, and qualifications recognized and the FRN is purposefully need for broad bands to facilitate the requirements similar enough to be silent on the specific timing of the ability to quickly move employees to classed together. Each occupational performance period to permit the areas of mission need when necessary. family is built around a body of organizations the flexibility of knowledge and area of expertise, e.g., (2) Supervisory Pay Bands evaluating other options and changing Scientific and Engineering as compared the cycle if warranted. Comments: Two comments were to Business and Program Management. submitted and questioned the utility of Supervision and management, while (2) Self Assessments a supervisory and managerial pay band. arguably a body of knowledge, is not Comments: It was recommended that They spoke to the blended nature of the separate unto itself but rather spans all employees have the choice to submit work of many positions which include of the occupational families that are written statements of accomplishments both supervisory and non-supervisory identified under the STRL. at mid-year and end-of-year duties with emphasis on the technical performance milestones rather than workforce in the laboratories and the (2) Classification Standards and Position being required to provide them. difficulties of drawing distinctions in Descriptions Response: We concur that there are the value of these two elements. One Comments: This comment spoke to circumstances which may prohibit the commenter made reference to the former the streamlined procedures of the China submission of written statements and Navy Personnel Management (China Lake classification system and the ease that employees should have a choice in Lake) Demonstration Project and its of application and consistency it this matter. The appropriate changes experience in this area where there was brought to creating position have been made in the relevant section no separate pay schedule for descriptions. to make the submission of written supervisory positions. Response: The FRN speaks at a high statements permissive rather than Response: The establishment of a level and the flexibilities as proposed required. separate supervisory pay schedule is not allow for the streamlined classification incompatible with the STRL and does procedures available in the former (3) Pay Pools not define how the organization values China Lake system while also allowing Comments: The comment questioned or compensates different types of work. room for the adoption of additional the cost/benefit value of the pay pool One of the differences between the features if desired. The specific system process when the cost of the process is China Lake demonstration project and and procedures used to create and compared to the amount of money the STRL is the coverage. The STRL classify positions will be included in available to allocate in the payout covers two large organizations with internal operating issuances. process. multiple diverse sites and the Response: The experience of all the flexibilities adopted under the STRL F. Mission Aligned Objectives and demonstration projects is that the must be broad enough to address the Compensation startup learning curve associated with needs of each. The China Lake Demo Eleven comments were submitted on new performance systems and pay pools was originally designed for and applied the performance management aspects of is fairly steep but it does return to more to one part of what is today NAWCWD. the STRL. Three addressed the timing of reasonable levels after two or three The establishment of a separate pay the beginning and end of the annual cycles. This initial investment is more schedule recognizes the differences performance cycle. One spoke to than returned in out-year benefits. The inherent in supervisory and non- employee self assessments. One demonstration project performance

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system delivers increased focus on what but all jobs, no matter what the met following our existing processes. is expected to be accomplished and compensation system, reach a plateau While the current process to approve enhanced rewards for those who where salary growth levels off; some at the appointment of reemployed contribute the most. Pay pools are the top of the pay scale and others at annuitants is perceived by some as charged primarily with ensuring that the different points. being lengthy and time consuming, it is appraisals and ratings assigned to each There is a degree of complexity in the designed to preserve the interests of the employee are appropriate and rating computation of the payout point value Department of the Navy and ensure benchmarks are applied consistently and it can vary by pay pool due to the appointments of this nature are made across the organization. Establishing factors required for the calculation. The only after very deliberate and careful this shared understanding of the broad design provides for a variable pay point thought is given to workforce benchmarks and their application to value to allow the ratings to be requirements, succession planning, specific accomplishments is one of the paramount and drive the outcomes alternative sources of candidates, and Pay Pool Managers’ and Panels’ core rather than be limited by the payout. the intent of this hiring flexibility. responsibilities and while important, The method chosen to implement this the specific amount of money in the pay capability is one that is similar to a (2) Hiring Flexibilities for Acquisition pool fund is secondary and subordinate process with which the organization is Workforce Positions to this. familiar and has applied successfully in Comments: The comment requests (4) Performance Payout Determination the past. consideration to include direct hire Comments: Five comments expressed (5) Requests for Reconsideration authority for 1102 series positions for individuals who possess an advanced thoughts in this area. Two spoke Comments: One commenter spoke to degree. 1102s are one of the critical specifically to the overlapping payout this area pointing out that it is not occupational series at NAWCAD and are points available for Partial Mission reasonable for a Pay Pool Manager to be also some of the most difficult to fill. Success and Mission Success ratings. the final deciding official on requests for Having this authority will greatly reduce One of the two commented that 0 reconsideration for those cases where cycle time and help hire qualified payout points for an employee with a they are also the rating official or candidates in this career field in support Mission Success rating was the wrong immediate supervisor. of the warfighter. decision and the other commented that Response: Concur that it is not there should be a lesser reward for reasonable for a Pay Pool Manager to be Response: There is no question about Partial Mission Success vs. Mission the final deciding official on requests for the critically of the acquisition Success and suggested that the Partial reconsideration for those cases where workforce to mission accomplishment Mission Success should receive one-half they are also the rating official or or the difficulty in finding candidates of any January pay increase as well as immediate supervisor. The appropriate for these positions; however, the 0 payout points. Two spoke to the changes have been made in the relevant authority being requested is essentially complexity of the proposed payout section to adopt this recommendation. already in place under the Expedited point computations and one of these Hiring Authority for Select Defense suggested a fixed dollar value for payout G. Hiring Authority Acquisition Workforce Positions and points similar to one of the former Three comments were submitted on this STRL demonstration project will demonstration projects. The final the hiring authorities for the STRL. Two rely on this authority to meet these comment expressed concern with the requested additional hiring flexibilities: needs. variance in the payout point value that one for acquisition workforce jobs and (3) STRL Flexibilities and Standardized can occur between pay pools. one for re-employed annuitants. The Business Processes Response: The Partial Mission second comment spoke to the tension Success rating is applicable for those between the need to tailor the features Comments: One commenter addressed situations where less than was needed of the STRL demonstration project to the requirement to follow the was accomplished but some work was the specific requirements of the Department of Navy’s common business accomplished that did contribute to the proposing organization and the DON’s processes, systems, and tools in carrying mission. There is merit in the desire to standardize HR operations out hiring authorities and expressed recommendation to have the payout for across the component. concern that the use of common this to be at a lesser level and other processes and tools designed for the STRL demonstration projects do have (1) Hiring Flexibilities for Re-Employed Annuitants entire Navy is limiting and this flexibility available and unresponsive to the creative problem consideration may be given to adopting Comments: The Naval Air Warfare solving and unique business processes this flexibility at a later date. Center Commanders should have the needed to expedite solutions and The inclusion of the 0 payout points flexibility to approve the re-employment provide rapid response to the war option for Mission Success provides the of retired civil service employees for fighter. flexibility for the supervisor and pay purpose of delivering on the mission. pool panel to appropriately rate and The current process for hiring re- Response: DON’s common business compensate those situations where employed annuitants is lengthy, time- processes balance the need for Mission Success has been fully achieved consuming and inconsistent with the flexibility with fiscal constraints, cost of but the employee is already adequately pressures from the Chief of Naval doing business, consistency across the compensated for that level of work and Operations to deliver rapid, capable, Component, Hiring Reform initiatives neither an increase in salary beyond the warfighting solutions to our men and and metrics. equivalent of the annual general pay women in uniform. H. Internal Placement increase or a bonus is warranted for the Response: There is no question about accomplishments for that year. The the loss of intellectual capital or the Three comments were submitted on employee would receive the full January need to be able to draw upon the this topic. One each addressing general increase authorized for all expertise of those who have retired standardized business processes, employees so they do not fall behind; when necessary. These needs can be promotions, and reassignments.

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(1) STRL Flexibilities and Standardized I. Pay Administration The appropriate changes have been Business Processes Two comments were received made in the relevant section to allow this flexibility. Comments: The comment is the same addressing this subject. Both are from as the comment under Hiring Authority sites that will have GS and STRL (1) Employee Support Mechanisms covered employees in the same work above. Comments: The comment suggested group and each expressed concern about drawing upon government experience Response: The Warfare Centers do the differing compensation outcomes with demotions, RIF’s, firings, etc., and need responsive business processes that that are inherent in the STRL vs GS and incorporating the same employee are adaptable to their requirements in the potential impacts these might have. acquiring the skills and talent needed to Comments: The comments express support mechanisms into the STRL react quickly to the needs of the concern that due to pay banding the Demonstration Project. Response: The STRL has incorporated warfighter. DON’s common business STRL Demonstration Project will not broad lessons learned from the other processes will be relied upon to address provide results in base pay increases STRLs, the Navy Personnel Management this need. that are equal to those possible under Demonstration Project, and GS in the the GS for entry-level employees and (2) Promotions areas of RIF with the intent of the perceived disadvantages that control minimizing what is a very impactful Comments: The comment expressed points place on the STRL employee. Response: Under the STRL and disruptive process for the workforce concern about scientific, engineering, and the organization. and/or technical career paths being Demonstration Project starting salaries blocked due to the effects of the STRL’s can be more market sensitive and are K. Training proposed demonstration project not held to step 1 if a higher entry salary Six comments were submitted on the is appropriate for that occupation. provisions. topic of training. Three comments Comparisons of salary outcomes were addressed the content of the training. Response: The comment did not completed to compare STRL pay One suggested employees be tested. One provide any specifics about which progression scenarios to normal GS addressed remedial training and the provisions were of concern or examples scenarios to ensure that there were no final one spoke to the cost of providing of situations where promotion or career unintended outcomes for new hires into training. advancement would be impacted by the the STRL as compared to their STRL Demonstration Project so it can Comments: The three comments that counterparts in other systems and that address training content suggested only be assumed that the concern relates STRL Mission Success performers drawing materials and lessons learned to the broad pay bands. As noted in an would generally maintain equity with from other demonstration projects and earlier section, the pay bands have been the other compensation systems. The systems such as the military evaluation modified to include additional levels comparisons looked for both system to enhance the training. Another which allow more promotional unintended negative consequences as comment suggested employees be tested opportunities. well as unintended windfall benefits. for suitability and ability to perform the The principal difference between GS (3) Reassignment STRL tasks and responsibilities. One and STRL is that GS is longevity based addressed the need for remedial training Comments: One comment received while the STRL Demonstration Project and the final one spoke to the cost of expressed concern on the limit of 5% is performance based and it is possible providing training on the STRL upon reassignment believing it is for the highest contributors to the Demonstration Project vice returning to unduly restrictive and does not allow mission to move forward at a faster the China Lake demo which would management to use the broad pay band pace. As noted earlier, no matter what the minimize training costs. flexibilities and suggests this authority Response: Training materials and be increased up to 10%. compensation system, over time positions reach a plateau where salary content cannot be finalized until the Response: The STRL Demonstration growth levels off; some at the top of the STRL is approved but the suggestion to Project is a mission aligned system, pay scale and others at other points. draw upon other materials and lessons moving to a culture where salary learned is a good one and will continue increases are driven by J. Reduction-in-Force (RIF) Procedures to be a practice as the STRL and the accomplishments and contributions to Two comments were submitted on the associated training requirements are achieve the mission and away from a topic of RIF. One addressing finalized. longevity and position-based system. competitive areas and the other the The process for determining Providing flexibility to adjust salary up employee support mechanisms used in suitability is nuanced and not amenable to 5% for a reassignment maintains the RIF. to standardized testing. Assessments to distinction between reassignment and determine ability must be developed promotion. This allows management to (1) Competitive Areas and validated through a rigorous assign work within a broad pay band Comments: The current Federal process. Currently Office of Personnel range. At the same time, it incentivizes Register notice requires separate Management in conjunction with other employees to seek and accept new work competitive areas within the STRL Executive Agencies is pursuing the assignments, tasks, projects, workforce by occupational families. To viability of such assessment responsibilities, etc., consistent with allow for greater flexibility within instruments. Pending the outcome of what would be available in the range of individual geographic locations, it is their efforts the STRL’s may adapt the work within a pay band, while recommended that the language be recommended instruments. As noted maintaining a distinction between the changed to reflect that separate above implementation and sustainment percentage increases for reassignments competitive areas may be established training are still being designed and and percentage increases for within the STRL workforce by cannot be finalized until the STRL itself promotions. The STRL demonstration occupational families. is approved but the availability of project will proceed with the 5% Response: We concur with the training post conversion to refresh and increase as proposed. rationale and need for this authority. enhance the necessary skills for

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employees and supervisors is part of plan has been applied at the existing 7. Termination of Probationary Employees that design process. STRLs and will be applied to the new 8. Supervisory Probationary Periods Cost of training, both in terms of the ones that are currently being 9. Volunteer Emeritus Corps dollars spent and the impact on the established. 10. Direct Hire Authority for Scientists and productivity of the workforce is clearly Engineers with Advanced Degrees for 3. Access to Flexibilities of Other STRLs Scientific and Engineering Positions an important consideration. These 11. Non-citizen Hiring factors are being taken into Flexibilities published in this Federal E. Internal Placement consideration in the training design but Register shall be available for use by the 1. Employees Hired From Outside the delivery of the knowledge and skills STRLs previously enumerated in section NAWC STRL needed are also a critical factor. The 9902(c)(2) of title 5, United States Code, 2. Promotion STRL Demonstration Project training which are now designated in section 3. Reassignment will build upon the training that 1105 of the NDAA for FY 2010, Public 4. Demotion or Placement in a Lower Pay NAVAIR has already completed. Many Law 111–84, 123 Stat. 2486, October 28, Band of the skills needed are applicable under 2009, if they wish to adopt them in 5. Simplified Assignment Process 6. Details and Temporary Promotions any of the demonstration projects accordance with DoD Instruction 7. Exceptions to Competitive Procedures (including NSPS) and provide a good 1400.37; pages 73248 to 73252 of F. Pay Administration foundation to build upon and will not volume 73, Federal Register; and the 1. General need to be re-taught. fulfilling of any collective bargaining 2. Locality Pay obligations. 3. Pay and Compensation Ceilings L. Automation Support 4. Pay Setting for Appointment Comments: One comment was Dated: February 8, 2011. 5. Pay Setting for Promotion received on this topic. Concern is Morgan F. Park, 6. Pay Setting for Reassignment expressed about the nature and features Alternate OSD Federal Register Liaison 7. Pay Setting for Demotion or Placement of the information technology (IT) tool Officer, Department of Defense. in a Lower Pay Band that will be used to support the STRL 8. Staffing Supplements Table of Contents 9. Educational Pay Adjustment performance system and that it might be I. Executive Summary 10. Developmental Promotions as resource intensive and as rigid, II. Introduction 11. Pay Retention restrictive, and difficult to use as the A. Purpose G. Employee Development Performance Appraisal Application B. Problems With the Present System 1. Expanded Developmental Opportunity (PAA) was under NSPS. The comment C. Changes Required/Expected Benefits Program notes that no information was provided D. Participating Organizations H. Reduction-in-Force (RIF) Procedures in the September FRN on this subject. E. Participating Employees and Union 1. Competitive Areas Response: The IT tool that will Representation 2. Assignment Rights support the NAWC STRL performance F. Project Design 3. Crediting Performance in RIF IV. Implementation Training system will be specific to NAWC G. Personnel Management Board III. Personnel System Changes V. Movement Into and Out of the requirements and hosted within A. Pay Banding Demonstration Project NAVAIR. Ease of use and flexibility 1. Occupational Families A. Conversion From NSPS to the have been identified as two of the key 2. Pay Band Design Demonstration Project performance requirements. Specific 3. Above GS–15 Positions 1. Placement Into Demonstration Project information about the tool was not B. Classification Pay Plans and Pay Bands provided in the FRN because that level 1. Occupational Series 2. Pay Upon Conversion of detail is not appropriate for this 2. Classification Standards and Position 3. Fair Labor Standards Act (FLSA) Status document. Preliminary requirements Descriptions 4. Transition Equity 3. Fair Labor Standards Act 5. Converting Employees on NSPS Term identification has been initiated and 4. Classification Authority and Temporary Appointments does incorporate input provided by 5. Classification Appeals 6. Probationary Periods NAWCAD and NAWCWD employee and C. Mission Aligned Objectives and B. Conversion From Other Personnel supervisor focus group meetings as well Compensation Systems as input from a variety of leadership 1. Overview C. Movement Out of the NAVAIR STRL briefings. 2. Individual Mission Objectives (IMO) Demonstration Project 3. Rating Benchmarks 1. Termination of Coverage Under the M. Evaluation Plan 4. Performance Feedback and Formal NAVAIR STRL Demonstration Project Comments: One comment was Ratings Pay Plans received on this topic. It stated that the 5. Pay Pools 2. Determining a GS-equivalent Grade and STRL Demonstration Project should 6. Performance Payout Determination GS-equivalent Rate of Pay for Pay Setting 7. Base Pay Increases and Bonuses Purposes When a NAVAIR Employee’s include provisions for metrics regarding 8. Extraordinary Achievement Allowance Coverage by a Demonstration Project Pay comparison of health and stress between (EAA) Plan Terminates or the Employee STRL situations and the former demo 9. Pay Growth Within a Pay Band Voluntarily Exits the NAVAIR STRL project situations (which focused upon 10. Awards Demonstration Project retention and rewarding of employees 11. General Pay Increase 3. Supervision and Management Pay Band based upon engineering, scientific, 12. Requests for Reconsideration VI Employees technical, and similar abilities and 13. Adverse Actions 4. Employees With Pay Retention capabilities). D. Hiring Authority 5. Within-Grade Increase—Equivalent Response: The STRL provisions for 1. Qualifications Increase Determinations evaluation of the demonstration projects 2. Delegated Examining D. Personnel Administration 3. Distinguished Scholastic Achievement E. Automation Support were provided by DoD. This evaluation Appointment Authority (DSAA) for 1. General plan was developed by a joint OPM/ Scientific and Engineering Positions 2. Defense Civilian Personnel Data System DoD Evaluation Committee and 4. Legal Authority (DCPDS) approved by the Office of Defense 5. Expanded Term Appointments F. Experimentation and Revision Research & Engineering. This evaluation 6. Extended Probationary Period VI. Project Duration

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VII. Evaluation Plan and subsystems. It is also a Center of DoDI 1400.37 are to be followed for any A. Overview Excellence for weapons and armaments modifications, adoptions, or changes to B. Evaluation Model and live-fire survivability testing. The this demonstration project plan. C. Evaluation mission of the NAWCWD is to provide D. Method of Data Collection B. Problems With the Present System VIII. Demonstration Project Costs Navy and Marine Corps warriors with A. Cost Discipline effective, affordable, integrated warfare The current Civil Service General B. Developmental Costs systems, and lifecycle support to ensure Schedule (GS) system has existed in IX. Required Waivers to Law and Regulation battlespace dominance. The NAWCWD essentially the same form since 1949. A. Waivers to Title 5, U.S.C. is the steward of the ranges, test Work is classified into one of fifteen B. Waivers to Title 5, CFR facilities, and laboratories necessary to overlapping pay ranges that correspond Appendix A: NAWCAD and NAWCWD Duty support the Fleet’s acquisition with the fifteen grades. Base pay is set Locations requirements. at one of those fifteen grades and the ten Appendix B: Occupational Series by interim steps within each grade. The Occupational Family The goal of this demonstration project Appendix C: Intervention Model is to enhance and sustain the quality Classification Act of 1949 rigidly Appendix D: Individual Pay Band Level and professionalism of the covered defines types of work by occupational Rating Benchmarks Examples organizations’ workforces through series and grade, with very precise Appendix E: Career Stage Rating Benchmarks improvements in the efficiency and qualifications for each job. This system Examples effectiveness of the human resource does not quickly or easily respond to I. Executive Summary system. The project interventions will new ways of designing work and strive to achieve the best workforce for changes in the work itself. NAWCAD is an organization within the mission, adjust the workforce for The performance management model NAVAIR dedicated to maintaining a change, and improve workforce that has existed since the passage of the center of excellence for fixed- and satisfaction. This demonstration project Civil Service Reform Act in 1980 has rotary-wing aircraft and their propulsion is built on the concepts, and uses much come under extreme criticism. systems, avionics systems, training Employees frequently report there is systems, take-off and landing systems, of the same language, as the other STRL demonstration projects already in place inadequate communication of and associated support and equipment performance expectations and feedback including air traffic control and in DoD and is guided by 25 years of experience in operating the Navy’s on performance. There are perceived communications and ship/shore/air inaccuracies in performance ratings operations. NAWCAD has three primary ‘‘China Lake’’ demonstration project. The results of the project will be with general agreement that the ratings locations: Patuxent River, MD; are inflated and often unevenly Lakehurst, NJ; and Orlando, FL. These evaluated within five years of implementation. distributed by grade, occupation, and facilities support research, geographic location. development, test, evaluation, II. Introduction The present reduction-in-force (RIF) engineering, and fleet support of Navy A. Purpose process is unresponsive to requirements and Marine Corps air vehicle systems for work force restructuring and requires and trainers. NAWCAD is a world The purpose of the project is to enhancement to provide better retention leader in Naval aviation whose products demonstrate that the effectiveness of of the highest performing employees and services include: aircraft, avionics, DoD STRLs can be enhanced by with mission appropriate skills. air-launched weapons, electronic expanding opportunities available to The need to change the current hiring warfare systems, cruise missiles, employees and by allowing greater system is essential as the covered unmanned aerial vehicles, launch and managerial control over personnel organizations must be able to recruit arresting gear, training equipment and functions through a more responsive and retain scientific, engineering, facilities, and all other equipment and flexible personnel system. Federal acquisition, skilled technical, and other related to Navy and Marine Corps air laboratories need more efficient, cost professional, administrative, and power. The mission of the NAWCAD is effective, and timely processes and support employees. The covered to be the Navy’s principal research, methods to acquire and retain a highly organizations must be able to compete development/test, evaluation, creative, productive, educated, and with the private sector for the best talent engineering, and fleet support activity trained workforce. This project, in its and be able to make job offers in a for naval aircraft, engines, avionics, entirety, attempts to improve timely manner with the attendant aircraft support systems, and ship/ employees’ opportunities and provide bonuses and incentives to attract high shore/air operations. NAWCAD is the managers, at the lowest practical level, quality employees. steward of the ranges, test facilities, the authority, control, and flexibility Current limitations on training, laboratories, and aircraft necessary to needed to achieve the highest quality retraining, and otherwise developing support the Fleet’s acquisition organization and hold them accountable employees make it difficult to correct requirements. for the proper exercise of this authority skill imbalances and to prepare current NAWCWD is an organization within within the framework of an improved employees for new lines of work to meet NAVAIR dedicated to maintaining a personnel management system. changing missions and emerging center of excellence in weapons Many aspects of a demonstration technologies. development for the DON. NAWCWD project are experimental. Modifications has two locations: China Lake, CA may be made from time to time as C. Changes Required/Expected Benefits hosting the land test range and Point experience is gained, results are 1. The primary benefit expected from Mugu, CA hosting the sea test range. analyzed, and conclusions are reached this demonstration project is greater NAWCWD is a world leader in on how the system is working. The organizational effectiveness through Research, Development, Acquisition, provisions of this project plan will not increased employee satisfaction. The Test, and Evaluation (RDA, T&E) of be modified, or extended to individuals Department of the Navy ‘‘China Lake’’ guided missiles, advanced weapons and or groups of employees not included in and NIST demonstration projects systems, complex software integration the project plan without the approval of produced impressive statistics on on tactical aircraft, energetic materials, the ODUSD(CPP). The provisions of increased job satisfaction and quality of

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employees versus that for the Federal project will not cover any bargaining e. Establish policies and issue workforce in general. This project will unit members at implementation. If guidance on the awards pools; demonstrate that a human resource there is interest on the part of any of f. Establish policies and issue system tailored to the mission and NAWCAD’s or NAWCWD’s bargaining guidance on hiring and promotion base needs of the covered organizations’ units at any of their sites in pay as well as exceptions to pay-for- workforce will facilitate increased: participating in the NAWCAD or performance base pay increases; a. Quality in the workforce and NAWCWD STRL demonstration project, g. Establish policies and issue resultant products, negotiations would begin after guidance on classification review and b. Timeliness of key personnel publication of this Federal Register oversight, monitoring and adjusting processes, notice. The covered STRL organizations classification practices and deciding c. Retention of ‘‘excellent performers,’’ will fulfill their obligation to consult board classification issues; d. Success in recruitment of personnel and/or negotiate with all labor h. Approve major changes in position with critical skills, organizations in accordance with 5 structure; e. Management authority and U.S.C. 4703(f) and 7117, as applicable. i. Address issues associated with accountability, multiple pay systems during the F. Project Design f. Satisfaction of customers, and demonstration project; g. Workforce satisfaction with the An overarching objective in the j. Establish policies and issue personnel management system. project design has been the guidance on and approve Standard 2. An evaluation model was development of a personnel system that Performance Elements and Benchmarks; developed for the Director of Defense, provides a maximum opportunity for k. Assess the need for changes to Research and Engineering (DDR&E) in adaptability to meet the variety of demonstration project procedures and conjunction with STRLs, service requirements of organizations engaged policies; representatives, and the Office of in missions ranging from RDA, T&E of l. Ensure in-house budget discipline; Personnel Management (OPM). The guided missiles, advanced weapons and m. Establish policies and issue model, as modified in this plan, will systems, complex software integration guidance for workforce staffing and measure the effectiveness of this on tactical aircraft, energetic materials budget plans; demonstration project and will be used and subsystems to fixed- and rotary- n. Develop policies and procedures to measure the results of specific wing aircraft and their propulsion for administering Developmental personnel system changes. systems, avionics systems, training Opportunity Programs; D. Participating Organizations systems, take-off and landing systems, o. Ensure that all employees are associated support and equipment treated in a fair and equitable manner in NAWCAD and NAWCWD are Warfare including air traffic control and accordance with the policies, Centers within the Naval Air Systems communications, and ship/shore/air regulations and guidelines covering this Command and are composed of five operations. This demonstration project demonstration project; and, diverse major geographic locations. The is built upon the successes of the many p. Monitor the evaluation of the locations are: Lakehurst, NJ, Patuxent demonstration projects that have project. River, MD; Orlando, FL; China Lake, preceded it and adapts many of the CA; and Pt. Mugu, CA. Additionally, provisions and features that have been III. Personnel System Changes there are employees in a variety of other shown to be successful in these other A. Pay Banding geographic locations shown in STRL demonstration projects to the The design of the pay banding system Appendix A. It should be noted that NAWCAD and NAWCWD organizations. sites with fewer than 10 people may has the benefit of being preceded by change. Successor organizations will G. Personnel Management Board exhaustive studies of pay banding continue coverage in the demonstration 1. The covered organizations will systems currently practiced in the project. create a Personnel Management Board to Federal sector. The pay banding system oversee and monitor the fair, equitable, will replace both the current NSPS and E. Participating Employees and Union GS structure. The flexibilities in this Representation and consistent implementation of the provisions of the demonstration project pay banding section are similar in This demonstration project will cover to include establishment of internal nature to the authority granted to: The approximately 8,400 NAWCAD and controls and accountability. Members of Naval Ocean Systems Center, San Diego, NAWCWD civilian employees under the board are senior leaders appointed California 92152 and the Naval title 5 U.S.C. in the occupations listed by the Executive Directors of the Weapons Center, China Lake, California in Appendix B. The project plan does covered organizations. As needed, ad 93555, 45 FR 26504, April 18, 1980. not cover members of the Senior hoc members will serve in an advisory 1. Occupational Families Executive Service (SES), Scientific and capacity to the Board. Professional (ST) employees, Federal 2. The board will execute the Occupations with similar Wage System (FWS) employees, following: characteristics will be grouped together employees presently covered by the a. Establish policies and issue into one of five occupational families Defense Civilian Intelligence Personnel guidance on the composition of pay with pay band levels designed to System (DCIPS), or DON centrally pools in accordance with the guidelines facilitate pay progression. Progression funded interns. of this proposal and internal through the band depends on individual The details and provisions covered procedures; achievement, contribution to the under this Personnel Management b. Review operation of pay pools and mission goals, and accomplishment of Demonstration Project do not apply to provide guidance to Pay Pool Managers; higher level, broader scope, more any bargaining unit within NAWCAD or c. Oversee disputes in pay pool difficult work assignments. Each NAWCWD until a mutual agreement is issues; occupational family will be composed reached between the STRL organization d. Establish policies and issue of pay bands corresponding to and the applicable exclusive guidance on the formulation and recognized advancement and career representative. This demonstration execution of the civilian pay budget; progression expected within the

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occupations. These pay bands will technicians. These occupations require (2) Band II is a developmental/full replace individual grades and will not practical technical expertise in scientific performance track covering GS–5, step be the same for each occupational or engineering support but specific 1, through GS–8, step 10. family. Each occupational family will be course work or educational degrees are (3) Band III is a developmental/full divided into three to six pay bands with not required for these occupations. Five performance track covering GS–9, step each pay band covering the same base bands have been established for the S&E 1, through GS–10, step 10. pay range that would be covered by one Technician occupational family: (4) Band IV is a full performance track or more GS grades. Employees track into (1) Band I is an entry level trainee covering GS–11, step 1, through GS–12, an occupational family based on their developmental track covering GS–1, step 10. current series as provided in Appendix step 1, through GS–4, step 10. (5) Band V is a senior specialist track B. Note that where the current series (2) Band II is a developmental/full covering GS–12, step 1, through GS–13, does not exist outside of NSPS the performance track covering GS–5, step step 10. employee will be placed in the 1, through GS–8, step 10. (6) Band VI is an expert specialist appropriate OPM series before being (3) Band III is a full-performance track covering GS–14, step 1, through placed into an STRL occupational technical track covering GS–9, step 1 GS–15, step 10. family. Upon conversion into the through GS–10, step 10. e. Administrative Support (Pay Plan demonstration project each employee is DG): This occupational family is (4) Band IV is a senior technical track assured an initial placement in the composed of positions for which covering GS–11, step 1 through GS–12, STRL demonstration project without a specific course work or an educational step 10. loss in pay. The upper and lower pay degree is not required. Clerical work rate for base pay of each band is defined (5) Band V is an expert technical track usually involves the processing and by the GS rate for the grade and step as covering GS–12, step 1, through GS–13, maintenance of records. Assistant work indicated in Figure 1 except for Pay step 10. requires knowledge of methods and Band VI of the Supervision and c. Technical Specialist (Pay Plan DS): procedures within a specific Management pay schedule. Comparison This occupational family includes such administrative area. This family to the GS grades and NSPS pay bands positions as logistics management includes such positions as secretaries, was used in setting the upper and lower specialists, equipment specialists, office managers, office automation base pay dollar limits of the pay band computer specialists, and clerks, security technician, safety levels. However, once employees are telecommunications specialists. technician, library technician and moved into the demonstration project, Employees in these positions may or budget/program/computer assistants. GS grades and NSPS pay bands will no may not require specific course work or Six bands have been established for this longer apply. The current occupations educational degrees. Six bands have occupational family: have been examined, and their been established for this occupational (1) Band I includes entry-level/ characteristics and distribution have family: developmental positions covering GS–1, served as guidelines in the development (1) Band I is a student trainee step 1, through GS–3, step 10. of the following five occupational developmental track covering GS–1, (2) Band II * includes developmental families: step 1, through GS–4, step 10. and low-range full-performance a. Scientific and Engineering (S&E) (2) Band II is a developmental/full positions covering GS–4, step 1, through (Pay Plan DP): This occupational family performance track covering GS–5, step GS–5, step 10. includes technical professional 1, through GS–8, step 10. (3) Band III * includes mid-range full- positions, such as engineers, physicists, (3) Band III is a developmental/full performance technicians/assistants/ chemists, mathematicians, operations performance track covering GS–9, step secretaries covering GS–5, step 1, research analysts, and computer 1, through GS–10, step 10. through GS–6, step 10. scientists. Specific course work or (4) Band IV is a full performance track (4) Band IV * includes high-range full- educational degrees are required for covering GS–11, step 1, through GS–12, performance technicians/assistants/ these occupations. Five bands have been step 10. secretaries covering GS–6, step 1, established for the S&E occupational (5) Band V is a senior specialist track through GS–7, step 10. family: covering GS–12, step 1, through GS–13, (5) Band V includes senior (1) Band I is a student trainee step 10. technicians/assistants/secretaries developmental track covering GS–1, (6) Band VI is an expert specialist covering GS–8, step 1, through GS–9, step 1, through GS–4, step 10. track covering GS–14, step 1, through step 10. (2) Band II is a developmental track GS–15, step 10. (6) Band VI includes expert covering GS–5, step 1, through GS–9, d. Business Professional and Program technicians/assistants/secretaries step 10. covering GS–10, step 1, through GS–11, (3) Band III is an intermediate Management (Pay Plan DA): This occupational family includes such step 10. developmental track covering GS–9, * step 1, through GS–11, step 10. positions as program managers, program Band III overlaps with band II and (4) Band IV is a full-performance acquisition specialists, budget officers, IV. These bands replicate a feature used technical track covering GS–12, step 1, financial managers, accountants, by the Navy’s ‘‘China Lake’’ project. through GS–13, step 10. administrative officers, human f. The Supervision and Management (5) Band V includes senior technical resources specialists, and management pay band includes all employees positions covering GS–14, step 1, analysts. Employees in these positions performing supervisory functions. This through GS–15, step 10. may or may not require specific course pay band is not applicable to team b. S&E Technician (Pay Plan DT): This work or educational degrees. Six bands leaders. To be classified to these pay occupational family includes technician have been established for this bands the supervisor must perform the positions, such as engineering occupational family: full range of supervisory duties. To meet technicians, electronics technicians, (1) Band I is a student trainee the full range of supervisory duties the physical science technicians, developmental track covering GS–1, supervisor must perform 3 of the first 4, mathematic technicians, and geodetic step 1, through GS–4, step 10. and a total of 6 or more of the following:

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(1) Plan work and prepare and more serious unresolved complaints (2) Band III is a supervision and performance plans covering work to be to a higher level supervisor or manager; management track covering GS–9, step accomplished by subordinates, set and (7) Effect minor disciplinary 1, through GS–12, step 10. adjust short-term priorities, and prepare measures, such as warnings and (3) Band IV is a supervision and schedules for completion of work; reprimands, recommending other action management track covering GS–13, step (2) Assign work to subordinates based in more serious cases; 1, through GS–14, step 10. on priorities, selective consideration of (8) Identify developmental and (4) Band V is a supervision and the difficulty and requirements of training needs of employees, providing management track covering GS–14, step assignments, and the capabilities of or arranging for needed development 1, through GS–15, step 10. employees; and training; (5) Band VI is reserved for those S&E (9) Find ways to improve production (3) Evaluate work performance of professional positions classified above or increase the quality of the work subordinates and recommend official GS–15. directed; and performance ratings; * (10) Make appropriate distinctions in Band IV overlaps with band V. (4) Give advice, counsel, or levels of performance while equitably These bands replicate a feature used by instruction to employees on both work applying performance standards. the NAVSEA Warfare Centers’ STRL and administrative matters; A supervisory position cannot be demonstration project. (5) Interview candidates for positions established on the basis of only one 2. Pay Band Design in the unit; recommend appointment, subordinate position. These pay bands promotion, or reassignment to such can include any series. The demonstration project pay bands positions; (1) Band II is a supervision and for the occupational families and how (6) Hear and resolve complaints from management track covering GS–6, step they relate to the current GS and NSPS employees, referring group grievances 1, through GS–8, step 10. framework are shown in Figure 1.

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3. Above GS–15 Positions B. Classification specific identification code may be used The pay banding plan for the The flexibilities in this Classification to further differentiate types of work Supervision and Management pay section are similar in nature to the and the competencies required for schedule includes a pay band VI to authority granted to the Naval Ocean particular positions within an provide the ability to accommodate Systems Center, San Diego, California occupational family and pay band. Each positions having duties and 92152 and the Naval Weapons Center, code represents a specialization or type responsibilities that exceed the GS–15 China Lake, California 93555, 45 FR of work within the occupation. classification criteria. This pay band is 26504, April 18, 1980. 3. Fair Labor Standards Act based on the Above GS–15 Position concept found in other STRL personnel 1. Occupational Series Fair Labor Standards Act (FLSA) management demonstration projects The present GS classification system exemption and non-exemption that was created to solve a critical has over 400 occupational series, which determinations will be consistent with classification problem. The STRLs have are divided into 23 occupational criteria found in 5 CFR part 551. All positions warranting classification groupings. The covered organizations employees are covered by the FLSA above GS–15 because of their technical currently have positions in unless they meet the criteria for expertise requirements including approximately 132 occupational series exemption. The duties and inherent supervisory and managerial that fall into 21 occupational groupings. responsibilities outlined in the responsibilities. However, these All positions listed in Appendix B will classification standards for each pay positions are not considered to be be in the classification structure. band will be compared to the FLSA appropriately classified as Scientific Provisions will be made for including criteria. As a general rule, the FLSA and Professional Positions (STs) because other occupations in response to status can be matched to occupational of the degree of supervision and level of changing missions. family and pay band as indicated in managerial responsibilities. Neither are Figure 2. For example, positions 2. Classification Standards and Position these positions appropriately classified classified in Pay Band I of the S&E Descriptions as Senior Executive Service (SES) occupational family are typically positions because of their requirement The present system of OPM nonexempt, meaning they are covered for advanced specialized scientific or classification standards will be used for by the overtime entitlements prescribed engineering expertise and because the the identification of proper series and by the FLSA. An exception to this positions are not at the level of general occupational titles of positions within guideline includes supervisors/ managerial authority and impact the demonstration project. Current OPM managers whose primary duty meets the required for an SES position. position classification standards will definitions outlined in the OPM GS The original Above GS–15 Position not be used to grade positions in this Supervisory Guide. Therefore, concept was to be tested for a five-year project. However, the grading criteria in supervisors/managers in any of the pay period. The number of trial positions those standards will be used as a bands who meet the foregoing criteria was set at 40 with periodic reviews to framework to develop new and are exempt from the FLSA. Supervisors determine appropriate position simplified standards for the purpose of with classification authority will make requirements. The Above GS–15 pay band determinations. The objective the determinations on a case-by-case Position concept is currently being is to record the essential criteria for each basis by comparing assigned duties and evaluated by DoD management for its pay band within each occupational responsibilities to the classification effectiveness; continued applicability to family by stating the characteristics of standards for each pay band and the 5 the current STRL scientific, engineering, the work, the responsibilities of the CFR part 551 FLSA criteria. and technology workforce needs; and position, and the competencies Additionally, the advice and assistance appropriate allocation of billets based required. New position descriptions will of the servicing Human Resources Office on mission requirements. The degree to replace the current job descriptions. The (HRO) and the servicing Human which the laboratory plans to classification standard for each pay Resources Service Center (HRSC) can be participate in this concept and develop band will serve as an important obtained in making determinations. The classification, compensation and component in the new position benchmark position descriptions will performance management policy, description, which will also include not be the sole basis for the guidance, and implementation position-specific information, and determination; the actual duties processes will be based on the final provide selective placement factors and performed are the controlling criteria. outcome of the DoD evaluation. other data element information Exemption criteria will be narrowly Additional guidance will be included in pertinent to the job. construed and applied only to those NAWCAD/NAWCWD internal Specialty area codes (SAC) written as employees who clearly meet the spirit of issuances. narrative descriptions and assigned a the exemption.

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N—Non-Exempt from FLSA; E— employee must formally raise the area of C. Mission Aligned Objectives and Exempt from FLSA; N/E—Exemption concern to supervisors in the immediate Compensation status determined on a case-by-case chain of command, either verbally or in 1. Overview basis. writing. If the employee is not satisfied The purpose of mission aligned Note: Although typical exemption status with the supervisory response, he/she under the various pay bands is shown in the may then appeal to the Executive objectives and compensation is to above table, actual FLSA exemption Director of his/her organization. If the directly link the work of the employee determinations are made on a case-by-case employee is not satisfied with the to the mission of the organization and basis. Executive Director’s response, he/she provide a mechanism for recognizing may then appeal to the DoD appellate the impact of the employee’s 4. Classification Authority level. Appeal decisions rendered by accomplishments and contributions to The covered organizations’ Executive DoD will be final and binding on all help achieve that mission. It also Directors will have delegated administrative, certifying, payroll, provides an effective, efficient, and classification authority for all pay bands disbursing, and accounting officials of flexible method for assessing, with the exception of Supervision and the government. Classification appeals compensating, and managing the Management band VI and may, in turn, are not accepted on positions which covered organization’s workforce. It is re-delegate this authority to appropriate exceed the equivalent of a GS–15 level. essential for the development of a levels. Position descriptions will be Additional guidance will be included in highly productive workforce and to developed to assist managers in the NAWCAD/NAWCWD internal provide management at the lowest exercising delegated position issuances. practical level, the authority, control, classification authority. Managers will and flexibility needed to achieve a An employee may not appeal the identify the occupational family, job quality organization and meet mission accuracy of the position description, the series, functional code, specialty work requirements. Mission aligned demonstration project classification code, pay band level, and the objectives and compensation allows for criteria, or the pay-setting criteria; the appropriate acquisition codes. Human more employee involvement in the assignment of occupational series to the resources specialists will provide assessment process, strives to increase occupational family; the propriety of a ongoing consultation and guidance to communication between supervisor and pay schedule; or matters covered by an managers and supervisors throughout employee, promotes a clear administrative or negotiated grievance the classification process. These accountability of performance, procedure; or an alternative dispute decisions will be documented on the facilitates employee career progression, resolution procedure. position description. and provides an understandable and The evaluations of classification rational basis for pay changes by linking 5. Classification Appeals appeals under this demonstration mission directly to both annual Classification appeals under this project are based upon the evaluations and compensation demonstration project will be processed demonstration project classification outcomes. using the following procedures: An criteria. Case files will be forwarded for The mission aligned objectives and employee may appeal the determination adjudication through the HRO/HRSC compensation system uses annual of occupational family, occupational providing personnel service and will payouts that are based on the series, position title, and pay band of include copies of appropriate employee’s accomplishments and his/her position at any time. An demonstration project criteria. contributions to mission

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accomplishment rather than within- 2. Individual Mission Objectives (IMO) minimum weight assigned may not be grade increases, quality step increases, Individual mission objectives will be less than 10%. The sum of the weights promotions from one grade to another directly related to achieving the mission for all of the elements must equal 100. where both grades are now in the same of the employee’s organization. They At the beginning of the rating period, pay band (i.e., there are no within-band define a target level of activity, higher level managers will review the promotions) and performance awards. expressed as a tangible, measurable objectives and weights assigned to In addition to objectives, other factors objective, against which actual employees within the pay pool, to verify that can be considered in determining achievement can be compared. These consistency and appropriateness overall payout include organizational objectives will specifically identify what 3. Rating Benchmarks performance, team performance, or a is expected of the employee during the Rating benchmarks define combination of individual performance, rating period and will typically consist contribution, and/or compensation. If characteristics that will be used to of three to ten results-oriented evaluate the employee’s success in elements other than the employee’s statements. It is expected that these individual accomplishments and accomplishing his/her individual objectives will also incorporate mission objectives. The use of contributions against their objectives important behavioral practices such as characteristics for scoring purposes and their compensation will be taken teamwork and cooperation where they helps to ensure comparable scores are into consideration this must be a part of are key to successful accomplishment of assigned while accommodating diverse the written performance plan. The the assignment. A Supervision/EEO individual objectives. A single set of employee must be advised of the objective is mandatory for all managers/ rating benchmarks for each band or applicability of these factors within the supervisors. The employee and his/her rating benchmarks by career stage may same time requirements as the supervisor will jointly develop the be used for evaluating the annual individual mission objectives. The employee’s individual mission performance of all NAWCAD and normal rating period will be one year. objectives at the beginning of the rating NAWCWD personnel covered by this Objectives, representing joint efforts of period. These are to be reflective of the plan. An example of each type of employees and their supervisors, must employee’s duties/responsibilities, pay benchmark is shown at Appendices D be in place within 30 days from the band and pay level in the band as well and E. The set of benchmarks used may beginning of each rating period and the as the mission/organizational goals and evolve over time, based on experience minimum rating period will be 90 days. priorities. Objectives will be reviewed gained during each rating cycle. This First-time hires into demonstration annually and revised upon changes in evolution is essential to capture the project positions must have plans in pay reflecting increased responsibilities critical characteristics the organization place within 30 days of the effective commensurate with pay increases. Use encourages in its workforce toward date of their entry into the of generic one-size-fits-all objectives meeting individual and organizational demonstration project and current will be avoided, as individual mission objectives. This is particularly true in an demonstration project employees who objectives are to define an individual’s environment where technology and change positions during the specific responsibilities and expected work processes are changing at an performance year should have their accomplishments for the performance increasingly rapid pace. The Personnel plans updated with new objectives no year. In contrast, rating benchmarks as Management Board will annually later than 30 days after assignment to described in the next paragraph will review the set of benchmarks and set the new position. Mission aligned identify characteristics, against which them for the entire organization before compensation and rewards payouts can the accomplishment of objectives will the beginning of the rating period. be in the form of increases to base pay be measured. As a part of this 4. Performance Feedback and Formal and/or in the form of bonuses that are demonstration project, training focused Ratings not added to base pay but rather are on overall organizational objectives and given as a lump sum cash bonus. Other the development of individual mission The most effective means of awards such as special acts, time-off objectives will be held for both communication is person-to-person awards, etc., will be retained separately supervisors and employees. discussion between supervisors and from the pay-for-performance payouts. Individual mission objectives may be employees of requirements, jointly modified, changed or deleted as performance goals, and desired results. Employee’s who do not meet the 90- appropriate during the rating cycle. As Employees and supervisors alike are day minimum requirement will be a general rule, objectives should only be expected to actively participate in these ineligible for a normal rating and will be changed when circumstances outside discussions for optimum clarity given a presumptive rating. They may the employee’s control prevent or regarding expectations and identify receive only the general pay increase hamper the accomplishment of the potential obstacles to meeting goals. In and they may also receive title 5 cash original objectives. It is also appropriate addition, employees should explain (to awards if appropriate. to change objectives when mission or the extent possible) what they need The system will have the flexibility to workload shifts occur. from their supervisor to support goal be modified, if necessary, as more All objectives are critical. A critical accomplishment. The timing of these experience is gained under the project. mission objective is defined as an discussions will vary based on the The flexibilities in this Mission Aligned attribute of job performance that is of nature of work performed, but will Objectives and Compensation section sufficient importance that achievement occur at least at the mid-point and end are similar in nature to the authority below the minimally acceptable level of the rating period. The supervisor and granted to: (1) The Naval Ocean Systems requires remedial action and may be the employee will discuss job performance Center, San Diego, California 92152 and basis for removing an employee from and accomplishments in relation to the the Naval Weapons Center, China Lake, his/her position. Non-critical objectives expectations in the mission aligned California 93555, 45 FR 26504, April 18, will not be used. Each of the objectives objectives. At least one review, normally 1980, and (2) the Army Research may be assigned a weight, which the mid-point review, will be Laboratory (ARL), 65 FR 3500, January reflects its importance in accomplishing documented as a formal progress 21, 2000. an individual’s mission objectives. The review. More frequent, task specific,

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discussions may be appropriate in some or other job-related significant The covered organizations’ employees organizations. In cases where work is accomplishments or contributions. The will be placed into pay pools. Neither accomplished by a team, team proposed rating and payout point the Pay Pool Manager, supervisors, or discussions regarding goals and schema is: pay pool panel members within a pay expectations will be appropriate. The pool will in any way recommend or employee may provide a statement of Rating Description Payout participate in setting their own rating or his/her accomplishments to the points individual payout except for the normal supervisor at both the mid-point and employee self-assessment process. Pay 5 ...... Exceptional ...... 5, 6 end of the rating period. 4 ...... Exceeds Mission Ex- 3, 4 pools are combinations of organizational At the end of the rating period, pectations. units (e.g., level 3 competencies following a review of the employee’s 3 ...... Mission Success ..... 0, 1, 2 (divisions), level 4 competencies accomplishments, the supervisor will 2 ...... Partial Mission Suc- 0 (branches), and level 5 competencies rate each of the individual mission cess. (sections)), functional categories or objectives. Benchmark performance 1 ...... Unacceptable ...... 0 other groupings of employees that are standards will be developed that defined for the purpose of determining describe the level of performance Employees with a total score of two or payouts under the mission aligned associated with a score. Using these above will receive the equivalent of the objectives and compensation system. benchmarks, the supervisor decides authorized GS January general pay The guidelines in the next paragraph are where the achievements and increase (GPI). Employees with a score provided for determining pay pools. contributions of the employee most of one will not receive the January GPI. These guidelines will normally be closely match the benchmarks and A rating of one or below will result in followed. However, the Executive assigns an appropriate score. It should a rating of Unacceptable, and the Directors of the covered organizations be noted that these scores are not employee will not receive the January may deviate from the guidelines if there discussed with the employee or GPI and will require administrative is a compelling need to do so. considered final until all scores are action to address the performance The Executive Directors of the reconciled and approved by the Pay deficiency. A score of one or below on covered organizations will establish pay Pool Manager. The rating scores will a single objective will also result in a pools. Typically, pay pools will have then be multiplied by the objective- rating of Unacceptable. between 35 and 300 employees. A pay pool should be large enough to weighting factor to determine the Employees in receipt of a Letter of weighted score expressed to two encompass a reasonable distribution of Warning of Unacceptable Performance decimal points. The weighted scores for ratings but not so large as to at the end of the performance year will each objective will then be totaled to compromise rating consistency. Large have their rating deferred until the end determine the employee’s overall pay pools may use sub pay pools of the improvement period. At the end appraisal score and rounded to a whole subordinate to the pay pool due to the of the improvement period, the number as follows: if the first two digits size of the pay pool population, the supervisor will assign a final rating and to the right of the decimal are .51 or complexity of the mission, or other submit it to the pay pool panel for higher, it will be rounded to the next similar criteria. Pay pool panel members consideration. higher whole number; if the first two will not serve on pay pools where their digits to the right of the decimal are .50 5. Pay Pools own ratings and payouts are or lower, then the decimal value is determined. Supervisors and non- truncated. Following the initial scoring of each supervisors may be placed in separate The covered STRL organizations will employee by the rater, the rating pay pools. Decisions regarding the use a five-level rating methodology with officials in an organizational unit, along amount and distribution of the payouts associated payout point ranges in which with their next level of supervision, will are based on the employee’s most recent level five signifies the highest level of review and compare recommended rating of record for the performance performance. The rater will prepare and ratings to ensure consistency and equity year, the criteria listed in section III.C.4 recommend the rating, number of of the ratings. In this step, each above, the type and nature of the payout points, and the distribution of employee’s individual mission funding available to the pay pool, and the payout between base pay increase objectives, accomplishments, the number of payout points assigned by and bonus, as applicable, for each preliminary scores, and pay are the pay pool. Additional guidance on employee. These recommendations will compared. Through discussion and pay pool design and composition will then be reviewed by the pay pool panel consensus building, consistent and be included in NAWCAD/NAWCWD to ensure equitable rating criteria and equitable ratings are reached. Managers internal issuances. methodologies have been applied to all will not prescribe a distribution of Funds within a pay pool available for pay pool employees. The final ratings. The Pay Pool Manager will then performance payouts are calculated determination of the rating, number of chair a final review with the rating from anticipated pay increases under payout points, and payout distribution officials who report directly to him or the existing system and divided into will be a function of the pay pool panel her to validate these ratings and resolve two components, base pay and bonus. process and will be approved by the Pay any scoring issues. If consensus cannot The funds within a pay pool used for Pool Manager. The criteria used to be reached in this process, the Pay Pool base pay increases are those that would determine the number and distribution Manager makes all final decisions. After have been available from within-grade of payout points to assign an employee this reconciliation process is complete, increases, quality step increases and may include assessment of the ratings are finalized. Payouts proceed promotions under the GS system employee’s contribution towards according to each employee’s final (excluding the costs of promotions still achieving the mission, the employee’s rating and payout distribution. Upon provided under the pay banding type and level of work, the employee’s approval of this plan, implementing system). This amount will initially be current compensation and the criticality procedures and regulations will provide defined based on historical data and of their contribution to mission success, details on this process to employees and will initially be set at no less than 2.4% consideration of specific achievements, supervisors. of total base pay annually. The funds

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available to be used for bonus payouts limiting the total base pay increase to The formula that computes the value of are funded separately within the the funds allocated by the Personnel each payout point uses base pay rates constraints of the organization’s overall Management Board. and is based on: a. The sum of the base pay of all the award budget. This amount will initially 6. Performance Payout Determination be defined based on historical data and employees in the pay pool times the pay will initially be set at no less than one The payout an employee will receive pool percentage factor; percent of total base pay annually. As is based on the total performance rating b. The employee’s base pay; changes in the demographics of the from the mission aligned objectives and c. The number of payout points workforce or other exigencies occur, compensation assessment process. An awarded to each employee in the pay adjustments may be made to these two employee will receive a payout as a pool; and factors. The sum of these two factors is percentage of base pay. This percentage c. The total number of payout points referred to as the pay pool percentage is based on the number of payout points awarded in the pay pool. factor. The Personnel Management that equates to their final appraisal This formula assures that each Board will annually review the pay pool score. employee within the pool receives a funding and recommend adjustments to The value of a payout point cannot be payout point amount equal to all others the Executive Directors to ensure cost exactly determined until the rating and in the same pool who are at the same discipline over the life of the reconciliation process is completed and rate of base pay and receiving the same demonstration project. Cost discipline is all scores are finalized. The payout score. The formula is shown in Figure assured within each pay pool by point value is expressed as a percentage. 3.

An individual payout is calculated by control point applies (see below). Also, Warfare Center. It is not base pay for any first multiplying the payout points for employees receiving retained rates purpose, e.g., retirement, life insurance, earned by the payout point value and above the applicable pay band severance pay, promotion, or any other multiplying that product by base pay. maximum, the entire performance payment or benefit calculated as a An adjustment is then made to account payout will be in the form of a bonus percentage of base pay. The EAA will be for locality pay or staffing supplement. payment. available to certain employees whose A Pay Pool Manager is accountable for When capped, the total payout an present contributions are worthy of a staying within pay pool limits and final employee receives will be in the form of higher career level and whose level of decisions on base pay increases and/or a bonus versus the combination of base achievement is expected to continue at bonuses to individuals based on rater pay and bonus. Bonuses are cash the higher career level for at least one recommendations, the final score, the payments and are not part of the base year. pay pool funds available, and the pay for any purpose (e.g., lump sum b. Award of the EAA will generally be employee’s base pay. payments of annual leave on separation, appropriate under the following circumstances: (1) Employees have 7. Base Pay Increases and Bonuses life insurance, and retirement). The maximum base pay rate under this reached the top of their target career The amount of money available for demonstration project will be the levels, (2) when it is not certain that the the performance payouts is divided into unadjusted base pay rate of GS–15, Step higher level contributions will continue two components, base pay increases and 10, except for employees in Pay Band VI indefinitely (e.g., a special project bonuses. The base pay and bonus funds of the Supervision and Management pay expected to be of one to five-year are based on the pay pool funding schedule. duration), (3) when no further formula established annually. Once the promotion or base pay opportunities are 8. Extraordinary Achievement available, or externally imposed limits individual performance amounts have Allowance (EAA) been determined, the next step is to make changes to higher career levels determine what portion of each payout a. NAWCAD and NAWCWD will unavailable, and (4) when the approval will be in the form of a base pay employ an Extraordinary Achievement time required to effect the action will increase as opposed to a bonus Allowance designed to optimize unreasonably delay appropriate payment. The payouts made to organizational effectiveness. An EAA is compensation for the employee’s employees from the pay pool may be a defined as a temporary monetary achievements but in all situations, when mix of base pay and bonus, such that all allowance up to 25 percent of base pay, current market conditions compensate of the allocated funds are disbursed. To which, when added to an employee’s similar contributions at a greater rate in continue to provide performance rate of base pay, may not exceed the rate private industry and academia than the incentives while also ensuring cost of basic pay for Executive Level IV. It is organization is able to do under normal discipline, base pay increases may be paid on either a bi-weekly basis compensation conditions. limited or capped. Certain employees concurrent with normal pay days or as c. To be eligible for EAA, employees will not be able to receive the projected a lump sum following completion of a must meet the criteria below: base pay increase due to base pay caps. designated contribution period, or (1) Employees in the S&E, Technical, Base pay is capped when an employee combination of these, at the discretion and Business Professional and Program reaches the maximum rate of base pay of the Executive Director/Commanding Management career tracks are eligible in an assigned pay band or when a Officer of the appropriate Naval Air for the EAA if their contribution to the

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organization is deemed worthy, as Compensation system, this additional 12. Requests for Reconsideration determined by the appropriate NAWC flexibility is important to encourage An employee may request Executive Director/Commander. outstanding accomplishments and reconsideration of the rating-of-record (2) Employees may receive an EAA for innovation in achieving the diverse received under the mission aligned up to five years. The EAA authorization mission of the covered organizations. objectives and compensation system. A will be reviewed and reauthorized as Additionally, to foster and encourage rating of record or job objective rating necessary, but at least annually at the teamwork among its employees, may be reconsidered by request of an time of the Mission Aligned Objectives organizations may give group awards. employee only through the process and Compensation System appraisal Thus, a team leader may recommend specified in this subpart and through nomination by the Pay Pool and a supervisor may allocate a sum of implementing issuances. This process Manager and approval by the money to a team for outstanding will be the sole and exclusive agency appropriate Executive Director/ performance. administrative process for employees to Commander. The NAWCAD and NAWCWD request reconsideration of a rating of (3) Monetary payment may be up to Commanders will have the authority to record. Consistent with this part, Pay 25 percent of base pay. grant special act awards to covered Pool Managers will make the decision (4) Nominees are required to sign a employees of up to $25,000 IAW the on reconsiderations of rating of record. statement indicating they understand criteria of SECNAVINST 12451.3. This In cases where the Pay Pool Manager is that the EAA is a temporary allowance; authority may be delegated to the also the first line supervisor or rating it is not a part of base pay for any Executive Directors of the covered official, the request for reconsideration purpose; it is subject to review at any organizations. will be referred to a different Pay Pool time, but at least on an annual basis, Manager or higher level supervisor 11. General Pay Increase and the reduction or termination of the above the Pay Pool Manager. Pay Pool EAA is neither appealable nor grievable. Employees who receive an Managers’ decisions are final. A payout All other details regarding unacceptable rating of record will not point assignment determination, payout nomination, termination, reduction, receive performance payouts or any distribution determination, or any other allocation, and budget determination portion of the general pay increase and payout matter will not be subject to the will be stipulated by internal business as a result will ‘‘migrate’’ downward in reconsideration process or any other rules, policies, or procedures the pay band. This occurs because the agency administrative grievance system. established by the Personnel rate of base pay in a pay band increases In the event a reconsideration or Management Board. as the result of the general pay increase negotiated grievance decision results in 9. Pay Growth Within a Pay Band (5 U.S.C. 5303). If their performance an adjusted rating of record the revised rating will be referred to the Pay Pool As a compensation management tool rating continues as Unacceptable, employees who reach the bottom of the Manager for recalculation of the the Personnel Management Board may employee’s performance payout amount establish pay ranges appropriate for a overlapping pay scales (they remain identified in the higher classification and distribution. Any adjustment to group or class of positions within a pay base pay will be retroactive to the band or pay bands. Advancement of pay level as long they are covered in that range) will cross the line into the next effective date of the performance beyond the assigned pay range will payout. Base pay adjustments will be generally require approval above the lower classification level without specific adverse or performance based based on the payout point range Pay Pool Manager prior to finalizing the appropriate for the adjusted rating of pay pool decisions. The request must action. This migration is necessary for an employee whose performance over a record. Payout point values for the demonstrate that the complexity and adjusted rating of record will reflect the responsibility of the position have period of time has been deficient enough to merit the employee’s payout point value paid to other substantially changed and the duties of members across the pay pool for that the position are expected to continue at placement in lower level duties/ responsibilities where new rating cycle. Decisions made through this level in the future thus warranting the reconsideration process or a assignment of the position to a higher opportunities for acceptable performance exist, Clearly the employee negotiated grievance procedure will not pay range. Control points may apply in result in recalculation of the payout every occupational family and pay who has experienced several performance evaluations and who, in made to other employees in the pay band. Additional guidance will be pool. included in NAWCAD/NAWCWD each case, has been given a year to internal issuances. demonstrate improvement has been 13. Adverse Actions provided equal or better ‘‘due process’’ 10. Awards Except where specifically waived or than the obviously unsatisfactory modified in this plan, adverse action To provide additional flexibility in employee who is accorded immediate procedures under 5 CFR part 752 motivating and rewarding individuals adverse or performance-based action remain unchanged. and groups, some portion of the procedures and downgraded or removed performance award budget will be after the required 30-day notice period. D. Hiring Authority reserved for special acts and other Further, it should be noted that in these Competitive service positions will be categories as they occur. Awards may instances the employee’s pay will filled through Merit Staffing, direct-hire include, but are not limited to, special remain constant, the downward authority, or Delegated Examining. acts, patents, invention awards, migration results from the need to suggestions, on-the-spot, and time-off. comply with statutory pay levels. 1. Qualifications The funds available to be used for Adverse or performance-based action The qualifications required for traditional title 5 U.S.C. awards are procedures will cover demotion placement into a position in a pay band separately funded within the constraints between levels or removal where within an occupational family will be of the organization’s budget. performance is clearly so unsatisfactory determined using the OPM ‘‘Operating While not directly linked to the as to preclude retention in the current Manual: Qualifications Standards for Mission Aligned Objectives and pay band or as an employee. General Schedule Positions.’’ Since the

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pay bands are anchored to the GS grade examining process, which provides the conversion to a career-conditional or levels, the minimum qualification authority to appoint individuals with career appointment at a later date; (2) requirements for a position will be the undergraduate or graduate degrees served a minimum of two years of requirements corresponding to the through the doctoral level to continuous service in the term position; lowest GS grade incorporated into that professional positions up to the and (3) be performing at the acceptable pay band. For example, for a position in equivalent of GS–12 (DP–04 or DS–04/ level of performance with a current the S&E occupational family Pay Band 05). This enables the covered rating of record of Mission Success or II, individuals must meet the basic organizations to respond quickly to higher. requirements for a GS–5 as specified in hiring needs for eminently qualified 6. Extended Probationary Period the OPM ‘‘Qualification Standard for candidates possessing distinguished Professional and Scientific Positions.’’ scholastic achievements. Candidates The purpose of extending the Selective factors may be established may be appointed provided they meet probationary period and trial period is for a position in accordance with the the minimum standards for the position to allow supervisors an adequate period OPM’s ‘‘Operating Manual: as published in OPM’s ‘‘Operating of time to fully evaluate an employee’s Qualifications Standards for General Manual: Qualifications Standards for ability to complete a cycle of work and Schedule Positions,’’ when determined General Schedule Positions’’ and the to fully assess an employee’s to be critical to successful job candidate has a cumulative grade point contribution and conduct. performance. These factors will become average of 3.5 (on a 4.0 scale) or better a. Competitive Service part of the minimum requirements for in their field of study (or other the position, and applicants must meet equivalent score) or are within the top NAWCAD and NAWCWD will them in order to be eligible. If used, 10 percent of a university’s major school implement an extended initial selective factors will be stated as part of of graduate studies for professional probationary period for competitive the qualification requirements in occupations, etc. service employees. The one-year vacancy announcements and recruiting probationary period will be extended to bulletins. 4. Legal Authority three years for newly appointed career- For actions taken under the auspices conditional, career employees and the 2. Delegated Examining of the demonstration project, the legal one-year trial period will be extended to NAWCAD and NAWCWD propose to authority, Public Law 103–337, as three years for newly appointed term demonstrate a streamlined examining amended, will be used. For all other employees to positions classified to process for both permanent and non- actions, the nature of action codes and series in the Science and Engineering, permanent positions. This authority will legal authority codes prescribed by Business and Program Management, and be supported by the applicable servicing OPM, DoD, or DON will continue to be Technical Specialist occupational Human Resource Offices and Human used. families. For employees in positions Resources Service Centers in accordance classified to series in the S&E with the Department of Navy’s common 5. Expanded Term Appointments Technician and Administrative Support business processes, systems, and tools. NAWCAD and NAWCWD conduct a occupational families the one-year The ‘‘Rule of Three’’ will be eliminated. variety of projects that range from three probationary period will be extended to When there are no more than 15 to six years. The current four-year two years for newly appointed career- qualified applicants and no preference limitation on term appointments, as conditional, career employees and the eligibles, all eligible applicants are described in 5 CFR part 316, often forces one-year trial period will be extended to immediately referred to the selecting the termination of term employees prior two years for newly appointed term official without rating and ranking. to completion of projects they were employees. The term newly appointed Rating and ranking will be required only hired to support. This disrupts the includes conversion to new when the number of qualified research and development process and appointments, including conversions candidates exceeds 15 or there is a mix affects the organization’s ability to from term appointments and the of preference and non-preference accomplish the mission and serve its excepted service, for this purpose. applicants. Statutes and regulations customers. Under the demonstration Employees who have completed an covering veterans’ preference will be project, the covered organizations will initial probationary or trial period prior observed in the selection process and have authority to hire individuals under to their conversion into the NAWC when rating and ranking are required. If a modified term appointment for a STRL will not be required to serve a the candidates are rated and ranked, a period of more than one year but not new or extended initial probationary or random number selection method will more than five years when the need for trial period. Employees who are serving be used to determine which applicants an employee’s services is not an initial probationary or trial period will be referred when scores are tied permanent. These appointments may be upon conversion into the NAWC’s STRL after the rating process. Veterans will be extended one additional year, for a total will serve the time remaining on their referred ahead of non-veterans with the of 6 years. The Executive Directors are initial probationary period or trial and same score. Additional guidance on authorized to extend term may have their initial probationary or operating processes will be included in appointments. Employees hired under trial period extended in accordance NAWCAD/NAWCWD internal the modified term appointment with the demonstration project issuances. authority are in a non-permanent status, regulation and implementing issuances. but may be eligible for conversion to If a probationary or trial employee’s 3. Distinguished Scholastic career-conditional or career performance is determined to be Achievement Appointment Authority appointments in the competitive Mission Success or higher and the (DSAA) for Scientific and Engineering service. To be converted, the employee supervisor expects that the Mission Positions must have (1) been selected for the term Success or higher performance will The covered organizations will use position under competitive procedures, continue into the future, the supervisor the Distinguished Scholastic with the announcement specifically has the option of ending the Achievement Appointment Authority. stating that the individual(s) selected for probationary or trial period at an earlier The DSAA uses an alternative the term position may be eligible for date, but not before the employee has

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completed one year of continuous supervisor will provide written reasons voluntary positions. This authority may service. If the probationary or trial for his/her decision to the next level of be delegated only to members of the period is terminated before the end of supervision for concurrence prior to Senior Executive Service (SES). the two- or three-year period, the implementing the action. Voluntary Emeritus Corps assignments immediate supervisor will provide are not considered employment by the 7. Termination of Probationary written reasons for his/her decision to Federal government except for purposes Employees the next level of supervision for of injury compensation. Thus, such concurrence prior to implementing the Probationary employees may be assignments do not affect an employee’s action. terminated when they fail to entitlement to buyouts or severance Aside from extending the time period demonstrate proper conduct, technical payments based on an earlier separation for all newly appointed career- competency, and/or acceptable from Federal service. To be accepted conditional, career and term employees performance for continued employment, into the Volunteer Emeritus Corps, a all other features of the initial and for conditions arising before volunteer must be recommended by a probationary period as defined in 5 CFR employment. When a supervisor NAWCAD or NAWCWD manager to the part 315 and trial period as described in decides to terminate an employee NAWCAD or NAWCWD Executive 5 CFR part 316 are retained including during the probationary period because Director or an SES member to whom the potential to remove an employee his/her work performance or conduct is this authority has been delegated. Not without providing the full substantive unacceptable, the supervisor shall everyone who applies is entitled to an and procedural rights afforded a non- terminate the employee’s services by emeritus position. The responsible probationary employee. written notification stating the reasons official will document acceptance or for termination and the effective date of b. Excepted Service rejection of the applicant. For the action. The information in the notice acceptance, documentation must be NAWCAD and NAWCWD will shall, at a minimum, consist of the retained throughout the assignment. For implement an extended initial trial supervisor’s conclusions as to the rejection, documentation will be period for excepted service employees inadequacies of the employee’s maintained for two years. who are appointed on a permanent or performance or conduct, or those b. To ensure success and encourage conditional basis or who are given a conditions arising before employment participation, the volunteer’s Federal time-limited appointment lasting three that support the termination. retirement pay (whether military or or more years. The trial period will be 8. Supervisory Probationary Periods civilian) will not be affected while three years for newly appointed serving in a voluntary capacity. Retired excepted service employees to positions NAWCAD and NAWCWD will or separated Federal employees may classified to series in the Science and implement an extended supervisory accept an emeritus position without a Engineering, Business and Program probationary period. The probationary break or mandatory waiting period. Management, and Technical Specialist period for new supervisors will be two Voluntary Emeritus Corps volunteers occupational families. For employees in years. Except for the increased length, will not be permitted to monitor positions classified to series in the S&E supervisory probationary periods will contracts on behalf of the Government Technician and Administrative Support be made consistent with 5 CFR part 315. or to participate on any contracts or occupational families the trial period Employees who have successfully solicitations where a conflict of interest will be extended to two years for newly completed an initial probationary exists. The volunteers may be required appointed excepted service employees. period for supervisory positions will not to submit a financial disclosure form The term newly appointed includes be required to complete an additional annually. The same rules that currently conversion to new appointments for this two-year probationary period for initial apply to source selection members will purpose. appointment to a supervisory position. apply to volunteers. An agreement will Employees who have completed an Employees who are serving an initial be established among the volunteer, the initial trial period prior to their supervisory probationary period upon responsible official, and the servicing conversion into the NAWC STRL will conversion into the NAWC’s STRL will HRO. The agreement must be finalized not be required to serve a new or serve the time remaining on their initial before the assumption of duties and extended initial trial period. Employees supervisory probationary period and shall include: who are serving an initial trial period may have their supervisory probationary (1) A statement that the voluntary upon conversion into the NAWC’s STRL period extended in accordance with the assignment does not constitute an will serve the time remaining on their demonstration project regulation and appointment in the Civil Service is initial trial period and may have their implementing issuances. If, during this without compensation, and the initial trial period extended in probationary period, the decision is volunteer waives any claims against the accordance with the demonstration made to return the employee to a non- Government based on the voluntary project regulation and implementing supervisory position for reasons related assignment; issuances. to supervisory performance and/or (2) A statement that the volunteer will If a trial employee’s performance is conduct, the employee will be returned be considered a Federal employee only determined to be Mission Success or to a comparable position of no lower for the purpose of injury compensation; higher and the supervisor expects that base pay than the position from which (3) The volunteer’s work schedule; the Mission Success or higher promoted or reassigned immediately (4) Length of agreement (defined by performance will continue into the prior to the supervisory assignment. length of project or time defined by future, prior to the end of the two- or 9. Volunteer Emeritus Corps weeks, months, or years); three-year trial period, a supervisor has (5) Support provided by the the option of ending the trial period at a. NAWCAD and NAWCWD will organization (travel, administrative an earlier date, but not before the implement a Voluntary Emeritus Corps. support, office space, and supplies); employee has completed one year of Under the demonstration project, the (6) A statement of duties; continuous service. If the trial period is Executive Directors of the covered (7) A statement providing that no terminated before the end of the two- or organizations will have the authority to additional time will be added to a three-year period, the immediate offer retired or separated employees volunteer’s service credit for such

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purposes as retirement, severance pay, and engineers employed in the DoD National Defense Authorization Act and leave as a result of being a laboratories; 27% hold Masters Degrees, addressing such. volunteer; while 10% are in possession of a PhD When completing the personnel (8) A provision allowing either party The NAWCAD and NAWCWD action, the following will be given as the to void the agreement with two working Laboratories jointly employ 5974 authority for the Career-Conditional, days written notice; scientists and engineers; 29% holding Career, Term, Temporary, or special (9) The level of security access Masters Degrees, while 4% are in demonstration project appointment required by the volunteer (any security possession of a PhD Over the next five authority: Section 1108, NDAA for FY clearance required by the position will years, the NAWCAD and NAWCWD be managed by the employing Laboratories plan to hire approximately 09. Evaluation of this hiring authority organization); 2,240 of the country’s best and brightest will include information and data on its (10) A provision that any scientists and engineers (S&Es) just to use such as numerical limitation, hires publication(s) resulting from his/her keep pace with attrition. This number made, declinations, how many veterans work will be submitted to the NAWCAD does not include the impact that several hired, declinations, difficulties or NAWCWD Executive Director for actions such as the Base Realignment encountered, and/or recognized review and approval; and Closure of weapons and armament efficiencies. (11) A statement that he/she accepts work to China Lake, California that will b. Definitions accountability for loss or damage to result in a need to hire additional Government property occasioned by scientists and engineers above normal (1) Scientific and engineering his/her negligence or willful action; attrition levels. Statistics indicate that positions are defined as all professional (12) A statement that his/her activities the available pool of advanced degree, positions in scientific and engineering on the premises will conform to the clearable candidates is substantially occupations (with a positive education regulations and requirements of the diminished by the number of non-U.S. requirement) utilized by the laboratory. organization; citizens granted degrees by U.S. (2) An advanced degree is a Master’s (13) A statement that he/she will not institutions. For instance, in 2006, 20% or higher degree from an accredited release any sensitive or proprietary of Masters Degrees in science and over information without the written 35% of PhDs in science were awarded college or university in a field of approval of the employing organization to temporary residents. scientific or engineering study directly and further agrees to execute additional It is expected that this hiring related to the duties of the position to non-disclosure agreements as authority, together with streamlined be filled. appropriate, if required, by the nature of recruitment processes, will be very (3) Qualified candidates are defined the anticipated services; and, effective in hiring candidates possessing as candidates who: (14) A statement that he/she agrees to a PhD and accelerating the hiring process. For instance, under a similar (a) Meet the minimum standards for disclose any inventions made in the the position as published in OPM’s course of work performed at the authority found in the NDAA for FY 2009, section 1108 (Pub. L. 110–417), operating manual, ‘‘Qualification NAWCAD or NAWCWD. The NAWCAD Standards for General Schedule or NAWCWD Executive Director has the October 28, 2009, one STRL had fifteen Positions,’’ or the laboratory’s option to obtain title to any such PhD selectees in 2009 for the sixteen demonstration project qualification invention on behalf of the U.S. vacancies for which they were using standards specific to the position to be Government. Should the NAWCAD or this hiring authority. Another STRL, filled; NAWCWD Executive Director elect not using this expedited hiring authority in to take title, the NAWCAD or NAWCWD calendar year 2009, made thirty firm (b) Possess an advanced degree; and hiring offers in an average of thirteen shall, at a minimum, retain a non- (c) Meet any selective factors. exclusive, irrevocable, paid-up, royalty- days from receipt of paper work in the (4) The term ‘‘employee’’ is defined by free license to practice or have practiced Human Resources Office. Of these thirty Section 2105 of title 5, U.S.C. the invention worldwide on behalf of selectees, twenty-three possessed PhDs. This authority will be administered the U.S. Government. by the servicing Human Resources 11. Non-citizen Hiring Exceptions to the provisions in this Office and Human Resources Service procedure may be granted by the Where Executive Orders or other Center in accordance with the regulations limit hiring non-citizens to NAWCAD or NAWCWD Executive Department of Navy’s common business the excepted service, both NAWCAD Director on a case-by-case basis. processes, systems, and tools and be and NAWCWD will have the authority 10. Direct Hire Authority for Scientists consistent with veterans’ preference and to approve the hiring of non-citizens and Engineers With Advanced Degrees merit system principles. Use of this into competitive service positions when for Scientific and Engineering Positions appointing authority must comply with veterans’ preference and merit systems qualified U.S. citizens are not available, a. Background principles when recruiting and and the candidate meets all applicable The NAWCAD and NAWCWD appointing candidates with advanced immigration and security requirements. Laboratories have an urgent need for degrees to covered occupations. If a non-citizen candidate is the only direct hire authority to appoint qualified Qualified candidates possessing an qualified candidate for the position, the candidates possessing an advanced advanced degree may be appointed to candidate may be appointed. The degree to permanent and temporary both competitive and excepted service selection is subject to approval by the scientific and engineering positions. without regard to the provisions of NAWCAD and NAWCWD Executive The market is extremely competitive subchapter 1 of chapter 33 of title 5, Director/Commanding Officer or with industry and academia for the United States Code, other than sections approving manager, as delegated by the small supply of highly-qualified and 3303, 3321, and 3328 of such title. appropriate Center Executive Director/ security clearable candidates with a The hiring threshold for this authority Commanding Officer. This authority Masters Degree or PhD in science or shall be consistent with DoD policy and may only be delegated to members of engineering. There are 35,000 scientists legislative language as expressed in any the Senior Executive Service (SES).

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E. Internal Placement to a demonstration project position in a position to a demonstration project pay band with a higher level of work. position at a comparable level of work, 1. Employees Hired From Outside the Positions with known promotion on either a temporary or permanent NAWC STRL potential to a specific band within an basis. The employee must meet the Employees entering into the NAWC occupational family will be identified qualifications requirements for the from non-STRL pay systems or from when they are filled. Not all positions occupational family and pay band. other Federal activities not as the result in an occupational family will have When an employee is reassigned either of a mass organizational conversion will promotion potential to the same band. within his/her current pay band or to a be moved into the demonstration project Movement from one occupational comparable pay band, an authorized in the career path and at the level and family to another will depend upon management official will set pay at an pay consistent with the duties and individual competencies, qualifications, amount no less than the employee’s responsibilities of the STRL position and the needs of the organization. current base pay. and individual qualifications. Supervisors may consider promoting Comparable pay band or comparable When an employee is permanently qualified employees at any time, since level of work means pay bands with the placed (except by conversion under promotions are not directly tied to the equivalent level of work, based on the section V.A or by promotion under mission aligned objectives and demonstration classification structure section II.E.2) in an STRL position from compensation system. Progression and career progression patterns, within a GS or FWS position through a within a pay band is based upon and across varying pay schedules and management-directed action (except for performance base pay increases; as career groups, regardless of the specific actions taken for misconduct or such, these actions are not considered earning potential of the bands. When unacceptable performance), including a promotions and are not subject to the moving from a non-demonstration management directed reassignment or provisions of this section. Promotions position to a demonstration position, realignment, or any placement as a will follow Merit System Principles and the band of the demonstration position result of a reduction in force (RIF), or basic Federal merit promotion policy is determined to be at a comparable placement via the Priority Placement that provides for competitive and non- level of work to the grade or level of the Program (PPP), Reemployment Priority competitive promotions. non-demonstration position based on List (RPL), or Interagency Career To be promoted competitively or non- application of the demonstration Transition Assistance Plan (ICTAP), the competitively from one band to the classification structure and career employee will receive a WGI next, an employee must meet the progression patterns. Additional adjustment. The WGI adjustment is minimum qualifications for the job and guidance will be included in NAWCAD/ calculated based on the number of have a current rating of record of NAWCWD internal issuances. calendar days between the effective date Mission Success or better or equivalent of the employee’s last equivalent under a different performance appraisal 4. Demotion or Placement in a Lower increase and the date of conversion into system. If an employee does not have a Pay Band NSPS, regardless of the number of days current performance rating, the A demotion is the placement of an in a non-pay status (if any). The employee will be treated the same as an employee into a lower pay band or maximum adjustment may not exceed a employee with a rating of record of movement from a non-demonstration full WGI. Mission Success as long as there is no project position to a demonstration An employee who enters into an documented evidence of less than STRL position from a GS or FWS acceptable performance. project position at a lower level of work. position through an employee-initiated Higher pay band or higher level of Demotions may be for cause reassignment, promotion, or change to work means a pay band designated to be (performance or conduct) or for reasons lower grade may, at the discretion of the a higher level of work than an other than cause (e.g., erosion of duties, authorized management official, also employee’s currently assigned band, reclassification of duties to a lower pay receive a WGI adjustment equivalent based on the demonstration band, application under competitive increase as described in the paragraph classification structure and career announcements, at the employee’s above. The decision to grant this progression patterns, either within or request, or placement actions resulting increase will be reviewed and approved across varying pay schedules and career from RIF procedures). by an official who is at a higher level groups, regardless of the specific Lower pay band or lower level of than the official who made the initial earning potential of the band. When work means a pay band designated to be decision. moving from a non-demonstration a lower level of work than an In either case, this increase occurs position to a demonstration position, employee’s currently assigned band, before any other discretionary the band of the demonstration position based on the demonstration reassignment increases provided under is determined to be at a higher level of classification structure and career the STRL, may not cause the employee’s work than the grade or level of the non- progression patterns, either within or base salary to exceed the maximum rate demonstration position based on across varying pay schedules and career of the assigned pay band, and is in application of the demonstration groups, regardless of the specific addition to any other discretionary classification structure and career earning potential of the band. When reassignment increase the employee progression patterns. Additional moving from a non-demonstration may be eligible to receive. guidance will be included in NAWCAD/ position to a demonstration position, NAWCWD internal issuances. the band of the demonstration position 2. Promotion is determined to be at a lower level of A promotion is the movement of an 3. Reassignment work than the grade or level of the non- employee to a higher pay band in the A reassignment occurs when an demonstration position based on same occupational family or to a higher employee moves, voluntarily or application of the demonstration pay band in a different occupational involuntarily, to a different position or classification structure and career family. It also includes movement of an set of duties within his/her pay band or progression patterns. Additional employee currently covered by a non- to a position in a comparable pay band, guidance will be included in NAWCAD/ demonstration project personnel system or from a non-demonstration project NAWCWD internal issuances.

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5. Simplified Assignment Process appointed through competitive may not exceed the base pay of Level I Today’s environment of downsizing procedures to a position with a of the Executive Schedule consistent and workforce fluctuations mandates documented target level. with 5 U.S.C. 5307 and 5 CFR part 530 that the organization have maximum e. A temporary promotion, or detail to subpart B. In addition, each pay band flexibility to assign duties and a position in a higher pay band, up to will have its own pay ceiling, just as grades do in the GS. Base pay rates for responsibilities to individuals. Pay one year in a 24-month period. the various pay bands will be directly banding can be used to address this f. A promotion due to the keyed to the GS rates, except for the Pay need, as it enables the organization to reclassification of positions based on Band VI of the Supervision and have maximum flexibility to assign an accretion (addition) of duties. Management pay schedule. Other than employee with or without a change in g. A promotion resulting from the where a retained rate applies, base pay base pay, within broad descriptions, correction of an initial classification will be limited to the maximum base consistent with the needs of the error or the issuance of a new pay payable for each pay band. organization and the individual’s classification standard. qualifications and level. Subsequent h. Consideration of a candidate who 4. Pay Setting for Appointment did not receive proper consideration in assignments to projects, tasks, or Employees whose appointment to a functions anywhere within the a competitive promotion action. Additional guidance will be included demonstration project position is their organization requiring the same level, initial appointment to the Federal area of expertise, and qualifications in NAWCAD/NAWCWD internal issuances. service may have pay set at the lowest would not constitute an assignment base pay in the band or anywhere outside the scope or coverage of the F. Pay Administration within the band consistent with the current position description. For 1. General special qualifications of the individual instance, a technical expert could be and the unique requirements of the assigned to any project, task, or function Pay administration policies will be position. These special qualifications requiring similar technical expertise. established by the Personnel may be in the form of education, Likewise, a manager could be assigned Management Board. These policies will training, experience, or any combination to manage any similar function or be exempt from DON pay setting thereof that is pertinent to the position organization consistent with that policies, but will conform to basic in which the employee is being placed. individual’s qualifications. This governmental pay setting policy except Both national and local labor market flexibility allows broader latitude in for flexibilities contained herein. conditions and pay rates may also be assignments and further streamlines the Employees whose performance is taken into consideration to ensure that administrative process and system. acceptable will receive the full annual the Warfare Centers are able to compete general pay increase and the full locality 6. Details and Temporary Promotions for the talent, skills, abilities, and pay. The covered organizations may competencies needed to enable them to NAWCAD and NAWCWD will make full use of recruitment, retention, remain on the cutting edge of science implement an Expanded Detail and and relocation incentive payments as and technology. Guidance on pay Temporary Promotion Authority provided for by OPM. Pay retention will setting for new hires will be established providing the authority (1) to effect follow current law and regulations at 5 by the Personnel Management Board. details up to one year to specified U.S.C. 5362 and 5363 and 5 CFR part Highest Previous Rate (HPR) will be positions at the same or similar level; 536, except as described in this considered in placement actions and (2) to effect details or temporary regulation and waived or modified in authorized under rules similar to the promotions to a higher pay band section IX, the waiver section of this HPR rules in 5 CFR 531.221. Use of HPR position up to one year within a 24- plan. Pay band retention will not be will be at the supervisor’s discretion, month period without competition. The used in this demonstration project. but if used, HPR is subject to policies specifics of these authorities will be established by the Personnel 2. Locality Pay stipulated by local business rules, Management Board. policies, or procedures as organizational Employees with a performance rating experience dictates. of Partial Mission Success or better will 5. Pay Setting for Promotion be entitled to the locality pay authorized The minimum base pay increase upon 7. Exceptions to Competitive Procedures for their official duty station in promotion to a higher pay band will be The following actions are exceptions accordance with 5 CFR 531 subpart F. 6% or the minimum base pay rate of the to competitive procedures: Employees with a performance rating of new pay band, whichever is greater. The a. Re-promotion to a position which is Unacceptable will be entitled to only maximum amount of the pay increase in the same pay band or GS equivalent the locality pay increase; they cannot may not exceed 20%, or other such and occupational family as the receive any other pay increase or award. amount as established by the Personnel employee previously held on a In addition, the locality-adjusted pay of Management Board. The maximum base permanent basis within the competitive any employee may not exceed the rate pay increase for promotion may be service. for Executive Level IV. Geographic exceeded when necessary to allow for b. Promotion, reassignment, movement within the demonstration the minimum base pay increase. For demotion, transfer, or reinstatement to a project will result in the employee’s employees covered by a staffing position having promotion potential no locality pay being recomputed using the supplement, the demonstration greater than the potential of a position newly applicable locality pay extended base pay is considered base an employee currently holds or percentage, which may result in a pay for promotion calculations. When a previously held on a permanent basis in higher or lower locality pay and, thus, temporary promotion is terminated, the the competitive service. a higher or lower adjusted base pay. employee’s pay entitlements will be re- c. A position change permitted by determined based on the employee’s reduction-in-force procedures. 3. Pay and Compensation Ceilings position of record, with appropriate d. Promotion without current An employee’s total monetary adjustments to reflect pay events during competition when the employee was compensation paid in a calendar year the temporary promotion, subject to the

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specific policies and rules established provided. There is no limit to the demonstration band to which the by the Personnel Management Board. number of times an employee can be employee is assigned is exceeded by a The Personnel Management Board may reassigned, but local business rules will GS special rate for the employee’s establish additional pay setting policies be established to monitor and control all occupational category and geographic for promotions, including increasing the cases that receive reassignment base pay area. The Personnel Management Board promotion amount beyond 20% with changes to ensure fairness and may establish additional policies and the approval of the NAWCAD and consistency across the workforce. provide guidance on the use and NAWCWD Commanders or Executive 7. Pay Setting for Demotion or application of the staffing supplement Directors. In no case may those Placement in a Lower Pay Band including provisions for in band adjustments increase the base pay for adjustments and limiting application of the position of record beyond the Employees demoted for cause this feature to fewer occupations than applicable maximum base pay for the (performance or conduct) are not covered by the GS SSR. An extension to pay band. entitled to pay retention and will the demonstration pay ranges will be receive a minimum of a 5% decrease in used to extend the maximum salary of 6. Pay Setting for Reassignment base pay or the minimum rate of the the pay band for those occupations for a. Covered organizations may choose lower pay band whichever is greater. which a staffing supplement is to adopt the flexibility to pay an Employees demoted for reasons other approved. The increase of an increase in base pay upon reassignment. than cause (e.g., erosion of duties, employee’s base pay into this extension If adopted, such an increase will be reclassification of duties to a lower pay will be determined by the annual subject to the specific guidelines band, application under competitive performance assessment and payout, established by the Personnel announcements, at the employee’s there is no automatic entitlement to a Management Board and will not exceed request, or placement actions resulting staffing supplement. Only if an 5% as a cost containment measure. A from RIF procedures) may be entitled to employee’s annual assessment and reassignment may be effected without a pay retention in accordance with the associated payout would cause their change in base pay. Employees may be provisions of 5 U.S.C. 5363 and 5 CFR base pay to fall within the area of the eligible for an increase to base pay upon part 536, except as waived or modified staffing supplement extension to the pay temporary or permanent reassignment in sections III.F.11 and IX of this plan. range for the pay band would they be Employees, who receive an as described in section III.E.3. A paid at this level. decision to increase an employee’s base unacceptable rating, do not receive performance payouts or the general pay The extension to the pay range will be pay under this section will be based the maximum special salary rate for the upon clear Personnel Management increase. This action may result in base pay that is identified in a lower pay banded grades. An employee’s base pay Board business rules that will define is increased by the standard locality criteria necessary to justify a pay band. This occurs because the minimum rate of base pay in a pay band increases increase until the base pay exceeds the increase. maximum GS basic pay for the banded Examples of criteria may include, but as the result of the general pay increase (5 U.S.C. 5303) while the employee’s grades. If the employee’s base pay will are not limited to, one or more of the exceed the maximum GS basic pay for following factors: pay does not change. The employee will be placed in the lower pay band and the banded grades then the staffing (1) A determination that an supplement will be applied when employee’s responsibilities will their salary will remain unchanged. This situation (a reduction-in-band level authorized. The staffing supplement significantly increase; percent will be set equal to the locality (2) Critical mission or business with no reduction in pay as a result of an unacceptable rating) will not be percent and the staffing supplement and requirements; payout is calculated as shown in the (3) Need to advance multi-functional considered an adverse performance following example. competencies; based action. (4) Labor market conditions, e.g., 8. Staffing Supplements Scenario: availability of candidates and labor At the time of conversion or OPM Top of regular RUS pay range is $74,628. market rates; NAWC has adopted a pay scale extension (5) Reassignment from a approval of a new SSR that would be applicable to covered employees, the for RUS 2210s and 0856s. nonsupervisory to a supervisory Top of extended pay range is $78,445 position; NAWCAD and NAWCWD may (equal to the relevant GS RUS SSR). (6) Employee’s past and anticipated incorporate the use of special salary A RUS 0856 employee is at top of normal performance and contribution; rates (SSR) in demonstration project pay pay scale. Their pay before payout is: (7) Physical location of position; ranges. Currently there are no NSPS STRL base pay = $65,371. (8) Specialized skills, knowledge, or Targeted Local Market Supplements in STRL locality pay = $9,257 (Locality % = education possessed by the employee in use by NAWCAD or NAWCWD so no 14.16%, same as GS). relation to those required by the employees converting from NSPS will STRL adjusted base pay = $74,628. position; and be affected if staffing supplements are This employee receives a performance rating (9) Base pay of other employees in the not implemented at conversion. If of Exceeds Mission Expectations (4) and organization performing similar work. staffing supplements are adopted, either receives 3 payout points. The distribution b. When an employee is reassigned at the time of conversion or later, of the payout is 70% salary and 30% within his/her current pay band or to a NAWCAD and NAWCWD will bonus. Each payout point is valued at 2%. comparable pay band, an authorized implement them via an extension to the New base pay calculation: management official will set pay at an demonstration pay ranges and a 65371 * (1 + (3 * .02 * .7) = 68116.582; amount no less than the employee’s supplement to a covered employee’s rounded to 68117. (base pay increase after payout = 3 payout current base pay and may increase the salary. Employees assigned to points * 2% pay point value * 70% allo- employee’s current base pay by up to occupational categories and geographic cated to salary. Note the remainder will be and including 5%. If the employee’s areas where GS SSRs apply may be paid as bonus.) current base pay exceeds the maximum entitled to a staffing supplement if the RUS locality percent = 14.16%. of the new pay band, no increase can be maximum adjusted base pay rate for the Staffing supplement percent = 14.16%.

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Staffing supplement calculation: combined with successful performance retroactive pay changes associated with 68117 * .1416 = 9645.3672; rounded to of job objectives. The use of it. 9645. developmental promotions is limited to A developmental promotion increase (new base pay * staffing supplement per- (1) employees in a developmental pay may not be granted unless an employee cent). band of a non-supervisory pay schedule is in a pay and duty status under the New adjusted base pay calculation: and who are in developmental or trainee NAWCAD/NAWCWD STRL 68117 + 9645 = $77,672. level positions; and (2) employees in demonstration project on the effective (new base pay + staffing supplement). positions which are assigned to a date of the increase. Student Career Experience Program 11. Pay Retention If the pay scale extension is (SCEP). discontinued or reduced either because Standards by which developmental Pay retention will follow current law the GS SSR has been discontinued or promotion increases are provided and and regulations at 5 U.S.C. 5362 and reduced, for NAWC budgetary criteria by which additional base pay 5363, and 5 CFR part 536, except as constraints, or other NAWC managerial increases will be determined will be waived or modified in the Staffing decisions, the employees receiving a established and documented in internal Supplements section and section IX of staffing supplement will receive business rules, policies, or procedures. this plan. Pay band (grade) retention retained pay. There will be no change in The amount of the developmental does not apply under this the adjusted base pay when placed on promotion increase generally will not demonstration project. The NACWAD or pay retention. exceed 20 percent of an employee’s base NAWCWD Executive Director may also 9. Educational Pay Adjustment pay The decision to grant a grant pay retention to employees who developmental promotion exceeding 20 meet general eligibility requirements, NAWCAD and NAWCWD will but do not have specific entitlement by establish an educational base pay percent of an employee’s base pay must be made on a case-by-case basis and law, provided they are not specifically adjustment which is separate from the excluded. incentive pay process and may not approved by the appropriate Executive cause the employee’s pay to exceed the Director/Commanding Officer or their G. Employee Development delegate as established by internal maximum base pay rate of his or her 1. Expanded Developmental assigned pay band. An educational pay business rules, policies, or procedures. Opportunity Program adjustment is defined as an increase in This authority may be delegated only to an employee’s base pay by other than members of the Senior Executive The Expanded Developmental the incentive pay process within the Service (SES). The amount of the Opportunity Program will be available employee’s current band level to an developmental promotion increase may to all demonstration project employees. amount which does not exceed the top not cause the employee’s base pay to Expanded developmental opportunities of the band. The educational pay exceed the top of the employee’s pay complement existing developmental adjustment may be used to adjust the band or that set by internal business opportunities such as long-term pay of individuals who have acquired a rule, policy, or procedure. To qualify for training, rotational job assignments, and level of mission-related education that a developmental promotion, an developmental assignments to DON/ would otherwise make the employee employee must have a rating of record DoD, and self-directed study via qualified for an appointment at a higher of Mission Success or better. A correspondence courses and local level and would be used in lieu of a new developmental promotion may be colleges and universities. Each appointment. For example, this awarded to an employee who does not developmental opportunity must result authority may be used to adjust the pay have a rating of record if an authorizing in a product, service, report, or study of graduate level Student Career official conducts a performance that will benefit the NAWCAD or Experience Program (SCEP) students or assessment and determines that the NAWCWD or customer organization as employees who have obtained an employee is performing at the Mission well as increase the employee’s advanced degree, e.g., a PhD in a field Success level or better. This individual effectiveness. The related to the work of their position or performance assessment does not developmental opportunity period will the mission of their organization. An constitute a rating of record. If an not result in loss of (or reduction) in employee may receive an educational employee has a current performance base pay, leave to which the employee base pay adjustment or a reassignment rating below Mission Success and the is otherwise entitled, or credit for base pay increase but not both at the supervisor believes the employee’s service time. The positions of same time. performance has improved to the employees on expanded developmental Mission Success level or better; the opportunities may be back-filled (i.e., 10. Developmental Promotions employee has demonstrated this with temporarily assigned, detailed, or NAWCAD and NAWCWD will improved performance for 90 days or promoted employees or with term employ developmental promotions to more; and it is expected that this level employees). However, that position or achieve compensation growth of performance will continue, the its equivalent must be made available to commensurate to an employee’s supervisor may conduct a performance the employee upon return from the progression while in developmental assessment and forward it to the Pay developmental period. The Personnel assignments. A developmental Pool Manager for approval. If the Pay Management Board will provide written promotion is an increase to base pay Pool Manager concurs with the guidance for employees on application that may be provided to employees supervisor’s assessment then the procedures and develop a process that participating in NAWCAD and employee may be given a developmental will be used to review and evaluate NAWCWD training programs or in other promotion. There is no entitlement to an applicants for development developmental capacities as determined additional assessment beyond the opportunities. by Personnel Management Board policy. annual assessment; this decision is Developmental promotions recognize totally at managerial discretion. If an a. Sabbaticals growth and development in the additional assessment is made, it is not The Executive Directors of the acquisition of job related competencies a rating of record and there will be no covered organizations have the

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authority to grant paid or unpaid employee without the employee’s band, series and SAC so that positions sabbaticals to all career employees. The express and written consent. Any are similar enough in duties and purpose of a sabbatical will be to permit variance from this policy must be qualifications that employees can an employee to engage in study or rigorously determined and documented. perform the duties and responsibilities uncompensated work experience that Guidelines will be developed to ensure of any other position in the competitive will benefit the organization and competitive approval of degree or level upon assignment to it, without any contribute to the employee’s certificate payment and that those loss of productivity beyond what is development and effectiveness. Each decisions are fully documented. normally expected. For S&E competitive sabbatical must result in a product, Employees approved for degree training levels the Warfare Centers may also service, report, or study that will benefit must sign a service obligation agreement choose to use the OPM classification the NAWCAD or NAWCWD mission as to continue in service in the covered functional code as a defining element. well as increase the employee’s organizations for a period of three times 2. Assignment Rights individual effectiveness. Various the length of the training period. If an learning or developmental experiences employee voluntarily leaves the An employee may displace another may be considered, such as advanced NAWCAD or NAWCWD before the employee by bump or retreat to one pay academic teaching; research; self- service obligation is completed, he/she band below the employee’s existing pay directed or guided study; and on-the-job is liable for repayment of expenses band. A preference eligible with a work experience. incurred by the covered organizations compensable service-connected One paid sabbatical of up to twelve related to the critical skills training. disability of 30 percent or more may months in duration or one unpaid Expenses do not include salary costs. retreat to positions two pay bands below sabbatical of up to six months in a The Executive Directors of the covered his/her current band. calendar year may be granted to an organizations have the authority to 3. Crediting Performance in RIF employee in any seven-year period. waive this requirement. Criteria for such Employees will be eligible to request a waivers will be addressed in the STRL Reductions in force are accomplished sabbatical after completion of seven internal operating procedures. using the existing procedures with the years of Federal service. Employees retention factors of: Tenure, veterans’ approved for a paid sabbatical must sign H. Reduction-in-Force (RIF) Procedures preference, performance, and length of a service obligation agreement to RIF procedures will be used when an service, in that order. The performance continue in service in the covered employee faces separation or subgroup will be based on the most organizations for a period of three times downgrading due to lack of work, recent three ratings of record during the the length of the sabbatical. If an shortage of funds, reorganization, preceding four years. There will be three employee voluntarily leaves the covered insufficient personnel ceiling, the groupings within the performance organizations before the service exercise of re-employment or restoration subgroup: Mission Superior (H), obligation is completed he/she is liable rights, or furlough for more than 30 Mission Success (S) and Mission for repayment of expenses incurred by calendar days or more than 22 Deficiency (L). The most recent ratings the covered organizations that are discontinuous days. The procedures in of records will be combined to associated with training during the 5 CFR part 351 will generally be determine the performance subgroup. sabbatical. Expenses do not include followed with some modifications The High subgroup will include those salary costs. The Executive Directors of pertaining to the competitive areas, employees who have consistently the covered organizations have the assignment rights, the addition of a demonstrated superior performance. authority to waive this requirement. performance sub-group and grade/pay The Mission Success subgroup will Criteria for such waivers will be band retention. Modified term include the next level of demonstrated addressed in the operating procedures. appointment employees are in Tenure performance and the Mission Deficiency Specific procedures will be developed Group III for RIF purposes. RIF subgroup will include those who have for processing sabbatical applications procedures are not required when failed to achieve expected levels of upon implementation of the separating these employees when their performance for one or more years. demonstration project. appointments expire. Additional guidance on determining performance subgroups will be included b. Critical Skills Training (Training for 1. Competitive Areas in NAWCAD/NAWCWD internal Degrees) Separate RIF competitive areas for issuances. The Executive Directors of the demonstration and non-demonstration Employees who have been rated covered organizations have the project employees will be established at under different patterns of summary authority to approve academic degree each geographic location. Within the rating levels and have at least the training consistent with 5 U.S.C. 4107. demonstration project separate equivalent of a rating of record of three Training is an essential component of an competitive areas may be established for will receive RIF appraisal credit for the organization that requires continuous each demonstration occupational non-demonstration performance ratings acquisition of advanced and specialized family. Demonstration supervisors will equivalent to Mission Success based on knowledge. Degree training is also a be placed in the competitive area for the demonstration project’s modal score critical tool for recruiting and retaining their occupational family but in separate for the employee’s competitive area. If employees with or acquiring critical competitive levels within that career the employee received less than the skills. Academic degree training will field. Bumps and retreats will occur equivalent of Mission Success then that ensure continuous acquisition of only within the same competitive area rating will be compared to the advanced specialized knowledge and only to positions for which the demonstration project one or two rating essential to the organization and ability employee meets all qualification and best fit chosen. Additional guidance to recruit and retain personnel critical to standards including medical and/or on ratings equivalency will be included the present and future requirements of physical qualifications. in NAWCAD/NAWCWD internal the organization. Degree or certificate Within each competitive area, issuances. payment may not be authorized where competitive levels will be established In some cases, an employee may not it would result in a tax liability for the based on the occupational family, pay have three ratings of record. If an

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employee has fewer than three annual Various types of training are being exceeds the maximum rate for his or her ratings of record, then for each missing considered including videos, on-line assigned demonstration project pay rating, RIF appraisal credit will be based tutorials, and train-the-trainer concepts. band, the employee will be placed on on the demonstration project’s modal indefinite pay retention until an event, V. Movement Into and Out of the as described in 5 CFR 536.308, results score for the most recently completed Demonstration Project appraisal period on record for the in a loss of eligibility for or termination employee’s competitive area. For an A. Conversion From NSPS to the of pay retention. Increases to the employee who has no ratings of record, Demonstration Project retained rate after conversion will be in all credit will be based on the repeated 1. Placement Into Demonstration Project accordance with applicable regulations; use of a single modal rating from the Pay Plans and Pay Bands however, for any NSPS employee whose most recently completed appraisal retained rate exceeds EX–IV upon period on record for the employee’s The employee’s NSPS occupational conversion, any adjustment to the competitive area. series, pay plan, pay band, and retained rate in accordance with An employee who has received a supervisory code will be considered applicable pay retention regulations written decision that his/her upon converting into the demonstration may not cause the employee’s adjusted performance is unacceptable has no project as follows: pay to exceed EX–IV plus 5 percent. a. Determine the appropriate bump or retreat rights. An employee NAWCAD and NAWCWD do not have demonstration project pay plan. who has been demoted for unacceptable any employees who are covered by an Employees will be converted into a pay performance, and as of the date of the NSPS targeted local market supplement plan based on the occupational series of issuance of the RIF notice has not (TLMS) but if such coverage occurs their position. There is a separate pay received a performance rating in the plan for supervisors; conversion to that between the date of this FRN and position to which demoted, will receive pay plan will be without regard to the conversion to the demonstration project the same credit granted for a Level 3 occupational series. In cases where the such employees will no longer be rating of record. An employee with a employee is assigned to a NSPS-unique covered by a TLMS. Instead they may current unacceptable rating of record occupational series, a corresponding receive a locality or similar supplement has assignment rights only to a position OPM occupational series must be (e.g., a staffing supplement), or pay held by another employee who has an identified using OPM GS classification retention, if applicable. The adjusted unacceptable rating of record. standards and guidance to determine base pay will not change upon IV. Implementation Training the proper demonstration project pay conversion. plan. Once converted, employees may Critical to the success of the b. Determine the appropriate pay receive other adjustments and/or demonstration project is the training band. The appropriate pay band will be differentials, as applicable, as described developed to promote understanding of determined by establishing the in this regulation or an implementing the broad concepts and finer details corresponding demonstration project issuance. needed to implement and successfully pay band for the employee’s NSPS execute this project. A new pay banding 3. Fair Labor Standards Act (FLSA) position using demonstration project Status schema and performance management pay band definitions, classification system both represent significant standards, and guidance. Once the Since FLSA provisions were not cultural change to the organization. demonstration project pay band has waived under NSPS and duties do not Training will be tailored to address been determined, the employee’s change upon conversion to the employee concerns and encourage position will be placed in the demonstration project, the FLSA status comprehensive understanding of the demonstration project pay band. In determination will remain the same demonstration project. Training will be cases where a demonstration project pay upon conversion. Employees will be required both prior to implementation band overlaps more than one NSPS pay converted to the demonstration project and at various times during the life of band, placement will be made using with the same FLSA status they had the demonstration project. A training demonstration project pay band under NSPS. program will begin prior to definitions and classification criteria to 4. Transition Equity implementation and will include determine the appropriate pay band in modules tailored for employees, which to place the position. During the first the 12 months supervisors, senior managers, and following conversion to the administrative staff. Typical modules 2. Pay Upon Conversion demonstration project, management are: Conversion from NSPS into the may approve certain adjustments within 1. An overview of the demonstration demonstration project will be the pay band for pay equity reasons project personnel system; accomplished with full employee pay stemming from conversion. For 2. How employees are converted into protection. Adverse action provisions example, if an employee would have and out of the system; will not apply to the conversion action. been otherwise promoted but 3. Pay banding; In accordance with section 1113(c)(1) of demonstration project pay band 4. The mission aligned objectives and NDAA 2010, which prohibits a loss of placement no longer merits promotion, compensation system; or decrease in pay upon transition from a pay equity adjustment may be 5. Defining mission aligned NSPS, employees converting to the authorized provided the adjustment performance objectives; demonstration project will retain the does not cause the employee’s base pay 6. How weights may be used with the adjusted salary (as defined in 5 CFR to exceed the maximum rate of his or mission aligned performance objectives; 9901.304) from their NSPS permanent her assigned pay band and the 7. Assessing performance—giving position at the time the position employee’s performance warrants an feedback; converts. Upon conversion, the retained adjustment. The decision to grant a pay 8. New position descriptions; and NSPS adjusted salary may not exceed equity adjustment is at the sole 9. Demonstration project Level IV of the Executive Schedule plus discretion of management and is not administration and formal evaluation. 5 percent. If the employee’s base pay subject to employee appeal procedures.

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During the first 18 months following accordance with 5 CFR 213.104 for new system will be based upon the conversion, management may approve excepted service employees and 5 CFR position classification criteria of the promotions of less than 6% or increases part 316, subpart D, for competitive gaining system. Employees when in base pay of not more than 20% service employees. converted to their positions classified percent provided the adjustment does under the new system will be eligible 6. Probationary Periods not cause the employee’s base pay to for pay retention under 5 CFR part 536, exceed the maximum rate of his or her a. Initial probationary period. if applicable. assigned pay band. The employee’s Employees who have completed an performance must warrant an initial probationary period prior to 2. Determining a GS-equivalent Grade adjustment and these actions will be conversion from NSPS will not be and GS-equivalent Rate of Pay for Pay limited to those necessary to mitigate required to serve a new or extended Setting Purposes When a NAVAIR compensation inequities that are initial probationary period. Employees Employee’s Coverage by a directly related to the transition/ who are serving an initial probationary Demonstration Project Pay Plan conversion from NSPS to the period upon conversion from NSPS will Terminates or the Employee Voluntarily demonstration project. For instance, serve the time remaining on their initial Exits the NAVAIR STRL Demonstration inappropriate ‘‘leap-frogging’’ of more probationary period and may have their Project senior employees by more junior initial probationary period extended in a. If a demonstration project employee employees when the inversion of accordance with the demonstration is moving to a GS or other pay system compensation levels are not warranted project regulation and implementing position, the following procedures will by performance or mission issuances. be used to translate the employee’s accomplishment outcomes. The b. Supervisory probationary period. project pay band to a GS-equivalent Personnel Management Board will NSPS employees who have completed a grade and the employee’s project base establish policy and guidance for this supervisory probationary period prior to pay to the GS-equivalent rate of pay for provision and this guidance will be conversion from NSPS will not be pay setting purposes. The equivalent GS included in NAWCAD/NAWCWD required to serve a new or extended grade and GS rate of pay must be internal issuances. supervisory probationary period. NSPS determined before movement out of the 5. Converting Employees on NSPS Term employees who are serving a demonstration project and any and Temporary Appointments supervisory probationary period upon accompanying geographic movement, conversion from NSPS will serve the promotion, or other simultaneous a. Employees serving under term time remaining on their supervisory action. For lateral reassignments, the appointments at the time of conversion probationary period. equivalent GS grade and rate will to the demonstration project will be become the employee’s converted GS converted to a modified term B. Conversion From Other Personnel Systems grade and rate after leaving the appointment provided they were hired demonstration project (before any other for their current positions under Employees who enter this action). For transfers, promotions, and competitive procedures. These demonstration project from other other actions, the converted GS grade employees will be eligible for personnel systems (e.g., Defense and rate will be used in applying any conversion to career or career- Civilian Intelligence Personnel System, GS pay administration rules applicable conditional appointments in the DoD Civilian Acquisition Workforce in connection with the employee’s competitive service provided they: Demonstration Project, or other STRLs) movement out of the project (e.g., (1) have served two years of due to a reorganization, mandatory promotion rules, highest previous rate continuous service in the term position; conversion, Base Closure and rules, pay retention rules), as if the GS (2) were selected for the term position Realignment Commission decision, or converted grade and rate were actually under competitive procedures; and other directed action will be converted (3) are performing at a NSPS Valued in effect immediately before the into the NAVAIR STRL demonstration employee left the demonstration project. Performer, demonstration Mission project via movement of their positions Success, or equivalent level under using an appropriate Nature of Action b. Equivalent GS-Grade-Setting another system. Additional guidance Code. Employees’ positions will be Provisions will be included in NAWCAD/ classified based upon the position NAWCWD internal conversion An employee in a pay band classification criteria and pay band corresponding to a single GS grade is issuances. definitions under the laboratory Converted term employees who do provided that grade as the GS- demonstration project rules and their not meet these criteria may continue on equivalent grade. An employee in a pay pay, upon conversion, maintained their term appointment up to the not-to- band corresponding to two or more under applicable pay setting rules. exceed date established under NSPS. grades is determined to have a GS- Extensions of term appointments for C. Movement Out of the NAVAIR STRL equivalent grade corresponding to one employees who do not meet the above Demonstration Project of those grades according to the criteria may be granted after conversion following rules: 1. Termination of Coverage Under the in accordance with the provision of this (1) The employee’s adjusted base pay NAVAIR STRL Demonstration Project regulation. under the demonstration project b. Employees serving under Pay Plans (including any locality payment or temporary appointments under NSPS In the event employees’ coverage staffing supplement) is compared with when their organization converts to the under the NAVAIR STRL demonstration step 4 rates in the highest applicable GS demonstration project will be converted project pay plans is terminated, rate range. For this purpose, a GS rate and may continue on their temporary employees move with their range includes a rate in: appointment up to the not-to-exceed demonstration project positions to (a) the GS base schedule; date established under NSPS. another system applicable to NAVAIR (b) the locality rate schedule for the Extensions of temporary appointments STRL employees. The grade of their locality pay area in which the position after conversion may be granted in demonstration project position in the is located; or

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(c) the appropriate special rate (a) the GS base schedule, 5. Within-Grade Increase—Equivalent schedule for the employee’s (b) an applicable locality rate Increase Determinations occupational series, as applicable. schedule, or Service under the demonstration (c) an applicable special rate If the series is a two-grade interval project is creditable for within-grade series, only odd-numbered grades are schedule. (3) If the highest applicable GS rate increase purposes upon conversion back considered below GS–11. to the GS pay system. Performance pay (2) If the employee’s adjusted base range is a locality pay rate range, the employee’s adjusted base pay under the increases (including a zero increase) pay under the demonstration project under the demonstration project are equals or exceeds the applicable step 4 demonstration project is converted to a GS locality rate of pay. If this rate falls equivalent increases for the purpose of adjusted base pay rate of the highest GS determining the commencement of a grade in the band, the employee is between two steps in the locality- adjusted schedule, the rate must be set within-grade increase waiting period converted to that grade. under 5 CFR 531.405(b). (3) If the employee’s adjusted base at the higher step. The converted GS pay under the demonstration project is unadjusted rate of base pay would be D. Personnel Administration lower than the applicable step 4 the GS base rate corresponding to the All personnel laws, regulations, and adjusted base pay rate of the highest converted GS locality rate (i.e., same guidelines not waived by this plan will grade, the adjusted base pay under the step position). remain in effect. Basic employee rights (4) If the highest applicable GS rate demonstration project is compared with will be safeguarded and Merit System range is a special rate range, the the step 4 adjusted base pay rate of the Principles will be maintained. Servicing employee’s adjusted base pay under the second highest grade in the employee’s HRSCs will continue to process demonstration project is converted to a pay band. If the employee’s adjusted personnel-related actions and provide special rate. If this rate falls between base pay under the demonstration other appropriate services. project equals or exceeds the step 4 two steps in the special rate schedule, adjusted base pay rate of the second the rate must be set at the higher step. E. Automation Support The converted GS unadjusted rate of highest grade, the employee is 1. General converted to that grade. base pay will be the GS rate (4) This process is repeated for each corresponding to the converted special One of the major goals of the successively lower grade in the band rate (i.e., same step position). demonstration project is to streamline until a grade is found in which the (d) Employees with Pay Retention: If the personnel processes to increase cost employee’s adjusted base pay under the an employee is receiving a retained rate effectiveness. Automation must play an demonstration project rate equals or under the demonstration project, the integral role in achieving that goal. exceeds the applicable step 4 adjusted employee’s GS-equivalent grade is the Without the necessary automation to base pay rate of the grade. The employee highest grade encompassed in his or her support the interventions proposed for is then converted at that grade. If the pay band level. Demonstration project the demonstration project, optimal cost employee’s adjusted base pay is below operating procedures will outline the benefit cannot be realized. In addition, the step 4 adjusted base pay rate of the methodology for determining the GS- adequate information to support lowest grade in the band, the employee equivalent pay rate for an employee decision-making must be available to is converted to the lowest grade. retaining a rate under the demonstration managers if line management is to (5) Exception: An employee will not project. assume greater authority and be provided a lower grade than the responsibility for human resources 3. Supervision and Management Pay management. Automation to support the grade held by the employee Band VI Employees immediately preceding a conversion, demonstration project is required at the lateral reassignment, or lateral transfer The Above GS–15 Position concept is DON and DoD level, (in the form of into the project, unless since that time currently being evaluated by DoD changes to the Defense Civilian the employee has either undergone a management for its effectiveness; Personnel Data System) to facilitate reduction in band or a reduction within continued applicability to the current processing and reporting of the same pay band due to unacceptable STRL scientific, engineering, and demonstration project personnel performance. technology workforce needs; and actions, and may be ultimately required appropriate allocation of billets based by the Naval Air Warfare Centers to c. Equivalent GS-Rate-of-Pay-Setting on mission requirements. The nature assist in processing of a variety of Provisions and extent of the conversion out of the personnel-related actions in order to An employee’s pay within the demonstration project process for facilitate management processes and converted GS grade is set by converting employees in these positions will be decision-making. the employee’s demonstration project determined by the final DoD guidance. rates of pay to GS rates of pay in Additional guidance may be included in 2. Defense Civilian Personnel Data accordance with the following rules: NAWCAD/NAWCWD internal System (DCPDS) (1) The pay conversion is done before issuances. DCPDS is the Department of Defense’s any geographic movement or other pay- authoritative personnel data system and 4. Employees With Pay Retention related action that coincides with the program of record and, as such, will be employee’s movement or conversion out If an employee is receiving a retained the system of choice for the STRL labs. of the demonstration project. rate under the demonstration project, (2) An employee’s adjusted base pay the employee’s GS-equivalent grade is F. Experimentation and Revision under the demonstration project (i.e., the highest grade encompassed in his or Many aspects of a demonstration including any locality payment or her pay band level. Demonstration project are experimental. Modifications staffing supplement) is converted to a project operating procedures will may be made from time to time as GS adjusted base pay rate on the highest outline the methodology for experience is gained, results are applicable GS rate range for the determining the GS-equivalent pay rate analyzed, and conclusions are reached converted GS grade. For this purpose, a for an employee retaining a rate under on how the new system is working. GS rate range includes a rate range in: the demonstration project. DoDI 1400.37, July 28, 2009, provides

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instructions for adopting other STRL organizational performance, mission (2) The corresponding measures, and flexibilities, making minor changes to accomplishment, and customer (3) The data sources for obtaining the an existing demonstration project, and satisfaction. Although it is not possible measures. requesting new initiatives. to establish a direct causal link between Although the model makes changes in the HR management system predictions about the outcomes of VI. Project Duration and organizational effectiveness, it is specific interventions, causal Public Law 103–337 removed any hypothesized that the new HR system attributions about the full impact of mandatory expiration date for this will contribute to improved specific interventions will not always be demonstration. The covered organizational effectiveness. possible for several reasons. For organizations, DON and DoD will Organizational performance measures example, many of the initiatives are ensure this project is evaluated for the established by the organization will be expected to interact with each other and first five years after implementation in used to evaluate the impact of a new HR contribute to the same outcomes. In accordance with 5 U.S.C. 4703. system on the ultimate outcomes. The addition, the impact of changes in the Modifications to the original evaluation evaluation of the new HR system for any HR system may be mitigated by context plan or any new evaluation will ensure given organization will take into variables (e.g., the job market, the project is evaluated for its account the influence of three factors on legislation, and internal support effectiveness, its impact on mission, and organizational performance: Context, systems) or support factors (e.g., training any potential adverse impact on any degree of implementation, and support and automation support systems). employee groups. Major changes and of implementation. The context factor C. Evaluation modifications to the interventions refers to the impact which intervening would be made if formative evaluation variables (i.e., downsizing, changes in A modified quasi-experimental design data warranted and will be published in mission, or the economy) can have on will be used for the evaluation of the the Federal Register to the extent the effectiveness of the program. The STRL Personnel Demonstration required. At the five-year point, the degree of implementation considers the Program. Because most of the eligible laboratories are participating in the demonstration will be reexamined for extent to which the: program, a title 5 U.S.C. comparison permanent implementation, (1) HR changes are given a fair trial group will be compiled from the Central modification and additional testing, or period; Personnel Data File (CPDF). This termination of the entire demonstration (2) Changes are implemented; and (3) Changes conform to the HR comparison group will consist of project. interventions as planned. workforce data from Government-wide VII. Evaluation Plan The support of implementation factor research organizations in civilian Federal agencies with missions and job A. Overview accounts for the impact that factors such as training, internal regulations and series matching those in the DoD Chapter 47 of 5 U.S.C. requires that an automated support systems have on the laboratories. This comparison group evaluation be performed to measure the support available for program will be used primarily in the analysis of effectiveness of the demonstration implementation. The support for the pay banding costs and turnover rates. project and its impact on improving program implementation factor can also D. Method of Data Collection public management. A comprehensive be affected by the personal evaluation plan for the entire characteristics (e.g., attitudes) of Data from several sources will be used demonstration program, originally individuals who are implementing the in the evaluation. Information from covering 24 DoD laboratories, was program. existing management information developed by a joint OPM/DoD The degree to which the project is systems and from personnel office Evaluation Committee in 1995. This implemented and operated will be records will be supplemented with plan was submitted to the Office of tracked to ensure that the evaluation perceptual survey data from employees Defense Research & Engineering and results reflect the project as it was to assess the effectiveness and was subsequently approved. The main intended. Data will be collected to perception of the project. The multiple purpose of the evaluation is to measure changes in both intermediate sources of data collection will provide determine whether the waivers granted and ultimate outcomes, as well as any a more complete picture as to how the result in a more effective personnel unintended outcomes, which may interventions are working. The system and improvements in ultimate happen as a result of any organizational information gathered from one source outcomes (i.e., organizational change. In addition, the evaluation will will serve to validate information effectiveness, mission accomplishment, track the impact of the project and its obtained through another source. In so and customer satisfaction). interventions on veterans and other doing, the confidence of overall findings will be strengthened as the different B. Evaluation Model protected groups, the Merit Systems Principles, and the Prohibited Personnel collection methods substantiate each Appendix C shows an intervention Practices. Additional measures may be other. Both quantitative and qualitative data model for the evaluation of the added to the model in the event that will be used when evaluating outcomes. demonstration project. The model is changes or modifications are made to The following data will be collected: designated to evaluate two levels of the demonstration plan. organizational performance: (1) Workforce data; The intervention model at Appendix (2) Personnel office data; Intermediate and ultimate outcomes. C will be used to measure the (3) Employee attitude surveys; The intermediate outcomes are defined effectiveness of the personnel system (4) Focus group data; as the results from specific personnel interventions implemented. The (5) Local site historian logs and system changes and the associated intervention model specifies each implementation information; waivers of law and regulation expected personnel system change or (6) Customer satisfaction surveys; and to improve human resource (HR) ‘‘intervention’’ that will be measured (7) Core measures of organizational management (i.e., cost, quality, and shows: performance. timeliness). The ultimate outcomes are (1) The expected effects of the The evaluation effort will consist of determined through improved intervention, two phases, formative and summative

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evaluation, covering at least five years to achieved the desired goals, which Management Board will track personnel permit inter- and intra-organizational interventions were most effective, and cost changes and recommend estimates of effectiveness. The formative whether the results can be generalized adjustments if required to achieve the evaluation phase will include baseline to other Federal installations. objective of cost discipline. data collection and analysis, B. Developmental Costs implementation evaluation, and interim VIII. Demonstration Project Costs assessments. The formal reports and A. Cost Discipline Costs associated with the interim assessments will provide development of the personnel information on the accuracy of project An objective of the demonstration demonstration project include software operation, and current information on project is to ensure in-house cost automation, training, and project impact of the project on veterans and discipline. A baseline will be evaluation. All funding will be provided protected groups, Merit System established at the start of the project and through the organization’s budget. The Principles, and Prohibited Personnel salary expenditures will be tracked projected annual expenses are Practices. The summative evaluation yearly. Implementation costs (including summarized in Table 1. Project will focus on an overall assessment of project development, automation costs, evaluation costs are not expected to project outcomes after five years. The and evaluation costs) are considered continue beyond the first five years final report will provide information on one-time costs and will not be included unless the results warrant further how well the HR system changes in the cost discipline. The Personnel evaluation.

TABLE 1—PROJECTED DEVELOPMENT COSTS [In thousands of dollars]

FY10 FY11 FY12 FY13 FY14

Software Development & Automation ...... $150 $650 $200 $150 $100 Training Development & Workforce Training ...... 300 1,000 400 100 100 Project Evaluation ...... 0 0 100 100 100

Totals ...... 450 1,650 700 350 300

IX. Required Waivers to Law and Appointment: Waived except for organizations, to waive in whole or in Regulation sections 3302, 3321, and 3328to allow part a right of recovery. Public Law 106–398 gave the DoD the for direct hire authority for scientists Chapter 43, section 4302: Waived to authority to experiment with several and engineers with advanced degrees the extent necessary to substitute ‘‘pay personnel management innovations. In for professional positions. band’’ for ‘‘grade.’’ addition to the authorities granted by Chapter 33, section 3317(a): Chapter 43, section 4303: Waived to the law, the following are waivers of law Competitive service, certification from the extent necessary to (1) substitute and regulation that will be necessary for register (in so far as ‘‘rule of three’’ is ‘‘pay band’’ for ‘‘grade’’ and (2) provide implementation of the demonstration eliminated under the demonstration that moving to a lower pay band as a project. In due course, additional laws project). result of not receiving the general pay and regulations may be identified for Chapter 33, subchapter 1, section increase because of poor performance is waiver request. The following waivers 3318(a): Competitive Service, Selection not an action covered by the provisions and adaptations of certain title 5 U.S.C. from Certificate. Waived in its entirety of sections 4303(a)–(d). and title 5 CFR provisions are required to eliminate the requirement for Chapter 43, section 4304(b)(1) and (3): only to the extent that these statutory selection using the ‘‘rule of three.’’ Responsibilities of the OPM. Waived in provisions limit or are inconsistent with Veterans’ preference provisions remain its entirety to remove the the actions contemplated under this unchanged. responsibilities of the OPM with respect demonstration project. Nothing in this to the performance appraisal system. Chapter 33, section 3321: Competitive Chapter 45, section 4502: Limitation plan is intended to preclude the Service; Probationary Period. This demonstration project from adopting or of cash awards to $10K. Waived to allow section waived to the extent necessary NAWCAD and NAWCWD Commanders incorporating any law or regulation to replace grade with ‘‘pay band level’’ enacted, adopted, or amended after the to approve awards up to $25K. and allow probationary periods of up to Chapter 51 Classification, section effective date of this demonstration 3 years. project. 5101–5112: Purpose; Definitions, Chapter 33, section 3341: Details. application; Determination of A. Waivers to Title 5, U.S.C. Waived as necessary to extend the time applicability; Basis for grading Chapter 5, section 552a: Records. limits for details. positions; Standards for classification of Waive to the extent required to clarify Chapter 35, section 3502: Waived to positions; Basis for classifying positions; that volunteers under the Voluntary the extent to allow for performance Classification of positions; Classification Emeritus Corps are considered retention subgroups and 3502(c) waived of positions above GS–15; Review of employees of the Federal Government in its entirety. classification of positions, Revocation for purposes of this section. Chapter 41, section 4108(a)–(c): and restoration of authority to classify Chapter 31, section 3111: Acceptance Waived to the extent necessary to positions, and General authority of the of volunteer service. Waive to allow for require the employee to continue in the Office of Personnel Management:— a Volunteer Emeritus Corps in addition service of the covered organizations for Waived to the extent that white collar to student volunteers. the period of the required service and to employees will be covered by pay Chapter 33, subchapter I— the extent necessary to permit the banding and to the extent that Examination, Certification, and Executive Director of the covered classification appeals will be decided by

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the NAWC Executive Director with final the special rate category to which a allow for a Voluntary Emeritus Corps in appeal to the Department of Defense. project employee belongs is deemed to addition to student volunteers. Chapter 53, sections 5301, 5302(1), (8) be the ‘‘applicable special rate’’ in Part 315, section 315.801(a), and (9), 5303, and 5304: Pay applying the pay cap provisions in 5 315.801(b)(1), (c), and (e), and Comparability System. Waived to the U.S.C. 5547. 315.802(a) and (b)(1): Probationary extent necessary to allow (1) Chapter 57, section 5753, 5754, and period and Length of probationary demonstration project employees to be 5755: Recruitment and relocation, period. Waived to the extent necessary treated as GS employees, (2) basic rates bonuses, incentives, and supervisory to allow for up to a three-year of pay under the demonstration project differentials. Waived to the extent probationary period and to permit to be treated as scheduled rates of pay, necessary to allow employees and termination during the extended and (3) the demonstration project pay positions under the demonstration probationary period without using system to be adjusted by the GS annual project to be treated as employees and adverse action procedures for those adjustments to pay schedules. positions under the GS. employees serving a probationary Chapter 53, section 5305: Special Pay Chapter 59, section 5941: Allowances period under an initial appointment Authority. Waived to the extent based on living costs and conditions of except for those with veterans’ necessary to allow for use of a staffing environment; employees stationed preference. supplement in lieu of the special pay outside continental U.S. or Alaska. Part 315, section 315.901: Statutory authority. Waived to the extent necessary to requirement. Waived to the extent Chapter 53, sections 5331–5336: GS provide that cost-of-living allowances necessary to replace ‘‘grade’’ with ‘‘pay Pay Rates. Waived in its entirety to paid to employees under the band.’’ allow for the demonstration project’s demonstration project are paid in Part 315, section 315.905 Length of pay banding system and pay provisions. accordance with regulations prescribed the probationary period. Waived to the Chapter 53, sections 5361–5366: by the President (as delegated to OPM). extent necessary to allow for a two-year Grade and Pay Retention. Waived to the Chapter 75, sections 7501(1), extent necessary to: (1) Replace ‘‘grade’’ supervisory/managerial probationary 7511(a)(1)(A)(ii), and 7511(a)(1)(C)(ii): period. with ‘‘pay band;’’ (2) allow Adverse Actions—Definitions. Waived demonstration project employees to be Part 316, section 316.301: Purpose to the extent necessary to allow for up and duration. Waived to the extent treated as GS employees; (3) provide to a three-year probationary period and that an employee on pay retention necessary to allow for term to permit termination during the appointments for more than four years. whose rating of record is ‘‘Unacceptable’’ extended probationary period without is not entitled to 50 percent of the Part 316, section 316.303: Tenure of using adverse action procedures for term employees. Waived to the extent amount of the increase in the maximum those employees serving a probationary rate of base pay payable for the pay necessary to allow term employees to period under an initial appointment acquire competitive status. band of the employee’s position; (4) except for those with veterans’ provide that pay retention does not Part 316, section 316.304: Trial preference. Period. Waived to the extent necessary apply to reduction in base pay due Chapter 75, section 7512(3): Adverse to allow for up to a three-year trial solely to the reallocation of actions. Waived to the extent necessary period. demonstration project pay rates in the ‘‘ ’’ ‘‘ ’’ to replace grade with pay band. ‘‘ implementation of a staffing Chapter 75, section 7512(4): Adverse Part 332, section 332.402: Rule of ’’ supplement; (5) allow no provision of actions. Waived to the extent necessary three will not be used in the grade or pay band retention under this to provide that adverse action demonstration project. When there are demonstration project and (6) allow provisions do not apply to (1) no more than 15 qualified applicants demonstration project employees conversions from GS special rates or and no preference eligible, all eligible receiving a staffing supplement to retain NSPS Targeted Local Market applicants are referred to the selection the adjusted base pay if the staffing Supplements to demonstration project official without rating or rankings. supplement is discontinued or reduced. pay, as long as total pay is not reduced Statutes and regulations covering This waiver applies to ST employees and (2) reductions in pay due to the veterans’ preference are observed in the only if they move to a GS-equivalent removal of a supervisory or team leader selection process and when rating and position within the demonstration pay adjustment upon voluntary ranking are required. project under conditions that trigger movement to a non-supervisory or non- Part 332, section 332.404: Order of entitlement to pay retention. team leader position. selection from certificates. Waived to Chapter 55, section 5542(a)(1)–(2): the extent necessary to eliminate the Overtime rates; computation. Waived to B. Waivers to Title 5, CFR requirement for selection using the ‘‘rule the extent necessary to provide that the Part 293, subpart D: Personnel of three.’’ GS–10 minimum special rate (if any) for Records. Employee Performance File Part 335, section 335.103: Agency the special rate category to which a System Records. Waived to the extent promotion programs. Waived to the project employee belongs is deemed to necessary to be consistent with the extent necessary to extend the length of be the ‘‘applicable special rate’’ in demonstration project’s mission aligned details and temporary promotions applying the pay cap provisions in 5 objectives and compensation system without requiring competitive U.S.C. 5542. and to allow definition and procedures. Chapter 55, section 5545(d): establishment of its automated system of Part 337, section 337.101(a): Rating Hazardous duty differential. Waived to records and retention requirements. applicants. Waived to the extent the extent necessary to allow Part 300, sections 300.601 through necessary to allow referral without demonstration project employees to be 300.605: Time-in-Grade restrictions. rating when there are 15 or fewer treated as GS employees. Waived to eliminate time-in-grade qualified candidates and no qualified Chapter 55, section 5547(a)–(b): restrictions in the demonstration preference eligibles. Limitation on premium pay. Waived to project. Part 340, subpart A, subpart B, and the extent necessary to provide that the Part 308, sections 308.101 through subpart C: Other than Full-Time Career GS–15 maximum special rate (if any) for 308.103: Volunteer service. Waived to Employment. These subparts are waived

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to the extent necessary to allow a the appraisal cycle or for other and (2) base rates of pay under the Volunteer Emeritus Corps. situations not providing adequate time demonstration project to be treated as Part 351, section 351.401: for an appraisal. scheduled annual rates of pay. Determining retention standing. Waived Part 432, Performance based Part 536: Grade and Pay Retention. to the extent necessary to allow use of reduction-in-grade and removal actions: Waived to the extent necessary to (1) performance subgroups in determining Modified to the extent that an employee replace ‘‘grade’’ with ‘‘pay band;’’ (2) retention standing. may be removed, reduced in pay band provide that pay retention provisions do Part 351, section 351.402(b): level with a reduction in pay, reduced not apply to conversions from GS Competitive area. Waived to the extent in pay without a reduction in pay band special rates to demonstration project necessary to allow separate competitive level and reduced in pay band level pay, as long as total pay is not reduced, areas for demonstration and non- without a reduction in pay based on and to movement from a supervisory demonstration project employees and to unacceptable performance. Also, position to a non-supervisory position, allow separate competitive areas for modified to delete reference to critical as long as total pay is not reduced; (3) each demonstration occupational element. For employees who are allow demonstration project employees family. reduced in pay band level without a to be treated as GS employees; (4) Part 351, section 351.403: Competitive reduction in pay, Sections 432.105 and provide that pay retention provisions do level. Waived to the extent necessary to 432.106(a) do not apply. not apply to movements to a lower pay replace ‘‘grade’’ with ‘‘pay band’’ and to Part 432, section 432.102: Coverage. band as a result of not receiving the allow use of demonstration project Waived to the extent that the term general increase due to an annual criteria, such as specialty area code, to ‘‘grade’’ is replaced with ‘‘pay band.’’ performance rating of ‘‘Unacceptable;’’ be used in the definition of competitive Part 432, section 432.104: Addressing (5) provide that an employee on pay levels. unacceptable performance. References retention whose rating of record is Part 351, section 351.501: Order of to ‘‘critical elements’’ are deleted as all ‘‘Unacceptable’’ is not entitled to 50 retention—competitive service. Waived elements are critical and adding that the percent of the amount of the increase in as necessary to allow use of employee may be ‘‘reduced in pay band the maximum rate of base pay payable performance subgroups in determining level, or pay, or removed’’ if for the pay band of the employee’s retention standing and allow no performance does not improve to an position; (6) allow no provision of grade additional years of service based on acceptable level during a reasonable or pay band retention under this performance. opportunity period. demonstration project; (7) provide that Part 351, section 351.502: Order of Part 432, section 432.105(a)(2): pay retention does not apply to retention—excepted service. Waived as Proposing and taking action based on reduction in base pay due solely to the necessary to allow use of performance unacceptable performance: Waive ‘‘If an reallocation of demonstration project subgroups in determining retention employee has performed acceptably for pay rates in the implementation of a standing and allow no additional years 1 year’’ to allow for ‘‘within two years staffing supplement and (8) allow of service based on performance. from the beginning of a PIP.’’ demonstration project employees Part 351, section 351.504: Credit for Part 451, subpart A, section receiving a staffing supplement to retain performance. Waived as necessary to 451.103(c)(2): Waived with respect to the adjusted base pay if the staffing allow for use of performance subgroups performance awards under the NAVAIR supplement is discontinued or reduced. rather than adding years of service Extraordinary Achievement Allowance This waiver applies to ST employees based on performance. and demo incentive awards authority. only if they move to a GS equivalent Part 351, section 351.701: Assignment Part 451, subpart A, section 451.106 position within the demonstration involving displacement. Waived to the and 451.107: Waived to allow the project under conditions that trigger extent that bump and retreat rights are NAWCAD and NAWCWD Commanders entitlement to pay retention. limited to one pay band with the authority to grant special act awards to Part 550, sections 550.105 and exception of 30 percent preference covered employees of up to $25,000. 550.106: Bi-weekly and annual eligibles who are limited to two bands Part 511, subpart A, subpart B, and maximum earnings limitations. Waived (or equivalent of five grades), and to subpart F: Classification within the to the extent necessary to provide that limit the assignment rights of employees General Schedule. Waived in its the GS–15 maximum special rate (if with an unacceptable current rating of entirety. any) for the special rate category to record to a position held by another Part 530, subpart C: Special Rate which a project employee belongs is employee with an unacceptable rating of Schedules for Recruitment and deemed to be the ‘‘applicable special record. Retention. Waived in its entirety to rate’’ in applying the pay cap provisions Part 410, section 410.309: Agreements allow for staffing supplements. in 5 U.S.C. 5547. to continue in service. Waived to the Part 531, subpart B.: Determining Rate Part 550, section 550.703: Definitions. extent necessary to allow the Executive of Basic Pay. Waived to the extent Waived to the extent necessary to Directors of the covered organizations to necessary to allow for pay setting, modify the definition of ‘‘reasonable determine requirements related to including educational pay adjustments offer’’ by replacing ‘‘two grade or pay continued service agreements. and pay for performance under the levels’’ with ‘‘one band level’’ and ‘‘grade Part 430, subpart B: Performance provisions of the demonstration project. or pay level’’ with ‘‘band level.’’ Appraisal for GS, Prevailing Rate, and Part 531, subparts D and E: Within- Part 550, section 550.902: Definitions. Certain Other Employees. Waived to the Grade Increases, and Quality Step Waived to the extent necessary to allow extent necessary to be consistent with Increases. Waived in its entirety. demonstration project employees to be the demonstration project’s mission Part 531, subpart F: Locality-Based treated as GS employees. This waiver aligned objectives and compensation Comparability Payments. Waived to the does not apply to employees in Pay system. extent necessary to allow (1) Band V of the S&E occupational family. Part 430, section 430.208(a)(1) and (2): demonstration project employees, Part 575, subparts A, B, C, and D: Rating Performance. Waived to allow except employees in Pay Band VI of the Recruitment Incentives, Relocation presumptive ratings for new employees Supervision and Management pay Incentives, Retention Incentives. hired 90 days or less before the end of schedule, to be treated as GS employees Waived to the extent necessary to allow

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employees and positions under the GSA Duty GSA Duty demonstration project covered by pay geographic location geographic location banding to be treated as employees and location code location code positions under the GS. Part 591, subpart B: Cost-of-Living 060543073 ..... Camp Pendleton, CA 371670051 ..... Fayetteville, NC 060675029 ..... China Lake, CA 371685051 ..... Fort Bragg, NC Allowance and Post Differential—Non- 060860073 ..... Coronado, CA 372330133 ..... Jacksonville, NC foreign Areas. Waived to the extent 061077029 ..... Edwards AFB, CA 372894049 ..... Marine Corps Air Station, NC necessary to allow (1) demonstration 061090025 ..... El Centro, CA 392090113 ..... Dayton, OH project employees to be treated as 061264073 ..... Fallbrook, CA 399165113 ..... Wright Patterson AFB, OH employees under the GS and (2) 061880031 ..... Lemoore, CA 404725109 ..... Tinker AFB, OK employees in Band V of the S&E 062090013 ..... Martinez, CA 421230055 ..... Chambersburg, PA occupational family to be treated as ST 062194073 ..... Miramar Naval Air Sta., CA 421657089 ..... Coolbaugh Township, PA employees for the purposes of these 062250053 ..... Monterey, CA 422063091 ..... Dresher, PA provisions. 062341073 ..... Naval Air Station, CA 424800071 ..... Manheim, PA Part 752, sections 752.101, 752.201, 062622111 ..... Oxnard AFB, CA 425698101 ..... Philadelphia, PA 062700037 ..... Pasadena, CA 752.301 and 752.401: Principal statutory 425699041 ..... Naval Support Activity, PA 062861073 ..... Point Loma Complex, CA 426540101 ..... Philadelphia, PA requirements and Coverage. Waived to 062862111 ..... Point Mugu, CA 426600003 ..... Pittsburgh, PA the extent necessary to allow for up to 062890111 ..... Port Hueneme, CA 428475089 ..... Tobyhanna, PA a three-year probationary period and to 063260073 ..... San Diego, CA 429420111 ..... Windber, PA permit termination during the extended 063397111 ..... San Nicolas Island, CA 440136005 ..... Naval Base, RI probationary period without using 090260011 ..... Groton, CT 450140013 ..... Beaufort, SC adverse action procedures for those 110010001 ..... Washington, DC 451040045 ..... Greenville, SC employees serving a probationary 110400001 ..... Wash Navy Yard, DC 470092031 ..... Arnold AFB, TN period under an initial appointment 120000091 ..... Okaloosa Cnty, FL 471660157 ..... Millington, TN 120485031 ..... Cecil Field, FL 472470031 ..... Tullahoma, TN except for those with veterans’ 120935091 ..... Eglin A.F.B., FL preference. 480150375 ..... Amarillo, TX 121130001 ..... Gainesville, FL 480260439 ..... Arlington, TX Part 752, section 752.401: Coverage. 121510031 ..... Jacksonville, FL 481550273 ..... Corpus Christi, TX Waived to the extent necessary to 121972031 ..... Mayport, FL 481730113 ..... Dallas, TX replace ‘‘grade’’ with ‘‘pay band,’’ and to 122070113 ..... Milton, FL 482450439 ..... Fort Worth, TX provide that a reduction in pay band 122156033 ..... Naval Air Station, FL 483700273 ..... Kingsville, TX level is not an adverse action if it results 122161095 ..... Naval Warfare Center, FL 491560049 ..... Provo, UT from the employee’s rate of base pay 122162031 ..... Naval Aviation Depot, FL 510000013 ..... Arlington, VA being exceeded by the minimum rate of 122164031 ..... Naval Air Station, FL 510702810 ..... Damneck Nav Fac, VA base pay for his/her pay band. 122360095 ..... Orlando, FL 511220059 ..... Herndon, VA Part 752, section 752.401(a)(4): 122490033 ..... Pensacola, FL 511686710 ..... Naval Base, VA 122811085 ..... Sewalls Point, FL Coverage. Waived to the extent 511687013 ..... Arlington, VA 122950057 ..... Tampa, FL 511720700 ..... Newport News, VA necessary to provide that adverse action 130280121 ..... Atlanta, GA 511760710 ..... Norfolk, VA provisions do not apply to (1) 133015039 ..... Kings Bay, GA 511822810 ..... Oceana Nav Air Sta, VA conversions from GS special rates or 153500003 ..... Kaneohe, HI 511906013 ..... Pentagon, VA NSPS Targeted Local Market 158206003 ..... Pearl Harbor Naval Base, HI 512010153 ..... Quantico, VA Supplements to demonstration project 173595097 ..... Great Lakes, IL 512540810 ..... Virginia Beach, VA pay, as long as total pay is not reduced 181055101 ..... Crane, IN 512564001 ..... Wallops Island, VA and (2) movement from a supervisory 182210097 ..... Indianapolis, IN 512690199 ..... Yorktown, VA pay band to a non-supervisory pay band 221690071 ..... New Orleans, LA 530105035 ..... Bangor, WA 231150005 ..... Brunswick, ME as long as total pay is not reduced. 531960033 ..... Seattle, WA 240840017 ..... Indian Head, MD 532508029 ..... Whidbey Island NAS, WA Appendix A: NAWCAD and NAWCWD 241096037 ..... Patuxent River, MD GM9000000 ... Stuttgart, Germany Duty Locations 241364037 ..... Saint Inigoes, MD GQ0100000 ... Agana, GUAM 241480009 ..... Solomons, MD JA0600000 .... Atsugi, Japan GSA 250478017 ..... Hanscom Fields, MA JA2600000 .... Futemma, Japan geographic Duty 281590075 ..... Meridian, MS JA3800000 .... Iwakuni, Japan location code location 297080510 ..... St Louis, MO JA3825000 .... Iwakuni Marine Corps Air 320090001 ..... Fallon, NV Stn, Japan 011716073 ..... Hoover, AL 330360013 ..... New London, NH JA3950000 .... Kadena AF Okinawa, Japan 011730089 ..... Huntsville, AL 341580029 ..... Lakehurst, NJ JA5615000 .... Okinawa Island, Japan 012585089 ..... Redstone Arsenal, AL 342095029 ..... Naval Air Warfare Center, NJ NO6000000 ... Oslo, Norway 040530019 ..... Tucson, AZ 362840103 ..... Huntington, NY 040620027 ..... Yuma, AZ 370885049 ..... Cherry Point, NC BILLING CODE 5001–06–P

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Appendix B: Occupational Series by Occupational Family

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BILLING CODE 5001–06–C quantity, timeliness and/or impact to the objective to what would be expected at this Appendix D: Individual Pay Band Level stated objective. level. • Exhibited the highest standards of • Rating Benchmarks Examples Exhibited the highest standards of professionalism. professionalism. These are examples for illustration Band III purposes only, the actual benchmarks may be Appendix E: Career Stage Rating Level 3: Benchmarks Examples different from what is shown here. These are • an example showing a benchmark for each Effectively achieved the stated objective, These are examples for illustration pay band level in an occupational family: anticipating and overcoming significant obstacles. Adapts established methods and purposes only, the actual benchmarks may be Scientific and Engineering (S&E) (Pay Plan procedures when needed. different from what is shown here. These are DP) • Results were technically sound, accurate, an example showing benchmarks by career thorough, documented, and met applicable Example Rating Benchmarks stage, which may cover multiple pay band authorities, standards, policies, procedures levels in multiple occupational families: Band II and guidelines. Level 3: • Planned, organized prioritized, and Example Rating Benchmarks • With guidance, effectively achieved the scheduled own work activities to deliver the Career Stage: Journey. stated objective. objective in a timely and effective manner, Objective Rating: 1. • With guidance, organized and prioritized making adjustments to respond to changing Performance Standard: own tasks to deliver the objective, adjusting situations and anticipating and overcoming • Failed to achieve all or part of the stated work plans and overcoming obstacles as difficult obstacles as necessary. critical element; or • necessary. Demonstrated high standards of personal • Failed to provide products that were • Demonstrated high standards of personal and professional conduct and represented the sound, accurate, thorough and documented, and professional conduct and represented the organization or work unit effectively. and regularly failed to meet applicable organization or work unit effectively. Level 5: authorities, standards, policies, procedures Level 5: Additions at the Level 5: and guidelines; or Additions at the Level 5: • Contributed results beyond what was • Failed to plan, organize, prioritize, and • Contributed results beyond what was expected; results were far superior in quality, schedule own work activities to deliver the expected; results were far superior in quality, quantity, and/or impact to the stated critical element in a timely and effective

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manner. Relied on others to frequently assist • Planned, organized, prioritized and and/or impact to what would ordinarily be with or redo work assignments; or scheduled own work activities to deliver the expected at this level. • Demonstrated poor cooperation or critical element in a timely and effective • Accomplishments and outcomes were of inability to work with others. manner, making adjustments to respond to such magnitude that they contributed to the Career Stage: Journey. changing situations as necessary. organization exceeding its mission goals and Objective Rating: 3. • Demonstrated high standards of objectives for the year. • Persisted in overcoming obstacles and Performance Standard: teamwork and cooperation. • put forth extra effort to accomplish difficult Effectively accomplished the stated Career Stage: Journey. assignments. critical element by achieving results that Objective Rating: 5. • Represented the organization or work were technically sound, accurate, thorough, Performance Standard: unit effectively through model team and documented and met applicable (Measured in addition to the above) cooperation. authorities, standards, policies, procedures • Achieved outcomes and results that are [FR Doc. 2011–3094 Filed 2–11–11; 8:45 am] and guidelines. far superior in quality, quantity, timeliness BILLING CODE 5001–06–P

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Part V

Department of Housing and Urban Development

Federal Property Suitable as Facilities To Assist the Homeless; Notice

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DEPARTMENT OF HOUSING AND interested in any such property should Dated: February 3, 2011. URBAN DEVELOPMENT send a written expression of interest to Robyn Raysor, HHS, addressed to Theresa Rita, Deputy Director for Special Needs Assistance [Docket No. FR–5477–N–06] Division of Property Management, Program. Federal Property Suitable as Facilities Program Support Center, HHS, Room TITLE V PROPERTIES REPORTED IN YEAR To Assist the Homeless 5B–17, 5600 Fishers Lane, Rockville, 2010 WHICH ARE SUITABLE AND MD 20857; (301) 443–2265. (This is not AVAILABLE AGENCY: Office of the Assistant a toll-free number.) HHS will mail to the Alabama Secretary for Community Planning and interested provider an application Development, HUD. packet, which will include instructions VA ACTION: Notice. for completing the application. In order Land to maximize the opportunity to utilize a VA Medical Center SUMMARY: This Notice identifies Property Number: 97199010053 unutilized, underutilized, excess, and suitable property, providers should submit their written expressions of VAMC surplus Federal property reviewed by Tuskegee Co: Macon AL 36083 HUD for suitability for possible use to interest as soon as possible. For Status: Underutilized assist the homeless. complete details concerning the Comments: 40 acres, buffer to VA Medical Center, potential utilities, undeveloped FOR FURTHER INFORMATION CONTACT: processing of applications, the reader is Juanita Perry, Department of Housing encouraged to refer to the interim rule Alaska governing this program, 24 CFR part and Urban Development, 451 Seventh Army Street, SW., Room 7262, Washington, 581. Building DC 20410; telephone (202) 708–1234; For more information regarding TDD number for the hearing- and particular properties identified in this Bldg. 00001 speech-impaired (202) 708–2565 (these Property Number: 21200340075 Notice (i.e., acreage, floor plan, existing Kiana Natl Guard Armory telephone numbers are not toll-free), or sanitary facilities, exact street address), Kiana AK 99749 call the toll-free Title V information line providers should contact the Status: Excess at 800–927–7588. appropriate landholding agencies at the Comments: 1200 sq. ft., butler bldg., needs SUPPLEMENTARY INFORMATION: In following addresses: Air Force: Mr. repair, off-site use only accordance with 24 CFR part 581 and Robert Moore, Air Force Real Property Bldg. 00001 section 501 of the Stewart B. McKinney Agency, 143 Billy Mitchell Blvd., San Property Number: 21200710051 Homeless Assistance Act (42 U.S.C. Antonio, TX 78226, (210) 925–3047; Holy Cross Armory High Cross AK 99602 11411), as amended, HUD is publishing Army: Ms. Veronica Rines, Department this Notice to identify Federal buildings Status: Excess of the Army, Office of the Assistant Comments: 1200 sq. ft. armory, off-site use and other real property that HUD Chief of Staff for Installation only reviewed in 2009 for suitability for use Management, DAIM–ZS, Room 8536, Bldg. 136 to assist the homeless. The properties 2511 Jefferson Davis Hwy, Arlington, Property Number: 21200820147 were reviewed using information VA 22202; COE: Mr. Scott Whiteford, Ft. Richardson provided to HUD by Federal Army Corps of Engineers, Real Estate, Ft. Richardson AK 99505 landholding agencies regarding Status: Excess unutilized and underutilized buildings CEMP–CR, 441 G Street, NW., Comments: 2383 sq. ft., most recent use— and real property controlled by such Washington, DC 20314; (202) 761–5542; housing, off-site use only GSA: Mr. Gordon Creed, Acting Deputy agencies or by GSA regarding its Arizona inventory of excess or surplus Federal Assistant Commissioner, General Services Administration, Office of Bldg. S–306 property. Property Number: 21199420346 In accordance with 24 CFR 581.3(b) Property Disposal, 18th & F Streets, Yuma Proving Ground landholding agencies are required to NW., Washington, DC 20405; (202) 501– Yuma Co: Yuma/La Paz AZ 85365–9104 notify HUD by December 31, 2008, the 0084; Interior: Mr. Michael Wright, Status: Unutilized current availability status and Acquisition & Property Management, Comments: 4103 sq. ft., 2-story, needs major classification of each property Department of the Interior, 1849 C rehab, off-site use only controlled by the Agencies that were Street, NW., Washington, DC 20240; Bldg. 503, Yuma Proving Ground published by HUD as suitable and (202) 208–5399; Navy: Mr. Albert Property Number: 21199520073 available which remain available for Yuma Co: Yuma AZ 85365–9104 Johnson, Director of Real Estate, Status: Underutilized application for use by the homeless. Department of the Navy, Naval Facilities Comments: 3789 sq. ft., 2-story, major Pursuant to 24 CFR 581.8(d) and (e) Engineering Command, Washington structural changes required to meet floor HUD is required to publish a list of Navy Yard, 1330 Patterson Ave., SW., loading code requirements, presence of those properties reported by the Suite 1000, Washington, DC 20374; asbestos, off-site use only Agencies and a list of suitable/ (202) 685–9305; Veterans Affairs: Mr. Bldg. 43002 unavailable properties including the George L. Szwarcman, Acting Director, Property Number: 21200440066 reasons why they are not available. Real Property, Department of Veterans Fort Huachuca Properties listed as suitable/available Cochise AZ 85613–7010 Affairs, 811 Vermont Avenue, NW., Status: Excess will be available exclusively for Room 555, Washington, DC 20420; (202) homeless use for a period of 60 days Comments: 23,152 sq. ft., presence of 461–8234; (These are not toll-free asbestos/lead paint, most recent use— from the date of this Notice. Where numbers). dining, off-site use only ‘‘ property is described as for off-site use Bldg. 90551 only’’ recipients of the property will be Property Number: 21200920001 required to relocate the building to their Fort Huachuca own site at their own expense. Cochise AZ 85613 Homeless assistance providers Status: Excess

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Comments: 1270 sq. ft., most recent use— Bldg. 00052 Comments: 2.07 acres, mineral rights, utility office, off-site use only Property Number: 21200930002 easements Moffett Community Housing GSA Number: 9–B–CA–1673–AA California Vernon Ave. Colorado Air Force Santa Clara CA 94035 Facility 1 Status: Unutilized Air Force Property Number: 18200830012 Comments: 4530 sq ft., most recent use— Building mini mart/meeting rooms, off-site use only OTHB Radar Site 7 Bldgs. Tulelake CA 91634 COE Property Number: 18201020002 Status: Unutilized 4 Bldgs. U.S. Air Force Academy Comments: 7920 sq. ft., most recent use— El Paso CO 80840 communications Property Number: 31200840001 OTH–B Radar Site Location: 6501, 6502, 6503, 6504, 6505, 6507, Facility 2 Tulelake CA 91634 and 6508 Property Number: 18200830014 Status: Unutilized Status: Unutilized OTHB Radar Site Comments: Most recent use— Comments: 2222 sq. ft. each Tulelake CA 91634 Bldg. 6506 Status: Unutilized communications/vehicle maint., off-site use only Property Number: 18201020019 Comments: 900 sq. ft., most recent use—veh US Air Force Academy maint shop GSA El Paso CO 80840 Facilities 3, 4 Land Status: Unutilized Property Number: 18200830015 Comments: 2222 sq. ft. OTHB Radar Site Drill Site #3A Tulelake CA 91634 Property Number: 54201040004 Army Status: Unutilized Ford City CA 93268 Bldg. 00127 Comments: 4160 sq. ft. each, most recent Status: Surplus Property Number: 21200420179 use—communications Comments: 2.07 acres, mineral rights, utility Pueblo Chemical Depot easements Facility 1 Pueblo CO 81006 GSA Number: 9–B–CA–1673–AG Property Number: 18200830016 Status: Unutilized OTHB Radar Site Drill Site #4 Comments: 8067 sq. ft., presence of asbestos, Christmas Valley CA 97641 Property Number: 54201040005 most recent use—barracks, off-site use only Status: Unutilized Ford City CA 93268 Bldg. 01516 Comments: 16,566 sq. ft., most recent use— Status: Surplus Property Number: 21200640116 communications Comments: 2.21 acres, mineral rights, utility Fort Carson easements Facility 2 El Paso CO 80913 Property Number: 18200830017 GSA Number: 9–B–CA–1673–AB Status: Unutilized OTHB Radar Site Drill Site #6 Comments: 723 sq. ft., needs repair, most Christmas Valley CA 97641 Property Number: 54201040006 recent use—storage, off-site use only Status: Unutilized Ford City CA 93268 VA Comments: 900 sq. ft., most recent use—veh Status: Surplus maint shop Comments: 2.13 acres, mineral rights, utility Bldg. 2 Facility 4 easements Property Number: 97200430001 Property Number: 18200830018 GSA Number: 9–B–CA–1673–AC VAMC OTHB Radar Site Drill Site #9 2121 North Avenue Christmas Valley CA 97641 Property Number: 54201040007 Grand Junction Co: Mesa CO 81501 Status: Unutilized Ford City CA 93268 Status: Unutilized Comments: 14,190 sq. ft., most recent use— Status: Surplus Comments: 3298 sq. ft., needs major rehab, communications Comments: 2.07 acres, mineral rights, utility presence of asbestos/lead paint Facility 6 easements Bldg. 3 Property Number: 18200830019 GSA Number: 9–B–CA–1673–AH Property Number: 97200430002 OTHB Radar Site Drill Site #20 VAMC Christmas Valley CA 97641 Property Number: 54201040008 2121 North Avenue Status: Unutilized Ford City CA 93268 Grand Junction Co: Mesa CO 81501 Comments: 14,190 sq. ft., most recent use— Status: Surplus Status: Unutilized transmitter bldg. Comments: 2.07 acres, mineral rights, utility Comments: 7275 sq. ft., needs major rehab, presence of asbestos/lead paint Land easements GSA Number: 9–B–CA–1673–AD Parcels L1 & L2 Georgia Drill Site #22 Property Number: 18200820034 Army George AFB Property Number: 54201040009 Victorville CA 92394 Ford City CA 93268 Bldg. 322 Status: Excess Status: Surplus Property Number: 21199720156 Comments: 157 acres/desert, pump-and-treat Comments: 2.07 acres, mineral rights, utility Fort Benning system, groundwater restrictions, AF easements Ft. Benning Co: Muscogee GA 31905 access rights, access restrictions, GSA Number: 9–B–CA–1673–AF Status: Unutilized environmental concerns Drill Site #24 Comments: 9600 sq. ft., needs rehab, most Property Number: 54201040010 recent use—admin., off-site use only Army Ford City CA 93268 Bldg. 2593 Building Status: Surplus Property Number: 21199720167 Bldgs. 18026, 18028 Comments: 2.06 acres, mineral rights, utility Fort Benning Property Number: 21200130081 easements Ft. Benning Co: Muscogee GA 31905 Camp Roberts GSA Number: 9–B–CA–1673–AE Status: Unutilized Monterey CA 93451–5000 Drill Site #26 Comments: 13644 sq. ft., needs rehab, most Status: Excess Property Number: 54201040011 recent use—parachute shop, off-site use Comments: 2024 sq. ft. sq. ft., concrete, poor Ford City CA 93268 only condition, off-site use only Status: Surplus Bldg. 2595

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Property Number: 21199720168 Fort Stewart Bldg. 00129 Fort Benning Ft. Stewart Co: Liberty GA 31314 Property Number: 21200740053 Ft. Benning Co: Muscogee GA 31905 Status: Excess Hunter Army Airfield Status: Unutilized Comments: 9360 sq. ft., most recent use— Chatham GA 31409 Comments: 3356 sq. ft., needs rehab, most warehouse, off-site use only Status: Excess recent use—chapel, off-site use only Bldg. 00924 Comments: 4815 sq. ft., presence of asbestos, Bldg. 4232 Property Number: 21200510065 most recent use—religious education Property Number: 21199830291 Fort Stewart facility, off-site use only Fort Benning Ft. Stewart Co: Liberty GA 31314 Bldg. 00145 null Co: Muscogee GA 31905 Status: Excess Property Number: 21200740054 Status: Unutilized Comments: 9360 sq. ft., most recent use— Hunter Army Airfield Comments: 3720 sq. ft., needs rehab, most warehouse, off-site use only Chatham GA 31409 recent use—maint. bay, off-site use only Bldg. 08585 Status: Excess Bldgs. 5974–5978 Property Number: 21200530078 Comments: 11590 sq. ft., presence of Property Number: 21199930135 Hunter Army Airfield asbestos, most recent use—post chapel, off- Fort Benning Savannah Co: Chatham GA 31409 site use only Ft. Benning Co: Muscogee GA 31905 Status: Excess Bldg. 00811 Status: Unutilized Comments: 165 sq. ft., most recent use— Property Number: 21200740055 Comments: 400 sq. ft., most recent use— plant, off-site use only Hunter Army Airfield storage, off-site use only Bldg. 01150 Chatham GA 31409 Bldg. 5993 Property Number: 21200610037 Status: Excess Property Number: 21199930136 Hunter Army Airfield Comments: 42853 sq. ft., most recent use— Fort Benning Savannah Co: Chatham GA 31409 co hq bldg, off-site use only Ft. Benning Co: Muscogee GA 31905 Status: Excess Bldg. 00812 Status: Unutilized Comments: 137 sq. ft., most recent use—flam Property Number: 21200740056 Comments: 960 sq. ft., most recent use— mat storage, off-site use only Hunter Army Airfield storage, off-site use only Bldg. 01151 Chatham GA 31409 Bldg. T–1003 Property Number: 21200610038 Status: Excess Property Number: 21200030085 Hunter Army Airfield Comments: 1080 sq. ft., most recent use— Fort Stewart Savannah Co: Chatham GA 31409 power plant, off-site use only Hinesville Co: Liberty GA 31514 Status: Excess Bldg. 00850 Status: Excess Comments: 78 sq. ft., most recent use—flam Property Number: 21200740057 Comments: 9267 sq. ft., poor condition, most mat storage, off-site use only Hunter Army Airfield recent use—admin., off-site use only Bldg. 01153 Chatham GA 31409 Bldg. T0130 Property Number: 21200610039 Status: Excess Property Number: 21200230041 Hunter Army Airfield Comments: 108,287 sq. ft., presence of Fort Stewart Savannah Co: Chatham GA 31409 asbestos, most recent use—aircraft hangar, Hinesville Co: Liberty GA 31314–5136 Status: Excess off-site use only Status: Excess Comments: 211 sq. ft., most recent use—flam Bldg. 00860 Comments: 10,813 sq. ft., off-site use only mat storage, off-site use only Property Number: 21200740058 Bldg. T0157 Bldg. 01530 Hunter Army Airfield Property Number: 21200230042 Property Number: 21200610048 Chatham GA 31409 Fort Stewart Fort Stewart Status: Excess Hinesville Co: Liberty GA 31314–5136 Liberty GA 31314 Comments: 10679 sq. ft., presence of Status: Excess Status: Excess asbestos, most recent use—maint. hangar, Comments: 1440 sq. ft., off-site use only Comments: off-site use only Bldgs. T291, T292 Bldg. 08032 Bldg. 01028 Property Number: 21200230044 Property Number: 21200610051 Property Number: 21200740059 Fort Stewart Fort Stewart Hunter Army Airfield Hinesville Co: Liberty GA 31314–5136 Liberty GA 31314 Chatham GA 31409 Status: Excess Status: Excess Status: Excess Comments: 5220 sq. ft. each, off-site use only Comments: 2592 sq. ft., needs rehab, most Comments: 870 sq ft., most recent use— Bldg. T0295 recent use—storage/stable, off-site use only storage, off-site use only Property Number: 21200230045 Bldg. 07783 Bldg. 00955 Fort Stewart Property Number: 21200640093 Property Number: 21200740060 Hinesville Co: Liberty GA 31314–5136 Fort Stewart Fort Stewart Status: Excess Hinesville GA 31314 Hinesville GA 31314 Comments: 5220 sq. ft., off-site use only Status: Excess Status: Excess Bldg. 4476 Comments: 8640 sq. ft., most recent use— Comments: 120 sq. ft., most recent use— Property Number: 21200420034 maintenance hangar, off-site use only storage, off-site use only Fort Benning Bldg. 08061 Bldg. 00957 Ft. Benning Co: Chattachoochee GA 31905 Property Number: 21200640094 Property Number: 21200740061 Status: Excess Fort Stewart Fort Stewart Comments: 3148 sq. ft., most recent use— Hinesville GA 31314 Hinesville GA 31314 veh. maint. shop, off-site use only Status: Excess Status: Excess Bldg. 9029 Comments: 1296 sq. ft., most recent use— Comments: 6072 sq. ft., most recent use— Property Number: 21200420050 weather station, off-site use only recycling facility, off-site use only Fort Benning Bldg. 00100 Bldg. 00971 Ft. Benning Co: Chattachoochee GA 31905 Property Number: 21200740052 Property Number: 21200740062 Status: Excess Hunter Army Airfield Fort Stewart Comments: 7356 sq. ft., most recent use— Chatham GA 31409 Hinesville GA 31314 heat plant bldg., off-site use only Status: Excess Status: Excess Bldg. T924 Comments: 10893 sq. ft., most recent use— Comments: 4000 sq. ft., most recent use— Property Number: 21200420194 battalion hdqts., off-site use only vehicle maint., off-site use only

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Bldg. 01015 Status: Excess Hawaii Property Number: 21200740063 Comments: 4241 sq. ft., most recent use— Air Force Fort Stewart training, off-site use only Hinesville GA 31314 Bldg. 10802 Bldg. 849 Property Number: 18200330008 Status: Excess Property Number: 21200810047 Bellows AFS Comments: 7496 sq. ft., most recent use— Ft. Benning Bellows AFS HI storage, off-site use only Chattahoochie GA 31905 Bldg. 01209 Status: Unutilized Status: Excess Comments: 462 sq. ft., concrete storage Property Number: 21200740064 Comments: 3182 sq. ft., most recent use— facility, off-site use only Fort Stewart storage, off-site use only Hinesville GA 31314 Bldg. 00926 Army Status: Excess Property Number: 21200840061 Comments: 4786 sq. ft., presence of asbestos, P–88 Hunter Army Airfield most recent use—vehicle maint., off-site Property Number: 21199030324 Savannah GA 31409 use only Aliamanu Military Reservation Status: Excess Honolulu Co: Honolulu HI 96818 Bldg. 07335 Comments: 1752 sq. ft., most recent use—BN, Location: Property Number: 21200740065 HQ bldg., off-site use only Approximately 600 feet from Main Gate on Fort Stewart Bldg. 01021 Aliamanu Drive. Hinesville GA 31314 Status: Unutilized Status: Excess Property Number: 21200840062 Hunter Army Airfield Comments: 45,216 sq. ft. underground tunnel Comments: 4400 sq. ft., most recent use— complex, pres. of asbestos clean-up chapel, off-site use only Savannah GA 31409 Status: Excess required of contamination, use of respirator Bldg. 245 Comments: 6855 sq. ft., most recent use— required by those entering property, use Property Number: 21200740178 admin., presence of asbestos, off-site use limitations Fort Benning only Ft. Benning GA 31905 Illinois Bldg. 07335 Status: Unutilized Bldg. AR112 Property Number: 21200840063 Comments: 1102 sq. ft., most recent use—fld Property Number: 21200110081 Fort Stewart ops, off-site use only Sheridan Reserve Hinesville GA 31314 Bldg. 2748 Arlington Heights IL 60052–2475 Status: Excess Property Number: 21200740180 Status: Unutilized Fort Benning Comments: 4400 sq. ft., most recent use— Comments: 1000 sq. ft., off-site use only chapel, off-site use only Ft. Benning GA 31905 Bldgs. 634, 639 Status: Unutilized Bldg. 07778 Property Number: 21200740186 Comments: 3990 sq. ft., most recent use— Property Number: 21200840064 Fort Sheridan office, off-site use only Fort Stewart Ft. Sheridan IL 60037 Bldg. 3866 Hinesville GA 31314 Status: Unutilized Property Number: 21200740182 Status: Excess Comments: 3731/3706 sq. ft., most recent Fort Benning Comments: 1189 sq. ft., most recent use— use—classroom/storage, off-site use only Ft. Benning GA 31905 admin., off-site use only Status: Unutilized 7 Bldgs. Indiana Comments: 944 sq. ft., most recent use— Property Number: 21200840065 VA office, off-site use only Fort Stewart Bldg. 105, VAMC Bldg. 8682 Hinesville GA 31314 Property Number: 97199230006 Property Number: 21200740183 Location: 12601, 12602, 12603, 12605, 12606, East 38th Street Fort Benning 12607, 12609 Marion Co: Grant IN 46952 Ft. Benning GA 31905 Status: Excess Status: Excess Status: Unutilized Comments: 2953 sq. ft. each, presence of Comments: 310 sq. ft., 1 story stone structure, Comments: 780 sq. ft., most recent use— asbestos, most recent use—barracks, off- no sanitary or heating facilities, Natl site use only admin., off-site use only Register of Historic Places 9 Bldgs. Bldg. 10800 Bldg. 10 Property Number: 21200740184 Property Number: 21200840066 Property Number: 97199810002 Fort Benning Fort Stewart VA Northern Indiana Health Care System Ft. Benning GA 31905 Hinesville GA 31314 Marion Campus, 1700 East 38th Street Status: Unutilized Location: 12610, 12611, 12612, 12613, 12614, Marion Co: Grant IN 46953 Comments: 16,628 sq. ft., off-site use only 12615, 12616, 12617, 12618 Status: Underutilized Bldgs. 11302, 11303, 11304 Status: Excess Comments: 16,361 sq. ft., presence of Property Number: 21200740185 Comments: 2953 sq. ft., presence of asbestos, asbestos, most recent use—psychiatric Fort Benning most recent use—barracks, off-site use only ward, National Register of Historic Places Ft. Benning GA 31905 Bldg. 12619 Bldg. 11 Status: Unutilized Property Number: 21200840067 Property Number: 97199810003 Comments: Various sq. ft., most recent use— Fort Stewart VA Northern Indiana Health Care System ACS center, off-site use only Hinesville GA 31314 Marion Campus, 1700 East 38th Street Bldg. 0297 Status: Excess Marion Co: Grant IN 46953 Property Number: 21200810045 Comments: 3099 sq. ft., presence of asbestos, Status: Underutilized Ft. Benning most recent use—barracks, off-site use only Comments: 16,361 sq. ft., presence of Chattahoochie GA 31905 Bldg. 12682 asbestos, most recent use—psychiatric Status: Excess Property Number: 21200840068 ward, National Register of Historic Places Comments: 4839 sq. ft., most recent use— Fort Stewart Bldg. 18 riding stable, off-site use only Hinesville GA 31314 Property Number: 97199810004 Bldg. 3819 Status: Excess VA Northern Indiana Health Care System Property Number: 21200810046 Comments: 120 sq. ft., presence of asbestos, Marion Campus, 1700 East 38th Street Ft. Benning most recent use—fuel/POL bldg., off-site Marion Co: Grant IN 46953 Chattahoochie GA 31905 use only Status: Underutilized

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Comments: 13,802 sq. ft., presence of Middletown Co: Des Moines IA 52638 Barkley Lake, Kentucky and Tennessee asbestos, most recent use—psychiatric Status: Unutilized Cadiz Co: Trigg KY 42211 ward, National Register of Historic Places Comments: 2581 sq. ft. residence, presence of Location: 41⁄2 miles in a southeasterly Bldg. 25 lead paint, possible asbestos direction from the village of Rockcastle Property Number: 97199810005 Bldg. 00691 Status: Excess VA Northern Indiana Health Care System Property Number: 21200520113 Comments: 5.44 acres; steep and wooded Marion Campus, 1700 East 38th Street Iowa Army Ammo Plant Tract 2915 Marion Co: Grant IN 46953 Middletown Co: Des Moines IA 52638 Property Number: 31199010029 Status: Unutilized Status: Unutilized Barkley Lake, Kentucky and Tennessee Comments: 32,892 sq. ft., presence of Comments: 2581 sq. ft., presence of asbestos/ Cadiz Co: Trigg KY 42211 asbestos, most recent use—psychiatric lead paint, most recent use—residential Location: 61⁄2 miles west of Cadiz ward, National Register of Historic Places Status: Excess VA Bldg. 1 Comments: 5.76 acres; steep and wooded; no Property Number: 97200310001 Land utilities N. Indiana Health Care System 40.66 acres Tract 2702 Marion Co: Grant IN 46952 Property Number: 97199740002 Property Number: 31199010031 Status: Unutilized VA Medical Center Barkley Lake, Kentucky and Tennessee Comments: 20,287 sq. ft., needs extensive 1515 West Pleasant St. Cadiz Co: Trigg KY 42211 repairs, presence of asbestos, most recent Knoxville Co: Marion IA 50138 Location: 1 mile in a southerly direction from use—patient ward Status: Unutilized the village of Rockcastle Bldg. 3 Comments: Golf course, easement Status: Excess Comments: 4.90 acres; wooded; no utilities Property Number: 97200310002 requirements Tract 4318 N. Indiana Health Care System Kansas Marion Co: Grant IN 46952 Property Number: 31199010032 Status: Unutilized Army Barkley Lake, Kentucky and Tennessee Canton Co: Trigg KY 42212 Comments: 20,550 sq. ft., needs extensive Building repairs, presence of asbestos, most recent Location: Trigg Co. adjoining the city of use—patient ward Bldgs. 7224, 7227, 7612, 7618 Canton, KY. on the waters of Hopson Creek Property Number: 21200930010 Status: Excess Bldg. 4 Fort Riley Comments: 8.24 acres; steep and wooded Property Number: 97200310003 Geary KS 66442 N. Indiana Health Care System Tract 4502 Status: Unutilized Property Number: 31199010033 Marion Co: Grant IN 46952 Comments: 52,027/41,892 sq. ft., concrete Status: Unutilized Barkley Lake, Kentucky and Tennessee block, most recent use—residential, off-site Comments: 20,550 sq .ft., needs extensive Canton Co: Trigg KY 42212 use only 1 repairs, presence of asbestos, most recent Location: 3 ⁄2 miles in a southerly direction use—patient ward Kentucky from Canton, KY Status: Excess Bldg. 13 COE Comments: 4.26 acres; steep and wooded Property Number: 97200310004 N. Indiana Health Care System Green River Lock #3 Tract 4611 Marion Co: Grant IN 46952 Property Number: 31199010022 Property Number: 31199010034 Status: Unutilized Rochester Co: Butler KY 42273 Barkley Lake, Kentucky and Tennessee Comments: 8971 sq. ft., needs extensive Location: SR 70 west from Morgantown, KY., Canton Co: Trigg KY 42212 repairs, presence of asbestos, most recent approximately 7 miles to site. Location: 5 miles south of Canton, KY use—office Status: Unutilized Status: Excess Comments: 980 sq. ft.; 2 story wood frame; Comments: 10.51 acres; steep and wooded; Bldg. 42 no utilities Property Number: 97200310007 two story residence; potential utilities; N. Indiana Health Care System needs major rehab Tract 4619 Marion Co: Grant IN 46952 Land Property Number: 31199010035 Barkley Lake, Kentucky and Tennessee Status: Unutilized Tract 2625 Comments: 5025 sq. ft., needs extensive Canton Co: Trigg KY 42212 Property Number: 31199010025 Location: 4 1⁄2 miles south from Canton, KY repairs, presence of asbestos, most recent Barkley Lake, Kentucky, and Tennessee use—office Status: Excess Cadiz Co: Trigg KY 42211 Comments: 2.02 acres; steep and wooded; no Bldg. 60 Location: Adjoining the village of Rockcastle utilities Property Number: 97200310008 Status: Excess Tract 4817 N. Indiana Health Care System Comments: 2.57 acres; rolling and wooded Marion Co: Grant IN 46952 Property Number: 31199010036 Tract 2709–10 and 2710–2 Barkley Lake, Kentucky and Tennessee Status: Unutilized Property Number: 31199010026 Comments: 18,126 sq. ft., needs extensive Canton Co: Trigg KY 42212 Barkley Lake, Kentucky and Tennessee Location: 61⁄2 miles south of Canton, KY repairs, presence of asbestos, most recent Cadiz Co: Trigg KY 42211 use—office Status: Excess Location: 21⁄2 miles in a southerly direction Comments: 1.75 acres; wooded Bldg. 122 from the village of Rockcastle Property Number: 97200310009 Tract 1217 Status: Excess Property Number: 31199010042 N. Indiana Health Care System Comments: 2.00 acres; steep and wooded Marion Co: Grant IN 46952 Barkley Lake, Kentucky and Tennessee Tract 2708–1 and 2709–1 Status: Unutilized Eddyville Co: Lyon KY 42030 Property Number: 31199010027 Comments: 37,135 sq. ft., needs extensive Location: On the north side of the Illinois Barkley Lake, Kentucky and Tennessee repairs, presence of asbestos, most recent Central Railroad Cadiz Co: Trigg KY 42211 Status: Excess use—dining hall/kitchen Location: 21⁄2 miles in a southerly direction Comments: 5.80 acres; steep and wooded Iowa from the village of Rockcastle Tract 1906 Status: Excess Property Number: 31199010044 Army Comments: 3.59 acres; rolling and wooded; Barkley Lake, Kentucky and Tennessee Bldg. 00691 no utilities Eddyville Co: Lyon KY 42030 Property Number: 21200510073 Tract 2800 Location: Approximately 4 miles east of Iowa Army Ammo Plant Property Number: 31199010028 Eddyville, KY

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Status: Excess Comments: 5.5 acres; wooded; no utilities Status: Unutilized Comments: 25.86 acres; rolling steep and Tract 215 Comments: 0.70 acres, wooded; subject to partially wooded; no utilities Property Number: 31199010053 utility easements Tract 1907 Barkley Lake, Kentucky and Tennessee Tract 241–B Property Number: 31199010045 Grand Rivers Co: Lyon KY 42045 Property Number: 31199011624 Barkley Lake, Kentucky and Tennessee Location: 5 miles southwest of Kuttawa Barkley Lake, Kentucky and Tennessee Eddyville Co: Lyon KY 42038 Status: Excess Grand Rivers Co: Lyon KY 42045 Location: On the waters of Pilfen Creek, 4 Comments: 1.40 acres; wooded; no utilities Location: South of Old Henson Ferry Road, miles east of Eddyville, KY Tract 241 6 miles west of Kuttawa, KY Status: Excess Property Number: 31199010054 Status: Excess Comments: 8.71 acres; rolling steep and Barkley Lake, Kentucky and Tennessee Comments: 11.16 acres; steep and wooded; wooded; no utilities Grand Rivers Co: Lyon KY 42045 subject to utility easements Tract 2001 #1 Location: Old Henson Ferry Road, 6 miles Tracts 212 and 237 Property Number: 31199010046 west of Kuttawa, KY Property Number: 31199011625 Barkley Lake, Kentucky and Tennessee Status: Excess Barkley Lake, Kentucky and Tennessee Eddyville Co: Lyon KY 42030 Comments: 1.26 acres; steep and wooded; no Grand Rivers Co: Lyon KY 42045 Location: Approximately 41⁄2 miles east of utilities Location: Old Henson Ferry Road, 6 miles Eddyville, KY Tracts 306, 311, 315 and 325 west of Kuttawa, KY Status: Excess Property Number: 31199010055 Status: Excess Comments: 47.42 acres; steep and wooded; Barkley Lake, Kentucky and Tennessee Comments: 2.44 acres; steep and wooded; no utilities Grand Rivers Co: Lyon KY 42045 subject to utility easements Tract 2001 #2 Location: 2.5 miles southwest of Kuttawa, Tract 215–B Property Number: 31199010047 KY. on the waters of Cypress Creek Property Number: 31199011626 Barkley Lake, Kentucky and Tennessee Status: Excess Barkley Lake, Kentucky and Tennessee Eddyville Co: Lyon KY 42030 Comments: 38.77 acres; steep and wooded; Grand Rivers Co: Lyon KY 42045 Location: Approximately 41⁄2 miles east of no utilities Location: 5 miles southwest of Kuttawa Eddyville, KY Tracts 2305, 2306, and 2400–1 Status: Excess Status: Excess Property Number: 31199010056 Comments: 1.00 acres; wooded; subject to Comments: 8.64 acres; steep and wooded; no Barkley Lake, Kentucky and Tennessee utility easements utilities Eddyville Co: Lyon KY 42030 Tract 233 Tract 2005 Location: 61⁄2 miles southeasterly of Property Number: 31199011627 Property Number: 31199010048 Eddyville, KY Barkley Lake, Kentucky and Tennessee Barkley Lake, Kentucky and Tennessee Status: Excess Grand Rivers Co: Lyon KY 42045 Eddyville Co: Lyon KY 42030 Comments: 97.66 acres; steep rolling and Location: 5 miles southwest of Kuttawa Location: Approximately 51⁄2 miles east of wooded; no utilities Status: Excess Eddyville, KY Tracts 5203 and 5204 Comments: 1.00 acres; wooded; subject to Status: Excess Property Number: 31199010058 utility easements Comments: 4.62 acres; steep and wooded; no Barkley Lake, Kentucky and Tennessee Tract N–819 utilities Linton Co: Trigg KY 42212 Property Number: 31199140009 Tract 2307 Location: Village of Linton, KY state highway Dale Hollow Lake Project Property Number: 31199010049 1254 Illwill Creek, Hwy 90 Barkley Lake, Kentucky and Tennessee Status: Excess Hobart Co: Clinton KY 42601 Eddyville Co: Lyon KY 42030 Comments: 0.93 acres; rolling, partially Status: Underutilized Location: Approximately 71⁄2 miles wooded; no utilities Comments: 91 acres, most recent use— southeasterly of Eddyville, KY Tract 5240 hunting, subject to existing easements Status: Excess Property Number: 31199010059 Louisiana Comments: 11.43 acres; steep; rolling and Barkley Lake, Kentucky and Tennessee wooded; no utilities Linton Co: Trigg KY 42212 Army Tract 2403 Location: 1 mile northwest of Linton, KY Building Status: Excess Property Number: 31199010050 Bldg. 8423, Fort Polk Comments: 2.26 acres; steep and wooded; no Barkley Lake, Kentucky and Tennessee Property Number: 21199640528 utilities. Eddyville Co: Lyon KY 42030 Ft. Polk Co: Vernon Parish LA 71459 Location: 7 miles southeasterly of Eddyville, Tract 4628 Status: Underutilized KY Property Number: 31199011621 Comments: 4172 sq. ft., most recent use— Status: Excess Barkley Lake, Kentucky and Tennessee barracks Comments: 1.56 acres; steep and wooded; no Canton Co: Trigg KY 42212 Bldg. T7125 utilities Location: 41⁄2 miles south from Canton, KY Property Number: 21200540088 Status: Excess Tract 2504 Fort Polk Comments: 3.71 acres; steep and wooded; Property Number: 31199010051 Ft. Polk LA 71459 subject to utility easements Barkley Lake, Kentucky and Tennessee Status: Unutilized Eddyville Co: Lyon KY 42030 Tract 4619–B Comments: 1875 sq. ft., off-site use only Location: 9 miles southeasterly of Eddyville, Property Number: 31199011622 Bldgs. T7163, T8043 KY Barkley Lake, Kentucky and Tennessee Property Number: 21200540089 Status: Excess Canton Co: Trigg KY 42212 Fort Polk Comments: 24.46 acres; steep and wooded; Location: 41⁄2 miles south from Canton, KY Ft. Polk LA 71459 no utilities Status: Excess Status: Unutilized Comments: 1.73 acres; steep and wooded; Tract 214 Comments: 4073/1923 sq. ft., off-site use only Property Number: 31199010052 subject to utility easements Barkley Lake, Kentucky and Tennessee Tract 2403–B Maine Grand Rivers Co: Lyon KY 42045 Property Number: 31199011623 Location: South of the Illinois Central Barkley Lake, Kentucky and Tennessee Air Force Railroad, 1 mile east of the Cumberland Eddyville Co: Lyon KY 42038 Bldgs 1, 2, 3, 4 River Location: 7 miles southeasterly from Property Number: 18200840009 Status: Excess Eddyville, KY OTH–B Radar Site

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Columbia Falls ME Comments: 7740 sq. ft., needs rehab, possible Status: Unutilized Status: Unutilized asbestos/lead paint, most recent use— Comments: 1191 sq. ft., needs rehab, most Comments: various sq. ft., most recent use— storage, offsite use only recent use—storage, off-site use only storage/office Bldg. 00375 Bldg. 0449A Property Number: 21200320107 Property Number: 21200330112 Maryland Aberdeen Proving Grounds Aberdeen Proving Grounds Army Aberdeen Co: Harford MD 21005 Aberdeen Co: Harford MD 21005 Status: Unutilized Status: Unutilized Bldg. 0459B Comments: 64 sq. ft., most recent use— Comments: 143 sq. ft., needs rehab, most Property Number: 21200120106 storage, off-site use only recent use—substation switch bldg., off-site Aberdeen Proving Ground use only Aberdeen Co: Harford MD 21005–5001 Bldg. 0385A Status: Unutilized Property Number: 21200320110 Bldg. 0460 Comments: 225 sq. ft., poor condition, most Aberdeen Proving Grounds Property Number: 21200330114 recent use—equipment bldg., off-site use Aberdeen Co: Harford MD 21005 Aberdeen Proving Grounds only Status: Unutilized Aberdeen Co: Harford MD 21005 Comments: 944 sq. ft., off-site use only Status: Unutilized Bldg. 00785 Comments: 1800 sq. ft., needs rehab, most Property Number: 21200120107 Bldg. 00523 recent use—electrical EQ bldg., off-site use Aberdeen Proving Ground Property Number: 21200320113 only Aberdeen Co: Harford MD 21005–5001 Aberdeen Proving Grounds Status: Unutilized Aberdeen Co: Harford MD 21005 Bldg. 00914 Comments: 160 sq. ft., poor condition, most Status: Unutilized Property Number: 21200330118 recent use—shelter, off-site use only Comments: 3897 sq. ft., most recent use— Aberdeen Proving Grounds paint shop, off-site use only Aberdeen Co: Harford MD 21005 Bldg. E5239 Status: Unutilized Property Number: 21200120113 Bldg. 0700B Comments: Needs rehab, most recent use— Aberdeen Proving Ground Property Number: 21200320121 safety shelter, off-site use only Aberdeen Co: Harford MD 21005–5001 Aberdeen Proving Grounds Status: Unutilized Aberdeen Co: Harford MD 21005 Bldg. 00915 Comments: 230 sq. ft., most recent use— Status: Unutilized Property Number: 21200330119 storage, off-site use only Comments: 505 sq. ft., off-site use only Aberdeen Proving Grounds Aberdeen Co: Harford MD 21005 Bldg. E5317 Bldg. 01113 Status: Unutilized Property Number: 21200120114 Property Number: 21200320128 Comments: 247 sq. ft., needs rehab, most Aberdeen Proving Ground Aberdeen Proving Grounds recent use—storage, off-site use only Aberdeen Co: Harford MD 21005–5001 Aberdeen Co: Harford MD 21005 Status: Unutilized Status: Unutilized Bldg. 01189 Comments: 3158 sq. ft., presence of asbestos/ Comments: 1012 sq. ft., off-site use only Property Number: 21200330126 lead paint, most recent use—lab, off-site Bldgs. 01124, 01132 Aberdeen Proving Grounds use only Property Number: 21200320129 Aberdeen Co: Harford MD 21005 Status: Unutilized Bldg. E5637 Aberdeen Proving Grounds Comments: 800 sq. ft., needs rehab, most Property Number: 21200120115 Aberdeen Co: Harford MD 21005 recent use—range bldg., off-site use only Aberdeen Proving Ground Status: Unutilized Aberdeen Co: Harford MD 21005–5001 Comments: 740/2448 sq. ft., most recent Bldg. E1413 Status: Unutilized use—lab, off-site use only Property Number: 21200330127 Comments: 312 sq. ft., presence of asbestos/ Bldg. 03558 Aberdeen Proving Grounds lead paint, most recent use—lab, off-site Property Number: 21200320133 Aberdeen Co: Harford MD 21005 use only Aberdeen Proving Grounds Status: Unutilized Comments: Needs rehab, most recent use— Bldg. 219 Aberdeen Co: Harford MD 21005 Property Number: 21200140078 Status: Unutilized observation tower, off-site use only Ft. George G. Meade Comments: 18,000 sq. ft., most recent use— Bldg. E3175 Ft. Meade Co: Anne Arundel MD 20755 storage, off-site use only Property Number: 21200330134 Status: Unutilized Bldg. 05262 Aberdeen Proving Grounds Comments: 8142 sq. ft., presence of asbestos/ Property Number: 21200320136 Aberdeen Co: Harford MD 21005 lead paint, most recent use—admin., off- Aberdeen Proving Grounds Status: Unutilized site use only Aberdeen Co: Harford MD 21005 Comments: 1296 sq. ft., needs rehab, most Bldg. 294 Status: Unutilized recent use—hazard bldg., off-site use only Property Number: 21200140081 Comments: 864 sq. ft., most recent use— 4 Bldgs. Ft. George G. Meade storage, off-site use only Property Number: 21200330135 Ft. Meade Co: Anne Arundel MD 20755 Bldg. 05608 Aberdeen Proving Grounds Status: Unutilized Property Number: 21200320137 Aberdeen Co: Harford MD 21005 Comments: 3148 sq. ft., presence of asbestos/ Aberdeen Proving Grounds Location: E3224, E3228, E3230, E3232, E3234 lead paint, most recent use—entomology Aberdeen Co: Harford MD 21005 Status: Unutilized facility, offsite use only Status: Unutilized Comments: sq. ft. varies, needs rehab, most Bldg. 1007 Comments: 1100 sq. ft., most recent use— recent use—lab test bldgs., off-site use only Property Number: 21200140085 maint bldg., off-site use only Bldg. E3241 Ft. George G. Meade Bldg. E5645 Property Number: 21200330136 Ft. Meade Co: Anne Arundel MD 20755 Property Number: 21200320150 Aberdeen Proving Grounds Status: Unutilized Aberdeen Proving Grounds Aberdeen Co: Harford MD 21005 Comments: 3108 sq. ft., presence of asbestos/ Aberdeen Co: Harford MD 21005 Status: Unutilized lead paint, most recent use—storage, off- Status: Unutilized Comments: 592 sq. ft., needs rehab, most site use only Comments: 548 sq. ft., most recent use— recent use—medical res bldg., off-site use Bldg. 2214 storage, off-site use only only Property Number: 21200230054 Bldg. 00435 Bldg. E3300 Fort George G. Meade Property Number: 21200330111 Property Number: 21200330139 Fort Meade Co: Anne Arundel MD 20755 Aberdeen Proving Grounds Aberdeen Proving Grounds Status: Unutilized Aberdeen Co: Harford MD 21005 Aberdeen Co: Harford MD 21005

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Status: Unutilized Bldg. E5609 Property Number: 21200420057 Comments: 44,352 sq. ft., needs rehab, most Property Number: 21200330167 Aberdeen Proving Ground recent use—chemistry lab, off-site use only Aberdeen Proving Grounds Harford MD 21005 Bldg. E3335 Aberdeen Co: Harford MD 21005 Status: Unutilized Property Number: 21200330144 Status: Unutilized Comments: 10067 sq. ft., most recent use— Aberdeen Proving Grounds Comments: 2053 sq. ft., needs rehab, most maintenance, off-site use only Aberdeen Co: Harford MD 21005 recent use—storage, off-site use only Bldg. E5876 Status: Unutilized Bldg. E5611 Property Number: 21200440073 Comments: 400 sq. ft., needs rehab, most Property Number: 21200330168 Aberdeen Proving Grounds recent use—storage, off-site use only Aberdeen Proving Grounds Aberdeen Co: Harford MD 21005 Bldgs. E3360, E3362, E3464 Aberdeen Co: Harford MD 21005 Status: Unutilized Property Number: 21200330145 Status: Unutilized Comments: 1192 sq. ft., needs rehab, most Aberdeen Proving Grounds Comments: 11,242 sq. ft., needs rehab, most recent use—storage, off-site use only Aberdeen Co: Harford MD 21005 recent use—hazard bldg., off-site use only Bldg. 00688 Status: Unutilized Bldg. E5634 Property Number: 21200530080 Comments: 3588/236 sq. ft., needs rehab, Property Number: 21200330169 Aberdeen Proving Ground most recent use—storage, off-site use only Aberdeen Proving Grounds Aberdeen Co: Harford MD 21005 Bldg. E3542 Aberdeen Co: Harford MD 21005 Status: Unutilized Comments: 24,192 sq. ft., most recent use— Property Number: 21200330148 Status: Unutilized ammo, off-site use only Aberdeen Proving Grounds Comments: 200 sq. ft., needs rehab, most Aberdeen Co: Harford MD 21005 recent use—flammable storage, off-site use Bldg. 04925 Status: Unutilized only Property Number: 21200540091 Comments: 1146 sq. ft., needs rehab, most Bldg. E5654 Aberdeen Proving Ground recent use—lab test bldg., off-site use only Property Number: 21200330171 Aberdeen Co: Harford MD 21005 Status: Unutilized Bldg. E4420 Aberdeen Proving Grounds Comments: 1326 sq. ft., off-site use only Property Number: 21200330151 Aberdeen Co: Harford MD 21005 Aberdeen Proving Grounds Status: Unutilized Bldg. 00255 Aberdeen Co: Harford MD 21005 Comments: 21,532 sq. ft., needs rehab, most Property Number: 21200720052 Status: Unutilized recent use—storage, off-site use only Aberdeen Proving Ground Comments: 14,997 sq. ft., needs rehab, most Bldg. E5942 Harford MD 21005 recent use—police bldg., off-site use only Property Number: 21200330176 Status: Unutilized Aberdeen Proving Grounds Comments: 64 sq. ft., most recent use— 4 Bldgs. storage, off-site use only Property Number: 21200330154 Aberdeen Co: Harford MD 21005 Aberdeen Proving Grounds Status: Unutilized Bldg. 00638 Aberdeen Co: Harford MD 21005 Comments: 2147 sq. ft., needs rehab, most Property Number: 21200720053 Location: E5005, E5049, E5050, E5051 recent use—igloo storage, off-site use only Aberdeen Proving Ground Status: Unutilized Bldgs. E5952, E5953 Harford MD 21005 Comments: sq. ft. varies, needs rehab, most Property Number: 21200330177 Status: Unutilized recent use—storage, off-site use only Aberdeen Proving Grounds Comments: 4295 sq. ft., most recent use— storage, off-site use only Bldg. E5068 Aberdeen Co: Harford MD 21005 Bldg. 00721 Property Number: 21200330155 Status: Unutilized Property Number: 21200720054 Aberdeen Proving Grounds Comments: 100/24 sq. ft., needs rehab, most Aberdeen Proving Ground Aberdeen Co: Harford MD 21005 recent use—compressed air bldg., off-site Harford MD Status: Unutilized use only Status: Unutilized Bldgs. E7401, E7402 Comments: 1200 sq. ft., needs rehab, most Comments: 135 sq. ft., most recent use— recent use—fire station, off-site use only Property Number: 21200330178 storage, off-site use only Aberdeen Proving Grounds Bldgs. 05448, 05449 Bldgs. 00936, 00937 Property Number: 21200330161 Aberdeen Co: Harford MD 21005 Status: Unutilized Property Number: 21200720055 Aberdeen Proving Grounds Aberdeen Proving Ground Aberdeen Co: Harford MD 21005 Comments: 256/440 sq. ft., needs rehab, most recent use—storage, off-site use only Harford MD 21005 Status: Unutilized Status: Unutilized Comments: 6431 sq. ft., needs rehab, most Bldg. E7407, E7408 Comments: 2000 sq. ft., most recent use— recent use—enlisted UHP, off-site use only Property Number: 21200330179 storage, off-site use only Aberdeen Proving Grounds Bldg. 05450 Bldgs. E1410, E1434 Aberdeen Co: Harford MD 21005 Property Number: 21200330162 Property Number: 21200720056 Aberdeen Proving Grounds Status: Unutilized Aberdeen Proving Ground Aberdeen Co: Harford MD 21005 Comments: 1078/762 sq. ft., needs rehab, Harford MD 21005 Status: Unutilized most recent use—decon facility, off-site use Status: Unutilized Comments: 2730 sq. ft., needs rehab, most only Comments: 2276/3106 sq. ft., most recent recent use—admin., off-site use only Bldg. 3070A use—laboratory, off-site use only Bldgs. 05451, 05455 Property Number: 21200420055 Bldg. 03240 Property Number: 21200330163 Aberdeen Proving Ground Property Number: 21200720057 Aberdeen Proving Grounds Harford MD 21005 Aberdeen Proving Ground Aberdeen Co: Harford MD 21005 Status: Unutilized Harford MD 21005 Status: Unutilized Comments: 2299 sq. ft., most recent use— Status: Unutilized Comments: 2730/6431 sq. ft., needs rehab, heat plant, off-site use only Comments: 10,049 sq. ft., most recent use— most recent use—storage, off-site use only Bldg. E5026 P office, off-site use only Bldg. 05453 Property Number: 21200420056 Bldg. E3834 Property Number: 21200330164 Aberdeen Proving Ground Property Number: 21200720058 Aberdeen Proving Grounds Harford MD 21005 Aberdeen Proving Ground Aberdeen Co: Harford MD 21005 Status: Unutilized Harford MD 21005 Status: Unutilized Comments: 20,536 sq. ft., most recent use— Status: Unutilized Comments: 6431 sq. ft., needs rehab, most storage, off-site use only Comments: 72 sq. ft., most recent use—office, recent use—admin., off-site use only Bldg. 05261 off-site use only

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Bldgs. E4465, E4470, E4480 Status: Unutilized 4 Bldgs. Property Number: 21200720059 Comments: 6367 sq. ft., most recent use—lab, Property Number: 21200820093 Aberdeen Proving Ground off-site use only Aberdeen Proving Ground Harford MD 21005 Bldg. 00851 Harford MD Status: Unutilized Property Number: 21200820082 Location: E1645, E1675, E1677, E1930 Comments: 17658/16876/17655 sq. ft., most Aberdeen Proving Ground Status: Unutilized recent use—office, off-site use only Harford MD Comments: Various sq. ft., most recent use— Bldgs. E5137, 05219 Status: Unutilized office, off-site use only Property Number: 21200720060 Comments: 694 sq. ft., most recent use— Bldg.. E2160, E2184, E2196 Aberdeen Proving Ground range bldg., off-site use only Property Number: 21200820094 Harford MD 21005 E1043 Aberdeen Proving Ground Status: Unutilized Property Number: 21200820083 Harford MD Comments: 3700/8175 sq. ft., most recent Aberdeen Proving Ground Status: Unutilized use—office, off-site use only Harford MD Comments: 12440/13816 sq. ft., most recent Bldg. E5236 Status: Unutilized use—storage, off-site use only Property Number: 21200720061 Comments: 5200 sq. ft., most recent use—lab, Bldg. E2174 Aberdeen Proving Ground off-site use only Property Number: 21200820095 Harford MD 21005 Bldg. 01089 Aberdeen Proving Ground Status: Unutilized Property Number: 21200820084 Harford MD Comments: 10,325 sq. ft., most recent use— Aberdeen Proving Ground Status: Unutilized storage, off-site use only Harford MD Comments: 132 sq. ft., off-site use only Bldg. E5282 Status: Unutilized Bldgs. 02208, 02209 Property Number: 21200720062 Comments: 12369 sq. ft., most recent use— Property Number: 21200820096 Aberdeen Proving Ground veh maint, off-site use only Aberdeen Proving Ground Harford MD 21005 Bldg. 01091 Harford MD Status: Unutilized Property Number: 21200820085 Status: Unutilized Comments: 4820 sq. ft., most recent use— Aberdeen Proving Ground Comments: 11566/18085 sq. ft., most recent hazard bldg., off-site use only Harford MD use—lodging, off-site use only Bldgs. E5736, E5846, E5926 Status: Unutilized Bldg. 02353 Property Number: 21200720063 Comments: 2201 sq. ft., most recent use— Property Number: 21200820097 Aberdeen Proving Ground storage, off-site use only Aberdeen Proving Ground Harford MD 21005 Bldg. E1386 Harford MD Status: Unutilized Property Number: 21200820086 Status: Unutilized Comments: 1069/4171/11279 sq. ft., most Aberdeen Proving Ground Comments: 19252 sq. ft., most recent use— recent use—storage, off-site use only Harford MD veh maint, off-site use only Bldg. E6890 Status: Unutilized Bldgs. 02482, 02484 Property Number: 21200720064 Comments: 251 sq. ft., most recent use—eng/ Property Number: 21200820098 Aberdeen Proving Ground mnt, off-site use only Aberdeen Proving Ground Harford MD 21005 5 Bldgs. Harford MD Status: Unutilized Property Number: 21200820087 Status: Unutilized Comments: 1 sq. ft., most recent use—impact Aberdeen Proving Ground Comments: 8359 sq. ft., most recent use—gen area, off-site use only Harford MD purp, off-site use only Bldg. 00310 Location: E1440, E1441, E1443, E1445, E1455 Bldg. 02483 Property Number: 21200820077 Status: Unutilized Property Number: 21200820099 Aberdeen Proving Ground Comments: 112 sq. ft., most recent use— Aberdeen Proving Ground Harford MD 21005 safety shelter, off-site use only Harford MD Status: Unutilized Bldg. E1467, E1485 Status: Unutilized Comments: 56516 sq. ft., most recent use— Property Number: 21200820088 Comments: 1360 sq. ft., most recent use— admin., off-site use only Aberdeen Proving Ground heat plt, off-site use only Bldg. 00315 Harford MD Bldg.. 02504, 02505 Property Number: 21200820078 Status: Unutilized Property Number: 21200820100 Aberdeen Proving Ground Comments: 160/800 sq. ft., most recent use— Aberdeen Proving Ground Harford MD storage, off-site use only Harford MD Status: Unutilized Bldg. E1521 Status: Unutilized Comments: 74396 sq. ft., most recent use— Property Number: 21200820090 Comments: 11720/17434 sq. ft., most recent mach shop, off-site use only Aberdeen Proving Ground use—lodging, off-site use only Bldg. 00338 Harford MD Bldg.. 02831, E3488 Property Number: 21200820079 Status: Unutilized Property Number: 21200820101 Aberdeen Proving Ground Comments: 1200 sq. ft., most recent use— Aberdeen Proving Ground Harford MD overhead protection, off-site use only Harford MD Status: Unutilized Bldg. E1570 Status: Unutilized Comments: 45443 sq. ft., most recent use— Property Number: 21200820091 Comments: 576/64 sq. ft., most recent use— gnd tran eqp, off-site use only Aberdeen Proving Ground access cnt fac, off-site use only Bldg. 00360 Harford MD Bldg. 2831A Property Number: 21200820080 Status: Unutilized Property Number: 21200820102 Aberdeen Proving Ground Comments: 47027 sq. ft., most recent use— Aberdeen Proving Ground Harford MD office, off-site use only Harford MD Status: Unutilized Bldg. E1572 Status: Unutilized Comments: 15287 sq. ft., most recent use— Property Number: 21200820092 Comments: 1200 sq. ft., most recent use— general inst., off-site use only Aberdeen Proving Ground overhead protection, off-site use only Bldg. 00445 Harford MD Bldg. 03320 Property Number: 21200820081 Status: Unutilized Property Number: 21200820103 Aberdeen Proving Ground Comments: 1402 sq. ft., most recent use— Aberdeen Proving Ground Harford MD maint., off-site use only Harford MD

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Status: Unutilized Bldg. E5128 Harford MD Comments: 10600 sq. ft., most recent use— Property Number: 21200820114 Status: Unutilized admin, off-site use only Aberdeen Proving Ground Comments: 9623 sq. ft., off-site use only Bldg. E3466 Harford MD Bldg. 05654 Property Number: 21200820104 Status: Unutilized Property Number: 21200820125 Aberdeen Proving Ground Comments: 3750 sq. ft., most recent use— Aberdeen Proving Ground Aberdeen MD substation, off-site use only Harford MD Status: Unutilized Bldg. E5188 Status: Unutilized Comments: 236 sq. ft., most recent use— Property Number: 21200820115 Comments: 38 sq. ft. most recent use—shed, protective barrier, off-site use only Aberdeen Proving Ground off-site use only 4 Bldgs. Harford MD Bldg. 05656 Property Number: 21200820105 Status: Unutilized Property Number: 21200820126 Aberdeen Proving Ground Comments: 22790 sq. ft., most recent use— Aberdeen Proving Ground Harford MD lab, off-site use only Harford MD Location: E3510, E3570, E3640, E3832 Bldg. E5179 Status: Unutilized Status: Unutilized Property Number: 21200820116 Comments: 2240 sq. ft., most recent use— Comments: Various sq. ft., most recent use— Aberdeen Proving Ground overhead protection off-site use only lab, off-site use only Harford MD 5 Bldgs. Bldg. E3544 Status: Unutilized Property Number: 21200820127 Property Number: 21200820106 Comments: 47335 sq. ft., most recent use— Aberdeen Proving Ground Aberdeen Proving Ground info sys, off-site use only Harford MD Harford MD Bldg. E5190 Location: E5730, E5738, E5915, E5928, E6875 Status: Unutilized Property Number: 21200820117 Status: Unutilized Comments: 5400 sq. ft., most recent use—ind Aberdeen Proving Ground Comments: Various sq. ft., most recent use— waste, off-site use only Harford MD storage, off-site use only Bldgs. E3561, 03751 Status: Unutilized Bldg. E5770 Property Number: 21200820107 Comments: 874 sq. ft., most recent use— Property Number: 21200820128 Aberdeen Proving Ground storage, off-site use only Aberdeen Proving Ground Harford MD Bldg. 05223 Harford MD Status: Unutilized Property Number: 21200820118 Status: Unutilized Comments: 64/189 sq. ft., most recent use— Aberdeen Proving Ground Comments: 174 sq. ft., most recent use—cent access cnt fac, off-site use only Harford MD wash, off-site use only Bldg. 03754 Status: Unutilized Bldg. E5840 Property Number: 21200820108 Comments: 6854 sq. ft., most recent use—gen Property Number: 21200820129 Aberdeen Proving Ground rep inst, off-site use only Aberdeen Proving Ground Harford MD Bldgs. 05259, 05260 Harford MD Status: Unutilized Property Number: 21200820119 Status: Unutilized Comments: 324 sq. ft., most recent use— Aberdeen Proving Ground classroom, off-site use only Comments: 14200 sq. ft., most recent use— Harford MD lab, off-site use only Bldg. 3823A Status: Unutilized Property Number: 21200820109 Bldg. E5946 Comments: 10067 sq. ft., most recent use— Property Number: 21200820130 Aberdeen Proving Ground maint, off-site use only Harford MD Aberdeen Proving Ground Bldgs. 05263, 05264 Status: Unutilized Harford MD Property Number: 21200820120 Comments: 113 sq. ft., most recent use— Status: Unutilized Aberdeen Proving Ground shed, off-site use only Comments: 2147 sq. ft., most recent use— Harford MD igloo str, off-site use only Bldg. E3948 Status: Unutilized Property Number: 21200820110 Bldg. E6872 Comments: 200 sq. ft., most recent use—org Property Number: 21200820131 Aberdeen Proving Ground space, off-site use only Harford MD Aberdeen Proving Ground Status: Unutilized 5 Bldgs. Harford MD Comments: 3420 sq. ft., most recent use— Property Number: 21200820121 Status: Unutilized emp chg fac, off-site use only Aberdeen Proving Ground Comments: 1380 sq. ft., most recent use— Harford MD 4 Bldgs. dispatch, off-site use only Location: 05267, E5294, E5327, E5441, E5485 Property Number: 21200820111 Bldgs. E7331, E7332, E7333 Status: Unutilized Aberdeen Proving Ground Property Number: 21200820132 Comments: Various sq. ft., most recent use— Harford MD Aberdeen Proving Ground Location: E5057, E5058, E5246, 05258 storage, off-site use only Harford MD Status: Unutilized Bldg. E5292 Status: Unutilized Comments: Various sq. ft., most recent use— Property Number: 21200820122 Comments: Most recent use—protective storage, off-site use only Aberdeen Proving Ground barrier, off-site use only Bldgs. E5106, 05256 Harford MD Bldg. E7821 Property Number: 21200820112 Status: Unutilized Property Number: 21200820133 Aberdeen Proving Ground Comments: 1166 sq. ft., most recent use— Aberdeen Proving Ground Harford MD comp rep inst, off-site use only Harford MD Status: Unutilized Bldg. E5380 Status: Unutilized Comments: 18621/8720 sq. ft., most recent Property Number: 21200820123 Comments: 3500 sq. ft., most recent use— use—office, off-site use only Aberdeen Proving Ground xmitter bldg, off-site use only Bldg. E5126 Harford MD Bldg. 02483 Property Number: 21200820113 Status: Unutilized Property Number: 21200920025 Aberdeen Proving Ground Comments: 9176 sq. ft., most recent use—lab, Aberdeen Proving Ground Harford MD off-site use only Harford MD 21005 Status: Unutilized Bldg. E5452 Status: Unutilized Comments: 17664 sq. ft., most recent use— Property Number: 21200820124 Comments:1360 sq. ft., most recent use—heat heat plt, off-site use only Aberdeen Proving Ground plt bldg., off-site use only

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Bldg. 03320 Comments: 4720 sq. ft., 2-story, presence of Property Number: 21200410113 Property Number: 21200920026 lead base paint, most recent use—admin/ Fort Leonard Wood Aberdeen Proving Ground gen. purpose, off-site use only Ft. Leonard Wood Co: Pulaski MO 65743– Harford MD 21005 Bldg. T2139 8944 Status: Unutilized Property Number: 21199420446 Status: Unutilized Comments: 10,600 sq. ft., most recent use— Fort Leonard Wood Comments: 2240 sq ft, 2 plex housing admin., off-site use only Ft. Leonard Wood Co: Pulaski MO 65473– quarters, potential contaminants, off-site Land 5000 use only Status: Underutilized 15 Bldgs 2 acres Comments: 3663 sq. ft., 1-story, presence of Property Number: 21200410114 Property Number: 21200640095 lead base paint, most recent use—admin/ Fort Leonard Wood Fort Meade gen. purpose, off-site use only Ft. Leonard Wood Co: Pulaski MO 65743– Odenton Rd/Rt 175 Bldg. T2385 0827 Ft. Meade MD 20755 Property Number: 21199510115 Location: 08267, 08269, 08271, 08273, 08275, Status: Unutilized Fort Leonard Wood 08277, 08279, 08290, 08296, 08301 Comments: Light industrial Ft. Leonard Wood Co: Pulaski MO 65473 Status: Unutilized 16 acres Status: Excess Comments: 4784 sq ft., 4 plex housing Property Number: 21200640096 Comments: 3158 sq. ft., 1-story, wood frame, quarters, potential contaminants, off-site Fort Meade most recent use—admin., to be vacated 8/ use only Rt 198/Airport Road 95, off-site use only Bldg 09432 Ft. Meade MD 20755 Bldg. 2167 Property Number: 21200410115 Status: Unutilized Property Number: 21199820179 Fort Leonard Wood Comments: light industrial Fort Leonard Wood Ft. Leonard Wood Co: Pulaski MO 65743– Mississippi Ft. Leonard Wood Co: Pulaski MO 65473– 8944 5000 Status: Unutilized GSA Status: Unutilized Comments: 8724 sq ft., 6-plex housing Building Comments: 1296 sq. ft., presence of asbestos/ quarters, potential contaminants, off-site lead paint, most recent use—admin., off- use only James O. Eastland site use only Property Number: 54201040020 Bldgs. 5006 and 5013 245 East Capitol St. Bldgs. 2192, 2196, 2198 Property Number: 21200430064 Jackson Co: Hinds MS 39201–2409 Property Number: 21199820183 Fort Leonard Wood Location: Federal Bldg. and Courthouse Fort Leonard Wood Ft. Leonard Wood Co: Pulaski MO 65743– Ft. Leonard Wood Co: Pulaski MO 65473– Status: Excess 8944 5000 Comments: 14,000 sq. ft., current/recent use: Status: Unutilized Status: Unutilized gov’t offices and courtrooms, asbestos Comments: 192 sq. ft., needs repair, most Comments: 4720 sq. ft., presence of asbestos/ identified behind walls, and historic bldg. recent use—generator bldg., off-site use lead paint, most recent use—barracks, off- preservation covenants will be included in only site use only the Deed of Conveyance Bldgs. 13210, 13710 GSA Number: 4–G–MS–0567–AA 12 Bldgs Property Number: 21200430065 Property Number: 21200410110 Fort Leonard Wood Missouri Fort Leonard Wood Ft. Leonard Wood Co: Pulaski MO 65743– Ft. Leonard Wood Co: Pulaski MO 65743– Air Force 8944 8944 Status: Unutilized Land Location: 07036, 07050, 07054, 07102, 07400, Comments: 144 sq. ft. each, needs repair, Communications Site 07401, 08245, 08249, 08251, 08255, 08257, most recent use—communication, off-site Property Number: 18200710001 08261 use only County Road 424 Status: Unutilized Montana Dexter Co: Stoddard MO Comments: 7152 sq. ft. 6 plex housing Status: Unutilized quarters, potential contaminants, off-site Bldg. 00405 Comments: 10.63 acres use only Property Number: 21200130099 Fort Harrison Outer Marker Annex 6 Bldg Ft. Harrison Co: Lewis/Clark MT 59636 Property Number: 18200940001 Property Number: 21200410111 Status: Unutilized Whiteman AFB Fort Leonard Wood Comments: 3467 sq. ft., most recent use— Knob Noster MO 65336 Ft. Leonard Wood Co: Pulaski MO 65743– storage, security limitations Status: Unutilized 8944 Comments: 0.75 acres, most recent use— Location: 07044, 07106, 07107, 08260, 08281, Bldg. T0066 communication 08300 Property Number: 21200130100 Status: Unutilized Fort Harrison Annex No. 3 Comments: 9520 sq ft., 8 plex housing Ft. Harrison Co: Lewis/Clark MT 59636 Property Number: 18201020001 quarters, potential contaminants, off-site Status: Unutilized Whiteman AFB use only Comments: 528 sq. ft., needs rehab, presence Knob Noster MO 65336 of asbestos, security limitations Status: Underutilized 15 Bldgs Comments: 9 acres Property Number: 21200410112 Bldg. 00001 Fort Leonard Wood Property Number: 21200540093 Missouri Ft. Leonard Wood Co: Pulaski MO 65743– Sheridan Hall USARC 8944 Helena MT 59601 Army Location: 08242, 08243, 08246–08248, 08250, Status: Unutilized Building 08252–08254, 08256, 08258–08259, Comments: 19,321 sq. ft., most recent use— Bldg. T1497 08262–08263, 08265 Reserve Center Property Number: 21199420441 Status: Unutilized Bldg. 00003 Fort Leonard Wood Comments: 4784 sq ft., 4 plex housing Property Number: 21200540094 Ft. Leonard Wood Co: Pulaski MO 65473– quarters, potential contaminants, off-site Sheridan Hall USARC 5000 use only Helena MT 59601 Status: Underutilized Bldgs 08283, 08285 Status: Unutilized

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Comments: 1950 sq. ft., most recent use— White Sands Missile Range Bldg. 4802 maintenance/storage Dona Ana NM 88002 Property Number: 21201010019 Status: Excess Fort Drum COE Comments: 107 sq. ft., most recent use— Jefferson NY 13602 Bldg. 1 security, off-site use only Status: Unutilized Property Number: 31200040010 New York Comments: 3300 sq. ft., most recent use— Butte Natl Guard hdgts. facility, off-site use only Butte Co: Silverbow MT 59701 Air Force Bldgs. 4813 Status: Unutilized Bldg. 240 Property Number: 21201010020 Comments: 22799 sq. ft., presence of Property Number: 18200340023 Fort Drum asbestos, most recent use—cold storage, Rome Lab Jefferson NY 13602 off-site use only Rome Co: Oneida NY 13441 Status: Unutilized Bldg. 2 Status: Unutilized Comments: 750 sq. ft., most recent use—wash Property Number: 31200040011 Comments: 39108 sq. ft., presence of rack, off-site use only Butte Natl Guard asbestos, most recent use—Electronic Bldg. 4814 Butte Co: Silverbow MT 59701 Research Lab Status: Unutilized Property Number: 21201010021 Bldg. 247 Comments: 3292 sq. ft., most recent use— Fort Drum Property Number: 18200340024 cold storage, off-site use only Jefferson NY 13602 Rome Lab Status: Unutilized Bldg. 3 Rome Co: Oneida NY 13441 Comments: 2592 sq. ft., most recent use— Property Number: 31200040012 Status: Unutilized item repair, off-site use only Butte Natl Guard Comments: 13199 sq. ft., presence of Bldgs. 1240, 1255 Butte Co: Silverbow MT 59701 asbestos, most recent use—Electronic Property Number: 21201010022 Status: Unutilized Research Lab Comments: 964 sq. ft., most recent use—cold Fort Drum Bldg. 248 storage, off-site use only Jefferson NY 13602 Property Number: 18200340025 Status: Unutilized Bldg. 4 Rome Lab Property Number: 31200040013 Comments: Various sq. ft., most recent use— Rome Co: Oneida NY 13441 vehicle maint. facility, off-site use only Butte Natl Guard Status: Unutilized Butte Co: Silverbow MT 59701 Comments: 4000 sq. ft., presence of asbestos, 6 Bldgs. Status: Unutilized most recent use—Electronic Research Lab Property Number: 21201010023 Comments: 72 sq. ft., most recent use—cold Fort Drum Bldg. 302 storage, off-site use only Jefferson NY 13602 Property Number: 18200340026 Location: 1248, 1250, 1276, 2361, 4816, 4817 Bldg. 5 Rome Lab Property Number: 31200040014 Rome Co: Oneida NY 13441 Status: Unutilized Butte Natl Guard Status: Unutilized Comments: Various sq. ft., most recent use— Butte Co: Silverbow MT 59701 Comments: 10288 sq. ft., presence of storage, off-site use only Status: Unutilized asbestos, most recent use— Bldg. 1050 Comments: 1286 sq. ft., most recent use— communications facility Property Number: 21201010024 cold storage, off-site use only Fort Drum Army New Jersey Jefferson NY 13602 Bldg.1227 Status: Unutilized Bldg. 732 Property Number: 21200440074 Comments: 1493 sq. ft., most recent use— Property Number: 21199740315 U.S. Military Academy training, off-site use only Armament R Engineering Center Highlands Co: Orange NY 10996–1592 Bldg. 10791 Picatinny Arsenal Co: Morris NJ 07806–5000 Status: Unutilized Property Number: 21201010025 Status: Unutilized Comments: 3800 sq. ft., needs repair, possible Fort Drum Comments: 9077 sq. ft., needs rehab, most asbestos/lead paint, most recent use— recent use—storage, off-site use only Jefferson NY 13602 maintenance, off-site use only Status: Unutilized Bldg. 816C Bldg. 2218 Comments: 72 sq. ft., most recent use— Property Number: 21200130103 Property Number: 21200510067 smoking shelter, off-site use only Armament R, D, Center Stewart Newburg USARC Picatinny Arsenal Co: Morris NJ 07806–5000 New Windsor Co: Orange NY 12553–9000 VA Status: Unutilized Status: Unutilized Bldg. 3 Comments: 144 sq. ft., most recent use— Comments: 32,000 sq. ft., poor condition, Property Number: 97200520001 storage, off-site use only requires major repairs, most recent use— VA Medical Center 5 Bldgs. storage/services Batavia Co: Genesee NY 14020 Property Number: 21200940032 7 Bldgs. Status: Unutilized Picatinny Arsenal Property Number: 21200510068 Comments: 5840 sq. ft., needs rehab, Dover NJ 07806 Stewart Newburg USARC presence of asbestos, most recent use— Location: 3710, 3711, 3712, 3713, 3714 New Windsor Co: Orange NY 12553–9000 offices, eligible for Natl Register of Historic Status: Unutilized Location: 2122, 2124, 2126, 2128, 2106, 2108, Places 1/5/2011, Renovated and currently Comments: Residential trailers, needs rehab, 2104 using it for MCCF and VISN Finance off-site use only Status: Unutilized North Carolina Bldgs. 3704, 3706 Comments: Sq. ft. varies, poor condition, Property Number: 21201010016 needs major repairs, most recent use— Air Force storage/services Picatinny Arsenal Land Dover NJ 07806 Bldg. 1230 Status: Unutilized Property Number: 21200940014 0.14 acres Comments: 768 sq. ft. residential trailers, U.S. Army Garrison Property Number: 18200810001 needs rehab, off-site use only Orange NY 10996 Pope AFB Status: Unutilized Pope AFB NC New Mexico Comments: 4538 sq. ft., possible asbestos/ Status: Excess Bldg. 34198 lead paint, most recent use—clubhouse, Comments: Most recent use—middle marker, Property Number: 21200230062 off-site use only easement for entry

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GSA Status: Unutilized Property Number: 21199730362 Building Comments: 114 sq. ft., 1-story wood frame, Fort Sill possible asbestos and lead paint, most Lawton Co: Comanche OK 73503–5100 Greensboro Federal Bldg. recent use—storage, off-site use only Status: Unutilized Property Number: 54201040018 Bldg. P–1015, Fort Sill Comments: Approx. 100 sq. ft. each, possible 320 Federal Place Property Number: 21199520197 asbestos/lead paint, most recent use— Geensboro NC 27401 Lawton Co: Comanche OK 73501–5100 storage, off-site use only Status: Excess Status: Unutilized Bldg. T–2184 Comments: 94,809 sq. ft. office bldg., major Comments: 15402 sq. ft., 1-story, most recent Property Number: 21199730364 structural issues exist with exterior brick use—storage, off-site use only Fort Sill facade Lawton Co: Comanche OK 73503–5100 GSA Number: 4–G–NC–750 Bldg. P–366, Fort Sill Property Number: 21199610740 Status: Unutilized Ohio Lawton Co: Comanche OK 73503 Comments: 454 sq. ft., possible asbestos/lead paint, most recent use—storage, off-site use Army Status: Unutilized Comments: 482 sq. ft., possible asbestos, only Land most recent use—storage, off-site use only Bldgs. T–2186, T–2188, T–2189 Land Building P–5042 Property Number: 21199730366 Property Number: 21200340094 Property Number: 21199710066 Fort Sill Defense Supply Center Fort Sill Lawton Co: Comanche OK 73503–5100 Columbus Co: Franklin OH 43216–5000 Lawton Co: Comanche OK 73503–5100 Status: Unutilized Status: Excess Status: Unutilized Comments: 1656–3583 sq. ft., possible Comments: 11 acres, railroad access Comments: 119 sq. ft., possible asbestos and asbestos/lead paint, most recent use— vehicle maint. shop, off-site use only COE leadpaint, most recent use—heatplant, off- site use only Bldg. T–2187 Building 4 Buildings Property Number: 21199730367 Barker Historic House Property Number: 21199710086 Fort Sill Property Number: 31199120018 Fort Sill Lawton Co: Comanche OK 73503–5100 Willow Island Locks and Dam Lawton Co: Comanche OK 73503–5100 Status: Unutilized Newport Co: Washington OH 45768–9801 Location: T–6465, T–6466, T–6467, T–6468 Comments: 1673 sq. ft., possible asbestos/ Location: Located at lock site, downstream of Status: Unutilized lead paint, most recent use—storage, off- lock and dam structure Comments: Various sq. ft., possible asbestos site use only Status: Unutilized and leadpaint, most recent use—range Bldgs. T–2291 thru T–2296 Comments: 1600 sq. ft. bldg. with 1⁄2 acre of support, off-site use only Property Number: 21199730372 land, 2 story brick frame, needs rehab, on Bldg. T–810 Fort Sill Natl Register of Historic Places, no utilities, Property Number: 21199730350 Lawton Co: Comanche OK 73503–5100 off-site use only Fort Sill Status: Unutilized Bldg. MURDOT–23142 Lawton Co: Comanche OK 73503–5100 Comments: 400 sq. ft. each, possible Property Number: 31201020001 Status: Unutilized asbestos/lead paint, most recent use— 5153 State Rd Comments: 7205 sq. ft., possible asbestos/ storage, off-site use only Dover OH 44622 lead paint, most recent use—hay storage, Bldgs. T–3001, T–3006 Status: Unutilized off-site use only Property Number: 21199730383 Comments: 664 sq. ft. office bldg., presence Bldgs. T–837, T–839 Fort Sill of asbestos/lead paint, off-site use only Property Number: 21199730351 Lawton Co: Comanche OK 73503–5100 Oklahoma Fort Sill Status: Unutilized Lawton Co: Comanche OK 73503–5100 Comments: Approx. 9300 sq. ft., possible Army Status: Unutilized asbestos/lead paint, most recent use— Bldg. T–838, Fort Sill Comments: Approx. 100 sq. ft. each, possible storage, off-site use only Property Number: 21199220609 asbestos/lead paint, most recent use— Bldg. T–3314 838 Macomb Road storage, off-site use only Property Number: 21199730385 Lawton Co: Comanche OK 73503–5100 Bldg. P–934 Fort Sill Status: Unutilized Property Number: 21199730353 Lawton Co: Comanche OK 73503–5100 Comments: 151 sq. ft., wood frame, 1 story, Fort Sill Status: Unutilized off-site removal only, most recent use—vet Lawton Co: Comanche OK 73503–5100 Comments: 229 sq. ft., possible asbestos/lead facility (quarantine stable). Status: Unutilized paint, most recent use—office, off-site use Bldg. T–954, Fort Sill Comments: 402 sq. ft., possible asbestos/lead only Property Number: 21199240659 paint, most recent use—storage, off-site use Bldg. T–5041 954 Quinette Road only Property Number: 21199730409 Lawton Co: Comanche OK 73503–5100 Bldgs. T–1468, T–1469 Fort Sill Status: Unutilized Property Number: 21199730357 Lawton Co: Comanche OK 73503–5100 Comments: 3571 sq. ft., 1 story wood frame, Fort Sill Status: Unutilized needs rehab, off-site use only, most recent Lawton Co: Comanche OK 73503–5100 Comments: 763 sq. ft., possible asbestos/lead use—motor repair shop. Status: Unutilized paint, most recent use—storage, off-site use Bldg. T–3325, Fort Sill Comments: 114 sq. ft., possible asbestos/lead only Property Number: 21199240681 paint, most recent use—storage, off-site use Bldg. T–5420 3325 Naylor Road only Property Number: 21199730414 Lawton Co: Comanche OK 73503–5100 Bldg. T–1470 Fort Sill Status: Unutilized Property Number: 21199730358 Lawton Co: Comanche OK 73503–5100 Comments: 8832 sq. ft., 1 story wood frame, Fort Sill Status: Unutilized needs rehab, off-site use only, most recent Lawton Co: Comanche OK 73503–5100 Comments: 189 sq. ft., possible asbestos/lead use—warehouse. Status: Unutilized paint, most recent use—fuel storage, off- Bldg. T–4226 Comments: 3120 sq. ft., possible asbestos/ site use only Property Number: 21199440384 lead paint, most recent use—storage, off- Bldg. T–7775 Fort Sill site use only Property Number: 21199730419 Lawton Co: Comanche OK 73503 Bldgs. T–1954, T–2022 Fort Sill

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Lawton Co: Comanche OK 73503–5100 Status: Unutilized Bldg. 05685 Status: Unutilized Comments: 160 sq. ft., possible asbestos/lead Property Number: 21200820152 Comments: 1452 sq. ft., possible asbestos/ paint, most recent use—transmitter bldg., Fort Sill lead paint, most recent use—private club, off-site use only Lawton OK 73501 off-site use only Bldg. S–4023 Status: Unutilized 4 Bldgs. Property Number: 21200010128 Comments: 24,072 sq. ft., concrete block/w Property Number: 21199910133 Fort Sill brick, off-site use only Fort Sill Lawton Co: Comanche OK 73503–5100 Bldg. 07480 P–617, P–1114, P–1386, P–1608 Status: Unutilized Property Number: 21200920002 Lawton Co: Comanche OK 73503–5100 Comments: 1200 sq. ft., possible asbestos/ Fort Sill Status: Unutilized lead paint, most recent use—storage, off- Lawton OK 73501 Comments: 106 sq. ft., possible asbestos/lead site use only Status: Unutilized paint, most recent use—utility plant, off- Bldg. P–747 Comments: 1200 sq. ft., most recent use— site use only Property Number: 21200120120 recreation, off-site use only Bldg. P–746 Fort Sill Bldgs. 01509, 01510 Property Number: 21199910135 Lawton Co: Comanche OK 73503–5100 Property Number: 21200920060 Fort Sill Status: Unutilized Fort Sill Lawton Co: Comanche OK 73503–5100 Comments: 9232 sq. ft., possible asbestos/ Lawton OK 73501 Status: Unutilized lead paint, most recent use—lab, off-site Status: Unutilized Comments: 6299 sq. ft., possible asbestos/ use only Comments: Various sq. ft., most recent use— lead paint, most recent use—admin., off- Bldg. P–842 vehicle maint. shop, off-site use only site use only Property Number: 21200120123 4 Bldgs. Bldg. P–2582 Fort Sill Property Number: 21200920061 Property Number: 21199910141 Lawton Co: Comanche OK 73503–5100 Fort Sill Fort Sill Status: Unutilized 2591, 2593, 2595, 2604 Lawton Co: Comanche OK 73503–5100 Comments: 192 sq. ft., possible asbestos/lead Lawton OK 73501 Status: Unutilized paint, most recent use—storage, off-site use Status: Unutilized Comments: 3672 sq. ft., possible asbestos/ only Comments: Various sq. ft., most recent use— lead paint, most recent use—admin., off- Bldg. T–911 classroom/admin, off-site use only site use only Property Number: 21200120124 Bldg. 06456 Bldg. P–2914 Fort Sill Property Number: 21200930003 Property Number: 21199910146 Lawton Co: Comanche OK 73503–5100 Fort Sill Fort Sill Status: Unutilized Lawton OK 73501 Lawton Co: Comanche OK 73503–5100 Comments: 3080 sq. ft., possible asbestos/ Status: Unutilized Status: Unutilized lead paint, most recent use—office, off-site Comments: 413 sq. ft. range support facility, Comments: 1236 sq. ft., possible asbestos/ use only off-site use only lead paint, most recent use—storage, off- Bldg. P–1672 site use only Property Number: 21200120126 COE Bldg. P–5101 Fort Sill Land Property Number: 21199910153 Lawton Co: Comanche OK 73503–5100 Pine Creek Lake Fort Sill Status: Unutilized Property Number: 31199010923 Lawton Co: Comanche OK 73503–5100 Comments: 1056 sq. ft., possible asbestos/ Section 27 Status: Unutilized lead paint, most recent use—storage, off- (See County) Co: McCurtain OK Comments: 82 sq. ft., possible asbestos/lead site use only Status: Unutilized paint, most recent use—gas station, off-site Bldg. S–2362 Comments: 3 acres; no utilities; subject to use only Property Number: 21200120127 right of way for Oklahoma State Bldg. S–6430 Fort Sill Highway 3 Property Number: 21199910156 Lawton Co: Comanche OK 73503–5100 Fort Sill Status: Unutilized Oregon Lawton Co: Comanche OK 73503–5100 Comments: 64 sq. ft., possible asbestos/lead GSA Status: Unutilized paint, most recent use—gatehouse, off-site Comments: 2080 sq. ft., possible asbestos/ use only Building lead paint, most recent use—range support, Bldg. P–2589 Residence Property Number: 54201040012 off-site use only Property Number: 21200120129 140 Government Road Bldg. T–6461 Fort Sill Malheur Natl Forest Property Number: 21199910157 Lawton Co: Comanche OK 73503–5100 John Day OR 97845 Fort Sill Status: Unutilized Status: Excess Lawton Co: Comanche OK 73503–5100 Comments: 3672 sq. ft., possible asbestos/ Comments: 1560 sq. ft., presence of asbestos/ Status: Unutilized lead paint, most recent use—storage, off- lead paint, off-site use only Comments: 200 sq. ft., possible asbestos/lead site use only GSA Number: 9–A–OR–0786–AA paint, most recent use—range support, off- Bldgs. 00937, 00957 Pennsylvania site use only Property Number: 21200710104 Bldg. T–6462 Fort Sill COE Property Number: 21199910158 Lawton OK 73501 Mahoning Creek Reservoir Property Number: Fort Sill Status: Unutilized 31199210008 Lawton Co: Comanche OK 73503–5100 Comments: 1558 sq. ft., most recent use— New Bethlehem Co: Armstrong PA 16242 Status: Unutilized storage shed, off-site use only Status: Unutilized Comments: 64 sq. ft., possible asbestos/lead Bldg.01514 Comments: 1015 sq. ft., 2 story brick paint, most recent use—control tower, off- Property Number: 21200710105 residence, off-site use only site use only Fort Sill Dwelling Bldg. P–7230 Lawton OK 73501 Property Number: 31199620008 Property Number: 21199910159 Status: Unutilized Lock 6, Allegheny River, 1260 River Rd. Fort Sill Comments: 1602 sq. ft., most recent use— Freeport Co: Armstrong PA 16229–2023 Lawton Co: Comanche OK 73503–5100 storage, off-site use only Status: Unutilized

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Comments: 2652 sq. ft., 3-story brick house, Property Number: 31199010018 COE in close proximity to Lock and Dam, New Bethlehem Co: Armstrong PA 16242– Land available for interim use for nonresidential 9603 Portion/Tract A127 purposes Location: Route 28 north to Belknap, Road #4 Property Number: 31200940001 Dwelling Status: Excess Gavins Point Dam Property Number: 31199710009 Comments: 2.58 acres; steep and densely Yankton SD Lock 4, Allegheny River wooded Status: Unutilized Natrona Co: Allegheny PA 15065–2609 Tracts 610, 611, 612 Comments: 0.3018 acre, road right of way Status: Unutilized Property Number: 31199011001 Comments: 1664 sq. ft., 2-story brick Tennessee Shenango River Lake residence, needs repair, off-site use only Sharpsville Co: Mercer PA 16150 Army Dwelling #1 Location: I–79 North, I–80 West, Exit Sharon. Building Property Number: 31199740002 R18 North 4 miles, left on R518, right on Crooked Creek Lake Bldg. Trail Mercer Avenue. Ford City Co: Armstrong PA 16226–8815 Property Number: 21200920010 Status: Excess Status: Excess Fort Campbell Comments: 24.09 acres; subject to flowage Comments: 2030 sq. ft., most recent use— Montgomery TN 42223 residential, good condition, off-site use easement Status: Excess only Tracts L24, L26 Comments: 2104 sq. ft., double-wide trailer, Dwelling #2 Property Number: 31199011011 off-site use only Property Number: 31199740003 Crooked Creek Lake Land Null Co: Armstrong PA 03051 Crooked Creek Lake Parcel No. 1 Ford City Co: Armstrong PA 16226–8815 Location: Left bank—55 miles downstream of Property Number: 21200920003 Status: Excess dam. Fort Campbell Comments: 3045 sq. ft., most recent use— Status: Unutilized Tract No. 13M–3 residential, good condition, off-site use Comments: 7.59 acres; potential for utilities Montgomery TN 42223 only Portion of Tract L–21A Status: Excess Govt Dwelling Property Number: Property Number: 31199430012 Comments: 6.89 acres/thick vegetation 31199740005 Crooked Creek Lake, LR 03051 Parcel No. 2 East Branch Lake Ford City Co: Armstrong PA 16226 Property Number: 21200920004 Wilcox Co: Elk PA 15870–9709 Status: Unutilized Fort Campbell Status: Underutilized Comments: Approximately 1.72 acres of Tract Nos. 12M–16B & 13M–3 Comments: Approx. 5299 sq. ft., 1-story, most undeveloped land, subject to gas rights Montgomery TN 42223 recent use—residence, off-site use only Status: Excess Dwelling #1 South Carolina Comments: 3.41 acres/wooded Property Number: 31199740006 Air Force Parcel No. 3 Loyalhanna Lake Property Number: 21200920005 Saltsburg Co: Westmoreland PA 15681–9302 Building Fort Campbell Status: Excess 256 Housing Units Tract No. 12M–4 Comments: 1996 sq. ft., most recent use— Property Number: 18200920001 Montgomery TN 42223 residential, good condition, off-site use Charleston AFB Status: Excess only South Side Housing Comments: 6.56 acre/wooded Dwelling #2 Charleston SC Parcel No. 4 Property Number: 31199740007 Status: Excess Property Number: 21200920006 Loyalhanna Lake Comments: Various sq. ft., presence of Fort Campbell Saltsburg Co: Westmoreland PA 15681–9302 asbestos/lead paint, off-site use only Tract Nos. 10M–22 &10M–23 Status: Excess Montgomery TN 42223 Comments: 1996 sq. ft., most recent use— GSA Status: Excess residential, good condition, off-site use Naval Health Clinic Comments: 5.73 acres/wooded only Property Number: 54201040013 Parcel No. 5 Dwelling #2 3600 Rivers Ave. Property Number: 21200920007 Property Number: 31199740009 Charleston SC 29405 Fort Campbell Lock 6, 1260 River Road Status: Excess Tract No. 10M–20 Freeport Co: Armstrong PA 16229–2023 Comments: Redetermination: 399,836 sq. ft., Montgomery TN 42223 Status: Excess most recent use: office Status: Excess Comments: 2652 sq. ft., most recent use— GSA Number: 4–N–SC–0606 Comments: 3.86 acres/wooded residential, good condition, off-site use Parcel No. 7 only South Dakota Property Number: 21200920008 Residence A Army Fort Campbell Property Number: 31200410007 Tract No. 10M–10 Bldg. 03001 2045 Pohopoco Drive Montgomery TN 42223 Property Number: 21200740187 Lehighton Co: Carbon PA 18235 Status: Excess Jonas H. Lien AFRC Status: Unutilized Comments: 9.47 acres/wooded Comments: 1200 sq. ft., presence of asbestos, Sioux Falls SD 57104 Parcel No. 8 off-site use only Status: Unutilized Property Number: 21200920009 Comments: 33282 sq. ft., most recent use— BEL–007 Fort Campbell training center Property Number: 31201030001 Tract No. 8M–7 2145 Pohopco Dr. Bldg. 03003 Montgomery TN 42223 Lehighton PA 18235 Property Number: 21200740188 Status: Excess Status: Unutilized Jonas H. Lien AFRC Comments: 15.13 acres/wooded Comments: 1188 sq. ft., off-site use only Sioux Falls SD 57104 Parcel No. 6 Status: Unutilized Property Number: 21200940013 Land Comments: 4675 sq. ft., most recent use— Fort Campbell Mahoning Creek Lake vehicle maint. shop Hwy 79

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Montgomery TN 42223 Location: Status: Excess Status: Excess East of Lamar Road Comments: 29.67 acres; subject to existing Comments: 4.55 acres, wooded w/dirt road/ Status: Excess easements. fire break Comments: 6.92 acres; subject to existing Tracts 6005 and 6017 easements. COE Property Number: 31199011173 Tract 7206 Barkley Lake Tract 6827 Property Number: 31199010936 Dover Co: Stewart TN 37058 Property Number: 31199010927 Barkley Lake Location: Barkley Lake Dover Co: Stewart TN 37058 3 miles south of Village of Tobaccoport. Dover Co: Stewart TN 37058 Location: Status: Excess Location: 2 1⁄2 miles SE of Dover, TN. Comments: 5 acres; subject to existing 2 1⁄2 miles west of Dover, TN. Status: Excess easements. Status: Excess Comments: 10.15 acres; subject to existing Tracts K–1191, K–1135 Comments: .57 acres; subject to existing easements. Property Number: 31199130007 easements. Tracts 8813, 8814 Old Hickory Lock and Dam Tracts 6002–2 and 6010 Property Number: 31199010937 Hartsville Co: Trousdale TN 37074 Property Number: 31199010928 Barkley Lake Status: Underutilized Barkley Lake Cumberland Co: Stewart TN 37050 Comments: 54 acres, (portion in floodway), Dover Co: Stewart TN 37058 Location: most recent use—recreation Location: 1 1⁄2 miles East of Cumberland City. Tract A–102 3 1⁄2 miles south of village of Tabaccoport. Property Number: 31199140006 Status: Excess Status: Excess Dale Hollow Lake Project Comments: 100.86 acres; subject to existing Comments: 96 acres; subject to existing Canoe Ridge, State Hwy 52 easements. easements. Tract 8911 Celina Co: Clay TN 38551 Tract 11516 Status: Underutilized Property Number: 31199010929 Property Number: 31199010938 Barkley Lake Comments: 351 acres, most recent use— Barkley Lake hunting, subject to existing easements Ashland City Co: Dickson TN 37015 Cumberland City Co: Montgomery TN 37050 Tract A–120 Location: Location: Property Number: 31199140007 1/2 mile downstream from Cheatham Dam 4 miles east of Cumberland City. Dale Hollow Lake Project Status: Excess Status: Excess Swann Ridge, State Hwy No. 53 Comments: 26.25 acres; subject to existing Comments: 7.7 acres; subject to existing Celina Co: Clay TN 38551 easements. easements. Status: Underutilized Tract 2319 Tract 11503 Property Number: 31199010939 Comments: 883 acres, most recent use— Property Number: 31199010930 hunting, subject to existing easements J. Percy Priest Dam and Resorvoir Barkley Lake Tract D–185 Murfreesboro Co: Rutherford TN 37130 Ashland City Co: Cheatham TN 37015 Property Number: 31199140010 Location: Location: Dale Hollow Lake Project West of Buckeye Bottom Road 2 miles downstream from Cheatham Dam. Ashburn Creek, Hwy No. 53 Status: Excess Status: Excess Livingston Co: Clay TN 38570 Comments: 14.48 acres; subject to existing Comments: 1.1 acres; subject to existing Status: Underutilized easements. easements. Comments: 97 acres, most recent use— Tracts 11523, 11524 Tract 2227 hunting, subject to existing easements Property Number: 31199010931 Property Number: 31199010940 J. Percy Priest Dam and Resorvoir Barkley Lake Texas Ashland City Co: Cheatham TN 37015 Murfreesboro Co: Rutherford TN 37130 Air Force Location: Location: Old Jefferson Pike 2 1⁄2 miles downstream from Cheatham Dam. 0.13 acres Status: Excess Status: Excess Property Number: 18200810002 Comments: 2.27 acres; subject to existing Comments: 19.5 acres; subject to existing DYAB, Dyess AFB easements. easements. Tye Co: Taylor TX 79563 Status: Unutilized Tract 2107 Tract 6410 Property Number: 31199010941 Comments: Most recent use—middle marker, Property Number: 31199010932 access limitation J. Percy Priest Dam and Reservoir Barkley Lake Murfreesboro Co: Rutherford TN 37130 Bumpus Mills Co: Stewart TN 37028 Army Location: Location: 1 Building Across Fall Creek near Fall Creek camping 4 ⁄2 miles SW. of Bumpus Mills. area. Status: Excess Bldg. 7137, Fort Bliss Status: Excess Comments: 17 acres; subject to existing Property Number: 21199640564 Comments: 14.85 acres; subject to existing easements. El Paso Co: El Paso TX 79916 easements. Tract 9707 Status: Unutilized Tracts 2601, 2602, 2603, 2604 Property Number: 31199010943 Comments: 35,736 sq. ft., 3-story, most recent use—housing, off-site use only Property Number: 31199010933 Barkley Lake Cordell Hull Lake and Dam Project Palmyer Co: Montgomery TN 37142 Bldg. 92043 Doe Row Creek Location: Property Number: 21200020206 Gainesboro Co: Jackson TN 38562 3 miles NE of Palmyer, TN. Highway 149 Fort Hood Location: Status: Excess Ft. Hood Co: Bell TX 76544 TN Highway 56 Comments: 6.6 acres; subject to existing Status: Unutilized Status: Unutilized easements. Comments: 450 sq. ft., most recent use— Comments: 11 acres; subject to existing Tract 6949 storage, off-site use only easements. Property Number: 31199010944 Bldg. 92044 Tract 1911 Barkley Lake Property Number: 21200020207 Property Number: 31199010934 Dover Co: Stewart TN 37058 Fort Hood J. Percy Priest Dam and Reservoir Location: Ft. Hood Co: Bell TX 76544 Murfreesboro Co: Rutherford TN 37130 1 1⁄2 miles SE of Dover, TN. Status: Unutilized

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Comments: 1920 sq. ft., most recent use— Property Number: 21200330198 Bldg. 56435 admin., off-site use only Fort Sam Houston Property Number: 21200720093 Bldg. 92045 Camp Bullis Fort Hood Property Number: 21200020208 San Antonio Co: Bexar TX Bell TX 76544 Fort Hood Status: Unutilized Status: Excess Ft. Hood Co: Bell TX 76544 Comments: 384 sq. ft., most recent use— Comments: 3441 sq. ft., presence of asbestos, Status: Unutilized carport/storage, off-site use only most recent use—barracks, off-site use only Comments: 2108 sq. ft., most recent use— Bldg. 92039 Bldg. 05708 maint., off-site use only Property Number: 21200640101 Property Number: 21200720094 Bldg. 56305 Fort Hood Fort Hood Property Number: 21200220143 Ft. Hood Co: Bell TX 76544 Bell TX 76544 Fort Hood Status: Excess Status: Excess Ft. Hood Co: Bell TX 76544 Comments: 80 sq. ft., most recent use— Comments: 1344 sq. ft., most recent use— Status: Unutilized storage, off-site use only community center, off-site use only Comments: 2160 sq. ft., most recent use— Bldgs. 04281, 04283 Bldg. 90001 admin., off-site use only Property Number: 21200720085 Property Number: 21200720095 Bldgs. 56620, 56621 Fort Hood Fort Hood Property Number: 21200220146 Bell TX 76544 Bell TX 76544 Fort Hood Status: Excess Status: Excess Comments: 4000/8020 sq. ft., most recent Ft. Hood Co: Bell TX 76544 Comments: 3574 sq. ft., presence of asbestos, use—storage shed, off-site use only Status: Unutilized most recent use—transmitter bldg., off-site Comments: 1120 sq. ft., most recent use— Bldg. 04284 use only shower, off-site use only Property Number: 21200720086 Bldg. 93013 Fort Hood Bldgs. 56626, 56627 Property Number: 21200720099 Bell TX 76544 Property Number: 21200220147 Fort Hood Status: Excess Fort Hood Bell TX 76544 Comments: 800 sq. ft., presence of asbestos, Ft. Hood Co: Bell TX 76544 Status: Excess most recent use—storage shed, off-site use Comments: 800 sq. ft., most recent use—club, Status: Unutilized only Comments: 1120 sq. ft., most recent use— off-site use only shower, off-site use only Bldg. 04285 5 Bldgs. Property Number: 21200720087 Bldg. 56628 Property Number: 21200740195 Fort Hood Fort Hood Property Number: 21200220148 Bell TX 76544 Bell TX 76544 Fort Hood Status: Excess Location: 56541, 56546, 56547, 56548, 56638 Ft. Hood Co: Bell TX 76544 Comments: 8000 sq. ft., most recent use— Status: Excess Status: Unutilized storage shed, off-site use only Comments: 1133 sq. ft., most recent use— Comments: 1120/1133 sq. ft., presence of shower, off-site use only Bldg. 04286 asbestos, most recent use—lavatory, off-site Property Number: 21200720088 use only Bldgs. 56636, 56637 Fort Hood Property Number: 21200220150 Bell TX 76544 4 Bldgs. Fort Hood Status: Excess Property Number: 21200810048 Ft. Hood Co: Bell TX 76544 Comments: 36,000 sq. ft., presence of Fort Hood Status: Unutilized asbestos, most recent use—storage shed, Bell TX 76544 Comments: 1120 sq. ft., most recent use— off-site use only Location: 00229, 00230, 00231, 00232 shower, off-site use only Status: Unutilized Bldg. 04291 Bldg. 56638 Comments: Various sq. ft., presence of Property Number: 21200720089 asbestos, most recent use—training aids Property Number: 21200220151 Fort Hood center, off-site use only Fort Hood Bell TX 76544 Ft. Hood Co: Bell TX 76544 Status: Excess Bldg. 00324 Status: Unutilized Comments: 6400 sq. ft., presence of asbestos, Property Number: 21200810049 Comments: 1133 sq. ft., most recent use— most recent use—storage shed, off-site use Fort Hood shower, off-site use only only Bell TX 76544 Status: Unutilized Bldgs. 56703, 56708 Bldg. 4410 Comments: 13,319 sq. ft., most recent use— Property Number: 21200220152 Property Number: 21200720090 roller skating rink, off-site use only Fort Hood Fort Hood Ft. Hood Co: Bell TX 76544 Bell TX 76544 Bldgs. 00710, 00739, 00741 Status: Unutilized Status: Excess Property Number: 21200810050 Comments: 1306 sq. ft., most recent use— Comments: 12,956 sq. ft., presence of Fort Hood shower, off-site use only asbestos, most recent use—simulation Bell TX 76544 Bldg. 56758 center, off-site use only Status: Unutilized Property Number: 21200220154 Bldgs. 10031, 10032, 10033 Comments: Various sq. ft., presence of Fort Hood Property Number: 21200720091 asbestos, most recent use—repair shop, off- Ft. Hood Co: Bell TX 76544 Fort Hood site use only Status: Unutilized Bell TX 76544 5 Bldgs. Comments: 1133 sq. ft., most recent use— Status: Excess Property Number: 21200810051 shower, off-site use only Comments: 2578/3383 sq. ft., presence of Fort Hood Bldgs. P6220, P6222 asbestos, most recent use—admin., off-site Bell TX 76544 Property Number: 21200330197 use only Location: 00711, 00712, 02219, 02612, 05780 Fort Sam Houston Bldgs. 56524, 56532 Status: Unutilized Camp Bullis Property Number: 21200720092 Comments: Various sq. ft., presence of San Antonio Co: Bexar TX Fort Hood asbestos, most recent use—storage, off-site Status: Unutilized Bell TX 76544 use only Comments: 384 sq. ft., most recent use— Status: Excess Bldg. 00713 carport/storage, off-site use only Comments: 600 sq. ft., presence of asbestos, Property Number: 21200810052 Bldgs. P6224, P6226 most recent use—dining, off-site use only Fort Hood

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Bell TX 76544 Location: 56622, 56623, 56624, 56625, 56629, 1901 South 1st Street Status: Unutilized 56632, 56633, 56634, 56635, 56639 Temple Co: Bell TX 76504 Comments: 3200 sq. ft., presence of asbestos, Status: Excess Status: Underutilized most recent use—hdqts. bldg., off-site use Comments: 500/507 sq. ft., presence of Comments: 13 acres, portion formerly only asbestos, most recent use—dining, off-site landfill, portion near flammable materials, Bldgs. 1938, 04229 use only railroad crosses property, potential Property Number: 21200810053 6 Bldgs. utilities. Fort Hood Property Number: 21200840070 Utah Bell TX 76544 Fort Hood Status: Unutilized Bell TX 76544 Army Comments: 2736/9000 sq. ft., presence of Location: 56412, 57023, 57024, 57025, 57009, Building asbestos, most recent use—admin., off-site 57010 use only Bldg. 00001 Status: Excess Property Number: 21200740196 Bldgs. 02218, 02220 Comments: Presence of asbestos, most recent Borgstrom Hall USARC Property Number: 21200810054 use—storage, off-site use only Ogden UT 84401 Fort Hood 9 Bldgs. Status: Excess Bell TX 76544 Property Number: 21200840071 Comments: 16543 sq. ft., most recent use— Status: Unutilized Fort Hood training center, off-site use only Comments: 7289/1456 sq. ft., presence of Bell TX 76544 Bldg. 00002 asbestos, most recent use—museum, off- Location: 56529, 56618, 56702, 56710, 56752, site use only Property Number: 21200740197 56753, 56754, 56755, 56759 Borgstrom Hall USARC Bldg. 0350 Status: Excess Ogden UT 84401 Property Number: 21200810055 Comments: Presence of asbestos, most recent Status: Excess Fort Hood use—dining facility, off-site use only Comments: 3842 sq. ft., most recent use— Bell TX 76544 Bldgs. 56703 vehicle maint. shop, off-site use only Status: Unutilized Property Number: 21200840072 Bldg. 00005 Comments: 28,290 sq. ft., presence of Fort Hood Property Number: 21200740198 asbestos, most recent use—veh. maint. Bell TX 76544 Borgstrom Hall USARC shop, off-site use only Status: Excess Ogden UT 84401 Bldg. 04449 Comments: 1306 sq. ft., presence of asbestos, Status: Excess Property Number: 21200810056 most recent use—shower, off-site use only Comments: 96 sq. ft., most recent use— Fort Hood Bldg. 57005 storage, off-site use only Bell TX 76544 Property Number: 21200840073 Status: Unutilized Fort Hood Virginia Comments: 3822 sq. ft., most recent use— Bell TX 76544 Fort Story police station, off-site use only Status: Excess Property Number: 21200720065 Bldg. 91077 Comments: 500 sq. ft., presence of asbestos, Ft. Story VA 23459 Property Number: 21200810057 most recent use—water supply/treatment, Status: Unutilized Fort Hood off-site use only Comments: 525 sq. ft., most recent use— Bell TX 76544 power plant, off-site use only Land Status: Unutilized Bldg. 01633 Comments: 3200 sq. ft., presence of asbestos, 1 acre Property Number: 21200720076 most recent use—educational facility, off- Property Number: 21200440075 Fort Eustis site use only Fort Sam Houston Ft. Eustis VA 23604 Bldg. 1610 San Antonio Co: Bexar TX 78234 Status: Unutilized Property Number: 21200810059 Status: Excess Comments: 240 sq. ft., most recent use— Fort Bliss Comments: 1 acre, grassy area storage, off-site use only El Paso TX 79916 GSA Bldg. 02786 Status: Excess Building Property Number: 21200720084 Comments: 11056 sq. ft., concrete/stucco, Fort Eustis most recent use—gas station/store, off-site FAA Outermarker Ft. Eustis VA 23604 use only Property Number: 54201040019 Status: Unutilized Bldg. 1680 13418 Kuykendahl Rd Comments: 1596 sq. ft., most recent use— Property Number: 21200810060 Houston TX 77090 admin., off-site use only Fort Bliss Status: Surplus Bldg. P0838 El Paso TX 79916 Comments: 48 sq. ft, construction/alteration Property Number: 21200830005 Status: Excess prohibited unless a determination of no Fort Eustis Comments: 3690 sq. ft., concrete/stucco, most hazard to air navigation is issued by the Ft. Eustis VA 23604 recent use—restaurant, off-site use only FAA, restrictions imposed by ordinances of Status: Unutilized the city of Houston, possible abestos/PCBs 12 Bldgs. Comments: 576 sq. ft., most recent use—rec Property Number: 21200820153 GSA Number: 7–U–TX–1128 shelter, off-site use only Fort Hood Land Interior Ft. Hood TX 76544 FAA Outermarker Location: 56522, 56523, 56525, 56533, 56534, Tract 05–151, Qtrs. 11 Property Number: 54201040002 Property Number: 61201040001 56535, 56539, 56542, 56543, 56544, 56545, Rt. 156/Rt. 407 56549 National Park Service Justin TX 76247 Spotsylvania VA 22553 Status: Excess Status: Surplus Comments: 600/607 sq. ft., presence of Status: Excess Comments: 0.38 acre, FAA restrictions Comments: 1642 sq. ft., off-site use only asbestos, most recent use—dining, off-site GSA Number: 7–U–TX–1127 use only Washington 10 Bldgs. VA Property Number: 21200820154 Land Army Fort Hood Property Number: 97199010079 Bldg. CO909, Fort Lewis Ft. Hood TX 76544 Olin E. Teague Veterans Center Property Number: 21199630205

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Ft. Lewis Co: Pierce WA 98433–9500 Comments: 1984 sq. ft., possible asbestos/ Fort Lewis Status: Unutilized lead paint, needs rehab, most recent use— Ft. Lewis Co: Pierce WA 98433 Comments: 1984 sq. ft., possible asbestos/ storage, off-site use only Location: U014A, U022B, U023A, U043B, lead paint, most recent use—admin., off- Bldg. 5162 U059B, U060A, U101A site use only Property Number: 21199830419 Status: Excess Bldg. 1164, Fort Lewis Fort Lewis Comments: Needs repair, presence of Property Number: 21199630213 Ft. Lewis Co: Pierce WA 98433 asbestos/lead paint, most recent use—ofc/ Ft. Lewis Co: Pierce WA 98433–9500 Status: Unutilized tower/support, off-site use only Status: Unutilized Comments: 2360 sq. ft., needs repair, Bldg. U015J Comments: 230 sq. ft., possible asbestos/lead presence of asbestos/lead paint, most Property Number: 21199920246 paint, most recent use—storehouse, off-site recent use—office, off-site use only Fort Lewis use only Bldg. 5224 Ft. Lewis Co: Pierce WA 98433 Status: Excess Bldg. 1307, Fort Lewis Property Number: 21199830433 Comments: 144 sq. ft., needs repair, presence Property Number: 21199630216 Fort Lewis Ft. Lewis Co: Pierce WA 98433 of asbestos/lead paint, most recent use— Ft. Lewis Co: Pierce WA 98433–9500 tower, off-site use only Status: Unutilized Status: Unutilized Comments: 1092 sq. ft., possible asbestos/ Comments: 2360 sq. ft., needs repair, Bldg. U018B lead paint, most recent use—storage, off- presence of asbestos/lead paint, most Property Number: 21199920247 site use only recent use—educ. fac., off-site use only Fort Lewis Bldg. U001B Ft. Lewis Co: Pierce WA 98433 Bldg. 1309, Fort Lewis Property Number: 21199920237 Status: Unutilized Property Number: 21199630217 Fort Lewis Comments: 121 sq. ft., needs repair, presence Ft. Lewis Co: Pierce WA 98433–9500 Ft. Lewis Co: Pierce WA 98433 of asbestos/lead paint, most recent use— Status: Unutilized Status: Excess range house, off-site use only Comments: 1092 sq. ft., possible asbestos/ Comments: 54 sq. ft., needs repair, presence Bldg. U018C lead paint, most recent use—storage, off- of asbestos/lead paint, most recent use— Property Number: 21199920248 site use only control tower, off-site use only Fort Lewis Bldg. 2167, Fort Lewis Bldg. U001C Ft. Lewis Co: Pierce WA 98433 Property Number: 21199630218 Property Number: 21199920238 Status: Unutilized Ft. Lewis Co: Pierce WA 98433–9500 Fort Lewis Comments: 48 sq. ft., needs repair, presence Status: Unutilized Ft. Lewis Co: Pierce WA 98433 of asbestos/lead paint, off-site use only Comments: 288 sq. ft., possible asbestos/lead Status: Unutilized Bldg. U024D paint, most recent use—warehouse, off-site Comments: 960 sq. ft., needs repair, presence Property Number: 21199920250 use only of asbestos/lead paint, most recent use— Fort Lewis Bldg. 4078, Fort Lewis supply, off-site use only Ft. Lewis Co: Pierce WA 98433 Property Number: 21199630219 10 Bldgs. Status: Unutilized Ft. Lewis Co: Pierce WA 98433–9500 Property Number: 21199920239 Comments: 120 sq. ft., needs repair, presence Status: Unutilized Fort Lewis of asbestos/lead paint, most recent use— Comments: 10200 sq. ft., needs rehab, Ft. Lewis Co: Pierce WA 98433 ammo bldg., off-site use only possible asbestos/lead paint, most recent Location: U002B, U002C, U005C, U015I, Bldg. U027A use—warehouse, off-site use only U016E, U019C, U022A, U028B, 0091A, Property Number: 21199920251 Bldg. 9599, Fort Lewis U093C Fort Lewis Property Number: 21199630220 Status: Excess Ft. Lewis Co: Pierce WA Ft. Lewis Co: Pierce WA 98433–9500 Comments: 600 sq. ft., needs repair, presence Status: Excess Status: Unutilized of asbestos/lead paint, most recent use— Comments: 64 sq. ft., needs repair, presence Comments: 12366 sq. ft., possible asbestos/ range house, off-site use only of asbestos/lead paint, most recent use— lead paint, most recent use—warehouse, 6 Bldgs. tire house, off-site use only off-site use only Property Number: 21199920240 Bldg. U031A Bldg. A1404, Fort Lewis Fort Lewis Property Number: 21199920253 Property Number: 21199640570 Ft. Lewis Co: Pierce WA 98433 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Location: U003A, U004B, U006C, U015B, Ft. Lewis Co: Pierce WA 98433 Status: Unutilized U016B, U019B Status: Excess Comments: 557 sq. ft., needs rehab, most Status: Unutilized Comments: 3456 sq. ft., needs repair, recent use—storage, off-site use only Comments: 54 sq. ft., needs repair, presence presence of asbestos/lead paint, most Bldg. EO347 of asbestos/lead paint, most recent use— recent use—line shed, off-site use only Property Number: 21199710156 control tower, off-site use only Bldg. U031C Fort Lewis Bldg. U004D Property Number: 21199920254 Ft. Lewis Co: Pierce WA 98433 Property Number: 21199920241 Fort Lewis Status: Unutilized Fort Lewis Ft. Lewis Co: Pierce WA 98433 Comments: 1800 sq. ft., possible asbestos/ Ft. Lewis Co: Pierce WA 98433 Status: Unutilized lead paint, most recent use—office, off-site Status: Unutilized Comments: 32 sq. ft., needs repair, presence use only Comments: 960 sq. ft., needs repair, presence of asbestos/lead paint, off-site use only Bldg. B1008, Fort Lewis of asbestos/lead paint, most recent use— Bldg. U040D Property Number: 21199720216 supply, off-site use only Property Number: 21199920255 Ft. Lewis Co: Pierce WA 98433 Bldg. U005A Fort Lewis Status: Unutilized Property Number: 21199920242 Ft. Lewis Co: Pierce WA 98433 Comments: 7387 sq. ft., 2-story, needs rehab, Fort Lewis Status: Excess possible asbestos/lead paint, most recent Ft. Lewis Co: Pierce WA 98433 Comments: 800 sq. ft., needs repair, presence use—medical clinic, off-site use only Status: Unutilized of asbestos/lead paint, most recent use— Bldgs. CO509, CO709, CO720 Comments: 360 sq. ft., needs repair, presence range house, off-site use only Property Number: 21199810372 of asbestos/lead paint, most recent use— Bldgs. U052C, U052H Fort Lewis control tower, off-site use only Property Number: 21199920256 Ft. Lewis Co: Pierce WA 98433 7 Bldgs. Fort Lewis Status: Unutilized Property Number: 21199920245 Ft. Lewis Co: Pierce WA 98433

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Status: Excess Comments: 1600 sq. ft., needs repair, Ft. Lewis Co: Pierce WA 98433 Comments: Various sq. ft., needs repair, presence of asbestos/lead paint, most Status: Excess presence of asbestos/lead paint, most recent use—shelter, off-site use only Comments: 400 sq. ft., needs repair, presence recent use—range house, off-site use only 3 Bldgs. of asbestos/lead paint, most recent use— Bldgs. U035A, U035B Property Number: 21199920266 support, off-site use only Property Number: 21199920257 Fort Lewis Bldg. C0120 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Property Number: 21199920281 Ft. Lewis Co: Pierce WA 98433 Location: U058A, U103A, U018A Fort Lewis Status: Excess Status: Excess Ft. Lewis Co: Pierce WA 98433 Comments: 192 sq. ft., needs repair, presence Comments: 36 sq. ft., needs repair, presence Status: Excess of asbestos/lead paint, most recent use— of asbestos/lead paint, most recent use— Comments: 384 sq. ft., needs repair, presence shelter, offsite use only control tower, off-site use only of asbestos/lead paint, most recent use— Bldg. U035C Bldg. U059A scale house, off-site use only Property Number: 21199920258 Property Number: 21199920267 Bldg. 01205 Fort Lewis Fort Lewis Property Number: 21199920290 Ft. Lewis Co: Pierce WA 98433 Ft. Lewis Co: Pierce WA 98433 Fort Lewis Status: Excess Status: Excess Ft. Lewis Co: Pierce WA 98433 Comments: 242 sq. ft., needs repair, presence Comments: 16 sq. ft., needs repair, presence Status: Excess of asbestos/lead paint, most recent use— of asbestos/lead paint, most recent use— Comments: 87 sq. ft., needs repair, presence range house, off-site use only tower, offsite use only of asbestos/lead paint, most recent use— Bldg. U039A Bldg. U093B storehouse, off-site use only Property Number: 21199920259 Property Number: 21199920268 Bldg. 01259 Fort Lewis Fort Lewis Property Number: 21199920291 Ft. Lewis Co: Pierce WA 98433 Ft. Lewis Co: Pierce WA 98433 Fort Lewis Status: Excess Status: Excess Ft. Lewis Co: Pierce WA 98433 Comments: 36 sq. ft., needs repair, presence Comments: 680 sq. ft., needs repair, presence Status: Excess of asbestos/lead paint, most recent use— of asbestos/lead paint, most recent use— Comments: 16 sq. ft., needs repair, presence control tower, off-site use only range house, off-site use only of asbestos/lead paint, most recent use— Bldg. U039B 4 Bldgs. storage, offsite use only Property Number: 21199920260 Property Number: 21199920269 Bldg. 01266 Fort Lewis Fort Lewis Property Number: 21199920292 Ft. Lewis Co: Pierce WA 98433 Ft. Lewis Co: Pierce WA 98433 Fort Lewis Status: Excess Location: U101B, U101C, U507B, U557A Ft. Lewis Co: Pierce WA 98433 Comments: 1600 sq. ft., needs repair, Status: Excess Status: Excess presence of asbestos/lead paint, most Comments: 400 sq. ft., needs repair, presence Comments: 45 sq. ft., needs repair, presence recent use—grandstand/bleachers, off-site of asbestos/lead paint, off-site use only of asbestos/lead paint, most recent use— use only Bldg. U110B shelter, offsite use only Bldg. U039C Property Number: 21199920272 Bldg. 1445 Property Number: 21199920261 Fort Lewis Property Number: 21199920294 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Status: Excess Ft. Lewis Co: Pierce WA 98433 Status: Excess Comments: 138 sq. ft., needs repair, presence Status: Excess Comments: 600 sq. ft., needs repair, presence of asbestos/lead paint, most recent use— Comments: 144 sq. ft., needs repair, presence of asbestos/lead paint, most recent use— support, off-site use only of asbestos/lead paint, most recent use— support, off-site use only 6 Bldgs. generator bldg., off-site use only Bldg. U043A Property Number: 21199920273 Bldgs. 03091, 03099 Property Number: 21199920262 Fort Lewis Property Number: 21199920296 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Fort Lewis Ft. Lewis Co: Pierce WA 98433 Location: U111A, U015A, U024E, U052F, Ft. Lewis Co: Pierce WA 98433 Status: Excess U109A, U110A Status: Excess Comments: 132 sq. ft., needs repair, presence Status: Excess Comments: various sq. ft., needs repair, of asbestos/lead paint, most recent use— Comments: 1000 sq. ft., needs repair, presence of asbestos/lead paint, most range house, off-site use only presence of asbestos/lead paint, most recent use—sentry station, off-site use only Bldg. U052A recent use—support/shelter/mess, off-site Bldg. 4040 Property Number: 21199920263 use only Property Number: 21199920298 Fort Lewis Bldg. U112A Fort Lewis Ft. Lewis Co: Pierce WA 98433 Property Number: 21199920274 Ft. Lewis Co: Pierce WA 98433 Status: Excess Fort Lewis Status: Excess Comments: 69 sq. ft., needs repair, presence Ft. Lewis Co: Pierce WA 98433 Comments: 8326 sq. ft., needs repair, of asbestos/lead paint, most recent use— Status: Excess presence of asbestos/lead paint, most tower, offsite use only Comments: 1600 sq. ft., needs repair, recent use—shed, offsite use only Bldg. U052E presence of asbestos/lead paint, most Bldgs. 4072, 5104 Property Number: 21199920264 recent use—shelter, off-site use only Property Number: 21199920299 Fort Lewis Bldg. U115A Fort Lewis Ft. Lewis Co: Pierce WA 98433 Property Number: 21199920275 Ft. Lewis Co: Pierce WA 98433 Status: Excess Fort Lewis Status: Excess Comments: 600 sq. ft., needs repair, presence Ft. Lewis Co: Pierce WA 98433 Comments: 24/36 sq. ft., needs repair, of asbestos/lead paint, most recent use— Status: Excess presence of asbestos/lead paint, off-site use storage, off-site use only Comments: 36 sq. ft., needs repair, presence only Bldg. U052G of asbestos/lead paint, most recent use— Bldg. 4295 Property Number: 21199920265 tower, offsite use only Property Number: 21199920300 Fort Lewis Bldg. U507A Fort Lewis Ft. Lewis Co: Pierce WA 98433 Property Number: 21199920276 Ft. Lewis Co: Pierce WA 98433 Status: Excess Fort Lewis Status: Excess

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Comments: 48 sq. ft., needs repair, presence Comments: 36 sq. ft., needs repair, presence Reason: expression of interest of asbestos/lead paint, most recent use— of asbestos/lead paint, most recent use— Dalton-Cache Border Station storage, offsite use only gas station, off-site use only Property Number: 54201010019 Bldg. 6191 Mile 42 Haines Highway West Virginia Property Number: 21199920303 Haines AK 99827 Fort Lewis COE Status: Excess GSA Number: 9–G–AK–0833 Ft. Lewis Co: Pierce WA 98433 Bldg. WIN–01–S–09 Reason: advertised for sale Status: Excess Property Number: 31201030006 Comments: 3663 sq. ft., needs repair, Winfield Locks & Dam Arizona presence of asbestos/lead paint, most Redhouse WV 25168 recent use—exchange branch, off-site use Status: Unutilized Army only Comments: 1872 sq. ft., most recent use— Bldg. 22529 Bldgs. 08076, 08080 storage, off-site use only Property Number: 21200520077 Property Number: 21199920304 Fort Huachuca Fort Lewis Wisconsin Cochise AZ 85613–7010 Ft. Lewis Co: Pierce WA 98433 VA Status: Excess Status: Excess Reason: occupied Land Comments: 3660/412 sq. ft., needs repair, Bldg. 22541 presence of asbestos/lead paint, off-site use VA Medical Center Property Number: 21200520078 only Property Number: 97199010054 Fort Huachuca Bldg. 08093 County Highway E Cochise AZ 85613–7010 Property Number: 21199920305 Tomah Co: Monroe WI 54660 Status: Excess Fort Lewis Status: Underutilized Reason: occupied Ft. Lewis Co: Pierce WA 98433 Comments: 12.4 acres, serves as buffer Bldg. 30020 Status: Excess between center and private property, no Property Number: 21200520079 Comments: 289 sq. ft., needs repair, presence utilities. Fort Huachuca of asbestos/lead paint, most recent use— TITLE V PROPERTIES REPORTED IN YEAR Cochise AZ 85613–7010 boat storage, off-site use only 2010 WHICH ARE SUITABLE AND Status: Excess Bldg. 8279 UNAVAILABLE Reason: occupied Property Number: 21199920306 Bldg. 30021 Alabama Fort Lewis Property Number: 21200520080 Ft. Lewis Co: Pierce WA 98433 Army Fort Huachuca Cochise AZ 85613–7010 Status: Excess Building Comments: 210 sq. ft., needs repair, presence Status: Excess of asbestos/lead paint, most recent use— Bldg. 01433 Reason: occupied fuel disp. fac., off-site use only Property Number: 21200220098 Bldg. 22040 Bldgs. 8280, 8291 Fort Rucker Property Number: 21200540076 Property Number: 21199920307 Ft. Rucker Co: Dale AL 36362 Fort Huachuca Fort Lewis Status: Excess Cochise AZ 85613 Ft. Lewis Co: Pierce WA 98433 Reason: being utilized Status: Excess Status: Excess Bldg. 30105 Reason: occupied Comments: 800/464 sq. ft., needs repair, Property Number: 21200510052 Bldg. 22540 presence of asbestos/lead paint, most Fort Rucker Property Number: 21200620067 recent use—storage, off-site use only Ft. Rucker Co: Dale AL 36362 Fort Huachuca Bldg. 8956 Status: Excess Cochise AZ 85613–7010 Property Number: 21199920308 Reason: occupied Status: Excess Fort Lewis Bldg. 40115 Reason: occupied Property Number: 21200510053 Ft. Lewis Co: Pierce WA 98433 GSA Status: Excess Fort Rucker Comments: 100 sq. ft., needs repair, presence Ft. Rucker Co: Dale AL 36362 Land of asbestos/lead paint, most recent use— Status: Excess Salt River Project storage, off-site use only Reason: occupied Property Number: 54200920001 Bldg. 9530 Bldg. 25303 Pecos/Alma School Road Property Number: 21199920309 Property Number: 21200520074 #USBR–08–020 Fort Lewis Fort Rucker Chander AZ 85225 Ft. Lewis Co: Pierce WA 98433 Dale AL 36362 Status: Surplus Status: Excess Status: Excess GSA Number: 9–I–AZ–0850 Comments: 64 sq. ft., needs repair, presence Reason: occupied Reason: expression of interest of asbestos/lead paint, most recent use— Bldg. 25304 0.23 acres sentry station, off-site use only Property Number: 21200520075 Property Number: 54201010005 Bldg. 9574 Fort Rucker 87th Ave. Property Number: 21199920310 Dale AL 36362 Glendale AZ Fort Lewis Status: Excess Status: Excess Ft. Lewis Co: Pierce WA 98433 Reason: occupied GSA Number: 9–I–AZ–853 Status: Excess Alaska Reason: expression of interest Comments: 6005 sq. ft., needs repair, Guadalupe Road Land presence of asbestos/lead paint, most GSA Property Number: 54201010012 recent use—veh. shop., off-site use only Salmonberry Qtrs. Ironwood Road Bldg. 9596 Property Number: 54200940001 Apache Junction AZ 95971 Property Number: 21199920311 157 Salmonberry Status: Surplus Fort Lewis Bethel AK 99559 GSA Number: 9–AZ–851–1 Ft. Lewis Co: Pierce WA 98433 Status: Excess Reason: expression of interest Status: Excess GSA Number: 9–U–AK–825 Houston Road Land

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Property Number: 54201010013 Property Number: 21200420177 Property Number: 21200420029 Ironwood Road Fort Carson Hunter Army Airfield Apache Junction AZ 85278 Ft. Carson Co: El Paso CO 80913 Garrison Co: Chatham GA 31409 Status: Surplus Status: Unutilized Status: Excess GSA Number: 9–AZ–854 Reason: in use Reason: in use Reason: expression of interest Bldg. 06225 Bldg. 8659 Land Property Number: 21200520084 Property Number: 21200420030 Property Number: 54201010014 Fort Carson Hunter Army Airfield 95th Ave/Bethany Home Rd El Paso CO 80913–4001 Garrison Co: Chatham GA 31409 Glendale AZ 85306 Status: Unutilized Status: Excess Status: Surplus Reason: occupied Reason: in use GSA Number: 9–AZ–852 Georgia Bldgs. 8675, 8676 Reason: expression of interest Property Number: 21200420031 0.30 acre Bldg. T201 Hunter Army Airfield Property Number: 54201030010 Property Number: 21200420002 Garrison Co: Chatham GA 31409 Bethany Home Road Hunter Army Airfield Status: Excess Glendale AZ 85306 Garrison Co: Chatham GA 31409 Reason: in use Status: Excess Status: Excess Bldg. 5978 GSA Number: 9–I–AZ–0859 Reason: in use Property Number: 21200420038 Reason: expression of interest Bldg. T234 Fort Benning Property Number: 21200420008 Ft. Benning Co: Chattachoochee GA 31905 California Hunter Army Airfield Status: Excess GSA Garrison Co: Chatham GA 31409 Reason: in use Building Status: Excess Bldg. 5993 Reason: in use Property Number: 21200420041 Defense Fuel Support Pt. Bldg. T702 Fort Benning Property Number: 54200810001 Property Number: 21200420010 Ft. Benning Co: Chattachoochee GA 31905 Estero Bay Facility Hunter Army Airfield Status: Excess Morro Bay CA 93442 Garrison Co: Chatham GA 31409 Reason: in use Status: Surplus Status: Excess Bldg. 5994 GSA Number: 9–N–CA–1606 Reason: in use Property Number: 21200420042 Reason: sale in progress Bldg. T703 Fort Benning Former SSA Bldg. Property Number: 21200420011 Ft. Benning Co: Chattachoochee GA 31905 Property Number: 54201020002 Hunter Army Airfield Status: Excess 1230 12th Street Garrison Co: Chatham GA 31409 Reason: in use Modesto CA 95354 Status: Excess Bldg. 5995 Status: Surplus Reason: in use Property Number: 21200420043 GSA Number: 9–G–CA–1610 Bldg. T704 Fort Benning Reason: Expressions of interest Property Number: 21200420012 Ft. Benning Co: Chattachoochee GA 31905 Quincy Scaling Station Hunter Army Airfield Status: Excess Property Number: 54200930004 Garrison Co: Chatham GA 31409 Reason: in use 1495 E. Main St. Status: Excess Bldg. T01 Quincy CA 95971 Reason: in use Property Number: 21200420181 Status: Surplus Bldg. P813 Fort Stewart GSA Number: 9–A–CA–1679–1 Property Number: 21200420013 Ft. Stewart Co: Liberty GA 31314 Reason: expression of interest Hunter Army Airfield Status: Excess Parcel F–2 Right of Way Garrison Co: Chatham GA 31409 Reason: in use Property Number: 54201030012 Status: Excess Bldg. T04 Seal Beach CA 90740 Reason: in use Property Number: 21200420182 Status: Surplus Bldgs. S843, S844, S845 Fort Stewart GSA Number: 9–N–CA–1508–AI Property Number: 21200420014 Ft. Stewart Co: Liberty GA 31314 Reason: expression of interest Hunter Army Airfield Status: Excess Parcel F–4 Right of Way Garrison Co: Chatham GA 31409 Reason: in use Property Number: 54201030014 Status: Excess Bldg. T05 Seal Beach CA Reason: in use Property Number: 21200420183 Status: Surplus Bldg. P925 Fort Stewart GSA Number: 9–N–CA–1508–AK Property Number: 21200420015 Ft. Stewart Co: Liberty GA 31314 Reason: expression of interest Hunter Army Airfield Status: Excess Colorado Garrison Co: Chatham GA 31409 Reason: in use Status: Excess Army Bldg. T06 Reason: in use Property Number: 21200420184 Bldg. S6264 Bldg. P1277 Fort Stewart Property Number: 21200340084 Property Number: 21200420024 Ft. Stewart Co: Liberty GA 31314 Fort Carson Hunter Army Airfield Status: Excess Ft. Carson Co: El Paso CO 80913 Garrison Co: Chatham GA 31409 Reason: in use Status: Unutilized Status: Excess Bldg. T55 Reason: occupied Reason: in use Property Number: 21200420187 Bldg. S6285 Bldg. T1412 Fort Stewart Property Number: 21200420176 Property Number: 21200420025 Ft. Stewart Co: Liberty GA 31314 Fort Carson Hunter Army Airfield Status: Excess Ft. Carson Co: El Paso CO 80913 Garrison Co: Chatham GA 31409 Reason: in use Status: Unutilized Status: Excess Bldg. T85 Reason: in use Reason: in use Property Number: 21200420188 Bldg. S6287 Bldg. 8658 Fort Stewart

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Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19226 Status: Excess Bldg. 19204 thru 19207 Property Number: 21200420234 Reason: in use Property Number: 21200420222 Fort Stewart Bldg. T131 Fort Stewart Ft. Stewart Co: Liberty GA 31314 Property Number: 21200420189 Ft. Stewart Co: Liberty GA 31314 Status: Excess Fort Stewart Status: Excess Reason: in use Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. T19228 Status: Excess Bldgs. 19208 thru 19211 Property Number: 21200420235 Reason: in use Property Number: 21200420223 Fort Stewart Bldg. T132 Fort Stewart Ft. Stewart Co: Liberty GA 31314 Property Number: 21200420190 Ft. Stewart Co: Liberty GA 31314 Status: Excess Fort Stewart Status: Excess Reason: in use Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19229 Status: Excess Bldg. 19212 Property Number: 21200420236 Reason: in use Property Number: 21200420224 Fort Stewart Bldg. T157 Fort Stewart Ft. Stewart Co: Liberty GA 31314 Property Number: 21200420191 Ft. Stewart Co: Liberty GA 31314 Status: Excess Fort Stewart Status: Excess Reason: in use Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19232 Status: Excess Bldg. 19213 Property Number: 21200420237 Reason: in use Property Number: 21200420225 Fort Stewart Bldg. 01002 Fort Stewart Ft. Stewart Co: Liberty GA 31314 Property Number: 21200420197 Ft. Stewart Co: Liberty GA 31314 Status: Excess Reason: in use Fort Stewart Status: Excess Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19233 Property Number: 21200420238 Status: Excess Bldg. 19214 Reason: in use Fort Stewart Property Number: 21200420226 Ft. Stewart Co: Liberty GA 31314 Bldg. 01003 Fort Stewart Status: Excess Property Number: 21200420198 Ft. Stewart Co: Liberty GA 31314 Reason: in use Fort Stewart Status: Excess Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19236 Status: Excess Property Number: 21200420239 Bldg. 19215 Reason: in use Fort Stewart Property Number: 21200420227 Ft. Stewart Co: Liberty GA 31314 Bldg. 19101 Fort Stewart Property Number: 21200420215 Status: Excess Ft. Stewart Co: Liberty GA 31314 Reason: in use Fort Stewart Status: Excess Ft. Stewart Co: Liberty GA 31314 Reason: in use Bldg. 19238 Status: Excess Property Number: 21200420240 Reason: in use Bldg. 19216 Fort Stewart Property Number: 21200420228 Ft. Stewart Co: Liberty GA 31314 Bldg. 19102 Fort Stewart Property Number: 21200420216 Status: Excess Ft. Stewart Co: Liberty GA 31314 Reason: in use Fort Stewart Status: Excess Bldg. 01674 Ft. Stewart Co: Liberty GA 31314 Reason: in use Status: Excess Property Number: 21200510056 Reason: in use Bldg. 19217 Fort Benning Property Number: 21200420229 Bldg. T19111 Ft. Benning Co: Chattachoochee GA 31905 Fort Stewart Property Number: 21200420217 Status: Unutilized Ft. Stewart Co: Liberty GA 31314 Fort Stewart Reason: occupied Status: Excess Ft. Stewart Co: Liberty GA 31314 Bldg. 01675 Reason: in use Status: Excess Property Number: 21200510057 Reason: in use Bldg. 19218 Fort Benning Property Number: 21200420230 Bldg. 19112 Ft. Benning Co: Chattachoochee GA 31905 Fort Stewart Property Number: 21200420218 Status: Unutilized Ft. Stewart Co: Liberty GA 31314 Fort Stewart Reason: occupied Status: Excess Ft. Stewart Co: Liberty GA 31314 Bldg. 01676 Status: Excess Reason: in use Property Number: 21200510058 Reason: in use Bldgs. 19219, 19220 Fort Benning Bldg. 19113 Property Number: 21200420231 Ft. Benning Co: Chattachoochee GA 31905 Property Number: 21200420219 Fort Stewart Status: Unutilized Fort Stewart Ft. Stewart Co: Liberty GA 31314 Reason: occupied Ft. Stewart Co: Liberty GA 31314 Status: Excess Bldg. 01677 Status: Excess Reason: in use Property Number: 21200510059 Reason: in use Bldg. 19223 Fort Benning Bldg. T19201 Property Number: 21200420232 Ft. Benning GA 31905 Property Number: 21200420220 Fort Stewart Status: Unutilized Fort Stewart Ft. Stewart Co: Liberty GA 31314 Reason: occupied Ft. Stewart Co: Liberty GA 31314 Status: Excess Bldg. 01678 Status: Excess Reason: in use Property Number: 21200510060 Reason: in use Bldg. 19225 Fort Benning Bldg. 19202 Property Number: 21200420233 Ft. Benning Co: Chattachoochee GA 31905 Property Number: 21200420221 Fort Stewart Status: Unutilized Fort Stewart Ft. Stewart Co: Liberty GA 31314 Reason: occupied Ft. Stewart Co: Liberty GA 31314 Status: Excess Bldg. 00051 Status: Excess Reason: in use Property Number: 21200520087

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Fort Stewart Status: Excess Grand Chain Co: Pulaski IL 62941–9801 Liberty GA 31314 Reason: occupied Status: Unutilized Status: Excess Bldg. 08031 Reason: project integrity and security; safety Reason: occupied Property Number: 21200610050 liability Bldg. 00052 Fort Stewart Bldg. 2 Property Number: 21200520088 Liberty GA 31314 Property Number: 31199010006 Fort Stewart Status: Excess Ohio River Locks No. 53 Liberty GA 31314 Reason: occupied Grand Chain Co: Pulaski IL 62941–9801 Status: Excess Bldg. 08081 Status: Unutilized Reason: occupied Property Number: 21200610052 Reason: project integrity and security; safety Bldg. 00053 Fort Stewart liability Property Number: 21200520089 Liberty GA 31314 Bldg. 1 Fort Stewart Status: Excess Property Number: 31199010007 Liberty GA 31314 Reason: occupied Ohio River Locks No. 53 Status: Excess Bldg. 08252 Grand Chain Co: Pulaski IL 62941–9801 Reason: occupied Property Number: 21200610053 Status: Unutilized Bldg. 00054 Fort Stewart Reason: project integrity and security; safety Property Number: 21200520090 Liberty GA 31314 liability Fort Stewart Status: Excess Iowa Liberty GA 31314 Reason: occupied Status: Excess GSA GSA Reason: occupied U.S. Army Reserve Ft. Benning Railroad Corridor Bldg. 01243 Property Number: 54200920017 Property Number: 54201030006 Property Number: 21200610040 620 West 5th St. Cusseta Road Hunter Army Airfield Garner IA 50438 Columbus GA 31401 Savannah Co: Chatham GA 31409 Status: Excess Status: Excess Status: Excess GSA Number: 7–D–IA–0510 GSA Number: 4–D–GA–0518AD Reason: occupied Reason: expression of interest Reason: conveyence pending Bldg. 01244 Former SSA Bldg. Property Number: 21200610041 Hawaii Property Number: 54201020005 Hunter Army Airfield Navy 3012 Division Street Savannah Co: Chatham GA 31409 Burlington IA 52601 Status: Excess Land Status: Excess Reason: occupied Property Record 1–11032 GSA Number: 7–G–IA–0508 Bldg. 01318 Property Number: 77201040011 Reason: advertised for sale Property Number: 21200610042 Naval Station VA Hunter Army Airfield Pearl Harbor HI 96818 Savannah Co: Chatham GA 31409 Status: Unutilized Land Status: Excess Reason: leased 38 acres Reason: occupied Illinois Property Number: 97199740001 Bldg. 00612 VA Medical Center Property Number: 21200610043 COE 1515 West Pleasant St. Fort Stewart Building Knoxville Co: Marion IA 50138 Liberty GA 31314 Status: Unutilized Status: Excess Bldg. 7 Reason: Enhanced-Use Legislation potential Reason: occupied Property Number: 31199010001 Bldg. 00614 Ohio River Locks No. 53 Louisiana Grand Chain Co: Pulaski IL 62941–9801 Property Number: 21200610044 Army Fort Stewart Status: Unutilized Building Liberty GA 31314 Reason: project integrity and security; safety Status: Excess liability Bldg. T401 Reason: occupied Bldg. 6 Property Number: 21200540084 Bldg. 00618 Property Number: 31199010002 Fort Polk Property Number: 21200610045 Ohio River Locks No. 53 Ft. Polk LA 71459 Fort Stewart Grand Chain Co: Pulaski IL 62941–9801 Status: Unutilized Liberty GA 31314 Status: Unutilized Reason: occupied Status: Excess Reason: project integrity and security; safety Bldgs. T406, T407, T411 Reason: occupied liability Property Number: 21200540085 Bldg. 00628 Bldg. 5 Fort Polk Property Number: 21200610046 Property Number: 31199010003 Ft. Polk LA 71459 Fort Stewart Ohio River Locks No. 53 Status: Unutilized Liberty GA 31314 Grand Chain Co: Pulaski IL 62941–9801 Reason: occupied Status: Excess Status: Unutilized Bldg. T412 Reason: occupied Reason: project integrity and security; safety Property Number: 21200540086 Bldg. 01079 liability Fort Polk Property Number: 21200610047 Bldg. 4 Ft. Polk LA 71459 Fort Stewart Property Number: 31199010004 Status: Unutilized Liberty GA 31314 Ohio River Locks No. 53 Reason: occupied Status: Excess Grand Chain Co: Pulaski IL 62941–9801 Bldgs. T414, T421 Reason: occupied Status: Unutilized Property Number: 21200540087 Bldg. 07901 Reason: project integrity and security; safety Fort Polk Property Number: 21200610049 liability Ft. Polk LA 71459 Fort Stewart Bldg. 3 Property Number: 31199010005 Status: Unutilized Liberty GA 31314 Ohio River Locks No. 53 Reason: occupied

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GSA Michigan Status: Unutilized Reason: occupied FAA Outermarker Army Property Number: 54201030007 Bldg. 5763 Building St. Charles Parish Property Number: 21200410104 New Orleans LA 70094 Bldg. 00001 Fort Leonard Wood Status: Excess Property Number: 21200510066 Ft. Leonard Wood Co: Pulaski MO 65743– 8944 GSA Number: 7–U–LA–574–1 Sheridan Hall USARC 501 Euclid Avenue Status: Unutilized Reason: advertised for sale Helena Co: Lewis MI 59601–2865 Reason: occupied Maryland Status: Unutilized Bldg. 5765 Reason: Federal interest Property Number: 21200410105 Army GSA Fort Leonard Wood Bldg. 8608 Ft. Leonard Wood Co: Pulaski MO 65743– Property Number: 21200410099 Social Security Bldg. 8944 Fort George G. Meade Property Number: 54200720020 Status: Unutilized Ft. Meade MD 20755–5115 929 Stevens Road Reason: occupied Status: Unutilized Flint MI 48503 Status: Excess Bldg. 5760 Reason: occupied GSA Number: 1–G–MI–822 Property Number: 21200420059 Bldg. 8612 Reason: expression of interest Fort Leonard Wood Property Number: 21200410101 Ft. Leonard Wood Co: Pulaski MO 65743– CPT George S. Crabbe USARC 8944 Fort George G. Meade Property Number: 54201030018 Ft. Meade MD 20755–5115 Status: Unutilized 2901 Webber Street Reason: in use Status: Unutilized Saginaw MI Reason: occupied Status: Excess Bldg. 5762 Bldg. 0001A GSA Number: 1–D–MI–835 Property Number: 21200420060 Fort Leonard Wood Property Number: 21200520114 Reason: expression of interest Ft. Leonard Wood Co: Pulaski MO 65743– Federal Support Center Land 8944 Olney Co: Montgomery MD 20882 Former Elf Comm. Facility Status: Unutilized Status: Unutilized Property Number: 54200840012 Reason: in use Reason: occupied 3041 County Road Bldg. 5763 Bldg. 0001C Republic MI 49879 Property Number: 21200420061 Property Number: 21200520115 Status: Excess Fort Leonard Wood Federal Support Center GSA Number: 1–N–MI–0827 Ft. Leonard Wood Co: Pulaski MO 65743– Olney Co: Montgomery MD 20882 Reason: conveyance pending 8944 Status: Unutilized VA Status: Unutilized Reason: occupied Reason: in use VA Medical Center Bldgs. 00032, 00H14, 00H24 Property Number: 97199010015 Bldg. 5765 Property Number: 21200520116 5500 Armstrong Road Property Number: 21200420062 Federal Support Center Battle Creek Co: Calhoun MI 49016 Fort Leonard Wood Olney Co: Montgomery MD 20882 Status: Underutilized Ft. Leonard Wood Co: Pulaski MO 65743– Status: Unutilized Reason: being used for patient and program 8944 Reason: occupied activities. Status: Unutilized Reason: in use Bldgs. 00034, 00H016 Missouri Property Number: 21200520117 Bldg. 00467 Federal Support Center Army Property Number: 21200530085 Olney Co: Montgomery MD 20882 Building Fort Leonard Wood Status: Unutilized Ft. Leonard Wood Co: Pulaski MO 65743 Bldg. 1230 Reason: occupied Status: Unutilized Property Number: 21200340087 Reason: occupied Bldgs. 00H10, 00H12 Fort Leonard Wood Property Number: 21200520118 Ft. Leonard Wood Co: Pulaski MO 65743– GSA Federal Support Center 8944 Federal Bldg/Courthouse Olney Co: Montgomery MD 20882 Status: Unutilized Property Number: 54200840013 Status: Unutilized Reason: occupied 339 Broadway St. Reason: occupied Bldg. 1621 Cape Girardeau MO 63701 GSA Property Number: 21200340088 Status: Excess Fort Leonard Wood GSA Number: 7–G–MO–0673 Appraisers Store Ft. Leonard Wood Co: Pulaski MO 65743– Reason: Expression of interest Property Number: 54201030016 8944 Land Baltimore MD 21202 Status: Unutilized Status: Excess Reason: occupied Tract LLWAS K3 Property Number: 54200940004 GSA Number: 4–G–MD–0623 Bldg. 5760 Reason: expression of interest Mexico City Ave. Property Number: 21200410102 Kansas City MO 64153 Massachusetts Fort Leonard Wood Status: Surplus Ft. Leonard Wood Co: Pulaski MO 65743– Land GSA Number: 7–U–MO–0687AA 8944 Reason: expression of interest FAA Site Status: Unutilized Property Number: 54200830026 Reason: occupied Montana Massasoit Bridge Rd. Bldg. 5762 VA Nantucket MA 02554 Property Number: 21200410103 Status: Surplus Fort Leonard Wood Building GSA Number: MA–0895 Ft. Leonard Wood Co: Pulaski MO 65743– VA MT Healthcare Reason: expression of interest 8944 Property Number: 97200030001

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210 S. Winchester Ft. Bragg Co: Cumberland NC 28310 Status: Unutilized Miles City Co: Custer MT 59301 Status: Excess Reason: to be transferred to Borough Status: Underutilized Reason: mission use Tract 403B Reason: transfer to Custer County Ohio Property Number: 31199430022 New Hampshire Grays Landing Lock Project COE Greensboro Co: Greene PA 15338 GSA Bldg.—Berlin Lake Status: Unutilized Federal Building Property Number: 31199640001 Reason: to be transferred to Borough Property Number: 54200920006 7400 Bedell Road Tract 403C 719 Main St. Berlin Center Co: Mahoning OH 44401–9797 Property Number: 31199430023 Parcel ID: 424–124–78 Status: Unutilized Grays Landing Lock Project Laconia NH 03246 Reason: utilized as construction office Greensboro Co: Greene PA 15338 Status: Unutilized Status: Excess GSA GSA Number: 1–G–NH–0503 Reason: to be transferred to Borough Reason: expression of interest Oxford USAR Facility Property Number: 54201010007 Land New Jersey 6557 Todd Road East Branch Clarion River Lake Camp Petricktown Sup. Facility Oxford OH 45056 Property Number: 31199011012 Property Number: 54200740005 Status: Excess Wilcox Co: Elk PA US Route 130 GSA Number: 1–D–OH–833 Status: Underutilized Pedricktown NJ 08067 Reason: Expression of interest Reason: location near damsite Status: Excess Belmont Cty Memorial USAR Ctr Dashields Locks and Dam GSA Number: 1–D–NJ–0662 Property Number: 54201020008 Property Number: 31199210009 Reason: expression of interest 5305 Guernsey St. (Glenwillard, PA) Bellaire OH 43906 Crescent Twp. Co: Allegheny PA 15046–0475 New York Status: Excess Status: Unutilized Army GSA Number: 1–D–OH–837 Reason: leased to Township Reason: conveyance in progress Bldgs. 1511–1518 GSA Army Reserve Center Property Number: 21200320160 approx. 16.88 U.S. Military Academy Property Number: 54201020009 5301 Hauserman Rd. Property Number: 54200820011 Training Area 271 Sterrettania Rd. Highlands Co: Orange NY 10996 Parma Co: Cuyahoga OH 44130 Status: Excess Erie PA 16506 Status: Unutilized Status: Surplus Reason: occupied GSA Number: I–D–OH–842 Reason: expression of interest GSA Number: 4–D–PA–0810 Bldgs. 1523–1526 Reason: advertised for sale Property Number: 21200320161 2LT George F. Pennington USARC U.S. Military Academy Property Number: 54201020010 VA Training Area 2164 Harding Hwy. E. VA Medical Center Highlands Co: Orange NY 10996 Marion OH 43302 Property Number: 97199010016 Status: Unutilized Status: Excess New Castle Road Reason: occupied GSA Number: I–D–OH–838 Butler Co: Butler PA 16001 Reason: Expression of Interest Status: Underutilized Bldgs. 1704–1705, 1721–1722 VA Property Number: 21200320162 Reason: used as natural drainage for facility Bldg. 116 property. U.S. Military Academy Property Number: 97199920002 Training Area Land No. 645 VA Medical Center Property Number: 97199010080 Highlands Co: Orange NY 10996 Dayton Co: Montgomery OH 45428 Status: Unutilized VA Medical Center Status: Unutilized Highland Drive Reason: occupied Reason: preexisting agreement Bldg. 1723 Pittsburgh Co: Allegheny PA 15206 Status: Unutilized Property Number: 21200320163 Oregon Reason: property is essential to security and U.S. Military Academy GSA safety of patients. Training Area Highlands Co: Orange NY 10996 3 Bldgs/Land Land—34.16 acres Status: Unutilized Property Number: 54200840003 Property Number: 97199340001 Reason: occupied OTHR–B Radar VA Medical Center Cty Rd 514 1400 Black Horse Hill Road Bldgs. 1706–1709 Christmas Valley OR 97641 Coatesville Co: Chester PA 19320 Property Number: 21200320164 Status: Excess Status: Underutilized U.S. Military Academy GSA Number: 9–D–OR–0768 Reason: needed for mission related functions Training Area Reason: expression of interest Highlands Co: Orange NY 10996 South Dakota Status: Unutilized U.S. Customs House Air Force Reason: occupied Property Number: 54200840004 220 NW 8th Ave. Bldgs. 1731–1735 Tract 133 Portland OR Property Number: 18200310004 Property Number: 21200320165 Status: Excess U.S. Military Academy Ellsworth AFB GSA Number: 9–D–OR–0733 Box Elder Co: Pennington SD 57706 Training Area Reason: expression of interest Highlands Co: Orange NY 10996 Status: Unutilized Status: Unutilized Pennsylvania Reason: special legislation Reason: occupied Tract 67 COE Property Number: 18200310005 North Carolina Tract 403A Ellsworth AFB Bldg. N4116 Property Number: 31199430021 Box Elder Co: Pennington SD 57706 Property Number: 21200240087 Grays Landing Lock Project Status: Unutilized Fort Bragg Greensboro Co: Greene PA 15338 Reason: mission purpose

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Tennessee Bldg. 57001 Property Number: 21200440105 Property Number: 21200620089 Fort Hood Fort Hood GSA Bell TX 76544 Bell TX 76544 Building Status: Excess Status: Excess NOAA Admin. Bldg. Reason: occupied Reason: occupied Property Number: 54200920015 Bldgs. 125, 126 Bldgs. 04470, 04471 456 S. Illinois Ave. Property Number: 21200620075 Property Number: 21200620090 Oak Ridge TN 38730 Fort Hood Fort Hood Status: Excess Bell TX 76544 Bell TX 76544 GSA Number: 4–B–TN–0664–AA Status: Excess Status: Excess Reason: Federal interest Reason: occupied Reason: occupied Bldg. 190 Bldg. 04493 Texas Property Number: 21200620076 Property Number: 21200620091 Army Fort Hood Fort Hood Bldgs. 4219, 4227 Bell TX 76544 Bell TX 76544 Property Number: 21200220139 Status: Excess Status: Excess Fort Hood Reason: occupied Reason: occupied Ft. Hood Co: Bell TX 76544 Bldg. 02240 Bldg. 04494 Status: Unutilized Property Number: 21200620078 Property Number: 21200620092 Reason: admin use Fort Hood Fort Hood Bldgs. 4229, 4230, 4231 Bell TX 76544 Bell TX 76544 Property Number: 21200220140 Status: Excess Status: Excess Fort Hood Reason: occupied Reason: occupied Ft. Hood Co: Bell TX 76544 Bldg. 04164 Bldg. 04632 Status: Unutilized Property Number: 21200620079 Property Number: 21200620093 Reason: admin use Fort Hood Fort Hood Bldgs. 4244, 4246 Bell TX 76544 Bell TX 76544 Property Number: 21200220141 Status: Excess Status: Excess Fort Hood Reason: occupied Reason: occupied Ft. Hood Co: Bell TX 76544 Bldgs. 04218, 04228 Bldg. 04640 Status: Unutilized Property Number: 21200620080 Property Number: 21200620094 Reason: admin use Fort Hood Fort Hood Bldgs. 4260, 4261, 4262 Bell TX 76544 Bell TX 76544 Property Number: 21200220142 Status: Excess Status: Excess Fort Hood Reason: occupied Reason: occupied Ft. Hood Co: Bell TX 76544 Bldg. 04272 Bldg. 04645 Status: Unutilized Property Number: 21200620081 Property Number: 21200620095 Reason: admin use Fort Hood Fort Hood Bldg. 04335 Bell TX 76544 Bell TX 76544 Property Number: 21200440090 Status: Excess Status: Excess Fort Hood Reason: not occupied Reason: occupied Bell TX 76544 Bldg. 04415 Bldg. 04906 Status: Excess Property Number: 21200620083 Property Number: 21200620096 Reason: occupied Fort Hood Fort Hood Bldg. 04465 Bell TX 76544 Bell TX 76544 Property Number: 21200440094 Status: Excess Status: Excess Fort Hood Reason: occupied Reason: occupied Bell TX 76544 4 Bldgs Bldg. 20121 Status: Excess Property Number: 21200620084 Property Number: 21200620097 Reason: occupied Fort Hood Fort Hood Bldg. 04468 04419, 04420, 04421, 04424 Bell TX 76544 Property Number: 21200440096 Bell TX 76544 Status: Excess Fort Hood Status: Excess Reason: occupied Bell TX 76544 Reason: occupied Bldg. 91052 Status: Excess 4 Bldgs. Property Number: 21200620101 Reason: occupied Property Number: 21200620085 Fort Hood Bldgs. 04475–04476 Fort Hood Bell TX 76544 Property Number: 21200440098 04425, 04426, 04427, 04429 Status: Excess Fort Hood Bell TX 76544 Reason: occupied Bell TX 76544 Status: Excess Bldg. 1345 Status: Excess Reason: occupied Property Number: 21200740070 Reason: occupied Bldg. 04430 Fort Hood Bldg. 04477 Property Number: 21200620087 Bell TX 76544 Property Number: 21200440099 Fort Hood Status: Excess Fort Hood Bell TX 76544 Reason: utilized Bell TX 76544 Status: Excess Bldgs. 1348, 1941 Status: Excess Reason: occupied Property Number: 21200740071 Reason: occupied Bldg. 04434 Fort Hood Bldg. 07002 Property Number: 21200620088 Bell TX 76544 Property Number: 21200440100 Fort Hood Status: Excess Fort Hood Bell TX 76544 Reason: utilized Bell TX 76544 Status: Excess Bldg. 1919 Status: Excess Reason: occupied Property Number: 21200740072 Reason: occupied Bldg. 04439 Fort Hood

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Bell TX 76544 Reason: utilized Property Number: 21200740099 Status: Excess Bldg. 04489 Fort Hood Reason: utilized Property Number: 21200740086 Bell TX 76544 Bldg. 1943 Fort Hood Status: Excess Property Number: 21200740073 Ft. Hood TX 76544 Reason: utilized Fort Hood Status: Excess Bldg. 56329 Bell TX 76544 Reason: utilized Property Number: 21200740100 Status: Excess Bldgs. 4491, 4492 Fort Hood Reason: utilized Property Number: 21200740087 Bell TX 76544 Bldg. 1946 Fort Hood Status: Excess Property Number: 21200740074 Bell TX 76544 Reason: utilized Status: Excess Fort Hood 9 Bldgs. Reason: utilized Bell TX 76544 Property Number: 21200740101 Status: Excess Bldgs. 04902, 04905 Fort Hood Reason: utilized Property Number: 21200740088 Bell TX 76544 Bldg. 4205 Fort Hood Status: Excess Bell TX 76544 Property Number: 21200740075 Reason: utilized Fort Hood Status: Excess Bell TX 76544 Reason: utilized Bldg. 92043 Status: Excess Bldgs. 04914, 04915, 04916 Property Number: 21200740102 Reason: utilized Property Number: 21200740089 Fort Hood Bell TX 76544 Bldg. 4207 Fort Hood Status: Excess Property Number: 21200740076 Bell TX 76544 Fort Hood Status: Excess Reason: utilized Bell TX 76544 Reason: utilized Bldg. 92072 Status: Excess Bldg. 20102 Property Number: 21200740103 Reason: utilized Property Number: 21200740091 Fort Hood Bldg. 4208 Fort Hood Bell TX 76544 Property Number: 21200740077 Bell TX 76544 Status: Excess Fort Hood Status: Excess Reason: utilized Bell TX 76544 Reason: utilized Bldg. 92083 Status: Excess Bldg. 20118 Property Number: 21200740104 Reason: utilized Property Number: 21200740092 Fort Hood Bldgs. 4210, 4211, 4216 Fort Hood Bell TX 76544 Property Number: 21200740078 Bell TX 76544 Status: Excess Fort Hood Status: Excess Reason: utilized Reason: utilized Bell TX 76544 Bldgs. 04213, 04227 Status: Excess Bldg. 29027 Property Number: 21200740189 Reason: utilized Property Number: 21200740093 Fort Hood Bldg. 4219A Fort Hood Bell TX 76544 Property Number: 21200740079 Bell TX 76544 Status: Excess Fort Hood Status: Excess Reason: utilized Reason: utilized Bell TX 76544 Bldg.4404 Status: Excess Bldg. 56017 Property Number: 21200740190 Reason: utilized Property Number: 21200740094 Fort Hood Fort Hood Bldg. 04252 Bell TX 76544 Property Number: 21200740081 Bell TX 76544 Status: Excess Status: Excess Fort Hood Reason: utilized Bell TX 76544 Reason: utilized Status: Excess Bldg. 56202 Bldg. 56607 Reason: utilized Property Number: 21200740095 Property Number: 21200740191 Fort Hood Bldg. 4255 Fort Hood Bell TX 76544 Property Number: 21200740082 Bell TX 76544 Status: Excess Fort Hood Status: Excess Reason: utilized Bell TX 76544 Reason: utilized Status: Excess Bldg. 56224 Bldg. 91041 Reason: utilized Property Number: 21200740096 Property Number: 21200740192 Bldg. 04480 Fort Hood Fort Hood Property Number: 21200740083 Bell TX 76544 Bell TX 76544 Fort Hood Status: Excess Status: Excess Bell TX 76544 Reason: utilized Reason: utilized Status: Excess Bldg. 56305 5 Bldgs. Reason: utilized Property Number: 21200740097 Property Number: 21200740193 Bldg. 04485 Fort Hood Fort Hood Property Number: 21200740084 Bell TX 76544 93010, 93011, 93012, 93014 Fort Hood Status: Excess Bell TX 76544 Bell TX 76544 Reason: utilized Status: Excess Status: Excess Bldg. 56311 Reason: utilized Reason: utilized Property Number: 21200740098 Bldg. 94031 Bldgs. 04487, 04488 Fort Hood Property Number: 21200740194 Property Number: 21200740085 Bell TX 76544 Fort Hood Fort Hood Status: Excess Bell TX 76544 Bell TX 76544 Reason: utilized Status: Excess Status: Excess Bldg. 56327 Reason: utilized

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GSA Fort Eustis Status: Unutilized Land Ft. Eustis VA 23604 Reason: mission effort Status: Unutilized 22 Bldgs./Geiger Heights Cottonwood Bay Reason: occupied Property Number: 18200420006 Property Number: 54201010004 Bldg. 01720 Fairchild AFB 14th St/Skyline Rd. Property Number: 21200720078 Spokane WA 99224 Grand Prairie TX Fort Eustis Status: Unutilized Status: Surplus Ft. Eustis VA 23604 Reason: mission effort GSA Number: 7–N–TX–846 Status: Unutilized Reason: expression of interest 51 Bldgs./Geiger Heights Reason: occupied Property Number: 18200420007 FAA Outermarker—Houston Bldgs. 01721, 01725 Fairchild AFB Property Number: 54201040001 Property Number: 21200720079 Spokane WA 99224 Spring TX 77373 Fort Eustis Status: Unutilized Status: Surplus Ft. Eustis VA 23604 Reason: mission effort GSA Number: 7–U–TX–1110 Status: Unutilized Reason: expression of Interest Bldg. 402/Geiger Heights Reason: occupied Property Number: 18200420008 Utah Bldgs. 01726, 01735, 01736 Fairchild AFB Spokane WA 99224 Processing and Disposal Site Property Number: 21200720080 Status: Unutilized Property Number: 54201030008 Fort Eustis Reason: mission effort Monticello UT 84535 Ft. Eustis VA 23604 Status: Surplus Status: Unutilized 5 Bldgs./Geiger Heights GSA Number: 7–B–UT–431–AO Reason: occupied Property Number: 18200420009 Reason: expression of interest Bldgs. 01734, 01745, 01747 Fairchild AFB Property Number: 21200720081 222, 224, 271, 295, 260 Virginia Fort Eustis Spokane WA 99224 Army Ft. Eustis VA 23604 Status: Unutilized Status: Unutilized Reason: mission effort Building Reason: occupied 5 Bldgs./Geiger Heights Bldg. T2827 Bldg. 01741 Property Number: 18200420010 Property Number: 21200320172 Property Number: 21200720082 Fairchild AFB Fort Pickett Fort Eustis 102, 183, 118, 136, 113 Blackstone Co: Nottoway VA 23824 Ft. Eustis VA 23604 Spokane WA 99224 Status: Unutilized Status: Unutilized Status: Unutilized Reason: occupied Reason: occupied Reason: mission effort Bldg. T2841 Bldg. 02720 Army Property Number: 21200320173 Property Number: 21200720083 Bldg. 05904 Fort Pickett Fort Eustis Property Number: 21200240092 Blackstone Co: Nottoway VA 23824 Ft. Eustis VA 23604 Fort Lewis Status: Unutilized Status: Unutilized Ft. Lewis Co: Pierce WA 98433–9500 Reason: occupied Reason: occupied Bldg. 01014 Status: Excess Property Number: 21200720067 GSA Reason: mission use Fort Story Sewell’s Point Substation GSA Ft. Story VA 23459 Property Number: 54201030009 Fox Island Naval Lab Status: Unutilized Hampton Blvd. Property Number: 54201020012 Reason: occupied Norfolk VA 23505 630 3rd Ave. Status: Excess Bldg. 01063 Fox Island Co: Pierce WA 98333 GSA Number: 4–N–VA–0753 Property Number: 21200720072 Status: Surplus Reason: conveyence pending Fort Story GSA Number: 9–D–WA–1245 Ft. Story VA 23459 Washington Reason: advertised for sale Status: Unutilized Reason: occupied Air Force West Virginia Bldg. 00215 Bldg. 404/Geiger Heights Naval Reserve Center Property Number: 21200720073 Property Number: 18200420002 Property Number: 54200930014 Fort Eustis Fairchild AFB 841 Jackson Ave. Ft. Eustis VA 23604 Spokane WA 99224 Huntington WV 25704 Status: Unutilized Status: Unutilized Status: Excess Reason: occupied Reason: mission effort GSA Number: 4–N–WV–0555 4 Bldgs. 11 Bldgs./Geiger Heights Reason: expression of interest Property Number: 21200720074 Property Number: 18200420003 Harley O. Staggers Bldg. Fort Eustis Fairchild AFB Property Number: 54201020013 01514, 01523, 01528, 01529 Spokane WA 99224 75 High St. Ft. Eustis VA 23604 Status: Unutilized Morgantown WV 26505 Status: Unutilized Reason: mission effort Status: Excess Reason: occupied Bldg. 297/Geiger Heights GSA Number: 4–G–WV–0557 4 Bldgs. Property Number: 18200420004 Reason: expression of interest Property Number: 21200720075 Fairchild AFB Wisconsin Fort Eustis Spokane WA 99224 01534, 01542, 01549, 01557 Status: Unutilized VA Ft. Eustis VA 23604 Reason: mission effort Bldg. 8 Status: Unutilized 9 Bldgs./Geiger Heights Property Number: 97199010056 Reason: occupied Property Number: 18200420005 VA Medical Center Bldgs. 01707, 01719 Fairchild AFB County Highway E Property Number: 21200720077 Spokane WA 99224 Tomah Co: Monroe WI 54660

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Status: Underutilized Reason: unsafe conditions [FR Doc. 2011–2785 Filed 2–11–11; 8:45 am] BILLING CODE 4210–67–P

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Reader Aids Federal Register Vol. 76, No. 30 Monday, February 14, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING FEBRUARY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revison date of each title. Presidential Documents 1 CFR 121 ...... 5680, 7098, 8222 124...... 5680, 8222 9...... 6311 Executive orders and proclamations 741–6000 125...... 5680 The United States Government Manual 741–6000 11...... 6311 12...... 6311 126...... 5680 Other Services 134...... 5680 Electronic and on-line services (voice) 741–6020 3 CFR Proposed Rules: Privacy Act Compilation 741–6064 Proclamations: Ch. III...... 5501, 6088 741–6043 8625...... 6305 Public Laws Update Service (numbers, dates, etc.) 14 CFR TTY for the deaf-and-hard-of-hearing 741–6086 8626...... 6307 8627...... 6521 25...... 8278 Executive Orders: 39 ...... 5467, 6323, 6523, 6525, ELECTRONIC RESEARCH 13501 (revoked by 6529, 6533, 6535, 6536, World Wide Web 13564) ...... 6309 6539, 6541, 6543, 6549, Full text of the daily Federal Register, CFR and other publications 13564...... 6309 7101, 7694 is located at: www.fdsys.gov. 13565...... 7681 45...... 7482 71 ...... 5469, 5470, 5471, 5472, Federal Register information and research tools, including Public Administrative Orders: Memorandums: 6049, 8281 Inspection List, indexes, and links to GPO Access are located at: Memorandum of 97 ...... 6050, 6053, 8288, 8291 www.ofr.gov. February 7, 2011 ...... 7477 110...... 7482 E-mail 119...... 7482 7 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 121...... 7482 an open e-mail service that provides subscribers with a digital 301...... 5679 129...... 7482 form of the Federal Register Table of Contents. The digital form 915...... 7095 135...... 7482 of the Federal Register Table of Contents includes HTML and 996...... 7096 Proposed Rules: PDF links to the full text of each document. 1429...... 6313 25 ...... 6088, 8314, 8316, 8319 2902...... 6319 27...... 6094 To join or leave, go to http://listserv.access.gpo.gov and select 4279...... 8404 29...... 6094 Online mailing list archives, FEDREGTOC-L, Join or leave the list 4287...... 8404 33...... 8321 (or change settings); then follow the instructions. 4288...... 7916, 7936 39 ...... 5503, 5505, 5507, 6575, PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 6578, 6581, 6584, 7511, service that notifies subscribers of recently enacted laws. 925...... 7119 7513 2902...... 6366 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 71 ...... 7515, 8322, 8324 and select Join or leave the list (or change settings); then follow 9 CFR 139...... 5510 the instructions. 78...... 6322 15 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot Proposed Rules: 748...... 7102 respond to specific inquiries. 93...... 7721 Proposed Rules: Reference questions. Send questions and comments about the 94...... 7721 922...... 6368 Federal Register system to: [email protected] 98...... 7721 103...... 6702 17 CFR The Federal Register staff cannot interpret specific documents or 112...... 6702 229...... 6010 regulations. 114...... 6702 240...... 6010 Reminders. Effective January 1, 2009, the Reminders, including 309...... 6572 249...... 6010 Rules Going Into Effect and Comments Due Next Week, no longer appear in the Reader Aids section of the Federal Register. This 10 CFR Proposed Rules: information can be found online at http://www.regulations.gov. 1023...... 7685 3...... 6095 Proposed Rules: 4...... 7976, 8068 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 23...... 6708, 6715 longer appears in the Federal Register. This information can be 40...... 8314 73 ...... 6085, 6086, 6087, 6200 32...... 6095 found online at http://bookstore.gpo.gov/. 33...... 6095 12 CFR 35...... 6095 FEDERAL REGISTER PAGES AND DATE, FEBRUARY 21...... 6687 145...... 7976 41...... 6687 147...... 7976 5467–5678...... 1 225...... 8265 229...... 6110, 6111 5679–6048...... 2 907...... 7479 239...... 6110 6049–6310...... 3 1213...... 7479 249...... 6110, 6111 6311–6522...... 4 Proposed Rules: 275...... 8068 6522–6686...... 7 225...... 7731 279...... 8068 6686–7094...... 8 330...... 7740 18 CFR 7095–7478...... 9 1228...... 6702 7479–7680...... 10 157...... 8293 7681–8264...... 11 13 CFR Proposed Rules: 8265–8602...... 14 120...... 7098 410...... 6727

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19 CFR 70...... 5473 52 ...... 6331, 6559, 7116, 8298, 5...... 6928 123...... 6688 71...... 5473 8300 15...... 5521 81...... 6056 22...... 6928 141...... 8294 28 CFR 142...... 6688 93...... 6328 73...... 5521, 6928 178...... 6688 552...... 6054 180 .....5687, 5691, 5696, 5704, 74...... 6928 351...... 7491 Proposed Rules: 5711, 6335, 6342, 6347, 80...... 6928 7703, 7707, 7712 87...... 6928 Proposed Rules: 115...... 6248 271...... 6561, 6564 90...... 6928 351...... 5518 30 CFR Proposed Rules: 101...... 6928 21 CFR Proposed Rules: 26...... 5735 510...... 6326 104...... 5719 50...... 8158 48 CFR 938...... 6587 52 ...... 6376, 6590, 7142, 8326, 516...... 6326 216...... 8303 573...... 7106 948...... 6589 8330 53...... 8158 245...... 6004, 6006 878...... 6551 31 CFR 252 ...... 6004, 6006, 8303 Proposed Rules: 55...... 7518 548...... 5482 901...... 7685 310...... 7743 58...... 8158 562...... 7695 902...... 7685 334...... 7743 141...... 7762 Proposed Rules: 271...... 6594 903...... 7685 23 CFR 1...... 7121 904...... 7685 42 CFR 906...... 7685 470...... 6690 29...... 6112 405...... 5862 907...... 7685 24 CFR 32 CFR 424...... 5862 908...... 7685 909...... 7685 Proposed Rules: 199...... 8294 447...... 5862 655...... 6692 455...... 5862 911...... 7685 200...... 5518 914...... 7685 Proposed Rules: 457...... 5862 903...... 6654 915...... 7685 905...... 6654 156...... 5729 498...... 5862 1007...... 5862 916...... 7685 941...... 6654 917...... 7685 33 CFR Proposed Rules: 968...... 6654 952...... 7685 100...... 7107, 7701 416...... 5755 969...... 6654 1816...... 6696 117 ...... 5685, 5686, 6694, 7107 418...... 5755 25 CFR 147...... 7107 482...... 5755 Proposed Rules: 24...... 7522 15...... 7500 165...... 7107 483...... 5755 334...... 6327 484...... 5755 Ch. II ...... 7782 1834...... 7526 26 CFR Proposed Rules: 485...... 5755 1...... 6553 100...... 7123 486...... 5755 Proposed Rules: 117...... 7131 491...... 5755 49 CFR 165 ...... 5732, 6728, 7131, 7515 1...... 7757 43 CFR 171...... 5483 31...... 7757 181...... 7757 173...... 5483 4...... 7500 301...... 6369 36 CFR 191...... 5494 30...... 7500 192...... 5494 27 CFR 1254...... 6554 44 CFR Proposed Rules: 1...... 5473 Proposed Rules: 385...... 5537 4...... 5473 219...... 8480 61...... 7508 390...... 5537 5...... 5473 242...... 6730, 7758 Proposed Rules: 395...... 5537 7...... 5473 67 ...... 5769, 6380, 8330 37 CFR 9...... 5473 45 CFR 13...... 5473 Proposed Rules: 50 CFR 16...... 5473 1...... 6369 Proposed Rules: 17 ...... 6066, 6848, 7246 17...... 5473 144...... 7767 216...... 6699 38 CFR 18...... 5473 147...... 7767 300...... 6567 20...... 5473 1...... 6694 170...... 5774 622 ...... 5717, 6364, 7118 22...... 5473 36...... 6555 1609...... 6381 648...... 8306 24...... 5473 Proposed Rules: 679...... 5718, 6083 46 CFR 25...... 5473 3...... 5733 Proposed Rules: 26...... 5473 401...... 6351 17 ...... 6734, 7528, 7634 28...... 5473 39 CFR 100...... 6730, 7758 47 CFR 30...... 5473 20...... 7114 223...... 6754, 6755 40...... 5473 Proposed Rules: 73...... 7719 224...... 6383 41...... 5473 3050...... 8325 Proposed Rules: 648...... 5555 44...... 5473 0...... 6928 665...... 8330 45...... 5473 40 CFR 1...... 5652, 6928 679...... 7788 53...... 5473 51...... 6328 2...... 5521, 6928 680...... 5556

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The text of laws is not H.R. 366/P.L. 112-1 enacted public laws. To published in the Federal To provide for an additional subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered temporary extension of listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual programs under the Small publaws-l.html pamphlet) form from the Business Act and the Small Business Investment Act of This is the first in a continuing Superintendent of Documents, 1958, and for other purposes. Note: This service is strictly list of public bills from the U.S. Government Printing for E-mail notification of new current session of Congress (Jan. 31, 2011) Office, Washington, DC 20402 laws. The text of laws is not which have become Federal (phone, 202–512–1808). The available through this service. laws. It may be used in text will also be made conjunction with ‘‘P L U S’’ Public Laws Electronic PENS cannot respond to available on the Internet from (Public Laws Update Service) Notification Service specific inquiries sent to this GPO Access at http:// on 202–741–6043. This list is (PENS) address. www.gpoaccess.gov/plaws/ also available online at http:// www.archives.gov/federal- index.html. Some laws may PENS is a free electronic mail register/laws.html. not yet be available. notification service of newly

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